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Exhibit 10.3
ADVANCE\y 72
WARRANT AGREEMENT
Dated as of May 27, ▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇.▇.
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ TRUST COMPANY OF NEW YORK
as Warrant Agent
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ADVANCE\y 72
WARRANT AGREEMENT
WARRANT AGREEMENT
TABLE OF CONTENTS
Page
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SECTION 1. Defined Terms 2
1.1 Certain Definitions 2
1.2 Rules of Construction 5
SECTION 2. Issuance, Form, Execution, Delivery and Registration
of Warrant Certificates 6
2.1 Issuance of Warrants 6
2.2 Execution of Warrant Certificates 6
2.3 Countersignature and Delivery 6
2.4 Form of Warrant Certificates 7
2.5 Restrictive Legends 8
2.6 Temporary Warrant Certificates 9
2.7 Separation of Warrants and Notes 10
2.8 Registration, Registration of Transfers and Exchanges 10
2.9 Book-Entry Provisions for Global Warrants 11
2.10 Special Transfer Provisions 13
2.11 Offices for Exercise, etc. 15
2.12 Cancellation 16
2.13 Lost, Stolen, Destroyed, Defaced or Mutilated Warrant
Certificates 16
SECTION 3. Terms of Warrants; Exercise of Warrants 17
3.1 Exercise Period 17
3.2 Manner of Exercise 17
3.3 Issuance of Warrant Shares 18
3.4 Fractional Warrant Shares 19
3.5 Sufficient Authorized Share Capital 19
3.6 Payment of Taxes 19
SECTION 4. Adjustment of Exercise Price and Number of Warrant Shares
Issuable 19
4.1 Adjustments 19
4.2 Superseding Adjustment 23
4.3 Minimum Adjustment 23
4.4 Notice of Adjustment 24
4.5 Notice of Certain Transactions 24
4.6 Adjustment to Warrant Certificate 25
4.7 Challenge to Good Faith Determination 25
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4.8 Treasury Stock 25
SECTION 5. Holders' Rights 25
5.1 Registration Rights 25
5.2 Piggyback Registration Right 26
5.3 Repurchase Offer 27
5.4 Change of Control Equity Offer 27
5.5 Drag Along Rights 28
SECTION 6. Warrant Agent 28
6.1 Appointment of Warrant Agent 28
6.2 Rights and Duties of Warrant Agent 28
6.3 Individual Rights of Warrant Agent 30
6.4 Warrant Agent's Disclaimer 30
6.5 Compensation and Indemnity 30
6.6 Successor Warrant Agent 31
SECTION 7. Miscellaneous 32
7.1 Reports 32
7.2 Notices to the Company and Warrant Agent 33
7.3 Supplements and Amendments 34
7.4 Severability 35
7.5 Successors 35
7.6 Termination 35
7.7 Governing Law 35
7.8 Submission to Jurisdiction; Appointment of Agent
for Service; Waiver. 35
7.9 Benefits of This Agreement 36
7.10 Counterparts 36
7.11 Table of Contents 36
Exhibits
EXHIBIT A - Form of Face of Global Warrant Certificate
EXHIBIT B - Form of Face of Definitive Warrant Certificate
EXHIBIT C - Form of Transfer Certificate for Transfer from Rule ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ to Regulation S Global Warrant
EXHIBIT D - Form of Transfer Certificate for Transfer from Regulation S Global
Warrant to Rule 144A Global Warrant
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Exhibit 10.3
WARRANT AGREEMENT dated as of May 27, 1998 (the "Agreement") between
VersaTel Telecom B.V., a company organized under the laws of The Netherlands
(the "Company"), and the United States Trust Company of New York, as warrant
agent (in such capacity, the "Warrant Agent").
W I T N E S S E T H :
WHEREAS, the Company entered into a purchase agreement dated May 20,
1998 (the "Purchase Agreement") with ▇▇▇▇▇▇ Brothers Inc. (the "Initial
Purchaser") pursuant to which the Company has agreed to sell to the Initial
Purchaser 225,000 units (the "Units") consisting of $1,000 principal amount of
its 13 1/4% Senior Notes due 2008 (the "Notes") to be issued under an indenture
dated as of May 27, 1998 (the "Indenture") by and between the Company and the
United States Trust Company of New York, as Trustee (in such capacity, the
"Trustee"), and one warrant (the "Warrants") to purchase 6.667 ordinary shares
of the Company, par value NLG 0.10 per share (the "Ordinary Shares"); and
WHEREAS, prior to the separation of the Notes from the Warrants
issued as part of the Units as described herein, the Units shall be issued
pursuant to the Unit Agreement dated as of May 27, 1998 (the "Unit Agreement")
by and among the Company, the Warrant Agent, the Trustee and United States Trust
Company of New York as unit agent (the "Unit Agent"); and
WHEREAS, the Warrants and the Notes shall not be separately
transferable until such time on or after the Separation Date (as defined below);
and
WHEREAS, the Company desires the Warrant Agent to assist the Company
in connection with the issuance, exchange, cancellation, replacement and
exercise of the Warrants, and in this Agreement wishes to set forth, among other
things, the terms and conditions on which the Warrants may be issued, exchanged,
cancelled, replaced and exercised; and
WHEREAS, the Company desires the Warrant Agent to act on behalf of
the Company, and the Warrant Agent is willing so to act, in connection with the
issuance of Warrant Certificates (as defined below) and other matters as
provided herein;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, and for the purpose of defining the respective
rights and obligations of the Company, the Warrant Agent and the Holders (as
defined below), the parties hereto agree as follows:
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1. SECTION DEFINED TERMS.
1.1 Certain Definitions. As used in this Agreement, the following terms shall
have the following respective meanings:
"Affiliate" means, as applied to any Person, any other Person
directly or indirectly controlling, controlled by, or under direct or
indirect common control with, such Person. For purposes of this
definition, "control" (including, with correlative meanings, the terms
"controlling," "controlled by" and "under common control with"), as
applied to any Person, is defined to mean the possession, directly or
indirectly, of the power to direct or cause the direction of the
management and policies of such Person, whether through the ownership of
voting securities, by contract or otherwise.
"Bankruptcy Law" means (i) for purposes of the Company,
Faillissementswet and any similar statute, regulation or provision of any
other jurisdiction in which the Company is organized or conducting
business and (ii) for purposes of the Unit Agent, Title 11, U.S. Code or
any similar United States Federal, state or foreign law for the relief of
creditors.
"Board" means the Board of Supervisory Directors of the Company.
"Business Day" means a day other than a Saturday, Sunday or other
day on which commercial banks in New York City and Amsterdam, The
Netherlands are authorized or required by law to close.
"Cashless Exercise" has the meaning specified in Section 3.2 hereof.
"Cashless Exercise Ratio" means a fraction, the numerator of which
is the excess of the Current Market Value (as defined below) per Ordinary
Share on the Exercise Date over the Exercise Price per share as of the
Exercise Date and the denominator of which is the Current Market Value per
Ordinary Share on the Exercise Date.
"Cedel" means Cedel Bank, societe anonyme.
"Combination" has the meaning specified in Section 4.1(d) hereof.
"Commission" means the Securities and Exchange Commission.
"Current Market Value," per Ordinary Share or any other security at
any date, means (i) if the security is not registered under the Exchange
Act, the fair market value of the security (without any discount for lack
of liquidity, the amount of such security offered to be purchased or the
fact that such securities may represent a minority interest in a private
company or a company under the control of another Person) as determined in
good faith by the Board and certified in a board resolution that is
delivered to the Warrant Agent, and determined to be fair, from a
financial point of view, to the holders of such security or another
security exercisable for such security, by an Independent Financial Expert
(as set forth in such Independent Financial Expert's written fairness
opinion); or (ii) if the security is registered under the Exchange Act,
the average of the last reported sale price of the security (or the
equivalent in an over-the-counter market) for each Business Day (as
defined herein) during the period commencing 15 Business Days before such
date and ending on the date one day prior to such date, or if the security
has been
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registered under the Exchange Act for less than 15 consecutive Business
Days before such date, the average of the daily closing bid prices (or
such equivalent) for all of the Business Days before such date for which
daily closing bid prices are available (provided, however, that if the
closing bid price is not determinable for at least 10 Business Days in
such period, the "Current Market Value" of the security shall be
determined as if the security were not registered under the Exchange Act).
The Company shall pay the fees and expenses of any Independent Financial
Expert in the determination of Current Market Value.
"Definitive Warrants" means Warrants in definitive registered form
substantially in the form of Exhibit B.
"DTC" or "Depositary" means The Depository Trust Company or its
successors.
"DWAC" means the Depositary/Deposit Withdraw at Custodian system.
"Euroclear" means ▇▇▇▇▇▇ Guaranty Trust Company of New York
(Brussels office), as operator of the Euroclear System.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
(or any successor act), and the rules and regulations promulgated
thereunder.
"Exercise Date" means the date on which a Warrant is exercised by
the Holder thereof.
"Exercisability Date" means the date of the closing of an Initial
Public Offering (as defined below) by the Company.
"Exercise Price" means the purchase price per Warrant Share to be
paid upon the exercise of each Warrant, which price shall be NLG 5.10 per
Warrant Share as adjusted in accordance with the terms hereof.
"Expiration Date" means May 15, 2008.
"Holder" means the registered holder of a Warrant.
"Independent Financial Expert" means an internationally recognized
investment bank that does not (and whose directors, executive officers and
5% stockholders do not) have a direct or indirect financial interest in
the Company or any of its subsidiaries or Affiliates, which has not been
for at least five years, and at the time it is called upon to give
independent financial advice to the Company is not (and none of its
directors, executive officers or 5% stockholders is), a promoter,
director, or officer of the Company or any of its subsidiaries or
Affiliates. The Independent Financial Expert may be compensated and
indemnified by the Company for opinions or services it provides as an
Independent Financial Expert.
"Initial Public Offering" means the first time a registration
statement filed under the Securities Act (other than the Shelf
Registration Statement) respecting an offering,
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whether primary or secondary, of Ordinary Shares representing at least 15%
of the total issued and outstanding Ordinary Shares of the Company which
is underwritten on a firmly committed or best efforts basis, is declared
effective and the securities so registered are issued and sold.
"Issue Date" means May 27, 1998, the date on which the Warrants are
first issued.
"Majority Holders" means the Holders of a majority of the then
outstanding Warrants.
"Nasdaq National Market" means the Nasdaq Stock Market National
Market.
"Offering" means the offering of the Units, the Notes and the
Warrants.
"Officer" means the principal executive officer, the principal
financial officer, the treasurer or the principal accounting officer of
the Company.
"Officers' Certificate" means a certificate signed on behalf of the
Company by two officers of the Company, one of whom must be the principal
executive officer, the principal financial officer, the treasurer or the
principal accounting officer of the Company.
"Ordinary Shares" has the meaning specified in the Preamble hereto.
"Person" means any individual, corporation, partnership, joint
venture, limited liability company, association, joint-stock company,
trust, unincorporated organization, government or any agency or political
subdivision thereof or any other entity.
"Qualified Institutional Buyer" or "QIB" shall have the meaning
specified in Rule 144A under the Securities Act.
"Regulation S" means Regulation S (including any successor
regulation thereto) under the Securities Act, as it may be amended from
time to time.
"Repurchase Price" means, in respect of a Warrant, (i) the excess of
the Current Market Value of an Ordinary Share of the Company over the
Exercise Price per Ordinary Share, multiplied by (ii) the number of
Warrant Shares that would be obtained if one Warrant was exercised on the
date of repurchase.
"Resale Restriction Termination Date" has the meaning specified in
Section 2.5 hereof.
"Restricted Period" has the meaning specified in Section 2.4 hereof.
"Right" has the meaning specified in Section 4.1(g) hereof.
"Rule 144A" means Rule 144A (including any successor regulation
thereto) under the Securities Act, as it may be amended from time to time.
"Securities Act" means the Securities Act of 1933, as amended.
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"Separation Date" has the meaning specified in Section 2.7 hereof.
"Successor Company" has the meaning specified in Section 4.1(d)
hereof.
"Unit" means the $1,000 principal amount of Notes and one Warrant
that comprise each Unit.
"Unit Certificates" means the certificates evidencing the Units to
be delivered pursuant to the Purchase Agreement.
"Warrant Agent" means the United States Trust Company of New York,
or the successor or successors of such Warrant Agent appointed in
accordance with the terms hereof.
"Warrant Certificates" means the certificates evidencing the
Warrants to be delivered pursuant to this Agreement, substantially in the
form of Exhibits A and B hereto.
"Warrant Registrar" has the meaning specified in Section 2.8 hereof.
"Warrant Shares" has the meaning specified in Section 2.1 hereof.
"Warrants" shall mean the Warrants issued hereunder and all warrants
issued upon transfer, division or combination of, or in substitution for,
any thereof. All Warrants shall at all times be identical as to terms and
conditions and date, except as to the number of Ordinary Shares for which
they may be exercised.
1.2 Rules of Construction. Unless the text otherwise required.
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning assigned to
it in accordance with United States generally accepted accounting
principles ("U.S. GAAP") in The Netherlands as in effect from time
to time;
(iii) "or" is not exclusive;
(iv) "including" means including, without limitation; and
(v) words in the singular include the plural and words in the plural
include the singular.
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2. SECTION ISSUANCE, FORM, EXECUTION, DELIVERY AND REGISTRATION OF WARRANT
CERTIFICATES.
2.1 Issuance of Warrants. Warrants comprising part of the Units shall be
originally issued in connection with the issuance of the Units and such Warrants
shall not be separately transferable from the Notes until on or after the
Separation Date as provided in Section 2.7 hereof.
Each Warrant Certificate shall evidence the number of Warrants
specified therein, and each Warrant evidenced thereby shall represent the right,
subject to the provisions contained herein and therein, to purchase from the
Company (and the Company shall issue and sell to such holder of the Warrant)
6.667 Ordinary Shares of the Company (the shares purchasable upon exercise of a
Warrant being hereinafter referred to as the "Warrant Shares," subject to
adjustment as provided in Section 4 hereof).
2.2 Execution of Warrant Certificates. The Warrant Certificates shall be
executed on behalf of the Company by two Officers of the Company. Such
signatures may be the manual or facsimile signatures of the present or any
future such officers. Typographical and other minor errors or defects in any
such reproduction of any such signature shall not affect the validity or
enforceability of any Warrant Certificate that has been duly countersigned and
delivered by the Warrant Agent.
In case any officer of the Company who shall have signed any of the
Warrant Certificates shall cease to be such officer before the Warrant
Certificate so signed shall be countersigned and delivered by the Warrant Agent
or disposed of by the Company, such Warrant Certificate nevertheless may be
countersigned and delivered or disposed of as though the Person who signed such
Warrant Certificate had not ceased to be such officer of the Company; and any
Warrant Certificate may be signed on behalf of the Company by such Persons as,
at the actual date of the execution of such Warrant Certificate, shall be the
proper officers of the Company, although at the date of the execution and
delivery of this Agreement any such Person was not such an officer.
2.3 Countersignature and Delivery. Subject to the immediately following
paragraph, Warrant Certificates shall be countersigned by manual signature and
dated the date of countersignature by the Warrant Agent and shall not be valid
for any purpose unless so countersigned and dated. The Warrant Certificates
shall be numbered and shall be registered in the Warrant Register.
