Exhibit 4.1
RSL COMMUNICATIONS, LTD.
RSL COMMUNICATIONS PLC
PLACEMENT AGREEMENT
September 30, 1996
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇▇▇▇, Read & Co. Inc.
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
RSL COMMUNICATIONS, LTD., a Bermuda corporation ("Holdings" or the
"Warrant Issuer"), and RSL COMMUNICATIONS PLC, a United Kingdom corporation and
wholly owned subsidiary of Holdings (the "Note Issuer" and, together with
Holdings, the "Issuers"), propose to issue and sell to you (the "Placement
Agents") 300,000 Units (the "Units"). Each Unit will consist of (i) 12 1/4%
Senior Notes due 2006 (collectively, the "Notes") having a principal amount
equal to $1,000 to be issued by the Note Issuer pursuant to the provisions of an
Indenture (the "Indenture") to be dated as of the Closing Date (as defined
below) among the Issuers and The Chase Manhattan Bank, as trustee (in such
capacity, the "Trustee") and (ii) one Warrant (collectively, the "Warrants") to
be issued by the Warrant Issuer entitling the holder thereof to purchase 1.805
Class A common shares, par value $0.01 per share, of Holdings (collectively, the
"Warrant Shares") from Holdings at an exercise price of $0.01 per share, subject
to adjustment as provided in the Warrant Agreement (as defined below). The
obligations of the Note Issuer under the Notes and the Indenture will be
guaranteed (the "Note Guarantee") by Holdings on an unsubordinated basis
pursuant to the terms of the Indenture. The Warrants will be issued pursuant to
the provisions of a Warrant Agreement to be dated as of the Closing Date (the
"Warrant Agreement") between Holdings and The Chase Manhattan Bank, as warrant
agent (in such capacity, the "Warrant Agent"), substantially in the form
attached hereto as Exhibit A. The Note Issuer will pledge pursuant to a Pledge
Agreement dated as of the Closing Date (the "Pledge Agreement") among the Note
Issuer, Holdings and the Trustee a portion of the net proceeds from the issuance
and sale of the Units as security for the payment of the first six scheduled
interest payments due on the Notes. The Class A common shares of Holdings are
referred to herein as the "Common Shares."
The Units will be offered without being registered under the
Securities Act of 1933, as amended (the "Securities Act"), to qualified
institutional buyers (as defined in Rule
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144A under the Securities Act) in compliance with the exemption from
registration provided by Rule 144A under the Securities Act ("Rule 144A"), in
offshore transactions in reliance on Regulation S under the Securities Act
("Regulation S") and to institutional accredited investors (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act) that deliver a letter in
the form annexed to the Final Memorandum (as defined below).
The Placement Agents and their direct and indirect transferees will
be entitled to the benefits of (i) a registration rights agreement relating to
the Notes (the "Notes Registration Rights Agreement"), to be dated as of the
Closing Date and to be substantially in the form attached hereto as Exhibit B
and (ii) a registration rights agreement relating to the Warrant Shares (the
"Warrant Registration Rights Agreement") to be dated as of the Closing Date and
to be substantially in the form attached hereto as Exhibit C.
In connection with the sale of the Units, the Issuers have prepared
a preliminary private placement memorandum (the "Preliminary Memorandum") and
will prepare a final private placement memorandum (the "Final Memorandum" and,
with the Preliminary Memorandum, each a "Memorandum") setting forth or including
a description of the terms of the Units, the Notes, the Warrants and the Common
Shares, the terms of the offering and a description of the Issuers and their
business. As used herein, "subsidiary" means any Subsidiary (as defined in the
Final Memorandum under the caption "Description of the Notes") of either of the
Issuers.
1. Representations and Warranties. Each of the Issuers represents
and warrants to, and agrees with, you that as of the date hereof:
(a) The Preliminary Memorandum does not contain and the Final
Memorandum, in the form used by the Placement Agents to confirm sales and on the
Closing Date (as defined below), will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except that the representations and warranties set forth in this
Section 1(a) do not apply to statements or omissions in either Memorandum based
upon information relating to any Placement Agent furnished to the Issuers in
writing by such Placement Agent expressly for use therein.
(b) Each of Holdings and the Note Issuer has been duly organized
and, is validly existing as a corporation under the laws of Bermuda and the
United Kingdom, respectively, has the corporate power and authority to own its
property and to conduct its business as described in each Memorandum and is duly
qualified to transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect on
Holdings and its subsidiaries, taken as a whole.
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(c) Each subsidiary of Holdings has been duly incorporated, is
validly existing as a corporation and where applicable, is in good standing
under the laws of the jurisdiction of its incorporation, has the corporate power
and authority to own its property and to conduct its business as described in
each Memorandum and is duly qualified to transact business and/or is in good
standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not have
a material adverse effect on Holdings and its subsidiaries, taken as a whole;
set forth on Schedule I hereto are Holdings' significant subsidiaries (as
defined in Rule 1-02 of Regulation S-X under the U.S. Federal securities laws,
the "Significant Subsidiaries") and principal operating subsidiaries (the
"Operating Subsidiaries").
(d) This Agreement has been duly authorized, executed and delivered
by Holdings and the Note Issuer.
(e) The Notes have been duly authorized by the Note Issuer and, when
executed, authenticated and delivered in accordance with the Indenture and paid
for by the Placement Agents in accordance with the terms of this Agreement, will
(x) be valid and binding obligations of the Note Issuer enforceable against the
Note Issuer in accordance with their terms, except as (A) the enforceability
thereof may be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (B) rights of acceleration, if applicable, and
the availability of equitable remedies may be limited by equitable principles of
general applicability and (y) be entitled to the benefits of the Indenture and
the Notes Registration Rights Agreement.
(f) The Note Guarantee has been duly authorized by Holdings and,
upon execution and delivery of the Indenture by the parties thereto (assuming
due authorization, execution and delivery thereof by the Trustee) and when the
Notes are duly executed, authenticated, delivered and paid for in accordance
with the Indenture and this Agreement, will (x) be a valid and binding
obligation of Holdings enforceable against Holdings in accordance with its
terms, except as (A) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and (B) rights
of acceleration, if applicable, and the availability of equitable remedies may
be limited by equitable principles of general applicability and (y) be entitled
to the benefits of the Indenture.
