Exhibit 10.3
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WARRANTS REGISTRATION RIGHTS AGREEMENT
between
CARRIER1 INTERNATIONAL S.A.
(a Luxembourg societe anonyme)
and
THE CHASE MANHATTAN BANK,
as Dollar Warrant Agent and
as Euro Warrant Agent
Dated as of February 12, 1999
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WARRANTS REGISTRATION RIGHTS AGREEMENT
WARRANTS REGISTRATION RIGHTS AGREEMENT, dated as of February 12, 1999 (this
"AGREEMENT"), between CARRIER1 INTERNATIONAL S.A., a societe anonyme organized
under the laws of the Grand Duchy of Luxembourg (the "COMPANY"), and THE CHASE
MANHATTAN BANK, as warrant agent under the Dollar Warrant Agreement (the "DOLLAR
WARRANT AGENT") and as warrant agent under the Euro Warrant Agreement (the "EURO
WARRANT AGENT").
Pursuant to the terms of a Placement Agreement dated the date hereof, (the
"PLACEMENT AGREEMENT"), among the Company, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated,
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., Warburg Dillon Read LLC and Bear, ▇▇▇▇▇▇▇ & Co. Inc.
(the "PLACEMENT AGENTS"), the Company has agreed to issue and sell to the
Placement Agents an (i) aggregate of 160,000 Warrants (each, a "DOLLAR
WARRANT"), each Dollar Warrant initially entitling the holder thereof to
purchase 6.71013 Common Shares (as defined below) of the Company at a per share
exercise price equal to the greater of $2.00 and the minimum par value required
by Luxembourg law, as part of the issuance of 160,000 Dollar Units (the "DOLLAR
UNITS"), each consisting of one 13 1/4% Senior Dollar Note due 2009 of the
Company with a principal amount of $1,000 (each, a "DOLLAR NOTE" and
collectively, the "DOLLAR NOTES") to be issued pursuant to the provisions of a
Dollar Notes Indenture to be dated as of the Closing Date (the "DOLLAR NOTES
INDENTURE") between the Company, as issuer, and The Chase Manhattan Bank, as
trustee, and one Dollar Warrant and (ii) an aggregate of 85,000 Warrants (each,
a "EURO Warrant"), each Euro Warrant initially entitling the holder thereof to
purchase 7.53614 Common Shares of the Company at a per share exercise price
equal to the greater of $2.00 and the minimum par value required by Luxembourg
law, as part of the issuance of 85,000 Euro Units (the "EURO UNITS"), each
consisting of one 13 1/4% Senior Euro Note due 2009 of the Company with a
principal amount of Euro 1,000 (each, a "EURO NOTE" and collectively, the "EURO
NOTES") to be issued pursuant to the provisions of an Euro Notes Indenture to be
dated as of the Closing Date (the "EURO NOTES INDENTURE" and, together with the
Dollar Notes Indenture, the "INDENTURES") between the Company, as issuer, and
The Chase Manhattan Bank, as trustee, and one Euro Warrant. The Dollar Units and
the Euro Units are collectively referred to as the "Units". The Dollar Notes and
the Euro Notes are collectively referred to as the "NOTES". The Dollar Warrants
and the Euro Warrants are collectively referred to as the "WARRANTS". The Dollar
Note and the Dollar Warrant included in each Dollar Unit, and the Euro Note and
Euro Warrant included in each Euro Unit, will become separately transferable at
the close of business upon the earliest to occur of (i) the date that is six
months after the Closing Date (as defined below), (ii) the commencement of an
exchange offer with respect to the Notes undertaken pursuant to the Notes
Registration Rights Agreement (as defined below), (iii) the effectiveness of a
shelf registration statement with respect to resales of the Notes and (iv) such
date as determined by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated in its sole discretion.
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In consideration of the foregoing and of the mutual agreements contained
herein and in the Placement Agreement, the Company and the Warrant Agents hereby
agree as follows:
1. DEFINITIONS.
As used in this Agreement, the following capitalized defined terms shall
have the following meanings:
"Affiliates" 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, means 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.
