EXHIBIT 10.10
REGISTRATION RIGHTS AGREEMENT
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This Registration Rights Agreement (the "Agreement") is made as of July 8,
1998, among Choice One Communications Inc., a Delaware corporation (the
"Corporation"), the Investor Holders and the Management Holders.
WHEREAS, the parties hereto and Choice One Communications LLC (the "LLC")
have entered into the Transaction Agreement, dated as of the date hereof, and
certain related agreements relating to the investment by the Investor Holders
and the Management Holders in the Corporation;
WHEREAS, this Agreement provides for certain rights and obligations of the
Corporation and the Holders with respect to registration of the Common Stock
under the Securities Act;
NOW, THEREFORE, in consideration of the mutual promises made herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and the parties hereto, intending to be legally bound agree
as follows:
ARTICLE 1
Definitions
Section 1.1. Definitions. The following terms used herein but not
otherwise defined will have the following meanings, applicable both to the
singular and the plural forms of the terms described:
"Affiliate" of any particular Person means any other Person controlling,
controlled by or under common control with such particular Person, where
"control" means the possession, directly or indirectly, of the power to direct
the management and policies of a Person whether through the ownership of voting
securities, by contract or otherwise
"Board" means the board of directors of the Corporation.
"Common Stock" means the common stock, par value $0.01 per share, of the
Corporation.
"Corporation Securities" has the meaning ascribed thereto in Section
2.02(b).
"Disadvantageous Condition" has the meaning ascribed thereto in Section
2.01(a)(i).
"Executive Purchase Agreements" has the meaning ascribed to such term in
the Transaction Agreement.
"Fleet" means, collectively, Xxxxxxxx Partners III, L.P., Xxxxxxx Plaza
Partners, Fleet Venture Resources, Inc. and Fleet Equity Partners VI, L.P.
"Holder" means each of the Investor Holders, the Management Holders and,
subject to Section 2.08, any Transferee.
"Initial Public Offering Date" means the date of completion of the initial
sale of Common Stock in the initial Public Offering.
"Investor Holders" means MSCP, Fleet, Xxxxxx-Xxxxxx and Xxxxx X. Xxxxxxx
and any Transferee that becomes an Investor Holder pursuant to Section 2.08.
"LLC Agreement" means the limited liability company agreement dated as of
the date hereof, entered into by and among the members of the LLC, as amended
from time to time in accordance with its terms.
"Majority Holders" means the Holders holding a majority in aggregate of the
Registrable Securities held by all Holders.
"Majority Investor Holders" means the Investor Holders holding a majority
in aggregate of the Registrable Securities held by all Investor Holders.
"Majority Management Holders" means Management Holders holding a majority
in aggregate of the Registrable Securities held by all Management Holders.
"Management Holder" means (i) each individual that has purchased Management
Equity pursuant to an Executive Purchase Agreement, so long as such individual
remains employed by the Corporation and (ii) any Transferee that becomes a
Management Holder pursuant to Section 2.08.
"MSCP" means, collectively, Xxxxxx Xxxxxxx Capital Partners III, L.P.,
Xxxxxx Xxxxxxx Capital Investors, L.P., and MSCP III 892 Investors, L.P.
"Other Securities" has the meaning ascribed thereto in Section 2.02.
"Person" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture,
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an unincorporated organization and a governmental entity or any department,
agency or political subdivision thereof.
"Public Offering" means any underwritten sale of the Common Stock pursuant
to an effective registration statement under the Securities Act filed with the
Securities and Exchange Commission on Form S-1 (or a successor form adopted by
the Securities and Exchange Commission); provided that the following shall not
be considered a Public Offering: (i) any issuance of common stock as
consideration or financing for a merger or acquisition, and (ii) any issuance of
common stock or rights to acquire common stock to employees of the Corporation
or its Subsidiaries as part of an incentive or compensation plan.
"Registrable Securities" means Common Stock and any securities issued
directly or indirectly with respect to such Common Stock by way of a split,
dividend, or other division of securities, or in connection with a combination
of securities, recapitalization, merger, consolidation, or other reorganization.
As to any particular Registrable Securities, such Registrable Securities shall
cease to be Registrable Securities when they (i) have been effectively
registered under the Securities Act and disposed of in accordance with the
registration statement covering them or (ii) repurchased by the Corporation or
otherwise have ceased to be outstanding.
