Exhibit 4.3
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NOTES REGISTRATION RIGHTS AGREEMENT
Dated October 3, 1996
among
RSL COMMUNICATIONS PLC
RSL COMMUNICATIONS, LTD.
and
XXXXXX XXXXXXX & CO. INCORPORATED
BEAR, XXXXXXX & CO. INC.
XXXXXX, READ & CO. INC.
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NOTES REGISTRATION RIGHTS AGREEMENT
THIS NOTES REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into October 3, 1996, among RSL COMMUNICATIONS, LTD., a Bermuda
corporation ("Holdings), RSL COMMUNICATIONS PLC, a United Kingdom corporation
(the "Note Issuer", and together with Holdings, the "Issuers"), and XXXXXX
XXXXXXX & CO. INCORPORATED, BEAR, XXXXXXX & CO. INC. and XXXXXX, READ & CO. INC.
(the "Placement Agents").
This Agreement is made pursuant to the Placement Agreement dated
September 30, 1996, among Holdings, the Note Issuer and the Placement Agents
(the "Placement Agreement"), which provides for the sale by Holdings and the
Company to the Placement Agents of 300,000 Units. Each Unit consists of (i) 12
1/4% Senior Notes due 2006 having a principal amount equal to $1,000 (the
"Notes") to be issued pursuant to the Indenture (as hereinafter defined) and
(ii) one Warrant (collectively, the "Warrants") entitling the holder thereof to
purchase 1.815 Class A common shares, par value $0.01 per share, of Holdings at
an exercise price of $0.01 per share, subject to adjustment. The obligations of
the Note Issuer under the Notes and the Indenture will be guaranteed by Holdings
pursuant to the terms of the Indenture (the "Note Guarantee"). In order to
induce the Placement Agents to enter into the Placement Agreement, the Issuers
have agreed to provide to the Placement Agents and their direct and indirect
transferees the registration rights with respect to the Notes and the Note
Guarantee set forth in this Agreement. The execution of this Agreement is a
condition to the closing under the Placement Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions.
As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as amended from time
to time.
"1934 Act" shall mean the Securities Exchange Act of 1934, as amended
from time to time.
"Closing Date" shall mean the Closing Date as defined in the Placement
Agreement.
"Exchange Dates" shall have the meaning set forth in Section 2(a)(ii)
hereof.
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"Exchange Notes" shall mean securities issued by the Note Issuer and
guaranteed on an unsubordinated basis by Holdings under the Indenture
containing terms identical to the Notes (except that (i) interest thereon
shall accrue from the last date on which interest was paid on the Notes and
(ii) the Exchange Notes will not contain terms with respect to transfer
restrictions) and to be offered to Holders of Notes in exchange for Notes
pursuant to the Exchange Offer.
"Exchange Offer" shall mean the exchange offer by the Note Issuer of
Exchange Notes for Registrable Notes pursuant to Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration under the 1933
Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Form F-4 (or other appropriate form) and all
amendments and supplements to such registration statement, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Holder" shall mean any of the Placement Agents, for so long as they
own any Registrable Notes, and each of their successors, assigns and direct
and indirect transferees who become registered owners of Registrable Notes
under the Indenture; provided that for purposes of Sections 4 and 5 of this
Agreement, the term "Holder" shall include Participating Broker-Dealers (as
defined in Section 4(a)).
"Holdings" shall have the meaning set forth in the preamble and shall
also include Holdings' successors.
"Indenture" shall mean the Indenture relating to the Notes dated as of
the date hereof among Holdings, the Note Issuer and The Chase Manhattan
Bank, as trustee, and as the same may be amended from time to time in
accordance with the terms thereof.
"Issuers" shall mean Holdings and the Note Issuer, collectively.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of outstanding Registrable Notes; provided that
whenever the consent or approval of Holders of a specified percentage of
Registrable Notes is required hereunder, Registrable Notes held by the Note
Issuer or any of its affiliates (as such term is defined in Rule 405 under
the 1933 Act), other than the Placement Agents or subsequent holders of
Registrable Notes if such subsequent holders are deemed to be such
affiliates solely by reason of their holding of such Registrable
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Notes, shall not be counted in determining whether such consent or approval
was given by the Holders of such required percentage or amount.
"Note Guarantee" shall have the meaning set forth in the preamble.
"Notes" shall have the meaning set forth in the preamble.
"Note Issuer" shall have the meaning set forth in the preamble and
shall also include the Note Issuer's successors.
"Participating Broker-Dealer" shall have the meaning set forth in
Section 4.