(g) Each of the Indenture, the Pledge Agreement and the Notes
Registration Rights Agreement has been duly authorized by each of Holdings and
the Note Issuer, when executed and delivered by the parties thereto (assuming
due authorization, execution and delivery thereof by the other parties thereto),
will be a valid and binding agreement of Holdings and the Note Issuer,
enforceable in accordance with its terms except as (x) the enforceability
thereof may be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (y) rights of acceleration, if applicable, and
the
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availability of equitable remedies may be limited by equitable principles of
general applicability.
(h) (i) The Deposit Agreement (as defined in the Final Memorandum)
has been duly authorized by the Note Issuer and, when executed and delivered by
the parties thereto (assuming due authorization, execution and delivery thereof
by the Book-Entry Depositary), will be a valid and binding agreement of the Note
Issuer, enforceable against the Note Issuer in accordance with its terms, except
as (x) the enforceability thereof may be limited by bankruptcy, insolvency
affecting creditors' rights generally, and (y) rights of acceleration, if
applicable, and the availability of equitable remedies may be limited by
equitable principles of general applicability; and (ii) the Deposit Agreement or
the Warrant Agreement, as applicable, and the Book-Entry Interests or beneficial
interests in the Global Warrants (each as defined in the Final Memorandum)
conform in all material respects to the descriptions thereof in the Final
Memorandum.
(i) The Warrants have been duly authorized by Holdings and, when
executed by Holdings and countersigned by the Warrant Agent as provided in the
Warrant Agreement (assuming due authorization, execution and delivery thereof by
the Warrant Agent), and delivered to and paid for by the Placement Agents in
accordance with the terms of this Agreement, will (x) be valid and binding
obligations of Holdings enforceable against Holdings in accordance with their
terms, except as (A) the enforceability thereof may be limited by the effect of
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
now or hereafter in effect relating to or affecting creditors' rights generally
and (B) rights of acceleration, if applicable, and the availability of equitable
remedies may be limited by equitable principles of general applicability and (y)
be entitled to the benefits of the Warrant Agreement and the Warrant
Registration Rights Agreement.
(j) The Warrant Agreement and the Warrant Registration Rights
Agreement have been duly authorized by Holdings and, when executed and delivered
by the parties thereto (assuming due authorization, execution and delivery
thereof by the Warrant Agent), will be valid and binding agreements of Holdings,
enforceable against Holdings in accordance with their respective terms except as
(x) the enforceability thereof may be limited by the effect of applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws now or
hereafter in effect relating to or affecting creditors' rights generally and (y)
the availability of equitable remedies may be limited by equitable principles of
general applicability.
(k) The Warrant Shares have been duly authorized and reserved by
Holdings and, when issued and delivered upon exercise of the Warrants in
accordance with the terms of the Warrants and the Warrant Agreement, will be
validly issued, fully paid and non-assessable and will not be subject to any
preemptive or similar rights.
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(l) The execution and delivery by each of Holdings and the Note
Issuer of, and the performance by each of its obligations under, this Agreement,
the Indenture, the Notes Registration Rights Agreement, the Pledge Agreement,
the Deposit Agreement, the Warrants, the Warrant Agreement, the Warrant
Registration Rights Agreement, the Notes, the Note Guarantee, the Subordinated
Shareholder Loan, the Shareholder Equity Investment, the Shareholder Standby
Facility and the amendment to the Revolving Credit Facility described in the
Final Memorandum (each as defined in the Memorandum) (collectively, the
"Transaction Documents"), as applicable, and the issuance and sale and delivery
of the Units, Notes and Warrants and the issuance of the Warrant Shares upon
exercise of the Warrants will not contravene any provision of applicable law or
the Articles of Association, the Memorandum of Association or the bye-laws of
Holdings or the Note Issuer, as the case may be, or any agreement or other
instrument binding upon either of the Issuers or any of their subsidiaries or
any judgment, order or decree of any governmental body, agency or court having
jurisdiction over either of the Issuers or any of their subsidiaries and no
consent, approval, authorization or order of, or qualification with, any
governmental body or agency (U.S., U.K., Bermuda or otherwise) is required for
the performance by each of Holdings and the Note Issuer of its obligations under
the Transaction Documents, as applicable, except such as may be required by the
securities or Blue Sky laws of the various states in connection with the offer
and sale of the Units, Notes or Warrants.
(m) There has not occurred any material adverse change, or any
development which could reasonably be executed to result in a material adverse
change, in the condition, financial or otherwise, or in the earnings, business
or operations of the Issuers and their subsidiaries, taken as a whole, from that
set forth in the Preliminary Memorandum. Furthermore, (1) the Issuers and their
subsidiaries have not incurred any material liability or obligation, direct or
contingent, nor entered into any material transaction not in the ordinary course
of business; (2) neither of the Issuers has purchased any of its outstanding
capital stock, nor declared, paid or otherwise made any dividend or distribution
of any kind on its capital stock other than ordinary and customary dividends;
and (3) there has not been any material change in the capital stock, short-term
debt or long-term debt of the Issuers and their subsidiaries, except in each
case as described in or contemplated by the Final Memorandum.
(n) As of the date of each Memorandum, there were no legal or
governmental proceedings pending or, to the knowledge of the Issuers,
threatened, to which the Issuers or any of their subsidiaries is a party or to
which any of the properties of the Issuer or any of their subsidiaries is
subject other than proceedings accurately described in all material respects in
such Memorandum and proceedings that would not have a material adverse effect on
the Issuers and their subsidiaries, taken as a whole, or on the power or ability
of Holdings or the Note Issuer to perform their respective obligations under the
Transaction Documents, as applicable, or to consummate the transactions
contemplated by the Final Memorandum.