"Auditors" means, at any time, the independent auditors of the Company at
such time.
"Beneficial Investors" means industry experts or other individuals whose
affiliation with the Company should, in the good faith judgment of the Board,
provide the Company with a strategic advantage.
"Board" means the board of directors of the Company from time to time.
"Closing Date" means the date of issuance of the Units.
"Comfort Letter" has the meaning specified in Section 3 hereof.
"Commission" means the United States Securities and Exchange Commission.
"Common Shares" means the shares of common stock, par value $2.00 per
share, of the Company and any other capital stock of the Company into which such
Common Shares may be converted or reclassified or that may be issued in respect
of, in exchange for or in substitution of such Common Shares by reason of any
stock splits, stock dividends, distributions, mergers, consolidations or other
like events.
"Company" has the meaning specified in the preamble to this Agreement.
"Company IPO Shares" has the meaning specified in Section 2 hereof.
"Cutback Notice" has the meaning specified in Section 2 hereof.
"Dollar Warrant" has the meaning specified in the recitals to this
Agreement.
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"Dollar Warrant Agent" has the meaning specified in the preamble to this
Agreement.
"Dollar Warrant Agreement" means the Warrant Agreement dated as of the
Closing Date between the Company and The Chase Manhattan Bank, relating to the
Dollar Warrants.
"Euro Warrant" has the meaning specified in the recitals to this Agreement.
"Euro Warrant Agent" has the meaning specified in the preamble to this
Agreement.
"Euro Warrant Agreement" means the Warrant Agreement dated as of the
Closing Date between the Company and The Chase Manhattan Bank, relating to the
Euro Warrants.
"Existing Registration Rights Agreement" means the Registration Rights
Agreement, as described in the Final Offering Memorandum under the caption
"Certain Relationships and Related Transactions--Equity Investor
Agreements--Registration Rights Agreement," as it may be amended, waived,
supplemented, modified, restated, renewed or extended from time to time.
"Expiration Date" means the tenth anniversary of the Closing Date.
"Holders" means the record holders of the Warrants and the holders of
Common Shares (or other securities) received upon exercise thereof.
"Includible Secondary Shares" has the meaning specified in Section 2
hereof.
"Indentures" shall mean the Dollar Notes Indenture and the Euro Notes
Indenture.
"LLC" means Carrier One, LLC, a Delaware limited liability company, and its
successors.
"Management Investor" means any officer, director, employee or other member
of the management of the Company or any of its subsidiaries, or family members
or relatives thereof, or trusts or partnerships for the benefit of any of the
foregoing, or any of their heirs, executors, successors and legal
representatives.
"managing underwriter" has the meaning specified in Section 2 hereto.
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"Notes" has the meaning specified in the recitals to this Agreement.
"Opinion" has the meaning specified in Section 3 hereof.
"Other IPO Shares" has the meaning specified in Section 2 hereof.
"Permitted Holder" means any of the following: any of Providence Equity
Partners L.P., Providence Equity Partners II L.P., Providence Equity Partners
III L.P., Primus Capital Fund IV Limited Partnership and Primus Executive Fund
Limited Partnership and any of the respective Affiliates or successors of the
foregoing.
"Person" means an individual, general partnership, limited partnership,
corporation, trust, joint stock company, association, joint venture or any other
entity or organization, whether or not legal entities, including, without
limitation, a government or political subdivision or an agency or
instrumentality thereof.
"Piggy-back Registration Rights" has the meaning specified in Section 2
hereof.
"Placement Agents" has the meaning specified in the recitals to this
Agreement.
"Placement Agreement" has the meaning specified in the recitals to this
Agreement.
"Registration Statement" has the meaning specified in Section 2 hereof.
"Resale Shelf" has the meaning specified in Section 3 hereof.
