INVESTMENT AND NOTE PURCHASE AGREEMENT
BY AND AMONG
VIATEL HOLDING (BERMUDA) LIMITED
AND
THE PURCHASERS LISTED ON SCHEDULE 1 HERETO
AND
THE SPECIAL SHARE PURCHASER
DATED AS OF
APRIL 21, 2004
TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions.................................................................................. 1
ARTICLE II
SALE AND PURCHASE OF THE SECURITIES
Section 2.01. Offer to Sell and to Purchase; Purchaser Price............................................... 8
Section 2.02. Delivery of and Payment for the Notes........................................................ 8
ARTICLE III
REPRESENTATIONS, WARRANTIES AND AGREEMENTS
OF THE COMPANY
Section 3.01. Organization and Standing.................................................................... 9
Section 3.02. Subsidiaries................................................................................. 9
Section 3.03. Capital Stock................................................................................ 9
Section 3.04. Corporate Power.............................................................................. 10
Section 3.05. Authorization; Enforceability................................................................ 10
Section 3.06. Securities Act; Trust Indenture Act.......................................................... 11
Section 3.07. No Violation; Consents....................................................................... 12
Section 3.08. Financial Statements; SEC Reports............................................................ 12
Section 3.09. No Litigation................................................................................ 13
Section 3.10. Compliance with Constituent Documents; No Defaults........................................... 14
Section 3.11. Licenses; Permits............................................................................ 14
Section 3.12. Taxes........................................................................................ 14
Section 3.13. Investment Company Act; Public Utility Holding Company Act................................... 14
Section 3.14. Internal Controls............................................................................ 15
Section 3.15. Insurance.................................................................................... 15
Section 3.16. Intellectual Property........................................................................ 15
Section 3.17. Assets....................................................................................... 15
Section 3.18. Labor Matters................................................................................ 15
Section 3.19. Employee Matters............................................................................. 16
Section 3.20. Environmental Matters........................................................................ 16
Section 3.21. Corrupt Practices Act........................................................................ 16
Section 3.22. Solvency..................................................................................... 16
Section 3.23. Regulation T, U, X........................................................................... 17
Section 3.24. No Brokers................................................................................... 17
Section 3.25. Securities Law Matters....................................................................... 17
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Section 3.26. Absence of Changes........................................................................... 18
Section 3.27. Compliance with Laws......................................................................... 18
Section 3.28. Certain Contracts............................................................................ 18
Section 3.29. No Materal Misstatements..................................................................... 19
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
Section 4.01. Organization; Authorization; Enforceability.................................................. 20
Section 4.02. Private Placement............................................................................ 20
Section 4.03. No Violation; Consents....................................................................... 21
Section 4.04. ERISA....................................................................................... 22
ARTICLE V
COVENANTS OF THE COMPANY
Section 5.01. Access to Books and Records.................................................................. 22
Section 5.02. Compliance with Conditions; Commercially Reasonable Efforts.................................. 22
Section 5.03. Consents and Approvals....................................................................... 22
Section 5.04. Reservation of Shares........................................................................ 23
Section 5.05. Use of Proceeds.............................................................................. 23
Section 5.06. Rule 144A Information........................................................................ 23
Section 5.07. Integration.................................................................................. 23
Section 5.08. No Public Offering........................................................................... 23
Section 5.09. Communication................................................................................ 23
Section 5.10. FCC Authorizations........................................................................... 23
ARTICLE VI
CONDITIONS PRECEDENT
Section 6.01. Conditions Precedent to Purchasers' and Special Share Purchaser's Obligations................ 24
Section 6.02. Conditions to the Company's Obligations in Respect of the Closing Date....................... 26
ARTICLE VII
SURVIVAL; INDEMNIFICATION
Section 7.01. Survival of Representations and Warranties................................................... 27
Section 7.02. Indemnification.............................................................................. 28
Section 7.03. Non Exclusive Remedy......................................................................... 29
Section 7.04. Deferral of Payment.......................................................................... 29
Section 7.05. Limitation on Indemnity...................................................................... 29
Section 7.06. Additional Issuances; Purchase Price Adjustment.............................................. 29
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ARTICLE VIII
TERMINATION; DEFAULTING PURCHASERS
Section 8.01. Termination.................................................................................. 30
Section 8.02. Defaulting Purchaser......................................................................... 31
ARTICLE IX
MISCELLANEOUS
Section 9.01. Payment of Expenses.......................................................................... 32
Section 9.02. Expense Reimbursement........................................................................ 32
Section 9.03. Persons Entitled to Benefit of Agreement..................................................... 32
Section 9.04. Notices...................................................................................... 32
Section 9.05. Governing Law; Waiver of Jury Trial.......................................................... 33
Section 9.06. Counterparts................................................................................. 35
Section 9.07. Amendments or Waivers........................................................................ 35
Section 9.08. Headings..................................................................................... 35
Section 9.09. Entire Agreement............................................................................. 35
Section 9.10. Assignment................................................................................... 35
Section 9.12 Severability................................................................................. 35
Section 9.13 Successors................................................................................... 36
Section 9.14 Non-Waiver; remedies Cumulative.............................................................. 36
Section 9.15 Injunctive Relief............................................................................ 36
Section 9.16 Time of the Essence.......................................................................... 36
Schedule 1 - Purchasers and Special Share Purchaser
Schedule 2 - Guarantors
Schedule 3 - Equity Incentive Plan
Schedules 3.02 -- 3.28 - Disclosure Schedules
Exhibit A - Amended Bye-Laws
Exhibit B - Executive Agreement
Exhibit C - Shareholders Agreement
Exhibit D - Form of Certificates
Exhibit E - Registration Rights Agreement
Exhibit F - Opinion of Counsel
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INVESTMENT AND NOTE PURCHASE AGREEMENT dated as of April 21,
2004 (the "Agreement"), by and among Viatel Holding (Bermuda) Limited, a company
organized under the laws of Bermuda (the "Company"), and each of the Purchasers
listed on Part A of Schedule 1 hereto (individually, a "Purchaser" and
collectively, the "Purchasers") and the Special Share Purchaser.
WHEREAS, the Company proposes to issue and sell US$52,250,000
aggregate principal amount of its 8% Convertible Senior Secured Notes Due 2014
(the "Notes") to the several Purchasers, plus subsequent sale(s) of up to an
additional US$270,000 aggregate principal amount of Notes pursuant to Section
2(b)(ii)(C) of the Executive Agreement (as defined below);
WHEREAS, the Notes will be subject to a Security Trust and
Intercreditor Deed to be dated as of April 21, 2004 (the "Security Trust
Agreement"), by and among the Company, the Guarantors, and The Law Debenture
Trust Corporation p.l.c., as security trustee (the "Security Trustee");
WHEREAS, the Notes will be guaranteed on a senior secured
basis by each of the Guarantors listed on Schedule 2 hereto;
WHEREAS, the Notes will be offered and sold to the Purchasers
without being registered under the Securities Act, in reliance upon an exemption
therefrom;
WHEREAS, the Purchasers (and their direct and indirect
transferees) will be entitled to the benefits of a Registration Rights
Agreement, substantially in the form attached hereto as Exhibit E (the
"Registration Rights Agreement"), pursuant to which the Company will agree to
file with the Commission a registration statement under the Securities Act (the
"Registration Statement") registering the Notes;
WHEREAS, the Purchasers desire, subject to the terms and
conditions set forth herein, to purchase the Notes from the Company; and
WHEREAS, the Company desires to sell to the Special Share
Purchaser, and the Special Share Purchaser and each of the Purchasers desire the
Special Share Purchaser to purchase, subject to the terms and conditions set
forth herein, the Special Share from the Company;
NOW, THEREFORE, the parties hereto, intending to be legally
bound, hereby agree as follows.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions.
"affiliate" has the meaning set forth in Rule 405 under the
Securities Act.
"Additional Notes" means additional Notes which are issued in
face amount equal to interest that would otherwise be payable in cash on a Note
or on such Notes.
"Amended Bye-Laws" means the Bye-Laws of the Company, as
amended and restated in the form attached as Exhibit A hereto.
"Applicable Law" means (a) any United States Federal, state,
local or foreign or transnational law, statute, rule, regulation, order, writ,
injunction, judgment, decree or permit of any Governmental Authority and (b) any
rule or listing requirement of any national stock exchange or Commission
recognized trading market on which securities issued by the Company or any of
the Subsidiaries are listed or quoted.
"A/R Facility" means any accounts receivable facility that may
be entered into by the Company or any of its Subsidiaries from time to time in
accordance with the terms and conditions of the Security Trust Agreement.
"Business Day" means any day other than a Legal Holiday.
"Capital Stock" of any Person means any and all shares,
partnership, membership or other interests, participations or other equivalents
of or interests in (however designated) equity of such Person, including any
Preferred Stock (but excluding any debt securities convertible into such equity)
and any rights to purchase, warrants, options or similar interests with respect
to the foregoing.
"Closing Date" has the meaning set forth in Section 2.02(a).
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the U.S. Securities and Exchange
Commission.
"Common Shares" means the Common Shares of the Company, par
value $0.01 per share.
"Communications Laws" has the meaning set forth in Section
3.27.
"Communication Liabilities" has the meaning set forth in
Section 3.27.
"Company" has the meaning set forth in the preamble.
"Conversion Shares" means the Common Shares issuable upon the
conversion of the Notes in accordance with the terms of the Notes.
"Equity Incentive Plan" has the meaning set forth in Schedule
3.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, including the regulations and published interpretations
thereunder.
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"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the applicable rules and regulations promulgated thereunder.
"Executive Agreement" means that employment agreement dated as
of April 21, 2004, between Xxxx Xxxxx and the Company, a copy of which is set
forth in Exhibit B hereto.
"Federal Reserve Board" has the meaning set forth in Section
3.23.
"FCC" means the U.S. Federal Communications Commission.
"Final Order" means the Order from the FCC authorizing the
transfer of a controlling interest in the Company to the Purchasers.
"Financial Services and Xxxxxxx Xxx 0000" means the Financial
Services and Markets Xxx 0000 of the United Kingdom, as amended, and the
applicable rules and regulations promulgated thereunder.
"Governmental Authority" means (i) any transnational, foreign,
Federal, state or local court or governmental or regulatory agency or authority,
(ii) any arbitration board, tribunal or mediator and (iii) any national stock
exchange or Commission recognized trading market on which securities issued by
the Company or any of the Subsidiaries are listed or quoted.
"Guarantee" means any obligation, contingent or otherwise, of
any Person directly or indirectly guaranteeing any indebtedness of any other
Person and any obligation, direct or indirect, contingent or otherwise, of such
Person (a) to purchase or pay (or advance or supply funds for the purchase or
payment of) such indebtedness of such other Person (whether arising by virtue of
partnership arrangements, or by agreement to keep-well, to purchase assets,
goods, securities or services, to take-or-pay, or to maintain financial
statement conditions or otherwise) or (b) entered into for purposes of assuring
in any other manner the obligee of such indebtedness of the payment thereof or
to protect such obligee against loss in respect thereof (in whole or in part);
provided, however, that the term "Guarantee" shall not include endorsements for
collection or deposit in the ordinary course of business. The term "Guarantee"
used as a verb has a corresponding meaning.
"Guarantor" means any Subsidiary that has issued a Guarantee
of the Notes under the Security Trust Agreements.
"including" means, unless the context otherwise requires,
"including without limitation."
"Indemnified Person" has the meaning set forth in Section
7.02(c).
"Indemnifying Person" has the meaning set forth in Section
7.02(c).
