FINAL
Exhibit C
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RSL COMMUNICATIONS, LTD.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
CORAL GATE INVESTMENTS LTD.
AND
CERTAIN OTHER PARTIES
REGISTRATION RIGHTS AGREEMENT
Dated as of September 2, 1997
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TABLE OF CONTENTS
Page
1. Definitions................................................................1
2. Demand Registrations.......................................................6
2.1. Lauder Demand Rights .................................................6
2.2. ▇▇▇▇▇▇ Demand Rights .................................................7
2.3. Provisions Applicable to all Demand Registrations ....................7
3. Piggyback Registrations ...................................................9
3.1. Participation in Other Registrations .................................9
3.2. Withdrawal of Piggyback Registrations ...............................10
3.3. Underwritten Registrations ..........................................11
3.4. Participation by Demand Holders .....................................11
4. Registration Procedures ..................................................11
5. Underwritten Registrations ...............................................16
5.1. Selection of Underwriters ...........................................16
5.2. Priority in Underwritten Registrations ..............................16
5.3. Underwriting Agreement ..............................................18
5.4. Holdback Agreements .................................................19
6. Indemnification ..........................................................19
6.1. Indemnification by the Company ......................................19
6.2. Indemnification by the Holders ......................................20
6.3. Notice of Claims, etc. ..............................................21
6.4. Other Indemnifications ..............................................21
6.5. Payment .............................................................22
6.6. Other Remedies ......................................................22
7. Expenses..................................................................22
8. Rules 144 and 144A .......................................................22
9. Amendments and Waivers. .................................................23
10. Nominees for Beneficial Owners...........................................23
11. Notices. ................................................................23
12. Remedies.................................................................25
13. No Other Demand Rights; No Inconsistent Agreements. .....................25
14. Assignment ..............................................................25
14.1. Generally .........................................................25
14.2. Assignment to Pledgees ............................................26
15. Arbitration .............................................................26
16. Miscellaneous............................................................28
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REGISTRATION RIGHTS AGREEMENT, dated as of September 2, 1997, among RSL
COMMUNICATIONS, LTD., a Bermuda company (the "Company"), ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
("Lauder"), ▇▇▇▇▇▇ ▇▇▇▇▇▇ ("▇▇▇▇▇▇"), CORAL GATE INVESTMENTS LTD. ("Coral
Gate"), an international business company organized under the laws of British
Virgin Islands and owned beneficially by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, and the holders of Class B Shares identified on the signature pages
hereof.
W I T N E S S E T H:
WHEREAS, the Company and the other parties hereto wish to agree upon the
manner in which the Company shall provide registration rights to such other
parties for their Registrable Shares (as defined below) after consummation of an
initial public offering (the "IPO") of shares of the Company's Class A Common
Shares par value $.01 per share (the "Class A Common Stock"), as the same may
from time to time be constituted.
NOW, THEREFORE, the parties agree as follows:
1. Definitions. As used in this Agreement, the following terms have the
following meanings:
Business Day: each day other than a Saturday, a Sunday or any other
day on which commercial banks in New York City are authorized or required
by law or executive order to close.
Class A Common Stock: as defined in the first WHEREAS clause of this
Agreement.
Class B Common Stock: the Company's Class B Common Shares, par value
$.01 per share, as the same may from time to time be constituted.
Class B Shares: (a) shares of Class B Common Stock, including, but not
limited to, shares of Class B Common Stock issued or issuable
upon conversion of shares of Preferred Stock, and (b) any securities issued
or issuable with respect to any shares of Class B Common Stock referred to
in the clause (a) upon any conversion or exchange thereof, by way of stock
dividend or stock split, in connection with the combination of shares,
recapitalization, reclassification, merger, consolidation or other
reorganization or otherwise.
Commission: the Securities and Exchange Commission and any successor
federal agency having similar powers.
Company: as defined in the introductory paragraph of this Agreement.
Coral Gate: as defined in the introductory paragraph of this
Agreement.
Deferral Period: as defined in Section 2.3(a).
Delay Notice: as defined in Section 2.3(a).
Demand Holder: each of Lauder and ▇▇▇▇▇▇ and each of their respective
successors and permitted assigns pursuant to Section 14.
Demand Notice: as defined in Section 2.1.
Demand Registration: each Lauder Demand Registration and ▇▇▇▇▇▇ Demand
Registration.
Family Members: with respect to any Person, (a) such Person's (i)
spouse, (ii) direct descendants, (iii) parents, (iv) brothers and sisters
and (v) brothers' and sisters' direct descendants, (b) the respective
estates, guardians, conservators or committees of such Person and each
other Person described in the preceding clause (a) (collectively,
"Specified Family Members"), (c) trusts the primary beneficiaries of which
are any Specified Family Members or their spouses, (d) any not-for-profit
corporation if at least 80% of its board of directors is composed of such
Person and/or Specified Family Members, (e) any other corporation if at
least 80% of the value of its outstanding equity is owned by such Person
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and/or Specified Family Members, (f) partnership if at least 80% of the value of
its partnership interests are owned by such Person and/or Specified Family
Members and (g) any limited liability or similar company if at least 80% of the
value of the company is owned by such Person and/or Specified Family Members.
▇▇▇▇▇▇: as defined in the introductory paragraph of this Agreement.
▇▇▇▇▇▇ Demand Registration: as defined in Section 2.2.
▇▇▇▇▇▇ Employment Agreement: the Employment Agreement dated September
2, 1997 by and between the Company and ▇▇▇▇▇▇.
Holder: each Demand Holder and Piggyback Holder.
IPO: as defined in the first WHEREAS clause of this Agreement.
Lauder: as defined in the introductory paragraph of this Agreement.
Lauder Demand Registration: as defined in Section 2.1.
NASD: National Association of Securities Dealers, Inc.
NASDAO: the NASDAQ Stock Market, Inc.
Non-Oualified Severance Event: termination of ▇▇▇▇▇▇'▇ employment with
the Company pursuant to the ▇▇▇▇▇▇ Employment Agreement other than a
Qualified Severance Event.
Person: an individual, partnership, joint venture, corporation, trust,
unincorporated organization or government or any department or agency
thereof.
Piggyback Holder: each of (i) holders of Class B Shares (including,
without limitation, such holders identified on the signature pages hereof),
(ii) Coral Gate and/or ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇, its beneficial owners, as holders of Class A Common Stock' (iii)
such holders of shares of Class A Common Stock as Lauder and ▇▇▇▇▇▇ shall
designate jointly to the Company in writing, and (iv) each of their
respective successors and permitted assigns pursuant to Section 14.