"Securities Act" means the United States Securities Act of 1933, as
amended.
"Units" has the meaning specified in the recitals to this Agreement.
"Warrants" has the meaning specified in the recitals to this Agreement.
"Warrant Agents" means the Dollar Warrant Agent and the Euro Warrant Agent.
"Warrant Agreements" means the Dollar Warrant Agreement and the Euro
Warrant Agreement.
"Warrant Shares" means the Common Shares (or other securities) issued or
purchasable upon exercise of the Warrants.
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"Warrant Registration Statement" has the meaning specified in Section 3
hereof.
2. PIGGY-BACK REGISTRATION RIGHTS.
(a) If, prior to the date that is ten days prior to the expiration of the
Warrants, the Company proposes to file a Registration Statement with the
Commission respecting an offering of any Common Shares (or other securities)
purchasable upon exercise of the Warrants (other than (x) an offering that could
be registered solely on Form ▇-▇, ▇-▇, or F-4 or any successor form thereto, (y)
securities offered or issued pursuant to any employment or benefit plan or
arrangement to any employee, director, partner, trustee or consultant or advisor
of or to the Company or any subsidiary of the Company, and (z) the initial
public offering of Common Shares (or other securities) purchasable upon exercise
of the Warrants if no shareholder of the Company participates therein as a
selling shareholder), the Company shall give prompt written notice to all the
Holders of Warrants or Warrant Shares at least 30 days prior to the initial
filing of the registration statement relating to such offering (the
"REGISTRATION STATEMENT"). Each such Holder shall have the right, within 20 days
after delivery of such notice, to request in writing that the Company include
all or a portion of such of the Warrant Shares in such Registration Statement
("PIGGY-BACK REGISTRATION RIGHTS"). The Company shall include in the public
offering all of the Warrant Shares that a Holder has requested be included,
unless the underwriter for the public offering or the underwriter managing the
public offering (in either case, the "MANAGING UNDERWRITER") delivers a notice
(a "CUTBACK NOTICE") pursuant to Section 2(b) or 2(c) hereof. The managing
underwriter may deliver one or more Cutback Notices at any time prior to the
execution of the underwriting agreement for the public offering. If the Company
conducts any public offering outside the United States in which any of its
shareholders participate as a selling shareholder (which if conducted in the
United States would be subject to the registration rights provisions of this
Section 2), the provisions of this Section 2, mutatis mutandi, and any other
applicable provisions of this Agreement relating to this Section 2 shall apply
with respect to such offering.
(b) If a proposed public offering includes both securities to be offered
for the account of the Company ("COMPANY IPO SHARES") and shares to be sold by
shareholders, the provisions of this Section 2(b) shall be applicable if the
managing underwriter delivers a Cutback Notice stating that, in its opinion, the
number of Common Shares that selling shareholders propose to sell therein,
whether or not such selling shareholders have the right to include shares
therein (the "OTHER IPO SHARES"), plus the number of Warrant Shares that the
Holders have requested to be sold therein, plus the Company IPO Shares, exceeds
the maximum number of shares specified by the managing underwriter in such
Cutback Notice that may be distributed without adversely affecting the price,
timing or distribution of the Company IPO Shares. Such maximum number of shares
that may be so sold, excluding the Company IPO Shares, are referred to as the
"INCLUDIBLE SHARES."
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If the managing underwriter delivers such Cutback Notice, the Company shall
be entitled to include all of the Company IPO Shares in the public offering and
each requesting Holder, together with each party (or beneficiary) exercising its
registration rights (or privileges) under the Existing Registration Rights
Agreement, shall be entitled to include in the public offering up to its pro
rata portion of the Includible Shares and in priority to the inclusion of any
Other IPO Shares that are proposed to be sold in such public offering. No
shareholder that proposes to sell Other IPO Shares in the proposed initial
public offering, other than as specified above, may sell any such shares therein
unless all Warrant Shares requested by the Holders to be sold therein are so
included.