"Insolvency Event" in respect of any Person means:
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(a) the initiation of a consent to Insolvency Proceedings
by such company or any other person or the presentation of a petition for the
making of an administration order and such proceedings not being disputed in
good faith with a reasonable prospect of success; or
(b) the making of an administration order in relation to
such Person; or
(c) an encumbrancer taking possession of the whole or any
substantial part of the undertaking or assets of such Person; or
(d) a distress, diligence, execution or other process
being levied or enforced upon or sued out against the whole or any substantial
part of the undertaking or assets of such Person and such order, appointment,
possession or process (as the case may be) not being discharged or otherwise
ceasing to apply within 30 days; or
(e) the making of an arrangement, composition,
reorganization with or conveyance to or assignment for the creditors of such
Person generally or the making of an application to a court of competent
jurisdiction for protection from the creditors of such Person generally; or
(f) the passing by such Person of an effective resolution
or the making of an order by a court of competent jurisdiction for the winding
up or dissolution of such Person; or
(g) the appointment of an Insolvency Official in relation
to such Person or in relation to the whole or any substantial part of the
undertaking or assets of such Person;
"Insolvency Official" means, in respect of any Person, a
liquidator, provisional liquidator, administrator (whether appointed by the
court or otherwise), administrative receiver, receiver or managers, nominee,
supervisor, trustee in bankruptcy, conservator, guardian or similar official in
respect of such Person or in respect of all (or substantially all) of the
Person's assets or in respect of any arrangements or composition with creditors;
"Insolvency Proceedings" means the winding-up, dissolution,
voluntary arrangement or administration of a Person or corporation and shall be
construed so as to include any equivalent or analogous proceedings under the law
of the jurisdiction in which such Person or corporation carried on business
including the seeking of liquidation, winding-up, reorganization, dissolution,
administration, arrangement, adjustment, protection or relief from creditors or
the appointment of an Insolvency Official;
"Intellectual Property Rights" means patents, trade marks,
service marks, logos, getup, trade names, internet domain names, rights in
designs, copyright (including rights in computer software) and moral rights,
data base rights, semi-conductor topography rights, utility models, rights in
know-how and other intellectual property rights, in each case whether registered
or unregistered and including applications for registration, and all rights or
forms of protection having equivalent or similar effect anywhere in the world.
"Investment Company Act" has the meaning set forth in Section
3.13.
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"knowledge of the Company" or "knowledge of the Company and
its Subsidiaries" means actual knowledge of any of Xxxx Xxxxx, Xxxxxxx Xxxxx,
Xxxxxx Xxxxxx, Xxxxx Xxxx, Xxxxx Xxxxxxxx and Xxxxxxxxx Xxxxx, after due
inquiry.
"Legal Holiday" is a Saturday, a Sunday or other day on which
banking institutions are not open for general business in London or New York
"Liabilities" means, as to any Person, all debts, adverse
claims, liabilities and obligations of such Person, whether accrued, vested or
otherwise, fixed or unfixed, xxxxxx or inchoate, direct or indirect, liquidated
or unliquidated, secured or unsecured, accrued, absolute, contingent or
otherwise, whether in contract, tort, strict liability or otherwise and whether
or not actually reflected, or required by applicable accounting standards to be
reflected, in such Person's balance sheets or other books and records.
"Lien" means any mortgage, sub-mortgage, security assignment,
standard security, charge, sub-charge, pledge, lien, right of set-off or other
encumbrance or security interest of any kind, however created or arising.
"Majority Conversion Date" means the date that a majority in
principal amount of the Notes issued on the Closing Date has been converted into
Common Shares.
"Material Adverse Effect" means a material adverse effect on
the assets, liabilities, business, condition (financial or otherwise), results
of operations or prospects of the Company and its Subsidiaries taken as a whole,
or any other circumstance that in any manner would be expected to materially
adversely affect the interests of the Purchasers or Special Share Purchaser.
"Xxxxxx Xxxxxxx" means Xxxxxx Xxxxxxx & Co. Incorporated.
"Network" means the telecommunications network in Belgium,
France, Germany, the Netherlands, Switzerland, United Kingdom and the United
States operated or to be operated by the Company and its Subsidiaries (including
all apparatus, equipment and telecommunications systems of every description
which is installed and operated in connection therewith).
"Noteholder" means the Person in whose name a Note is
registered on the Company's books in accordance with the terms and conditions of
the Notes.
"Notes" has the meaning set forth in the recitals.
"Options" means the options to purchase Common Shares issued
under the Prior Equity Incentive Plan.
"Permit" has the meaning set forth in Section 3.11.
"Permitted Liens" means the following: (a) Liens for taxes or
assessments or other governmental charges not yet due and payable or which are
being contested in good faith, by appropriate proceedings, provided, that
adequate reserves with respect to such contest are maintained on the books of
the applicable Company or Subsidiary, in accordance with GAAP;
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(b) pledges or deposits of money securing statutory obligations under workmen's
compensation, unemployment insurance, social security or public liability laws
or similar legislation (excluding Liens under ERISA); (c) pledges or deposits of
money securing bids, tenders, contracts (other than contracts for the payment of
money) or leases to which the Company or any Subsidiary is a party as lessee
made in the ordinary course of business; (d) inchoate and unperfected workers',
mechanics' or similar Liens arising in the ordinary course of business; and (e)
zoning restrictions, easements, licenses, or other restrictions on the use of
any real estate or other minor irregularities in title (including leasehold
title) thereto, so long as in each case set forth in (a) through (e) above the
same do not materially impair the use or marketability of the asset or property
subject to such Lien or materially impair the use, value or marketability of the
Company's and its Subsidiaries assets and properties in the aggregate. For
purposes of clarity, the Permitted Liens described in clauses (a) through (e)
above shall include equivalent Liens under similar laws of jurisdictions outside
the United States.
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock company,
trust, unincorporated organization, government or any agency or political
subdivision thereof or any other entity.
"Plans" has the meaning set forth in Section 3.19.
"Preferred Stock," as applied to the Capital Stock of any
Person, means Capital Stock of any class or classes (however designated) that is
preferred as to the payment of dividends, or as to the distribution of assets
upon any voluntary or involuntary liquidation or dissolution of such Person,
over shares of Capital Stock of any other class of such Person.
"Prior Equity Incentive Plan" has the meaning set forth in
Section 3.03(a).
"Purchaser" and "Purchasers" have the meaning set forth in the
preamble.
"Qualified Shareholder" means each Person that holds Common
Shares issued upon conversion of the Notes, including for the avoidance of doubt
direct and indirect transferees thereof.
"regulation" includes any regulation, rule, official
directive, request or guideline (whether or not having the force of law, but if
not having the force of law, compliance with which is customary) of any
governmental, intergovernmental or supranational body, agency, department or
regulatory, self-regulatory or other authority or organization.
"Registration Rights Agreement" has the meaning set forth in
the recitals hereto.
"Regulation D" has the meaning set forth in Section 3.25(c).
"Regulation S" has the meaning set forth in Section 3.25(b).
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
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"Security Documents" means the Security Trust Agreement and
any mortgages, charges, assignments or other Security Interests from time to
time granted by the Company or the Guarantors to the Security Trustee pursuant
to the Security Trust Agreement or any other such security document.
"Security Trust Agreement" has the meaning set forth in the
recitals.
"Shareholders Agreement" means the Shareholders Agreement
dated as of April 21, 2004 among the Company, the Special Share Purchaser and
the Purchasers, substantially in the form attached as Exhibit C hereto.
"Similar Law" means provisions under any federal, state,
local, non-US or other laws or regulations that are similar to Section 406 of
ERISA or Section 4975 of the Code.
"Special Share" means the Special Share of the Company, as
defined in the Amended Bye-Laws, and having the rights and privileges described
in the Amended Bye-Laws.
"Special Share Purchaser" means Xxxxxx Xxxxxxx or an entity
designated by it.
"Special Temporary Authorization" means the order from the FCC
by which the FCC grants a special temporary authorization, or STA, for the
transfer of a controlling interest in the Company to the Purchasers, until such
time as the FCC issues the Final Order transferring control to the Purchasers.
"Subsidiary" of any Person means any corporation, association,
partnership or other business entity of which more than 50% of the total Voting
Stock is at the time owned or controlled, directly or indirectly, by (a) such
Person, (b) such Person and one or more Subsidiaries of such Person or (c) one
or more Subsidiaries of such Person.
"tax" means all taxes, imposts, duties, levies, charges,
deductions and withholdings in the nature or on account of tax, together with
all interest thereon and penalties with respect thereto.
"Trading Certificate" means a written notice delivered to the
Company by a Noteholder requesting that the Company cease providing confidential
information (other than Rule 144A Information) to such Noteholder.
"Trading Market" shall be deemed to exist at such time as the
Common Shares are (i) registered under the Exchange Act and (ii) listed on the
New York Stock Exchange or traded on the NASDAQ Standard 3 Marketplace or
admitted to the list maintained by the relevant Governmental Authority or to any
other approved exchange or recognized overseas investment exchange (within the
meanings thereof given in Part VI and Part XVIII of the Financial Services and
Markets Xxx 0000 respectively), or are otherwise traded in a manner that has
been determined to be a Trading Market by the Board of Directors of the Company
with the consent of either (x) prior to the Majority Conversion Date, holders of
a majority of the principal amount of the Notes issued on the Closing Date, or
(y) following the Majority Conversion Date, holders of a majority of the Common
Shares of the Company held by Qualified Shareholders.
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"Transaction Documents" means this Agreement, the Security
Trust Agreement, the Shareholders Agreement, the Registration Rights Agreement,
the Notes, the Conversion Shares, the Security Documents, and related
agreements.
"Transfer of Control Application" means the application to the
FCC pursuant to the Communications Act and FCC regulations by which the Company
and the Purchasers request the transfer of a controlling interest in the Company
to the Purchasers.
"Trust Indenture Act" means the Trust Indenture Act of 1935,
as amended.
"Voting Stock" of a Person means all classes of Capital Stock
or other interests (including partnership interests) of such Person then
outstanding and normally entitled at the time to vote in the election of
directors, managers or trustees thereof.
ARTICLE II
SALE AND PURCHASE OF THE SECURITIES
Section 2.01. Offer to Sell and to Purchase; Purchase Price.
On the basis of the representations, warranties and agreements contained herein,
and subject to the terms and conditions set forth herein, the Company agrees to
issue and sell to each of the Purchasers, severally and not jointly, and each of
the Purchasers, severally and not jointly, agrees to purchase from the Company,
the principal amount of Notes set forth opposite the name of such Purchaser on
Schedule 1 hereto at a purchase price equal to the principal amount thereof.
Section 2.02. Delivery of and Payment for the Notes. (a)
Delivery of and payment for the Notes shall be made at the offices of
Freshfields Bruckhaus Xxxxxxxx, London, England, or at such other place as shall
be agreed upon by the Purchasers and the Company, at 10:00 a.m., New York City
time, on April 21, 2004, or at such other time or date, not later than five full
Business Days thereafter, as shall be agreed upon by the Purchasers and the
Company (such date and time of payment and delivery being referred to herein as
the "Closing Date").
(b) On the Closing Date, payment of the purchase price
for the Notes shall be made to the Company by wire or book-entry transfer in
immediately available funds to such account or accounts as the Company shall
specify prior to the Closing Date or by such other means as the parties hereto
shall agree prior to the Closing Date against delivery to the Purchasers of the
certificates evidencing the Notes. Time shall be of the essence, and delivery at
the time and place specified pursuant to this Agreement is a further condition
of the obligations of the Purchasers hereunder. Upon delivery, the Notes shall
be in definitive certificated form, registered in such names and in such
denominations as the Purchasers shall have requested in writing not less than
two full Business Days prior to the Closing Date. The Company agrees to make one
or more certificates evidencing the Notes available for inspection by the
Purchasers in New York, New York at least 24 hours prior to the Closing Date.
(c) On the Closing Date, the Special Share Purchaser
shall purchase the Special Share for the amount of ten dollars (US$10.00),
payable to the Company, and the Company shall deliver the certificate
representing the Special Share to the Special Share Purchaser.
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(d) When delivered by the Company on the Closing Date,
the Notes and the Special Share shall be fully authorized, duly and validly
issued, free and clear of Liens (other than Liens specifically contemplated by
the Transaction Documents.
ARTICLE III
REPRESENTATIONS, WARRANTIES AND AGREEMENTS
OF THE COMPANY
The Company represents and warrants to the Special Share
Purchaser and each of the Purchasers on and as of the date hereof that:
Section 3.01. Organization and Standing. The Company and each
of its Subsidiaries have been duly incorporated or formed and are validly
existing as corporations or companies, as the case may be, in good standing
under the laws of their respective jurisdictions of incorporation or formation,
as the case may be, are duly qualified to do business and are in good standing
as foreign corporations in each jurisdiction in which their respective ownership
or lease of property or the conduct of their respective businesses requires such
qualification, and have all power and authority necessary to own or hold their
respective properties and to conduct the businesses in which they are engaged,
except where the failure to be so qualified or have such power or authority
could not, singularly or in the aggregate, be reasonably expected to have a
Material Adverse Effect. The Company and each of its Subsidiaries has furnished
to the Purchasers and the Special Share Purchaser true and correct copies of the
Company's and Subsidiary's certificate of incorporation and bye-laws (and/or
other organizational documents) in substantially the form as will be in effect
as of the Closing Date. Phrases used in this Section 3.01 shall incorporate
equivalent references used in each relevant jurisdiction.
