<PAGE>
Exhibit 10.1
------------
Amendment No. 4
to
Registration Rights Agreement
This Amendment No. 4 ("Amendment") to the Registration Rights Agreement
dated as of July 8, 1998, as amended by Amendment No. 1 dated as of February 18,
1999, by Amendment No. 2 dated as of June 30, 1999, and by Amendment No. 3 dated
as of June 30, 1999 (the "Original Agreement"), is made as of August 1, 2000,
among Choice One Communications Inc., a Delaware corporation (the
"Corporation"), and the Holders listed on the signature pages hereto.
WHEREAS, the Corporation and the initial Investor Holders and Management
Holders entered into the Registration Rights Agreement on July 8, 1998 which
provides for certain rights and obligations of the Corporation and such Holders
with respect to registration of the Common Stock under the Securities Act (and
such agreement has since been amended as described above);
WHEREAS, the Corporation, a newly formed Delaware corporation that is a
wholly-owned subsidiary of the Corporation ("Newco"), US Xchange, Inc., a
Delaware corporation ("Target"), and Ronald H. VanderPol, the holder of all of
the issued and outstanding capital stock of Target, have entered into an
Agreement and Plan of Merger as of May 14, 2000 (the "Merger Agreement");
WHEREAS, upon consummation of the merger under the Merger Agreement in
accordance with the terms and conditions thereof, Target will be merged with and
into Newco, and Target will become a wholly-owned subsidiary of the Corporation
(the "Acquisition");
WHEREAS, in connection with obtaining financing for the Acquisition, the
Corporation has issued and sold shares of Series A Senior Cumulative Preferred
Stock and warrants to purchase shares of the Corporation's common stock to the
MSDWCP IV Funds (as defined below pursuant to this Amendment) pursuant to the
terms and conditions of the Securities Purchase Agreement dated as of the date
hereof between the MSDWCP IV Funds and the Corporation (the "Securities-
Purchase Agreement"); and
WHEREAS, the Securities Purchase Agreement requires that the Original
Agreement be amended to provide for registration rights and private placement
assistance on the terms provided for pursuant to this Amendment;
NOW, THEREFORE, the parties hereto hereby amend the Original Agreement as
follows:
SECTION 1. Amendment to Definitions. (a) Section 1.01 of the Original
Agreement is hereby amended by inserting the following definition before the
definition of "Common Stock":
"Common Registrable Securities" means Common Stock (including the
Warrant Shares) and any securities issued directly or indirectly with
respect to
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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.
(b) Section 1.01 of the Original Agreement is hereby amended by
inserting the following definitions before the definition of "Other
Securities":
"MSDWCP IV Funds" means, collectively, Morgan Stanley Dean Witter
Capital Partners IV, L.P., Morgan Stanley Dean Witter Capital
Investors IV, L.P., and MSDW IV 892 Investors, L.P.
"Other Distributee Holder" means the recipient of Registrable
Securities pursuant to a Distribution-In-Kind (as defined in the
Transaction Agreement) from an Other Holder, so long as such recipient
becomes a Holder hereunder and such distributed Registrable Securities
are not then freely tradeable under Rule 144(k) (i.e. they retain a
Securities Act legend following such distribution).
"Other Holder" means Fleet and/or Waller-Sutton.
(c) Section 1.01 of the Original Agreement is hereby amended by
inserting the following definition after the definition of "Person":
"Preferred Registrable Securities" means Preferred Stock and any
securities issued directly or indirectly with respect to such
Preferred 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.
(d) Section 1.01 of the Original Agreement is hereby amended by
inserting the following definition before the definition of "Public
Offering":
"Preferred Stock" means the shares of Series A Senior Cumulative
Preferred Stock of the Corporation issued to the MSDWCP W Funds
pursuant to the Securities Purchase Agreement dated as of August 1,
2000 between the MSDWCP IV Funds and the Corporation.