Upon the receipt by the Warrant Agent of a written order of the
Company set forth in an Officers' Certificate, specifying the amount of Warrants
to be countersigned, whether the Warrants are to be Global Warrants or
Definitive Warrants, whether the Warrants are to bear the Private Placement
Legend set forth in Section 2.5, the date of such Warrants and such other
information as the Warrant Agent may reasonably request, the Warrant Agent is
authorized, to countersign the Warrant Certificates upon receipt from the
Company at any time and from time to time of the Warrant Certificates, duly
executed as provided in Section 2.2 hereof, and deliver them, without any
further action by the Company. Such countersignature shall be by a duly
authorized signatory of the Warrant Agent (although it shall not be necessary
for the same signatory to sign all Warrant Certificates).
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In case any authorized signatory of the Warrant Agent who shall have
countersigned any of the Warrant Certificates shall cease to be such authorized
signatory before the Warrant Certificate shall be disposed of by the Company,
such Warrant Certificate nevertheless may be delivered or disposed of as though
the Person who countersigned such Warrant Certificate had not ceased to be such
authorized signatory of the Warrant Agent; and any Warrant Certificate may be
countersigned on behalf of the Warrant Agent by such Persons as, at the actual
time of countersignature of such Warrant Certificates, shall be the duly
authorized signatories of the Warrant Agent, although at the time of the
execution and delivery of this Agreement any such Person is not such an
authorized signatory.
The Warrant Agent's countersignature on all Warrant Certificates
shall be in substantially the form set forth in Exhibit A and B hereto.
2.4 Form of Warrant Certificates. Warrants offered and sold to Qualified
Institutional Buyers in reliance upon Rule 144A in the United States of America
("Rule 144A Warrants") shall be issued on the Issue Date in the form of one or
more global Warrants in registered global form ("Rule 144A Global Warrants").
Rule 144A Global Warrants shall be deposited with the Warrant Agent, as
custodian for, and registered in the name of DTC or its nominee, duly executed
by the Company and countersigned by the Warrant Agent as provided herein;
provided until such time as the Warrants Separate from the Notes, the Rule 144A
Global Warrants shall be registered in the name of the Unit Agent and shall be
represented by a Global Unit deposited with the Unit Agent as custodian for and
registered in the name of DTC or its nominee.
Warrants offered and sold outside the United States of America in
reliance on Regulation S ("Regulation S Warrants") shall be issued on the Issue
Date in the form of one or more global Warrants in registered global form (the
"Regulation S Global Warrants"). Regulation S Global Warrants shall be the
Warrant Agent as custodian for, and registered in the name of, DTC or its
nominee, for credit to the subscribers' respective accounts at Euroclear and
Cedel, duly executed by the Company and countersigned by the Warrant Agent as
provided herein; provided that until such time as the Warrants Separate from the
Notes, the Regulation S Global Warrants shall be registered in the name of the
Unit Agent and shall be represented by a Global Unit deposited with the Unit
Agent as custodian for and registered in the name of DTC or its nominee, for
credit to the subscribers' respective accounts at Euroclear and Cedel. During a
period of 40 days commencing on the latest of the commencement of the Offering
and the Issue Date (such period through and including such 40th day, the
"Restricted Period"), beneficial interests in the Regulation S Global Warrants
may be held only through Euroclear or Cedel (as indirect participants in DTC).
The Rule 144A Global Warrants and the Regulation S Global Warrants are sometimes
collectively herein referred to as the "Global Warrants".
The Warrant Certificates evidencing the Global Warrants to be
delivered pursuant to this Agreement shall be substantially in the form set
forth in Exhibit A attached hereto. Such Global Warrants shall represent such of
the outstanding Warrants as shall be specified therein and each shall provide
that it shall represent the aggregate amount of outstanding Warrants from time
to time endorsed thereon and that the aggregate amount of outstanding
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Warrants represented thereby may from time to time be decreased or increased, as
appropriate. Any endorsement of a Global Warrant to reflect the amount of any
increase or decrease in the amount of outstanding Warrants represented thereby
shall be made by the Warrant Agent and DTC in accordance with instructions given
by the holder thereof. The Depository Trust Company shall act as the Depository
(the "Depository") with respect to the Global Warrants until a successor, if
any, shall be appointed by the Company. Except as provided in Section 2.9(b),
owners of beneficial interests in a Global Warrant will not be entitled to
receive physical delivery of Definitive Warrants.
2.5 Restrictive Legends.
Global Warrants shall bear the following legend (the "Private
Placement Legend") on the face thereof:
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR OTHER
SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT
(A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN
AN "OFFSHORE TRANSACTION" PURSUANT TO RULE 904 OF REGULATION S, (2) AGREES THAT
IT WILL NOT PRIOR TO (X) THE DATE WHICH IS TWO YEARS (OR SUCH SHORTER PERIOD OF
TIME AS PERMITTED BY RULE 144(k) UNDER THE SECURITIES ACT OR ANY SUCCESSOR
PROVISION THEREUNDER) AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF (OR OF
ANY PREDECESSOR OF THIS SECURITY) OR THE LAST DAY ON WHICH THE COMPANY OR ANY
AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF
THIS SECURITY) AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE
LAWS (THE "RESALE RESTRICTION TERMINATION DATE"), OFFER, SELL OR OTHERWISE
TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO
LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A
PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND
SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE
MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
(3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED
A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND; PROVIDED THAT THE COMPANY
AND THE WARRANT AGENT SHALL HAVE THE RIGHT PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER (I) PURSUANT TO CLAUSE (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION
OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM,
AND (II) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A
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CERTIFICATION OR TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS
SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE WARRANT AGENT, THIS
LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION,"
"UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION
S UNDER THE SECURITIES ACT.
The Global Warrants shall also bear the following legend on the face
thereof: UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY ("DTC") TO THE COMPANY OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
REPRESENTATIVE OF DTC AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN SECTIONS 2.9 AND 2.10 OF THE WARRANT AGREEMENT.
2.6 Temporary Warrant Certificates. Pending the preparation of Definitive
Warrant Certificates, the Company may execute, and the Warrant Agent shall
countersign and deliver, temporary Warrant Certificates, which are printed,
lithographed, typewritten or otherwise produced, substantially of the tenor of
the Definitive Warrant Certificates in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Warrant Certificates may determine, as evidenced by
their execution of such Warrant Certificates.
If temporary Warrant Certificates are issued, the Company will cause
Definitive Warrant Certificates to be prepared without unreasonable delay. After
the preparation of Definitive Warrant Certificates, the temporary Warrant
Certificates shall be exchangeable for Definitive Warrant Certificates upon
surrender of the temporary Warrant Certificates at any office or agency
maintained by the Company for that purpose pursuant to Section 2.11 hereof.
Subject to the provisions of Section 3.6 hereof, such exchange shall be without
charge to the holder. Upon surrender for cancellation of any one or more
temporary Warrant Certificates, the Company shall execute, and the Warrant Agent
shall countersign and deliver in exchange therefor, one or more Definitive
Warrant Certificates representing in the aggregate a like number
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of Warrants. Until so exchanged, the holder of a temporary Warrant Certificate
shall in all respects be entitled to the same benefits under this Agreement as a
holder of a Definitive Warrant Certificate.
2.7 Separation of Warrants and Notes. The Notes and Warrants will not be
separately transferable until the Separation Date. The "Separation Date" will be
the earliest of (i) November 15, 1998, (ii) the commencement of an exchange
offer or the effectiveness of a Shelf Registration Statement with respect to the
Notes, (iii) the Exercisability Date and (iv) such other date as the Initial
Purchaser will determine in its sole discretion. The surrender of a Unit
Certificate for separate Warrant and Note certificates is herein referred to as
a "Separation" and the related Warrants being referred to as "Separated." Upon
Separation of the Warrants and the Notes, the Global Warrants shall be
transferred to and deposited with the Warrant Agent, as custodian for, and
registered in the name of DTC or its nominee, duly executed by the Company and
countersigned by the Warrant Agent as provided herein.
2.8 Registration, Registration of Transfers and Exchanges. The Company will
keep, at the office or agency maintained by the Company for such purpose, a
register or registers in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of, and registration
of transfer and exchange of, Warrants as provided herein. Each person designated
by the Company from time to time as a Person authorized to register the transfer
and exchange of the Warrants is hereinafter called, individually and
collectively, the "Warrant Registrar." The Company hereby initially appoints the
Warrant Agent as Warrant Registrar. Upon written notice to the Warrant Agent and
any acting Warrant Registrar, the Company may appoint a successor Warrant
Registrar for such purposes.
The Company will at all times designate one Person (who may be the
Company and who need not be a Warrant Registrar) to act as repository of a
master list of names and addresses of the holders of Warrants (the "Warrant
Register"). The Warrant Agent will act as such repository unless and until some
other Person is, by written notice from the Company to the Warrant Agent and the
Warrant Registrar, designated by the Company to act as such. In the event the
Warrant Registrar is not the repository, the Company shall cause the Warrant
Registrar to furnish to such repository, on a current basis, such information as
to all registrations of transfer and exchanges effected by the Warrant
Registrar, as may be necessary to enable such repository to maintain the Warrant
Register on as current a basis as is practicable.
When Warrants are presented to the Warrant Agent with a request to
register the transfer of the Warrants or exchange Warrants for an equal number
of Warrants of other authorized denominations, the Warrant Agent shall register
the transfer or make the exchange as requested if the requirements under this
Warrant Agreement as set forth herein for such transactions are met; provided,
however, that the Warrants presented or surrendered for registration of transfer
or exchange shall be duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Company and the Warrant Agent, duly
executed by the holder thereof or by his attorney, duly authorized in writing.
Furthermore, any Holder of a Global Warrant shall, by acceptance of
such Global Warrant, agree that transfers of beneficial interests in such Global
Warrant may be effected only through a book-entry system maintained by the
Holder of such Global Warrant (or its agent), and that ownership of a beneficial
interest in the Warrant shall be required to be reflected in a book entry.
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All Warrants issued upon any registration of transfer or exchange of
Warrants shall be the valid obligations of the Company, evidencing the same
obligations, and entitled to the same benefits under this Agreement, as the
Warrants surrendered upon such registration of transfer or exchange.
2.9 Book-Entry Provisions for Global Warrants.
(a) Registered Owner of Global Warrants. Each Global Warrant initially shall (i)
be registered in the name of DTC for such global Warrant or the nominee of the
Depositary, (ii) be delivered to the Warrant Agent as custodian for such
Depositary and (iii) bear legends as set forth in Section 2.5.
Members of, or participants in, DTC ("Agent Members") shall have no
rights under this Agreement with respect to any Global Warrant held on their
behalf by DTC, or the Warrant Agent as its custodian, or under the Global
Warrant, and DTC may be treated by the Company, the Warrant Agent and any agent
of the Company or the Warrant Agent as the absolute owner of such Global Warrant
for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Company, the Warrant Agent or any agent of the Company or the
Warrant Agent from giving effect to any written certification, proxy or other
authorization furnished by DTC or shall impair, as between DTC and its Agent
Members, the operation of customary practices governing the exercise of the
rights of a Holder of any Warrant.
(b) Transfers of Global Warrants. Transfers of a Global Warrant shall be limited
to transfers of such Global Warrant in whole, but not in part, to DTC, its
successors or their respective nominees. Interests of beneficial owners in a
Global Warrant may be transferred in accordance with the rules and procedures of
DTC and the provisions of Section 2.9. If required to do so pursuant to any
applicable law or regulation, beneficial owners may obtain Warrants in
definitive form, in exchange for their beneficial interests in a Global Warrant
upon written request in accordance with DTC's and the Warrant Registrar's
procedures. In addition, Definitive Warrants shall be transferred to all
beneficial owners in exchange for their beneficial interests in a Global Warrant
if (i) DTC (A) notifies the Company that it is unwilling or unable to continue
as depository for the Global Warrant and the Company thereupon fails to appoint
a successor depository upon 90 days or (B) has ceased to be a clearing agency
registered under the Exchange Act and the Company thereupon fails to appoint a
successor depository upon 90 days, (ii) upon the continuance of an Event of
Default under the Indenture or (iii) the Company, at its option, notifies the
Warrant Agent in writing that it elects to cause issuance of Definitive
Warrants. In addition, beneficial interests in a Global Warrant may be exchanged
for Definitive Warrants upon request but only upon at least 20 days' prior
written notice given to the Warrant by or on behalf of DTC in accordance with
customary procedures. In all cases, Definitive Warrants delivered in exchange
for any Global Warrants or beneficial interest therein will be registered in
names, and issued in any approved denominations, requested by or on behalf of
DTC (in accordance with its customary procedures) and will bear, the Private
Placement Legend set forth in Section 2.5, if applicable, unless the Company
determines otherwise in compliance with applicable law.
(c) In connection with any transfer of a portion of the beneficial interest in a
Global Warrant pursuant to subsection (b) of this Section 2.9 to beneficial
owners who are
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required to hold Definitive Warrants, the Warrant Registrar shall reflect on its
books and records the date and a decrease in the amount of such Global Warrant
in an amount equal to the amount of the beneficial interest in the Global
Warrant to be transferred, and the Company shall execute, and the Warrant Agent
shall countersign and deliver, one or more Definitive Warrants of like tenor and
amount.
(d) In connection with the transfer of an entire Global Warrant to beneficial
owners pursuant to subsection (b) of this Section 2.9, such Global Warrant shall
be deemed to be surrendered to the Warrant Agent for cancellation, and the
Company shall execute, and the Warrant Agent shall countersign and deliver, to
each beneficial owner identified by DTC in exchange for its beneficial interest
in such Global Warrant, an equal aggregate amount of Definitive Warrants of
authorized denominations.
(e) Any Definitive Warrant delivered in exchange for an interest in a Global
Warrant pursuant to subsection (c) or subsection (d) of this Section shall,
except as otherwise provided herein, bear the Private Placement Legend set forth
in Section 2.5, if applicable.
(f) The Holder of a Global Warrant may grant proxies and otherwise authorize any
Person, including Agent Members and Persons that may hold interests through
Agent Members, to take any action which a Holder is entitled to take under this
Agreement or the Warrants.
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2.10 Special Transfer Provisions.
(a) Rule ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ to Regulation S Global Warrant. If a Holder of a
beneficial interest in the Rule 144A Global Warrant deposited with DTC wishes at
any time to exchange its interest in such Rule 144A Global Warrant for an
interest in the Regulation S Global Warrant, or to transfer its interest in such
Rule 144A Global Warrant to a Person who wishes to take delivery thereof in the
form of an interest in such Regulation S Global Warrant, such Holder may,
subject to the rules and procedures of DTC and to the requirements set forth in
the following sentence, exchange or cause the exchange or transfer or cause the
transfer of such interest for an equivalent beneficial interest in such
Regulation S Global Warrant. Upon receipt by the Warrant Agent, as Transfer
Agent, of (1) instructions given in accordance with DTC's procedures from or on
behalf of a Holder of a beneficial interest in the Rule ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
directing the Warrant Agent (via DWAC), as Transfer Agent, to credit or cause to
be credited a beneficial interest in the Regulation S Global Warrant in an
amount equal to the beneficial interest in the Rule ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ to be
exchanged or transferred, (2) a written order given in accordance with DTC's
procedures containing information regarding the Euroclear or Cedel account to be
credited with such increase and the name of such account, and (3) a certificate
in the form of Exhibit C given by the Holder of such beneficial interest stating
that the exchange or transfer of such interest has been made pursuant to and in
accordance with Rule 904 of Regulation S or Rule 144 under the Securities Act,
the Warrant Agent, as Transfer Agent, shall promptly deliver appropriate
instructions to DTC (via DWAC), its nominee, or the custodian for DTC, as the
case may be, to reduce or reflect on its records a reduction of the Rule 144A
Global Warrant by the amount of the beneficial interest in such Rule 144A Global
Warrant to be so exchanged or transferred from the relevant participant, and the
Warrant Agent, as Transfer Agent, shall promptly deliver appropriate
instructions (via DWAC) to DTC, its nominee, or the custodian for DTC, as the
case may be, concurrently with such reduction, to increase or reflect on its
records an increase of the amount of such Regulation S Global Warrant by the
amount of the beneficial interest in such Rule 144A Global Warrant to be so
exchanged or transferred, and to credit or cause to be credited to the account
of the Person specified in such instructions (who shall be the agent member of
Euroclear or Cedel, or both, as the case may be) a beneficial interest in such
Regulation S Global Warrant equal to the reduction in the amount of such Rule
144A Global Warrant.