Section 3.02. Subsidiaries. The companies listed on Schedule 2
and Schedule 3.02 hereto are all the Subsidiaries of the Company. Except as set
forth in Schedule 3.02, the Company does not own a majority of or control,
directly or indirectly, any corporation, association or other entity that is not
listed on Schedule 2 hereto.
Section 3.03. Capital Stock.
(a) The Company has authorized 250,000,000 Common Shares,
of which (i) 10,730,000 are issued and outstanding as of the date hereof, (ii)
190,000 are reserved for issuance upon the exercise of Options issued and
outstanding as of the date hereof under the Company's 2002 Equity Incentive Plan
(the "Prior Equity Incentive Plan"), and (iii) 1,080,000 are reserved for
issuance upon exercise of Options authorized for issuance (but not outstanding)
under the Prior Equity Incentive Plan and unissued as of the date hereof. As of
the date hereof, all of the Common Shares are identical in all respects and,
except with respect to the Options and the Special Share, there are no other
types of Capital Stock or other securities of the Company authorized, issued or
outstanding. As of the Closing Date, the Company will have authorized
250,000,000 Common Shares, of which 10,730,000 will be issued and outstanding,
and one Special Share, which will be issued, outstanding and held by the Special
Share Purchaser.
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(b) All of the outstanding shares of Capital Stock of the
Company and each of the Company's Subsidiaries have been (and immediately after
the Closing Date will be) duly and validly authorized and issued, fully paid and
non-assessable and (except as set forth in Section 4.1 of the Shareholders
Agreement or with respect to Capital Stock of the Company's Subsidiaries under
Applicable Law) free of preemptive rights.
(c) Except as set forth in Schedule 3.03(c), all of the
shares of Capital Stock of each of the Company's Subsidiaries are owned directly
or indirectly by the Company, free and clear of any Lien, restriction upon
voting or transfer or any other claim of any third party.
(d) Except for the Options and as specifically
contemplated by this Agreement, there are no outstanding subscriptions, rights,
warrants, calls or options to acquire, or instruments convertible into or
exchangeable for, or agreements or understandings with respect to the sale or
issuance of, any shares of Capital Stock of or other equity or other ownership
interest in the Company or any of its Subsidiaries, or any other contracts,
commitments, agreements, understandings or arrangements of any kind to which the
Company or any Subsidiary is a party obligating the Company or any Subsidiary
under any circumstance to issue any Capital Stock, or any securities convertible
into or exchangeable for or rights to purchase any Capital Stock. Except as set
forth in Schedule 3.03(d) and for the Registration Rights Agreement, neither the
Company nor any Subsidiary is a party to or bound by any agreement with respect
to any of its securities which grants registration rights to any Person. Except
for the Shareholders Agreement and as otherwise set forth on Schedule 3.03(d),
neither the Company nor any Subsidiary is, and to the knowledge of the Company
no stockholder is, a party to any voting trust or other agreement or
understanding affecting the voting or transfer of the Capital Stock of the
Company or any Subsidiary.
(e) Prior to the Closing Date, the Conversion Shares will
have been duly authorized and adequately reserved in contemplation of the
conversion of the Notes and, when issued and delivered in accordance with the
terms of the Notes will have been validly issued and will be fully paid and
nonassessable and free and clear of Liens (other than Liens created by the
Security Documents), and the issuance thereof will not have been subject to any
preemptive rights or restrictions on transfer (other than restrictions on
transfer under Applicable Law).
Section 3.04. Corporate Power. The Company and each of its
Subsidiaries has full right, power and authority to execute and deliver each
Transaction Document to which it is a party, and to perform their respective
obligations hereunder and thereunder; and all corporate or company action
required to be taken for the due and proper authorization, execution and
delivery of each of the Transaction Documents and the consummation of the
transactions contemplated hereby and thereby have been duly and validly taken.
Section 3.05. Authorization; Enforceability. (a) This
Agreement has been duly authorized, executed and delivered by the Company and
constitutes a valid and legally binding agreement of the Company, except as may
be limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting creditors' rights
generally and by general equitable principles (whether considered in a
proceeding in equity or at law).
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(b) The Security Trust Agreement has been duly authorized
by the Company and, when duly executed and delivered in accordance with its
terms by each of the parties thereto, will constitute a valid and legally
binding agreement of the Company and each of its Subsidiaries enforceable
against the Company and each of its Subsidiaries in accordance with its terms,
except as may be limited by applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws affecting
creditors' rights generally and by general equitable principles (whether
considered in a proceeding in equity or at law).
(c) The Notes have been duly authorized by the Company
and, when duly executed, issued and delivered by the Company and paid for as
provided herein, will be duly and validly issued and outstanding and will
constitute valid and legally binding obligations of the Company enforceable
against the Company in accordance with their terms and entitled to the benefits
of the Security Trust Agreement, except as may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws affecting creditors' rights generally and by general
equitable principles (whether considered in a proceeding in equity or at law).
(d) The Security Documents have been duly authorized by
each of the Company and the Guarantors party thereto and, when the Notes have
been duly executed, authenticated, issued and delivered as provided in the
Security Trust Agreement and paid for as provided herein, will be valid and
legally binding obligations of the Company and each of the Guarantors, except as
may be limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting creditors' rights
generally and by general equitable principles (whether considered in a
proceeding in equity or at law).
(e) The Registration Rights Agreement has been duly
authorized by the Company and, when duly executed and delivered in accordance
with its terms by each of the parties thereto, will constitute a valid and
legally binding agreement of the Company enforceable against the Company in
accordance with its terms, except as may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws affecting creditors' rights generally and by general equitable principles
(whether considered in a proceeding in equity or at law) and except to the
extent that the indemnification or contribution provisions contained therein may
be unenforceable.
(f) The Shareholders Agreement has been duly authorized
by the Company and, when duly executed and delivered in accordance with its
terms by each of the parties thereto, will constitute a valid and legally
binding agreement of the Company enforceable against the Company in accordance
with its terms, except as may be limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
affecting creditors' rights generally and by general equitable principles
(whether considered in a proceeding in equity or at law).
Section 3.06. Securities Act; Trust Indenture Act. Assuming
the accuracy of the representations and warranties of the Purchasers and Special
Share Purchaser contained in Article IV, it is not necessary, in connection with
the issuance and sale of the Notes to the Purchasers in the manner contemplated
by this Agreement, to register the Notes under the Securities Act or to qualify
the Notes under the Trust Indenture Act.
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Section 3.07. No Violation; Consents. Except as set forth in
Schedule 3.07, The execution, delivery and performance by the Company and each
of its Subsidiaries of each of the Transaction Documents to which each is a
party, the issuance, authentication, sale and delivery of the Notes and
compliance by the Company and each of its Subsidiaries with the terms thereof
(including issuance of Common Shares upon conversion of Notes) and the
consummation of the transactions contemplated by the Transaction Documents will
not (with or without due notice or lapse of time or both) (i) conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, or cause or give rise to the acceleration or
increase of any benefits or any termination right, or result in the creation or
imposition of any Lien (other than the Liens created in favor of the Security
Trustee) upon any property or assets of the Company or any of its Subsidiaries
pursuant to, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument, including any lease or employment agreement, or any
Permit, to which the Company or any of its Subsidiaries is a party or by which
the Company or any of its Subsidiaries is bound or to which any of the property
or assets of the Company or any of its Subsidiaries is subject, (ii) result in
any violation of the provisions of the charter or bye-laws or similar
organizational documents of the Company or any of its Subsidiaries or (iii)
result in the violation of any law or statute or any judgment, order, rule or
regulation of any court or arbitrator or governmental agency or body having
jurisdiction over the Company or any of its Subsidiaries or any of their
properties or assets; and no consent, approval, authorization or order of, or
filing or registration with, any such court or arbitrator or governmental agency
or body under any such statute, judgment, order, decree, rule or regulation is
required for the execution, delivery and performance by the Company and each of
its Subsidiaries of each of the Transaction Documents to which each is a party,
the issuance, authentication, sale and delivery of the Notes and compliance by
the Company and each of its Subsidiaries with the terms thereof (including
issuance of Conversion Shares upon conversion of Notes) and the consummation of
the transactions contemplated by the Transaction Documents, except for (x) (i)
the notification from the Federal Cartel Office of the Federal Republic of
Germany that the prohibition requirements of Section 36, paragraph 1 of the Act
against Restraints of Competition are not applicable, (ii) the STA (as defined
in Section 5.10)and (iii) an authorization from the Bermuda Monetary Authority,
each of which notification, authorization or approval has been obtained and
remains in full force and effect and (y) such consents, approvals,
authorizations, filings, registrations or qualifications as may be required to
be obtained or made under the Securities Act and applicable state securities
laws as provided in the Registration Rights Agreement.
Section 3.08. Financial Statements; SEC Reports. (a) Deloitte
& Touche LLP (i) are independent certified public accountants with respect to
the Company and each of its Subsidiaries within the meaning of Rule 101 of the
Code of Professional Conduct of the American Institute of Certified Public
Accountants and the interpretations and rulings thereunder; and (ii) qualify as
independent certified public accountants with respect to the Company and each of
its Subsidiaries within the meaning of the Securities Act and the Exchange Act,
and the applicable rules and regulations thereunder adopted by the Commission.
The financial statements (including the related notes) included in the Forms
20-F filed March 23, 2004 and March 29, 2004, are in accordance with the books
and records of the Company and each of its Subsidiaries, have been prepared in
accordance with United States generally accepted accounting principles
consistently applied throughout the periods covered thereby and fairly present
the consolidated financial position, results of operations and cash flows of the
entities purported to be covered thereby as of the respective dates and for the
respective periods indicated.
-12-
(b) Except as set forth in Schedule 3.08(b), since March
23, 2004, the Company has filed all forms, reports and documents required to be
filed by it with the Commission pursuant to the Exchange Act (collectively, and
including any documents filed by the Company at any time with the Commission
that were not at the time of filing required to be so filed, the "SEC Reports").
As of the respective dates they were filed (or, if amended or superseded by a
filing prior to the date hereof, on the date of such filing), (i) the SEC
Reports were prepared, and all forms, reports and documents filed with the
Commission after the date of this Agreement will be prepared, in all material
respects in accordance with the requirements of Applicable Law and (ii) none of
the SEC Reports contained, nor will any forms, reports and documents filed after
the date of this Agreement contain, any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary in
order to make the statements made therein, in the light of the circumstances
under which they were made, not misleading. None of the Company's Subsidiaries
is required to make any filing with the Commission pursuant to the Exchange Act.
(c) As of December 31, 2003 and as of the date hereof,
neither the Company nor any of its Subsidiaries had, and as of the Closing Date
neither the Company nor any of its Subsidiaries will have, any Liabilities,
except (i) Liabilities fully and adequately reflected or noted on the balance
sheet as of December 31, 2003 included in the Form 20-F in respect of the fiscal
year ended December 31, 2003 (to the extent quantified in such balance sheet or
the notes thereto); (ii) Liabilities incurred since December 31, 2003 in the
ordinary course of business and consistent with past practice which are not
material individually or in the aggregate; and (iii) as set forth in Schedule
3.08(c).
Section 3.09. No Litigation. (a) Except as set forth in
Schedule 3.09(a) (to the extent quantified therein), there is no action, order,
writ, injunction, investigation, judgment or decree outstanding or claim, suit,
litigation, proceeding, labor dispute, arbitral action or investigation
(collectively, "Actions") pending and as to which the Company or any Subsidiary
has received notice or, to the knowledge of the Company and its Subsidiaries,
otherwise pending or threatened against (i) the Company or any of its
Subsidiaries, (ii) any benefit plan for personnel of the Company or any of its
Subsidiaries or any fiduciary or administrator thereof, or (iii) any officers or
directors of the Company or any Subsidiary which relates to the business of the
Company and its Subsidiaries. Except as set forth in Schedule 3.09, there is, to
the knowledge of the Company and its Subsidiaries, no basis for any Action of
the nature described in the previous sentence arising from events, occurrences,
actions or omissions prior to the Closing Date. None of the Company or any of
its Subsidiaries is in default with respect to any judgment, order, writ,
injunction or decree of any court of governmental agency and there are not
unsatisfied judgments against the Company or any of its Subsidiaries.