Piggyback Notice: as defined in Section 3. 1.
Piggyback Registration: a registration of Registrable Shares effected
pursuant to Section 3.1.
Pledgee Holder: as defined in Section 14.2.
Pledaing Holder: as defined in Section 14.2.
Preferred Stock: the Company's preferred shares.
Prospectus: the prospectus included in any Registration Statement,
including all amendments (including, but not limited to, post-effective
amendments) and supplements to such prospectus and all material
incorporated by reference in such prospectus.
Qualified Severance Event: termination of ▇▇▇▇▇▇'▇ employment with the
Company pursuant to the ▇▇▇▇▇▇ Employment Agreement upon (a) a Termination
for Good Reason (as defined in the ▇▇▇▇▇▇ Employment Agreement), (b) a
Termination Without Cause (as defined in the ▇▇▇▇▇▇ Employment Agreement),
(c) the death of ▇▇▇▇▇▇, (d) a Termination due to Disability (as defined in
the ▇▇▇▇▇▇ Employment Agreement), (e) Termination due to Retirement (as
defined in the ▇▇▇▇▇▇ Employment Agreement) or (f) the expiration (without
early termination) of the term of the ▇▇▇▇▇▇ Employment Agreement, as such
term may be extended pursuant to the terms of the ▇▇▇▇▇▇ Employment
Agreement.
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Registrable Shares: (a) shares of Class A Common Stock held by a
Holder and/or such Holder's Family Members, including, but not limited to,
shares of Class A Common Stock issued or issuable upon (i) conversion of
Class B Shares and (~i) exercise of options granted pursuant to any
employment agreement or compensation or incentive plan, and (b) any
securities issued or issuable with respect to any shares of Class A Common
Stock referred to in the preceding clause (a) upon any conversion or
exchange thereof, by way of stock dividend or stock split, in connection
with a combination of shares, recapitalization, reclassification, merger,
consolidation or other reorganization or otherwise. Any particular
Registrable Shares shall cease to be Registrable Shares when (x) a
registration statement with respect to the sale of such Registrable Shares
shall have become effective under the Securities Act and such Registrable
Shares shall have been disposed of in accordance with such registration
statement, (y) such Registrable Shares shall have been distributed to the
public pursuant to Rule 144 (or any successor provision) under the
Securities Act or (z) such Registrable Shares shall have ceased to be
outstanding.
Registration Expenses: All expenses incident to the Company's
performance of or compliance with Section 2, including, but not limited to,
all (a) registration and filing fees, including NASD fees and fees and
expenses associated with filings required to be made with any national
securities exchange or national computerized market system (including, if
required, the fees and expenses of any "qualified independent underwriter"
and its counsel), (b) fees and expenses of complying with securities or
blue sky laws, including reasonable fees and disbursements of counsel
effecting blue sky qualifications, (c) word processing, duplicating and
printing expenses, messenger and delivery expenses, and (d) fees and
disbursements of counsel for the Company, of the Company's independent
public accountants (including the expenses of any special audits or
"comfort" letters required by or incident to such performance and
compliance), of underwriters and of any Person, including special experts,
retained by the Company in connection with such performance and compliance;
but not including any underwriting discounts or commissions attributable to
the sale of Registrable Shares.
Registration Notice: as defined in Section 3.1.
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Registration Statement: a registration statement of the Company
covering Registrable Shares pursuant to this Agreement, including the
Prospectus, all amendments (including, but not limited to, post-effective
amendments) and supplements to such registration statement, all exhibits to
such registration statement and all material incorporated by reference in
such registration statement.
Requesting Holder: with respect to (a) any Demand Registration, the
Holder requesting such registration pursuant to Section 2.1 or Section 2.2,
as the case may be, and (b) any Piggyback Registration, the Holder
requesting to participate in such registration pursuant to Section 3.1.
Securities Act: The Securities Act of 1933, as amended or any similar
replacement federal statute, as at the time in effect, and any reference to
a particular Section of such Act shall include a reference to the
comparable Section, if any, of any such similar replacement federal
statute.
Selling Holder: means a Holder whose Registrable Shares are being
registered pursuant to Section 2.1, Section 2.2 or Section 3.1.
Specified Family Members: as defined in the definition of Family
Members in this Section 1.
Underwritten Offering: an offering of securities of the Company, in
which offering securities are sold to an underwriter for reoffering to the
public.
Underwritten Registration: a registration of securities of the Company
in connection with an Underwritten Offering.
Withdrawal Notice: as defined in Section 2.3(c).
2. Demand Registrations.
2.1. Lauder Demand Rights. At any time after 180 days after the
consummation of the IPO, Lauder may request that the Company effect the
registration under the Securities Act of all or a part of the Registrable Shares
of
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Lauder and Lauder's Family Members by delivering to the Company a written notice
requesting such registration and specifying the number of Registrable Shares to
be included in such registration and the intended method of disposition thereof
(a "Demand Notice"). Subject to Section 2.3, Lauder shall be entitled to have
three separate registrations of such Registrable Shares effected pursuant to
this Section 2.1 (each such registration, a "Lauder Demand Registration").
2.2. ▇▇▇▇▇▇ Demand Rights. At anytime after the occurrence of a Qualified
Severance Event, ▇▇▇▇▇▇ may request that the Company effect the registration
under the Securities Act of all or a part of the Registrable Shares of ▇▇▇▇▇▇
and ▇▇▇▇▇▇'▇ Family Members by delivering to the Company a Demand Notice, which
shall also include ▇▇▇▇▇▇'▇ certification that a Qualified Severance Event has
occurred. ▇▇▇▇▇▇ shall be entitled to have two separate registrations of such
Registrable Shares effected pursuant to this Section 2.2 (each such
registration, a "▇▇▇▇▇▇ Demand Registration").
