EXHIBIT 4.4
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VersaTel Telecom International N.V.
$150,000,000 13 1/4% Senior Notes due 2008
REGISTRATION RIGHTS AGREEMENT
Dated as of December 3, 1998
Among
VERSATEL TELECOM INTERNATIONAL N.V.,
▇▇▇▇▇▇ BROTHERS INC.,
▇▇▇▇▇▇ BROTHERS INTERNATIONAL (EUROPE) AND
PARIBAS CORPORATION
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TABLE OF CONTENTS
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Page
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1. Definitions.......................................................... 1
2. Exchange Offer....................................................... 4
3. Shelf Registration Statement......................................... 8
4. Liquidated Damages................................................... 9
5. Registration Procedures.............................................. 11
6. Registration Expenses................................................ 18
7. Indemnification and Contribution..................................... 19
8. Rule 144A............................................................ 23
9. Underwritten Registrations........................................... 23
10. Miscellaneous........................................................ 24
(a) No Inconsistent Agreements.................................... 24
(b) Adjustments Affecting Transfer Restricted Securities.......... 24
(c) Amendments and Waivers........................................ 24
(d) Notices....................................................... 25
(e) Successors and Assigns........................................ 26
(f) Counterparts.................................................. 26
(g) Headings...................................................... 26
(h) Governing Law................................................. 26
(i) Submission to Jurisdiction; Appointment of Agent for
Service; Waiver ............................................ 26
(j) Currency Indemnity............................................ 27
(k) Severability.................................................. 27
(l) Securities Held by the Company or Its Affiliates.............. 28
(m) Third Party Beneficiaries..................................... 28
(n) Entire Agreement.............................................. 28
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is dated as
of December 3, 1998, among VersaTel Telecom International N.V. (formerly known
as Versatel Telecom B.V.), a company organized under the laws of The Netherlands
and having its corporate seat in Amsterdam, The Netherlands (the "Company"),
▇▇▇▇▇▇ Brothers Inc., ▇▇▇▇▇▇ Brothers International (Europe) and Paribas
Corporation (the "Initial Purchasers").
This Agreement is entered into in connection with the Purchase
Agreement, dated as of November 17, 1998, between the Company and the Initial
Purchasers (the "Purchase Agreement") which provides for the sale by the Company
to the Initial Purchasers of 150,000 Units (the "Units") consisting of $1,000
aggregate principal amount of its 13 1/4% Senior Notes due 2008 (the "Notes")
and one warrant to purchase 6.667 Class B Shares of the Company, par value NLG
0.10 per share (the "Class B Shares" and, together with the Class A Shares of
the Company, the "Ordinary Shares"). The Notes are to be issued under an
indenture, dated as of December 3, 1998 (the "Indenture"), between the Company
and United States Trust Company of New York, as Trustee. The warrants are to be
issued under a Warrant Agreement dated as of December 3, 1998 (the "Warrant
Agreement") between the Company and United States Trust Company of New York, as
Warrant Agent. In order to induce the Initial Purchasers to enter into the
Purchase Agreement, the Company has agreed to provide the registration rights
set forth in this Agreement for the benefit of the Initial Purchasers and their
direct and indirect transferees and assigns.
The parties hereby agree as follows:
1. Definitions
As used in this Agreement, the following terms shall have the
following meanings:
Advice: See Section 5 hereof.
Agreement: See the first introductory paragraph hereto.
Applicable Period: See Section 2(b) hereof.
Authenticating Agent: The Authenticating Agent as defined in the
Indenture.
Class B Shares: See the second introductory paragraph hereto.
Company: See the first introductory paragraph hereto.
Effectiveness Period: See Section 3(a) hereof.
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Effectiveness Target Date: The 150th day after the Issue Date.
Event Date: See Section 4(b) hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated thereunder.
Exchange Notes: See Section 2(a) hereof.
Exchange Offer: See Section 2(a) hereof.
Exchange Offer Registration Statement: See Section 2(a) hereof.
Filing Date: The 90th day after the Issue Date.
Holder: Any holder of Transfer Restricted Securities.
Indenture: See the second introductory paragraph hereto.
Initial Purchasers: See the first introductory paragraph hereto.
Inspectors: See Section 5(o) hereof.
Issue Date: The date of the issuance of the Notes under the
Indenture.
Liquidated Damages: See Section 4(a) hereof.
NASD: See Section 5(s) hereof.
Notes: See the second introductory paragraph hereto.
Ordinary Shares: See the second introductory paragraph hereto.
Participant: See Section 7(a) hereof.
Participating Broker-Dealer: See Section 2(b) hereof.
Person: An individual, trustee, corporation, partnership, limited
liability company, joint stock company, trust, unincorporated association,
union, business association, firm or other legal entity.
Private Exchange: See Section 2(b) hereof.
Private Exchange Notes: See Section 2(b) hereof.
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Prospectus: The prospectus included in any Registration Statement
(including, without limitation, any prospectus subject to completion and a
prospectus that includes any information previously omitted from a prospectus
filed as part of an effective registration statement in reliance upon Rule 430A
promulgated under the Securities Act), as amended or supplemented by any
prospectus supplement, and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
Purchase Agreement: See the second introductory paragraph hereto.
Records: See Section 5(o) hereof.
Registration Statement: Any registration statement of the
Company, including, but not limited to, the Exchange Offer Registration
Statement or the Shelf Registration Statement, filed with the SEC pursuant to
the provisions of this Agreement, including the Prospectus, amendments and
supplements to such registration statement, including post-effective amendments,
all exhibits, and all material incorporated by reference or deemed to be
incorporated by reference in such registration statement.
Representatives: ▇▇▇▇▇▇ Brothers Inc. and ▇▇▇▇▇▇ Brothers
International (Europe), on behalf of the Initial Purchasers.
Rule 144: Rule 144 promulgated under the Securities Act, as such
Rule may be amended from time to time, or any similar rule (other than Rule
144A) or regulation hereafter adopted by the SEC providing for offers and sales
of securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer of such securities being
free of the registration and prospectus delivery requirements of the Securities
Act.
Rule 144A: Rule 144A promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule (other than Rule
144) or regulation hereafter adopted by the SEC.
Rule 415: Rule 415 promulgated under the Securities Act, as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC.
SEC: The U.S. Securities and Exchange Commission.
Securities Act: The U.S. Securities Act of 1933, as amended, and
the rules and regulations of the SEC promulgated thereunder.
Shelf Notice: See Section 2(c) hereof.
Shelf Registration Statement: See Section 3(a) hereof.
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Transfer Restricted Securities: Each Note until the earliest to
occur of (i) the date on which such Note has been exchanged by a Person (other
than a Participating Broker-Dealer) for Exchange Notes in the Exchange Offer,
(ii) following the exchange by a Participating Broker-Dealer in the Exchange
Offer of such Note for one or more Exchange Notes, the date on which such
Exchange Notes are sold to a purchaser who receives from such Participating
Broker-Dealer on or prior to the date of such sale a copy of the prospectus
contained in the Exchange Offer Registration Statement, (iii) the date on which
such Note has been effectively registered under the Securities Act and disposed
of in accordance with the Shelf Registration Statement or (iv) the date on which
such Note is eligible for distribution to the public pursuant to Rule 144 under
the Securities Act.
Trust Indenture Act: The Trust Indenture Act of 1939, as amended.
Trustee: The trustee under the Indenture and, if existent, the
trustee under any indenture governing the Exchange Notes and Private Exchange
Notes (if any).
underwritten registration or underwritten offering: A
registration in which securities of the Company are sold to an underwriter for
reoffering to the public.
Units: See the second introductory paragraph hereto.
Warrant Agreement: See the second introductory paragraph hereto.