(e) The definition of "Registrable Securities" in Section 1.01 of the
Original Agreement is deleted in its entirety and replaced with the
following:
"Registrable Securities" means, collectively, the Common Registrable
Securities and/or the Preferred Registrable Securities. 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 (provided that any
Registrable Securities exchanged in an exchange offer contemplated in
Section 2.11(f) shall not cease to be Registrable Securities upon the
exchange (x) to the extent that such securities cannot be freely
disposed of by the holder thereof to the public (at one time without
volume limits) without complying with the prospectus delivery
requirements of the Securities Act or (y) if, any broker-dealer
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that intends to make a market in the securities is an affiliate of the
Company and so notifies the Company prior to commencement of the
exchange offer); or (ii) repurchased by the Corporation or otherwise
have ceased to be outstanding.
(f) The definition of "Triggering Investor Holders" in Section 1.01 of
the Original Agreement is deleted in its entirety and replaced with the
following:
"Triggering Investor Holders" means (i) Investor Holders holding at
least 20% in the aggregate of the Common Registrable Securities held
by all Investor Holders, (ii) any two out of three of MSCP, Fleet and
Waller-Sutton or (iii) Investor Holders holding at least a majority in
the aggregate of the Preferred Registrable Securities held by all
Investor Holders.
(g) Section 1.01 of the Original Agreement is hereby amended by
inserting the following definition at the end thereof:
"Warrant Shares" means the shares of Common Stock deliverable upon
exercise of the Warrants No. 1, 2 and 3, each dated as of August 1,
2000, issued by the Corporation to each of the three MSDWCP IV Funds,
respectively, as adjusted from time to time.
SECTION 2. Amendments to Section 2.01 and 2.02. (a) Section 2.01(a) is
hereby amended by adding "the Other Holders (acting jointly) or" after "(i)" and
before "the Majority Investor Holders" in the third line hereof
(b) Clause (ii) of the proviso to Section 2.01(a) is hereby amended
and restated as follows:
"(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, (2) with respect to
Common Stock, on not more than five occasions with respect to
registration statements on Form S-1 (of which one occasion may be
exercised only by the Other Holders (acting jointly)), and (3) with
respect to Preferred Stock or Warrant Shares, on not more than two
occasions with respect to registration statements on Form S-1;"
(c) Each of Section 2.01(e) and 2.02(b) is hereby amended by adding
the following proviso, respectively, at the end of Section 2.01(e) and at
the end of clause (ii) of Section 2.02(b) before "and (iii)":
", provided further that so long as any Other Holder (together with
Registrable Securities then held by its Other Distributee Holders)
holds at least 75% of the Registrable Securities held by such Other
Holder as of August 1, 2000, MSCP (and, only as to Registrable
Securities acquired from MSCP, its Affiliates) shall not be entitled
to sell Registrable Securities (other than Preferred Stock or
warrants) pursuant to a registration statement filed pursuant to
Section 2.01 or under which such Other Holder (or any of its Other
Distributee Holders) has requested the inclusion of Registrable
Securities under Section 2.02 unless such
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Other Holder (and/or, if applicable, its Other Distributee Holders)
are permitted to sell under such registration statement an amount of
Registrable Securities which, taken together with all other
dispositions by such Other Holder (and its Other Distributee Holders)
since August 1, 2000, equals or exceeds the lesser of 25% (as
equitably adjusted for stock splits, stock dividends and other similar
events) of the Registrable Securities held by such Other Holder on
August 1, 2000 and the amount requested to be included (it being
understood that Registrable Securities held by an Other Distributee
Holder that are freely tradeable under Rule 144(k) will be deemed to
have been disposed of for purposes of determining whether the 25%
disposition priority has been satisfied)."