(b) No action has been taken and no statute, rule,
regulation or order has been enacted, adopted or issued by any governmental
agency or body which prevents the issuance of the Notes or suspends the sale of
the Notes in any jurisdiction; no injunction, restraining order or order of any
nature by any federal or state court of competent jurisdiction has been issued
with respect to the Company or any of its Subsidiaries which would prevent or
suspend the issuance or sale of the Notes in any jurisdiction; no action, suit
or proceeding is pending against or, to the best knowledge of the Company and
each of its Subsidiaries, threatened against or affecting the Company or any of
its Subsidiaries before any court or arbitrator or any governmental agency,
-13-
body or official, domestic or foreign, which could reasonably be expected to
interfere with or adversely affect the issuance of the Notes or the Conversion
Shares or in any manner draw into question the validity or enforceability of any
of the Transaction Documents or any action taken or to be taken pursuant
thereto.
Section 3.10. Compliance with Constituent Documents; No
Defaults. Neither the Company nor any of its Subsidiaries is (i) in violation of
its charter or bye-laws or similar organizational documents), (ii) in default in
any material respect, and, to the knowledge of the Company, no event has
occurred that, with notice or lapse of time or both, would constitute such a
default, in the due performance or observance of any term, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its Subsidiaries is a
party or by which the Company or any of its Subsidiaries is bound or to which
the property or assets of the Company or any of its Subsidiaries is subject or
(iii) except as set forth on Schedule 3.10, to the knowledge of the Company, in
violation in any material respect of any law, ordinance, governmental rule or
regulation to which it or its property or assets are subject.
Section 3.11. Licenses; Permits. Except as set forth on
Schedule 3.11, the Company and each of its Subsidiaries possess all material
licenses, certificates, authorizations and permits (collectively, "Permits")
issued by, and have made all declarations and filings with, the appropriate
federal, state or foreign regulatory agencies or bodies that are necessary or,
in the reasonable judgment of the Company, desirable for the ownership or lease
of their respective properties or the conduct of their respective businesses,
and neither the Company nor any of its Subsidiaries has received notification of
any revocation or modification of any such Permit or has any reason to believe
that any such Permit will not be renewed in the ordinary course.
Section 3.12. Taxes. Except as set forth on Schedule 3.12, the
Company and each of its Subsidiaries have properly filed all federal, state,
local and foreign income, sales, turnover and franchise tax returns required to
be filed through the date hereof and have paid all taxes due thereon (other than
those taxes being contested in good faith or those taxes currently payable
without penalty or interest, in each case for which adequate reserves have been
provided in accordance with generally accepted accounting principles), and no
tax deficiency, including, without limitation, any underpayment or incorrect
filing, has been determined adversely to the Company or any of its Subsidiaries,
and no such tax deficiency is known to the Company or any of its Subsidiaries.
Section 3.13. Investment Company Act; Public Utility Holding
Company Act. Neither the Company nor any of its Subsidiaries is (and immediately
after giving effect to the offering and sale of the Notes and the application of
the proceeds thereof, none of them will be) (i) an "investment company" or
(assuming none of the Purchasers is an investment company) a company "controlled
by" an investment company within the meaning of the Investment Company Act of
1940, as amended (the "Investment Company Act"), and the rules and regulations
of the Commission thereunder or (ii) a "holding company" or (assuming none of
the Purchasers is a holding company) a "subsidiary company" of a holding company
or an "affiliate" thereof within the meaning of the Public Utility Holding
Company Act of 1935, as amended.
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Section 3.14. Internal Controls. The Company and each of its
Subsidiaries maintain systems of internal accounting controls sufficient to
provide reasonable assurance that (i) transactions are executed in accordance
with management's general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain asset
accountability; (iii) access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
Section 3.15. Insurance. The Company and each of its
Subsidiaries have insurance covering their respective properties, operations,
personnel and businesses, which insurance is in amounts and insures against such
losses and risks as are, in the reasonable judgment of the Company, adequate to
protect the Company, its Subsidiaries and their respective businesses. Neither
the Company nor any of its Subsidiaries has received notice from any insurer or
agent of such insurer that capital improvements or other expenditures are
required or necessary to be made in order to continue such insurance.
Section 3.16. Intellectual Property. Except as set forth in
Schedule 3.16, the Company and each of its Subsidiaries own or has licensed to
it, all Intellectual Property Rights which are necessary to carry on their
respective businesses as they are carried on at the date of this Agreement and
in accordance with the current documented plans for the businesses; and the
conduct of their respective businesses will not conflict in any respect with,
and the Company and its Subsidiaries have not received any notice of any claim
of conflict with, any Intellectual Property Rights of others.
Section 3.17. Assets. Except as set forth on Schedule 3.17,
the Company and each of its Subsidiaries have good and marketable title in fee
simple to, or have valid rights to lease or otherwise use, all items of real and
personal property that are material to the business of the Company and its
Subsidiaries, including without limitation the Network, in each case free and
clear of all Liens (other than under the Security Documents and Permitted
Liens), claims and defects and imperfections of title except such as do not
materially interfere with the use made and proposed to be made of such property
under the latest business plan of the Company that the Company has presented to
the Purchasers prior to the date hereof. The rights, properties and other assets
presently owned, leased or licensed by the Company include all rights,
properties and other assets (i) used by the Company in the conduct of its
business prior to the date hereof, and (ii) necessary or convenient to permit
the Company to conduct its business from and after the date hereof in the same
manner in all respects as such business has been conducted prior to the date
hereof.
Section 3.18. Labor Matters. Except as set forth in Schedule
3.18, no labor disturbance by or dispute with the employees of the Company or
any of its Subsidiaries exists or, to the best knowledge of the Company and each
of its Subsidiaries, is contemplated or threatened. There are no agreements with
labor unions or associations representing employees of the Company or any of the
Subsidiaries (save for the Subsidiaries organized under the laws of France) and
to the knowledge of the Company and its Subsidiaries, there has not been any
organizing effort by any such union or association.
-15-
Section 3.19. Employee Matters. Each employee benefit or
compensation plan, agreement or arrangement maintained or contributed to by the
Company or any of its Subsidiaries or with respect to which the Company or any
of its Subsidiaries could be subject to Liabilities (the "Plans") has been
maintained and operated in accordance with Applicable Law and with its terms
(including contribution requirements and requirements for tax qualification or
registration). Each Plan that is intended to be funded or book reserved is fully
funded or book reserved, as applicable, based upon reasonable actuarial
assumptions. Other than for benefit payments in the ordinary course, there are
no pending, or to the Company's knowledge, threatened claims (against the Plans
or any fiduciaries of the Plans or against the Company or any of its
Subsidiaries with respect to the Plans) and no event has occurred or is
reasonably expected to occur which could result in the Plans or the Company or
any of its Subsidiaries being subject to any Liabilities, taxes or penalties
under the Plans. The Company and its Subsidiaries have complied with all
applicable employment laws with respect to their employees and employment
practices.
Section 3.20. Environmental Matters. Except as set forth on
Schedule 3.20, there has been no storage, generation, transportation, handling,
treatment, disposal, discharge, emission or other release of any kind of toxic
or other wastes or other hazardous substances by, due to or caused by the
Company or any of its Subsidiaries (or, to the best knowledge of the Company or
any of its Subsidiaries, any other entity (including any predecessor) for whose
acts or omissions the Company or any of its Subsidiaries is or could reasonably
be expected to be liable) upon any of the property now or previously owned or
leased by the Company or any of its Subsidiaries, or upon any other property, in
violation of any statute or any ordinance, rule, regulation, order, judgment,
decree or permit that would, under any statute or any ordinance, rule (including
rule of common law), regulation, order, judgment, decree or permit, give rise to
any material liability; and there has been no disposal, discharge, emission or
other release of any kind onto such property or into the environment surrounding
such property of any toxic or other wastes or other hazardous substances with
respect to which the Company or any of its Subsidiaries has knowledge, except
for any such disposal, discharge, emission or other release of any kind which
could not reasonably be expected to result in any material liability or
obligation on the part of the Company and its Subsidiaries.
Section 3.21. Corrupt Practices Act. None of the Company or
any of its Subsidiaries or any director, officer, or, to the knowledge of the
Company, any agent, employee or other person acting on behalf of the Company or
any of its Subsidiaries has (i) used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expense relating to
political activity; (ii) made any unlawful payment to any foreign or domestic
government official or employee from corporate funds; (iii) violated or is in
violation of any provision of the Foreign Corrupt Practices Act of 1977; or (iv)
made any unlawful bribe, rebate, payoff, influence payment, kickback or other
unlawful payment.
Section 3.22. Solvency. Except as set forth in Schedule 3.22,
on and immediately after the Closing Date, the Company and each of its
Subsidiaries (after giving effect to the issuance of the Notes and to the other
transactions related thereto) will be Solvent and no Insolvency Event has
occurred in respect of the Company or any of its Subsidiaries. As used in this
paragraph, the term "Solvent" shall have the meaning given in any relevant
jurisdiction by or construed in accordance with the applicable law of that
jurisdiction, or if there is no such meaning or such meaning cannot be
construed, means, with respect to a particular date, that on such
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date (i) the fair value and present fair saleable value of the assets of the
Company or such Guarantor, as the case may be, exceeds: (x) the total
liabilities (including contingent, subordinated, unmatured and unliquidated
liabilities) of the Company or such Guarantor, as the case may be, and (y) the
amount required to pay such liabilities as they become absolute and mature in
the normal course of business; (ii) the Company or such Guarantor, as the case
may be, has the ability to pay its debts and liabilities (including contingent,
subordinated, unmatured and unliquidated liabilities) as they become absolute
and mature in the normal course of business; and (iii) neither the Company nor
such Guarantor, as the case may be, has an unreasonably small amount of capital
with which to conduct its business. In computing the amount of such contingent
liabilities at any time, it is intended that such liabilities will be computed
at the amount that, in the light of all the facts and circumstances existing at
such time, represents the amount that can reasonably be expected to become an
actual or matured liability.
Section 3.23. Regulation T, U, X. Neither the Company nor any
of its Subsidiaries owns any "margin securities" as that term is defined in
Regulation U of the Board of Governors of the Federal Reserve System (the
"Federal Reserve Board"), and none of the proceeds of the sale of the Notes will
be used, directly or indirectly, for the purpose of purchasing or carrying any
margin security, for the purpose of reducing or retiring any indebtedness which
was originally incurred to purchase or carry any margin security or for any
other purpose which would cause any of the Notes to be considered a "purpose
credit" within the meanings of Regulation T, U or X of the Federal Reserve
Board.
Section 3.24. No Brokers. Neither the Company nor any of its
Subsidiaries is a party to any contract, agreement or understanding with any
person that would give rise to a valid claim against the Company, its
Subsidiaries, the Special Share Purchaser or the Purchasers for a brokerage
commission, finder's fee or like payment in connection with the offering and
sale of the Notes.
Section 3.25. Securities Law Matters. (a) The Notes satisfy
the eligibility requirements of Rule 144A(d)(3) under the Securities Act.
(b) None of the Company, any of its Subsidiaries, any of
their respective affiliates or any person (other than the Purchasers or their
affiliates) acting on its or their behalf has engaged or will engage in any
"directed selling efforts" (as such term is defined in Regulation S under the
Securities Act ("Regulation S")), and all such persons have complied and will
comply with the offering restrictions requirement of Regulation S to the extent
applicable.
(c) None of the Company, any of its Subsidiaries or any
of their respective affiliates (as defined in Rule 501(b) of Regulation D under
the Securities Act ("Regulation D")) has, directly or through any agent, sold,
offered for sale, solicited offers to buy or otherwise negotiated in respect of,
any security (as such term is defined in the Securities Act), which is or could
be integrated with the sale of the Notes in a manner that would require
registration of the Notes under the Securities Act.
(d) None of the Company, any of its Subsidiaries or any
of their respective affiliates or any other person acting on its or their behalf
(other than the Purchasers) has solicited offers for, or offered or sold, the
Notes by means of any form of general solicitation or general
-17-
advertising within the meaning of Rule 502(c) of Regulation D or in any manner
involving a public offering within the meaning of Section 4(2) of the Securities
Act.
(e) Neither the Company nor any of its Subsidiaries has
taken or will take, directly or indirectly, any action prohibited by Regulation
M under the Exchange Act in connection with the offering of the Notes.