2.3. Provisions Applicable to all Demand Registrations.
(a) Preparation of Registration. Within ten Business Days after receipt of
a Demand Notice, the Company shall commence in accordance with Section 4 the
registration of the Registrable Shares specified in such Demand Notice, provided
that the Company may delay filing the related Registration Statement for a
reasonable period of time, not to exceed 90 days from the date of receipt of
such Demand Notice (the "Deferral Period"), if the Company (i) would be required
to disclose in such Registration Statement the existence of any fact relating to
a proposed acquisition, financing or other material corporate development, which
disclosure (x) would not otherwise be required to be made and (y) would be, in
the good faith determination of the Board of Directors of the Company,
materially adverse to the Company, (ii) gives written notice to the Requesting
Holder within such ten-Business Day period setting forth, in reasonable detail,
the reasons for such delay and certifying as to the determination of the Board
of Directors of the Company referred to in the preceding clause (i) (a "Delay
Notice"), and (iii) has not given a Delay Notice within the 180-day period
ending on the date of receipt of such Demand Notice.
(b) Limitation on Demand Rights. Notwithstanding anything to the contrary
in this Section 2, the Company shall not be required to effect a Demand
Registration:
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(i) until a period of 180 days shall have elapsed from the effective date
of the Registration Statement in connection with the most recent
Demand Registration previously effected,
(ii) if the aggregate value (as determined in good faith by the Company's
Board of Directors) of the Registrable Shares to be included in such
Demand Registration is less than $50 million, or
(iii) if the Company has previously effected (x) in case of a Demand
Registration requested by Lauder, three Lauder Demand Registrations,
and (y)in the case of a Demand Registration requested by ▇▇▇▇▇▇, two
▇▇▇▇▇▇ Demand Registrations.
(c) Withdrawal of Demand Notice. A Requesting Holder may withdraw a Demand
Notice in the following circumstances by giving the Company written notice of
such withdrawal (a "Withdrawal Notice") within the time provided and prior to
the effectiveness of the related Registration Statement: (i) the Company has
given a Delay Notice and the Withdrawal Notice is given within 30 days after
receipt of such Delay Notice; (ii) a Registration Statement has not become
effective within 120 days after the date of termination of a Deferral Period
with respect to which the Requesting Holder elected not to give a Withdrawal
Notice and the Withdrawal Notice pursuant to this clause (ii) is given within 3
Business Days after the end of such 120-day period; and (iii) a Registration
Statement with respect to which there has been no Deferral Period has not become
effective within 120 days after the date of receipt of the related Demand Notice
and the Withdrawal Notice is given within 3 Business Days after the end of such
120-day period.
(d) Effectinga Demand Registration. For the purposes of Section 2.3(b)(iii)
and the last sentence of Section 2.1 and Section 2.2, a Demand Registration
shall not be deemed to have been effected (i) if (x) a Withdrawal Notice has
been given with respect thereto pursuant to Section 2.3(c) and the Requesting
Holder does not proceed with such registration, (y) the conditions to closing
specified in any purchase agreement or underwriting agreement entered into in
connection with such registration are not satisfied because of an act or
omission
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of the Company and the Requesting Holder does not proceed with such
registration, or (z) if more than one-half of the Registrable Shares requested
to be included in such registration are not included in such registration
pursuant to Section 5, and (ii) in all other cases, unless a Registration
Statement covering the Registrable Shares requested to be registered in such
registration, subject to reduction in number pursuant to Section 5, has become
effective and remained effective for a period of at least 180 days (as such
period may be extended pursuant to the last sentence of Section 4) or, if
earlier, until all the Registrable Shares covered thereby have been sold.
(e) Registration Rights Exclusive. The Company will not register in any
Demand Registration securities for sale for the account of any Person other than
the Requesting Holder, except, subject to Section 5.2(a), (i) equity securities
of the Company to be sold for the account of the Company, (ii) Registrable
Shares of other Holders registered pursuant to Section 3.1 to be sold for the
account of such Holders, (iii) with the prior written consent of the Requesting
Holder in such Demand Registration, securities of the Company to be sold for the
account of any other Person, and (iv) any other Person who holds registration
rights with respect to Class A Common Stock pursuant to an agreement entered
into prior to the date hereof.
(f) Underwritten Registrations. If requested by the Requesting Holder, the
offering of the Registrable Shares to be registered in a Demand Registration
shall be in the form of an Underwritten Offering and provisions of Section 5
will apply thereto.
3. Pigavback Registrations.
3.1. Participation in Other Registrations. After the consummation of the
IPO, any time the Company determines to register any of its equity securities
under the Securities Act (other than on Form ▇-▇, ▇▇▇▇ ▇-▇ or any successor
forms thereto), it will give prompt written notice to all Holders of its
intention to do so (a "Registration Notice"). Upon receipt of a Registration
Notice, each Holder may request that the Company include in the related
registration all or part of the Registrable Shares of such Holder and such
Holder's Family Members by delivering to the Company within 15 Business Days
after receipt of such Registration Notice a written notice specifying the number
of Registrable Shares requested to be included in such registration and
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the intended method of disposition thereof (a "Piggyback Notice"). The Company
will effect in accordance with Section 4 the registration of all Registrable
Shares with respect to which the Company has received a Piggyback Notice
pursuant to this Section 3.1 so as to permit the disposition in accordance with
the reasonable methods specified in such Piggyback Notice. Notwithstanding
anything to the contrary in this Agreement, except with the written permission
of the chairman of the Company, ▇▇▇▇▇▇ shall not request registration pursuant
to this Section 3.1, and the Company shall not effect registration pursuant to
this Section 3.1 of any Registrable Shares of ▇▇▇▇▇▇ and ▇▇▇▇▇▇'▇ Family Members
(a) prior to the occurrence of a Qualified Severance Event, if, after giving
effect to the sale of such Registrable Shares, ▇▇▇▇▇▇ and ▇▇▇▇▇▇'▇ Family
Members would collectively own less than 70% of the shares of Class A Common
Stock owned by ▇▇▇▇▇▇ and ▇▇▇▇▇▇'▇ Family Members on the date of the
consummation of the IPO, including, in both cases, shares of Class A Common
Stock issuable, but not yet issued, upon conversion of Class B Shares, but
excluding, in both cases, shares of Class A Common Stock issuable upon
unexercised warrants and options, or (b) if a Non-Qualified Severance Event has
occurred.
3.2. Withdrawal of Piggvback Registrations.
(a) Bv the Company. At any time after giving a Registration Notice and
prior to the effective date of the related Registration Statement, if the
Company elects not to proceed with such registration, the Company may give
written notice of such election to each Holder and shall have no obligation to
register any Registrable Shares in connection with such registration, provided
that, (a) if such Registration Notice was given in connection with a Demand
Registration, the Company may not elect to not proceed with such registration
without the prior written consent of the Requesting Holder in such Demand
Registration, and (b) in all other cases, such election to not proceed with such
registration shall be without prejudice to the rights of any Demand Holder to
request that such registration be effected as a Demand Registration.