(b) Regulation S Global Warrant to Rule 144A Global Warrant. If a Holder of a
beneficial interest in the Regulation S Global Warrant wishes at any time to
exchange its interest in such Regulation S Global Warrant for an interest in the
Rule ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, or to transfer its interest in such Regulation S
Global Warrant to a Person who wishes to take delivery thereof in the form of an
interest in such Rule ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, such Holder may, subject to the rules
and procedures of Euroclear or Cedel and DTC, as the case may be, and to the
requirements set forth in the following sentence, exchange or cause the exchange
or transfer or cause the transfer of such interest for an equivalent beneficial
interest in such Rule 144A Global Warrant. Upon receipt by the Warrant Agent, as
Transfer Agent, of (l) instructions given in accordance with the procedures of
Euroclear or Cedel and DTC, as the case may be, from or on behalf of a
beneficial owner of an interest in the Regulation S Global Warrant directing the
Warrant Agent, as Transfer Agent, to credit or cause to be credited a beneficial
interest in the Rule 144A Global Warrant in an amount equal to the beneficial
interest in the Regulation S Global Warrant to be exchanged or transferred, (2)
a written order given in accordance with the
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procedures of Euroclear or Cedel and DTC, as the case may be, containing
information regarding the account with DTC to be credited with such increase and
the name of such account, and (3) prior to the expiration of the Restricted
Period, a certificate in the form of Exhibit C given by the Holder of such
beneficial interest and stating that the Person transferring such interest in
such Regulation S Global Warrant reasonably believes that the Person acquiring
such interest in such Rule ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ is a Qualified Institutional
Buyer and is obtaining such beneficial interest in a transaction meeting the
requirements of Rule 144A and any applicable securities laws of any state of the
United States or any other jurisdiction, the Warrant Agent, as Transfer Agent,
shall promptly deliver (via DWAC) appropriate instructions to DTC, its nominee,
or the custodian for DTC, as the case may be, to reduce or reflect on its
records a reduction of the Regulation S Global Warrant by the amount of the
beneficial interest in such Regulation S Global Warrant to be exchanged or
transferred, and the Warrant Agent, as Transfer Agent, shall promptly deliver
(via DWAC) appropriate instructions to DTC, its nominee, or the custodian for
DTC, as the case may be, concurrently with such reduction, to increase or
reflect on its records an increase of the amount of such Rule 144A Global
Warrant by the amount of the beneficial interest in such Regulation S Global
Warrant to be so exchanged or transferred, and to credit or cause to be credited
to the account of the Person specified in such instructions a beneficial
interest in such Rule 144A Global Warrant equal to the reduction in the amount
of such Regulation S Global Warrant. After the expiration of the Restricted
Period, the certification requirement set forth in clause (3) of the second
sentence of this Section 2.10(b) will no longer apply to such transfers.
(c) Any beneficial interest in one of the Global Warrants that is transferred to
a Person who takes delivery in the form of an interest in the other Global
Warrant will, upon transfer, cease to be an interest in such Global Warrant and
become an interest in the other Global Warrant and, accordingly, will thereafter
be subject to all transfer restrictions and other procedures applicable to
beneficial interests in such other Global Warrant for as long as it remains such
an interest.
(d) Other Exchanges. In the event that a Global Warrant is exchanged for
Definitive Warrants in registered form pursuant to Section 2.9(b), such Warrants
may be exchanged or transferred for one another only in accordance with such
procedures as are substantially consistent with the provisions of Sections
2.10(a) and (b) above (including the certification requirements intended to
ensure that such exchanges or transfers comply with Rule 144, Rule 144A or
Regulation S, as the case may be) and as may be from time to time adopted by the
Company and the Warrant Agent.
(e) Private Placement Legend. Upon the transfer, exchange or replacement of
Warrants not bearing the Private Placement Legend, the Warrant Registrar shall
deliver Warrants that do not bear the Private Placement Legend. Upon the
transfer, exchange or replacement of Warrants bearing the Private Placement
Legend, the Warrant Registrar shall deliver only Warrants that bear the Private
Placement Legend unless there is delivered to the Warrant Registrar an Opinion
of Counsel reasonably satisfactory to the Company and the Warrant Agent to the
effect that neither such legend nor the related restrictions on transfer are
required in order to maintain compliance with the provisions of the Securities
Act.
(f) General. The provisions hereof shall be qualified in their entirety by any
applicable securities laws of the United States and any other applicable
jurisdiction and by the procedures of any applicable clearing agency, in each
case as in effect from time to time, and all such laws and clearing procedures
shall be deemed to be incorporated herein by reference. By its acceptance of any
Warrant bearing the Private Placement Legend, each Holder of such a Warrant
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acknowledges the restrictions on transfer of such Warrant set forth in this
Agreement and in the Private Placement Legend and agrees that it will transfer
such Warrant only as provided in this Agreement. The Warrant Agent shall not
register a transfer of any Warrant Certificate unless such transfer complies
with the restrictions on transfer of such Warrant Certificate set forth in this
Warrant Agreement.
(g) Resale Restriction Termination Date. The Company shall deliver to the
Warrant Agent an Officer's Certificate setting forth the dates on which the
Resale Restriction Termination Date terminates.
The Warrant Registrar shall retain copies of all letters, notices
and other written communications received pursuant to Section 2.9 or this
Section 2.10. The Company shall have the right to inspect and make copies of all
such letters, notices or other written communications at any reasonable time
upon the giving of reasonable written notice to the Warrant Registrar.
(i) No Obligation of the Warrant Agent. The Warrant Agent shall have no
responsibility or obligation to any beneficial owner of a Global Warrant, a
member of, or a participant in DTC or other Person with respect to any ownership
interest in the Warrants, with respect to the accuracy of the records of DTC or
its nominee or of any participant or member thereof or with respect to the
delivery to any participant, member, beneficial owner or other Person (other
than DTC) of any notice (including any notice of redemption) or the payment of
any amount, under or with respect to such Warrants. All notices and
communications with respect to the Warrants shall be given to the Holders and
all payments in respect of the Warrants represented by the Global Warrant shall
be made by wire transfer of immediately available funds to the accounts
specified by the Holder of the Global Warrant. With respect to Definitive
Warrants, the Company will make all payments by wire transfer of immediately
available funds to the accounts specified by the Holders thereof or, if no such
account is specified, by mailing a check to each such Holder's registered
address. The rights of beneficial owners in any Global Warrant shall be
exercised only through DTC subject to the applicable rules and procedures of
DTC. The Warrant Agent may rely and shall be fully protected and indemnified
pursuant to Section 6.5 in relying upon information furnished by DTC with
respect to any beneficial owners, its members and participants.
(ii) The Warrant Agent shall have no obligation or duty to monitor, determine
or inquire as to compliance with any restrictions on transfer imposed under this
Agreement or under applicable law with respect to any transfer of any interest
in any Warrant (including without limitation any transfers between or among DTC
participants, members or beneficial owners in any Global Warrant) other than to
require delivery of such certificates and other documentation of evidence as are
expressly required by, and to do so if and when expressly required by, the terms
of this Agreement, and to examine the same to determine substantial compliance
as to form with the express requirements hereof.
2.11 Offices for Exercise, etc. So long as any of the Warrants remain
outstanding, the Company will designate and maintain in the Borough of
Manhattan, The City of New York: (a) an office or agency where the Warrant
Certificates may be presented for exercise, (b) an office or agency where the
Warrant Certificates may be presented for registration of transfer and for
exchange (including the exchange of temporary Warrant Certificates for
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Definitive Warrant Certificates pursuant to Section 2.6 hereof), and (c) an
office or agency where notices and demands to or upon the Company in respect of
the Warrants or of this Agreement may be served. The Company may from time to
time change or rescind such designation, as it may deem desirable or expedient;
provided, however, that an office or agency shall at all times be maintained in
the Borough of Manhattan, The City of New York, as provided in the first
sentence of this Section. In addition to such office or offices or agency or
agencies, the Company may from time to time designate and maintain one or more
additional offices or agencies within or outside The City of New York, where
Warrant Certificates may be presented for exercise or for registration of
transfer or for exchange, and the Company may from time to time change or
rescind such designation, as it may deem desirable or expedient. The Company
will give to the Warrant Agent and the Warrant Registrar written notice of the
location of any such office or agency and of any change of location thereof. The
Company hereby designates the Warrant Agent at its corporate trust office in the
Borough of Manhattan, The City of New York (the "Warrant Agent Office"), as the
initial agency maintained for each such purpose. In case the Company shall fail
to maintain any such office or agency or shall fail to give such notice of the
location or of any change in the location thereof, presentations and demands may
be made and notice may be served at the Warrant Agent Office and the Company
appoints the Warrant Agent as its agent to receive all such presentations,
surrenders, notices and demands.
2.12 Cancellation. All Warrant Certificates surrendered for the purpose of
exercise (in whole or in part), exchange, substitution or transfer shall, if
surrendered to the Company or to any of its agents, be delivered to the Warrant
Agent for cancellation or in cancelled form, or if surrendered to the Warrant
Agent shall be cancelled by it, and no Warrant Certificates shall be issued in
lieu thereof except as expressly permitted by any of the provisions of this
Agreement. If the Company purchases or acquires Warrants and if the Company so
chooses, the Company may deliver to the Warrant Agent for cancellation and
retirement, and the Warrant Agent shall so cancel and retire (subject to the
record retention provisions of the Exchange Act), the Warrant Certificates
evidencing said Warrants. The Warrant Agent shall destroy such cancelled Warrant
Certificates, and in such case shall upon the written request of the Company
deliver a certificate of destruction thereof to the Company. The Warrant Agent
shall account promptly to the Company with respect to Warrants exercised and
concurrently pay to the Company all monies received by the Warrant Agent for the
purchase of the Warrant Shares through the exercise of such Warrants.
2.13 Lost, Stolen, Destroyed, Defaced or Mutilated Warrant Certificates. Upon
receipt by the Company and the Warrant Agent (or any agent of the Company or the
Warrant Agent, if requested by the Company) of evidence satisfactory to them of
the loss, theft, destruction, defacement, or mutilation of any Warrant
Certificate and of indemnity satisfactory to them (which may include posting a
bond) and, in the case of mutilation or defacement, upon surrender thereof to
the Warrant Agent for cancellation, then, in the absence of notice to the
Company or the Warrant Agent that such Warrant Certificate has been acquired by
a bona fide purchaser or holder in due course, the Company shall execute, and an
authorized signatory of the Warrant Agent shall manually countersign and
deliver, in exchange for or in lieu of the lost, stolen, destroyed, defaced or
mutilated Warrant Certificate, a new Warrant Certificate representing a like
number of Warrants, bearing a number or other distinguishing symbol not
contemporaneously outstanding. Upon the issuance of any new Warrant Certificate
under this Section, the Company may require the payment from the holder of such
Warrant Certificate of a sum sufficient to cover any tax, stamp tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Warrant Agent and the Warrant
Registrar) in connection therewith. Every substitute Warrant Certificate
executed and delivered pursuant to this Section in lieu of any lost, stolen or
destroyed Warrant
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Certificate shall constitute an additional contractual obligation of the
Company, whether or not the lost, stolen or destroyed Warrant Certificate shall
be at any time enforceable by anyone, and shall be entitled to the benefits of
(but shall be subject to all the limitations of rights set forth in) this
Agreement equally and proportionately with any and all other Warrant
Certificates duly executed and delivered hereunder. The provisions of this
Section 2.13 are exclusive with respect to the replacement of lost, stolen,
destroyed, defaced or mutilated Warrant Certificates and shall preclude (to the
extent lawful) any and all other rights or remedies notwithstanding any law or
statute existing or hereafter enacted to the contrary with respect to the
replacement of lost, stolen, destroyed, defaced or mutilated Warrant
Certificates.
The Warrant Agent is hereby authorized to countersign in accordance
with the provisions of this Agreement, and deliver the new Warrant Certificates
required pursuant to the provisions of this Section.
3. SECTION TERMS OF WARRANTS; EXERCISE OF WARRANTS.
3.1 Exercise Period. Subject to the terms of this Agreement, each Warrant Holder
shall have the right, which may be exercised commencing at the opening of
business on the Exercisability Date and until 5:00 p.m., New York City time on
the Expiration Date, to receive from the Company the number of fully paid and
nonassessable Warrant Shares which the Holder may at the time be entitled to
receive on exercise of such Warrants and payment of the Exercise Price then in
effect for such Warrant Shares. Each Warrant not exercised prior to 5:00 p.m.,
New York City time, on the Expiration Date shall become void and all rights
thereunder and all rights in respect thereof under this Agreement shall cease as
of such time.
Until the Separation Date, each $1,000 principal amount of Notes,
and Warrants which comprise each Unit, may not be separately transferred or
exchanged. The Warrant Agent shall coordinate its activities hereunder with the
Trustee under the Indenture and the Unit Agent under the Unit Agreement, and may
rely upon information provided by such Trustee regarding ownership or transfer
of the Notes and/or by the Unit Agent regarding ownership or transfer of the
Units.
The Company shall give notice not less than 90, and not more than
120, days prior to the Expiration Date to the Holders of the outstanding
Warrants to the effect that the Warrants will terminate and become void as of
5:00 p.m., New York City time, on the Expiration Date; provided, however, that
the failure by the Company to give such notice as provided in this Section shall
not affect such termination and becoming void of the Warrants as of 5:00 p.m.,
New York City time, on the Expiration Date.
3.2 Manner of Exercise. A Warrant may be exercised at any time on or after the
Exercisability Date and prior to the Expiration Date upon (i) surrender to the
Warrant Agent of the Warrant Certificates, together with the form of election to
purchase properly completed and executed by the Holder thereof and (ii) payment
to the Warrant Agent, for the account of the Company, of the Exercise Price for
each Ordinary Share or other securities issuable upon exercise of such Warrants.