SECTION 3. Further Amendments to Section 2.02. Section 2.02 of the
Original Agreement is hereby amended by (a) adding "and Preferred Stock" after
"Common Stock" and before ", Other Securities" in the fourth line thereof and
(b) adding "and less than 10% of the Preferred Stock outstanding on the date
hereof" after "Common Stock" and before ", give" in the eighth line thereof. In
addition, clause (x) of clause (b)(ii) of the proviso to Section 2.02 of the
Original Agreement is hereby amended by inserting "of the class being sold"
after "relative number of Registrable Securities" and before "then held".
SECTION 4. Amendment to Section 2.04. Section 2.04(i) of the Original
Agreement is hereby amended by adding "and, in the case of Preferred Registrable
Securities, listing such Preferred Registrable Securities on such national
securities exchange as may be reasonably requested by the lead or managing
underwriters" after "then listed" in the last line thereof.
SECTION 5. Amendment to Section 2.08. Section 2.08 of the Original
Agreement is hereby amended by (a) inserting "(including, for avoidance of
doubt, Preferred Stock or Warrant Shares)" after "Securities" in the third line
thereof and (b) inserting as the last sentence thereof, "It is understood that
(except for Section 2.09) no contractual transfer restrictions apply to or are
binding on either the Preferred Shares or Warrant Shares."
SECTION 6. Amendment to Section 2.09. Section 2.09 of the Original
Agreement is hereby amended by deleting the phrase "underwritten public offering
of Registrable Securities" in the first sentence and replacing it with the
phrase "underwritten public offering of Common Registrable Securities", and by
deleting the parenthetical "(otherwise than through the registered public
offering then being made)" and replacing it with "(otherwise than through the
registered public offering then being made and other than Preferred Stock or
warrants in the case of an underwritten public offering of Common Stock)".
Further, Section 2.09 of the Original Agreement is hereby amended by adding a
sentence at the end thereof, to read as follows: "In addition to the foregoing,
each Investor Holder agrees not to effect any sale, transfer, disposition or
distribution, including any sale under Rule 144 or any distribution-in-kind to
the partners of, or investors in, such Investor Holder, of any Common Stock of
the Corporation within 180 days after the date of the consummation of the
Acquisition."
SECTION 7. Amendment to Section 2.10. Section 2.10 of the Original
Agreement is hereby amended by adding "and less than 5% of the Preferred Stock
outstanding on the date hereof" after "Common Stock" and before ", the" in the
ninth line thereof.
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SECTION 8. Addition of Section 2.11. The Original Agreement is hereby
amended by inserting the following new Section 2.11:
"SECTION 2.11. Private Placements; Amendments to the Certificate of
Designations. (a) The Corporation will use its reasonable best efforts to
cooperate with and assist the Holders, at their request, in the marketing
by the Holders, at any time and from time to time while any Preferred Stock
is held by any Holder, of any Preferred Stock (and if a Holder proposes to
sell Preferred Stock as a unit with Warrants, any such Warrants) of the
Corporation held by the Holders in any private transaction not requiring
registration under the Securities Act, including without limitation (i)
providing reasonable access to the Corporation's books, records,
properties, offices, officers, employees, accountants, counsel, and other
agents, (ii) making available senior management of the Corporation for
participation in analyst, investor and "road show" presentations, and (iii)
in preparation of a private placement memorandum or other selling or
marketing materials containing information customarily included in Rule
144A transactions (the "Selling Materials"), and delivering such customary
opinions and certificates, executing and delivering such agreements and
obtaining such comfort letters, as are customarily requested in such
transactions, in each case in connection with any such sale of Corporation
securities.