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(o) Neither of the Issuers, nor any of their affiliates (as defined
in Rule 501(b)) of Regulation D under the Securities Act, an "Affiliate") has
directly, or through any agent, (i) sold, offered for sale, solicited offers to
buy or otherwise negotiated in respect of, any security (as defined in the
Securities Act) which is or will be integrated with the sale of the Units, the
Notes or the Warrants in a manner that would require the registration under the
Securities Act of the Units, the Notes or the Warrants or (ii) engaged in any
form of general solicitation or general advertising in connection with the
offering of the Units, the Notes or the Warrants (as those terms are used in
Regulation D under the Securities Act) or in any manner involving a public
offering within the meaning of Section 4(2) of the Securities Act.
(p) Neither of the Issuers is nor, after giving effect to the
offering and sale of the Units and the application of the proceeds thereof as
described in the Final Memorandum, will be an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended.
(q) It is not necessary in connection with the offer, sale and
delivery of the Units, the Notes and the Warrants to the Placement Agents in the
manner contemplated by this Agreement to register the Units, the Notes and the
Warrants under the Securities Act or to qualify the Indenture under the Trust
Indenture Act of 1939, as amended.
(r) The Issuers and their subsidiaries (i) are in compliance with
any and all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), (ii) have received all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct their
respective businesses and (iii) are in compliance with all terms and conditions
of any such permit, license or approval, except where such noncompliance with
Environmental Laws, failure to receive required permits, licenses or other
approvals or failure to comply with the terms and conditions of such permits,
licenses or approvals would not, singly or in the aggregate, have a material
adverse effect on Holdings and its subsidiaries, taken as a whole.
(s) None of the Issuers, any of their Affiliates or any person
acting on their behalf (other than the Placement Agents) has engaged in any
prohibited directed selling efforts (as that term is defined in Regulation S)
with respect to the Units, the Notes or the Warrants and such persons (other
than the Placement Agents) have complied with the offering restrictions
requirement of Regulation S.
(t) The Issuers and their subsidiaries have good and marketable
title in fee simple to all real property and good and marketable title to all
personal property owned by them which is material to the business of Holdings
and its subsidiaries, in each case free and clear of all liens, encumbrances and
defects except such as are described in each Memorandum or such as do not
materially affect the value of such property and do not
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interfere with the use made and proposed to be made of such property by Holdings
and its subsidiaries; and any real property and buildings held under lease by
Holdings and its subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material and do not interfere
with the use made and proposed to be made of such property and buildings by
Holdings and its subsidiaries, in each case except as described in or
contemplated by each Memorandum.
(u) The Issuers and their subsidiaries own or possess all material
patents, patent rights, licenses, inventions, copyrights, know-how (including
trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), service marks and trade names
currently employed by them in connection with the business now operated by them,
and neither Holdings, the Note Issuer nor any of their subsidiaries has received
any notice of infringement of or conflict with asserted rights of others with
respect to any of the foregoing which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would reasonably be
expected to result in any material adverse change in the condition, financial or
otherwise, or in the earnings, business or operations of Holdings and its
subsidiaries, taken as a whole.
(v) No material labor dispute with the employees of Holdings, the
Note Issuer or any of their subsidiaries exists, except as described in or
contemplated by each Memorandum, or, to the knowledge of each of the Issuers, is
imminent; and neither of the Issuers is aware of any existing, threatened or
imminent labor disturbance by the employees of any of its principal suppliers,
manufacturers or contractors that would reasonably be expected to result in any
material adverse change in the condition, financial or otherwise, or in the
earnings, business or operations of Holdings and its subsidiaries, taken as a
whole.
(w) The Issuers and their subsidiaries are insured by insurers of
recognized financial responsibility against such losses and risks and in such
amounts as are prudent and customary in the businesses in which they are
engaged; neither Holdings nor any such subsidiary has been refused any insurance
coverage sought or applied for; and neither Holdings nor any such subsidiary has
any reason to believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its business at a cost that
would not materially and adversely affect the condition, financial or otherwise,
or the earnings, business or operations of the company and its subsidiaries,
taken as a whole, except as described in or contemplated by each Memorandum.
(x) The Issuers and their subsidiaries (i) possess all certificates,
authorizations and permits issued by the appropriate federal, state or foreign
regulatory authorities necessary to conflict their respective businesses
(excepting any certificate, authorization or permit, the failure to possess
which would not reasonably be expected to result in a material adverse change in
the condition, financial or otherwise, or in the earnings, business or
operations of Holdings and its subsidiaries, taken as a whole, except as
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described in or contemplated by each Memorandum) and (ii) have not received any
notice of proceedings relating to revocation or modification of any such
certificate, authorization or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would reasonably be
expected to result in a material adverse change in the condition, financial or
otherwise, or in the earnings, business or operations of Holdings and its
subsidiaries, taken as a whole, except as described in or contemplated by each
Memorandum.
(y) The Issuers and their subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurance that (1)
transactions are executed in accordance with management's general or specific
authorizations; (2) transactions are recorded as necessary to permit preparation
of financial statements in conformity with generally accepted accounting
principles and to maintain asset accountability; (3) access to assets is
permitted only in accordance with management's general or specific
authorization; and (4) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(z) The terms of the Units, the Warrants, the Notes, the Indenture
and the Common Shares conform in all material respects to the description
thereof contained in the Final Memorandum under the headings "Description of the
Units," "Description of the Warrants," "Description of the Notes," and
"Description of Capital Stock," respectively.
(aa) Other than as described in the Final Memorandum or as for which
Holdings or the Note Issuer has agreed to pay, no stamp or other issuance or
transfer taxes or duties are payable by or on behalf of the Placement Agents in
New York State, the United Kingdom, Bermuda or any political subdivision or
taxing authority thereof or therein on (i) the authorization, issue or delivery
by the Issuers of the Units or (ii) assuming all of the following transactions
take place outside New York State, the United Kingdom or Bermuda (and assuming
any instrument granting the Warrants or any transfer of the Warrants or a
beneficial interest in the Global Warrants, is not brought into the United
Kingdom), the deposit of the Units by the Issuers and the issuance of
Book-Entry Interests or beneficial interests in the Global Warrants), the
purchase by the Placement Agents of the Units, the sale and delivery by the
Placement Agents of the Units as described in the Final Memorandum, or the
execution and delivery of the Transaction Documents.