"Person" shall mean an individual, partnership, limited liability
company, limited liability partnership, corporation, trust or
unincorporated organization, or a government or agency or political
subdivision thereof.
"Placement Agents" shall have the meaning set forth in the preamble.
"Placement Agreement" shall have the meaning set forth in the
preamble.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a
prospectus supplement with respect to the terms of the offering of any
portion of the Registrable Notes covered by a Shelf Registration Statement,
and by all other amendments and supplements to such prospectus, and in each
case including all material incorporated by reference therein.
"Registrable Notes" shall mean the Notes; provided, however, that the
Notes shall cease to be Registrable Notes (i) when a Registration Statement
with respect to such Notes shall have been declared effective under the
1933 Act and such Notes shall have been disposed of pursuant to such
Registration Statement, (ii) when such Notes have been sold to the public
pursuant to Rule 144(k) (or any similar provision then in force, but not
Rule 144A) under the 1933 Act, (iii) when such Notes shall have ceased to
be outstanding or (iv) when the Exchange Offer is consummated (except in
the case of Notes purchased from the Note Issuer that continue to be held
by a Placement Agent).
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by Holdings and the Note Issuers with this
Agreement, including without limitation: (i) all SEC, stock exchange or
National Association of Securities Dealers, Inc. registration and filing
fees, (ii) all fees and expenses incurred in connection with compliance
with state securities or blue sky laws (including
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reasonable fees and disbursements of counsel for any underwriters or
Holders in connection with blue sky qualification of any of the Exchange
Notes or Registrable Notes), (iii) all expenses of any Persons in preparing
or assisting in preparing, word processing, printing and distributing any
Registration Statement, any Prospectus, any amendments or supplements
thereto, any underwriting agreements, securities sales agreements and other
documents relating to the performance of and compliance with this
Agreement, (iv) all rating agency fees, (v) all fees and disbursements
relating to the qualification of the Indenture under applicable securities
laws, (vi) the fees and disbursements of the Trustee and its counsel, (vii)
the fees and disbursements of counsel for Holdings and the Note Issuer and,
in the case of a Shelf Registration Statement, the fees and disbursements
of one counsel for the Holders (which counsel shall be selected by the
Majority Holders and which counsel may also be counsel for the Placement
Agents) and (viii) the fees and disbursements of the independent public
accountants of Holdings and the Note Issuer, including the expenses of any
special audits or "cold comfort" letters required by or incident to such
performance and compliance, but excluding fees and expenses of counsel to
the underwriters (other than fees and expenses set forth in clause (ii)
above) or the Holders and underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of Registrable
Notes by a Holder.
"Registration Statement" shall mean any registration statement of
Holdings and the Note Issuer that covers any of the Exchange Notes or
Registrable Notes pursuant to the provisions of this Agreement and all
amendments and supplements to any such Registration Statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"SEC" shall mean the Securities and Exchange Commission.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of Holdings and the Note Issuer pursuant to the provisions of
Section 2(b) of this Agreement which covers all of the Registrable Notes
(but no other securities unless approved by the Holders whose Registrable
Notes are covered by such Shelf Registration Statement) on an appropriate
form under Rule 415 under the 1933 Act, or any similar rule that may be
adopted by the SEC, and all amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
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"Trustee" shall mean the trustee with respect to the Notes under the
Indenture.
"Underwritten Registration" or "Underwritten Offering" shall mean a
registration in which Registrable Notes are sold to an underwriter for
reoffering to the public.
"Warrants" shall have the meaning set forth in the preamble.
2. Registration Under the 1933 Act.
(a) To the extent not prohibited by any applicable law or applicable
interpretation of the Staff of the SEC, the Note Issuer and Holdings shall use
their best efforts to file and cause to become effective an Exchange Offer
Registration Statement covering the offer by the Note Issuer and Holdings to the
Holders to exchange all of the Registrable Notes for Exchange Notes, to have
such Registration Statement remain effective until the closing of the Exchange
Offer and to consummate the Exchange Offer on or prior to June 1, 1997. The Note
Issuer and Holdings shall commence the Exchange Offer promptly after the
Exchange Offer Registration Statement has been declared effective by the SEC.