The Exercise Price may be paid (i) in cash or by certified or official bank
check or by wire transfer to an account designated by the Company for such
purpose (a
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"Cash Exercise") or (ii) without the payment of cash, by reducing the number of
Ordinary Shares that would be obtainable upon the exercise of a Warrant and
payment of the Exercise Price in cash so as to yield a number of Ordinary Shares
upon the exercise of such Warrant equal to the product of (a) the number of
Ordinary Shares for which such Warrant is exercisable as of the date of exercise
(if the Exercise Price were being paid in cash) and (b) the Cashless Exercise
Ratio. An exercise of a Warrant in accordance with clause (ii) of the
immediately preceding sentence is herein called a "Cashless Exercise." In the
event of a Cashless Exercise of Warrants, the Company will purchase from the
holder thereof such number of Warrants as would have entitled the holder thereof
to receive the excess of the number of Ordinary Shares deliverable upon a Cash
Exercise over the number of Ordinary Shares deliverable upon a Cashless
Exercise, for a purchase price equal to the Exercise Price multiplied by the
excess of the number of Ordinary Shares purchasable upon a Cash Exercise over
the number of Ordinary Shares purchasable upon a Cashless Exercise. The Company
agrees to offset the purchase price referred to in the immediately preceding
sentence with the obligation to pay the Exercise Price in respect of the
Ordinary Shares deliverable upon a Cashless Exercise. Upon surrender of a
Warrant Certificate representing more than one Warrant in connection with the
holder's option to elect a Cashless Exercise, the number of Ordinary Shares
deliverable upon a Cashless Exercise shall be equal to the number of Ordinary
Shares issuable upon the exercise of Warrants that the holder specifies are to
be exercised pursuant to a Cashless Exercise multiplied by the Cashless Exercise
Ratio. All provisions of this Agreement shall be applicable with respect to a
surrender of a Warrant Certificate pursuant to a Cashless Exercise for less than
the full number of Warrants represented thereby. Upon surrender of the Warrant
Certificate and payment of the Exercise Price in accordance with this Agreement,
the Company will issue Ordinary Shares of the Company for each Warrant evidenced
by such Warrant Certificate, subject to adjustment as described herein. Whenever
there occurs a Cashless Exercise, the Company shall deliver to the Warrant Agent
a certificate setting forth the Cashless Exercise Ratio. The Warrant Agent shall
be entitled to rely on such certificate and shall be under no duty or
responsibility with respect to any such certificate, except to exhibit the same
from time to time, to any Holder desiring an inspection thereof during
reasonable business hours. The Warrant Agent shall not at any time be under any
duty or responsibility to any Holder to determine whether the Cashless Exercise
Ratio is correct or with respect to the method employed in determining the
Cashless Exercise Ratio or the validity or value of any Ordinary Shares.
3.3 Issuance of Warrant Shares. Subject to Section 2.13, upon the surrender of
Warrant Certificates and payment of the Exercise Price, as set forth above, the
Company shall issue Ordinary Shares in such name or names as the Holder may
designate, for the number of full Warrant Shares so purchased upon the exercise
of such Warrants or other securities or property to which it is entitled,
registered or otherwise to the Person or Persons entitled to receive the same,
together with cash as provided in Section 3.4 in respect of any fractional
Warrant Shares otherwise issuable upon such exercise. Such Ordinary Shares shall
be deemed to have been issued and any Person so designated shall be deemed to
have become a Holder of record of such Warrant Shares as of the date of the
surrender of such Warrant Certificates and payment of the per share Exercise
Price or upon a Cashless Exercise.
The Company hereby agrees that no service charge will be made for
registration of transfer or exchange upon surrender of any Warrant Certificate
at the office of the Warrant Agent maintained for that purpose. Holders may be
required to make payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration or
transfer or exchange of Warrant Certificates.
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3.4 Fractional Warrant Shares. The Company shall not be required to issue
fractional Warrant Shares on the exercise of Warrants. If more than one Warrant
shall be exercised in full at the same time by the same Holder, the number of
full Warrant Shares which shall be issuable upon such exercise shall be computed
on the basis of the aggregate number of Warrant Shares purchasable pursuant
thereto. If any fraction of a Warrant Share would, except for the provisions of
this Section 3.4, be issuable on the exercise of any Warrant (or specified
portion thereof), the Company may, at its option, pay an amount in cash equal to
the Current Market Value for one Warrant Share on the Business Day immediately
preceding the date the Warrant is exercised, multiplied by such fraction,
computed to the nearest whole Dutch guilder or Euro, as applicable.
3.5 Sufficient Authorized Share Capital.
The Company has and will maintain an authorized share capital
sufficient for the issuance of such number of Ordinary Shares as will be
issuable upon the exercise of all outstanding Warrants. Such Ordinary Shares,
when issued and paid for in accordance with the Warrant Agreement, will be duly
and validly issued, fully paid and nonassessable, free of preemptive rights and
free from all liens, charges and security interests with respect to the issue
thereof.
3.6 Payment of Taxes. The Company will pay all documentary stamp taxes
attributable to the initial issuance of the Warrants and the Warrant Shares
issuable upon the exercise of Warrants; provided, however, that the Company
shall not be required to pay any tax or taxes which may be payable in respect of
any transfer involved in the issue of any Warrant Certificates or Warrant Shares
in a name other than that of the Holder of a Warrant Certificate surrendered
upon the exercise of a Warrant, and the Company shall not be required to issue
or deliver such Warrant Certificates unless or until the Person or Persons
requesting the issuance thereof shall have paid to the Company the amount of
such tax or shall have established to the satisfaction of the Company that such
tax has been paid.
4. SECTION ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF WARRANT SHARES ISSUABLE.
4.1 Adjustments. The Exercise Price and the number of Warrant Shares purchasable
upon the exercise of Warrants shall be subject to adjustment from time to time
as follows:
(a) Changes in Ordinary Shares. In the event that at any time or from time to
time after the date hereof the Company shall (i) pay a dividend or make a
distribution on its Ordinary Shares in Ordinary Shares or other shares of
capital stock, (ii) subdivide its outstanding Ordinary Shares into a larger
number of Ordinary Shares, (iii) combine its outstanding Ordinary Shares into a
smaller number of Ordinary Shares or (iv) increase or decrease the number of
Ordinary Shares outstanding by reclassification of its Ordinary Shares, then the
number of Ordinary Shares purchasable upon exercise of each Warrant immediately
after the happening of such event shall be adjusted (including by adjusting the
definition of "Warrant Shares") so that, after giving effect to such adjustment,
the Holder of each Warrant shall be entitled to receive the
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number of Ordinary Shares upon exercise that such Holder would have owned or
have been entitled to receive had such Warrants been exercised immediately prior
to the happening of the events described above (or, in the case of a dividend or
distribution of Ordinary Shares, immediately prior to the record date therefor).
An adjustment made pursuant to this Section 4.1(a) shall become effective
immediately after the effective date, retroactive to the record date therefor in
the case of a dividend or distribution in Ordinary Shares, and shall become
effective immediately after the effective date in the case of a subdivision,
combination or reclassification.
(b) Cash Dividends and Other Distributions. In case at any time or from time to
time after the date hereof the Company shall distribute to Holders of Ordinary
Shares (i) any dividend or other distribution of cash, evidences of its
indebtedness, shares of its capital stock or any other properties or securities
or (ii) any options, warrants or other rights to subscribe for or purchase any
of the foregoing (other than, in each case set forth in (i) and (ii), (x) any
dividend or distribution described in Section 4.1(a) or (y) any rights, options,
warrants or securities described in Section 4.1(c)) then the number of Warrant
Shares purchasable upon the exercise of each Warrant shall be increased to a
number determined by multiplying the number of Ordinary Shares issuable
immediately prior to the record date upon exercise of each Warrant by a
fraction, the numerator of which shall be the sum of (x) any cash distributed
per Warrant Share and (y) the Current Market Value of the portion, if any, of
the distribution applicable to one Warrant Share consisting of evidences of
indebtedness, shares of stock, securities, other property, warrants, options or
subscription of purchase rights and the denominator of which shall be the
Current Market Value of the Ordinary Shares comprising one Warrant Share
immediately after such dividend or other distribution. Such adjustment shall be
made whenever any distribution is made and shall become effective as of the date
of distribution, retroactive to the record date for any such distribution;
provided, however, that the Company is not required to make an adjustment
pursuant to this Section 4.1(b) if at the time of such distribution the Company
makes the same distribution to Holders of Warrants as it makes to holders of
Ordinary Shares pro rata based on the number of Ordinary Shares for which such
Warrants are exercisable (whether or not currently exercisable). No adjustment
shall be made pursuant to this Section 4.1(b) which shall have the effect of
decreasing the number of Warrant Shares purchasable upon exercise of each
Warrant.
(c) Rights Issue. In the event that at any time or from time to time after the
date hereof the Company shall issue, sell, distribute or otherwise grant any
rights to subscribe for or to purchase, or any options or warrants for the
purchase of, or any securities convertible or exchangeable into, Ordinary Shares
to all holders of Ordinary Shares, entitling such holders to subscribe for or
purchase Ordinary Shares or stock or securities convertible into Ordinary Shares
within 60 days after the record date for such issuance, sale, distribution or
other grant, as the case may be, and the sum of (a) the offering price of such
right, option, warrant or other security (on a per share basis) and (b) any
subscription, purchase, conversion or exchange price per share of Ordinary
Shares (the "Consideration") is lower at the record date for such issuance than
the then Current Market Value per share of such Ordinary Shares, the number of
Ordinary Shares thereafter purchasable shall be increased to a number determined
by multiplying the number of Ordinary Shares issuable immediately prior to the
record date upon exercise of each Warrant by a fraction, the numerator of which
shall be the number of Ordinary Shares outstanding on the date of issuance of
such rights, options, warrants or securities plus the number of additional
Ordinary Shares offered for subscription or purchase or into or for which such
securities are convertible or exchangeable, and the denominator of which shall
be the number of Ordinary Shares outstanding on the date of issuance of such
rights, options, warrants or securities plus the total number of Ordinary Shares
which could be purchased at the Current Market Value with the aggregate of the
Consideration with respect to such issuance, sale, distribution or other grant.
Such adjustment
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shall be made whenever such rights, options or warrants are issued and shall
become effective retroactively immediately after the record date for the
determination of stockholders entitled to receive such rights, options, warrants
or securities; provided however, that the Company is not required to make an
adjustment pursuant to this Section 4.1(c) if the Company shall make the same
distribution to Holders of Warrants. No adjustment shall be made pursuant to
this Section 4.1(c) which shall have the effect of decreasing the number of
Ordinary Shares purchasable upon exercise of each Warrant.
If the Company at any time shall issue two or more securities as a
unit and one or more of such securities shall be rights, options or warrants for
or securities convertible or exchangeable into, Ordinary Shares subject to this
Section 4.1(c), the consideration allocated to each such security shall be
determined in good faith by the Board.
(i) Combination; Liquidation. Except as provided in clause (ii) below, in the
event of certain consolidations, mergers or demergers of the Company, or the
sale of all or substantially all of the assets of the Company to another Person
(a "Combination"), each Warrant will thereafter be exercisable for the right to
receive the kind and amount of shares of stock or other securities or property
to which such holder would have been entitled as a result of such Combination
had the Warrants been exercised immediately prior thereto. Unless clause (ii) is
applicable to a Combination, if any Warrants shall be outstanding after a
Combination, the Company shall provide that the surviving or acquiring Person
(the "Successor Company") in such Combination will enter into an agreement with
the Warrant Agent confirming the Holders' rights pursuant to this Section 4.1(d)
and providing for adjustments, which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Section 4. The provisions of
this Section 4.1(d) shall similarly apply to successive Combinations involving
any Successor Company.
(ii) In the event of (A) a Combination, and, in connection therewith, the
consideration payable to the holders of Ordinary Shares in exchange for their
shares is payable solely in cash or (B) a dissolution, liquidation or winding-up
of the Company, then the holders of the Warrants will be entitled to receive
distributions on an equal basis with the holders of Ordinary Shares or other
securities issuable upon exercise of the Warrants, as if the Warrants had been
exercised immediately prior to such event, less the Exercise Price. Upon receipt
of such payment, if any, the Warrants will expire and the rights of holders
thereof will cease.
(iii) In the case of any such Combination, the surviving or acquiring Person as
described in this Section 4.1(d) and, in the event of any dissolution,
liquidation or winding-up of the Company, the Company, shall deposit promptly
with the Warrant Agent the funds, if any, necessary to pay to the holders of the
Warrants the amounts to which they are entitled as described above. After such
funds and the surrendered Warrant Certificates are received, the Warrant Agent
shall make payment to the Holders by delivering a check, or by wire transfer of
same-day funds, in such amount as is appropriate (or, in the case of
consideration other than cash, such other consideration as is appropriate) to
such Person or Persons as it may be directed in writing by the Holders
surrendering such Warrants.
(d) Tender Offers; Exchange Offers. In the event that the Company or any
subsidiary of the Company shall purchase Ordinary Shares pursuant to a tender
offer or an
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exchange offer for a price per Ordinary Share that is greater than the then
Current Market Value per share of Ordinary Shares in effect at the end of the
trading day immediately following the day on which such tender offer or exchange
offer expires, then the Company, or such subsidiary of the Company, shall,
within 10 Business Days of the expiry of such tender offer or exchange offer,
offer to purchase Warrants for comparable consideration per Ordinary Share based
on the number of Ordinary Shares which the Holders of such Warrants would
receive upon exercise of such Warrants (the "Offer") (such amount less the
Exercise Price in respect of such share, the "Per Share Consideration");
provided, however, if a tender offer is made for only a portion of the
outstanding Ordinary Shares, then such offer shall be made for such Ordinary
Shares issuable upon exercise of the Warrants in the same pro rata proportion.
The Offer shall remain open for a period of 20 Business Days
following its commencement and no longer, except to the extent that a longer
period is required by applicable law (the "Offer Period"). No later than five
Business Days after the termination of the Offer Period (the "Purchase Date"),
the Company shall purchase such Warrants for the applicable Per Share
Consideration.
(e) Other Events. If any event occurs as to which the foregoing provisions of
this Section 4 are not strictly applicable or, if strictly applicable, would
not, in the good faith judgment of the Board, fairly and adequately protect the
purchase rights of the Warrants in accordance with the essential intent and
principles of such provisions, then the Board shall make such adjustments in the
application of such provisions, in accordance with such essential intent and
principles, as shall be reasonably necessary, in the good faith opinion of the
Board, to protect such purchase rights as aforesaid.
(f) When No Adjustment Required. Without limiting any other exception contained
in this Section 4.1, and in addition thereto, no adjustment need be made for:
(i) (A) grants to, exercises of Rights by, or issuances of equity
securities to employees, directors, consultants or advisors of the Company
or any of its subsidiaries and (B) exercises of Rights by, or issuances of
equity securities in connection with Rights previously issued to former
employees, former directors, former consultants (to the extent that all
such securities, other than those permitted by clause (ii) below, do not
have an aggregate value in excess of 15% of the equity value of the
Company on a fully diluted basis, as determined in good faith by the
Board). As used herein, "Right" shall mean any right, option, warrant or
convertible or exchangeable security containing the right to subscribe for
or acquire on or more Ordinary Shares, excluding the Warrants;
(ii) options, warrants or other agreements or rights to purchase capital
stock of the Company entered into or granted prior to the date of the
issuance of the Warrants or any issuance of capital stock pursuant thereto
or in connection therewith;
(iii) bona fide public offerings or private placements through investment
banks of international standing;
(iv) rights to purchase Ordinary Shares pursuant to a Company plan for
reinvestment of dividends or interest; and
(v) a change in the par value of Ordinary Shares (including a change from
par value to no par value or vice versa).
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(g) Adjustment of Exercise Price. Whenever the number of Ordinary Shares
purchasable upon the exercise of each Warrant is adjusted, as provided under
this Section 4, the Exercise Price per Ordinary Share payable upon exercise of
such Warrant shall be adjusted (calculated to the nearest NLG 0.01) so that it
shall equal the price determined by multiplying such Exercise Price immediately
prior to such adjustment by a fraction the numerator of which shall be the
number of Ordinary Shares purchasable upon the exercise of each Warrant
immediately prior to such adjustment and the denominator of which shall be the
number of Ordinary Shares so purchasable immediately thereafter. Following any
adjustment to the Exercise Price pursuant to this Section 4, the amount payable,
when adjusted, shall never be less than the par value per Ordinary Share at the
time of such adjustment.
If after an adjustment, a Holder of a Warrant upon exercise of it
may receive shares of two or more classes of capital stock of the Company, the
Company shall determine the allocation of the adjusted Exercise Price between
such classes of shares in a manner that the Board deems fair and equitable to
the Holders. After such allocation, the exercise privilege and the Exercise
Price of each class of shares shall thereafter be subject to adjustment on terms
comparable to those applicable to Ordinary Shares under this Section 4.