2. Offering. You have advised the Issuers that the Placement Agents
will make an offering of the Units purchased by the Placement Agents hereunder
on tile terms set forth in the Final Memorandum as soon as practicable after
this Agreement is entered into as in your judgment is advisable.
3. Purchase and Delivery. The Issuers hereby agree to sell to the
several Placement Agents, and the Placement Agents, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agree, severally
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and not jointly, to purchase from the Issuers the number of Units set forth in
Schedule II hereto opposite their names at a purchase price of $970.00 per Unit.
Payment for the Units shall be made against delivery of the Units at
a closing (the "Closing") to be held at the offices of Shearman & Sterling, ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, at 10:00 A.M., local time, on October 3,
1996, or at such other time on the same or such other date, not later than
October 15, 1996, as shall be designated in writing by you (the "Closing Date").
Payment for the Units shall be made to the Note Issuer for itself (with respect
to the Notes) and on behalf of Holdings (with respect to the Warrants) in
Federal or other funds immediately available in New York City.
Certificates for the Global Notes (as defined in the Memorandum)
shall be in bearer form and in such denominations as you shall request in
writing not less than one full business day prior to the Closing Date.
Certificates for the Global Warrants (as defined in the Memorandum) shall be in
definitive form and registered in such names and in such denominations as you
shall request in writing not less than one full business day prior to the
Closing Date. The certificates evidencing the Notes and the Warrants shall be
delivered on the Closing Date as you shall request, with any transfer taxes
payable in connection with the transfer of the Units, the Notes or the Warrants
to the Placement Agent duly paid, against payment of the purchase price
therefor.
4. Conditions to Closing. The several obligations of the Placement
Agents under this Agreement to purchase the Units will be subject to the
following conditions:
(a) Subsequent to the date of this Agreement and prior to the
Closing Date, there shall not have occurred any change, or any development which
is reasonably likely to result in a change, in the condition, financial or
otherwise, or in the earnings, business or operations of Holdings and its
subsidiaries, taken as a whole, from that set forth in the Preliminary
Memorandum that, in your judgment, is material and adverse and that makes it, in
your judgment, impracticable to market the Units on the terms and in the manner
contemplated in the Final Memorandum.
(b) You shall have received on the Closing Date certificates, dated
the Closing Date and signed, respectively, by an executive officer of Holdings
and the Note Issuer, to the effect that the representation and warranties of
each of Holdings and the Note Issuer contained in this Agreement are true and
correct in all material respects as of the Closing Date and that each of
Holdings and the Note Issuer has complied with all of the agreements and
satisfied all of the conditions on its part to be performed or satisfied in all
material respects on or before the Closing Date.
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(c) You shall have received on the Closing Date an opinion of
Rosenman & Colin LLP, U.S. counsel for the Issuers, dated the Closing Date, to
the effect set forth in Exhibit D.
(d) You shall have received on the Closing Date an opinion of
▇▇▇▇▇▇▇▇ ▇▇▇▇, UK counsel for the Note Issuer, dated the Closing Date, to the
effect set forth in Exhibit E.
(e) You shall have received on the Closing Date an opinion from
▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇, Bermuda counsel for Holdings, dated the Closing Date,
to the effect set forth in Exhibit F.
(f) You shall have received on the Closing Date opinions of foreign
local counsel in France, Germany, Sweden and Finland, dated the Closing Date, to
the effect set forth in Exhibit G.
(g) You shall have received on the Closing Date an opinion of
Shearman & Sterling, counsel for the Placement Agents, dated the Closing Date,
in form and substance satisfactory to you.
(h) You shall have received on the Closing Date an opinion of
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special U.S. regulatory counsel for the Issuers,
dated the Closing Date, to the effect set forth in Exhibit H.
(i) You shall have received on each of the date hereof and the
Closing Date a letter, dated the date hereof or the Closing Date, as the case
may be, in form and substance satisfactory to you, from the independent public
accountants for the Issuers, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
in the Final Memorandum.
(j) You shall have received on the Closing Date a certificate with
respect to the pro forma financials of Holdings, dated the Closing Date and
signed by an executive officer of Holdings, to the effect set forth in Exhibit
I.
(k) You shall have received on the Closing Date a certificate from
the independent public accountants for the issuers, dated the Closing Date, to
the effect that, based on valuations provided to such accountants, the U.S.
government securities purchased pursuant to the Pledge Agreement are sufficient
to Secure the first six scheduled interest payments due on the Notes.
(l) Each of the Transaction Documents shall have been (or shall,
simultaneously with the Closing, be) executed and delivered by all other parties
thereto and
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the Shareholder Equity Investment shall have been made as described in the Final
Memorandum.
(m) You shall have received on the Closing Date an opinion of
California counsel for Cyberlink, Inc., dated the Closing Date, to the effect
set forth on Exhibit J.
(n) You shall have received such other documents as you and your
counsel shall reasonably request.
5. Covenants of Holdings and the Note Issuer. In further
consideration of the agreements of the Placement Agents contained in this
Agreement, each of Holdings and the Note Issuer covenants as follows:
(a) To furnish to you, without charge, during the period mentioned
in paragraph (c) below, as many copies of either Memorandum and any
supplements and amendments thereto as you may reasonably request and, with
respect to the Final Memorandum to use its best efforts to deliver such
copies to you by 5 p.m. (New York time) on the business day next
following the execution of this Agreement.
(b) Before amending or supplementing either Memorandum, to furnish
to you a copy of each such proposed amendment or supplement and not to use
any such proposed amendment or supplement to which you reasonably object.
(c) If, during such period after the date hereof and prior to the
date on which all of the Units shall have been sold by the Placement
Agents, any event shall occur or condition exist as a result of which it
is necessary in your judgment to amend or supplement the Final Memorandum
in order to make the statements therein, in the light of the circumstances
when such Memorandum is delivered to a purchaser, not misleading, or if,
in the opinion of counsel to the Placement Agents it is necessary to amend
or supplement such Memorandum to comply with applicable law, forthwith to
prepare and finish, at its own expense, to the Placement Agents, either
amendments or supplements to such Memorandum so that the statements in
such Memorandum as so amended or supplemented will not, in the light of
the circumstances when such Memorandum is delivered to a purchaser, be
misleading or so that such Memorandum, as so amended or supplemented, will
comply with applicable law.