2. Exchange Offer
(a) The Company agrees to file at its sole cost and expense with
the SEC no later than the Filing Date, unless prohibited by applicable law or
SEC policy, an offer to exchange (the "Exchange Offer") any and all of the
Transfer Restricted Securities (other than Private Exchange Notes, if any) for a
like aggregate principal amount of notes of the Company, which are substantially
identical in all material respects to the Notes (the "Exchange Notes") (and
which are entitled to the benefits of the Indenture or a trust indenture which
is substantially identical in all material respects to the Indenture (other than
such changes to the Indenture or any such identical trust indenture as are
necessary to comply with any requirements of the SEC to effect or maintain the
qualification thereof under the Trust Indenture Act) and which, in either case,
has been qualified under the Trust Indenture Act), except that the Exchange
Notes (other than Private Exchange Notes, if any) shall have been registered
pursuant to an effective Registration Statement under the Securities Act and
shall contain no restrictive legend thereon. The Exchange Offer shall be
registered under the Securities Act on the appropriate form (the "Exchange Offer
Registration Statement") and shall comply with all applicable tender offer rules
and regulations under the Exchange Act. The Company agrees to (i) use its
reasonable best efforts to cause the Exchange Offer Registration Statement to be
declared effective under the Securities Act on or before the Effectiveness
Target Date; (ii) keep the Exchange Offer open for at least 20 business days (or
longer if
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required by applicable law) after the date that notice of the Exchange Offer is
mailed to Holders; (iii) (A) file all pre-effective amendments to such
Registration Statement as may be necessary in order to cause such Registration
Statement to become effective, (B) file, if applicable, a post-effective
amendment to such Registration Statement pursuant to Rule 430A under the
Securities Act and (C) cause all necessary filings in connection with the
registration and qualifications of the Exchange Notes to be made under the blue
sky laws of such jurisdictions as are necessary to permit consummation of the
Exchange Offer; and (iv) use its reasonable best efforts to consummate the
Exchange Offer on or prior to 30 days after the date on which the Exchange Offer
Registration Statement is declared effective by the SEC. Upon the Exchange Offer
Registration Statement being declared effective, the Company will offer the
Exchange Notes in exchange for surrender of the Notes. If after such Exchange
Offer Registration Statement is declared effective by the SEC, the Exchange
Offer or the issuance of the Exchange Notes thereunder is interfered with by any
stop order, injunction or other order or requirement of the SEC or any other
governmental agency or court, such Exchange Offer Registration Statement shall
be deemed not to have become effective for purposes of this Agreement. Each
Holder who participates in the Exchange Offer will be required to represent that
(i) any Exchange Notes received by it will be acquired in the ordinary course of
its business, (ii) it has no arrangement or understanding with any Person to
participate in the distribution (within the meaning of the Securities Act) of
the Exchange Notes, (iii) it is not a broker-dealer that acquired Notes directly
from the Company, (iv) it is not an "affiliate" (as defined in Rule 405 under
the Securities Act) of the Company or, if it is such an affiliate, it will
comply with the registration and prospectus delivery requirements of the
Securities Act to the extent applicable and (v) it is not acting on behalf of
any Person who could not truthfully make the foregoing representations. If such
Holder is not a broker-dealer, such Holder will be required to represent that it
is not engaged in, and does not intend to engage in, the distribution of the
Exchange Notes. If such Holder is a broker-dealer that will receive Exchange
Notes for its own account in exchange for Notes that were acquired as a result
of market-making activities or other trading activities, it will be required to
acknowledge that it will deliver a prospectus in connection with any resale of
such Exchange Notes. Upon consummation of the Exchange Offer in accordance with
this Section 2, the Company shall have no further obligation to register
Transfer Restricted Securities (other than Private Exchange Notes and other than
in respect of any Exchange Notes as to which clause 2(c)(iv) hereof applies)
pursuant to Section 3 hereof. No securities other than the Exchange Notes shall
be included in the Exchange Offer Registration Statement.
(b) The Company shall include within the Prospectus contained in
the Exchange Offer Registration Statement a section entitled "Plan of
Distribution", reasonably acceptable to the Representatives, which shall contain
a summary statement of the positions taken or policies made by the Staff of the
SEC with respect to the potential "underwriter" status of any broker-dealer that
is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of
Exchange Notes received by such broker-dealer in the Exchange Offer (a
"Participating Broker-Dealer"), whether such positions or policies have been
publicly disseminated by the Staff of the SEC or such positions or policies, in
the judgment of the Representatives, represent the prevailing views of the Staff
of the SEC. Such "Plan of
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Distribution" section shall also expressly permit the use of the Prospectus by
all Persons subject to the prospectus delivery requirements of the Securities
Act, including all Participating Broker-Dealers (unless such Participating
Broker-Dealer will be reselling an unsold allotment from the original sale of
the Notes), and include a statement describing the means by which Participating
Broker-Dealers may resell the Exchange Notes.
Upon written request after the consummation of the Exchange
Offer, the Company shall use its best efforts to keep the Exchange Offer
Registration Statement effective and to amend and supplement the Prospectus
contained therein, in order to permit such Prospectus to be lawfully delivered
by any Participating Broker-Dealer subject to the prospectus delivery
requirements of the Securities Act and other Persons, if any, with similar
prospectus delivery requirements for such period of time as is necessary to
comply with applicable law in connection with any resale of the Exchange Notes;
provided, however, that such period shall not exceed 180 days after the
consummation of the Exchange Offer (or such longer period if extended pursuant
to the last paragraph of Section 5 hereof) (the "Applicable Period").
If, prior to consummation of the Exchange Offer, the Initial
Purchasers hold any Notes acquired by them and having, or which are reasonably
likely to be determined to have, the status of an unsold allotment in the
initial distribution, the Company, upon the written request of the Initial
Purchasers simultaneously with the delivery of the Exchange Notes in the
Exchange Offer, shall issue and deliver to the Initial Purchasers in exchange
(the "Private Exchange") for such Notes held by the Initial Purchasers a like
principal amount of notes of the Company, that are substantially identical in
all material respects to the Exchange Notes (the "Private Exchange Notes") (and
which are issued pursuant to the same indenture as the Exchange Notes) except
for the placement of a restrictive legend on such Private Exchange Notes. The
Private Exchange Notes shall bear the same CUSIP number as the Exchange Notes to
the extent permitted by the CUSIP Service Bureau of Standard & Poor's.
Interest on the Exchange Notes and the Private Exchange Notes
will accrue from the last interest payment date on which interest was paid on
the Notes surrendered in exchange therefor or if no interest has been paid on
the Notes, from the Issue Date.
In connection with the Exchange Offer, the Company shall:
(1) mail to each Holder a copy of the Prospectus forming part of
the Exchange Offer Registration Statement, together with an appropriate
letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer
with an address in the Borough of Manhattan, The City of New York, which
may be the Trustee or an affiliate of the Trustee;
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(3) permit Holders to withdraw tendered Notes at any time prior
to the close of business, New York time, on the last business day on
which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable
laws, rules and regulations.
As soon as practicable after the close of the Exchange Offer or
the Private Exchange, as the case may be, the Company shall:
(1) accept for exchange all Notes tendered and not validly
withdrawn pursuant to the Exchange Offer or the Private Exchange;
(2) deliver to the Trustee or Authenticating Agent for
cancellation all Notes so accepted for exchange; and
(3) cause the Trustee promptly to authenticate and deliver to
each Holder of the Notes, Exchange Notes or Private Exchange Notes, as
the case may be, in global form equal in principal amount to the
respective Notes so accepted for exchange, as further set forth in the
Indenture.
The Exchange Notes and the Private Exchange Notes may be issued
under (i) the Indenture or (ii) an indenture substantially identical in all
material respects to the Indenture, which in either event shall provide that (1)
the Exchange Notes shall not be subject to the transfer restrictions set forth
in the Indenture and (2) the Private Exchange Notes shall be subject to the
transfer restrictions set forth in the Indenture. The Indenture or such
indenture substantially identical in all material respects to the Indenture
shall provide that each series of Exchange Notes, Private Exchange Notes and
Notes shall vote and consent together on all matters as one class and that none
of the Exchange Notes, the Private Exchange Notes or the Notes will have the
right to vote or consent as a separate class on any matter.
(c) If (i) the Company is not permitted to file the Exchange
Offer Registration Statement or to consummate the Exchange Offer because the
Exchange Offer is not permitted by applicable law or SEC policy, (ii) any Holder
of Transfer Restricted Securities that is a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act) notifies the Company at least 20
business days prior to the consummation of the Exchange Offer that (a)
applicable law or SEC policy prohibits the Company from participating in the
Exchange Offer, (b) such Holder may not resell the Exchange Notes acquired by it
in the Exchange Offer to the public without delivering a prospectus and the
prospectus contained in the Exchange Offer Registration Statement is not
appropriate or available for such resales by such Holder or (c) such Holder is a
broker-dealer and holds Notes acquired directly from the Company or an affiliate
of the Company, (iii) the Exchange Offer is not for any other reason consummated
within 180 days after the Issue Date, (iv) any Holder (other than a
Participating Broker-Dealer) is not eligible to participate in the Exchange
Offer, or in the case of any Holder
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that participates in the Exchange Offer, such Holder does not receive Exchange
Notes on the date of the exchange that may be sold without restriction under
federal securities laws (other than due solely to the status of such Holder as
an affiliate of the Company within the meaning of the Securities Act or due to
the requirement that such Holder deliver a Prospectus in connection with any
resale of the Exchange Notes) or (v) the Exchange Offer has been completed and
in the opinion of counsel for the Initial Purchasers a Registration Statement
must be filed and a prospectus must be delivered by the Initial Purchasers in
connection with any offering or sale of Transfer Restricted Securities, then the
Company shall promptly deliver written notice thereof (the "Shelf Notice") to
the Trustee and in the case of clauses (i) and (iii), all Holders, or in the
case of clauses (ii), (iv) and (v) the affected Holders, and shall at its own
cost file a Shelf Registration Statement pursuant to Section 3 hereof.