(b) The Corporation shall be responsible for all expenses incurred in
connection with such co-operation, assistance and marketing efforts
contemplated by Section 2.11 (a), including, without limitation, (1) the
fees, disbursements and expenses of the Corporation's counsel and
accountants in connection therewith, (2) all expenses in connection with
the preparation and printing of all Selling Materials and amendments and
supplements thereto and the mailing and delivering of copies thereof to any
placement agents and other intermediaries, (3) the cost of preparing and
printing or producing any agreements with placement agents or other
intermediaries involved in such private placement transaction and any 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, (4) 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 placement agents or other intermediaries or the Holders of
securities in connection with such qualification and in connection with any
blue sky and legal investment surveys, (5) transfer agents' and registrars'
fees and expenses and the fees and expenses of any other agent or trustee
appointed in connection with such transaction, (6) all security engraving
and security printing expenses, (7) the legal fees and expenses of one
counsel for the Holders in connection with any marketing efforts requested
by a Holder pursuant to Section 2.11, (8) any other fees and disbursements
of placement agents or other intermediaries customarily paid by the issuers
of securities, but excluding placement or selling fees and commissions and
transfer taxes, if any, (9) the costs and expenses of the Corporation
relating to analyst or investor presentations or any "road show" undertaken
in connection with the marketing of any such securities, and (10) other
reasonable out-of-pocket expenses of Holders in connection therewith.
Notwithstanding the foregoing, each Holder and the Corporation shall be
responsible for its own internal administrative and similar costs.
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(c) The Corporation agrees to indemnify and hold harmless each Holder
and each person, if any, who controls each 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 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 such Selling Materials 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
based upon information relating to a Holder furnished to the Corporation in
writing by a Holder expressly for use therein. The Holders agree to
indemnify and hold harmless the Corporation and each person who so controls
the Corporation to the same extent as the foregoing indemnity by the
Corporation of the Holders and persons so controlling the Holders but only
with reference to information relating to a Holder furnished to the
Corporation in writing by a Holder expressly for use therein. The
provisions and procedures set forth in Section 2.06 shall apply in the case
of any indemnification claim made under the foregoing provisions of this
Section 2.11(c).
(d) To the extent that indemnification under Section 2.11(c) is
unavailable for any reason or insufficient to hold any indemnified party
harmless, the indemnifying party will contribute to the amount paid or
payable by the indemnified party, 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 the losses,
claims, damages or liabilities (with such relative fault to 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 or by a
Holder and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission), and any
other relevant equitable considerations.
(e) If requested by the Holders holding a majority in aggregate of the
Preferred Stock, the Corporation shall use its best efforts to amend the
Certificate of Designations, Preferences and Rights of the Preferred Stock
to the extent reasonably necessary or useful to (i) facilitate the public
trading of the Preferred Stock and (ii) permit the listing of the Preferred
Stock on a securities exchange in accordance with the rules of such
securities exchange as in effect on such time.
(f) (A) Without limiting the foregoing provisions of this Section
2.11, in the event any Preferred Stock is sold to one or more purchasers in
a private placement under Rule 144A under the Securities Act and the intent
of the parties in such sale is that such Preferred Stock subsequently be
exchanged for substantially similar shares of preferred stock of the
Corporation that have been registered under the Securities Act pursuant to
an exchange offer made by the Corporation to such purchasers registered on
Form S-4 (such transaction sometimes referred to as an "Exxon Capital" or
analogous exchange offer),
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then the Corporation shall take any and all of the following actions as are
reasonably requested by Holders holding a majority in aggregate of the
Preferred Stock:
(i) promptly register under the Securities Act on Form S-4 shares of
preferred stock of the Corporation having substantially the same terms
as the Preferred Stock in order to execute the exchange offer
described above, cause such registration statement to become effective
as soon as practicable, and commence and execute such exchange offer
promptly thereafter in accordance with applicable securities and
tender offer laws, rules and regulations and consistent with custom
and market practice for such transactions; and
(ii) enter into such additional and ancillary agreements, documents
and instruments as are necessary, desirable or customary for and to
implement such transaction, including without limitation a certificate
of designation for the new shares of preferred stock, and
(notwithstanding Section 2.10 or 3.03) an amendment to this Agreement
or a separate registration rights agreement providing for (x)
customary registration rights provisions to the purchasers in such
private placement reflecting the foregoing and, if requested by such
purchasers, providing for customary time periods for filing of such
Form S-4 and commencement of the exchange offer and reasonable and
customary liquidated damages for failure to meet such time periods,
and (y) an obligation to register the Preferred Stock shares on a
shelf registration on Form S-1 (or Form S-3, to the extent the
Corporation is eligible) for so long as the shares are outstanding in
the event that the Holders of a majority of the Preferred Stock
immediately prior to the private placement notify the Corporation
prior to consummation of the exchange offer that any broker-dealer (an
"Affiliated Market Maker") that intends to make a market in the
securities may be an affiliate of the Corporation as defined in the
rules and regulations of the Securities and Exchange Commission.
