Exhibit 10.16
AMENDMENT NO. 1
TO
SECURITYHOLDERS' AGREEMENT
AND REGISTRATION RIGHTS AGREEMENT
This Amendment No. 1, dated as of March 1, 1999, is entered into by and
among Carrier 1 Internation S.A., a Luxembourg SOCIETE ANONYME (the
"Company"), Carrier One, LLC, a limited liability company formed under the
laws of Delaware ("Carrier One"), and the Persons listed on the signature
pages hereto (said Amendment being referred to as "this Amendment").
Capitalized terms used in this Amendment and not otherwise defined herein
shall have the meanings ascribed thereto in the Securityholders' Agreement
dated as of March 1, 1999, among the Company, Carrier One, and the
Securityholders referred to therein (the "Securityholders' Agreement") and,
or, if not defined therein, in the Registration Rights Agreement dated as of
March 1, 1999, among the Company, Carrier One, Stig Johansson, Xxxxxxx Xxxxx,
Xxxxxx Xxxxx, Xxxx van Ophern, Xxxx Xxxxxx, Xxxxx Xxxxxxx, Xxxxxx Xxxxx, and
Xxxxxx Xxxxxxx (the "Registration Rights Agreement").
WITNESSETH:
WHEREAS, the Company, Carrier One, and certain of the Securityholders
are parties to the Securityholders' Agreement and the Registration Rights
Agreement;
WHEREAS, Xxxxxx Xxxxx and Xxxxxx Xxxxxx may acquire Securityholder
Securities and pursuant to separate Option Agreements with the Company and,
in such event, will be subject to the rights and obligations of Management
Investors under the Registration Rights Agreement and Securityholders
Agreement;
WHEREAS, pursuant to Section 24 of the Securityholders' Agreement,
Additional Purchasers may become a party to the Securityholders' Agreement
and shall be bound by the terms of such agreement between the Company,
Carrier One and such Additional Purchasers without further notice to the
Management Holders;
WHEREAS, pursuant to Section 10(d) of the Registration Rights Agreement,
no consent of the holders of the Management Shares shall be required to add
additional employees and directors of the Company and its Affiliates as
parties thereto;
WHEREAS, the Company, Carrier One, Xxxxxx Xxxxx and Xxxxxx Xxxxxx, have
agreed to amend the Securityholders' Agreement and Registration Rights
Agreement as provided herein;
NOW, THEREFORE, in consideration of the terms and conditions set forth
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, the
parties hereto hereby agree as follows:
SECTION 1. AMENDMENT TO SECURITYHOLDERS' AGREEMENT. Effective as of the
date hereof, the Securityholders' Agreement is hereby amended:
In accordance with Section 24 of the Securityholders's Agreement, to add
Xxxxxx Xxxxx and Xxxxxx Xxxxxx as Securityholders and Management Holders;
Xxxxxx Xxxxx and Xxxxxx Xxxxxx hereby each agree to be bound by all of the
terms and conditions of the Securityholders' Agreement and this Amendment and
the Company and Carrier One hereby consent to Xxxxxx Xxxxx and Xxxxxx Xxxxxx
being added as Securityholders and Management Holders.
SECTION 2. AMENDMENT TO REGISTRATION RIGHTS AGREEMENT
In accordance with Section 10(d) of the Registration Rights Agreement,
Xxxxxx Xxxxx and Xxxxxx Xxxxxx are hereby added as Management Investors party
to the Registration Rights Agreement and agree to be bound by all of the
terms and conditions of the Registration Rights Agreement and this Amendment
and the Company and Carrier One hereby consent to Xxxxxx Xxxxx and Xxxxxx
Xxxxxx being added as Management Investor.
SECTION 3. REPRESENTATIONS AND WARRANTIES.
Each of the Company and Carrier One hereby represents and warrants that
(i) it has full power and authority to execute and deliver this Amendment and
to perform its obligations hereunder, (ii) it has taken all action necessary
for the execution and delivery by it of this Amendment and the performance by
it of its obligations hereunder, and (iii) this Amendment constitutes its
valid and binding obligation enforceable against it in accordance with its
terms except to the extent enforceability may be subject to bankruptcy,
insolvency, moratorium and other similar laws affecting the rights of
creditors generally or the application of principles of equity, whether in an
action at law or proceeding in equity.
SECTION 4. REFERENCE TO AND EFFECT UPON THE AGREEMENTS.
4.1 Except as specifically amended above, the Securityholders' Agreement
and the Registration Rights Agreement shall remain in full force and effect
and are hereby ratified and confirmed.
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4.2 The execution, delivery and effectiveness of this Amendment
shall not operate as a waiver of any right, power or remedy of any Purchaser
or Securityholders under the Securityholders' Agreement or any Management
Investor under the Registration Rights Agreement, nor constitute an amendment
of any provision of the Securityholder's Agreement or the Registration
Rights Agreement, except as specifically set forth herein.
SECTION 5. GOVERNING LAW AND JURISDICTION
5.1 This Amendment shall be construed and administered in accordance
with and governed by the laws of Luxembourg.
5.2 Notwithstanding any contrary provision of the Securityholders'
Agreement or the Registration Rights Agreement, the state and federal courts
of the State of New York shall have jurisdiction to hear and decide any suit,
action or proceedings, and to settle any disputes, which may arise out of or
in connection with this Amendment or the rights or obligations of the parties
hereto under the Securityholders Agreement or the Registration Rights
Agreement (respectively, "Proceedings" and "Disputes") and for this purpose
each party irrevocably submits to the jurisdiction of such courts. This
paragraph 4.2 does not prevent any party to this Amendment from taking
proceedings relating to Proceedings or Disputes in any other courts with
jurisdiction. Each party irrevocably waives any objection which it might at
any time have to the courts located in the State of New York being nominated
as the forum to hear and decide any Proceedings and to settle any Disputes
and agrees not to claim that the courts located in the State of New York are
not a convenient or appropriate forum.
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by
the parties hereto as of the day and year first above written.
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CARRIER ONE, LLC
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Chairman
CARRIER 1 INTERNATIONAL S.A.
By: /s/ Stig Johansson
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Name: Stig Johansson
Title: Chairman
By:
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Name:
Title:
/s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx
/s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
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