3. Shelf Registration Statement
If a Shelf Notice is delivered as contemplated by Section 2(c)
hereof, then:
(a) Shelf Registration Statement. The Company will use its
reasonable best efforts to: (A) file with the SEC a Registration Statement for
an offering to be made on a continuous basis pursuant to Rule 415 covering all
of the Transfer Restricted Securities (the "Shelf Registration Statement"),
within 90 days of the earliest to occur of clauses (i) through (v) in Section
2(c) above and (B) cause the Shelf Registration Statement to be declared
effective by the SEC on or prior to the 150th day after such obligation arises;
provided, however, that if the Company files a Shelf Registration Statement
pursuant to this Section 3(a), it need not abandon the attempt to cause the SEC
to declare the Exchange Offer Registration Statement effective, and it may
satisfy its obligations to register the Notes pursuant to this Agreement either
by complying with Section 2 and/or Section 3. If the Company shall not have yet
filed an Exchange Offer Registration Statement, the Company shall use its best
efforts to file with the SEC the Shelf Registration Statement on or prior to the
Filing Date. The Shelf Registration Statement shall be on Form F-1 or another
appropriate form permitting registration of such Transfer Restricted Securities
for resale by Holders in the manner or manners designated by them (including,
without limitation, one or more underwritten offerings), or may be an amendment
to the Exchange Offer Registration Statement. The Company shall not permit any
securities other than the Transfer Restricted Securities to be included in the
Shelf Registration Statement.
The Company shall use its reasonable best efforts to keep the
Shelf Registration Statement continuously effective, supplemented and amended to
ensure that it is available for resales of Notes by the holders of Transfer
Restricted Securities entitled to this benefit and to ensure that such Shelf
Registration Statement conforms and continues to conform with the requirements
of this Agreement, the Securities Act and the policies, rules and regulations of
the SEC, as announced from time to time, until the second anniversary of the
Issue Date, subject to extension pursuant to the last paragraph of Section 5
hereof (the "Effectiveness Period"), or such shorter period ending when all
Transfer Restricted Securities covered by the Shelf Registration Statement have
been sold in the manner set forth and as contemplated in the
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Shelf Registration Statement or when the Transfer Restricted Securities become
eligible for resale pursuant to Rule 144 under the Securities Act without volume
restrictions, if any.
(b) Withdrawal of Stop Orders. If the Shelf Registration
Statement ceases to be effective for any reason at any time during the
Effectiveness Period (other than because of the sale of all of the securities
registered thereunder), the Company shall use its best efforts to obtain the
prompt withdrawal of any order suspending the effectiveness thereof.
(c) Supplements and Amendments. The Company shall promptly
supplement and amend the Shelf Registration Statement if required by the rules,
regulations or instructions applicable to the registration form used for such
Shelf Registration Statement, if required by the Securities Act, or if
reasonably requested by the Holders of a majority in aggregate principal amount
of the Transfer Restricted Securities covered by such Registration Statement or
by any underwriter of such Transfer Restricted Securities based on a reasonable
belief that such supplement or amendment is required by law.
4. Liquidated Damages
(a) The Company and the Initial Purchasers agree that the Holders
of Notes will suffer damages if the Company fails to fulfill its obligations
under Section 2 or Section 3 hereof and that it would not be feasible to
ascertain the extent of such damages with precision. Accordingly, the Company
agrees to pay, as liquidated damages, additional interest on the Notes
("Liquidated Damages") under the circumstances and to the extent set forth below
(each of which shall be given independent effect and shall not be duplicative):
(i if neither the Exchange Offer Registration Statement nor
the Shelf Registration Statement has been filed on or prior to the
Filing Date, then, commencing on the 91st day after the Issue Date,
Liquidated Damages shall accrue on the Notes over and above the stated
interest at a rate of 0.50% per annum for the first 90 days immediately
following the Filing Date, such Liquidated Damages rate increasing by an
additional 0.50% per annum at the beginning of each subsequent 90-day
period, or part thereof; or
(ii if neither the Exchange Offer Registration Statement nor
the Shelf Registration Statement is declared effective by the SEC on or
prior to the Effectiveness Target Date, then, commencing on the 151st
day after the Issue Date, Liquidated Damages shall accrue on the Notes
included or which should have been included in such Registration
Statement over and above the stated interest at a rate of 0.50% per
annum for the first 90 days immediately following the Effectiveness
Target Date, such Liquidated Damages rate increasing by an additional
0.50% per annum at the beginning of each subsequent 90-day period, or
part thereof; or
(iii if the Exchange Offer has not been consummated within 30
days after the Effectiveness Target Date with respect to the Exchange
Offer Registration
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Statement Liquidated Damages shall accrue on the Notes over and above
the stated interest at a rate of 0.50% per annum for the first 90 days
commencing on the 31st day after the Effectiveness Target Date, such
Liquidated Damages rate increasing by an additional 0.50% per annum at
the beginning of each subsequent 90-day period, or part thereof; or
(iv (A) the Exchange Offer Registration Statement is filed
and declared effective but thereafter ceases to be effective or fails to
be usable for its intended purpose at any time prior to the time that
the Exchange Offer is consummated and is not declared effective within
five business days thereafter or (B) the Shelf Registration Statement is
filed and declared effective but thereafter ceases to be effective or
fails to be usable for its intended purpose at any time during the
Effectiveness Period and is not declared effective again within five
business days thereafter, Liquidated Damages shall accrue on the Notes
over and above the stated interest rate at a rate of 0.50% per annum for
the first 90 days commencing on the day the applicable Registration
Statement ceases to be effective or usable for its intended purpose
without being declared effective again within 5 business days, such
Liquidated Damages rate increasing by an additional 0.50% per annum at
the beginning of each such subsequent 90-day period, or part thereof (it
being understood and agreed that, notwithstanding any provision to the
contrary, so long as any Note which is the subject of a Shelf Notice is
then covered by an effective Shelf Registration Statement, no Liquidated
Damages shall accrue on such Note);
provided, however, that Liquidated Damages may accrue at a maximum rate of 1.50%
per annum of the principal amount of Notes; and provided, further, that (1) upon
the filing of the Exchange Offer Registration Statement or a Shelf Registration
Statement as required hereunder (in the case of clause (i) of this Section
4(a)), (2) upon the effectiveness of the Exchange Offer Registration Statement
or the Shelf Registration Statement as required hereunder (in the case of clause
(ii) of this Section 4(a)), (3) upon the consummation of the Exchange Offer (in
the case of clause (iii) of this Section 4(a)), and (4) upon the effectiveness
or usability of the Exchange Offer Registration Statement which had ceased to
remain effective or be usable (in the case of clause (iv)(A) of this Section
4(a)), or upon the effectiveness or usability of the Shelf Registration
Statement which had ceased to remain effective or be usable (in the case of
clause (iv)(B) of this Section 4(a)), Liquidated Damages on the affected Notes
as a result of such clause (or the relevant subclause thereof), as the case may
be, shall cease to accrue.
(b) The Company shall notify the Trustee within five business
days after each and every date on which an event occurs in respect of which
Liquidated Damages is required to be paid (an "Event Date"). Any amounts of
Liquidated Damages due pursuant to (a)(i), (a)(ii), (a)(iii) or (a)(iv) of this
Section 4 will be payable to the Depositary or its nominee in its capacity as
the registered holder of affected Notes in cash semi-annually on each May 15 and
November 15 (to the holders of record on the May 1 and November 1 immediately
preceding such dates), commencing with the first such date occurring after any
such Liquidated Damages commences to accrue. The amount of Liquidated Damages
will be determined by
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multiplying the applicable Liquidated Damages rate by the principal amount of
the affected Notes of such Holders, multiplied by a fraction, the numerator of
which is the number of days such Liquidated Damages rate was applicable during
such period (determined on the basis of a 360-day year comprised of twelve
30-day months and, in the case of a partial month, the actual number of days
elapsed), and the denominator of which is 360. The Company shall notify the
Trustee within five business days of the cessation of any requirement to pay
Liquidated Damages hereunder.