"Registration Expenses" means any and all expenses incident to performance
of or compliance with any registration or marketing of securities pursuant to
Article 2, including, without limitation, (i) the fees, disbursements and
expenses of the Corporation's counsel and accountants in connection with this
Agreement and the performance of the Corporation's obligations hereunder
(including the expenses of any annual audit letters and "cold comfort" letters
required or incidental to the performance of such obligations); (ii) all
expenses, including filing fees, in connection with the preparation, printing
and filing of the registration statement, any preliminary prospectus or final
prospectus, any other offering document and amendments and supplements thereto
and the mailing and delivering of copies thereof to any underwriters and
dealers; (iii) the cost of printing or producing any agreements among
underwriters, underwriting agreements, and blue sky or legal investment
memoranda, any selling agreements and any other documents in connection with the
offering, sale or delivery of the securities to be disposed of; (iv) all
expenses in connection with the qualification of the securities to be disposed
of for offering and sale under state securities laws, including the fees and
disbursements of counsel for the underwriters or the Holders of securities in
connection with such qualification and in connection with any blue sky and legal
investment surveys; (v) the filing fees incident to securing any required review
by the National Association of Securities Dealers, Inc. of the terms of the sale
of the securities to be disposed of; (vi) transfer agents' and
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registrars' fees and expenses and the fees and expenses of any other agent or
trustee appointed in connection with such offering; (vii) all security engraving
and security printing expenses; (viii) all fees and expenses payable in
connection with the listing of the securities on any securities exchange or
automated interdealer quotation system or the rating of such securities; (ix)
any other fees and disbursements of underwriters customarily paid by the issuers
of securities, but excluding underwriting discounts and commissions and transfer
taxes, if any; (x) the costs and expenses of the Corporation and its officers
relating to rating agency, analyst or investor presentations or any "road show"
undertaken in connection with the registration and/or marketing of any
Registrable Securities and (xi) other reasonable out-of-pocket costs, fees and
expenses of the Holders including the counsel to the Holders selected pursuant
to Section 2.01(d), provided that the Corporation will not be liable for the
fees and expenses of more than one legal counsel representing the Holders in
connection with any registration hereunder.
"Rule 144" means Rule 144 (or any successor rule to similar effect)
promulgated under the Securities Act.
"Rule 415 Offering" means an offering on a delayed or continuous basis
pursuant to Rule 415 (or any successor rule to similar effect) promulgated under
the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended, and
applicable rules and regulations thereunder.
"Securities and Exchange Commission" includes any governmental body or
agency succeeding to the functions thereof.
"Securities Exchange Act" means the Securities Exchange Act of 1934, as
amended, and applicable rules and regulations thereunder.
"Selling Holder" means a Holder of Registrable Securities included in the
relevant registration statement.
"Transaction Agreement" means the Transaction Agreement dated as of the
date hereof by and between the Corporation, the LLC, the Investor Holders and
the Management Holders.
"Transfer" shall include any direct or indirect sale, transfer, assignment,
pledge or other disposition (whether with or without consideration and whether
voluntary or involuntary or by operation of law) of any interest in Common
Stock.
"Transferee" has the meaning ascribed thereto in Section 2.08.
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"Triggering Investor Holders" means (i) Investor Holders holding at least
20% in the aggregate of the Registrable Securities held by all Investor Holders
or (ii) any two out of three of MSCP, Fleet and Xxxxxx-Xxxxxx.
"Units" has the meaning ascribed to such term in the LLC Agreement.
"Xxxxxx-Xxxxxx" means, Xxxxxx-Xxxxxx Media Partners, L.P., a Delaware
limited partnership.
ARTICLE 2
Registration Rights
Section 2.1. Demand Registration--Registrable Securities--. (a) After the
Initial Public Offering Date, or if prior to the Initial Public Offering Date
then with approval of the LLC, (i) the Majority Investor Holders, (ii) or, after
one registration has been effected (within the meaning of Section 2.01(c))
pursuant to this Section 2.01, the Triggering Investor Holders or the Majority
Management Holders, in either case may request in writing that the Corporation
effect the registration under the Securities Act of any or all of the
Registrable Securities held by such requesting Holders. Upon receipt of such
written notice specifying the intended method or methods of disposition of such
Registrable Securities, the Corporation shall promptly give written notice of
such requested registration to all other Holders of Registrable Securities. The
other Holders may by written notice to the Corporation, within 15 days of the
Corporation's notice, request the inclusion in such registration of any or all
of the Registrable Securities held by each such other Holder. The Corporation
shall promptly after the expiration of such 15-day period notify each Holder of
Registrable Securities to be included in the registration of the other Holders
requesting Registrable Securities to be included therein and the number of
Registrable Securities requested to be included therein by each. The
Corporation shall prepare and (within 90 days after the original request has
been given) file with the Securities and Exchange Commission a registration
statement with respect to all such Registrable Securities and thereafter use its
best efforts to effect the registration under the Securities Act and applicable
state securities laws of such Registrable Securities for disposition in
accordance with the intended method or methods of disposition stated in such
request (which requested method of disposition may be a Rule 415 Offering);
provided that, notwithstanding the foregoing:
(i) with respect to any registration statement filed, or to be
filed, pursuant to this Section 2.01, if the Corporation shall furnish to
the Holders of Registrable Securities that have made such request a
certified
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resolution of the Board stating that in the Board's good faith judgment it
would (because of the existence of, or in anticipation of, any acquisition
or other material event or transaction the public disclosure of which at
the time would be materially prejudicial to the Corporation) be
significantly disadvantageous (a "Disadvantageous Condition") to the
Corporation for such a registration statement to be maintained effective,
or to be filed and become effective, and setting forth in reasonable detail
the general reasons for such judgment, the Corporation shall be entitled to
cause such registration statement to be withdrawn and 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 (written notice of which the Corporation shall promptly deliver to
such Holders). Upon receipt of any such certification of a Disadvantageous
Condition, such Holders shall forthwith discontinue use of the prospectus
contained in such registration statement and, if so directed by the
Corporation, each such Holder will deliver to the Corporation all copies,
other than permanent file copies then in such Holder's possession, of the
prospectus then covering such Registrable Securities current at the time of
receipt of such notice; provided that, notwithstanding anything else
contained in this Agreement, (1) neither the filing nor the effectiveness
of any such registration statement may be delayed for a period in excess of
90 days due to the occurrence of any particular Disadvantageous Condition
and (2) the Corporation may exercise its delay rights under this clause (i)
on only one occasion (and then for not more than 90 days) in connection
with any registration request under Section 2.01 or in any 1-year period.