Section 3.26. Absence of Changes. Since (x) December 31, 2003
and (y) January 27, 2004, and except as set forth on Schedule 3.26, (i) there
has not been any change in the Capital Stock or long-term debt of the Company or
any of its Subsidiaries, or any dividend or distribution of any kind declared,
set aside for payment, paid or made by the Company on any class of Capital
Stock, or any Material Adverse Effect, or any development involving a
prospective Material Adverse Effect, in the Company and its Subsidiaries taken
as a whole, (ii) neither the Company nor any of its Subsidiaries has entered
into any transaction or agreement that is material to the Company and its
Subsidiaries taken as a whole, other than in the ordinary course of business, or
incurred any liability or obligation, direct or contingent, that is material to
the Company and its Subsidiaries taken as a whole, other than in the ordinary
course of business and (iii) neither the Company nor any of its Subsidiaries has
taken any action described in Section 76A(3) of the Amended Bye-Laws, except as
and to the extent specifically permitted by this Agreement.
Section 3.27. Compliance with Laws. Except as set forth in
Schedule 3.27, the Company and each of its Subsidiaries are in compliance in all
material respects with all Applicable Laws of any Governmental Authority.
Neither the Company nor any of its Subsidiaries has received any notice that it
is not incompliance with any of the foregoing. Without limitation of any of the
foregoing, neither the Company nor any of its Subsidiaries (i) has failed to
comply with any law, rule, regulation, code, ordinance, order, decree, judgment,
injunction, notice or binding agreement issued, promulgated or entered into by
any governmental authority (including but not limited to the FCC, the U.K.
Office of Communications, the U.K. Director General of Telecommunications, and
the U.K. Department of Trade and Industry) relating in any way to the offering
or provision of communications (collectively, "Communications Laws") or to
obtain, maintain or comply with any permit, license, authorization or other
approval required under any of the Communications Laws, (ii) has become subject
to any liability, contingent or otherwise (including any liability for damages,
costs, fines, penalties or indemnities) directly or indirectly resulting from or
based upon (w) a violation of any of the Communications Laws, (x) the generation
or use of communications, (y) exposure to communications or radio frequency
emissions or (z) any contract, agreement or other consensual agreement pursuant
to which liability is assumed or imposed with respect to any of the foregoing
(collectively, "Communication Liabilities"), (iii) has received notice of any
claim with respect to any Communication Liability or (iv) knows of any basis for
any Communication Liability.
Section 3.28. Certain Contracts. Except as set forth on
Schedule 3.28, neither the Company nor any of its Subsidiaries is a party to or
otherwise bound by any written or oral contract, agreement, arrangement or
understanding:
(a) containing any covenant or restriction limiting the
freedom of the Company or its Subsidiaries to engage in any line of
business in any geographic area or to
-18-
compete with any person or contract or agreement with third parties
limiting the freedom of any officer, director or stockholder of the
Company or any Subsidiary so to engage or compete;
(b) that binds, restricts or applies to, or purports to
bind, restrict or apply to, any affiliate of the Company that is not a
Subsidiary of the Company, the Special Share Purchaser or any
Purchaser, including without limitation in any area of mutual interest,
exclusivity, non-competition or otherwise;
(c) concerning employment or severance involving
severance or annual compensation in excess of (pound)100,000, or under
which any rights or benefits would accrue, become due, be paid,
accelerate or otherwise arise as a result of any of the transactions
contemplated hereby (including upon conversion of the Notes);
(d) concerning debt for money borrowed;
(e) relating to the issuance of securities by the Company
or any Subsidiary; or
(f) entered into outside of the usual course of business.
The Company has provided the Purchasers with a true and
complete copy of each agreement described above. None of the Company or any of
its Subsidiaries is (and to the best knowledge of the Company no other party is)
in material breach or violation under any contract that is material to the
Company or such Subsidiary; there is no event which with the lapse of time or
notice or both would constitute such a default; and no defenses, offsets or
counterclaims have been asserted by any party thereto.
Section 3.29. No Material Misstatements. This Agreement,
including the schedules and exhibits attached hereto, and the financial
statements and financial data furnished to the Purchasers by or at the direction
of the Company or any of its Subsidiaries in connection with the evaluation of
the transactions contemplated by this Agreement do not contain any material
misstatement of material fact or omit to state a material fact or any fact
necessary to make the statements contained therein not misleading. The
circumstances and events that are not required to be identified on schedules to
this Agreement by reason of the materiality qualifications contained in the
representations and warranties in this Article III, or which are otherwise
within such qualifications, in the aggregate do not have, and could not
reasonably be expected to have, a Material Adverse Effect.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS AND SPECIAL
SHARE PURCHASER
Each Purchaser and the Special Share Purchaser severally as to
itself only, and not jointly, hereby represents and warrants to the Company on
the date hereof that:
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Section 4.01. Organization; Authorization; Enforceability.
Such Person that is a legal entity is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization and has all
requisite power and authority to own its properties and assets and to carry on
its business as it is now being conducted except where the failure to have such
power or authority could not, singularly or in the aggregate, be reasonably
expected to have a material adverse effect on the assets, liabilities, business,
condition (financial or otherwise), results of operating or prospects of such
Person. Such Person has the power to execute, deliver and perform its
obligations under each of the Transaction Documents to which it is a party and
has taken all necessary action to authorize the execution, delivery and
performance by it of such Transaction Documents and to consummate the
transactions contemplated thereby. No other proceedings on the part of such
Person are necessary for such authorization, execution, delivery and
consummation. Such Person has duly executed and delivered this Agreement and, on
the Closing Date, such Person will have duly executed and delivered each of the
other Transaction Documents to be executed and delivered by it on or prior to
the Closing Date. This Agreement constitutes, and each of the other Transaction
Documents to which such Person is a party, when executed and delivered by such
Person, will constitute, a legal, valid and binding obligation of such Person,
enforceable against such Person in accordance with its terms , except as may be
limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting creditors' rights
generally and by general equitable principles (whether considered in a
proceeding in equity or at law) and except to the extent that the
indemnification or contribution provisions contained in any such Transaction
Document may be unenforceable.
Section 4.02. Private Placement. (a) Such Person understands
that (i) the offering and sale of the Notes and the Special Share is intended to
be exempt from registration under the Securities Act pursuant to Section 4(2)
thereof, and (ii) there is no existing public or other market for the Notes.
(b) Such Person (i) is a "qualified institutional buyer,"
as such term is defined in Rule 144A under the Securities Act or (ii) is an
"accredited investor," as such term is defined in Rule 501(a) of Regulation D
under the Securities Act.
(c) Such Person is acquiring the Notes and/or the Special
Share, as the case may be, to be acquired hereunder (and will acquire the
Conversion Shares) for its own account (or for accounts over which it exercises
investment authority), for investment and not with a view to the resale or
distribution thereof.
(d) Such Person understands that the Notes and the
Special Share will be issued in a transaction exempt from the registration or
qualification requirements of the Securities Act and applicable state securities
laws and that the Company's reliance on such exemption is predicated upon the
Purchasers' representations contained herein, In addition, such Person
understands that such securities must be held indefinitely unless a subsequent
disposition thereof is registered or qualified under the Securities Act and such
laws or is exempt from such registration or qualification.
(e) Such Person (A) has been furnished with or has had
full access to all the information that it considers necessary or appropriate to
make an informed investment decision
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with respect to the Notes and the Special Share, (B) has had an opportunity to
discuss with management of the Company the intended business and financial
affairs of the Company and to obtain information (to the extent the Company
possessed such information or could acquire it without unreasonable effort or
expense) necessary to verify any information furnished to it or to which had
access, and (C) can bear the economic risk of (x) an investment in the Notes and
the Special Share indefinitely and (y) a total loss in respect of such
investment, has such knowledge and experience in business and financial matters
so as to enable it to understand and evaluate the risks of and form an
investment decision with respect to its investment in the Notes and the Special
Share to protect its own interest in connection with such investment.
(f) Such Person acknowledges that the Notes, Special
Share and Conversion Shares shall, to the extent appropriate, bear the
respective restrictive legends set forth in Section 6.5 of the Shareholders
Agreement.
Section 4.03. No Violation; Consents. (a) Subject to the
governmental filings and other matters referred to in Section 4.03(b), the
execution, delivery and performance by such Person of each of the Transaction
Documents to which it is a party and the consummation by such Person of the
transactions contemplated thereby do not and will not contravene any Applicable
Law, except for any such contravention that would not, individually or in the
aggregate, reasonably be expected to have a material adverse effect on the
ability of such Person to timely perform its obligations under the Transaction
Documents. The execution, delivery and performance by such Person of each of the
Transaction Documents to which it is a party and the consummation of the
transactions contemplated thereby (i) will not (A) violate, result in a breach
of or constitute (with or without due notice or lapse of time or both) a default
(or give rise to any right of termination, cancellation or acceleration) under
any contract, lease or other agreement to which such Person is party or by which
such Person is bound or to which any of its assets is subject, or (B) result in
the creation or imposition of any Lien upon any of the assets of such Person,
except for any such violations, breaches, defaults or Liens that would not,
individually or in the aggregate, reasonably be expected to have a material
adverse effect on the ability of such Person to timely perform its obligations
under this Agreement; and (ii) if it is a legal entity, will not conflict with
or violate any provision of the certificate of incorporation or bylaws or other
organizational documents of such Person.
(b) Except for applicable filings, if any, with the
Commission pursuant to the Exchange Act, no consent, authorization or order of,
or filing or registration with, any Governmental Authority or other Person is
required to be obtained or made by such Person for the execution, delivery and
performance of any of the Transaction Documents or the consummation of any of
the transactions contemplated thereby, except where the failure to obtain such
consents, authorizations or orders, or make such filings or registrations, would
not, individually or in the aggregate, reasonably be expected to have a material
adverse effect on the ability of such Person or the Company to timely perform
their respective obligations under the Transaction Documents.
(c) Such Person has not taken nor will take, directly or
indirectly, any action prohibited by Regulation M under the Exchange Act in
connection with the offering of the Notes.
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Section 4.04. ERISA. Such Person acknowledges that either (a)
no portion of the assets used by such Person to acquire and hold the Notes
constitutes "plan assets" within the meaning of U.S. Department of Labor
Regulation 29 CFR Section 2510.3-101 of any employee benefit plan subject to
ERISA, any plan, individual retirement account or other arrangement subject to
Section 4975 of the Code or any applicable Similar Law, or any entity whose
underlying assets are considered to include "plan assets" or any such plan,
account or arrangement; or (b) the purchase and holding of the Notes by such
Person will not constitute a non-exempt prohibited transaction under Section 406
of ERISA or Section 4975 of the Code or a violation under any applicable Similar
Law.
ARTICLE V
COVENANTS OF THE COMPANY
The Company covenants and agrees with each Purchaser as
follows:
Section 5.01. Access to Books and Records. The Company and
each Guarantor shall, and the Company shall cause each Subsidiary to, afford to
each of the Purchasers and the Purchasers' accountants, counsel and
representatives full access during normal business hours throughout the period
prior to the Closing Date (or the earlier termination of this Agreement pursuant
to Section 8.01) to all of its properties, books, contracts, leases, agreements,
commitments and records and, during such period, shall, upon request, furnish
promptly to each of the Purchasers all other information as the Purchasers may
reasonably request, provided that no investigation or receipt of information
pursuant to this Section 5.01 shall affect any representation or warranty of the
Company or the conditions to the obligations of the Purchasers.
Section 5.02. Compliance with Conditions; Commercially
Reasonable Efforts. The Company shall, and shall cause each of its Subsidiaries
to, use all commercially reasonable efforts to cause all conditions precedent to
the obligations of the Company and its Subsidiaries to be satisfied. Upon the
terms and subject to the conditions of this Agreement, the Company and each of
its Subsidiaries will use all commercially reasonable efforts to take, or cause
to be taken, all action, and to do, or cause to be done, all things necessary,
proper or advisable consistent with Applicable Law to consummate and make
effective in the most expeditious manner practicable the issuance of the Notes
and the Special Share in accordance with the terms of the Transaction Documents.
Section 5.03. Consents and Approvals. The Company shall, and
shall cause each of its Subsidiaries to (a) use all commercially reasonable
efforts to obtain all necessary consents, waivers, authorizations and approvals
of all Governmental Authorities and of all other Persons required in connection
with the execution, delivery and performance of this Agreement or the
consummation of the transactions contemplated hereby and (b) diligently assist
and cooperate with the Purchasers in preparing and filing all documents required
to be submitted by the Purchasers to any Governmental Authority in connection
with the issuance of the Notes and the Special Share (which assistance and
cooperation shall include, without limitation, timely furnishing to the
Purchasers all information concerning the Company and its Subsidiaries that
counsel to the Purchasers reasonably determines is required to be included in
such documents or would be helpful in obtaining any such required consent,
waiver, authorization or approval).