5. Registration Procedures
In connection with the filing of any Registration Statement
pursuant to Sections 2 or 3 hereof, the Company shall effect such
registration(s) to permit the sale of the securities covered thereby in
accordance with the intended method or methods of disposition thereof, and
pursuant thereto and in connection with any Registration Statement filed by the
Company hereunder the Company shall:
(a) Prepare and file with the SEC prior to the Filing Date, a
Registration Statement or Registration Statements as prescribed by Sections 2 or
3 hereof, and use its best efforts to cause each such Registration Statement to
become effective and remain effective as provided herein; provided, however,
that, if (1) such filing is pursuant to Section 3 hereof, or (2) a Prospectus
contained in an Exchange Offer Registration Statement filed pursuant to Section
2 hereof is required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, before filing any Registration Statement or Prospectus or any
amendments or supplements thereto, the Company shall furnish to and afford the
Holders of the Transfer Restricted Securities covered by such Registration
Statement or each such Participating Broker-Dealer, as the case may be, their
counsel and the managing underwriters, if any, a reasonable opportunity to
review copies of all such documents (including copies of any documents to be
incorporated by reference therein and all exhibits thereto) proposed to be filed
(in each case at least five business days prior to such filing).
(b) Prepare and file with the SEC such amendments and
post-effective amendments to each Shelf Registration Statement or Exchange Offer
Registration Statement, as the case may be, as may be necessary to keep such
Registration Statement continuously effective for the Effectiveness Period or
the Applicable Period or until consummation of the Exchange Offer, as the case
may be; cause the related Prospectus to be supplemented by any Prospectus
supplement required by applicable law, and as so supplemented to be filed
pursuant to Rule 424 (or any similar provisions then in force) promulgated under
the Securities Act; and comply with the provisions of the Securities Act and the
Exchange Act applicable to it with respect to the disposition of all securities
covered by such Registration Statement as so amended or in such Prospectus as so
supplemented and with respect to the subsequent resale of any securities being
sold by a Participating Broker-Dealer covered by any such Prospectus.
Notwithstanding the foregoing, if the Board of Managing Directors of the Company
determines in good faith that it is in the best interests of the Company not to
disclose the existence of or
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facts surrounding any proposed or pending material event or transaction
involving the Company or its subsidiaries, the Company may (i) in the event a
Shelf Registration Statement has been filed, allow the Shelf Registration
Statement to fail to be effective or usable as a result of such nondisclosure
for up to 60 days during the Effectiveness Period, but in no event for any
period in excess of 30 consecutive days, and (ii) in the event the Exchange
Offer is consummated, allow the Exchange Offer Registration Statement to fail to
be effective or usable as a result of such non-disclosure for up to 15 days
during the Applicable Period. The Company shall be deemed not to have used its
best efforts to keep a Registration Statement effective during the Applicable
Period if it voluntarily takes any action that would result in selling Holders
of the Transfer Restricted Securities covered thereby or Participating Broker-
Dealers seeking to sell Exchange Notes not being able to sell such Transfer
Restricted Securities or such Exchange Notes during that period unless such
action is required by applicable law or unless the Company complies with this
Agreement, including, without limitation, the provisions of paragraph 5(k)
hereof and the last paragraph of this Section 5.
(c) If (1) a Shelf Registration Statement is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer who seeks
to sell Exchange Notes during the Applicable Period, notify the Holders of
Transfer Restricted Securities, or each such Participating Broker-Dealer, as the
case may be, their counsel and the managing underwriters, if any, promptly (but
in any event within five business days), and, if requested by such Persons,
confirm such notice in writing, (i) when a Prospectus or any Prospectus
supplement or post-effective amendment has been filed, and, with respect to a
Registration Statement or any post-effective amendment, when the same has become
effective under the Securities Act (including in such notice a written statement
that any Holder may, upon request, obtain, at the sole expense of the Company,
one conformed copy of such Registration Statement or post-effective amendment
including financial statements and schedules, documents incorporated or deemed
to be incorporated by reference and exhibits), (ii) of the issuance by the SEC
of any stop order suspending the effectiveness of a Registration Statement or of
any order preventing or suspending the use of any preliminary prospectus or the
initiation of any proceedings for that purpose, (iii) if at any time when a
prospectus is required by the Securities Act to be delivered in connection with
sales of the Transfer Restricted Securities or resales of Exchange Notes by
Participating Broker-Dealers the representations and warranties of the Company
contained in any agreement (including any underwriting agreement), contemplated
by Section 5(n) hereof cease to be true and correct, (iv) of the receipt by the
Company of any notification with respect to the suspension of the qualification
or exemption from qualification of a Registration Statement or any of the
Transfer Restricted Securities or the Exchange Notes to be sold by any
Participating Broker-Dealer for offer or sale in any jurisdiction, or the
initiation or threatening of any proceeding for such purpose, (v) of the
happening of any event, the existence of any condition or any information
becoming known that makes any statement made in such Registration Statement or
related Prospectus or any document incorporated or deemed to be incorporated
therein by reference untrue in any material respect or that requires the making
of any changes in or amendments or supplements to such Registration Statement,
Prospectus or documents so that, in the case of the
13
Registration Statement, it will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and that in the case of
the Prospectus, it will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading, and (vi) of the determination by the Company that a
post-effective amendment to a Registration Statement would be appropriate.
(d) Use its best efforts to prevent the issuance of any order
suspending the effectiveness of a Registration Statement or of any order
preventing or suspending the use of a Prospectus or suspending the qualification
(or exemption from qualification) of any of the Transfer Restricted Securities
or the Exchange Notes for sale in any jurisdiction, and, if any such order is
issued, to use its best efforts to obtain the withdrawal of any such order at
the earliest possible moment.
(e) If a Shelf Registration Statement is filed pursuant to
Section 3 and if reasonably requested by the managing underwriter or
underwriters (if any), or the Holders of a majority in aggregate principal
amount of the Transfer Restricted Securities being sold in connection with an
underwritten offering or any Participating Broker-Dealer, (i) promptly
incorporate in a prospectus supplement or post-effective amendment such
information as the managing underwriter or underwriters (if any), such Holders,
any Participating Broker-Dealer or counsel for any of them may reasonably
request to be included therein, (ii) make all required filings of such
prospectus supplement or such post-effective amendment as soon as practicable
after the Company has received notification of the matters to be incorporated in
such prospectus supplement or post-effective amendment, and (iii) supplement or
make amendments to such Registration Statement.
(f) If (l) a Shelf Registration Statement is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer who seeks
to sell Exchange Notes during the Applicable Period, furnish to each selling
Holder of Transfer Restricted Securities and to each such Participating
Broker-Dealer who so requests and to counsel and each managing underwriter, if
any, at the sole expense of the Company, one conformed copy of the Registration
Statement or Registration Statements and each post-effective amendment thereto,
including financial statements and schedules, and, if requested, all documents
incorporated or deemed to be incorporated therein by reference and all exhibits.
(g) If (l) a Shelf Registration Statement is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer who seeks
to sell Exchange Notes during the Applicable Period, deliver to each Holder of
Transfer Restricted Securities, or each such Participating Broker-Dealer, as the
case may be, their respective counsel, and the underwriters, if any, at the sole
expense of the
14
Company, as many copies of the Prospectus or Prospectuses (including each form
of preliminary prospectus) and each amendment or supplement thereto and any
documents incorporated by reference therein as such Persons may reasonably
request; and, subject to the last paragraph of this Section 5, the Company
hereby consents to the use of such Prospectus and each amendment or supplement
thereto by each of the Holders of Transfer Restricted Securities or each such
Participating Broker-Dealer, as the case may be, and the underwriters or agents,
if any, and dealers (if any), in connection with the offering and sale of the
Transfer Restricted Securities covered by, or the sale by Participating
Broker-Dealers of the Exchange Notes pursuant to, such Prospectus and any
amendment or supplement thereto.