Such adjustment shall be made successively whenever any event listed
above shall occur.
4.2 Superseding Adjustment. Upon the expiration of any rights, options,
warrants or conversion or exchange privileges which resulted in the adjustments
pursuant to this Section 4, if any thereof shall not have been exercised, the
number of Warrant Shares purchasable upon the exercise of each Warrant shall be
readjusted as if (A) the only Ordinary Shares issuable upon exercise of such
rights, options, warrants, conversion or exchange privileges were the Ordinary
Shares, if any, actually issued upon the exercise of such rights, options,
warrants or conversion or exchange privileges and (B) Ordinary Shares actually
issued, if any, were issuable for the consideration actually received by the
Company upon such exercise plus the aggregate consideration, if any, actually
received by the Company for the issuance, sale or grant of all such rights,
options, warrants or conversion or exchange privileges whether or not exercised;
provided, however, that no such readjustment shall (except by reason of an
intervening adjustment under Section 4.1(a)) have the effect of decreasing the
number of Warrant Shares purchasable upon the exercise of each Warrant by an
amount in excess of the amount of the adjustment initially made in respect of
the issuance, sale or grant of such rights, options, warrants or conversion or
exchange privileges.
4.3 Minimum Adjustment. The adjustments required by the preceding Sections of
this Section 4 shall be made whenever and as often as any specified event
requiring an adjustment shall occur, except that no adjustment of the number of
Ordinary Shares purchasable upon exercise of Warrants that would otherwise be
required shall be made (except in the case of a subdivision or combination of
Ordinary Shares, as provided for in Section 4.1(a)) unless and until such
adjustment either by itself or with other adjustments not previously made
increases or decreases by at least 1% of the number of Ordinary Shares
purchasable upon exercise of Warrants immediately prior to the making of such
adjustment. Any adjustment representing a change of less than such minimum
amount shall be carried forward and made as soon as such adjustment, together
with other adjustments required by this Section 4 and not
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previously made, would result in a minimum adjustment. For the purpose of any
adjustment, any specified event shall be deemed to have occurred at the close of
business on the date of its occurrence. In computing adjustments under this
Section 4, fractional interests in Ordinary Shares shall be taken into account
to the nearest one-hundredth of a share.
4.4 Notice of Adjustment. Whenever the number of Ordinary Shares and other
property, if any, purchasable upon exercise of Warrants is adjusted, as herein
provided, the Company shall deliver to the Warrant Agent a certificate of a firm
of internationally recognized independent accountants (who may be the regular
accountants employed by the Company) setting forth, in reasonable detail, the
event requiring the adjustment and the method by which such adjustment was
calculated (including a description of the basis on which the Board determined
the fair market value of any evidences of indebtedness, other securities or
property or warrants or other subscription or purchase rights), and specifying
the number of Ordinary Shares purchasable upon exercise of Warrants after giving
effect to such adjustment. The Company shall promptly mail, or at the expense of
the Company cause the Warrant Agent to mail, a copy of such certificate to each
Holder in accordance with Section 7.2. The Warrant Agent shall be entitled to
rely on such certificate and shall be under no duty or responsibility with
respect to any such certificate, except to exhibit the same from time to time,
to any Holder desiring an inspection thereof during reasonable business hours.
The Warrant Agent shall not at any time be under any duty or responsibility to
any Holder to determine whether any facts exist which may require any adjustment
of the number of Ordinary Shares or other stock or property, purchasable on
exercise of the Warrants, or with respect to the nature or extent of any such
adjustment when made, or with respect to the method employed in making such
adjustment or the validity or value of any Ordinary Shares.
4.5 Notice of Certain Transactions. In the event that the Company shall
propose (a) to pay any dividend payable in securities of any class to the
holders of its Ordinary Shares or to make any other distribution to the holders
of its Ordinary Shares, (b) to offer the holders of its Ordinary Shares rights
to subscribe for or to purchase any securities convertible into Ordinary Shares
or Ordinary Shares or shares of stock of any class or any other securities,
rights or options, (c) to effect any reclassification of its Ordinary Shares,
capital reorganization or Combination or (d) to effect the voluntary or
involuntary dissolution, liquidation or winding-up of the Company, or in the
event of a tender offer or exchange offer described in Section 4.1(e), the
Company shall within 5 Business Days of making such proposal, tender offer or
exchange offer send to the Warrant Agent and the Warrant Agent shall within 5
Business Days thereafter send the Holders a notice (in such form as shall be
furnished to the Warrant Agent by the Company) of such proposed action or offer,
such notice to be mailed by the Company, or at the expense of the Company by the
Warrant Agent, to the Holders at their addresses as they appear in the Warrant
Register, which shall specify the record date for the purposes of such dividend,
distribution or rights, or the date such issuance or event is to take place and
the date of participation therein by the holders of Ordinary Shares, if any such
date is to be fixed, and shall briefly indicate the effect of such action on the
Ordinary Shares and on the number and kind of any other shares of stock and on
other property, if any, and the number of Ordinary Shares and other property, if
any, purchasable upon exercise of each Warrant after giving effect to any
adjustment which will be required as a result of such action. Such notice shall
be given by the Company as promptly as possible and, in the case of any action
covered by clause (a) or (b) above, at least 10 Business Days prior to the
record date for determining holders of the Ordinary Shares for purposes of such
action and, in the case of any other such action, at least 20 Business Days
prior to the date of the taking of such proposed action or the date of
participation therein by the holders of Ordinary Shares, whichever shall be the
earlier.
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4.6 Adjustment to Warrant Certificate. The form of Warrant Certificate need not
be changed because of any adjustment made pursuant to this Section 4, and
Warrant Certificates issued after such adjustment may state the same Exercise
Price and the same number of Ordinary Shares as are stated in any Warrant
Certificates issued prior to the adjustment. The Company, however, may at any
time in its sole discretion make any change in the form of Warrant Certificate
that it may deem appropriate to give effect to such adjustments and that does
not affect the substance of the Warrant Certificate, and any Warrant Certificate
thereafter issued or countersigned, whether in exchange or substitution for an
outstanding Warrant Certificate or otherwise, may be in the form as so changed.
4.7 Challenge to Good Faith Determination. Whenever the Board shall be required
to make a determination in good faith of the Current Market Value of any item
under Section 4, such determination may be challenged in good faith by the
Majority Holders.
4.8 Treasury Stock. The sale or other disposition of any issued Ordinary Shares
owned or held by or for the account of the Company shall be deemed an issuance
thereof and a repurchase thereof and designation of such shares as treasury
stock shall be deemed to be a redemption thereof for the purposes of this
Agreement.
5. SECTION Holders' Rights.
5.1 Registration Rights.
(a) Shelf Registration Statement. The Company agrees with and for the benefit of
the Holders of the Warrants, that upon exercise of the Warrants by the Holders
thereof, to file with the Commission a Registration Statement for an offering to
be made on a continuous basis pursuant to Rule 415 covering all of the Warrants
(the "Shelf Registration Statement"). The Shelf Registration Statement shall be
on Form F-1 or another appropriate form permitting registration of such Warrants
for resale by Holders in the manner or manners designated by them (including,
without limitation, one or more underwritten offerings). The Company shall not
permit any securities other than the Warrants to be included in the Shelf
Registration Statement. In addition, the Company agrees that it shall make all
required filings pursuant to all applicable state "Blue Sky" or securities laws.
(b) The Company shall use its best efforts to cause the Shelf Registration
Statement to be declared effective under the Securities Act (and to make any
required filings as may be necessary to comply with all applicable state "Blue
Sky" or securities laws) on or prior to the Exercisability Date and shall cause
such Shelf Registration Statement to remain effective under the Securities Act
(and all applicable state "Blue Sky" or securities laws) until the earlier of
(i) such time as all Warrants have been exercised and (ii) the Expiration Date
(the "Effectiveness Period"), or such shorter period ending when all Warrants
covered by the Shelf Registration Statement have been sold in the manner set
forth and as contemplated in the Shelf Registration Statement; provided the
obligation of the Company to cause the Shelf Registration Statement to be
declared effective with respect to Warrant Shares of any holder who did not
request inclusion of their Warrant Shares in the Initial Public Offering
pursuant to Section 5.2 shall be extended until the date which is 180 days after
the Exercisability Date.
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(c) 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.
(d) 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 requested by
the Holders of a majority of the Warrants covered by such Registration Statement
or by any underwriter of such Warrants based on a reasonable belief that such
supplement or amendment is required by law.
(e) Suspension of Shelf Registration Statement. During any consecutive 365-day
period, the Company shall be entitled to suspend the availability of the Shelf
Registration Statement for up to two 30 consecutive-day periods (except for the
30 consecutive-day period immediately prior to the Expiration Date) if the Board
determines in the exercise of its reasonable judgment that there is a valid
business purpose for such suspension and provides notice that such determination
was made to the holders of the Warrants; provided, however, that in no event
shall the Company be required to disclose the business purpose for such
suspension if the Company determines in good faith that such business purpose
must remain confidential.
(f) Registration Expenses. All expenses incident to the Company's performance of
or compliance with this Section 5.1 will be borne by the Company, including
without limitation: (i) all registration and filing fees and expenses; (ii) all
fees and expenses of compliance with federal securities and state Blue Sky or
securities laws; (iii) all expenses of printing (including printing certificates
for the Warrant Shares and printing of prospectuses), messenger and delivery
services; (iv) all fees and disbursements of counsel for the Company; (v) all
fees and disbursements of independent certified public accountants of the
Company (including the expenses of any special audit and comfort letters
required by or incident to such performance); and (vi) the Company's internal
expenses, the expenses of any annual or other audit and the fees and expenses of
any Person, including special experts, retained by the Company.
(g) Piggyback Registration Right. If the Company proposes to effect an Initial
Public Offering, the Company must, not later than the date of the initial filing
of a registration statement pertaining thereto, provide written notice thereof
to the holders of the Warrants. Each such holder will have the right, within 20
days after receipt of such notice, to request (which request will indicate the
intended method of distribution) that the Company include such holder's Warrant
Shares for sale pursuant to such registration statement.
(h) The Company will include in such Initial Public Offering all the Warrant
Shares for which it receives notice pursuant to Section 5.2(a), unless the
managing underwriter for such Initial Public Offering (the "Managing
Underwriter") determines that, in its opinion, the number of Warrant Shares that
the holders of Warrants (the "Requesting Holders") have requested to be sold in
such Initial Public Offering, plus the total number of Ordinary Shares that the
Company and any other selling stockholders entitled to sell Ordinary Shares in
such Initial Public Offering propose to sell in such Initial Public Offering,
exceed the maximum number of Ordinary Shares that may be distributed without
materially adversely affecting the price, timing or distribution of the Ordinary
Shares to be sold by the Company. In such event, the Company
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will be required to include in such Initial Public Offering only that number of
Ordinary Shares which the Managing Underwriter believes may be sold without
causing such adverse effect in the following order: (i) all the Ordinary Shares
that the Company proposes to sell in such Initial Public Offering and (ii)
Ordinary Shares of the Requesting Holders and all other Ordinary Shares that are
proposed to be sold by any holder of Ordinary Shares on a pro rata basis in an
aggregate number which is equal to the difference between the maximum number of
Ordinary Shares that may be distributed in such Initial Public Offering as
determined by the Managing Underwriter and the number of Ordinary Shares to be
sold in such Initial Public Offering pursuant to clause (i) above. The Company
will have the right to postpone or withdraw any registration statement prior to
the effective date without obligation to any Requesting Holder.
(i) Repurchase Offer. In the event that an Initial Public Offering has not been
completed on or prior to the fifth anniversary of the Issue Date (the
"Triggering Date"), the Company will be required to make an offer to purchase
(the "Repurchase Offer") all outstanding Warrants issued by it in cash at the
Repurchase Price no later than 120 days after the Triggering Date. If an Initial
Public Offering relating to the Company occurs at any time between the
Triggering Date and 90 days after the expiration date for a Repurchase Offer
pursuant to the preceding sentence, the Company will pay to each holder of
Warrants that were purchased in such offer an amount in cash equal to the number
of Warrants purchased multiplied by the excess, if any, of (i) the value, as
determined pursuant to the terms of an Initial Public Offering (net of
applicable underwriting discounts and placement fees) of the number of Warrant
Shares issuable upon the exercise of one Warrant over (ii) the Repurchase Price
paid by the Company for each Warrant in such Repurchase Offer.
(j) The Company will comply, to the extent applicable, with the requirements of
Rule 13e-4 under the Exchange Act and any other applicable securities laws or
regulations in connection with any repurchase offers for Warrants.
(k) Change of Control Equity Offer. If prior to the consummation of an Initial
Public Offering by the Company, a Change of Control (as defined in the
Indenture) occurs pursuant to which a Person (including such Person's Affiliates
and associates), other than a Permitted Holder, becomes the beneficial owner of
more than 50% of the total voting power of the Ordinary Shares of the Company,
and the Company is not eligible to, or elects not to, effect a Drag Along
Purchase, the Company shall make an offer to purchase (the "Change of Control
Equity Offer") any and all of the outstanding Warrants at cash purchase prices
at least equal to the Repurchase Price.
(l) Within 30 days of such Change of Control, the Company shall give notice of
the Change of Control Equity Offer to each holder of Warrants by first class
mail, postage prepaid, which notice shall govern the terms of the Change of
Control Equity Offer and shall (i) set forth the Repurchase Price to be paid for
Warrants tendered in the Change of Control Equity Offer, (ii) include the full
text of the fairness opinion delivered by an internationally recognized
investment bank in connection with the Change of Control, (iii) identify the
date on which the Change of Control Equity Offer will expire (the "Change of
Control Equity Offer Expiration Date"), which date shall not be less than 20
Business Days following the date of commencement of the Change of Control Equity
Offer, which commencement date shall be the date such notice is mailed to
holders of Warrants, (iv) explain the facts and circumstances of the
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Change of Control, (v) include a letter of transmittal which identifies where
Warrant Certificates tendered pursuant to the Change of Control Equity Offer are
to be delivered, (vi) state that, unless the Company defaults in the purchase of
the Warrants tendered pursuant to the Change of Control Equity Offer, Holders of
Warrants so tendered shall have no rights with respect to the Warrants tendered
after the Change of Control Expiration Date and the only remaining right of such
holders with respect thereto is to receive the Repurchase Price therefor
promptly after the Change of Control Equity Offer Expiration Date and (vii) that
holders whose Warrants are tendered for purchase in part only will be issued new
Warrant Certificates representing the number of unpurchased Warrants
surrendered.
(m) On the Change of Control Equity Offer Expiration Date, the Company will (i)
accept for purchase all Warrants tendered pursuant to the Change of Control
Equity Offer, (ii) promptly deliver to tendering holders of Warrants the
respective Repurchase Price therefor and (iii) issue and mail or deliver to
holders tendering a portion of their Warrants new Warrant Certificates
representing the number of Warrants equal to the unpurchased portion of the
Warrants surrendered.
(n) The Company will comply with the requirements of the Exchange Act and other
securities laws and regulations to the extent such laws and regulations are
applicable in connection with the Change of Control Equity Offer. To the extent
the provisions of any securities laws or regulations conflict with the Change of
Control Equity offer provisions of this Agreement, the Company shall comply with
the applicable securities laws and regulations and shall not be deemed to have
breached its obligations hereunder.