(b) Bv a Requesting Holder. A Requesting Holder that has given a Piggyback
Notice may withdraw its Registrable Shares from the related Piggyback
Registration by giving written notice of such withdrawal to the Company and the
managing underwriter or underwriters, if any, on or before the 30th day prior to
the planned effective date of the related Registration Statement.
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3.3. Underwritten Registrations. If a Registration Notice is given in
connection with an Underwritten Registration, the provisions of Section 5 shall
apply to any Piggyback Registration in connection with such registration.
3.4. Participation by Demand Holders. The registration of a Demand Holder's
Registrable Shares pursuant to Section 3.1 shall not constitute a Demand
Registration for the purposes of Section 2.3(b)(iii) and the last sentence of
Section 2.1 and 2.2.
4. Registration Procedures. If and whenever the Company is required to
effect the registration of any Registrable Shares under the Securities Act
pursuant to Section 2 or Section 3, the Company will promptly:
(a) prepare and file with the Commission as soon as practicable a
Registration Statement with respect to such Registrable Shares and use its
best efforts to cause such Registration Statement to become effective;
(b) prepare and file with the Commission such amendments and
supplements to such Registration Statement and the Prospectus used in
connection therewith as may be necessary to keep such Registration
Statement effective and to comply with the Securities Act and the rules and
regulations thereunder with respect to the disposition of all Registrable
Shares and other securities covered by such Registration Statement until
the earlier of (i) such time as all of such Registrable Shares have been
disposed of by the Selling Holder in accordance with the intended method of
disposition set forth in such Registration Statement and (ii) the
expiration of 180 days after such Registration Statement becomes effective;
and will furnish to each Selling Holder prior to the filing thereof a copy
of any amendment or supplement to such Registration Statement or Prospectus
and shall not file any such amendment or supplement to which any Selling
Holder shall have reasonably objected on the grounds that such amendment or
supplement does not comply in all material respects with the requirements
of the Securities Act or of the rules or regulations thereunder;
(c) furnish to each Selling Holder such number of conformed copies of
such Registration Statement and of each such amendment and supplement
thereto (in each case including all exhibits), such number of
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copies of the Prospectus included in such Registration Statement (including
each preliminary prospectus and any summary prospectus) in conformity with
the requirements of the Securities Act, such documents, if any,
incorporated by reference in such Registration Statement or Prospectus, and
such other documents, as such Holder may reasonably request;
(d) promptly prior to the filing of any document which is to be
incorporated by reference into the Registration Statement or the Prospectus
(after initial filing of the Registration Statement), provide copies of
such document to counsel to each Selling Holder, make the Company's
representatives available for discussion of such document and make such
changes in such document prior to the filing thereof as counsel for such
Holder may reasonably request within 5 days of receipt thereof;
(e) use its best efforts to register or qualify all Registrable Shares
and other securities covered by such Registration Statement under such
other securities or blue sky laws of such jurisdictions as each Selling
Holder shall reasonably request, to keep such registration or qualification
in effect for so long as such Registration Statement remains in effect, and
do any and all other acts and things which may be reasonably necessary to
enable such Holder to consummate the disposition in such jurisdictions of
its Registrable Shares covered by such Registration Statement, except that
the Company shall not for any such purpose be required to qualify generally
to do business as a foreign corporation in any jurisdiction wherein it
would not but for the requirements of this Section 4(e) be obligated to be
so qualified, or to subject itself to taxation in any such jurisdiction, or
to consent to general service of process in any such jurisdiction;
(f) cooperate with the Selling Holders to facilitate the timely
preparation and delivery of certificates representing Registrable Shares to
be sold, which certificates shall not bear any restrictive legends and
shall be in a form eligible for deposit with The Depository Trust Company
or similar depository institution, and enable such Registrable Shares to be
registered in such names as such Holders may request at least two Business
Days prior to any sale of Registrable Shares;
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(g) use its best efforts to cause such Registrable Shares to be
registered with or approved by such other governmental agencies or
authorities as may be necessary to enable each Selling Holder to consummate
the disposition of such Registrable Shares;
(h) furnish to each Selling Holder a signed counterpart, addressed to
such Holder, of (i) an opinion of counsel for the Company, dated the
effective date of such Registration Statement (and, if such registration
includes an underwritten offering, dated the date of the closing under the
underwriting agreement) and (ii) a "comfort" letter, dated the effective
date of such Registration Statement (and, if such registration includes an
underwritten offering, dated the date of the closing under the underwriting
agreement), signed by the independent public accountants who have certified
the Company's financial statements included in such Registration Statement,
covering substantially the same matters with respect to such Registration
Statement (and the Prospectus included therein) and, in the case of such
accountants' letter, with respect to events subsequent to the date of such
financial statements, as are customarily covered in opinions of issuer's
counsel and in accountants' letters delivered to underwriters in
underwritten offerings of securities;
(i) immediately notify each Selling Holder and (if requested by any
such Holder) confirm such advice in writing, (i) when or if the Prospectus
or any prospectus supplement or post-effective amendment has been filed,
and, with respect to the Registration Statement or any posteffective
amendment, when the same has become effective, (ii) of any request by the
Commission for amendments or supplements to the Registration Statement or
the Prospectus or for additional information, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that
purpose, (iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Registrable Shares
for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose and (v) of the existence of any fact which
makes any statement made in the Registration Statement, the Prospectus or
any document incorporated therein by reference untrue or which requires the
making of any changes in the Registration Statement,
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the Prospectus or any document incorporated therein by reference in order
to make the statements therein not misleading;
(j) if any fact contemplated by clause (v) of Section 4(i) shall
exist, prepare a supplement or post-effective amendment to the Registration
Statement or the related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter
delivered to the purchaser of the Registrable Shares the Prospectus will
not contain an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not misleading;
(k) use reasonable efforts to obtain the withdrawal of any order
suspending the effectiveness of the Registration Statement at the earliest
possible moment;
(1) otherwise use its best efforts to comply with all applicable rules
and regulations of the Commission, and make available to its shareholders,
as soon as reasonably practicable, an earnings statement covering the
period of at least twelve months, but not more than eighteen months,
beginning with the first month of the first fiscal quarter after the
effective date of such Registration Statement, which earnings statement
shall satisfy the provisions of Section 1l(a) of the Securities Act and
Rule 158 under the Securities Act;
(m) provide and cause to be maintained transfer agents and registrars
for all Registrable Shares covered by such Registration Statement from and
after a date not later than the effective date of such Registration
Statement and obtain a CUSIP number for such Registrable Shares;
(n) cause all Registrable Shares covered by such Registration
Statement to be listed on each securities exchange on which similar
securities issued by the Company are then listed or, if no such securities
are then listed, on a national exchange selected by the Company, if such
listing is then permitted under the rules of such exchange, or, if such
listing is not practicable, to cause all such Registrable Shares to be
designated as "national market system securities" within the meaning of
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Rule 11(A)(a)2-1 under the Exchange Act or, failing that, to secure NASDAQ
authorization for such Registrable Shares and, without limiting the
foregoing, to arrange for at least two market makers to register as such
with respect to such securities within the NASD; and
(o) give each Selling Holder and its underwriters, if any, and their
respective counsel and accountants, the opportunity to participate in the
preparation of such Registration Statement, each Prospectus included
therein or filed with the Commission, and each amendment thereof or
supplement thereto, and, upon reasonable notice and at reasonable times,
each of them such access to its books and records and such opportunities to
discuss the business of the Company with its officers and the independent
public accountants who have certified its financial statements as shall be
necessary, in the opinion of such Holders and such underwriters or their
respective counsel, to conduct a reasonable investigation within the
meaning of the Securities Act.