If so requested by the requesting Holder(s), the Corporation shall, if any
registration statement shall have been withdrawn, at such time as it is
possible or, if earlier, at the end of the 90-day period following such
withdrawal, file a new registration statement covering the Registrable
Securities that were covered by such withdrawn registration and maintain
the effectiveness thereof for such time as is required under this
Agreement;
(ii) the Investor Holders may collectively exercise their rights
under this Section 2.01 (1) on an unlimited number of occasions with
respect to registration statements on Form S-3 and (2) on not more than
three occasions with respect to registration statements on Form S-1;
(iii) after one registration has been effected pursuant to this
Section 2.01 at the request of the Majority Investor Holders, the Majority
Management Holders may collectively exercise their rights under this
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Section 2.01 with respect to a registration statement on Form S-1 on one
occasion;
(iv) no registration or sale of any securities which are
Registrable Securities shall be permitted hereunder at any time unless the
Transfer of such securities is then permitted under the Transaction
Agreement and the applicable Executive Purchase Agreement; and
(v) the Holders of Registrable Securities shall not have the right
to require the filing of a registration statement pursuant to this Section
2.01 within six months following the registration and sale of Registrable
Securities effected pursuant to a prior exercise of the registration rights
provided for in this Section 2.01.
(b) The requesting Holders may, at any time prior to the effective date
of the registration statement relating to any requested registration, revoke
such request (which request will then not count as the exercise of a request for
purposes of Section 2.01(a)(ii) or 2.01(a)(iii) ), without liability to any
other Selling Holder requesting to have Registrable Securities included in such
registration pursuant to Section 2.01(a), by providing a written notice to the
Corporation revoking such request.
(c) Notwithstanding any other provision of this Agreement to the
contrary, a registration requested by a Holder of Registrable Securities
pursuant to this Section 2.01 shall not be deemed to have been effected (and,
therefore, not requested (and rights of a Holder shall be deemed not to have
been exercised) for purposes of paragraph (a) above), (i) unless it has become
effective, (ii) if after it has become effective such registration is interfered
with by any stop order, injunction or other order or requirement of the
Securities and Exchange Commission or other governmental agency or court for any
reason other than a misrepresentation or an omission by such Holder and, as a
result thereof, the Registrable Securities requested to be registered cannot be
completely distributed in accordance with the plan of distribution set forth in
the related registration statement or (iii) if the conditions to closing
specified in the purchase agreement or underwriting agreement entered into in
connection with such registration are not satisfied or waived other than solely
by reason of some act or omission by such Holder of Registrable Securities.
(d) In the event that any registration pursuant to this Section 2.01
shall involve, in whole or in part, an underwritten offering, so long as MSCP
participates in the offering, MSCP will have the right to select the
Corporation's lead underwriter (which may be an Affiliate of MSCP) of such
underwritten offering. In connection with each registration pursuant to this
Section 2.01, so
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long as MSCP participates in the offering, MSCP may select one counsel to
represent all of the Holders. In the event that MSCP does not participate in the
offering, the Holders of a majority of the Registrable Securities to be
registered shall select the lead underwriter, as well as counsel for the
Holders, with respect to such registration. If any registration hereunder
involves an underwritten offering and securities are to be sold therein for the
account of the Corporation, then Section 5.03(f) of the Transaction Agreement
shall apply with respect to such underwriting.
(e) Subject to Section 2.10, the Corporation shall have the right to
cause the registration of additional equity securities for sale for the account
of any Person that is not a Holder (including, without limitation, the
Corporation and any directors, officers or employees of the Corporation) in any
registration of Registrable Securities requested by the Holders pursuant to
paragraph (a) above; provided that if such Holders are advised in writing (with
a copy to the Corporation) by a nationally recognized investment banking firm
selected by MSCP, or, if MSCP does not participate in such registration selected
by the Holders of a majority of the Registrable Securities to be registered
(which shall be the lead underwriter in the case of an underwritten offering)
that, in such firm's good faith view, all or a part of such additional equity
securities cannot be sold and the inclusion of such additional equity securities
or part thereof in such registration would be likely to have an adverse effect
on the price, timing or distribution of the offering and sale of the Registrable
Securities then contemplated by any Holder, the registration of such additional
equity securities or part thereof shall not be permitted. The Holders of the
Registrable Securities to be offered pursuant to paragraph (a) above may require
that any such additional equity securities be included in the offering proposed
by such Holders on the same terms and conditions as the Registrable Securities
that are included therein. In the event that the number of Registrable
Securities requested to be included in a registration statement by the Holders
thereof exceeds the number which, in the good faith view of such investment
banking firm, can be sold without adversely affecting the price, timing,
distribution or sale of securities in the offering, the number shall be
allocated pro rata among all of the requesting Holders on the basis of the
relative number of Registrable Securities then held by each such Holder
(provided that any number in excess of a Holder's request may be reallocated
among the remaining requesting Holders in a like manner).