5.2 Drag Along Rights. If, prior to the consummation of an Initial Public
Offering, the Board and the holders of a majority of the Ordinary Shares
entitled to vote thereon approve a sale of the Company, the Company shall have
the right to require the holders of the Warrants to sell such Warrants to such
transferee; provided that the consideration to be received by such holders is
the same (in terms of price per share and in all other material respects, but
adjusted, in the case of Warrants, for the Exercise Price therefor) as that to
be received by the other holders and, in any event, shall be cash and/or
securities registered under the Securities Act and listed on a national
securities exchange or authorized for quotation on The Nasdaq Stock Market, Inc.
Any purchase of Warrants pursuant to this paragraph shall be deemed a "Drag
Along Purchase."
6. SECTION Warrant Agent.
6.1 Appointment of Warrant Agent. The Company hereby appoints the Warrant Agent
to act as agent for the Company in accordance with provisions of this Agreement
and the Warrant Agent hereby accepts such appointment. The Company hereby agrees
that so long as any Units remain outstanding, the Warrant Agent may appoint the
Unit Agent to act as its agent with respect to its duties hereunder as provided
in the Unit Agreement.
(a) Rights and Duties of Warrant Agent. In acting under this Warrant Agreement
and in connection with the Warrant Certificates, the Warrant Agent is acting
solely as agent of the Company and does not assume any obligation or
relationship or agency or trust for or with any of the holders of Warrant
Certificates or beneficial owners of Warrants.
(b) The Warrant Agent may consult with counsel satisfactory to it (who may be
counsel for the Company), and the advice of such counsel shall be full and
complete
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authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in accordance with the advice of
such counsel.
(c) The Warrant Agent shall be protected and shall incur no liability for or in
respect of any action taken or thing suffered by it in reliance upon any Warrant
Certificate, certificate of shares, notice, resolution, direction, consent,
certificate, affidavit, statement or other paper or document believed by it to
be genuine and to have been presented or signed by the proper parties.
(d) The Warrant Agent shall be obligated to perform only such duties as are
herein and in the Warrant Certificates specifically set forth and no implied
duties or obligations shall be read into this Agreement or the Warrant
Certificates against the Warrant Agent. The Warrant Agent shall not be under any
obligation to institute any action, suit or legal proceeding or to take any
other action which may tend to involve it in any expense or liability for which
it does not receive indemnity if such indemnity is requested. The Warrant Agent
shall not be accountable or under any duty or responsibility for the use by the
Company of any of the Warrant Certificates countersigned by the Warrant Agent
and delivered by it to the Holders or on behalf of the Holders pursuant to this
Agreement or for the application by the Company of the proceeds of the Warrants.
The Warrant Agent shall have no duty or responsibility in case of any default by
the Company in the performance of its covenants or agreements contained herein
or in the Warrant Certificates or in the case of the receipt of any written
demand from a Holder with respect to such default, including any duty or
responsibility to initiate or attempt to initiate any proceedings at law or
otherwise.
(e) The Warrant Agent shall not at any time be under any duty or responsibility
to any Holder to determine whether any facts exist that may require an
adjustment of the number of Ordinary Shares purchasable upon exercise of each
Warrant or the Exercise Price, or with respect to the nature or extent of any
adjustment when made, or with respect to the method employed, or herein or in
any supplemental agreement provided to be employed, in making the same. The
Warrant Agent shall not be responsible to determine the Cashless Exercise Ratio.
The Warrant Agent shall not be accountable with respect to the validity or value
of any Ordinary Shares or of any securities or property which may at any time be
issued or delivered upon the exercise of any Warrant or upon any adjustment
pursuant to Section 4, and it makes no representation with respect thereto. The
Warrant Agent shall not be responsible for any failure of the Company to make
any cash payment or to issue, transfer or deliver any Ordinary Shares or stock
certificates upon the surrender of any Warrant Certificate for the purpose of
exercise or upon any adjustment pursuant to Section 4, or to comply with any of
the covenants of the Company contained in Section 4.
(f) Before the Warrant Agent acts or refrains from acting with respect to any
matter contemplated by this Warrant Agreement, it may require from the Company:
(i) an Officers' Certificate of the Company stating that, in the opinion
of the signers, all conditions precedent, if any, provided for in
this Warrant Agreement relating to the proposed action have been
complied with; and
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(ii) an opinion of counsel for the Company stating that, in the opinion
of such counsel, all such conditions precedent have been complied
with.
Each Officers' Certificate or opinion of counsel with respect to
compliance with a condition or covenant provided for in this Warrant
Agreement shall include:
(1) a statement that the Person making such certificate
or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he
or she has made such examination or investigation as is
necessary to enable him or her to express an informed opinion
as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether or not, in the opinion of
such Person, such condition or covenant has been complied
with.
provided, however, that with respect to matters of fact an Opinion of Counsel
may rely on an Officers' Certificate or certificates of public officials.
The Warrant Agent shall not be liable for any action it takes or
omits to take in good faith in reliance on any such certificate or opinion.
(g) The Warrant Agent shall keep copies of this Agreement and any notices given
or received hereunder by or from the Company available for inspection by the
Holders during normal business hours at its office. The Company shall supply the
Warrant Agent from time to time with such numbers of copies of this Agreement as
the Warrant Agent may request.
6.2 Individual Rights of Warrant Agent. The Warrant Agent and any stockholder,
director, officer or employee of the Warrant Agent may buy, sell or deal in any
of the Warrants or other securities of the Company or its affiliates or become
pecuniarily interested in transactions in which the Company or its affiliates
may be interested, or contract with or lend money to the Company or its
affiliates or otherwise act as fully and freely as though it were not the
Warrant Agent under this Agreement. Nothing herein shall preclude the Warrant
Agent from acting in any other capacity for the Company or for any other legal
entity.
6.3 Warrant Agent's Disclaimer. The Warrant Agent shall not be responsible for
and makes no representation as to the validity or adequacy of this Agreement or
the Warrant Certificates and it shall not be responsible for any statement in
this Agreement or the Warrant Certificates other than its countersignature
thereon.
6.4 Compensation and Indemnity. The Company shall pay to the Warrant Agent from
time to time such compensation as the Company and the Warrant Agent shall from
time to time agree in writing for its acceptance of this Warrant Agreement and
services hereunder. The Company shall reimburse the Warrant Agent upon request
for all reasonable disbursements, expenses and advances (including reasonable
fees and expenses of counsel) incurred or made by it in addition to the
compensation for its services, except any such
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disbursements, expenses and advances as may be attributable to the Warrant
Agent's or any Agent's negligence or bad faith. Such expenses shall include the
reasonable compensation, disbursements and expenses of the Warrant Agent's
accountants, experts and counsel.
The Company shall indemnify each of the Warrant Agent and any
predecessor Warrant Agent for, and hold them harmless against, any and all loss,
damage, claim, expense or liability including taxes (other than taxes based on
the income of the Warrant Agent) incurred by the Warrant Agent without
negligence, willful misconduct or bad faith on its part in connection with
acceptance of administration of this trust and its duties under this Warrant
Agreement, including the reasonable expenses and attorneys' fees and expenses of
defending itself against any claim of liability arising hereunder. The Warrant
Agent shall notify the Company promptly of any claim asserted against the
Warrant Agent for which it may seek indemnity. However, the failure by the
Warrant Agent to so notify the Company shall not relieve the Company of its
obligations hereunder. The Company shall defend the claim and the Warrant Agent
shall cooperate in the defense (and may employ its own counsel satisfactory to
the Warrant Agent) at the Company's expense. The Warrant Agent may have separate
counsel and the Company shall pay the reasonable fees and expenses of such
counsel. The Company need not pay for any settlement made without its written
consent, which consent shall not be unreasonably withheld. The Company need not
reimburse any expense or indemnify against any loss or liability incurred by the
Warrant Agent as a result of the violation of this Warrant Agreement by the
Warrant Agent if such violation arose from the Warrant Agent's negligence or bad
faith.
To secure the Company's payment obligations in this Section 6.5, the
Warrant Agent shall have a senior lien against all money or property held or
collected by the Warrant Agent in its capacity as Warrant Agent.
When the Warrant Agent incurs expenses or renders services after an
Event of Default specified in the Indenture occurs, the expenses (including the
reasonable fees and expenses of its agents and counsel) and the compensation for
the services shall be preferred over the status of the Holders in a proceeding
under any Bankruptcy Law and are intended to constitute expenses of
administration under any Bankruptcy Law. The Company's obligations under this
Section 6.5 and any claim arising hereunder shall survive the termination of
this Warrant Agreement, the resignation or removal of any Warrant Agent, and any
rejection or termination under any Bankruptcy Law.
(a) Successor Warrant Agent. The Company agrees for the benefit of the Holders
that there shall at all times be a Warrant Agent hereunder until all the
Warrants have been exercised or are no longer exercisable.
(b) The Warrant Agent may at any time resign by giving written notice to the
Company of such intention on its part, specifying the date on which its desired
resignation shall become effective; provided, however, that such date shall not
be less than 30 days after the date on which such notice is given unless the
Company otherwise agrees. The Warrant Agent hereunder may be removed at any time
by the filing with it of an instrument in writing signed by or on behalf of the
Company and specifying such removal and the date when it shall become effective,
which date shall not be less than 30 days after such notice is given unless the
Warrant Agent otherwise agrees. Any removal under this Section 6.6 shall take
effect upon the
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appointment by the Company as hereinafter provided of a successor Warrant Agent
(which shall be a bank or trust company authorized under the laws of the
jurisdiction of its organization to exercise corporate trust powers) and the
acceptance of such appointment by such successor Warrant Agent.
(c) In case at any time the Warrant Agent shall resign, or shall be removed, or
shall become incapable of acting, or shall be adjudged a bankrupt or insolvent,
or shall commence a voluntary case under the Federal bankruptcy laws, as now or
hereafter constituted, or under any other applicable Federal or state
bankruptcy, insolvency or similar law or shall consent to the appointment of or
taking possession by a receiver, custodian, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Warrant Agent or its property or
affairs, or shall make an assignment for the benefit of creditors, or shall
admit in writing its inability to pay its debts generally as they become due, or
shall take corporate action in furtherance of any such action, or a decree or
order for relief by a court having jurisdiction in the premises shall have been
entered in respect of the Warrant Agent in an involuntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or any other applicable
Federal or State bankruptcy, insolvency or similar law; or a decree order by a
court having jurisdiction in the premises shall have been entered for the
appointment of a receiver, custodian, liquidator, assignee, trustee,
sequestrator (or similar official) of the Warrant Agent or of its property or
affairs, or any public officer shall take charge or control of the Warrant Agent
or of its property or affairs for the purpose of rehabilitation, conservation,
winding up of or liquidation, a successor Warrant Agent, qualified as aforesaid,
shall be appointed by the Company by an instrument in writing, filed with the
successor Warrant Agent. Upon the appointment as aforesaid of a successor
Warrant Agent and acceptance by the successor Warrant Agent of such appointment,
the Warrant Agent shall cease to be Warrant Agent hereunder; provided, however,
that in the event of the resignation of the Warrant Agent hereunder, such
resignation shall be effective on the earlier of (i) the date specified in the
Warrant Agent's notice of resignation and (ii) the appointment and acceptance of
a successor Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall execute, acknowledge
and deliver to its predecessor and to the Company an instrument accepting such
appointment hereunder, and thereupon such successor Warrant Agent, without any
further act, deed or conveyance, shall become vested with all the rights and
obligations of such predecessor with like effect as if originally named as
Warrant Agent hereunder, and such predecessor, upon payment of its charges and
disbursements then unpaid, shall thereupon become obligated to transfer, deliver
and pay over, and such successor Warrant Agent shall be entitled to receive, all
monies, securities and other property on deposit with or held by such
predecessor, as Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder may be merged or
consolidated, or any corporation resulting from any merger or consolidation to
which the Warrant Agent shall be a party, or any corporation to which the
Warrant Agent shall sell or otherwise transfer all or substantially all its
corporate trust business, provided that it shall be qualified as aforesaid,
shall be the successor Warrant Agent under this Agreement without the execution
or filing of any paper or any further act on the part of any of the parties
hereto.
7. SECTION Miscellaneous.
7.1 Reports. (a) The Company will file on a timely basis with the Commission, to
the extent such filings are accepted by the Commission and whether or not the
Company has a class of securities registered under the Exchange Act, (i) all
annual and quarterly
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financial statements and other financial information that would be required to
be contained in a filing with the Commission 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 to
be filed with the Commission on Form 8-K if the Company were required to file
such reports. Such quarterly financial information shall be filed with the
Commission 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.
(b) The Company will also be required (a) to file with the Warrant
Agent, and provide to each holder of the Warrants or Warrant Shares, without
cost to such holder, copies of such reports and documents within 15 days after
the date on which the Company files such reports and documents with the
Commission 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 Commission is not accepted by the Commission or
is prohibited under the Exchange Act, to supply at the Company's cost copies of
such reports and documents to any prospective holder of Warrants or Warrant
Shares promptly upon request. In addition, for so long as the Warrants or
Warrant Shares remain outstanding and the Company is not subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act nor exempt
from reporting under Rule 12g3-2(b) of the Exchange Act, the Company shall
furnish to the holders of Warrants and Warrant Shares and to prospective holders
thereof, upon their request, any information required to be delivered pursuant
to Rule 144A(d)(4) under the Securities Act and, to any beneficial holder of
Warrants or Warrant Shares, information of the type that would be filed with the
Commission pursuant to the foregoing provisions, upon the request of any such
holder.
7.2 Notices to the Company and Warrant Agent. Any notice or demand authorized
by this Agreement to be given or made by the Warrant Agent or by the Holder of
any Warrant Certificate to or on the Company shall be sufficiently given or made
(i) five business days after deposited in the mail, first class or registered,
postage prepaid, (ii) one business day after being timely delivered to a
next-day air courier or (ii) when receipt is acknowledged by the addressee, if
telecopied, addressed (until another address is filed in writing by the Company
with the Warrant Agent), as follows:
VersaTel Telecom B.V.
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇▇
Telecopy: ▇▇-▇▇-▇▇▇-▇▇▇▇
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34
with a copy to:
Stibbe Simont ▇▇▇▇▇▇▇ Duhot Lawyers
Strawinskylaan 2001
1077 ZZ Amsterdam
The Netherlands
Attention: Alfons F.J.A. Leitjen
Telecopy: ▇▇-▇▇-▇▇▇-▇▇-▇▇
and
Shearman & Sterling
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
In case the Company shall fail to maintain such office or agency or
shall fail to give such notice of the location or of any change in the location
thereof, presentations may be made and notices and demands may be served at the
principal office of the Warrant Agent.
Any notice pursuant to this Agreement to be given by the Company or
by the Holder(s) of any Warrant Certificate to the Warrant Agent shall be
sufficiently given or made (i) five business days after deposited in the mail,
first-class or registered, postage prepaid, (ii) one business day after being
timely delivered to a next-day air courier or (ii) when receipt is acknowledged
by the addressee, if telecopied, addressed (until another address is filed in
writing by the Warrant Agent with the Company) to the Warrant Agent as follows:
United States Trust Company of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
7.3 Supplements and Amendments. This Agreement may be amended by the parties
hereto without the consent of any Holder for the purpose of curing any
ambiguity, or of curing, correcting or supplementing any defective provision
contained herein or making any other provisions with respect to matters or
questions arising under this Agreement as the Company and the Warrant Agent may
deem necessary or desirable; provided, however, that such action shall not
affect adversely the rights of the Holders. Any amendment or supplement to this
Agreement that has or would have an adverse effect on the interests of the
Holders shall require the written consent of the Holders of a majority of the
outstanding Warrants. The consent of each holder of Warrants affected shall be
required for any amendment pursuant to which the Exercise Price would be
increased or the number of Ordinary Shares purchasable upon exercise of Warrants
would be decreased (other than pursuant to adjustments provided herein) or the
exercise period with respect to the Warrants would be shortened. In determining
whether the Holders of the required number of Warrants have concurred in any
direction, waiver or consent, Warrants owned by the Company or by any Affiliate
of the Company shall be disregarded and deemed not to be outstanding, except
that, for the purpose of determining whether the Warrant
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35
Agent shall be protected in relying on any such direction, waiver or consent,
only Warrants which the Warrant Agent knows are so owned shall be so
disregarded. Also, subject to the foregoing, only Warrants outstanding at the
time shall be considered in any such determination.