The Note Issuer and Holdings shall commence the Exchange Offer by mailing the
related exchange offer Prospectus and accompanying documents to each Holder
stating, in addition to such other disclosures as are required by applicable
law:
(i) that the Exchange Offer is being made pursuant to this Agreement
and that all Registrable Notes validly tendered will be accepted for
exchange;
(ii) the dates of acceptance for exchange (which shall be a period of
at least 20 business days from the date such notice is mailed) (the
"Exchange Dates");
(iii) that any Registrable Note not tendered will remain outstanding
and continue to accrue interest or original issue discount, as applicable,
but will not retain any rights under this Agreement;
(iv) that Holders electing to have a Registrable Note exchanged
pursuant to the Exchange Offer will be required to surrender such
Registrable Note, together with the enclosed letters of transmittal to the
institution and at the address (located in the Borough of Manhattan, The
City of New York) specified in the notice prior to the close of business on
the last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not
later than the close of business on the last Exchange Date, by sending to
the institution and at the address (located in the Borough of Manhattan,
The City of New York) specified in the notice a telegram, telex, facsimile
transmission or letter setting forth the name
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of such Holder, the principal amount of Registrable Notes delivered for
exchange and a statement that such Holder is withdrawing his election to
have such Notes exchanged.
As soon as practicable after the last Exchange Date, the Note Issuer
and Holdings shall:
(i) accept for exchange Registrable Notes or portions thereof duly
tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Registrable Notes or portions thereof so accepted for
exchange by the Note Issuer and Holdings and issue, and cause the Trustee
to promptly authenticate and mail to each Holder, an Exchange Note equal in
principal amount to the principal amount of the Registrable Note
surrendered by such Holder.
The Note Issuer and Holdings shall use their best efforts to complete the
Exchange Offer as provided above and shall comply with the applicable
requirements of the 1933 Act, the 1934 Act and other applicable laws and
regulations in connection with the Exchange Offer. The Exchange Offer shall not
be subject to any condition other than that the Exchange Offer not violate
applicable law or any applicable interpretation of the Staff of the SEC. The
Note Issuer and Holdings shall inform the Placement Agents of the names and
addresses of the Holders to whom the Exchange Offer is made, and the Placement
Agents shall have the right, subject to applicable law, to contact such Holders
and otherwise facilitate the tender of Registrable Notes in the Exchange Offer.
(b) In the event that (i) the Note Issuer and Holdings determine that
the Exchange Offer Registration provided for in Section 2(a) above is not
available or may not be consummated as soon as practicable after the last
Exchange Date because it would violate applicable law or the applicable
interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any
other reason consummated by June 1, 1997 or (iii) the Exchange Offer has been
completed and, in the opinion of counsel for the Placement Agents, a
Registration Statement must be filed and a Prospectus must be delivered by a
Placement Agent in connection with any offering or sale by it of Registrable
Notes, the Note Issuer and Holdings shall use their best efforts to cause to
become effective as soon as practicable after such determination, date or notice
of such opinion of counsel is given to the Note Issuer, as the case may be, a
Shelf Registration Statement providing for the sale by the Holders of all of the
Registrable Notes and to keep such registration statement effective until the
expiration of the time period referred to in Rule 144(k) under the 1933 Act
after the Closing Date or such shorter period that will terminate when all of
the Registrable Notes covered by the Shelf Registration Statement have been sold
pursuant to the Shelf Registration Statement. The Note Issuer and Holdings
further agree to supplement or amend the Shelf Registration
7
Statement if required by the rules, regulations or instructions applicable to
the registration form used by the Note Issuer and Holdings for such Shelf
Registration Statement or by the 1933 Act or by any other rules and regulations
thereunder for shelf registration or if reasonably requested by a Holder with
respect to information relating to such Holder, and to use their best efforts to
cause any such amendment to become effective and such Shelf Registration
Statement to become usable as soon as thereafter practicable. The Note Issuer
and Holdings agree to furnish to the Holders of Registrable Notes copies of any
such supplement or amendment promptly after its being used or filed with the
SEC.
(c) The Note Issuer and Holdings shall pay all Registration Expenses
in connection with the registration pursuant to Section 2(a) or Section 2(b).
Each Holder shall pay all underwriting discounts and commissions and transfer
taxes, if any, relating to the sale or disposition of such Holder's Registrable
Notes pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a)
hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will
not be deemed to have become effective unless it has been declared effective by
the SEC; provided, however, that, if, after it has been declared effective, the
offering of Registrable Notes pursuant to a Shelf Registration Statement is
interfered with by any stop order, injunction or other order or requirement of
the SEC or any other governmental agency or court, such Registration Statement
will be deemed not to have become effective during the period of such
interference until the offering of Registrable Notes pursuant to such
Registration Statement may legally resume. As provided for in the Indenture, in
the event the Exchange Offer is not consummated and a Shelf Registration
Statement is not declared effective on or prior to June 1, 1997, the annual
interest rate borne by the Notes shall be permanently increased by 0.5% per
annum, and such additional interest will accrue from such date and be payable in
cash, semiannually, in arrears, on each May 15 and November 15, commencing
November 15, 1997. If a Shelf Registration Statement is required solely by the
matters referred to in clause (iii) of the first sentence of Section 2(b), the
foregoing interest shall be payable only to the Placement Agents, with respect
to Notes held by them, and only with respect to any period (after June 1, 1997)
during which such Shelf Registration Statement is not effective.