(d) To endeavor to qualify the Units, the Notes and the Warrants for
offer and sale under the securities or Blue Sky laws of such jurisdictions
as you shall reasonably request; provided that neither of the Issuers
shall be obligated to file any general consent to service of process or to
qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not so qualified or to subject itself
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to taxation in respect of doing business in any jurisdiction in which it is not
otherwise so subject.
(e) Whether or not any sale of the Units is consummated, to pay all
expenses incident to the performance of its obligations under this
Agreement, including: (i) the preparation of each Memorandum and all
amendments and supplements thereto, (ii) the preparation, issuance and
delivery of the Units (iii) the fees and disbursements of the Issuers'
counsel, accountants, the Trustee and the Warrant Agent and their
respective counsel, (iv) the qualification of the Units, the Notes and the
Warrants under securities or Blue Sky laws in accordance with the
provisions of Section 5(d), including filing fees and the fees and
disbursements of counsel for the Placement Agents in connection therewith
and in connection with the preparation of any Blue Sky or legal investment
memoranda, (v) the printing and delivery to the Placement Agents in
quantities as hereinabove stated of copies of either Memorandum and any
amendments or supplements thereto, (vi) the fees and expenses incurred in
connection with the admission of the Units, the Notes and the Warrants for
trading in PORTAL or any other appropriate market system, (vii) the costs
and expenses of the Issuers relating to investor presentations on any
"road show" undertaken in connection with the marketing of the Units,
including, without limitation, expenses associated with the production of
road show slides and graphics, fees and expenses of any consultants
engaged in connection with the road show presentations with the prior
approval of the Issuers, travel and lodging expense of the representatives
and officers of the Issuers and any such consultants, and the cost of any
aircraft chartered in connection with the road show, subject to the prior
approval of the Issuers and (viii) all other costs and expenses incident
to the performance of the obligations of the Issuers hereunder for which
provision is not otherwise made in this Section, but excluding the fees
and expenses of counsel for the Placement Agents other than as provided in
(iv) above.
(f) Neither of the Issuers nor any Affiliate will sell, offer for
sale or solicit offers to buy or otherwise negotiate in respect of any
security (as defined in the Securities Act) which could be integrated with
the sale of the Units, Notes or Warrants in a manner which would require
the registration under the Securities Act of such Units, Notes or
Warrants.
(g) Not to solicit any offer to buy or offer or sell the Units, the
Notes or the Warrants by means of any form of general solicitation or
general advertising (as those terms are used in Regulation D under the
Securities Act) or in any manner involving a public offering with the
meaning of Section 4(2) of the Securities Act.
(h) While any of the Units, the Notes or the Warrants remain
outstanding, to make available, upon request, to any seller of the Units,
Notes or Warrants the information specified in Rule 144A(d)(4) under the
Securities Act, unless Holdings or
13
the Note Issuer, as applicable, is then subject to Section 13 or 15(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act").
(i) Neither of the Issuers, their Affiliates or any person acting on
its or their behalf (other than the Placement Agents) will engage in any
prohibited directed selling efforts (as that term is defined in Regulation
S) with respect to the Units, Notes or Warrants, and the Issuers and their
Affiliates and each person acting on its or their behalf (other than the
Placement Agents) will comply with the offering restrictions of Regulation
S.
(j) To use its best efforts to permit the Units, the Notes and the
Warrants to be designated PORTAL securities in accordance with the rules
and regulations adopted by the National Association of Securities Dealers,
Inc. relating to trading in the PORTAL Market.
(k) The Issuers will, and will cause the Trustee to, refuse to
register any transfer of the Notes sold pursuant to Regulation S if such
transfer is not made in accordance with the provisions of Regulation S and
the Indenture.
(l) Holdings will, and will cause the Warrant Agent to, refuse to
register any transfer of the Warrants and cause the registrar for the
Warrant Shares to refuse any transfer of the Warrants or the Warrant
Shares sold pursuant to Regulation S, if such transfer is not made in
accordance with the provisions of Regulation S.
6. Offering of Securities: Restrictions on Transfer. (a) Each
Placement Agent, severally and not jointly, represents and warrants that such
Placement Agent is a qualified institutional buyer as defined in Rule 144A
under the Securities Act (a "QIB"). Each Placement Agent, severally and not
jointly, agrees with the Issuers that (i) it will not solicit offers for, or
offer or sell, Units, Notes or Warrants by any form of general solicitation or
general advertising (as those terms are used in Regulation D under the
Securities Act) or in any manner involving a public offering within the meaning
of Section 4(2) of the Securities Act and (ii) it will solicit offers for Units,
Notes, or Warrants only from, and will offer Units, Notes or Warrants only to,
persons that it reasonably believes to be (A)in the case of offers inside the
United States, (x) QIBs or (y) other institutional accredited investors (as
defined in Rule 501(a) (1), (2), (3) or (7) under the Securities Act)
("Institutional Accredited Investors") that, prior to their purchase of the
Units, deliver to such Placement Agent a letter containing the representations
and agreements set forth in Appendix A to the Memorandum and (B) in the case of
offers outside the United States, persons other than U.S. persons ("foreign
purchasers", which term shall include dealers or other professional fiduciaries
in the United States acting on a discretionary basis
14
for foreign beneficial owners (other than an estate or trust)) that, in each
case, in purchasing such Units, Notes or Warrants are deemed to have represented
and agreed as provided in the Final Memorandum under the caption "Transfer
Restrictions."