Each Selling Holder agrees to furnish the Company such information
regarding such Holder and the distribution of its Registrable Shares being
registered as the Company may from time to time reasonably request in writing,
and to notify the Company of any material change therein, and the Company may
exclude from registration the Registrable Shares of any such Holder that fails
to furnish such information within a reasonable time after receiving such
request.
Each Selling Holder agrees that, upon receipt of any notice from the
Company of the existence of any fact of the kind described in clause (v) of
Section 4(i), such Holder will forthwith discontinue disposition of Registrable
Shares pursuant to the Registration Statement covering such Registrable Shares
until such Holder's receipt of the copies of the supplemented or amended
Prospectus contemplated by Section 4(j), or until it is advised in writing (the
"Advice") by the Company that the use of the Prospectus may be resumed, and has
received copies of any additional or supplemental filings which are incorporated
by reference in the Prospectus, and, if so directed by the Company, such Holder
will deliver to the Company (at the Company's expense) all copies, other than
permanent file copies then in such Holder's possession, of the Prospectus
covering such Registrable Shares current at the time of receipt of such notice.
In the event the Company shall give any such notice, the time
15
periods regarding the effectiveness of Registration Statements set forth in
Section 4(b) shall be extended by the number of days during the period from and
including the date of the giving of such notice pursuant to clause (v) of
Section 4(i) to and including the date when each Selling Holder of Registrable
Shares covered by such Registration Statement shall have received the copies of
the supplemented or amended Prospectus contemplated by Section 4(j) or the
Advice.
5. Underwritten Registrations.
5.1. Selection of Underwriters. In the case of a Demand Registration in
connection with an Underwritten Offering pursuant to Section 2.3(f), the
managing underwriter or underwriters that will administer such Underwritten
Offering will be selected by the Requesting Holder in such Demand Registration,
subject to the approval of the Company, such approval not to be unreasonably
withheld. In the case of a Piggyback Registration in connection with an
Underwritten Registration, (a) if such Piggyback Registration is in connection
with a Demand Registration, the preceding sentence shall apply, and (b) in all
other cases, the managing underwriter or underwriters that will administer the
related Underwritten Offering will be selected by the Company.
5.2. Priority in Underwritten Registrations
(a) Demand Registrations. In the case of a Demand Registration in
connection with an Underwritten Offering, if the managing underwriter or
underwriters in such Underwritten Offering determines in good faith that the
total number of securities proposed to be included in such Underwritten Offering
exceeds the number which can be sold without adversely affecting the offering
price, the Company will include in such Demand Registration to the extent of the
number of securities which the Company is so advised can be sold in such
Underwritten Offering without such adverse effect:
first, the Registrable Shares proposed to be sold by the Requesting
Holder in such Demand Registration, until all such Registrable Shares are
included;
16
second, in the case of a Lauder Demand Registration prior to the
occurrence of a Qualified Severance Event and so long as a Non-Qualified
Severance Event has not occurred, any Registrable Shares with respect to
which the Company has received from ▇▇▇▇▇▇ a Piggyback Notice pursuant to
Section 3.1, until all such Registrable Shares are included;
third, any securities proposed to be sold by the Company for its own
account, until all such securities are included;
fourth, any Registrable Shares with respect to which the Company has
received from any Requesting Holder a Piggyback Notice pursuant to Section
3.1 (and not included under priority "second" above), pro rata among such
Requesting Holders as have given such Piggyback Notices, on the basis of
the number of Registrable Shares such Requesting Holders have requested to
be included in such registrations pursuant to such Piggyback Notices, until
all such Registrable Shares are included; and
fifth, any securities proposed to be sold for the account of any
Person, the inclusion of which securities in the Demand Registration has
been consented to by the Requesting Holder pursuant to Section 2.3(e)
(iii).
provided that the foregoing shall be subject to, and superseded by, the
registration rights of Persons who hold stock or securities convertible into
stock of the Company, as such rights are set forth in agreements of the Company
entered into prior to the date hereof.
(b) Piggyback Registrations. In the case of a Piggyback Registration in
connection with an Underwritten Registration, (a) if such Piggyback Registration
is in connection with a Demand Registration, Section 5.2(a) shall apply, and (b)
in all other cases, if the managing underwriter or underwriters determine in
good faith that the total number of securities proposed to be included in such
Underwritten Offering exceeds the number which can be sold without adversely
affecting the offering price, the Company will include in such registration to
the extent of the number of securities which the Company is
17
so advised can be sold in such Underwritten Offering without such adverse
affect:
first, any securities proposed to be sold by the Company for its own
account, until all such securities are included;
second, prior to the occurrence of a Qualified Severance Event and so
long as a Non-Qualified Severance Event has not occurred, any Registrable
Shares with respect to which the Company has received from ▇▇▇▇▇▇ a
Piggyback Notice pursuant to Section 3.1, until all such Registrable Shares
have been included;
third, any Registrable Shares with respect to which the Company has
received from any Requesting Holder a Piggyback Notice pursuant to Section
3.1 (and not included under priority "second" above), pro rata among such
Requesting Holders as have given such Piggyback Notices, on the basis of
the number of Registrable Shares such Requesting Holders have requested to
be included in such registration pursuant to such Piggyback Notices, until
all such Registrable Shares are included; and
fourth, any securities of the Company proposed to be sold for the
account other of any other Person pursuant to an agreement entered into by
the Company subsequent to the date hereof.
provided that the foregoing shall be subject to, and superseded by, the
registration rights of Persons who hold stock or securities convertible into
stock of the Company, as such rights are set forth in agreements of the Company
entered into prior to the date hereof.