7.4 Severability. The provisions of this Agreement are severable, and if any
clause or provision shall be held invalid, illegal or unenforceable in whole or
in part in any jurisdiction, then such invalidity or unenforceability shall
affect in that jurisdiction only such clause or provision, or part thereof, and
shall not in any manner affect such clause or provision in any other
jurisdiction or any other clause or provision of this Agreement in any
jurisdiction.
7.5 Successors. All the covenants and provisions of this Agreement by or for the
benefit of the Company or the Warrant Agent shall bind and inure to the benefit
of their respective successors and assigns hereunder.
7.6 Termination. This Agreement (other than the Company's obligations with
respect to Warrants previously exercised) shall terminate at 5:00 p.m., New York
City time on the Expiration Date.
7.7 Governing Law. THIS WARRANT AGREEMENT AND THE WARRANTS SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
7.8 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
Warrant Agreement and the Warrants, 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
(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
Warrant Agreement, the Warrants or the transactions contemplated hereby may also
be instituted 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,
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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
Warrant Agreement, the Warrant Certificates or the transactions contemplated
hereby.
The provisions of this Section 7.8 are intended to be effective upon
the execution of this Warrant Agreement and the Warrant Certificates without any
further action by the Company or the Warrant Agent and the introduction of a
true copy of this Warrant Agreement into evidence shall be conclusive and final
evidence as to such matters.
(a) Benefits of This Agreement. Nothing in this Agreement shall be construed to
give to any Person or corporation other than the Company, the Warrant Agent and
the holders of the Warrant Certificates any legal or equitable right, remedy or
claim under this Agreement; but this Agreement shall be for the sole and
exclusive benefit of the Company, the Warrant Agent and the holders of the
Warrant Certificates.
(b) Prior to the exercise of the Warrants, no Holder of a Warrant Certificate,
as such, shall be entitled to any rights of a stockholder of the Company,
including, without limitation, the right to receive dividends or subscription
rights, the right to vote, to consent, to exercise any preemptive right, to
receive any notice of meetings of stockholders for the election of directors of
the Company, to share in the assets of the Company in the event of the
liquidation, dissolution or winding up of the Company's affairs or any other
matter or to receive any notice of any proceedings of the Company, except as may
be specifically provided for herein.
(c) All rights of action in respect of this Agreement are vested in the Holders
of the Warrants, and any Holder of any Warrant, without the consent of the
Warrant Agent or the Holder of any other Warrant, may, on such Holder's own
behalf and for such Holder's own benefit, enforce, and may institute and
maintain any suit, action or proceeding against the Company suitable to enforce,
or otherwise in respect of, such Holder's rights hereunder, including the right
to exercise, exchange or surrender for purchase such Holder's Warrants in the
manner provided in this Agreement.
7.9 Counterparts. This Agreement may be executed in any number of counterparts
and each of such counterparts shall for all purposes be deemed to be an
original, and all such counterparts shall together constitute but one and the
same instrument.
7.10 Table of Contents. The table of contents and headings of the Sections of
this Agreement have been inserted for convenience of reference only, are not
intended to be considered a part hereof and shall not modify or restrict any of
the terms or provisions hereof.
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37
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, as of the day and year first above written.
VERSATEL TELECOM B.V.
By: OPEN SKIES INTERNATIONAL, INC.,
as Managing Director
By: /s/ R. ▇▇▇▇ ▇▇▇▇▇
------------------------------
Name: R. ▇▇▇▇ ▇▇▇▇▇
Title: President and Treasurer
UNITED STATES TRUST COMPANY OF NEW YORK,
as Warrant Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Name:
Title:
41
EXHIBIT A TO
WARRANT AGREEMENT
[FORM OF FACE OF GLOBAL WARRANT CERTIFICATE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY ("DTC") TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER REPRESENTATIVE OF DTC AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN. TRANSFERS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO
A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF
THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN SECTIONS 2.9 AND 2.10 OF THE WARRANT AGREEMENT.
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR OTHER
SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT
(A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN
AN "OFFSHORE TRANSACTION" PURSUANT TO RULE 904 OF REGULATION S, (2) AGREES THAT
IT WILL NOT PRIOR TO (X) THE DATE WHICH IS TWO YEARS (OR SUCH SHORTER PERIOD OF
TIME AS PERMITTED BY RULE 144(k) UNDER THE SECURITIES ACT OR ANY SUCCESSOR
PROVISION THEREUNDER) AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF (OR OF
ANY PREDECESSOR OF THIS SECURITY) OR THE LAST DAY ON WHICH THE COMPANY OR ANY
AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF
THIS SECURITY) AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE
LAWS (THE "RESALE RESTRICTION TERMINATION DATE"), OFFER, SELL OR OTHERWISE
TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY, (B) PURSUANT TO A
42
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE
144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT
OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN
THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS
AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE
MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
(3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED
A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND; PROVIDED THAT THE COMPANY
AND THE WARRANT AGENT SHALL HAVE THE RIGHT PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER (I) PURSUANT TO CLAUSE (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION
OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM,
AND (II) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATION OR
TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED
AND DELIVERED BY THE TRANSFEROR TO THE WARRANT AGENT, THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION
DATE. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND
"U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE
SECURITIES ACT.
43
CUSIP No._____________
No. ___ _____ Warrants
WARRANT CERTIFICATE
VERSATEL TELECOM B.V.
THIS CERTIFIES THAT, _______________, or its registered assigns, is
the registered holder of the number of Warrants set forth above (the
"Warrants"). Each Warrant entitles the holder thereof (the "Holder"), at its
option and subject to the provisions contained herein and in the Warrant
Agreement dated as of May 27, 1998 (the "Warrant Agreement"), between the
Company and United States Trust Company of New York, as Warrant Agent (the
"Warrant Agent", which term includes any successor Warrant Agent under the
Warrant Agreement), to purchase from VersaTel Telecom B.V., a company organized
under the laws of The Netherlands (the "Company"), 6.667 Warrant Shares per
Warrant at the exercise price of NLG 5.10 per share (the "Exercise Price"), or
by Cashless Exercise. This Warrant is subject to the terms and provisions
contained in the Warrant Agreement, to all of which terms and provisions the
Holder of this Warrant Certificate consents by acceptance hereof. The Warrant
Agreement is hereby incorporated herein by reference and made a part hereof.
Reference is hereby made to the Warrant Agreement for a full statement of the
respective rights, limitations of rights, duties and obligations of the Company,
the Warrant Agent and the Holders of the Warrants. Capitalized terms used but
not defined herein shall have the meanings ascribed thereto in the Warrant
Agreement. This Warrant Certificate shall terminate and become void as of 5:00
p.m. on May 15, 2008 (the "Expiration Date") or upon the exercise hereof as to
all the Ordinary Shares subject hereto. The Exercise Price and the number of
Warrant Shares purchasable upon exercise of the Warrants shall be subject to
adjustment from time to time as set forth in the Warrant Agreement.
AS PROVIDED IN THE WARRANT AGREEMENT UNTIL THE EARLIEST OF (i)
NOVEMBER 15, 1998, (ii) THE COMMENCEMENT OF AN EXCHANGE OFFER OR THE
EFFECTIVENESS OF A SHELF REGISTRATION STATEMENT WITH RESPECT TO THE NOTES, (iii)
THE EXERCISABILITY DATE AND (iv) SUCH OTHER DATE AS THE INITIAL PURCHASER WILL
DETERMINE IN ITS SOLE DISCRETION, EACH $1,000 PRINCIPAL AMOUNT OF NOTES AND ONE
WARRANT WHICH COLLECTIVELY COMPRISE EACH UNIT MAY NOT BE TRANSFERRED OR
EXCHANGED SEPARATELY.
Reference is hereby made to the further provisions of this Warrant
Certificate set forth on the reverse hereof and such further provisions shall
for all purposes have the same effect as though fully set forth at this place.
This Warrant Certificate shall not be valid unless countersigned by
the Warrant Agent, as such term is used in the Warrant Agreement.
THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL GOVERN THE WARRANT
AGREEMENT AND THE WARRANTS WITHOUT REGARD TO CONFLICT OF LAW PROVISIONS THEREOF.
44
IN WITNESS WHEREOF, VersaTel Telecom B.V. has caused this Warrant
Certificate to be executed on behalf of the Company by two Officers of the
Company.
Dated: May __, 1998
VERSATEL TELECOM B.V.
By: OPEN SKIES INTERNATIONAL, INC.,
AS MANAGING DIRECTOR
By: ___________________________________
Name: R. ▇▇▇▇ ▇▇▇▇▇
Title: President and Treasurer
By: _______________________________________
Name:
Title:
45
Countersigned:
United States Trust Company of New York,
as Warrant Agent
By________________________________
Authorized Signatory
46
[FORM OF REVERSE OF WARRANT CERTIFICATE]
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement. A copy of the Warrant Agreement may be obtained for
inspection by the Holder hereof upon written request to the Warrant Agent at
United States Trust Company of New York, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇▇▇-▇▇▇▇.
Warrants may be exercised at any time commencing at the opening of
business on the Exercisability Date and until 5:00 p.m., New York City time on
the Expiration Date. Subject to the terms of the Warrant Agreement, the Warrants
may be exercised in whole or in part (i) by surrender of this Warrant
Certificate with the form of election to purchase Warrant Shares attached hereto
duly executed and with the simultaneous payment of the Exercise Price in cash to
the Warrant Agent for the account of the Company at the office of the Warrant
Agent or (ii) by Cashless Exercise. Payment of the Exercise Price in cash shall
be made in cash or by certified or official bank check payable to the order of
the Company or by wire transfer of funds to an account designated by the Company
for such purpose. Payment by Cashless Exercise shall be made by the surrender of
a Warrant or Warrants represented by one or more Warrant Certificates and
without payment of the Exercise Price in cash, in exchange for the issuance of
such number of Ordinary Shares equal to the product of (1) the number of
Ordinary Shares for which such Warrant would otherwise then be nominally
exercised if payment of the Exercise Price were being made in cash and (2) the
Cashless Exercise Ratio.
The Warrant Agreement provides that upon the occurrence of certain
events the Exercise Price and the number of Ordinary Shares issuable upon the
exercise of each Warrant shall, subject to certain conditions, be adjusted.
In the event the Company enters into a Combination following which
this Warrant remains outstanding, the Holder hereof will be entitled to receive
upon exercise of the Warrants the shares of capital stock or other securities or
other property of such surviving entity as such Holder would have been entitled
to receive upon or as the result of such Combination had the Holder exercised
its Warrants immediately prior to such Combination; provided, however, that in
the event that, in connection with such Combination, consideration to holders of
Ordinary Shares in exchange for their shares is payable solely in cash or in the
event of the dissolution, liquidation or winding-up of the Company, the Holder
hereof will be entitled to receive distributions on an equal basis with the
holders of Ordinary Shares or other securities issuable upon exercise of the
Warrants, as if the Warrants had been exercised immediately prior to such
events, less the Exercise Price.
The Company may require payment of a sum sufficient to pay all
taxes, assessments or other governmental charges in connection with the transfer
or exchange of the Warrant Certificates pursuant to Section 3.6 of the Warrant
Agreement but not for any exchange or original issuance (not involving a
transfer) with respect to temporary Warrant Certificates, the exercise of the
Warrants or the Warrant Shares.
47
Upon any partial exercise of the Warrants, there shall be
countersigned and issued to the Holder hereof a new Warrant Certificate in
respect of the Warrant Shares as to which the Warrants shall not have been
exercised. This Warrant Certificate may be exchanged at the office of the
Warrant Agent by presenting this Warrant Certificate properly endorsed with a
request to exchange this Warrant Certificate for other Warrant Certificates
evidencing an equal number of Warrants. In the event any fractional Warrant
Shares would have to be issued upon the exercise of the Warrants, the Company
may, at its option, pay an amount in cash equal to the Current Market Value for
one Warrant Share on the Business Day immediately preceding the date the Warrant
is exercised, multiplied by such fraction, computed to the nearest whole Dutch
guilder in lieu of issuing such fractional share.
Pursuant to the Warrant Agreement, the Company has certain
registration obligations with respect to the Ordinary Shares issuable upon
exercise of the Warrants.
Pursuant to the Warrant Agreement, if the Company proposes to effect
an Initial Public Offering, it shall be obligated to include the Warrant Shares
of holders who request to have such Warrant Shares included; provided, however,
that the Managing Underwriter may, under certain conditions, limit the number of
such Warrant Shares to be included in the Initial Public Offering.
Pursuant to the Warrant Agreement, in the event that an Initial
Public Offering has not occurred by the Triggering Date, the Company will be
required to make an offer to purchase all outstanding Warrants in cash at the
Repurchase Price.
Pursuant to the Warrant Agreement, under certain circumstances in
the event of a Change of Control, the Company shall make an offer to purchase
any and all of the outstanding Warrants at cash purchase prices at least equal
to the Repurchase Price. In addition, in the event of a sale of the Company, the
Company has the power to require holders of the Warrants to sell such Warrants
to the transferee.
The Warrants do not entitle any holder hereof to any of the rights
of a stockholder of the Company. All Ordinary Shares issuable by the Company
upon the exercise of the Warrants shall, upon such issue, be duly and validly
issued and fully paid and non-assessable.
The Holder in whose name the Warrant Certificate is registered may
be deemed and treated by the Company and the Warrant Agent as the absolute owner
of the Warrant Certificate for all purposes whatsoever and neither the Company
nor the Warrant Agent shall be affected by notice to the contrary.
This Warrant Certificate shall not be valid or obligatory for any
purpose until it shall have been countersigned by the Warrant Agent.
48
FORM OF ELECTION TO PURCHASE WARRANT SHARES
(to be executed only upon exercise of Warrants)
[ ]
The undersigned hereby irrevocably elects to exercise ___________
Warrants at an exercise price per Warrant Share of NLG________ to acquire an
equal number of Warrant Shares on the terms and conditions specified in the
within Warrant Certificate and the Warrant Agreement therein referred to,
surrenders this Warrant Certificate and all right, title and interest therein to
, and directs that the Ordinary Shares deliverable upon the exercise of such
Warrants be registered or placed in the name and at the address specified below
and delivered thereto.
Date: ________________, ____
_______________________________(1)
(Signature of Owner)
_______________________________
(▇▇▇▇▇▇ ▇▇▇▇▇▇▇)
_______________________________
(City) (State) (Zip Code)
Signature Guaranteed by:
_______________________________
--------
(1) The signature must correspond with the name as written upon the face of
the within Warrant Certificate in every particular, without alteration or
enlargement or any change whatever, and must be guaranteed by a national
bank or trust company or by a member firm of any national securities
exchange.
49
Securities and/or check to be issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
Any unexercised Warrants evidenced by the within Warrant Certificate to be
issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
50
SCHEDULE A
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL WARRANTS(2)
The following increases or decreases in this Global Warrant have been made:
Date of Amount of Amount of Number of Signature of
Exchange decrease in increase in Warrants of authorized
Number of Number of this Global officer of
Warrants of this Warrants of this Warrant Warrant Agent
Global Warrant Global Warrant following
such decrease
or increase
----------------------------------------------------------------------------------------------------------------
--------
(2) This is to be included only if the Warrant is in global form.