(h) Prior to any public offering of Transfer Restricted
Securities or Exchange Notes or any delivery of a Prospectus contained in the
Exchange Offer Registration Statement by any Participating Broker-Dealer who
seeks to sell Exchange Notes during the Applicable Period, use its reasonable
best efforts to register or qualify (and to cooperate with selling Holders of
Transfer Restricted Securities or each such Participating Broker-Dealer, as the
case may be, the managing underwriter or underwriters, if any, and their
respective counsel in connection with the registration or qualification (or
exemption from such registration or qualification) of such Transfer Restricted
Securities) for offer and sale under the securities or Blue Sky laws of such
jurisdictions within the United States as any selling Holder, Participating
Broker-Dealer, or the managing underwriter or underwriters reasonably request;
provided, however, that where Exchange Notes held by Participating
Broker-Dealers or Transfer Restricted Securities are offered other than through
an underwritten offering, the Company agrees to cause its counsel to perform
Blue Sky investigations and file registrations and qualifications required to be
filed pursuant to this Section 5(h); keep each such registration or
qualification (or exemption therefrom) effective during the period such
Registration Statement is required to be kept effective and do any and all other
acts or things reasonably necessary or advisable to enable the disposition in
such jurisdictions of the Exchange Notes held by Participating Broker-Dealers or
the Transfer Restricted Securities covered by the applicable Registration
Statement; provided, however, that the Company shall not be required to (A)
qualify generally to do business in any jurisdiction where it is not then so
qualified, (B) take any action that would subject it to general service of
process in any such jurisdiction where it is not then so subject or (C) subject
itself to taxation in any such jurisdiction where it is not then so subject.
(i) If a Shelf Registration Statement is filed pursuant to
Section 3 hereof, cooperate with the selling Holders of Transfer Restricted
Securities and the managing underwriter or underwriters, if any, to facilitate
the timely preparation and delivery of certificates representing Transfer
Restricted Securities to be sold, which certificates shall not bear any
restrictive legends and shall be in a form eligible for deposit with The
Depository Trust Company; and enable such Transfer Restricted Securities to be
in such denominations and registered in such names as the managing underwriter
or underwriters, if any, or Holders may request.
15
(j) Use its best efforts to cause the Transfer Restricted
Securities covered by the Registration Statement and the Exchange Notes to be
registered with or approved by such other governmental agencies or authorities
as may be necessary to enable the selling Holders thereof or the underwriter or
underwriters, if any, to dispose of such Transfer Restricted Securities or
Exchange Notes, except as may be required solely as a consequence of the nature
of a selling Holder's business, in which case the Company will cooperate in all
reasonable respects with the filing of such Registration Statement and the
granting of such approvals.
(k) If (l) a Shelf Registration Statement is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer who seeks
to sell Exchange Notes during the Applicable Period, upon the occurrence of any
event contemplated by paragraph 5(c)(v) or 5(c)(vi) hereof, as promptly as
practicable prepare and (subject to Section 5(b) hereof) file with the SEC, at
the sole expense of the Company, a supplement or post-effective amendment to the
Registration Statement or a supplement to the related Prospectus or any document
incorporated or deemed to be incorporated therein by reference, or file any
other required document so that, as thereafter delivered to the purchasers of
the Transfer Restricted Securities being sold thereunder or to the purchasers of
the Exchange Notes to whom such Prospectus will be delivered by a Participating
Broker-Dealer, any such Prospectus will not contain 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 were made, not misleading.
(l) Unless the rating in effect for the Notes is equally
applicable and in effect for the Exchange Notes and the Transfer Restricted
Securities, use its best efforts to cause the Transfer Restricted Securities
covered by a Registration Statement or the Exchange Notes, as the case may be,
to be rated with the appropriate rating agencies.
(m) Prior to the effective date of the first Registration
Statement relating to the Transfer Restricted Securities, provide a CUSIP
number, ISIN Code and Common Code for each series of Transfer Restricted
Securities or Exchange Notes, as the case may be.
(n) In connection with any underwritten offering of Transfer
Restricted Securities pursuant to a Shelf Registration Statement, enter into an
underwriting agreement as is customary in underwritten offerings of debt
securities similar to the Notes and take all such other actions as are
reasonably requested by the managing underwriter or underwriters in order to
facilitate the registration or the disposition of such Transfer Restricted
Securities and, in such connection, (i) make such representations and warranties
to, and covenants with, the underwriters with respect to the business of the
Company and its subsidiaries (including any acquired business, properties or
entity, if applicable) and the Registration Statement, Prospectus and documents,
if any, incorporated or deemed to be incorporated by reference therein, in each
case, as are customarily made by issuers to underwriters in underwritten
offerings of debt securities similar to the Notes, and confirm the same in
writing if and when
16
requested; (ii) obtain the written opinion of counsel to the Company and written
updates thereof in form, scope and substance reasonably satisfactory to the
managing underwriter or underwriters, addressed to the underwriters covering the
matters customarily covered in opinions requested in underwritten offerings of
debt similar to the Notes and such other matters as may be reasonably requested
by the managing underwriter or underwriters; (iii) obtain "cold comfort" letters
and updates thereof in form, scope and substance reasonably satisfactory to the
managing underwriter or underwriters from the independent certified public
accountants of the Company (and, if necessary, any other independent certified
public accountants of any subsidiary of the Company or of any business acquired
by the Company for which financial statements and financial data are, or are
required to be, included or incorporated by reference in the Registration
Statement), addressed to each of the underwriters, such letters to be in
customary form and covering matters of the type customarily covered in "cold
comfort" letters in connection with underwritten offerings of debt similar to
the Notes and such other matters as reasonably requested by the managing
underwriter or underwriters; and (iv) if an underwriting agreement is entered
into, the same shall contain indemnification provisions and procedures
substantially similar to those set forth in Section 7 hereof (or such other
provisions and procedures acceptable to Holders of a majority in aggregate
principal amount of Transfer Restricted Securities covered by such Registration
Statement and the managing underwriter or underwriters or agents) with respect
to all parties to be indemnified pursuant to said Section, including, without
limitation, the Holders of Transfer Restricted Securities and the underwriters.
The above shall be done at each closing under such underwriting agreement, or as
and to the extent required thereunder.
(o) If (1) a Shelf Registration Statement is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer who seeks
to sell Exchange Notes during the Applicable Period, make available for
inspection by any selling Holder of such Transfer Restricted Securities being
sold, or each such Participating Broker-Dealer, as the case may be, any
underwriter participating in any such disposition of Transfer Restricted
Securities, if any, and any attorney, accountant or other agent retained by any
such selling Holder or each such Participating Broker-Dealer, as the case may
be, or underwriter (collectively, the "Inspectors"), at the offices where
normally kept, during reasonable business hours, all financial and other
records, pertinent corporate documents and instruments of the Company and its
subsidiaries (collectively, the "Records") as shall be reasonably necessary to
enable them to exercise any applicable due diligence responsibilities, and cause
the officers, directors and employees of the Company and its subsidiaries to
supply all information reasonably requested by any such Inspector in connection
with such Registration Statement. Records which the Company determines, in good
faith, to be confidential and any Records which it notifies the Inspectors are
confidential shall not be disclosed by the Inspectors unless (i) the disclosure
of such Records is necessary to avoid or correct a misstatement or omission in
such Registration Statement, (ii) the release of such Records is ordered
pursuant to a subpoena or other order from a court of competent jurisdiction,
(iii) disclosure of such information is, in the opinion of counsel for any
Inspector and after consultation with the Company, necessary in connection with
any action, claim, suit
17
or proceeding, directly or indirectly, involving or potentially involving such
Inspector and arising out of, based upon, relating to, or involving this
Agreement, or any transactions contemplated hereby or arising hereunder, or (iv)
the information in such Records has been made generally available to the public.
Each selling Holder of such Transfer Restricted Securities and each such
Participating Broker-Dealer will be required to agree that information obtained
by it as a result of such inspections shall be deemed confidential and shall not
be used by it as the basis for any market transactions in the securities of the
Company unless and until such information is generally available to the public.
Each selling Holder of such Transfer Restricted Securities and each such
Participating Broker-Dealer or underwriter, as the case may be, will be required
further to agree that it will, upon learning that disclosure of such Records is
sought in a court of competent jurisdiction, give notice to the Company and
allow the Company at its sole expense to undertake appropriate action to prevent
disclosure of the Records deemed confidential.
(p) Provide an indenture trustee for the Transfer Restricted
Securities or the Exchange Notes, as the case may be, and cause the Indenture or
the trust indenture provided for in Section 2(a) hereof, as the case may be, to
be qualified under the Trust Indenture Act not later than the effective date of
the first Registration Statement relating to the Transfer Restricted Securities;
and in connection therewith, cooperate with the trustee under any such indenture
and the Holders of the Transfer Restricted Securities, to effect such changes to
such indenture as may be required for such indenture to be so qualified in
accordance with the terms of the Trust Indenture Act; furnish the trustee with
an officer's certificate certifying that such indenture has been so qualified
under the Trust Indenture Act and that the Transfer Restricted Securities are
the subject of a Registration Statement; and execute, and use its reasonable
best efforts to cause such trustee to execute, all documents as may be required
to effect such changes, and all other forms and documents required to be filed
with the SEC to enable such indenture to be so qualified in a timely manner.