5.3. Underwriting Agreement. If requested by the underwriters for any
Underwritten Offering of Registrable Shares in connection with a Demand
Registration or a Piggyback Registration, the Company will enter into an
underwriting agreement with such underwriters for such offering, such agreement
to contain such representations and warranties by the Company and such other
terms and provisions as are customarily contained in underwriting agreements
with respect to secondary distributions, including, but not limited to,
indemnities to the effect and to the extent provided in Section 6, provisions
for
18
the delivery of officers' certificates, opinions of counsel and accountants'
"comfort" letters and hold-back arrangements. The Holders on whose behalf
Registrable Shares are to be distributed by such underwriters shall be parties
to any such underwriting agreement and the representations and warranties by,
and the other agreements on the part of, the Company to and for the benefit of
such underwriters, shall also be made to and for the benefit of such Holders and
any or all of the conditions precedent to the obligations of such underwriters
under such underwriting agreement shall also be conditions precedent to the
obligations of such Holders. Such Holders of Registrable Shares shall not be
required by the Company to make any representations or warranties to or
agreements with the Company or the underwriters other than reasonable
representations, warranties or agreements regarding such Holder, such Holder's
Registrable Shares and such Holder's intended method or methods of disposition
and any other representation required by law.
5.4. Holdback Agreements.
(a) By Holders. In the case of any Demand Registration or Piggyback
Registration in connection with an Underwritten Offering, each Holder agrees, if
so required by the managing underwriter or underwriters in such Underwritten
Offering, not to effect any public sale or distribution of Registrable Shares
(other than as part of such Underwritten Offering) or other equity securities of
the Company during the seven days prior to the effective date of the related
Registration Statement or 180 days after the effective date of such Registration
Statement.
(b) By the Company. In the case of any Demand Registration or Piggyback
Registration in connection with an Underwritten Offering, the Company agrees not
to effect any public sale or distribution of its equity securities during the
seven days prior to the effective date of the related Registration Statement or
180 days after the effective date of such Registration Statement, except
pursuant to registrations on Form ▇-▇, ▇▇▇▇ ▇-▇ or any successor forms thereto.
6. Indemnification.
6.1. Indemnification by the Company. In the event of any registration of
any Registrable Shares under the Securities Act pursuant to
19
Section 2 or 3, the Company shall indemnify and hold harmless the Holder of such
Registrable Shares, its officers, directors and employees and each Person, if
any, who controls such Holder within the meaning of Section 15 of the Securities
Act, against all losses, claims, damages, liabilities (or proceedings in respect
thereof) and expenses (under the Securities Act or common law or otherwise),
joint or several, arising out of or based upon any untrue statement or alleged
untrue statement of a fact contained in any Registration Statement or Prospectus
(and as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) or any preliminary Prospectus or caused by
any omission or alleged omission to state therein a fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, darnages,liabilities (or proceedings in respect
thereof) or expenses are caused by any untrue statement or alleged untrue
statement contained in or by any omission or alleged omission from information
furnished in writing to the Company by such Holder expressly for use therein. If
the offering pursuant to any Registration Statement provided for herein is made
through underwriters, no action or failure to act on the part of such
underwriters (whether or not such underwriter is an affiliate of any Holder of
Registrable Shares) shall affect the obligations of the Company to indemnify any
Holder of Registrable Shares or any other Person pursuant to the preceding
sentence. If the offering pursuant to any Registration Statement provided for
under this Agreement is made through underwriters, the Company agrees to enter
into an underwriting agreement in customary form with such underwriters and the
Company agrees to indemnify such underwriters, their officers, directors and
employees and each Person, if any, who controls such underwriters within the
meaning of Section 15 of the Securities Act to the same extent as hereinbefore
provided with respect to indemnification of the Holders of Registrable Shares.
6.2. Indemnification by the Holders. In connection with any Registration
Statement in which a Holder of Registrable Shares is participating, each such
Holder agrees to indemnify and hold harmless the Company, its officers and
directors and each Person, if any, who controls the Company within the meaning
of Section 15 of the Securities Act, against any losses, claims, damages,
liabilities, (or proceedings in respect thereof and expenses (under the
Securities Act or common law or otherwise), joint or several, arising out of or
based upon any untrue statement or alleged untrue statement of a fact contained
in any Registration Statement or Prospectus (and as amended or supplemented if
20
the Company shall have furnished any amendments or supplements thereto) or any
preliminary Prospectus or caused by any omission or alleged omission to state
therein a fact required to be stated therein or necessary to make the statements
therein not misleading, but only to the extent that such untrue statement is
contained in or such omission is from information so furnished in writing by
such Holder expressly for use therein.
6.3. Notice of Claims. etc. Any Person entitled to indemnification under
the provisions of this Section 6 shall (a) give prompt notice to the
indemnifying party of any claim with respect to which it seeks indemnification
and (b) unless in such indemnified party's reasonable judgment a conflict of
interest between such indemnified and indemnifying parties may exist in respect
of such claim, permit such indemnifying party to assume the defense of such
claim, with counsel reasonably satisfactory to the indemnified party; and if
such defense is so assumed, such indemnifying party shall not enter into any
settlement without the consent of the indemnified party if such settlement
attributes liability to the indemnified party and such indemnifying party shall
not be subject to any liability for any settlement made without its consent
(which shall not be unreasonably withheld); and any underwriting agreement
entered into with respect to any Registration Statement provided for under this
Agreement shall so provide. In the event an indemnifying party shall not be
entitled, or elects not, to assume the defense of a claim, such indemnifying
party shall not be obligated to pay the fees and expenses of more than one
counsel or firm of counsel for all parties indemnified by such indemnifying
party in respect of such claim, unless in the reasonable judgment of any such
indemnified party a conflict of interest may exist between such indemnified
party and any other of such indemnified parties in respect of such claim. Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of a participating Holder of Registrable Shares its
officers, directors or any Person, if any, who controls such Holder as
aforesaid, and shall survive the transfer of such Shares by such Holder.