(B) In the event that (i) at any time the Holders holding a
majority in aggregate of the Preferred Stock determine to sell
Warrants as a unit with Preferred Stock in a transaction as described
in Section 2.11(f)(A) or determine not to pursue a transaction as
described in Section 2.11(f)(A) or (ii) at any time the Securities and
Exchange Commission determines that an exchange offer as described in
Section 2.11(f)(A) is not permitted, then the Corporation shall, at
the request of Holders holding a majority in aggregate of the
Preferred Stock, promptly register the requested shares of Preferred
Stock (and/or, if applicable, Warrants) on a shelf registration on
Form S-1 (or Form S-3, to the extent the Corporation is eligible) and
keep the registration effective for so long as any securities covered
thereby constitute Registrable Securities (but for this purpose
securities will be deemed to cease being Registrable Securities where
they have been sold pursuant to Rule 144(k) and are thereafter freely
saleable by the purchaser without any volume or other resale
restriction and without any Securities Act legend imprinted on the
stock certificate).
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(C) Notwithstanding anything else contained herein, (x) no Holder
will have any "piggyback" or other right to require registration of
Registrable Securities on such Form S-4 (which will not limit the
Holders' rights to require registration under Section 2.01 or 2.02 to
the extent provided for therein), and (y) although not a registration
requested pursuant to Section 2.01 (including, for example, for
purposes of Section 2.01 (a)(v)), such a registration contemplated in
this Section 2.11 on Form S-4 (or Form S-1 or S-3) will, as
appropriate, be treated as though requested under Section 2.01 for
purposes of Section 2.03 {expenses}, 2.04 {procedures}, and 2.06
{indemnity} (it being understood that for this purpose Section 2.06
will be construed as though each exchanging purchaser, selling holder
and Affiliated Market Maker were a Selling Holder).
(g) Nothing contained in this Section 2.11 and no performance by the
Corporation of its obligations under this Section 2.11 shall in any way
limit or reduce the rights of any Holder under Section 2.01 or Section
2.02."
SECTION 9. Other Defined Terms. Capitalized terms used in this Amendment
and not otherwise defined have the meanings ascribed to them in the Original
Agreement.
SECTION 10. Effect of Amendment; Governing Law. Except as amended hereby,
the Original Agreement shall remain unchanged. The Original Agreement, as
amended hereby, shall remain in full force and effect. This Amendment shall be
governed by, and construed under, the laws of the State of Delaware, all rights
and remedies being governed by said laws, without regard to conflict of laws
principles.
SECTION 11. Counterparts. This Amendment may be executed simultaneously
in two or more counterparts, any one of which need not contain the signatures of
more than one party, but all such counterparts taken together shall constitute
one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first written above.
CHOICE ONE COMMUNICATIONS INC.
By: /s/ Steve M. Dubnik
---------------------------------
Its: Chairman and CEO
--------------------------------
MANAGEMENT HOLDERS
/s/ Steve M. Dubnik
--------------------------------------
Steve M. Dubnik, as a Management Member and
as Chief Executive Officer of Choice One
Communications Inc.