51
EXHIBIT B TO
WARRANT AGREEMENT
[FORM OF FACE OF DEFINITIVE WARRANT CERTIFICATE]
52
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR OTHER
SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT
(A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN
AN "OFFSHORE TRANSACTION" PURSUANT TO RULE 904 OF REGULATION S, (2) AGREES THAT
IT WILL NOT PRIOR TO (X) THE DATE WHICH IS TWO YEARS (OR SUCH SHORTER PERIOD OF
TIME AS PERMITTED BY RULE 144(k) UNDER THE SECURITIES ACT OR ANY SUCCESSOR
PROVISION THEREUNDER) AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF (OR OF
ANY PREDECESSOR OF THIS SECURITY) OR THE LAST DAY ON WHICH THE COMPANY OR ANY
AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF
THIS SECURITY) AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE
LAWS (THE "RESALE RESTRICTION TERMINATION DATE"), OFFER, SELL OR OTHERWISE
TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO
LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A
PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND
SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE
MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
(3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED
A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND; PROVIDED THAT THE COMPANY
AND THE WARRANT AGENT SHALL HAVE THE RIGHT PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER (I) PURSUANT TO CLAUSE (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION
OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM,
AND (II) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATION OR
TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED
AND DELIVERED BY THE TRANSFEROR TO THE WARRANT AGENT, THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION
DATE. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND
"U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE
SECURITIES ACT.
53
CUSIP No._____________
No. ___ _____ Warrants
WARRANT CERTIFICATE
VERSATEL TELECOM B.V.
THIS CERTIFIES THAT, _______________ is the owner of _____ Warrants
(the "Warrants") as described above, transferable only on the books of the
Company by the holder thereof in person or by his or her duly authorized
attorney, on surrender of the Certificate properly endorsed. This Warrant
entitles the holder thereof (the "Holder"), at its option and subject to the
provisions contained herein and in the Warrant Agreement, dated as of May 27,
1998 (the "Warrant Agreement"), between the Company and United States Trust
Company of New York, as Warrant Agent (the "Warrant Agent", which term includes
any successor Warrant Agent under the Warrant Agreement), to purchase from
VersaTel Telecom B.V., a company organized under the laws of The Netherlands
(the "Company"), 6.667 Warrant Shares per Warrant at the exercise price per
share of NLG 5.10 (the "Exercise Price"), or by Cashless Exercise. This Warrant
is subject to the terms and provisions contained in the Warrant Agreement, to
all of which terms and provisions the Holder of this Warrant Certificate
consents by acceptance hereof. The Warrant Agreement is hereby incorporated
herein by reference and made a part hereof. Reference is hereby made to the
Warrant Agreement for a full statement of the respective rights, limitations of
rights, duties and obligations of the Company, the Warrant Agent and the Holders
of the Warrants. Capitalized terms used but not defined herein shall have the
meanings ascribed thereto in the Warrant Agreement. This Warrant Certificate
shall terminate and become void as of 5:00 p.m. on May 15, 2008 (the "Expiration
Date") or upon the exercise hereof as to all the Ordinary Shares subject hereto.
The Exercise Price and the number of Warrant Shares purchasable upon exercise of
the Warrants shall be subject to adjustment from time to time as set forth in
the Warrant Agreement.
AS PROVIDED IN THE WARRANT AGREEMENT UNTIL THE EARLIEST OF (i)
NOVEMBER 15, 1998, (ii) THE COMMENCEMENT OF AN EXCHANGE OFFER OR THE
EFFECTIVENESS OF A SHELF REGISTRATION STATEMENT WITH RESPECT TO THE NOTES, (iii)
THE EXERCISABILITY DATE AND (iv) SUCH OTHER DATE AS THE INITIAL PURCHASER WILL
DETERMINE IN ITS SOLE DISCRETION, EACH $1,000 PRINCIPAL AMOUNT OF NOTES AND ONE
WARRANT WHICH COLLECTIVELY COMPRISE EACH UNIT MAY NOT BE TRANSFERRED OR
EXCHANGED SEPARATELY.
Reference is hereby made to the further provisions of this Warrant
Certificate set forth on the reverse hereof and such further provisions shall
for all purposes have the same effect as though fully set forth at this place.
This Warrant Certificate shall not be valid unless countersigned by
the Warrant Agent, as such term is used in the Warrant Agreement.
54
THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL GOVERN THE WARRANT
AGREEMENT AND THE WARRANTS WITHOUT REGARD TO CONFLICT OF LAW PROVISIONS THEREOF.
IN WITNESS WHEREOF, VersaTel Telecom B.V. has caused this Warrant
Certificate to be executed on behalf of the Company by two Officers of the
Company.
Dated: May __, 1998
VERSATEL TELECOM B.V.
By: OPEN SKIES INTERNATIONAL, INC.,
as Managing Director
By: ___________________________________
Name: R. ▇▇▇▇ ▇▇▇▇▇
Title: President and Treasurer
By: _______________________________________
Name:
Title:
55
Countersigned:
United States Trust Company of New York,
as Warrant Agent
By________________________________
Authorized Signatory
56
[FORM OF REVERSE OF WARRANT CERTIFICATE]
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement. A copy of the Warrant Agreement may be obtained for
inspection by the Holder hereof upon written request to the Warrant Agent at
United States Trust Company of New York, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇▇▇-▇▇▇▇.
Warrants may be exercised at any time commencing at the opening of
business on the Exercisability Date and until 5:00 p.m., New York City time on
the Expiration Date. Subject to the terms of the Warrant Agreement, the Warrants
may be exercised in whole or in part (i) by surrender of this Warrant
Certificate with the form of election to purchase Warrant Shares attached hereto
duly executed and with the simultaneous payment of the Exercise Price in cash to
the Warrant Agent for the account of the Company at the office of the Warrant
Agent or (ii) by Cashless Exercise. Payment of the Exercise Price in cash shall
be made in cash or by certified or official bank check payable to the order of
the Company or by wire transfer of funds to an account designated by the Company
for such purpose. Payment by Cashless Exercise shall be made by the surrender of
a Warrant or Warrants represented by one or more Warrant Certificates and
without payment of the Exercise Price in cash, in exchange for the issuance of
such number of Ordinary Shares equal to the product of (1) the Exercise Price
and the number of Ordinary Shares for which such Warrant would otherwise then be
nominally exercised if payment of the Exercise Price were being made in cash and
(2) the Cashless Exercise Ratio.
The Warrant Agreement provides that upon the occurrence of certain
events the number of Ordinary Shares issuable upon the exercise of each Warrant
shall, subject to certain conditions, be adjusted.
In the event the Company enters into a Combination following which
this Warrant remains outstanding, the Holder hereof will be entitled to receive
upon exercise of the Warrants the shares of capital stock or other securities or
other property of such surviving entity as such Holder would have been entitled
to receive upon or as the result of such Combination had the Holder exercised
its Warrants immediately prior to such Combination; provided, however, that in
the event that, in connection with such Combination, consideration to holders of
Ordinary Shares in exchange for their shares is payable solely in cash or in the
event of the dissolution, liquidation or winding-up of the Company, the Holder
hereof will be entitled to receive distributions on an equal basis with the
holders of Ordinary Shares or other securities issuable upon exercise of the
Warrants, as if the Warrants had been exercised immediately prior to such
events, less the Exercise Price.
The Company may require payment of a sum sufficient to pay all
taxes, assessments or other governmental charges in connection with the transfer
or exchange of the Warrant Certificates pursuant to Section 3.6 of the Warrant
Agreement but not for any exchange or original issuance (not involving a
transfer) with respect to temporary Warrant Certificates, the exercise of the
Warrants or the Warrant Shares.
Upon any partial exercise of the Warrants, there shall be
countersigned and issued to the Holder hereof a new Warrant Certificate in
respect of the Warrant Shares as to which the
57
Warrants shall not have been exercised. This Warrant Certificate may be
exchanged at the office of the Warrant Agent by presenting this Warrant
Certificate properly endorsed with a request to exchange this Warrant
Certificate for other Warrant Certificates evidencing an equal number of
Warrants. In the event any fractional Warrant Shares would have to be issued
upon the exercise of the Warrants, the Company may, at its option, pay an amount
in cash equal to the Current Market Value for one Warrant Share on the Business
Day immediately preceding the date the Warrant is exercised, multiplied by such
fraction, computed to the nearest whole Dutch guilder in lieu of issuing such
fractional share.
Pursuant to the Warrant Agreement, the Company has certain
registration obligations with respect to the Ordinary Shares issuable upon
exercise of the Warrants.
Pursuant to the Warrant Agreement, if the Company proposes to effect
an Initial Public Offering, it shall be obligated to include the Warrant Shares
of holders who request to have such Warrant Shares included; provided, however,
that the Managing Underwriter may, under certain conditions, limit the number of
such Warrant Shares to be included in the Initial Public Offering.
Pursuant to the Warrant Agreement, in the event that an Initial
Public Offering has not occurred by the Triggering Date, the Company will be
required to make an offer to purchase all outstanding Warrants in cash at the
Repurchase Price.
Pursuant to the Warrant Agreement, under certain circumstances in
the event of a Change of Control, the Company shall make an offer to purchase
any and all of the outstanding Warrants at cash purchase prices at least equal
to the Repurchase Price. In addition, in the event of a sale of the Company, the
Company has the power to require holders of the Warrants to sell such Warrants
to the transferee.
The Warrants do not entitle any holder hereof to any of the rights
of a stockholder of the Company. All Ordinary Shares issuable by the Company
upon the exercise of the Warrants shall, upon such issue, be duly and validly
issued and fully paid and non-assessable.
The Holder of this Warrant Certificate may be deemed and treated by
the Company and the Warrant Agent as the absolute owner of the Warrant
Certificate for all purposes whatsoever and neither the Company nor the Warrant
Agent shall be affected by notice to the contrary.
This Warrant Certificate shall not be valid or obligatory for any
purpose until it shall have been countersigned by the Warrant Agent.
58
FORM OF ELECTION TO PURCHASE WARRANT SHARES
(to be executed only upon exercise of Warrants)
[ ]
The undersigned hereby irrevocably elects to exercise
____________________ Warrants at an exercise price per Warrant Share of
NLG________ to acquire an equal number of Warrant Shares on the terms and
conditions specified in the within Warrant Certificate and the Warrant Agreement
therein referred to, surrenders this Warrant Certificate and all right, title
and interest therein to , and directs that the Ordinary Shares deliverable upon
the exercise of such Warrants be registered or placed in the name and at the
address specified below and delivered thereto.
Date: ________________, ____
_______________________________(3)
(Signature of Owner)
_______________________________
(▇▇▇▇▇▇ ▇▇▇▇▇▇▇)
_______________________________
(City) (State) (Zip Code)
Signature Guaranteed by:
_______________________________
----------------
(3) The signature must correspond with the name as written upon the face of
the within Warrant Certificate in every particular, without alteration or
enlargement or any change whatever, and must be guaranteed by a national
bank or trust company or by a member firm of any national securities
exchange.
59
Securities and/or check to be issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
Any unexercised Warrants evidenced by the within Warrant Certificate to be
issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
60
EXHIBIT C TO
WARRANT AGREEMENT
FORM OF TRANSFER CERTIFICATE
FOR TRANSFER FROM RULE ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ TO REGULATION S GLOBAL WARRANT
(Transfers pursuant to Section 2.10(a)
of the Warrant Agreement)
VersaTel Telecom B.V.
c/o United States Trust Company of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Re:VersaTel Telecom B.V.
Reference is hereby made to the Warrant Agreement dated as of May
27, 1998 (the "Warrant Agreement") between VersaTel Telecom B.V. and United
States Trust Company of New York, as Warrant Agent. Capitalized terms used but
not defined herein shall have the meanings given them in the Warrant Agreement.
This letter relates to the Warrants beneficially held through interests in the
144A Global Warrant (CUSIP No. _________) with DTC in the name of ________(the
"Transferor") account no.__. The Transferor hereby requests that on [INSERT
DATE] such beneficial interest in the Rule 144A Global Warrant be transferred or
exchanged for an interest in the Regulation S Global Warrant (CUSIP (CINS) No.
_________) in the same number of Warrants and transfer to (account no.
________).
In connection with such request and in respect of such Warrants the Transferor
does hereby certify that such transfer has been effected in accordance with the
transfer restrictions set forth in the Warrant Agreement and the Warrants and
pursuant to and in accordance with 904 of Regulation S under the United States
Securities Act of 1933, as amended (the "Securities Act"), and accordingly the
Transferor further certifies that:
(A) (1) the offer of the Warrants was not made to a person in the United
States;
61
(2) either (a) at the time the buy order was originated, the transferee
was outside the United States or we and any person acting on our behalf
reasonably believed that the transferee was outside the United States, or
(b) the transaction was executed in, on or through the facilities of a
designated offshore securities market and neither the Transferor nor any
person acting on our behalf knows that the transaction was prearranged
with a buyer in the United States,
(3) no directed selling efforts have been made in contravention of the
requirements of 904(b) of Regulation S, as applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
OR
(B)Such transfer is being made in accordance with Rule 144A under
the Securities Act.
62
This certificate and the statements contained herein are made for your benefit
and the benefit of the Company. Terms used in this certificate and not otherwise
defined in the Warrant Agreement have the meanings set forth in Regulation S
under the Securities Act.
Dated: _____________, ____
[Name of Transferor]
By:________________________
Name:
Title:
Telephone No.:
Please print name and address (including zip code number)
63
EXHIBIT D TO
WARRANT AGREEMENT
FORM OF TRANSFER CERTIFICATE
FOR TRANSFER FROM REGULATION S GLOBAL
WARRANT TO RULE 144A GLOBAL WARRANT
PRIOR TO EXPIRATION OF RESTRICTED PERIOD
(Transfers pursuant to Section 2.10(b)
of the Warrant Agreement)
VersaTel Telecom B.V.
c/o United States Trust Company of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Re:VersaTel Telecom B.V.
Reference is hereby made to the Warrant Agreement dated as of May
__, 1998 (the "Warrant Agreement") between VersaTel Telecom B.V. and United
States Trust Company of New York, as Warrant Agent. Capitalized terms used but
not defined herein shall have the meanings given them in the Warrant Agreement.
This letter relates to the Warrants beneficially held through interests in the
Regulation S Global Warrant (CUSIP (CINS) No. _________) with [Euroclear]
[Cedel] (Common Code No. _______) through DTC in the name of _______________
(the "Transferor") [Euroclear] [Cedel] account no._______. The Transferor hereby
requests that on [INSERT DATE] such beneficial interest in the Regulation S
Global Warrant be transferred or exchanged for an interest in the Rule 144A
Global Warrant (CUSIP No. _________) in the same number of Warrants and transfer
to ______________ (DTC account no. ________).
In connection with such request, and in respect of such Warrants, the Transferor
does hereby certify that such Warrants are being transferred in accordance with
Rule 144A under the United States Securities Act of 1933, as amended (the
"Securities Act"), to a transferee that the Transfer or reasonably believes is
purchasing the Warrants for its own account or an account with respect to which
the transferee exercises sole investment discretion and the transferee and any
such account is a "qualified institutional buyer" within the meaning of Rule
144A, in each case in a transaction meeting the requirements of Rule 144A and in
accordance with any applicable securities laws of any state of the United States
or any other jurisdiction.
64
This certificate and the statements contained herein are made for your benefit
and the benefit of the Company.
Dated:_______________, ____
[Name of Transferor]
By:___________________________
Name:
Title:
Telephone No.:
Please print name and address (including zip code number)