6.4. Other Indemnifications. Indemnification similar to that specified in
the preceding subdivisions of this Section 6 (with appropriate modifications)
shall be given by the Company to each Holder of Registrable Shares, on the one
hand, and by each Holder of Registrable Shares to the Company, on the other
hand, with respect to any required registration or other
21
qualification of such Registrable Shares under any federal or state law or
regulation of any governmental authority other than the Securities Act.
6.5. Payment. indemnification required by this Section 6 shall be made by
periodic payments of the amount thereof during the course of the investigation
or defense, as and when bills are received or expense, loss, damage or liability
is incurred. Any indemnified party receiving indemnification payments will repay
the same to the Company in the event it is ultimately determined that such
indemnification payments were not permitted by applicable law.
6.6. Other Remedies. If for any reason the foregoing indemnity is
unavailable, or is insufficient to hold harmless an indemnified party, other
than by reason of the exceptions provided therein, then the indemnifying party
shall contribute to the amount paid or payable by the indemnified party as a
result of such losses, claims, damages, liabilities or expenses (a) in such
proportion as is appropriate to reflect the relative benefits received by the
indemnifying party on the one hand and the indemnified party on the other from
the offering of Registrable Shares (taking into account the portion of the
proceeds of the offering realized by each such party) or (b) if the allocation
provided by clause (a) above is not permitted by applicable law, or provides a
lesser sum to the indemnified party than the amount hereinafter calculated, in
such proportion as is appropriate to reflect not only the relative benefits
received by the indemnifying party on the one hand and the indemnified party on
the other but also the relative fault of the indemnifying party and the
indemnified party as well as any other relevant equitable considerations.
7. Expenses. The Company will pay all Registration Expenses in connection
with registrations of Registrable Shares pursuant to Section 2 and Section 3
whether or not such registration becomes effective.
8. Rules 144 and 144A. The Company will file the reports required to be
filed by it under the Securities Act and the rules and regulations adopted by
the Commission thereunder (or, if the Company is not required to file such
reports, will? upon the request of any Holder of Registrable Shares, make
publicly available other information), and will take such further action as any
Holder of Registrable Shares may reasonably request, all to the extent required
from time to time to enable such Holder to sell Registrable Shares
22
without registration under the Securities Act within the limitation of the
exemptions provided by (a) Rule 144 under the Securities Act, as such Rule may
be amended from time to time, (it) Rule 144A under the Securities Act, as such
Rule may be amended from time to time, or (c) any similar rule or regulation
hereafter adopted by the Commission. Upon the request of any Holder of
Registrable Shares, the Company will deliver to such Holder a written statement
as to whether it has complied with such requirements.
9. Amendments and Waivers. This Agreement may be amended and the Company
may take any action herein prohibited, or omit to perform any act herein
required to be performed by it, only if the Company shall have obtained the
written consent to such amendment, action or omission to act of the parties
hereto. Each Holder of any Registrable Shares at the time shall be bound by any
amendment, consent or waiver authorized by this Section 9, whether or not such
Registrable Shares shall have been marked to indicate such amendment, consent or
waiver.
10. Nominees for Beneficial Owners. In the event that any Registrable
Shares are held by a nominee for the beneficial owner thereof, the beneficial
owner thereof may, at its election, be treated as the Holder of such Registrable
Shares for purposes of any request or other action by any Holder or Holders of
Registrable Shares pursuant to this Agreement or any determination of any number
or percentage of Registrable Shares held by any Holder or Holders of Registrable
Shares contemplated by this Agreement. If the beneficial owner of any
Registrable Shares so elects, the Company may require assurances reasonably
satisfactory to it of such owner's beneficial ownership of such Registrable
Shares.
11. Notices. All notices and other communications given pursuant to this
Agreement shall be in writing and shall be deemed to have been duly given (a) on
receipt, if delivered personally, (b) three Business Days after it has been
mailed by first-class, registered or certified mail, return receipt requested,
postage prepaid, (c) the next Business Day after it has been sent by nationally
recognized overnight courier (appropriately marked for overnight delivery); or
(d) upon transmission, if it is sent by telecopy (with request for immediate
confirmation of receipt in a manner customary for communications of such type):
23
(i) if to the Company, to:
RSL Communications, Ltd.
Clarendon House
Church Street
Hamilton, Bermuda
Attention: President and CEO
with a copy to:
Rosenman & Colin LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇
(ii) if to Lauder, to:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇▇▇▇▇
with a copy to:
Debevoise & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
(iii) if to ▇▇▇▇▇▇, to:
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇ ▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
24
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(iv) if to any other Holder of Registrable Shares, to such address as
shall have been provided in accordance with this Section 11,
or, in each case, at such other address as may be specified in writing (in
accordance with the terms of this Section 11).
12. Remedies. Each Holder of Registrable Shares in addition to being
entitled to exercise all rights provided herein and granted by law, including
recovery of damages, will be entitled to specific performance of its rights
under this Agreement. The Company agrees that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by it of the
provisions of this Agreement and hereby agrees to waive the defense in any
action for specific performance that a remedy at law would be adequate.
13. No Other Demand Rights; No Inconsistent Agreements. The Company will
not, on or after the date of this Agreement enter into any agreement with
respect to its securities that is inconsistent with the rights granted to the
Holders of Registrable Shares in this Agreement or otherwise conflicts with the
provisions hereof. As of the date hereof, (i) no Person has any right to require
the Company to register under the Securities Act securities of the Company
except pursuant to this Agreement and certain agreements entered into prior lo
the date hereof, and (ii) except as indicated in Sections 5.2(a) and 5.2(b), the
rights granted to the Holders of Registered Shares hereunder do not in any way
conflict with and are not inconsistent with the rights granted to the Holders of
the Company's securities under any other agreements.
14. Assignment.
14.1. Generally. Neither this Agreement nor any other rights, interests or
obligations hereunder may be assigned by any of the parties hereto, except as
provided in Section 14.2 and (a) in the case of the Company, by operation of
law, and (b) in the case of each Holder, to the Family Members of such Holder.
Each permitted assignee pursuant to this Section 14 shall be deemed to have
agreed to be bound by the terms of this Agreement.