/S/ Mae Squier-Dow
------------------
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Mae Squier-Dow
/S/ Kevin Dickens
-----------------
Kevin Dickens
_________________________________________
Phillip Yawman
_________________________________________
Joseph Schaal
_________________________________________
Elizabeth Ellis
_________________________________________
Joseph Calzone
________________________________________
Michelle Paroda
_________________________________________
Linda Chapman
_________________________________________
John Zimmer
_________________________________________
David Fitts
_________________________________________
Kenneth Okolowicz
_________________________________________
Daniel K. Iles
_________________________________________
Michael D'Angelo
_________________________________________
Robert Merrill
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-----------------------------------------
Kim Scovill
INVESTOR HOLDERS
MORGAN STANLEY CAPITAL PARTNERS III, L.P.
By: MSCP III, LLC, its general partner
By: Morgan Stanley Capital Partners III,
Inc., its Member
By: /s/ John Ehrenkranz
------------------------------------
Its: Managing Director
-----------------------------------
By: ___________________________________
Its: ___________________________________
MSCP III 892 INVESTORS, L.P.
By: MSCP III, LLC, its general partner
By: Morgan Stanley Capital Partners III,
Inc., its Member
By: /s/ John Ehrenkranz
------------------------------------
Its: ___________________________________
By: ___________________________________
Its: ___________________________________
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MORGAN STANLEY CAPITAL INVESTORS, L.P.
By: MSCP III, LLC, its general partner
By: Morgan Stanley Capital Partners III,
Inc., its Member
By: /s/ John Ehrenkranz
-------------------------------------
Its: _____________________________________
By: _____________________________________
Its: _____________________________________
MORGAN STANLEY DEAN WITTER CAPITAL PARTNERS
IV, L.P.
By: MSDW Capital Partners IV, LLC, its
general partner
By: MSDW Capital Partners IV, Inc., its
Member
By: /s/ John Ehrenkranz
-------------------------------------
Its: _____________________________________
By: _____________________________________
Its: _____________________________________
MSDW IV 892 INVESTORS, L.P.
By: MSDW Capital Partners IV, LLC, its
general partner
By: MSDW Capital Partners IV, Inc., its
Member
By: /s/ John Ehrenkranz
-------------------------------------
Its: _____________________________________
By: _____________________________________
Its: _____________________________________
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MORGAN STANLEY DEAN WITTER CAPITAL INVESTORS
IV, L.P.
By: MSDW Capital Partners IV, LLC, its
general partner
By: MSDW Capital Partners IV, Inc., its
Member
By: /s/ John Ehrenkranz
--------------------------------------
Its: _____________________________________
By: _____________________________________
Its: _____________________________________
CHISHOLM PARTNERS III, L.P.
By: Silverado III, L.P., its General
Partner
By: Silverado III Corp., its General
Partner
By: /s/ Robert M. Van Degna
---------------------------------------
Robert M. Van Degna
Chairman & CEO
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KENNEDY PLAZA PARTNERS
By: /s/ Robert M. Van Degna
---------------------------------------
Robert M. Van Degna
Managing General Partner
FLEET VENTURE RESOURCES, INC.
By: /s/ Robert M. Van Degna
--------------------------------------
Robert M. Van Degna
Chairman & CEO
FLEET EQUITY PARTNERS VI, L.P.
By: Fleet Growth Resources H, Inc., its
General Partner
By: /s/ Robert M. Van Degna
---------------------------------------
Robert M. Van Degna
Chairman & CEO
WALLER-SUTTON MEDIA PARTNERS, L.P.
By: Waller Sutton Media, L.L.C. its general
partner
By: /s/ Bruce Hernandez
---------------------------------------
Bruce Hernandez
Chief Executive Officer
FIRST UNION CAPITAL PARTNERS, INC.
By: ________________________________________
Its: _______________________________________
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GENERAL ELECTRIC CAPITAL CORPORATION
By: ________________________________________
Its: _______________________________________
CARAVELLE INVESTMENT FUND, L.L.C.
By: Caravelle Advisors, L.L.C., as
Investment Manager and Attorney in Fact
By: ________________________________________
Its: _______________________________________
ROYCE J. HOLLAND
____________________________________________
Royce J. Holland
R. PHILIP SILVER
____________________________________________
R. Philip Silver