Section 2.2. Piggyback Registration. Subject to Section 2.10, in the
event that the Corporation proposes to register any of its Common Stock, any
other of its equity securities or securities convertible into or exchangeable
for its equity securities (collectively, including Common Stock, "Other
Securities") under the Securities Act, whether or not for sale for its own
account, in a manner that would permit registration of Registrable Securities
for sale for cash to the
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public under the Securities Act, it shall prior to such time as all Holders in
the aggregate beneficially own less than 5% of the outstanding Common Stock,
give prompt written notice to each Holder of Registrable Securities of its
intention to do so and of the rights of such Holder under this Section 2.02.
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. Upon the written request of
any such Holder made within 15 days after the receipt of the Corporation's
notice (which request shall specify the number of Registrable Securities
intended to be disposed of and the intended method of disposition thereof), the
Corporation shall use its best efforts to effect, in connection with the
registration of the Other Securities, the registration under the Securities Act
of all Registrable Securities which the Corporation has been so requested to
register, 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:
(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, the
Corporation shall determine for any reason not to register the Other Securities,
the Corporation may, at its election, give written notice of such determination
to such Holders and thereupon the Corporation 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 immediately to request that such
registration be effected as a 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 on behalf of the Corporation,
and a nationally recognized investment banking firm selected by the Corporation
(in accordance with Section 4.08 of the Transaction Agreement) advises the
Corporation 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, the Corporation
shall include in such registration: (i) first, all Other Securities the
Corporation proposes to sell for its own account ("Corporation Securities"),
(ii) second, up to the full number of Registrable Securities held by Holders of
Registrable Securities that are requested to be included in such registration in
excess of the number of 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 Registrable Securities, such number shall be
allocated pro rata among such Holders on the basis of the relative number
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of Registrable Securities then held by each such Holder (provided that any
number in excess of a Holder's request may be reallocated among the requesting
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 Registrable Securities should be included in such offering, such
Holders 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), and (iii)
third, up to the full number of the Other Securities (other than Corporation
Securities), if any, in excess of the number of Corporation Securities and
Registrable 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 Corporation Securities) on the basis of the number
of securities requested to be included therein by each such holder);
(c) the Corporation shall not be required to effect any registration of
Registrable Securities under this Section 2.02 incidental to the registration of
any of its securities in connection with mergers, acquisitions, exchange offers,
subscription offers, dividend reinvestment plans or stock option or other
executive or employee benefit or compensation plans; and
(d) no registration of Registrable Securities effected under this
Section 2.02 shall relieve the Corporation of its obligation to effect a
registration of Registrable Securities pursuant to Section 2.01.
Section 2.3. Expenses. Except as provided herein, the Corporation shall
pay all Registration Expenses (exclusive of underwriting discounts and
commissions, if any) with respect to a particular offering (or proposed
offering). Each Holder shall bear the fees and expenses of its own counsel,
except that fees and expenses of one counsel representing all Holders (selected
pursuant to Section 2.01(d)) will constitute Registration Expenses.
Section 2.4. Registration and Qualification. If and whenever the
Corporation is required to effect the registration of any Registrable Securities
under the Securities Act as provided in Sections 2.01 or 2.02, the Corporation
shall as promptly as practicable:
(a) prepare, file and use its reasonable best efforts to cause to become
effective a registration statement under the Securities Act relating to the
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Registrable Securities to be offered in accordance with the intended method of
disposition thereof;
(b) prepare and file with the Securities and Exchange 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 Securities Act with
respect to the disposition of all Registrable Securities until 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;
provided that the Corporation will, at least 5 business days prior to filing a
registration statement or prospectus or any amendment or supplement thereto,
furnish to each Selling Holder copies of such registration statement or
prospectus (or amendment or supplement) as proposed to be filed (including, upon
the request of such Holder, documents to be incorporated by reference therein)
which documents will be subject to the reasonable review and comments of such
Holder (and its attorneys) during such 5-business-day period and the Corporation
will not file any registration statement, any prospectus or any amendment or
supplement thereto (or any such documents incorporated by reference) containing
any statements with respect to such Holder to which such Holder shall reasonably
object in writing;
(c) furnish to the Holders of Registrable Securities and to any
underwriter of such Registrable Securities such number of conformed copies of
such registration statement and of each such amendment and supplement thereto
(in each case including all exhibits), such number of copies of the prospectus
included in such registration statement (including each preliminary prospectus
and any summary prospectus), in conformity with the requirements of the
Securities Act, such documents incorporated by reference in such registration
statement or prospectus, and such other documents, as the Selling Holders or
such underwriter may reasonably request, and a copy of any and all transmittal
letters or other correspondence to or received from, the Securities and Exchange
Commission or any other governmental agency or self-regulatory body or other
body having jurisdiction (including any domestic or foreign securities exchange)
relating to such offering;
(d) after the filing of the registration statement, promptly notify each
Selling Holder in writing of the effectiveness thereof and of any stop order
issued or threatened by the Securities and Exchange Commission and take all
reasonable actions required to prevent the entry of such stop order or to
promptly remove it if entered and promptly notify such Selling Holder of such
lifting or withdrawal of such order;
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(e) use its reasonable best efforts to cause all Registrable Securities
covered by such registration statement to be registered with or approved by such
other governmental agencies or authorities as may be necessary to enable the
Selling Holders to consummate the disposition of such Registrable Securities;
(f) use its 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 best
efforts to obtain 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
the Corporation shall not for any such purpose be required to qualify generally