(q) Comply with all applicable rules and regulations of the SEC
and make generally available to its securityholders earnings statements
satisfying the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder (or any similar rule promulgated under the Securities Act) no later
than 45 days after the end of any 12-month period (or 90 days after the end of
any 12-month period if such period is a fiscal year) (i) commencing at the end
of any fiscal quarter in which Transfer Restricted Securities are sold to
underwriters in a firm commitment or best efforts underwritten offering and (ii)
if not sold to underwriters in such an offering, commencing on the first day of
the first fiscal quarter of the Company after the effective date of a
Registration Statement, which statements shall cover said 12-month periods.
(r) If an Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Transfer Restricted Securities by Holders to
the Company (or to such other Person as directed by the Company) in exchange for
the Exchange Notes or the Private Exchange Notes, as the case may be, the
Company shall ▇▇▇▇, or cause to be marked, on such Transfer Restricted
Securities that such Transfer Restricted Securities are being cancelled in
18
exchange for the Exchange Notes or the Private Exchange Notes, as the case may
be; in no event shall such Transfer Restricted Securities be marked as paid or
otherwise satisfied.
(s) Cooperate with each seller of Transfer Restricted Securities
covered by any Registration Statement and each underwriter, if any,
participating in the disposition of such Transfer Restricted Securities and
their respective counsel in connection with any filings required to be made with
the National Association of Securities Dealers, Inc. (the "NASD").
(t) Use its best efforts to take all other steps necessary or
advisable to effect the registration of the Exchange Notes and/or Transfer
Restricted Securities covered by a Registration Statement contemplated hereby.
(u) Make an application to list the Exchange Notes on the
Luxembourg Stock Exchange and to use its best efforts to have the Exchange Notes
admitted to trading on the Luxembourg Stock Exchange as promptly as practicable.
The Company may require each seller of Transfer Restricted
Securities as to which any Shelf Registration Statement is being effected to (i)
furnish to the Company such information regarding such seller and the
distribution of such Transfer Restricted Securities and (ii) make such
representations, in each case as the Company may, from time to time, reasonably
request. The Company may exclude from such registration the Transfer Restricted
Securities of any seller who unreasonably fails to furnish such information or
make such representations within a reasonable time after receiving such request.
Each seller as to which any Shelf Registration Statement is being effected
agrees to furnish promptly to the Company all information required to be
disclosed in order to make the information previously furnished to the Company
by such seller not materially misleading.
Each Holder of Transfer Restricted Securities and each
Participating Broker-Dealer agrees by acquisition of such Transfer Restricted
Securities or Exchange Notes to be sold by such Participating Broker-Dealer, as
the case may be, that, upon actual receipt of any notice from the Company of the
happening of any event of the kind described in Section 5(c)(ii), 5(c)(iv),
5(c)(v) or 5(c)(vi) hereof, such Holder will forthwith discontinue disposition
of such Transfer Restricted Securities covered by such Registration Statement or
Prospectus or Exchange Notes to be sold by such Holder or Participating
Broker-Dealer, as the case may be, until such Holder's or Participating
Broker-Dealer's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 5(k) hereof, or until it is advised in writing (the
"Advice") by the Company that the use of the applicable Prospectus may be
resumed, and has received copies of any amendments or supplements thereto. In
the event the Company shall give any such notice, each of the Effectiveness
Period and the Applicable Period shall be extended by the number of days during
such periods from and including the date of the giving of such notice to and
including the date when each seller of Transfer Restricted Securities covered by
such Registration Statement or Exchange Notes to be sold by such Participating
Broker-Dealer, as the case may be, shall have received (x) the copies of the
supplemented or amended Prospectus contemplated by Section 5(k) hereof or (y)
the Advice.
19
6. Registration Expenses
(a) All fees and expenses incident to the performance of or
compliance with this Agreement by the Company shall be borne by the Company
whether or not the Exchange Offer Registration Statement or a Shelf Registration
Statement is filed or becomes effective, including, without limitation, (i) all
registration and filing fees (including, without limitation, (A) fees with
respect to filings required to be made with the NASD in connection with an
underwritten offering, (B) fees and expenses of compliance with state securities
or Blue Sky laws (including, without limitation, reasonable fees and
disbursements of counsel in connection with Blue Sky qualifications of the
Transfer Restricted Securities or Exchange Notes and determination of the
eligibility of the Transfer Restricted Securities or Exchange Notes for
investment under the laws of such jurisdictions (x) where the holders of
Transfer Restricted Securities are located, in the case of the Exchange Notes,
or (y) as provided in Section 5(h) hereof, in the case of Transfer Restricted
Securities or Exchange Notes to be sold by a Participating Broker-Dealer during
the Applicable Period)), and (C) all expenses and fees in connection with the
obtaining of any approval from the Stichting Toezicht Effectenverkeer or any
other relevant authority in The Netherlands; (ii) printing expenses, including,
without limitation, the printing of prospectuses if the printing of prospectuses
is requested by the managing underwriter or underwriters, if any, by the Holders
of a majority in aggregate principal amount of the Transfer Restricted
Securities included in any Registration Statement or by any Participating
Broker-Dealer, as the case may be, (iii) reasonable fees and disbursements of
counsel for the Company and reasonable fees and disbursements of special counsel
for the sellers of Transfer Restricted Securities (subject to the provisions of
Section 6(b) hereof), (iv) reasonable fees and disbursements of all independent
certified public accountants referred to in Section 5(n)(iii) hereof (including,
without limitation, the expenses of any special audit and "cold comfort" letters
required by or incident to such performance), (v) rating agency fees, if any,
and any fees associated with making the Exchange Notes eligible for trading
through The Depository Trust Company, (vi) Securities Act liability insurance,
if the Company desires such insurance, (vii) reasonable fees and expenses of all
other Persons retained by the Company, (viii) internal expenses of the Company
(including, without limitation, all salaries and expenses of officers and
employees of the Company performing legal or accounting duties), (ix) the
expense of any annual audit, (x) the reasonable fees and expenses incurred in
connection with the listing of the securities to be registered on any securities
exchange, if applicable, and (xi) the expenses relating to printing, word
processing and distributing all Registration Statements, underwriting
agreements, securities sales agreements, indentures and any other documents
necessary in order to comply with this Agreement.
(b) The Company shall reimburse the Holders of the Transfer
Restricted Securities being registered in a Shelf Registration Statement for the
reasonable fees and disbursements of not more than one counsel (in addition to
appropriate local counsel) chosen by the Holders of a majority in aggregate
principal amount of the Transfer Restricted Securities to be included in such
Registration Statement (which counsel shall be ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ unless
otherwise affirmatively stated by the Holders).
20
7. Indemnification and Contribution
(a) The Company shall indemnify and hold harmless each Holder of
Transfer Restricted Securities offered pursuant to a Shelf Registration
Statement, each Participating Broker-Dealer selling Exchange Notes during the
Applicable Period and the Initial Purchasers and the officers and employees and
each Person, if any, who controls any such Person within the meaning of the
Securities Act (each a "Participant") from and against any loss, claim, damage
or liability, joint or several, or any action in respect thereof (including, but
not limited to, any loss, claim, damage, liability or action relating to the
exchange of or sales of the Transfer Restricted Securities), to which that
Participant may become subject, under the Securities Act or otherwise, insofar
as such loss, claim, damage, liability or action arises out of, or is based
upon, (i) any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement or Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus, or in any blue sky
application or other document prepared or executed by the Company (or based upon
any written information furnished by the Company) specifically for the purpose
of qualifying any or all of the Transfer Restricted Securities under the
securities laws of any state or other jurisdiction (such application, document
or information being hereinafter called a "Blue Sky Application"), (ii) the
omission or alleged omission to state therein any material fact required to be
stated therein or necessary to make the statements therein not misleading or
(iii) any act or failure to act, or any alleged act or failure to act, by any
Participant in connection with, or relating in any manner to, the Transfer
Restricted Securities or the registration contemplated hereby, and which is
included as part of or referred to in any loss, claim, damage, liability or
action arising out of or based upon matters covered by clause (i) or (ii) above
(provided that the Company shall not be liable in the case of any matter covered
by this clause (iii) to the extent that it is determined in a final judgment by
a court of competent jurisdiction that such loss, claim, damage, liability or
action resulted directly from any such act or failure to act undertaken or
omitted to be taken by such Participant through its gross negligence or wilful
misconduct), and shall reimburse each Participant promptly upon demand for any
legal or other expenses reasonably incurred by that Participant in connection
with investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage, liability or action arises out of, or is
based upon, any untrue statement or alleged untrue statement or omission or
alleged omission made in the Registration Statement or Prospectus, or in any
such amendment or supplement, or in any Blue Sky Application in reliance upon
and in conformity with the written information furnished to the Company by or on
behalf of any Participant specifically for inclusion therein; provided, further,
that with respect to any such untrue statement in or omission from any
preliminary prospectus, the indemnity agreement contained in this Section 7(a)
shall not inure to the benefit of any such Participant to the extent that the
sale to the Person asserting any such loss, claim, damage, liability or action
was an initial resale by such Participant and any such loss, claim, damage,
liability or action of or with respect to such Participant results from the fact
that both (A) to the extent required by applicable law, a copy of the Prospectus
was not sent or given to such Person at or prior to the written confirmation of
the sale of such securities to such Person
21
and (B) the untrue statement in or omission from such preliminary prospectus was
corrected in the Prospectus unless, in either case, such failure to deliver the
Prospectus was a result of non-compliance by the Company with Section 5(g) of
this Agreement. The foregoing indemnity agreement is in addition to any
liability which the Company may otherwise have to any Participant.