(e) Without limiting the remedies available to the Placement Agents
and the Holders, the Note Issuer and Holdings acknowledge that any failure by
the Note Issuer and Holdings to comply with their respective obligations under
Section 2(a) and Section 2(b) hereof may result in material irreparable injury
to the Placement Agents or the Holders for which there is no adequate remedy at
law, that it will not be possible to measure damages for such injuries precisely
and that, in the event of any such failure, the Placement Agents or any Holder
may obtain such relief as may be required to specifically enforce the Note
Issuer's and Holdings's obligations under Section 2(a) and Section 2(b) hereof.
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3. Registration Procedures.
In connection with the obligations of the Note Issuer and Holdings
with respect to the Registration Statements pursuant to Section 2(a) and Section
2(b) hereof, the Note Issuer and Holdings shall as expeditiously as possible:
(a) prepare and file with the SEC a Registration Statement on the
appropriate form under the 1933 Act, which form (x) shall be selected by
the Note Issuer and Holdings and (y) shall, in the case of a Shelf
Registration, be available for the sale of the Registrable Notes by the
selling Holders thereof and (z) shall comply as to form in all material
respects with the requirements of the applicable form and include all
financial statements required by the SEC to be filed therewith, and use its
best efforts to cause such Registration Statement to become effective and
remain effective in accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep such
Registration Statement effective for the applicable period and cause each
Prospectus to be supplemented by any required prospectus supplement and, as
so supplemented, to be filed pursuant to Rule 424 under the 1933 Act; to
keep each Prospectus current during the period described under Section 4(3)
and Rule 174 under the 1933 Act that is applicable to transactions by
brokers or dealers with respect to the Registrable Notes or Exchange Notes;
(c) in the case of a Shelf Registration, furnish to each Holder of
Registrable Notes, to counsel for the Placement Agents, to counsel for the
Holders and to each underwriter of an Underwritten Offering of Registrable
Notes, if any, without charge, as many copies of each Prospectus, including
each preliminary Prospectus, and any amendment or supplement thereto and
such other documents as such Holder or underwriter may reasonably request,
in order to facilitate the public sale or other disposition of the
Registrable Notes; and the Note Issuer and Holdings consent to the use of
such Prospectus and any amendment or supplement thereto in accordance with
applicable law by each of the selling Holders of Registrable Notes and any
such underwriters in connection with the offering and sale of the
Registrable Notes covered by and in the manner described in such Prospectus
or any amendment or supplement thereto in accordance with applicable law;
(d) use their best efforts to register or qualify the Exchange and
Registrable Notes under all applicable state securities or "blue sky" laws
of such jurisdictions as any Holder of Registrable Notes covered by a
Registration Statement shall reasonably request in writing by the time the
applicable Registration Statement is declared effective by the SEC, to
cooperate with such Holders in connection with any filings
9
required to be made with the National Association of Securities Dealers,
Inc. and do any and all other acts and things which may be reasonably
necessary or advisable to enable such Holder to consummate the disposition
in each such jurisdiction of such Exchange and Registrable Notes owned by
such Holder; provided, however, that neither the Note Issuer nor Holdings
shall be required to (i) qualify as a foreign corporation or as a dealer in
securities in any jurisdiction where it would not otherwise be required to
qualify but for this Section 3(d), (ii) file any general consent to service
of process or (iii) subject itself to taxation in any such jurisdiction if
it is not so subject;
(e) in the case of a Shelf Registration, notify each Holder of
Registrable Notes, counsel for the Holders and counsel for the Placement
Agents promptly and, if requested by any such Holder or counsel, confirm
such advice in writing (i) when the Shelf Registration Statement has become
effective and when any post-effective amendment thereto has been filed and
becomes effective, (ii) of any request by the SEC or any state securities
authority for amendments and supplements to a Registration Statement and
Prospectus or for additional information after the Registration Statement
has become effective, (iii) of the issuance by the SEC or any state
securities authority of any stop order suspending the effectiveness of a
Registration Statement or the initiation of any proceedings for that
purpose, (iv) if, between the effective date of a Registration Statement
and the closing of any sale of Registrable Notes covered thereby, the
representations and warranties of the Note Issuer and Holdings contained in
any underwriting agreement, securities sales agreement or other similar
agreement, if any, relating to the offering cease to be true and correct in
all material respects or if the Note Issuer and Holdings receive any