to do business as a foreign corporation in any such jurisdiction wherein it is
not so qualified or to consent to general service of process in any such
jurisdiction;
(g) (i) use its best efforts to furnish to each Selling Holder and to
any underwriter of such Registrable Securities an opinion of counsel for the
Corporation addressed to each Selling Holder and dated the date of the closing
under the underwriting agreement (if any) (or if such offering is not
underwritten, dated the effective date of the registration statement), and (ii)
use its best efforts to furnish to each Selling Holder a "cold comfort" letter
addressed to each Selling Holder and signed by the independent public
accountants who have audited the financial statements of the Corporation
included in such registration statement, in each such case covering
substantially the same matters with respect to such registration statement (and
the prospectus included therein) as are customarily covered in opinions of
issuer's counsel and in accountants' letters delivered to underwriters in
connection with the consummation of underwritten public offerings of securities
and such other matters as the Selling Holders may reasonably request and, in the
case of such accountants' letter, with respect to events subsequent to the date
of such financial statements;
(h) as promptly as practicable, notify the Selling Holders in writing
(i) at any time when a prospectus relating to a registration pursuant to Section
2.01 or 2.02 is required to be delivered under the Securities 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, and (ii) of any request by the Securities
and Exchange Commission or any other regulatory body or other body having
jurisdiction for any amendment of
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or supplement to any registration statement or other document relating to such
offering, and in either such case, at the request of the Selling Holders 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;
(i) if requested by the lead or managing underwriters, use its best
efforts to list all such Registrable Securities covered by such registration on
each securities exchange and automated inter-dealer quotation system on which a
class of common equity securities of the Corporation is then listed;
(j) send appropriate officers of the Corporation to attend any "road
shows" and rating agency, analyst and investor presentations scheduled in
connection with any such registration and use its reasonable best efforts to
cooperate as reasonably requested by the Holders in the marketing of the
Registrable Securities, and all reasonable out-of-pocket costs and expenses
incurred by the Corporation or such officers in connection with such attendance
or co-operation shall be paid by the Corporation; and
(k) furnish for delivery in connection with the closing of any offering
of Registrable Securities pursuant to a registration effected pursuant to
Section 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.
Section 2.5. 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, the Corporation shall enter into
an underwriting agreement with such underwriters for such offering, which
agreement will contain such representations and warranties and covenants by the
Corporation 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, and agreements as to the
provision of opinions of counsel and accountants' letters to the effect and to
the extent provided in Section 2.04(g). The Selling Holders on whose behalf the
Registrable Securities are to be distributed by such underwriters shall be
parties to any such underwriting agreement and the representations and
warranties by, and the other agreements on the part of, the Corporation to and
for the benefit of such underwriters, shall also be made to and for the benefit
of such Selling Holders.
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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 on the part of selling shareholders, 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 Securities Act pursuant
to this Article 2, the Corporation shall give the Holders of such Registrable
Securities and the underwriters, if any, and their respective counsel and
accountants, such reasonable and customary access to its books, records and
properties and such opportunities to discuss the business and affairs of the
Corporation with its officers and the independent public accountants who have
certified the financial statements of the Corporation 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 Securities Act;
provided, that such Holders and the underwriters and their respective counsel
and accountants shall use their reasonable best efforts to coordinate any such
investigation of the books, records and properties of the Corporation and any
such discussions with the Corporation's officers and accountants so that all
such investigations occur at the same time and all such discussions occur at the
same time.
Section 2.6. Indemnification and Contribution. (a) The Corporation 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
Securities Act or Section 20 of the Securities Exchange Act from and against any
and all losses, claims, damages and liabilities (including, without limitation,
any legal or other costs, fees and expenses reasonably incurred in connection
with defending or investigating any such action or claim) insofar as such
losses, claims, damages or liabilities are caused by 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 the Corporation shall have furnished any amendments
or supplements thereto) relating to the Registrable Securities, 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 any
such untrue statement or omission or alleged untrue statement or omission which
is based upon information relating to a Selling Holder which is furnished to the
Corporation in writing by a Selling Holder expressly for use therein. The
Corporation also agrees to indemnify any underwriter of the Registrable
Securities
14
so offered and each person, if any, who controls such underwriter on
substantially the same basis as that of the indemnification by the Corporation
of each Selling Holder provided in this Section 2.06(a).
(b) Each Selling Holder agrees to indemnify and hold harmless the
Corporation, its directors, the officers who sign the Registration Statement and
each person, if any who controls the Corporation within the meaning of either
Section 15 of the Securities Act or Section 20 of the Securities Exchange Act,
from and against any and all losses, claims, damages and liabilities (including,
without limitation, any legal or other costs, fees and expenses reasonably
incurred in connection with defending or investigating any such action or claim)
insofar as such losses, claims, damages or liabilities are caused by 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 the Corporation shall have furnished
any amendments or supplements thereto) relating to the Registrable Securities,
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, but only with reference to information relating to a Selling Holder
furnished in writing by or on behalf of a 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 substantially the same basis as that of the
indemnification by such Selling Holder of the Corporation provided in this
Section 2.06(b). Notwithstanding any other provision of this Section 2.06, no
Selling Holder's obligations to indemnify pursuant to this Section 2.06 shall
exceed the amount of net proceeds received by such Selling Holder in connection
with any offering of its Registrable Securities. Each Selling Holder's
obligations to indemnify pursuant to this Section are several in the proportion
that the net proceeds of the offering received by such Selling Holder bear to
the total net proceeds of the offering received by all Selling Holders and not
joint.