(c) If a proposed public offering is entirely a secondary offering, the
provisions of this Section 2(c) shall be applicable if the managing underwriter
delivers a Cutback Notice stating that, in its opinion, the aggregate number of
Warrant Shares and Other IPO Shares proposed to be sold therein exceeds the
maximum number of shares (the "INCLUDIBLE SECONDARY SHARES") specified by the
managing underwriter in such Cutback Notice that may be distributed without
adversely affecting the price, timing or distribution of the Common Shares being
distributed.
(i) If the managing underwriter delivers such Cutback Notice, in the
case of a demand registration pursuant to the Existing Registration Rights
Agreement, FIRST each party exercising such demand registration rights, the
LLC and each other Permitted Holder, Management Investor or Beneficial
Investor from time to time party to or beneficiary of the Existing
Registration Rights Agreement shall be entitled to include all of its
Includible Secondary Shares, and SECOND each requesting Holder, together
with each other party exercising its registration rights under the Existing
Registration Rights Agreement, shall be entitled to include up to its pro
rata portion of the remaining Includible Secondary Shares and in priority
to the inclusion of any Other IPO Shares, other than as specified above,
that are proposed to be sold in such public offering ;
(ii) If the managing underwriter delivers such Cutback Notice in the
case of any other demand registration, first each party exercising such
demand registration rights shall be entitled to include all of its
Includible Secondary Shares, then each requesting Holder, together with the
LLC and each Permitted Holder, Management Investor or Beneficial Investor
from time to time party to or beneficiary of the Existing Registration
Rights Agreement, shall be entitled to include up to its pro rata portion
of the remaining Includible Secondary Shares and in priority to the
inclusion of any Other IPO Shares, other than as specified above, that are
proposed to be sold in such public offering.
No shareholder that proposes to sell Other IPO Shares in the proposed public
offering, other than as specified above, may sell any such shares therein unless
all Warrant Shares requested by the Holders to be sold therein are so included.
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(d) The underwriting agreement for such public offering shall provide that
each requesting Holder shall have the right to sell its Warrant Shares to the
underwriters and that the underwriters shall purchase the Warrant Shares at the
price paid by the underwriters for the Common Shares sold by the Company and/or
selling shareholders, as the case may be.
3. SHELF REGISTRATION.
(a) If only the Company sells Common Shares in an initial public offering
or all of the Warrant Shares (or other securities) purchasable upon exercise of
the Warrants have not been sold in a public offering, the Company shall use its
best efforts to cause to be filed pursuant to Rule 415 under the Securities Act
a shelf registration statement on the appropriate form (the "WARRANT
REGISTRATION STATEMENT") covering the issuance of the Warrant Shares upon
exercise of the Warrants and shall use its best efforts to cause the Warrant
Registration Statement to become effective under the Securities Act within six
months after the closing date of the initial public offering; PROVIDED, HOWEVER,
that (1) in no event may the Warrant Registration Statement be declared
effective prior to the first anniversary of the Closing Date and (2) if the
Commission shall request that the Company register the resale of the Warrant
Shares instead of the issuance thereof, the Warrant Registration Statement shall
register such resale as opposed to such issuance. The Company shall use
reasonable efforts to keep the Warrant Registration Statement continuously
effective, subject to Section 4 hereof, until such time as all Warrants have
been exercised or have expired and, in the case of clause (2), until such time
as all Warrant Shares have been resold thereunder. Prior to filing the Warrant
Registration Statement or any amendment thereto, the Company shall provide a
copy thereof to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated and its counsel and afford
them a reasonable time to comment thereon.