(b) Each Holder of Transfer Restricted Securities offered
pursuant to a Shelf Registration Statement, each Participating Broker-Dealer
selling Exchange Notes during the Applicable Period and the Initial Purchasers
(each a "Participant Indemnifying Party") severally and not jointly, shall
indemnify and hold harmless the Company, its officers and employees, each of its
directors and each Person, if any, who controls the Company within the meaning
of the Securities Act from and against any loss, claim, damage or liability,
joint or several, or any action in respect thereof, to which the Company or any
such director, officer or controlling Person may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained (A) in any preliminary prospectus
or the Registration Statement or Prospectus, or in any amendment or supplement
thereto, or (B) in any Blue Sky Application or (ii) the omission or alleged
omission to state therein any material fact required to be stated therein or
necessary to make the statements therein not misleading, but in each case only
to the extent that the untrue statement or alleged untrue statement or omission
or alleged omission was made in reliance upon and in conformity with the written
information furnished to the Company by that Participant Indemnifying Party
specifically for inclusion therein, and shall reimburse the Company and any such
director, officer or controlling Person for any legal or other expenses
reasonably incurred by the Company or any such director, officer or controlling
Person in connection with investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action as such expenses are
incurred. The foregoing indemnity agreement is in addition to any liability
which any Participant Indemnifying Party may otherwise have to the Company or
any such director, officer or controlling Person.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 7, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 7 except to the extent it has
been materially prejudiced by such failure and, provided, further, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 7.
If any such claim or action shall be brought against an indemnified party, and
it shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the
22
indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
any indemnified party shall have the right to employ separate counsel in any
such action and to participate in the defense thereof but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless (i) the
employment thereof has been specifically authorized by the indemnifying party in
writing, (ii) such indemnified party shall have been advised by such counsel
that there may be one or more legal defenses available to it which are different
from or additional to those available to the indemnifying party and in the
reasonable judgement of such counsel it is advisable for such indemnified party
to employ separate counsel or (iii) the indemnifying party has failed to assume
the defense of such action and employ counsel reasonably satisfactory to the
indemnified party, in which case, if such indemnified party notifies the
indemnifying party in writing that it elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such action on behalf of such indemnified party,
it being understood, however, that the indemnifying party shall not, in
connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys at any time for all such indemnified
parties, which firm shall be designated in writing by the Initial Purchasers, if
the indemnified parties under this Section 7 consist of any Participants, or by
the Company, if the indemnified parties under this Section consist of the
Company or any of the Company's directors, officers, employees or controlling
Persons. Each indemnified party, as a condition of the indemnity agreements
contained in Sections 7(a) and 7(b), shall use its reasonable efforts to
cooperate with the indemnifying party in the defense of any such action or
claim. No indemnifying party shall (i) without the prior written consent of the
indemnified parties (which consent shall not be unreasonably withheld) settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent (a) includes an unconditional
release of each indemnified party from all liability arising out of such claim,
action, suit or proceeding and (b) does not include a statement as to or an
admission of fault, culpability or a failure to act, by or on behalf of the
indemnified party, or (ii) be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with its written consent or if there be a final
judgment of the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any loss of
liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 7 shall
for any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section 7(a) or 7(b) in respect of any loss, claim, damage or
liability, or any action in respect thereof, 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, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be
23
appropriate to reflect the relative benefits received by the Company on the one
hand and the Participants on the other from the offering of the Notes 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 Company on
the one hand and the Participants on the other with respect to the statements or
omissions which resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Participants on the other shall be deemed
to be in the same proportion as the total net proceeds from the offering of the
Notes (before deducting expenses underwriting discounts and commissions)
received by the Company bear on the one hand, and the total underwriting
discounts and commissions received by the Participants with respect to the Notes
purchased under the Purchase Agreement, on the other hand, bear to the total
gross proceeds from the offering of the Notes under the Purchase Agreement. The
relative fault shall be determined by reference to whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company or the
Participants, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Participants agree that it would not be just and equitable
if contributions pursuant to this Section 7(d) were to be determined by pro rata
allocation (even if the Participants were treated as one entity for such
purpose) or by any other method of allocation which does not take into account
the equitable considerations referred to herein. The amount paid or payable by
an indemnified party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Section 7(d) shall be
deemed to include, for purposes of this Section 7(d), any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7(d), no Participant shall be required to contribute
any amount in excess of the amount by which the total price at which the Notes
purchased by it were resold exceeds the amount of any damages which such has
otherwise paid or become liable to pay by reason of any untrue or alleged untrue
statement or omission or alleged omission. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation. The Participant's obligations to contribute as
provided in this Section 7(d) are several in proportion to their respective
purchase obligations and not joint.
8. Rule 144A
Whether or not required by the rules and regulations of the SEC
and until such time as none of the Notes remain outstanding, the Company
covenants to furnish to the holders of the Notes, (i) all annual and quarterly
financial information that would be required to be contained in a filing with
the SEC on Forms 20-F and 10-Q if the Company were required to file such Forms
(which financial statements shall be prepared in accordance with U.S. GAAP),
including a "Management's Discussion and Analysis of Financial Condition and
Results of Operations" and, with respect to the annual financial information, a
report thereon by the Company's certified independent accountants and (ii) all
current reports that would be required
24
to be filed with the SEC on Form 8-K if the Company were required to file such
reports. Such quarterly financial information shall be furnished to the holders
of the Notes within 45 days following the end of each fiscal quarter of the
Company, and such annual financial information shall be furnished within 90 days
following the end of each fiscal year of the Company. Such annual financial
information shall include the geographic segment financial information required
to be disclosed by the Company under Item 101(d) of Regulation S-K under the
Securities Act. The Company will also be required (a) to file with the Trustee
copies of such reports and documents within 15 days after the date on which the
Company files such reports and documents with the SEC or the date on which the
Company would be required to file such reports and documents if the Company were
so required, and (b) if filing such reports and documents with the SEC is not
accepted by the SEC or is prohibited under the Exchange Act, to supply at the
Company's cost copies of such reports and documents to any prospective holder
promptly upon request. In addition, the Company covenants to furnish to the
holders of the Notes and to prospective investors, upon the request of such
holder, any information required to be delivered pursuant to Rule 144A(d)(4)
under the Securities Act so long as the Notes are not freely transferable under
the Securities Act.
9. Underwritten Registrations
If any of the Transfer Restricted Securities covered by any Shelf
Registration Statement are to be sold in an underwritten offering, the
investment banker or investment bankers and manager or managers that will manage
the offering will be selected by the Holders of a majority in aggregate
principal amount of such Transfer Restricted Securities included in such
offering and shall be reasonably acceptable to the Company.
No Holder of Transfer Restricted Securities may participate in
any underwritten registration hereunder unless such Holder (a) agrees to sell
such Holder's Transfer Restricted Securities on the basis provided in any
underwriting arrangements approved by the Persons entitled hereunder to approve
such arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
10. Miscellaneous
(a) No Inconsistent Agreements. The Company has not, as of the
date hereof, nor will it, after the date of this Agreement, enter into any
agreement with respect to any of its securities that is inconsistent with the
rights granted to the Holders of Transfer Restricted Securities in this
Agreement or otherwise conflicts with the provisions hereof. The Company will
not enter into any agreement with respect to any of its securities which will
grant to any Person piggy-back registration rights with respect to the Exchange
Offer Registration Statement or the Shelf Registration Statement.