(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 and the indemnifying party
shall assume the defense thereof, including the employment of counsel reasonably
satisfactory to such indemnified party, and shall assume the payment of all fees
and expenses; provided that the failure of any indemnified party so to notify
the indemnifying party shall not relieve the indemnifying party of its
obligations hereunder except to the extent that the indemnifying party is
materially prejudiced by such failure to notify. In any such action, any
indemnified party shall have the
15
right to retain its own counsel, but the fees and expenses of such counsel shall
be at the sole 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) in the reasonable judgment of such indemnified party
representation of both parties by the same counsel would be inappropriate due to
actual or potential differing interests between them, in which case the fees and
expenses of such counsel shall be at the sole expense of the indemnifying party.
It is understood that the indemnifying party shall not, in connection with any
claim or action or related proceeding in the same jurisdiction, be liable for
the reasonable 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 Holders as indemnified parties, such firm
shall be designated in writing by the indemnified party that had the largest
number of Registrable Securities included in such registration. The indemnifying
party shall not be liable for any settlement of any claim or action effected
without its written consent, which consent shall not be unreasonably withheld or
delayed, 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. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened claim or action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability arising out
of such proceeding.
(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 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 (A)
as between the Corporation and the underwriters, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Corporation on the
one hand and the underwriters on the other hand from the offering of the
Registrable Securities or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the indemnifying party or parties on the one hand and of the
indemnified party or parties on the other hand in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations, and
16
(B) as between (x) the Corporation and the Selling Holders, or (y) the Selling
Holders and the underwriters, in such proportion as is appropriate to reflect
the relative fault of the indemnifying party or parties on the one hand and of
the indemnified party or parties on the other hand 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 benefits received by the Corporation on the one hand and the
underwriters on the other hand in connection with the offering of the
Registrable Securities shall be deemed to be in the same respective proportions
as the net proceeds from the offering of the Registrable Securities (before
deducting expenses) (as if, for purposes of this clause (d), the Corporation had
received the proceeds of any secondary offering) and the total underwriting
discounts and commissions received by the underwriters, in each case as set
forth in the table on the cover of a prospectus, bear to the aggregate public
offering price of the Registrable Securities. The relative fault of the
Corporation, the Selling Holders 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 the Corporation, by a Selling Holder or by
the underwriters 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 (d) shall be deemed to include, for purposes of this
paragraph (d), any legal or other costs, fees and expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. The Corporation and the Selling Holders 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
net proceeds of the offering received by such Selling Holder exceed 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. Each Selling Holder's obligations to contribute pursuant to this
Section are several in the proportion that the net proceeds of the offering
received by such Selling Holder bears to the total net proceeds of the offering
received by all the Selling Holders and not joint. 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.
17
(e) Indemnification and contribution similar to that specified in the
preceding paragraphs of this Section 2.06 (with appropriate modifications) shall
be given by the Corporation, the Selling Holders and the underwriters with
respect to any required registration or other qualification of securities under
any state law or regulation or governmental authority.
(f) 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 2.7. Rule 144 and Form S-3. Commencing as soon as practicable
after the Initial Public Offering Date, the Corporation shall use its best
efforts to ensure that the conditions to the availability of Rule 144 set forth
in paragraph (c) thereof shall be satisfied. Upon the request of any Holder of
Registrable Securities, the Corporation will deliver to such Holder a written
statement as to whether it has complied with such requirements. The Corporation
further agrees to use its reasonable best efforts to cause all conditions to the
availability of Form S-3 (or any successor form) under the Securities Act for
the filing of registration statements under this Agreement to be met as soon as
practicable after the Initial Public Offering Date.
Section 2.8. Rights of Transferee of Registrable Securities. So long as
the Transfer complies with the Transaction Agreement and the applicable
Executive Purchase Agreement, any transferee of Units or Registrable Securities
(a "Transferee") will be deemed a Holder hereunder as soon as the Corporation
receives (i) written notice stating the name and address of the Transferee and
identifying the number of Units or Registrable Securities Transferred and (ii) a
written agreement, in form and substance acceptable to the Majority Holders,
from such Transferee whereby such Transferee agrees to be bound by the terms of
this Agreement. Upon becoming a Holder, a Transferee from an Investor Holder
will immediately be deemed an Investor Holder, and a Transferee from a
Management Holder will immediately be deemed a Management Holder.
Section 2.9. Holdback Agreement. If any registration pursuant to this
Article 2 shall be in connection with an underwritten public offering of
Registrable Securities, each Holder agrees not to effect any sale or
distribution, including any sale under Rule 144, of any equity security of the
Corporation (otherwise than through the registered public offering then being
made), within 7 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 case of a Rule 415 Offering); provided that the foregoing
shall not apply to a Holder that (i) together with its Affiliates, beneficially
owns (within the meaning of Rule 13d-3 and Rule 13d-5 promulgated under the
Securities Exchange Act) in
18
the aggregate less than 5% of the aggregate amount of outstanding Common Stock
and (ii) does not have a director on the Board designated or nominated by it or
its Affiliate. The Corporation hereby also so agrees and agrees to use its
reasonable best efforts to cause each other holder of equity securities or
securities convertible into or exchangeable or exercisable for such securities
(other than in the case of equity securities issued under dividend reinvestment
plans or employee stock plans) purchased from the Corporation otherwise than in
a public offering to so agree.