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Section 5.04. Reservation of Shares. The Company shall (a)
cause to be authorized and reserved prior to the Closing, and reserve and keep
available at all times during which any of the Notes remain outstanding, free
from preemptive rights, out of its treasury stock or authorized but unissued
shares of Capital Stock, or both, solely for the purpose of effecting the
conversion of the Notes pursuant to the terms hereof, sufficient Common Shares
to provide for the issuance of the maximum number of shares issuable upon
conversion of outstanding Notes and Additional Notes (assuming for these
purposes that interest is always paid in Additional Notes and that the Notes
remain outstanding for the full term thereof); and (b) issue and cause the
transfer agent to deliver such Common Shares as required upon conversion of the
Notes and Additional Notes, and take all actions necessary to ensure that all
such shares will, when issued and paid for pursuant to the conversion of the
Notes and the Additional Notes, be duly and validly issued, fully paid and
nonassessable and free and clear of all Liens.
Section 5.05. Use of Proceeds. The Company shall, and shall
cause each of its Subsidiaries to, use the proceeds from the sale of the Notes
for payment of expenses incurred in connection with the transactions
contemplated by the Transaction Documents and for working capital and general
corporate purposes, in particular the implementation of the Company's current
business plan as disclosed to the Purchasers and as may be amended from time to
time by the Board.
Section 5.06. Rule 144A Information. Until a Trading Market
exists with respect to both Notes (but only if at such time any Notes are
outstanding) and Common Shares, the Company shall furnish to holders of the
Notes (and Additional Notes) and to Qualified Shareholders, and to prospective
purchasers of Notes (and Additional Notes) and Common Shares from such Persons,
the information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act, in each case subject to the receipt of appropriate
confidentiality agreements (the foregoing agreement being for the benefit of the
Company, the holders from time to time of the Notes (and Additional Notes) and
the Qualified Shareholders and such prospective purchasers).
Section 5.07. Integration. The Company shall not, and shall
cause its affiliates (as defined in Rule 501(b) of Regulation D) not to, sell,
offer for sale or solicit offers to buy or otherwise negotiate in respect of any
security (as such term is defined in the Securities Act) which could be
integrated with the sale of the Notes in a manner which would require
registration of the Notes under the Securities Act.
Section 5.08. No Public Offering. Except as contemplated by
the Registration Rights Agreement, the Company shall not, and shall cause its
affiliates not to, authorize or knowingly permit any person acting on their
behalf (other than the Purchasers, as to which no covenant is given) to (i)
solicit any offer to buy or offer to sell the Notes by means of any form of
general solicitation or general advertising within the meaning of Regulation D
or in any manner involving a public offering within the meaning of Section 4(2)
of the Securities Act; (ii) engage in any directed selling efforts within the
meaning of Regulation S or fail to comply with the offering restrictions
requirement of Regulation S; or (iii) offer, sell, contract to sell or otherwise
dispose of, directly or indirectly, any securities under circumstances where
such offer, sale, contract or disposition would cause the exemption afforded by
Section 4(2) of the Securities Act to cease to be applicable to the offering and
sale of the Notes as contemplated by this Agreement.
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Section 5.09. Communication. Prior to the Closing Date, the
Company shall not (and shall not permit any Subsidiary to) issue any press
release or other communication directly or indirectly or hold any press
conference with respect to the condition, financial or otherwise, or earnings,
business affairs or business prospects of the Company or its Subsidiaries, as
the case may be (except for routine oral marketing communications in the
ordinary course of business and consistent with the past practices of the
Company or its Subsidiaries, as the case may be, and of which the Purchasers are
notified), without the prior written consent of the Purchasers, unless and to
the extent that in the judgment of the Company or its Subsidiaries and their
counsel, and after notification to the Purchasers, such press release or
communication is required by law.
Section 5.10. FCC Authorizations. Prior to the Closing Date,
the Company will file with the FCC: (1) a request for the Special Temporary
Authorization ("STA") and (2) the Transfer of Control Application. From and
after the Closing, the Company will, and will cause its Subsidiaries to, take
all necessary actions to cancel or otherwise relinquish the FCC licenses of the
Company and each of its Subsidiaries and cease conducting the business
necessitating those licenses, if (1) the Transfer of Control Application is
denied by the FCC, (2) the STA lapses prior to the Transfer of Control
Application being granted by the FCC (it being understood and agreed that the
Company and its Subsidiaries will take all such necessary actions immediately
prior to such lapse) or (3) any other circumstance arises whereby it would be a
violation of Applicable Law for Xxxxxx Xxxxxxx or the Purchasers as a group to
hold a controlling interest in Viatel that it or they at that time hold or holds
while the Company and its Subsidiaries hold such FCC licenses; provided,
however, that the Company may take actions other than such cancellation,
relinquishment or cessation of business if each of the Purchasers who hold
securities of Viatel at such time consent thereto in writing.
ARTICLE VI
CONDITIONS PRECEDENT
Section 6.01. Conditions Precedent to Purchasers' and Special
Share Purchaser's Obligations. The respective obligations of the several
Purchasers and the Special Share Purchaser hereunder are subject to the
performance by the Company and each of its Subsidiaries of their respective
covenants and other obligations hereunder, to the accuracy of the statements of
the Company and each of its Subsidiaries and their respective officers made in
any certificates delivered pursuant hereto and to each of the following
additional terms and conditions:
(a) All corporate proceedings and other legal matters
incident to the authorization, form and validity of each of the
Transaction Documents, and all other legal matters relating to the
Transaction Documents and the transactions contemplated thereby, shall
be reasonably satisfactory in all material respects to the Purchasers
and the Special Share Purchaser, and the Company and its Subsidiaries
shall have furnished to the Purchasers and the Special Share Purchaser
all documents and information that they or their counsel may reasonably
request to enable them to pass upon such matters.
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(b) Xxxxxxx Xxxxxxxx Xxxxxx shall have furnished to the
Purchasers and the Special Share Purchaser their written opinion, as
counsel for the Company and its Subsidiaries, addressed to the
Purchasers and Special Share Purchaser and dated the Closing Date, in
form and substance reasonably satisfactory to the Purchasers and
Special Share Purchaser, substantially in the form set forth in Exhibit
F hereto.
(c) The representations and warranties of the Company
contained herein and in each of the Transaction Documents (i) that are
qualified by materiality shall be true and correct and (ii) that are
not qualified by materiality shall be true and correct in all material
respects, in each case, as of the date of this Agreement and as of the
Closing Date as though made on the Closing Date, the Company and each
of its Subsidiaries shall have complied with all agreements and
satisfied all conditions on their part to be performed or satisfied
hereunder on or prior to the Closing Date and subsequent to each of (x)
December 31, 2003 and (y) January 27, 2004 there shall have been no
Material Adverse Effect, and the Company and its Subsidiaries shall
have furnished to the Purchasers and the Special Share Purchaser a
certificates, dated the Closing Date, signed by each of the Chief
Executive Officer and the Chief Financial Officer of the Company and in
the form attached as Exhibit D hereto, stating that, to his/her best
knowledge based on the investigation described in therein, the
foregoing is true and correct.
(d) The Purchasers shall have received a counterpart of
the Registration Rights Agreement which shall have been executed and
delivered by a duly authorized officer of the Company.
(e) The Security Trust Agreement shall have been duly
executed and delivered by the Company, the Guarantors, the Security
Trustee, and the Purchasers, and, simultaneously with the payment of
the purchase price, the Notes shall have been duly executed and
delivered by the Company.
(f) The Security Documents shall have been duly executed
and delivered by the Company and each of the Guarantors.
(g) The Shareholders Agreement shall have been duly
executed and delivered by each of the parties thereto.
(h) No judgment, order, decree, statute, law, ordinance,
rule or regulation, entered, enacted, promulgated, enforced or issued
by any court or other Governmental Authority of competent jurisdiction
or other legal restraint or prohibition shall be in effect preventing
the consummation of the transactions contemplated by this Agreement.
(i) No action, suit or proceeding is pending against or,
to the knowledge of the Company and its Subsidiaries, threatened
against or affecting the Company or any of its Subsidiaries or any of
the Purchasers or the Special Share Purchaser before any court or
arbitrator or any governmental agency, body or official, domestic or
foreign, which could reasonably be expected to interfere with or
adversely affect the issuance or exercise of any rights of the Notes or
the Special Share or in any manner draw into question the validity or
enforceability of any of the Transaction Documents or any action taken
or to
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be taken pursuant thereto or, in the reasonable judgment of any
Purchaser or Special Share Purchaser, makes it inadvisable for such
Purchaser or the Special Share Purchaser to proceed with the
consummation of the transactions contemplated hereby.
(j) Subsequent to the execution and delivery of this
Agreement, no event or condition of a type described in Section 3.26
hereof shall have occurred or shall exist, and the effect of which in
the reasonable judgment of the Purchasers or Special Share Purchaser is
so material and adverse as to make it impracticable or inadvisable to
proceed with the offering, sale or delivery of the Notes and/or the
Special Share on the terms and in the manner contemplated by this
Agreement.
(k) The Company shall have duly adopted the Amended
Bye-Laws, which shall have been approved by shareholder vote as
required under Applicable Law.
(l) All consents, waivers, approvals and authorizations
required to be obtained from any Governmental Authority or any other
Person to consummate all transactions contemplated by the Transaction
Documents shall have been obtained, in each case in form and substance
satisfactory to the Purchasers and Special Share Purchaser.
(m) Employment agreements between the Company and each of
Xxxx Xxxxx, Xxxxxxx Xxxxx, Xxxxxx Xxxxxx, Xxxx Xxxx and Xxxxxxx
Xxxxxxxxxx, in each case in form and substance reasonably satisfactory
to the Purchasers and Special Share Purchaser, shall have been duly
executed and delivered by the parties thereto.
(n) Each of the Annual Report on Form 20-F of the Company
for its fiscal year ended 2002 and the Annual Report on Form 20-F of
the Company for its fiscal year ended 2003 shall have been duly filed
by the Company with the Commission prior to the Closing Date; and the
Purchasers and the Special Share Purchaser shall be satisfied with the
form and content thereof.
(o) On or prior to the Closing Date, the Company and its
Subsidiaries shall have furnished to the Purchasers and the Special
Share Purchaser such further customary certificates and documents as
the Purchasers and the Special Share Purchaser may reasonably request
to evidence the accuracy of the representations and warranties or the
satisfaction of the agreements and conditions contained herein.
(p) The FCC shall have granted the Special Temporary
Authorization.
(q) The Company shall have appointed CT Corporation as
its agent for service of process in accordance with Section 9.05(c)
hereof.
All agreements, opinions, letters, evidence and certificates
mentioned above or elsewhere in this Agreement shall be deemed to be in
compliance with the provisions hereof only if they are in form and substance
reasonably satisfactory to counsel for the Purchasers and Special Share
Purchaser.
Section 6.02. Conditions to the Company's Obligations in
Respect of the Closing Date. The obligations of the Company to issue and sell
the Notes and the Special Share
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hereunder shall be subject, at the election of the Company, to the satisfaction
or waiver, on the Closing Date, of the following conditions:
(a) The representations and warranties of each Purchaser
and Special Share Purchaser contained in this Agreement shall have been
true and correct in all material respects as of the date of this
Agreement and as of the Closing Date as though made on the Closing
Date.
(b) Each Purchaser and Special Share Purchaser shall have
performed in all material respects all obligations and agreements, and
complied in all material respects with all covenants contained in this
Agreement to be performed and complied with by such Purchaser on the
Closing Date.
(c) Each Purchaser and Special Share Purchaser shall have
delivered to the Company a certificate executed by it or on its behalf
by a duly authorized representative, dated the Closing Date, to the
effect that each of the conditions specified in paragraph (a) and (b)
of this Section 6.02 has been satisfied.
(d) The Board of Directors of the Company shall have
received an opinion, dated as of the Closing Date, from
PricewaterhouseCoopers LLP or another independent financial advisor, in
form and substance reasonably satisfactory to the Board of Directors of
the Company, to the effect that the issuance and sale of the Notes and
the Special Share hereunder is fair from a financial point of view to
the Company and its shareholders.
(e) The Shareholders Agreement shall have been duly
executed and delivered by each of the parties thereto.