(b) If the Warrant Registration Statement shall register the sale of the
Warrant Shares (a "RESALE SHELF") as provided in Section 3(a)(2) above, the
Company agrees to:
(i) make available for inspection by a representative of the Holders,
any underwriter participating in any disposition pursuant to such Resale
Shelf and attorneys and accountants designated by the Holders (upon
execution of customary confidentiality agreements reasonably satisfactory
to the Company and its counsel), at reasonable times and in a reasonable
manner, financial and other records, documents and properties of the
Company that are pertinent to the conduct of due diligence customary for an
underwritten offering, and cause the officers, directors and employees of
the Company to supply all information reasonably requested by any such
representative, underwriter, attorney or accountant in connection with a
Resale Shelf as shall be necessary to enable such persons to conduct a
reasonable investigation within the meaning of Section 11 of the Securities
Act of 1933, as amended from time to time;
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(ii) use its reasonable best efforts to cause all Warrant Shares sold
under a Resale Shelf to be listed on any securities exchange or any
automated quotation system on which similar securities issued by the
Company are then listed if requested by the Holders of Warrant Shares
representing a majority of the Warrants originally issued, to the extent
such Warrant Shares satisfy applicable listing requirements;
(iii) provide a reasonable number of copies of the prospectus included
in such Resale Shelf to Holders that are selling Warrant Shares pursuant to
such Resale Shelf;
(iv) use its reasonable best efforts to cause to be provided to the
Warrant Agent, on behalf of the Holders and beneficial owners of Warrant
Shares, upon the effectiveness of such Resale Shelf, a customary "10b-5"
opinion of independent counsel (an "OPINION") and a customary "cold
comfort" letter of independent auditors (a "COMFORT LETTER");
(v) use its reasonable best efforts to cause to be provided to Holders
and beneficial owners of Warrant Shares an Opinion and Comfort Letter with
respect to each document, including any amendments thereto, that is
incorporated by reference in such Resale Shelf; and
(vi) notify the Warrant Agent in writing, for distribution to the
Holders, (A) when the Resale Shelf has become effective and when any
post-effective amendment thereto has been filed and becomes effective, (B)
of any request by the Commission or any state securities authority for
amendments and supplements to the Resale Shelf or of any material request
by the Commission or any state securities authority for additional
information after the Resale Shelf has become effective, (C) of the
issuance by the Commission or any state securities authority of any stop
order suspending the effectiveness of the Resale Shelf or the initiation of
any proceedings for that purpose, (D) if, between the effective date of the
Resale Shelf and the closing of any sale of Warrant Shares covered thereby,
the representations and warranties of the Company contained in any
underwriting agreement, securities sales agreement or other similar
agreement, including this Agreement, relating to disclosure cease to be
true and correct in all material respects or if the Company receives any
notification with respect to the suspension of the qualification of the
Warrant Shares for sale in any jurisdiction or the initiation of any
proceeding for such purpose, (E) of the happening of any event during the
period the Resale Shelf is effective such that such Resale Shelf or the
related prospectus contains an untrue statement of a material fact or omits
to state a material fact required to be stated therein or necessary to make
statements therein not misleading (in the case of a prospectus, in light of
circumstances under which they were made) and (F) of any determination by
the Company that a post-effective amendment to a Registration Statement
would be appropriate. The Holders hereby agree to suspend use of the
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prospectus contained in a Resale Shelf upon receipt of such notice under
clause (C), (E) or (F) above until, in the case of clause (C), such stop
order is removed or rescinded or, in the case of clauses (E) and (F), the
Company has amended or supplemented such prospectus to correct such
misstatement or omission or otherwise.
4. SUSPENSION.
Notwithstanding the foregoing, during any consecutive 365-day period while
the Warrants are exercisable, the Company shall have the ability to suspend the
availability of such Warrant Registration Statement for (a) up to two
30-consecutive-day periods (except during the 30 days immediately prior to the
expiration of the Warrants) if the Company's Board determines in good faith that
there is a valid purpose for the suspension and provides notice of such
determination to the Holders at their addresses appearing in the register of
Warrants maintained by the Warrant Agent and (b) five additional,
non-consecutive three-day periods (except during the 30 days immediately prior
to the expiration of the Warrants) if the Company's Board determines in good
faith that the Company cannot provide adequate disclosure during such period due
to circumstances beyond its control. Notice of such suspension shall be given in
writing, in the case of clause (a) above, promptly to each applicable Holder
and, in the case of clause (b) above, promptly to the Warrant Agent and the
Warrant Agent shall give such notice promptly to each Holder.