Section 2.10. Restrictions on Other Registration Rights. Notwithstanding
anything else contained in this Agreement, the Transaction Agreement or the
Executive Purchase Agreements, the Corporation shall not, without the prior
written consent of the Holders holding a majority in aggregate of the
Registrable Securities held by all Investor Holders grant or issue to any Person
any right, or enter into any agreement with any Person entitling such Person, to
request or require that the Corporation effect, prior to the date on which all
Investor Holders in the aggregate beneficially own Registrable Securities
representing less than 5% of the outstanding Common Stock, the registration
under the Securities Act of any security of the Corporation for the account of
any Person (other than the rights granted to the Holders hereunder; provided
that the terms of any such right granted or issued shall not be more favorable
to such Persons than the terms of this Agreement.
ARTICLE 3
Miscellaneous
Section 3.1. No Inconsistent Agreements. The Corporation shall not
hereafter enter into any agreement with respect to its securities which is
inconsistent with or violates the rights granted to the holders of Registrable
Securities in this Agreement.
Section 3.2. Remedies. Each Holder and each party hereto shall have all
rights and remedies set forth in this Agreement and all rights and remedies
which such parties have been granted at any time under any other agreement or
contract and all of the rights which such parties have under any law or at
equity. Any Person having rights under any provision of this Agreement shall be
entitled to enforce such rights specifically, to recover damages caused by
reason of any breach of any provision of this Agreement and to exercise all
other rights granted by law. The parties hereto agree and acknowledge that
money damages may not be an adequate remedy for any breach of the provisions of
this Agreement and that any party may in its sole discretion apply to any court
of law or equity of
19
competent jurisdiction (without posting any bond or other security) for specific
performance and for other injunctive relief in order to enforce or prevent
violation of the provisions of this Agreement.
Section 3.3. Consents to Amendments. The provisions of this Agreement may
be amended, modified or waived only upon the prior written consent of the
holders of at least 80% of the Registrable Securities held by all Holders.
Notwithstanding the foregoing, (x) any such amendment, modification or waiver of
the definition of "Triggering Investor Holder" or of Section 2.01(a), 2.02 or
2.10 that would adversely affect an Investor Holder in a manner different from
the effect thereof on the Investor Member(s) that have approved such amendment
or waiver shall also require the prior written consent of such affected Investor
Holder and (y) any such amendment, modification or waiver adverse to the rights
of any Management Holder hereunder shall also require the prior written consent
of the chief executive officer of the Corporation. No course of dealing between
the Corporation and any other Holder or any delay by such Holder in exercising
any rights hereunder shall operate as a waiver of any rights of such holder.
Section 3.4. Successors and Assigns. All covenants and agreements
contained in this Agreement by or on behalf of any of the parties hereto shall
bind and inure to the benefit of the respective successors and permitted assigns
of the parties hereto whether so expressed or not.
Section 3.5. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
Section 3.6. Counterparts. This Agreement 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. Any Person who becomes a Management Member (pursuant
to the LLC Agreement) may at any time after the date hereof, with the prior
written approval of the Board, become a party to this Agreement by executing a
counterpart to this Agreement agreeing to be bound by the provisions hereof as
if such Person were an original signatory hereto (which joinder shall not
constitute a modification, amendment, or waiver hereof).
Section 3.7. Descriptive Headings; Interpretation; No Strict Construction.
The descriptive headings of this Agreement are inserted for convenience only and
do not constitute a substantive part of this Agreement. Whenever required by
the context, any pronoun used in this Agreement shall
20
include the corresponding masculine, feminine or neuter forms, and the singular
form of nouns, pronouns and verbs shall include the plural and vice versa. The
use of the word "including" in this Agreement shall be by way of example rather
than by limitation. Reference to any agreement, document or instrument means
such agreement, document or instrument as amended or otherwise modified from
time to time in accordance with the terms thereof, and if applicable hereof.
Wherever required by the context, references to a Fiscal Year shall refer to a
portion thereof. The use of the words "or," "either" and "any" shall not be
exclusive. The parties hereto have participated jointly in the negotiation and
drafting of this Agreement. In the event an ambiguity or question of intent or
interpretation arises, it is the intent of the parties that this Agreement shall
be construed as if drafted jointly by the parties hereto, and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any of the provisions of this Agreement.
Section 3.8. Governing Law; Submission to Jurisdiction. This Agreement
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. Each of the parties hereto agrees (a) that this Agreement
involves at least $100,000 and (b) that this Agreement has been entered into by
the parties hereto in express reliance upon 6 Del.C. (S) 2708. Each party
hereby irrevocably and unconditionally agrees (x) to be subject to the
jurisdiction of the courts of the State of Delaware and the federal courts
sitting in the State of Delaware or in the County of New York in the State of
New York and (y) to the extent such party is not otherwise subject to service of
process in the State of Delaware, to appoint and maintain an agent in the State
of Delaware as such party's agent for acceptance of legal process, and that
service made pursuant to (y) above shall have the same legal force and effect as
if served upon said party personally within the State of Delaware. For purposes
of implementing the parties' agreement to appoint and maintain an agent for
service of process in the State of Delaware, each such party that has not as of
the date hereof already duly appointed such an agent does hereby appoint RL&F
Service Corp., One Xxxxxx Square, 10th Floor, Wilmington, New Castle County,
Delaware 19801, as such agent.