(f) No judgment, order, decree, statute, law, ordinance,
rule or regulation, entered, enacted, promulgated, enforced or issued
by any court or other Governmental Entity of competent jurisdiction or
other legal restraint or prohibition shall be in effect preventing the
consummation of the transactions contemplated by this Agreement;
ARTICLE VII
SURVIVAL; INDEMNIFICATION
Section 7.01. Survival of Representations and Warranties. The
respective representations and warranties of the Company and of the Purchasers
and Special Share Purchaser contained in this Agreement shall survive the
transactions contemplated hereby until the later of (i) first anniversary of the
Closing Date and (ii) three months following delivery of audited 2004
financials; provided, however, that the representations contained in Sections
3.03, 3.04 and 3.05 hereof shall survive until the expiration of the applicable
statute of limitations. The respective indemnities, covenants and agreements of
the Company, its Subsidiaries, the Special Share Purchaser and the Purchasers
contained in this Agreement or made by or on behalf of the Company, its
Subsidiaries, the Special Share Purchaser or the Purchasers pursuant to this
Agreement or any certificate delivered pursuant hereto shall survive the
delivery of and payment for the
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Notes and shall remain in full force and effect, regardless of any termination
of this Agreement or any investigation made by or on behalf of the Company, its
Subsidiaries, the Special Share Purchaser or the Purchasers.
Section 7.02. Indemnification. (a) The Company agrees to
indemnify and hold harmless each Purchaser and the Special Share Purchaser, each
of such Purchaser's and the Special Share Purchaser's officers, directors,
trustees, employees and each person, if any, who controls such Purchaser or the
Special Share Purchaser within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act, from and against any and all losses, claims,
damages and liabilities (including, without limitation, legal fees and other
expenses reasonably incurred in connection with any suit, action or proceeding
or any claim asserted, as such fees and expenses are incurred), joint or
several, to the extent arising out of, or based upon, (i) the negotiation,
execution, delivery or compliance with this Agreement or pursuit of any of the
transactions connected with or contemplated by this Agreement, and (ii) any
failure to be true of any representation or warranty made by the Company set
forth in this Agreement.
(b) The obligations to indemnify and hold harmless
pursuant to Section 7.02(a) hereof shall survive the consummation of the
transactions contemplated by this Agreement indefinitely except that such
indemnification obligations which are based upon any representation or warranty
as set forth in Section 7.02(a)(ii) shall survive only for the applicable
periods of time set forth in the first sentence of Section 7.01, except for
claims asserted in writing prior to the expiration of such applicable periods,
which claims shall survive until final resolution thereof.
(c) If any suit, action, proceeding (including any
governmental or regulatory investigation), claim or demand shall be brought or
asserted against any person in respect of which indemnification may be sought
pursuant to Section 7.01(a), such person (the "Indemnified Person") shall
promptly notify the person against whom such indemnification may be sought (the
"Indemnifying Person") in writing; provided that the failure to notify the
Indemnifying Person shall not relieve it from any liability that it may have
under this Article VII except to the extent that it has been materially
prejudiced (through the forfeiture of substantive rights or defenses) by such
failure; and provided, further, that the failure to notify the Indemnifying
Person shall not relieve it from any liability that it may have to an
Indemnified Person otherwise than under this Article VII. If any such proceeding
shall be brought or asserted against an Indemnified Person and it shall have
notified the Indemnifying Person thereof, the Indemnifying Person shall retain
counsel reasonably satisfactory to the Indemnified Person to represent the
Indemnified Person and any others entitled to indemnification pursuant to this
Article VII that the Indemnifying Person may designate in such proceeding and
shall pay the fees and expenses of such counsel related to such proceeding, as
incurred. In any such proceeding, any Indemnified Person 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 Person unless (i) the Indemnifying Person and
the Indemnified Person shall have mutually agreed in writing to the contrary;
(ii) the Indemnifying Person has failed within a reasonable time after receiving
notice of the commencement of the action to retain counsel reasonably
satisfactory to the Indemnified Person; (iii) the Indemnified Person shall have
reasonably concluded, based on the advice of counsel to the Indemnified Person,
that there may be legal defenses available to it that are different from or in
addition to those available to the Indemnifying Person; or (iv) the named
parties in any such proceeding (including any
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impleaded parties) include both the Indemnifying Person and the Indemnified
Person and, based on the advice of counsel to the Indemnified Person,
representation of both parties by the same counsel would be inappropriate due to
actual or potential differing interests between them. It is understood and
agreed that the Indemnifying Person shall not, in connection with any proceeding
or related proceeding in the same jurisdiction, be liable for the reasonable
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred. Each Indemnified Person shall use all
reasonable efforts to cooperate with the Indemnifying Person in the defense of
any such action or claim; provided that if an Indemnified Person has retained
its own counsel, whether at the Indemnifying Person's expense or at the
Indemnified Person's expense, such Indemnified Person shall only be required to
cooperate to the extent such Indemnified Person reasonably believes such
cooperation would not impair its defense of such action or claim. Any such
separate firm for any Purchaser or Special Share Purchaser, and their respective
affiliates, directors and officers and any control persons of such Purchaser or
Special Share Purchaser shall be designated in writing by the Purchasers or
Special Share Purchaser, as the case may be, and any such separate firm for the
Company, its Subsidiaries and any control persons of the Company and its
Subsidiaries shall be designated in writing by the Company. The Indemnifying
Person shall not be liable for any settlement of any proceeding effected without
its written consent (which consent shall not be unreasonably withheld), but if
settled with such consent or if there be a final judgment for the plaintiff, the
Indemnifying Person agrees to indemnify each Indemnified Person from and against
any loss or liability by reason of such settlement or judgment. No Indemnifying
Person shall, without the written consent of the Indemnified Person, effect any
settlement of any pending or threatened proceeding in respect of which any
Indemnified Person is or could have been a party and indemnification could have
been sought hereunder by such Indemnified Person, unless such settlement (x)
includes an unconditional release of such Indemnified Person from all liability
on claims that are the subject matter of such proceeding and (y) does not
include any statement as to or any admission of fault, culpability or a failure
to act by or on behalf of any Indemnified Person.
Section 7.03. Non Exclusive Remedy. The remedies provided for
in this Article VII are not exclusive and shall not limit any rights or remedies
that may otherwise be available to any Indemnified Person at law or in equity.
Section 7.04. Deferral of Payment. The Company shall be
permitted to defer payment of any indemnification amount, other than
indemnity-related fees and expenses (which shall be reimbursed by the Company on
a current basis as provided below), until the earlier of (i) the date that is 12
months following the Closing Date and (ii) the date on which the Company becomes
subject to any bankruptcy, insolvency, liquidation or similar proceeding.
Interest will accrue on all payment amounts deferred pursuant to this Section
7.04 at a rate of 10% per annum, which amount shall be payable along with the
indemnification amount upon termination of the deferral period. To the extent
permitted under Section 7.02, the Company shall reimburse a Purchaser and
Special Share Purchaser for all indemnity-related fees and expenses (including
but not limited to legal fees) within five Business Days of such Purchaser or
Special Share Purchaser's request for reimbursement.
Section 7.05. Limitation on Indemnity. Notwithstanding
anything to the contrary in this Article VII, the liability of the Company in
respect of Section 7.01(a)(i) hereof shall
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not extend to or include any liability or sum which would, but for this proviso,
cause such liability to be unlawful or prohibited by section 39 of the Bermuda
Companies Xxx 0000.
Section 7.06. Additional Issuances; Purchase Price Adjustment.
(a) In addition to and without limitation of all other
indemnities and remedies in this Agreement, as a protection to the Purchasers
against the existence of Capital Stock of the Company or any of its Subsidiaries
not disclosed in Section 3.03 hereof, in the event that, at any time, the
representations and warranties set forth in Section 3.03 hereof are determined
not to have been true as of the Closing, the Company shall issue to the
Purchasers (on a pro rata basis), at no cost to the Purchasers, and as an
adjustment to the Purchase Price paid by the Purchasers:
(1) if any Notes is outstanding at the time of such issue and
adjustment, additional Notes; or
(2) if no Notes are outstanding at the time of such issue and
adjustment, additional Common Shares;
such that, if such additional Notes or Common Shares, as the case may be, were
issued to the Purchasers at Closing, the Purchasers would own the same
percentage of the Common Shares on an "as converted" basis (assuming for all
purposes of this Section 7.06 that the Conversion Price is the Base Conversion
Price) as they would if such representations and warranties had been true in all
respects.
(b) Any additional Notes or Common Shares issued to the
Purchasers pursuant to this Section 7.06 shall be treated as if they were issued
on the date of the Closing and shall reflect any interest, dividends or other
distributions which would have accrued or have been payable with respect to and
the application of any anti-dilution, pre-emptive rights or similar provisions
which would have been applicable to such additional Notes or Common Shares had
they been issued on the date hereof.
(c) For purposes of this Section 7.06, any additional
Notes purchased by Xxxx Xxxxx pursuant to the Executive Agreement shall be
deemed to have been issued to her at Closing pursuant to this Agreement.
ARTICLE VIII
TERMINATION; DEFAULTING PURCHASERS
Section 8.01. Termination. (a) This Agreement may be
terminated in the absolute discretion of the Purchasers or Special Share
Purchaser, by notice given to the Company, if after the execution and delivery
of this Agreement and prior to the Closing Date any of the following shall have
occurred and be continuing: (i) trading generally shall have been suspended or
materially limited on the New York Stock Exchange or the over-the-counter
market; (ii) a general moratorium on commercial banking activities shall have
been declared by 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, either within or outside
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the United States, that, in the reasonable judgment of the Purchasers or Special
Share Purchaser, is material and adverse and makes it impracticable or
inadvisable to proceed with the offering, sale or delivery of the Notes on the
terms and in the manner contemplated by this Agreement.
(b) This Agreement may be terminated (i) at any time
prior to the Closing Date by mutual written agreement of the Company, the
Special Share Purchaser and the Purchasers, (ii) if the Closing Date shall not
have occurred on or prior to April 23, 2004, by either the Company or the
Purchasers or the Special Share Purchaser, at any time after April 23, 2004,
provided that the right to terminate this Agreement under this Section
8.01(b)(ii) shall not be available to any party whose failure to fulfill any
obligation under this Agreement was the cause of or resulted in the failure of
the Closing Date to occur on or before such date, or (iii) if any Governmental
Authority shall have issued a nonappealable final order, decree or ruling or
taken any other action having the effect of permanently restraining, enjoining
or otherwise prohibiting the transactions contemplated by this Agreement by
either the Company or the Purchasers or the Special Share Purchaser; provided,
that the right to terminate this Agreement under this Section 8.01(b)(iii) shall
not be available to any party whose failure to fulfill any obligation under this
Agreement was the cause of or resulted in, such final order, decree or ruling.
Section 8.02. Defaulting Purchaser. (a) If, on the Closing
Date, any Purchaser defaults on its obligation to purchase the Notes that it has
agreed to purchase hereunder, the non-defaulting Purchasers may in their
discretion arrange for the purchase of such Notes by other persons satisfactory
to the Company on the terms contained in this Agreement. If, within 36 hours
after any such default by any Purchaser, the non-defaulting Purchasers do not
arrange for the purchase of such Notes, then the Company shall be entitled to a
further period of 36 hours within which to procure other persons satisfactory to
the non-defaulting Purchasers to purchase such Notes on such terms. If other
persons become obligated or agree to purchase the Notes of a defaulting
Purchaser, either the non-defaulting Purchasers or the Company may postpone the
Closing Date for up to five full Business Days in order to effect any changes
that in the opinion of counsel for the Company or counsel for the Purchasers may
be necessary in any document or arrangement. As used in this Agreement, the term
"Purchaser" includes, for all purposes of this Agreement unless the context
otherwise requires, any person not listed in Schedule 1 hereto that, pursuant to
this Article VIII, purchases Notes that a defaulting Purchaser agreed but failed
to purchase.
(b) If, after giving effect to any arrangements for the
purchase of the Notes of a defaulting Purchaser or Purchasers by the
non-defaulting Purchasers and the Company as provided in Section 8.02(a) above,
the aggregate principal amount of such Notes that remains unpurchased exceeds
one-eleventh of the aggregate principal amount of all the Notes, then this
Agreement shall terminate without liability on the part of the non-defaulting
Purchasers. Any termination of this Agreement pursuant to this Article VIII
shall be without liability on the part of the Company or its Subsidiaries,
except that the Company will continue to be liable for the payment of expenses
as set forth in Article IX hereof and except that the provisions of Article VIII
hereof shall not terminate and shall remain in effect.
(c) Nothing contained herein shall relieve a defaulting
Purchaser of any liability it may have to the Company, its Subsidiaries or any
non-defaulting Purchaser for damages caused by its default.