5. BLUE SKY.
The Company shall use its reasonable best efforts to register or qualify
the Warrant Shares proposed to be sold or issued pursuant to the Registration
Statement or the Warrant Registration Statement under all applicable securities
or "blue sky" laws of all jurisdictions in the United States in which any Holder
of Warrants may or may be deemed to purchase Warrant Shares upon the exercise of
Warrants or resale of the Warrant Shares, as the case may be, and shall use its
reasonable best efforts to maintain such registration or qualification through
the earlier of (A) the date upon which all Warrants have been exercised or all
Warrant Shares have been resold, as the case may be, under the Warrant
Registration Statement and (B) the Expiration Date; PROVIDED, HOWEVER, that the
Company shall not be required to (i) qualify as a foreign corporation or as a
broker or a dealer in securities in any jurisdiction where it would not
otherwise be required to qualify but for this Section 5, (ii) file any general
consent to service of process or (iii) subject itself to taxation in any
jurisdiction if it is not otherwise so subject.
6. ACCURACY OF DISCLOSURE.
The Company (and its successors) represents and warrants to each Holder
(and each beneficial owner of a Warrant or Warrant Share) and agrees for the
benefit of each Holder (and each beneficial owner of a Warrant or Warrant Share)
that, except during any period in
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which the availability of the Warrant Registration Statement has been suspended,
(i) the Warrant Registration Statement and the documents incorporated by
reference therein will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein not
misleading; and (ii) the prospectus delivered to such Holder upon its exercise
of Warrants or pursuant to which such Holder sells its Warrant Shares, as the
case may be, and the documents incorporated by reference therein will not
contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading; PROVIDED, HOWEVER, that representations,
warranties and agreements set forth in this Section 6 do not apply to statements
or omissions in the Warrant Registration Statement or any such prospectus based
upon information relating to any Holder furnished to the Company (or its
successors) in writing by such Holder expressly for use therein.
7. INDEMNITY.
The Company hereby agrees to indemnify each beneficial owner of a Warrant
and each person, if any, who controls any beneficial owner of a Warrant within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Securities Exchange Act of 1934 (the "EXCHANGE ACT"), or is under common control
with, or is controlled by, any beneficial owner of a Warrant (whether or not it
is, at the time the indemnity provided for in this Section 7 is sought, such a
beneficial owner), from and against all losses, damages or liabilities which
such beneficial owner or any such controlling or affiliated person suffers as a
result of any breach, on the date of any exercise of a Warrant by such
beneficial owner or the resale of any Warrant Share by such Holder, in either
case pursuant to the Warrant Registration Statement, of the representations,
warranties or agreements contained in Section 6. Each beneficial owner of a
Warrant Share sold pursuant to a Resale Shelf, by accepting its beneficial
ownership of a Warrant, hereby (i) agrees to provide the Company with
information with respect to it that the Company reasonably requests in
connection with any Resale Shelf and (ii) agrees, severally and not jointly, to
indemnify the Company, its directors and officers and each person, if any, who
controls the Company within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act against any liability incurred by it or
such controlling person as a result of any misstatement of information provided
by such beneficial owner to the Company in writing expressly for inclusion in
the Resale Shelf or any omission of a material fact from any such information
provided by such beneficial owner to the Company. In addition, the foregoing
indemnity with respect to any preliminary Prospectus shall not inure to the
benefit of any Holder to the extent that any such losses, claims, damages or
liabilities result from the fact that such Holder sold securities to a person to
whom there was not sent or given by or on behalf of such Holder (if required by
law so to have been delivered) a copy of the Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) at or prior to the written confirmation of the sale of the Warrant
Shares to such person, and if the losses, claims, damages or liabilities result
from an untrue statement or alleged untrue statement
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or an omission or alleged omission contained in such preliminary Prospectus that
was corrected in the Prospectus (as so amended or supplemented), unless such
failure is the result of noncompliance by the Company with its obligations to
deliver copies of the Prospectus to the Holders, nor shall this indemnity
agreement inure to the benefit of any Holder from whom the person asserting any
such losses, claims, damages or liabilities purchased the Warrant Shares
concerned to the extent that at the time of such purchase such Holder had
received written notice from the Company that the use of such Prospectus,
amendment, supplement or preliminary Prospectus was suspended as provided in
Section 3(vi) or Section 4.