Section 3.9. Addresses and Notices. All notices, requests or other
communications to any party hereunder shall be in writing (including facsimile
transmission) and shall be given,
21
if to MSCP, to:
c/x Xxxxxx Xxxxxxx Capital Partners III, L.P.
1221 Avenue of the Americas
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
if to Fleet, to:
Fleet Equity Partners VI, L.P.
00 Xxxxxxx Xxxxx
00xx Xxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Attention: Xxxxxx X. Xxx Xxxxx
Facsimile: (000) 000-0000
with a copy to:
Paul, Hastings, Xxxxxxxx & Xxxxxx, LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxx
Facsimile: (000) 000-0000
if to Xxxxxx-Xxxxxx, to:
Xxxxxx-Xxxxxx Media Partners, L.P.
000 Xxxxx Xxxx
Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
Attention: Xx. Xxxxx Xxxxxxxxx
Facsimile: (000) 000-0000
22
with a copy to:
Xxxxx Xxxx Xxxxx Constant & Xxxxxxxx
00 Xxxxxxxxxxx Xxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
if to the Corporation, to:
Choice One Communications Inc.
000 Xxxx Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxx Xxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx
Facsimile: (000) 000-0000
with a copy to:
Nixon, Hargrave, Devans & Xxxxx LLP
Xxxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx X. Xxxxx, III
Facsimile: (000) 000-0000
and if to any Holder or to any other holder of Common Stock, to the address or
facsimile set forth on the books of the Corporation or any other address or
facsimile number as a party may hereafter specify for such purpose to the
Corporation. Notwithstanding the foregoing, no Investor Holder or its counsel
shall be entitled to notice if such Investor Holder holds less than 3% in the
aggregate of the Registrable Securities held by all Investor Holders.
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.
23
Section 3.10. Business Days. If any time period for giving notice or
taking action hereunder expires on a day which is a Saturday, Sunday or legal
holiday in the state in which the Corporation's chief executive office is
located, the time period shall automatically be extended to the business day
immediately following such Saturday, Sunday or legal holiday.
* * *
24
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
CHOICE ONE COMMUNICATIONS INC.
By: /s/ Xxxxx X. Xxxxxx
--------------------------------------
Its: President and Chief Executive Officer
--------------------------------------
/s/ Xxxxx X. Xxxxxx
--------------------------------------
Xxxxx X. Xxxxxx
/s/ Xxx Xxxxxx-Xxx
--------------------------------------
Xxx Xxxxxx-Xxx
/s/ Xxxxx Xxxxxxx
--------------------------------------
Xxxxx Xxxxxxx
/s/ Xxxxxxx Xxxxxx
--------------------------------------
Xxxxxxx Xxxxxx
XXXXXX XXXXXXX CAPITAL PARTNERS III, L.P.
By MSCP III, L.P., its general partner
Xxxxxx Xxxxxxx Capital Partners III, Inc., its
general partner
By /s/ Xxxxxxx Xxxxxx
----------------------------------------
Its Managing Director
----------------------------------------
By /s/ Xxxx Xxxxxxxxxx
----------------------------------------
Its Principal
----------------------------------------
MSCP III 892 INVESTORS, L.P.
By MSCP III, L.P., its general partner
Xxxxxx Xxxxxxx Capital Partners III, Inc., its
general partner
By /s/ Xxxxxxx Xxxxxx
----------------------------------------
Its Managing Director
----------------------------------------
By /s/ Xxxx Xxxxxxxxxx
----------------------------------------
Its Principal
----------------------------------------
XXXXXX XXXXXXX CAPITAL INVESTORS, L.P.
By MSCP III, L.P., its general partner
Xxxxxx Xxxxxxx Capital Partners III, Inc., its
general partner
By /s/ Xxxxxxx Xxxxxx
----------------------------------------
Its Managing Director
----------------------------------------
By /s/ Xxxx Xxxxxxxxxx
----------------------------------------
Its Principal
----------------------------------------
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
---------------------------------------
Chairman & CEO
XXXXXXX PLAZA PARTNER
By /s/ Xxxxxx X. Xxx Xxxxx
---------------------------------------
Managing General Partner
FLEET VENTURE RESOURCES, INC.
By /s/ Xxxxxx X. Xxx Xxxxx
---------------------------------------
Chairman & CEO
FLEET EQUITY PARTNERS VI, L.P.
By Fleet Growth Resources II, Inc., its
General Partners
By /s/ 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
---------------------------------------
Its Chief Executive Officer
---------------------------------------
/s/ Xxxxx X. Xxxxxxx
--------------------------------------------
Xxxxx X. Xxxxxxx
Execution of Counterpart Agreeing to be bound by
Management Holder pursuant to Section 3.07
Name: ________________________
Signature: _____________________
Date: ________________________
Execution of Counterpart by Transferee Agreeing to
be bound
Name: ________________________
Signature: _____________________
Date: ________________________