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ARTICLE IX
MISCELLANEOUS
Section 9.01. Payment of Expenses. Whether or not the
transactions contemplated by this Agreement are consummated or this Agreement is
terminated, the Company agrees to pay or cause to be paid all costs and expenses
incident to the performance of their respective obligations hereunder, including
without limitation, (i) the costs incident to the authorization, issuance, sale,
preparation and delivery of the Notes and any taxes payable in that connection;
(ii) the costs of reproducing and distributing each of the Transaction
Documents; (iii) the fees and expenses of the Company's and its Subsidiaries'
counsel and independent accountants; (iv) the fees and expenses of the Security
Trustee and any paying agent (including related reasonable fees and expenses of
any counsel to such parties); and (v) the fees and expenses of the Holder (as
defined in the Shareholders Agreement) of the Special Share (unless the Holder
is Xxxxxx Xxxxxxx).
Section 9.02. Expense Reimbursement. The Company agrees to
reimburse the Purchasers and Special Share Purchaser for all out-of-pocket
expenses and fees, including the fees and expenses of attorneys, accountants and
consultants employed in connection with the Purchasers' and Special Share
Purchaser's consideration, negotiation and consummation of the investment,
including the Purchasers' and Special Share Purchaser's due diligence on the
Company and any documentation relating to the transactions contemplated by this
Agreement and any of the Transaction Documents. Notwithstanding the foregoing,
the Company shall not be required to pay more than an aggregate of US$3.5
million in respect of the foregoing obligation. The liability of the Company
under this Section 9.02 shall not extend to or include any liability or sum
which would, but for this proviso, cause such liability to be unlawful or
prohibited by section 39 of the Bermuda Companies Xxx 0000.
Section 9.03. Persons Entitled to Benefit of Agreement. This
Agreement shall inure to the sole benefit of and be binding upon the parties
hereto and their respective successors and, for purposes of Section 5.06 hereof,
holders from time to time of Notes and Qualified Shareholders, and, for purposes
of Article VII hereof, any controlling persons referred to therein, and the
affiliates, officers, trustees and directors of each Purchaser and the Special
Share Purchaser referred to in Article VII hereof. Nothing in this Agreement is
intended or shall be construed to give any person, other than the persons
referred to in this Section 9.03, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision contained herein. No
purchaser of Notes from any Purchaser shall be deemed to be a successor by
reason of such purchase.
Section 9.04. Notices. All notices, demands, requests,
consents, approvals or other communications (collectively, "Notices") required
or permitted to be given hereunder or which are given with respect to this
Agreement shall be in writing and shall be personally served, delivered by
reputable air courier service with charges prepaid, or transmitted by hand
delivery, telegram, telex or facsimile, addressed as set forth below, or to such
other address as such party shall have specified most recently by written
notice. Notice shall be deemed given on the date of service or transmission if
personally served or transmitted by telegram, telex or facsimile. Notice
otherwise sent as provided herein shall be deemed given on the next business day
follow-
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ing delivery of such notice to a reputable air courier service. Any party may
change its address for Notice by Notice given to the Company in accordance with
the foregoing. No objection may be made to the method of delivery of any Notice
actually and timely received.
To the Company:
Viatel Holding (Bermuda) Limited
Xxxxxxx Xxxxx
Xxxx Xxxx
Xxxxx, Xxxxxx XX00 XXX
Xxxxxx Xxxxxxx
Attn: General Counsel
Telephone: 00-0000-000-000
Fax: 00-0000-000-000
and
To the Purchasers or the Special Share Purchaser:
To the addresses specified on Schedule 1 hereto,
with a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
Section 9.05. GOVERNING LAW; WAIVER OF JURY TRIAL. (a) This
Agreement shall be construed in accordance with the internal laws of the State
of New York without regard to the conflicts of laws provisions thereof. The
Company hereby irrevocably submits to the jurisdiction of any court of the State
of New York located in the County of New York or the United States District
Court for the Southern District of the State of New York, any appellate courts
from any thereof (any such court, a "New York Court") or any court of the United
Kingdom located in London, or any appellate courts from any thereof (any such
court, a "UK Court"), but shall not be required to submit to the jurisdiction of
a court other than a New York Court or UK Court, for the purpose of any suit,
action or other proceeding arising out of or relating to this Agreement or under
any applicable securities laws and arising out of the foregoing, which is
brought by or against the Company, and the Company hereby irrevocably agrees
that all claims in respect of any such suit, action or proceeding will be heard
and determined in any such court. Each party hereto (other than the Company)
hereby irrevocably submits to the jurisdiction of any New York Court, but shall
not be required to submit to the jurisdiction of a court other than a New York
Court, for the purpose of any suit, action or other proceeding arising out of or
relating to this Agreement or under any applicable securities laws and arising
out of the foregoing, which is brought by or against such party, and such party
hereby irrevocably
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agrees that all claims in respect of any such suit, action or proceeding will be
heard and determined in any such court. The Company hereby agrees not to
commence any action, suit or proceeding relating to this Agreement other than in
a New York Court except to the extent mandated by applicable law. The Company
hereby waives any objection that it may now or hereafter have to the venue of
any such suit, action or proceeding in any New York Court or any UK Court or
that such suit, action or proceeding was brought in an inconvenient court and
agree not to plead or claim the same. Each party hereto (other than the Company)
hereby waives any objection that it may now or hereafter have to the venue of
any such suit, action or proceeding in any New York Court or that such suit,
action or proceeding was brought in an inconvenient court and agree not to plead
or claim the same. EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY
RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING
UNDER THIS AGREEMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO
THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT THIS AGREEMENT,
OR THE TRANSACTIONS RELATED HERETO, IN EACH CASE WHETHER NOW EXISTING OR
HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND
EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY
PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS
SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES
HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
(b) The submission to the jurisdiction referred to in the
preceding paragraph shall not limit the right of any Purchaser or Special Share
Purchaser to take proceedings against any other party hereto in courts of any
other competent jurisdiction nor shall the taking of proceedings against such
other party in any one or more jurisdictions preclude the taking of proceedings
against such other party in any other jurisdiction (whether concurrently or not)
if and to the extent permitted by applicable law.
(c) The Company agrees that the process by which any
suit, action or proceeding is begun in connection with this Agreement may be
served on it at its principal place of business in the United Kingdom for the
time being. If the Company ceases to have a principal place of business in the
United Kingdom, it shall immediately appoint a further person in the United
Kingdom to accept service of process on its behalf in such jurisdiction. Nothing
contained herein shall affect the right of the parties hereto to serve process
in any other manner permitted by law. In addition, the Company acknowledges and
agrees that (a) it has, by separate letter, irrevocably appointed CT Corporation
System, as its authorized agent upon which process may be served in any suit or
proceeding against the Company arising out of or relating to this Agreement or
under any securities laws of the United States or any state thereof and arising
out of the foregoing, (b) it has, prior to the date hereof, paid such agent an
amount in cash sufficient to procure such agent's services for eleven years from
the date hereof and (c) service of process upon such agent, and written notice
of said service to the Company by the person serving the same to the address
provided above, shall be deemed in every respect effective service of process
upon the Company in any such suit or proceeding. The Company agrees to take any
and all action as may be necessary to maintain such designation and appointment
of such agent in full force and effect for a period of at least eleven years
from the date of this Agreement.
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Section 9.06. Counterparts. This Agreement may be signed in
counterparts (which may include counterparts delivered by any standard form of
telecommunication), each of which shall be an original and all of which together
shall constitute one and the same instrument.
Section 9.07. Amendments or Waivers. No amendment or waiver of
any provision of this Agreement, nor any consent or approval to any departure
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Company and Purchasers representing a majority in principal
amount of the Notes to be purchased pursuant to this Agreement; provided, that
to the extent that any amendment, waiver or departure would adversely affect the
rights or obligations of, or impose additional obligations on, any Purchaser in
a manner that is materially different from the manner in which it affects the
rights or obligations of the other Purchasers, or that would increase the amount
of Notes that such Purchaser is required to purchaser hereunder, then the
written consent of such Purchaser shall be required. No waiver of any breach of
any agreement or provision herein contained shall be deemed a waiver of any
preceding or succeeding breach thereof nor of any other agreement or provision
herein contained. No waiver or extension of time for performance of any
obligations or acts shall be deemed a waiver or extension of the time for
performance of any other obligations or acts.
Section 9.08. Headings. The headings of the Articles and
Sections of this Agreement have been inserted for convenience of reference only,
are not to be considered a part hereof, and shall in no way modify or restrict
any of the terms or provisions hereof.
Section 9.09. Entire Agreement. This Agreement and the
Transaction Documents (including all agreements entered into pursuant hereto and
thereto and all certificates and instruments delivered pursuant hereto and
certificates and instruments delivered pursuant hereto and thereto) constitute
the entire agreement of the parties with respect to the subject matter hereof
and supersede all prior and contemporaneous agreement, representations,
understandings, negotiations and discussions between the parties, whether oral
or written, with respect to the subject matter hereof.
Section 9.10. Assignment. This Agreement and the rights,
duties and obligations hereunder may not be assigned or delegated by the Company
without the prior written consent of the Purchasers, and may not be assigned or
delegated by any Purchaser. The Special Share Purchaser may assign all of its
rights and obligations to any Person designated by Xxxxxx Xxxxxxx, without any
further consent of any other party hereto, but in accordance with the
Shareholders Agreement. Except as set forth above, any assignment or delegation
of rights, duties or obligations hereunder made without the prior written
consent of the Purchasers, shall be void and of no effect.
Section 9.11. Severability. If any one or more of the
provisions contained in this Agreement shall, for any reason, be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Agreement and
such provision shall be interpreted to the fullest extent permitted by the law;
provided that the parties hereto shall use their reasonable best efforts to find
and employ an alternative means to achieve the same or substantially the same
result as that contemplated by such provision.
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Section 9.12. Successors. All agreements of the Company in
this Agreement shall bind its successor.
Section 9.13. Non-Waiver; Remedies Cumulative. None of the
Company, any Purchaser, or the Special Share Purchaser shall, by any act of
omission or commission, be deemed to waive any of its rights or remedies
hereunder unless such waiver be in writing and signed by such Person and then
only to the extent specifically set forth therein; a waiver on one occasion
shall not, except as specifically set forth therein, be construed as continuing
or as a bar to or waiver of a right or remedy on any other occasion. All
remedies conferred upon each such Person by this Agreement shall be cumulative
and none is exclusive, and such remedies may be exercised concurrently or
consecutively at such Person's option.
Section 9.14. Injunctive Relief. It is hereby agreed and
acknowledged that it will be impossible to measure in money the damages that
would be suffered if the parties fail to comply with any of the obligations
herein imposed on them and that, in the event of any such failure, an aggrieved
Person will be irreparably damaged and will not have an adequate remedy at law.
Any such Person shall, therefore, be entitled to (in addition to any other
remedy to which the Person may be entitled, at law or in equity) injunctive
relief, including specific performance, to enforce such obligations, without the
posting of any bond and if any action should be brought in equity to enforce any
of the provisions of this Agreement, none of the parties hereto shall raise the
defense that there is an adequate remedy at law.
Section 9.15. Time of the Essence. Time is of the essence with
respect to all of the obligations and agreements specified in this Agreement.
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If the foregoing is in accordance with your understanding of
our agreement, kindly sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement between the Company, its
Subsidiaries, the Special Share Purchaser and the several Purchasers in
accordance with its terms.
XXXXXX XXXXXXX & CO. INCORPORATED VIATEL HOLDING (BERMUDA) LIMITED
By: ______________________________ By: ______________________________
Name: Name:
Title: Title:
AHAB PARTNERS, X.X. XXXXX PARTNERS, INC.
By: _________________, its _______ By: ______________________________
Name:
Title:
By: ______________________________
Name:
Title:
STONEHILL INSTITUTIONAL PARTNERS, L.P. ORE HILL HUB FUND LTD.
By: _________________, its _______ By: _____________, its ___________
By: ______________________________ By: ______________________________
Name: Name:
Title: Title:
-00-
XXXX XXXXX XXXXXXX DISTRESSED OPPORTUNITIES
FUND I-A, LLC
__________________________________
Name: Xxxx Xxxxx By: _________________, its _______
By: ______________________________
Name:
Title:
SAPPHIRE SPECIAL OPPORTUNITIES FUND,
LLC
By: _________________, its _______
By: ______________________________
Name:
Title:
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