(b) Adjustments Affecting Transfer Restricted Securities. The
Company shall not, directly or indirectly, take any action with respect to the
Transfer Restricted
25
Securities as a class that would adversely affect the ability of the Holders of
Transfer Restricted Securities to include such Transfer Restricted Securities in
a registration undertaken pursuant to this Agreement.
(c) Amendments and Waivers. The provisions of this Agreement may
not be amended, modified or supplemented, and waivers or consents to departures
from the provisions hereof may not be given, otherwise than with the prior
written consent of (A) the Holders of not less than a majority in aggregate
principal amount of any series of the then outstanding Transfer Restricted
Securities with respect to such series of Transfer Restricted Securities and (B)
in circumstances that would adversely affect the Participating Broker-Dealers,
the Participating Broker-Dealers holding not less than a majority in aggregate
principal amount of any series of the Exchange Notes held by all Participating
Broker-Dealers with respect to such series of Exchange Notes; provided, however,
that Section 7 and this Section 10(c) may not be amended, modified or
supplemented without the prior written consent of each Holder and each
Participating Broker-Dealer (including any Person who was a Holder or
Participating Broker-Dealer of Transfer Restricted Securities or Exchange Notes,
as the case may be, disposed of pursuant to any Registration Statement).
Notwithstanding the foregoing, a waiver or consent to depart from the provisions
hereof with respect to a matter that relates exclusively to the rights of
Holders of any series of Transfer Restricted Securities whose securities are
being sold pursuant to a Registration Statement and that does not directly or
indirectly affect, impair, limit or compromise the rights of other Holders of
Transfer Restricted Securities may be given by Holders of at least a majority in
aggregate principal amount of the Transfer Restricted Securities being sold by
such Holders pursuant to such Registration Statement; provided, however, that
the provisions of this sentence may not be amended, modified or supplemented
except in accordance with the provisions of the immediately preceding sentence.
(d) Notices. All notices and other communications (including,
without limitation, any notices or other communications to the Trustee) provided
for or permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, next-day air courier or facsimile:
(1) if to a Holder of the Transfer Restricted Securities
or any Participating Broker-Dealer, at the most current address of such
Holder or Participating Broker-Dealer, as the case may be, set forth on
the records of the registrar under the Indenture, with a copy in like
manner to the Representatives as follows:
▇▇▇▇▇▇ Brothers Inc.
▇▇▇▇▇▇ Brothers International (Europe)
c/▇ ▇▇▇▇▇▇ Brothers Inc.
Three World ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No: ▇▇▇-▇▇▇-▇▇▇▇
Attention: Syndicate Department
26
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Facsimile No: ▇▇-▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
(2) if to any of the Initial Purchasers, at the addresses
specified in Section 10(d)(1);
(3) if to the Company, as follows:
VersaTel Telecom International N.V.
▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇-▇.▇.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Facsimile No: ▇▇-▇▇-▇▇▇-▇▇-▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇▇
with a copy to:
Shearman & Sterling
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No: 212-848-7179
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇., Esq.
Any such statements, requests, notices or agreements shall take
effect at the time of receipt thereof. The Company shall be entitled to act and
rely upon any request, consent, notice or agreement given or made on behalf of
the Initial Purchasers.
Copies of all such notices, demands or other communications shall
be concurrently delivered by the Person giving the same to the Trustee at the
address and in the manner specified in the Indenture.
(e) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the parties
hereto and the Holders; provided, however, that this Agreement shall not inure
to the benefit of or be binding upon a successor or assign of a Holder unless
and to the extent such successor or assign holds Transfer Restricted Securities.
27
(f) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK
(i) Submission to Jurisdiction; Appointment of Agent for Service;
Waiver. To the fullest extent permitted by applicable law, the Company
irrevocably submits to the non-exclusive jurisdiction of any federal or state
court in the Borough of Manhattan in the City of ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America, in any suit or proceeding based on or
arising under this Agreement, and irrevocably agrees that all claims in respect
of such suit or proceeding may be determined in any such court. The Company, to
the fullest extent permitted by applicable law, irrevocably and fully waives the
defense of an inconvenient forum to the maintenance of such suit or proceeding
and hereby irrevocably designates and appoints CT Corporation System (the
"Authorized Agent"), as its authorized agent upon whom process may be served in
any such suit or proceeding. The Company represents that it has notified the
Authorized Agent of such designation and appointment and that the Authorized
Agent has accepted the same in writing. The Company hereby irrevocably
authorizes and directs its Authorized Agent to accept such service. The Company
further agrees that service of process upon its Authorized Agent and written
notice of said service to the Company mailed by first class mail or delivered to
its Authorized Agent shall be deemed in every respect effective service of
process upon the Company in any such suit or proceeding. Nothing herein shall
affect the right of any person to serve process in any other manner permitted by
law. The Company agrees that a final action in any such suit or proceeding shall
be conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other lawful manner. Notwithstanding the foregoing, any action against
the Company arising out of or based on this Agreement or the transactions
contemplated hereby may also be instituted by any of the Initial Purchasers,
their officers and employees or any person who controls any of the Initial
Purchasers within the meaning of the Securities Act in any competent court in
The Netherlands, and the Company expressly accepts the jurisdiction of any such
court in any such action.
The Company hereby irrevocably waives, to the extent permitted by
law, any immunity to jurisdiction to which it may otherwise be entitled
(including, without limitation, immunity to pre-judgment attachment,
post-judgment attachment and execution) in any legal suit, action or proceeding
against it arising out of or based on this Agreement or the transactions
contemplated hereby.
28
The provisions of this Section 10(i) are intended to be effective
upon the execution of this Agreement without any further action by the Company
or the Initial Purchasers and the introduction of a true copy of this Agreement
into evidence shall be conclusive and final evidence as to such matters.
(j) Currency Indemnity. The Company shall indemnify each
Participant against any loss incurred by it as a result of any judgment or order
being given or made and expressed and paid in a currency (the "Judgment
Currency") other than U.S. dollars and as a result of any variation as between
(i) the rate of exchange at which the U.S. dollar amount is converted into the
Judgment Currency for the purpose of such judgment or order and (ii) the spot
rate of exchange in New York, New York at which such Participant on the date of
payment of such judgment or order is able to purchase U.S. dollars with the
amount of the Judgment Currency actually received by such Participant. If the
U.S. dollars so purchased are greater than the amount originally due to such
Participant hereunder, such Participant agrees to pay to the Company an amount
equal to the excess of the U.S. dollars so purchased over the amount originally
due to such Participant hereunder. The foregoing shall constitute a separate and
independent obligation of the Company and the Participant, as the case may be,
and shall continue in full force and effect notwithstanding any such judgment or
order as aforesaid. The term "spot rate of exchange" shall include any premiums
and costs of exchange payable in connection with the purchase of, or conversion
into, U.S. dollars.
(k) Severability. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.
(l) Securities Held by the Company or Its Affiliates. Whenever
the consent or approval of Holders of a specified percentage of Transfer
Restricted Securities is required hereunder, Transfer Restricted Securities held
by the Company or its "affiliates" (as such term is defined in Rule 405 under
the Securities Act) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
(m) Third Party Beneficiaries. Holders of Transfer Restricted
Securities and Participating Broker-Dealers are intended third party
beneficiaries of this Agreement, and this Agreement may be enforced by such
Persons.
(n) Entire Agreement. This Agreement, together with the Purchase
Agreement, the Unit Agreement, the Warrant Agreement, the Escrow Agreement and
the
29
Indenture, is intended by the parties as a final and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject
matter contained herein and therein and any and all prior oral or written
agreements, representations, or warranties, contracts, understandings,
correspondence, conversations and memoranda between the Initial Purchasers on
the one hand and the Company on the other, or between or among any agents,
representatives, parents, subsidiaries, affiliates, predecessors in interest or
successors in interest with respect to the subject matter hereof and thereof are
merged herein and replaced hereby.
30
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first written above.
VERSATEL TELECOM INTERNATIONAL
N.V.
By: /s/ R. ▇▇▇▇ ▇▇▇▇▇
------------------------------
Name: R. ▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
▇▇▇▇▇▇ BROTHERS INC.
▇▇▇▇▇▇ BROTHERS INTERNATIONAL
(EUROPE)
PARIBAS CORPORATION
By: ▇▇▇▇▇▇ BROTHERS INC.
On behalf of itself and the other Initial
Purchasers
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------
Authorized Representative