8. EXPENSES.
All expenses incident to the Company's performance of or compliance with
its obligations under this Agreement will be borne by the Company, regardless of
whether a Registration Statement or Warrant Registration Statement becomes
effective, including without limitation (i) all Commission or National
Association of Securities Dealers, Inc. registration and filing fees, (ii) all
reasonable fees and expenses incurred in connection with compliance with state
securities or "blue sky" laws, (iii) all reasonable expenses of any persons
incurred by or on behalf of the Company in preparing or assisting in preparing,
word processing, printing and distributing any registration statement, any
prospectus, any amendments or supplements thereto and other documents relating
to the performance of and compliance with this Agreement, (iv) the reasonable
fees (including legal fees and expenses) and disbursements of the Warrant Agent,
(v) the reasonable fees and disbursements of counsel for the Company and (vi)
the fees and disbursements, if any, of the Auditors, but excluding (x) the
reasonable fees and disbursements of counsel retained by the participating
Holders and (y) the Holders' share of underwriting discounts and commissions.
9. "MARKET STAND OFF" AGREEMENT.
Each Holder hereby agrees that during the 180 day period following the
effective date of an initial public offering of Common Shares (or other
securities) purchasable upon exercise of the Warrants, it shall not, to the
extent requested by the Company or the managing underwriter, sell or otherwise
transfer or dispose of (other than to donees who agree to be similarly bound)
any Common Shares of the Company held by it at any time during such period
except Common Shares included in such registration; PROVIDED, HOWEVER, that all
directors of the Company, the LLC and Permitted Holders party to or
beneficiaries of, from time to time, the Existing Registration Rights Agreement
and, if required by the managing underwriter, the Management Investors,
Beneficial Investors and others party thereto, or beneficiaries thereof, from
time to time, enter into or are bound by similar agreements.
In order to enforce the foregoing covenant, the Company may impose
stop-transfer instructions with respect to the Warrant Shares until the end of
such period.
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10. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. The Company represents and the Warrant
Agent represents to the best of its knowledge to the other that it has not
entered into, and agrees that on or after the date of this Agreement it will not
enter into, any agreement which is inconsistent with the rights granted to the
Holders of Warrants or Warrant Shares in this Agreement or otherwise conflicts
with the provisions hereof. The Company represents that the rights granted to
the Holders hereunder do not in any way conflict with and are not inconsistent
with the rights granted to the holders of the Company's other issued and
outstanding securities under any agreements (after giving effect to any waiver,
consent, amendment, resolution or other instrument in full force and effect on
the date hereof).
(b) AMENDMENTS AND WAIVERS. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given
unless the Company and the Warrant Agent have obtained the written consent of
Holders of at least a majority of the outstanding Warrants affected by such
amendment, modification, supplement, waiver or consent; PROVIDED that any
amendment, modification or supplement to this Agreement which, in the good faith
opinion of the Board of Directors of the Company (and evidenced by a resolution
of such board), does not adversely affect any Holder, shall not be subject to
such requirement for written consent.