(b) Each Placement Agent, severally and not jointly, represents,
warrants, and agrees with respect to offers and sales outside the United States
that:
(i) it understands that no action has been or will be taken in any
jurisdiction by either of the Issuers that would permit a pubic offering
of the Units, Notes or Warrants or possession or distribution of either
Memorandum or any other offering or publicity material relating to the
Units, Notes or Warrants in any country or jurisdiction where action for
that purpose is required;
(ii) such Placement Agent will comply with all applicable laws and
regulations in each jurisdiction in which it acquires, offers, sells or
delivers Units, Notes or Warrants or has in its possession or distributes
either Memorandum or any such other material, in all cases at its own
expense;
(iii) the Units, the Notes and the Warrants have not been and will
not be registered under the Securities Act and may not be offered or sold
within the United States except pursuant to an exemption from the
registration requirements of the Securities Act, or outside the United
States except to foreign purchasers in accordance with Regulation S under
the Securities Act;
(iv) such Placement Agent has not offered the Units, the Notes or
the Warrants and will not offer and sell the Units, the Notes or the
Warrants (A) as part of its distribution at any time or (B) otherwise
until 40 days with respect to the Notes and one year after the later of
the commencement of the offering and the Closing Date with respect to the
Warrants, only in accordance with Rule 903 of Regulation S or another
exemption from the registration requirements of the Securities Act, and it
will send to any dealer to whom it sells Notes and Warrants during such
period a confirmation or other notice setting forth the restrictions on
offers and sales of the Units within the United States or to, or for the
account or benefit of, U.S. Persons. Accordingly, neither such Placement
Agent, its Affiliates nor any persons acting on its or their behalf have
engaged or will engage in any prohibited directed selling efforts (within
the meaning of Regulation S) with respect to the Units, the Notes or the
Warrants, and any such Placement Agent, its Affiliates and any such
persons have complied and will comply with the offering restrictions
requirements of Regulation S;
(v) such Placement Agent has (A) not offered or sold and will not
offer or sell any of the Units, Notes or Warrants to persons in the United
Kingdom except to persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments (as principal or
agent) for the purposes of their businesses or otherwise in circumstances
which have not resulted and will not result in an offer to
15
the public in the United Kingdom within the meaning of the Public Offers
of Securities Regulations 1995 (the "Regulations"); (B) complied and will
comply with all applicable provisions of the Financial Services ▇▇▇ ▇▇▇▇
and the Regulations with respect to anything done by in relation to the
Units, the Notes or the Warrants in, from or otherwise involving the
United Kingdom; and (C) only issued or passed on and will only issue or
pass on to any person in the United Kingdom any document received by it in
connection with the issue of the Units, the Notes or the Warrants if that
person is of a kind described in Article 11(3) of the Financial Services
▇▇▇ ▇▇▇▇ (Investment Advertisements) (Exemptions) Order 1995 or is a
person to whom such document may otherwise lawfully be issued or passed
on; and
(vi) such Placement Agent understands that the Units, the Notes and
the Warrants have not been and will not be registered under the Securities
and Exchange Law of Japan, and represents that it has not offered or sold,
and agrees that it will not offer or sell, any Units, Notes or Warrants
directly or indirectly in Japan or to any resident of Japan except (A)
pursuant to an exemption from the registration requirements of the
Securities and Exchange Law of Japan and (B) in compliance with any other
applicable requirements of Japanese law.
Terms used in this Section 6 have the meanings given to them by Regulation S.
7. Indemnification and Contribution. (a) Each of Holdings and the
Note Issuer agrees to indemnify and hold harmless each Placement Agent, and each
person, if any, who controls such Placement Agent within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, or is under
common control with, or is controlled by, such Placement Agent, from and against
any and all losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses reasonably incurred by any Placement
Agent or any such controlling or affiliated person in connection with defending
or investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in either Memorandum (as
amended or supplemented if the Issuers shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to state
therein a material fact necessary to make the statements therein in light of the
circumstances under which they were made not misleading, except (i) insofar as
such losses, claims, damages or liabilities are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information relating to any Placement Agent furnished to the Issuers in writing
by such Placement Agent through you expressly for use therein and (ii) provided
that the foregoing indemnity with respect to the Preliminary Memorandum shall
not inure to the benefit of any Placement Agent from whom the person asserting
any such losses, claims, damages or liabilities purchased Units, or any person
controlling such Placement Agent, if a copy of the Final Memorandum (as then
amended or supplemented if the Issuers shall have furnished any amendments or
supplements thereto) was not sent or given by or on behalf of such Placement
Agent to such person, at or prior to the written confirmation of the sale of the
Units to such
16
person, and if the Final Memorandum (as so amended or supplemented) would have
cured the defect giving rise to such losses, claims, damages or liabilities.
(b) Each Placement Agent agrees, severally and not jointly, to
indemnify and hold harmless each of the Issuers their directors, officers and
each person, if any, who controls each of the Issuers within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act to
the same extent as the foregoing indemnity from each of the Issuers to such
Placement Agent, but only with reference to information relating to such
Placement Agent furnished to the Issuers in writing by such Placement Agent
through you expressly for use in either Memorandum or any amendments or
supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either paragraph (a) or (b) above, such
person (the "indemnified party") shall promptly notify the person against whom
such indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or reasonably
likely potential differing interests between them. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
Co. Incorporated in the case of parties indemnified pursuant to paragraph (a)
above and by Holdings in the case of parties indemnified pursuant to paragraph
(b) above. The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second and third sentences of this paragraph, the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
17
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding.
(d) To the extent the indemnification provided for in paragraph (a)
or (b) of this Section 7 is unavailable to an indemnified party or insufficient
in respect of any losses, claims, damages or liabilities, then each indemnifying
party under such paragraph, in lieu of indemnifying such indemnified party
thereunder, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Note Issuer and Holdings on the one hand, and the Placement Agents, on the other
hand, from the offering of the Units or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Note Issuer and Holdings on the one
hand, and the Placement Agents on the other hand, in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Note Issuer and Holdings on the one hand, and
the Placement Agents on the other hand, in connection with the offering of the
Units shall be deemed to be in the same respective proportions as the net
proceeds from the offering of the Units (before deducting expenses) received by
the Note Issuer and Holdings and the total discounts and commissions received by
the Placement Agents in respect thereof bear to the aggregate offering price of
the Units. The relative fault of the Note Issuer and Holdings, on the one hand,
and of the Placement Agents, on the other hand, shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Note Issuer and Holdings on the one hand,
or by the Placement Agents, and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
The Placement Agents' respective obligations to contribute pursuant to this
Section 7 are several in proportion to the respective principal amount of
Securities they have purchased hereunder, and not joint.