25
14.2. Assigurnent to Pledgees. Each Demand Holder may assign its rights
hereunder to a pledgee in connection with a pledge of Registrable Shares by such
Demand Holder (a "Pledging Holder") to secure obligations of such Demand Holder
to such pledgee (a "Pledgee Holder"). Notwithstanding anything to the contrary
in this Agreement, the following shall apply to any exercise by a Pledgee Holder
of the rights assigned to it pursuant to this Section 14.2:
(a) A Pledgee Holder may give, but may only give, a Demand Notice pursuant
to Section 2.1 or 2.2, as the case may be, or a Piggyback Notice pursuant to
Section 3.1, after a default by the Pledging Holder in respect of its
obligations to such Pledgee Holder secured by Registrable Shares of such
Pledging Holder;
(b) Subject to the preceding clause (a), a Pledgee Holder may give a Demand
Notice pursuant to Section 2.1 or Section 2.2, as the case may be, or a
Piggyback Notice pursuant to Section 3.1 with respect to, but only with respect
to, all or part of the Registrable Shares of the Pledging Holder then pledged
to, or owned as a result of foreclosure thereon by, such Pledgee Holder;
(c) If any Registrable Shares have been registered on behalf of any Pledgee
Holder pursuant to this Section 14.2 at a time when such Registrable Shares were
pledged to such Pledgee Holder, and not owned by such Pledgee Holder as a result
of foreclosure thereon, for the purposes of the obligations of a Holder of
registrable Shares pursuant to Section 6.2, Section 6.4 and Section 6.6, the
Holder of such Registrable Shares shall be deemed to be the Pledging Holder and
not such Pledgee Holder; and
(d) Each Pledgee Holder shall be entitled to receive a copy of all notices
to the Pledging Holder, provided an address of such Pledgee Holder for such
notices has been given pursuant to Section 11.
15. Arbitration. (a) All disputes and controversies related to this
Agreement shall be fully and finally resolved by binding and non-appealable
arbitration, before a single arbitrator selected by the procedure set forth
below, held in New York City.
26
(b) The single arbitrator (the "Arbitrator") shall be selected from among
the New York City members of the New York Regional Panel of Distinguished
Neutrals (the "Panel") of the Center for Public Resources ("CPR") by mutual
agreement of the disputing parties, or if the disputing parties are unable to
agree, by the following means:
(i) The disputing parties shall simultaneously exchange lists each
containing the names of five members of their choice of the Panel who have
indicated a willingness to serve.
(ii) If a single name appears on all lists, that individual shall be
appointed.
(iii) If more than one name appears on all lists, the Arbitrator shall
be selected from the common names by mutual agreement of the disputing
parties or by lot.
(iv) If the lists contain no names in common, four names shall be
stricken from each disputing party's list by the other disputing parties
and the Arbitrator shall be selected from the remaining names by mutual
agreement of the disputing parties or by lot.
(v) If the CPR ceases to have a Panel or it is otherwise impossible to
select the Arbitrator from the Panel as contemplated by this Agreement, the
Arbitrator shall be selected by the President of the CPR in the manner that
the President deems closest to satisfying the purposes of this Section, or,
if such person is unable to do so, by the President of the Association of
the Bar of the City of New York.
(c) The Arbitrator, after appropriate consultation with the disputing
parties, shall (i) determine, in his or her sole discretion, the rules governing
the arbitration proceeding, including whether and to what extent the parties
shall have any right to pre-hearing discovery or other forms of disclosure, the
manner of presentation of arguments and/or evidence before or at any hearing,
whether and to what extent formal rules of evidence shall govern the proceeding
and the parties' rights following the proceeding, and (ii) be
27
governed in exercising such discretion by the goal of reaching a fair and
reasonable decision in an expeditious and efficient manner while endeavoring to
streamline the process and avoid undue litigation costs.
(d) The Arbitrator shall assess the costs of the proceeding (including the
prevailing disputing party's reasonable attorney's fees) on any unsuccessful
disputing party to the extent the Arbitrator concludes that such disputing party
is unsuccessful, unless he or she concludes that matters of equity or important
considerations of fairness dictate otherwise.
(e) The Arbitrator shall be required to state his or her decision in
writing and may, but shall not be required to, elaborate on the reasons for such
decision.
(f) All proceedings in connection with any arbitration, including its
existence, the content of the proceedings and any decision, shall be kept
confidential to the maximum extent possible consistent with the law.
16. Miscellaneous. This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the respective successors and permitted assigns
pursuant to Section 14 of the Company and each Holder. This Agreement embodies
the entire agreement and understanding between the Company and the other parties
hereto and supersedes all prior agreements and understandings relating to the
subject matter hereof. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK. 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. The headings in this Agreement are for purposes of
reference only and shall not limit or otherwise affect the meaning hereof. This
Agreement may be executed in any number of counterparts, each of which shall be
an original, but all of which together shall constitute one instrument.
28
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
and delivered by their respective officers "hereunto duly authorized as of the
date first above written.
RSL COMMUNICATIONS, LTD.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name:
Title:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
R.S. ▇▇▇▇▇▇, ▇▇▇▇▇▇ & CO., L.P.
By: Bukfenc Inc., General Partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:
▇▇▇▇▇▇ INVESTMENT PARTNERS, L.P.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name:
Title: President
29
▇▇▇▇▇▇ ▇▇▇▇▇▇ VENTURES LLC
By: Bukfenc LLC, General Partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:
▇▇▇▇▇▇▇▇ FAMILY PARTNERS I, L.P.
By: /s/ illegible
------------------------------
Name:
Title: General Partner
TARLOVSKY INVESTMENT PARTNERS,L.P.
By: /s/ Nir Tarlovsky
-----------------------------
Name: Nir Tarlovsky
Title: General Partner
/s/ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
CORAL GATE INVESTMENTS LTD.
By:
-------------------------------
Name:
Title:
30
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
and delivered by their respective officers thereunto duly authorized as of the
date first above written.
RSL COMMUNICATIONS, LTD.
By:
-------------------------------
Name:
Title:
----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
R.S. ▇▇▇▇▇▇, ▇▇▇▇▇▇ & CO., L.P.
By: Bukfenc Inc., General Partner
By:
-------------------------------
Name:
Title:
▇▇▇▇▇▇ INVESTMENT PARTNERS, L.P.
By:
-------------------------------
Name:
Title: President
29
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
31