(c) NOTICES. All notices and other communications provided for or permitted
hereunder shall be made in writing by hand-delivery, registered first-class
mail, telex, telecopier, or any courier guaranteeing overnight delivery (i) if
to a Holder, at the most current address given by such Holder to the Company by
means of a notice given in accordance with the provisions of this Section 10(c);
(ii) if to the Company, initially at the Company's address set forth in the
Indentures and thereafter at such other address, notice of which is given in
accordance with the provisions of this Section 10(c); and (iii) if to the
Warrant Agents, initially at the Warrant Agents' addresses set forth in the
Warrant Agreements and thereafter at such other address, notice of which is
given in accordance with the provisions of this Section 10(c).
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt is acknowledged, if telecopied; and on
the next business day if timely delivered to an air courier guaranteeing
overnight delivery.
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(d) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of
and be binding upon the successors, assigns and transferees of each of the
parties, including, without limitation, subsequent Holders; PROVIDED that
nothing herein shall be deemed to permit any assignment, transfer or other
disposition of Warrants in violation of the terms of the Placement Agreement or
the Warrant Agreements. If any transferee of any Holder shall acquire Warrants,
in any manner, whether by operation of law or otherwise, such Warrants shall be
held subject to all of the terms of this Agreement and the Warrant Agreements,
and by taking and holding such Warrants such person shall be conclusively deemed
to have agreed to be bound by and to perform all of the terms and provisions of
this Agreement or the Warrant Agreements and such person shall be entitled to
receive the benefits hereof.
(e) PURCHASES AND SALES OF WARRANTS. The Company shall not, and shall use
its best efforts to cause its affiliates (as defined in Rule 405 under the
Securities Act) not to, purchase and then resell or otherwise transfer (other
than to the Company or any subsidiary thereof) any Warrants other than Warrants
acquired and cancelled.
(f) THIRD PARTY BENEFICIARY. The Holders shall be third party beneficiaries
to the agreements made hereunder between the Company and the Warrant Agents, and
each Holder shall have the right to enforce such agreements directly to the
extent it deems such enforcement necessary or advisable to protect its rights or
the rights of Holders hereunder.
(g) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) GOVERNING LAW. This Agreement shall be governed by the laws of the
State of New York.
(j) SEVERABILITY. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(k) SUBMISSION TO JURISDICTION; APPOINTMENT OF AGENT FOR SERVICE. The
Company irrevocably agrees that any legal suit, action or proceeding brought by
any Placement Agent or by any person who controls any Placement Agent arising
out of or relating to this Agreement and the transactions contemplated thereby
may be instituted in any federal or state court in the Borough of Manhattan, The
City of New York, the State of New York and
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irrevocably waives, to the fullest extent permitted by law, any objection which
it may now or hereafter have to the laying of the venue of any such suit, action
or proceeding and any claim of inconvenient forum, and irrevocably submits to
the non-exclusive jurisdiction of any such court in any such suit, action or
proceeding.
The Company (i) irrevocably designates and appoints CT Corporation System,
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ (together with any successor, the "AUTHORIZED
AGENT"), as its authorized agent upon which process may be served in any suit,
action or proceeding described in Section 11 of the Placement Agreement and
represents and warrants that the Authorized Agent has accepted such designation
and (ii) agrees that service of process upon the Authorized Agent and written
notice of said service to the Company (mailed or delivered to Carrier1
International S.A., c/o Carrier1 International GmbH, at ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇,
▇▇-▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, Attention: General Counsel), shall be deemed in
every respect effective service of process upon the Company in any such suit or
proceeding. The Company further agrees to take any and all action, including the
execution and filing of any and all such documents and instruments, as may be
necessary to continue such designation and appointment of the Authorized Agent
in full force and effect so long as any of the Units, Notes or Warrants shall be
outstanding.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
CARRIER1 INTERNATIONAL S.A.
By /s/ Stig Johansson
-----------------------------
Name: Stig Johansson
Title: Director
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Authorized Officer
THE CHASE MANHATTAN BANK,
as Dollar Warrant Agent and
Euro Warrant Agent
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Assistant Treasurer