(e) Holdings, the Note Issuer and the Placement Agents agree that it
would not be just or equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even if the Placement Agents were treated as
one entity for such purpose) or by any other method of allocation that does not
take account of the equitable considerations referred to in paragraph (d) above.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in paragraph (d) above shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7, no Placement Agent shall be required to contribute
any amount in excess of the amount by which the total price at which the Units
resold by it in the initial placement of Units were offered to investors exceeds
the amount of any damages that such Placement Agent has otherwise been
18
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The indemnity and contribution provisions contained in this
Section 7 and the representations and warranties of the Placement Agents,
Holdings and the Note Issuer contained in this Agreement shall remain operative
and in full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by or on behalf of the Placement Agents
or any person controlling the Placement Agents or by or on behalf of Holdings or
the Note Issuer, their officers or directors or any person controlling the
Issuers and (iii) acceptance of and payment for any of the Units. The remedies
provided for in this Section 7 are not exclusive and shall not limit any rights
or remedies which may otherwise be available to any indemnified party at law or
in equity.
8. Jurisdiction. Each of the parties hereto agrees that any legal
suit, action or proceeding arising out of or relating to the Transaction
Documents, as applicable, may be instituted in any U.S. federal or New York
State court in the Borough of Manhattan in the City of New York (each a "New
York court") and each of the parties hereto hereby irrevocably waives any
objection which it may now or hereafter have to the laying of venue of any such
proceeding, and irrevocably submits to the jurisdiction of such courts and to
the courts of its corporate domicile, with respect to actions brought against it
as defendant, in any suit, action or proceeding. Holdings and the Note Issuer
each agrees that a final judgment in any such suit, action or proceeding shall
be conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law in accordance with applicable law. Each
of Holdings and the Note Issuer hereby irrevocably waives any right with respect
to matters governed by this Agreement to invoke jurisdiction it may have to any
court by virtue of Bermuda or U.K. law, as applicable.
If for the purposes of obtaining judgment in any court it is
necessary to convert a sum due hereunder into any currency other than United
States dollars, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be the rate at which in
accordance with normal banking procedures ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
could purchase United States dollars with such other currency in the City of New
York on the business day preceding that on which final judgment is given. The
obligation of each of Holdings and the Note Issuer in respect of any sum due
from it to any Placement Agent shall, notwithstanding any judgment in a currency
other than United States dollars, not be discharged until the first business
day, following receipt by such Placement Agent of any sum adjudged to be so due
in such other currency, on which (and only to the extent that) such Placement
Agent may in accordance with normal banking procedures purchase United States
dollars with such other currency; if the United States dollars so purchased are
less that the sum originally due to such Placement Agent hereunder, each of
Holdings and the Note Issuer agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify such Placement Agent against
such loss. If the United States dollars so purchased are greater than the sum
originally due to such Placement Agent hereunder, such Placement Agent agrees to
pay to each of Holdings and the Note Issuer an
19
amount equal to the excess of the dollars so purchased over the sum originally
due to such Placement Agent hereunder.
Each of Holdings and the Note Issuer irrevocably appoints RSL
Communications N. America, Inc. ("RSL USA"), ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (together with any successor, the "Process Agent"), as its
authorized agent in the Borough of Manhattan in the City of New York upon which
process may be served in any such suit, action or proceeding, acknowledges that
the Process Agent has accepted such designation and agrees that service of
process upon the Process Agent, and written notice of such service to Holdings
and the Note Issuer, by the person serving the same, shall be deemed in every
respect effective service of process upon Holdings and the Note Issuer in any
such suit, action or proceeding. RSL USA hereby agrees that prior to any
dissolution, liquidation, winding-up or sale of RSL USA or incorporation of RSL
USA in a jurisdiction outside of the United States, RSL USA shall cause such
obligation of RSL USA to be assumed by (i) CT Corporation System ("CT
Corporation"), ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ or (ii) any other direct
or indirect subsidiary of Holdings organized under the laws of the United States
(provided that such subsidiary also agrees in writing to be bound by the terms
of this sentence as if such terms applied to such subsidiary) as each of
Holdings' and the Note Issuer's authorized agent upon which process may be
served in any such action and agrees to take any and all action as may be
necessary to maintain such designation and appointment of a Process Agent in
full force and effect for so long as any Units, Notes or Warrants shall be
outstanding.
9. Termination. This Agreement shall be subject to termination by
notice given by you to Holdings and the Note Issuer, if (a) after the execution
and delivery of this Agreement and prior to the Closing Date (i) trading
generally shall have been suspended or materially limited on or by, as the case
may be, any of the New York Stock Exchange, the American Stock Exchange, the
National Association of Securities Dealers, Inc., the Chicago Board of Options
Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade, (ii) a
general moratorium on commercial banking activities in New York shall have been
declared by either Federal or New York State authorities or (iii) there shall
have occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in your reasonable judgment,
is material and adverse and (b) in the case of any of the events specified in
clauses (a)(i) through (iii), such event singly or together with any other such
event makes it, in your reasonable judgment, impracticable to market the Units
on the terms and in the manner contemplated in the Final Memorandum.
10. Miscellaneous. If, on the Closing Date, any one or more of the
Placement Agents shall fail or refuse to purchase Units that it or they have
agreed to purchase hereunder on such date, and the amount of Units which such
defaulting Placement Agent or Placement Agents agreed but failed or refused to
purchase is not more than one-tenth of the aggregate amount of Units to be
purchased on such date, the other Placement Agents shall be obligated severally
in the proportions that the amount of Units set forth opposite their respective
names in Schedule I bears to the aggregate principal amount of
20
Units set forth opposite the names of all such non-defaulting Placement Agents,
or in such other proportions as you may specify, to purchase the Units which
such defaulting Placement Agent or Placement Agents agreed but failed or refused
to purchase on such date; provided that in no event shall the amount of Units
that any Placement Agent has agreed to purchase pursuant to Section 3 be
increased pursuant to this Section 10 by an amount in excess of one ninth of
such amount of Units without the written consent of such Placement Agent. If, on
the Closing Date, any Placement Agent or Placement Agents shall fail or refuse
to purchase Units which it or they have agreed to purchase hereunder on such
date and the aggregate amount of Units with respect to which such default occurs
is more than one-tenth of the aggregate amount of Units to be purchased on such
date and arrangements satisfactory to you and the Issuers for the purchase of
such Units are not made within 36 hours after such default, this Agreement shall
terminate without liability on the part of any non-defaulting Placement Agent,
either of Holdings or the Note Issuer. In any such case either you or the
Issuers shall have the right to postpone the Closing Date, but in no event for
longer than seven days, in order that the required changes, if any, in the Final
Memorandum or in any other documents or arrangements may be effected. Any action
taken under this paragraph shall not relieve any defaulting Placement Agent from
liability in respect of any default of such Placement Agent under this
Agreement.
This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
If this Agreement shall be terminated by the Placement Agents, or
any of them, because of any failure or refusal on the part of Holdings or the
Note Issuer to comply with the terms or to fulfill any of the conditions of this
Agreement, or if for any reason either of Holdings or the Note Issuer shall be
unable to perform its obligations under this Agreement, the Note Issuer and/or
Holdings will reimburse the Placement Agents or such Placement Agents as have so
terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Placement Agents in connection with this Agreement
or the offering contemplated hereunder
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
The headings of the sections of this Agreement have been inserted
for convenience of reference only and shall not be deemed a part of this
Agreement.
21
Please confirm your agreement to the foregoing by signing in the
space provided below for that purpose and returning to us a copy hereof,
whereupon this Agreement shall constitute a binding agreement between us.
Very truly yours,
RSL COMMUNICATIONS, LTD.
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
RSL COMMUNICATIONS PLC
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
/s/ N. Tarlovsky
-------------------
Agreed, September 30, 1996
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
BEAR ▇▇▇▇▇▇▇ & CO. INC.
▇▇▇▇▇▇, READ & CO. INC.
By ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By ____________________________
Name:
Title:
21
Please confirm your agreement to the foregoing by signing in the
space provided below for that purpose and returning to us a copy hereof,
whereupon this Agreement shall constitute a binding agreement between us.
Very truly yours,
RSL COMMUNICATIONS, LTD.
By _____________________
Name:
Title:
RSL COMMUNICATIONS PLC
By _____________________
Name:
Title:
Agreed, September 30, 1996
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
BEAR ▇▇▇▇▇▇▇ & CO. INC.
▇▇▇▇▇▇, READ & CO. INC.
By ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Principal
SCHEDULE I
Significant Subsidiaries
International Telecommunications Group, Ltd.
International Telecommunications Corporation
Cyberlink, Inc.
RSL COM France S.A.
RSL COM Germany GmbH
Operating Subsidiaries
International Telecommunications Group, Ltd.
International Telecommunications Corporation
Cyberlink, Inc.
RSL COM UK Ltd.
RSL COM France S.A.
RSL COM Germany GmbH
RSL COM Finland OY f/k/a Cyberlink International OY
Cyberlink Sweden AB
SCHEDULE II
Number of Units
Placement Agent To Be Purchased
--------------- -------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated .................... 195,000
Bear, ▇▇▇▇▇▇▇ & Co. Inc. ............................. 70,000
▇▇▇▇▇▇, Read & Co. Inc. .............................. 35,000
-------
Total ........................ 300,000
=======
EXHIBIT A
---------
[Warrant Agreement]
EXHIBIT B
---------
[Notes Registration Rights Agreement]
EXHIBIT C
---------
[Warrant Registration Rights Agreement]
EXHIBIT D
---------
[Opinion of Rosenman & Colin LLP]
EXHIBIT E
---------
[Opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇ as UK Counsel
for the Note Issuer]
EXHIBIT F
---------
[Opinion of ▇▇▇▇▇▇▇, ▇▇▇▇ &
▇▇▇▇▇▇▇, Bermuda counsel for RSL]
EXHIBIT G
---------
[Local Counsel Opinion]
EXHIBIT H
---------
[Opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ as Special U.S.
Regulatory Counsel]
EXHIBIT I
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RSL COMMUNICATIONS, LTD.
Officers' Certificate
The undersigned, the duly qualified and elected President and Chief
Executive Officer of RSL Communications, Ltd., a Bermuda corporation
("Holdings"), does hereby certify in such capacity and on behalf of Holdings
that:
the pro forma financial information of Holdings contained in the
Offering Memorandum dated [September 30], 1996, complies in every
respect with the requirements of Rules 11-01 and 11-02 of Regulation
S-X that would be applicable to an offering registered under the
Securities Act of 1933.
Dated: [October] __, ▇▇▇▇
▇▇▇ COMMUNICATIONS, LTD.
By:_________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President and Chief Executive
Officer
EXHIBIT J
---------
Opinion of California Counsel
for Cyberlink, Inc.
(A) Cyberlink, Inc. ("Cyberlink") has been duly incorporated and has
the corporate power and authority to own its property and to conduct its
business as described in the Final Memorandum (references herein to the
Final Memorandum being taken to mean the same, as amended or supplemented)
and is validly existing as a corporation in good standing under the laws
of the jurisdiction of its incorporation.
(B) All of the issued shares of capital stock of Cyberlink have been
duly authorized and validly issued and, to such counsel's knowledge, are
fully paid and nonassessable; except as disclosed in the Offering
Memorandum, all of such shares are owned of record by the Company,
directly or through one or more subsidiaries, free and clear of any
perfected security interest or, to our knowledge after due inquiry, any
other pledge, lien, security interest, charge, claim, equity or
encumbrance of any kind; no holder thereof is subject to personal
liability by reason of being such a holder and none of such shares was
issued in violation of the preemptive rights of any stockholder of
Cyberlink pursuant to the certificate of incorporation or by laws of such
Subsidiary or any agreement of such Subsidiary known to such counsel.