notification with respect to the suspension of the qualification of the
Registrable Notes for sale in any jurisdiction or the initiation of any
proceeding for such purpose, (v) of the happening of any event during the
period a Shelf Registration Statement is effective which makes any
statement made in such Registration Statement or the related Prospectus
untrue in any material respect or which requires the making of any changes
in such Registration Statement or Prospectus in order to make the
statements therein not misleading and (vi) of any determination by the Note
Issuer and Holdings that a post-effective amendment to a Registration
Statement would be appropriate;
(f) make every reasonable effort to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement at the earliest
possible moment and provide immediate notice to each Holder of the
withdrawal of any such order;
(g) in the case of a Shelf Registration, furnish to each Holder of
Registrable Notes, without charge, at least one conformed copy of the Shelf
10
Registration Statement and any post-effective amendment thereto (without
documents incorporated therein by reference or exhibits thereto, unless
requested);
(h) in the case of a Shelf Registration, cooperate with the selling
Holders of Registrable Notes to facilitate the timely preparation and
delivery of certificates representing Registrable Notes to be sold and not
bearing any restrictive legends and enable such Registrable Notes to be in
such denominations (consistent with the provisions of the Indenture) and
registered in such names as the selling Holders may reasonably request at
least two business days prior to the closing of any sale of Registrable
Notes;
(i) in the case of a Shelf Registration, upon the occurrence of any
event contemplated by Section 3(e)(v) hereof, use their best efforts to
prepare and file with the SEC a supplement or post-effective amendment to a
Registration Statement or the related Prospectus or any document
incorporated therein by reference or file any other required document so
that, as thereafter delivered to the purchasers of the Registrable Notes,
such Prospectus will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading. The
Note Issuer and Holdings agree to notify the Holders to suspend use of the
Prospectus as promptly as practicable after the occurrence of such an
event, and the Holders hereby agree to suspend use of the Prospectus until
the Note Issuer and Holdings have amended or supplemented the Prospectus to
correct such misstatement or omission;
(j) a reasonable time prior to the filing of any Registration
Statement, any Prospectus, any amendment to a Registration Statement or
amendment or supplement to a Prospectus or any document which is to be
incorporated by reference into a Registration Statement or a Prospectus
after initial filing of a Registration Statement, provide copies of such
document to the Placement Agents and their counsel (and, in the case of a
Shelf Registration Statement, the Holders and their counsel) and make such
of the representatives of the Note Issuer and Holdings as shall be
reasonably requested by the Placement Agents or their counsel (and, in the
case of a Shelf Registration Statement, the Holders or their counsel)
available for discussion of such document, and shall not at any time file
or make any amendment to the Registration Statement, any Prospectus or any
amendment of or supplement to a Registration Statement or a Prospectus or
any document which is to be incorporated by reference into a Registration
Statement or a Prospectus, of which the Placement Agents and their counsel
(and, in the case of a Shelf Registration Statement, the Holders and their
counsel) shall not have previously been advised and furnished a copy or to
which the Placement Agents or their counsel (and, in the case of a Shelf
Registration Statement, the Holders or their counsel) shall reasonably
object;
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(k) obtain a CUSIP number and, if applicable, a CINS number, for all
Exchange Notes or Registrable Notes, as the case may be, not later than the
effective date of a Registration Statement;
(l) cause the Indenture to be qualified under the Trust Indenture Act
of 1939, as amended (the "TIA"), in connection with the registration of the
Exchange Notes or Registrable Notes, as the case may be, cooperate with the
Trustee and the Holders to effect such changes to the Indenture as may be
required for the Indenture to be so qualified in accordance with the terms
of the TIA and execute, and use their best efforts to cause the Trustee to
execute, all documents as may be required to effect such changes and all
other forms and documents required to be filed with the SEC to enable the
Indenture to be so qualified in a timely manner;
(m) in the case of a Shelf Registration, make available for inspection
by a representative of the Holders of the Registrable Notes, any
underwriter participating in any disposition pursuant to such Shelf
Registration Statement, and attorneys and accountants designated by the
Holders, at reasonable times and in a reasonable manner, all financial and
other records, pertinent documents and properties of the Note Issuer and
Holdings, and cause the respective officers, directors and employees of the
Note Issuer and Holdings to supply all information reasonably requested by
any such representative, underwriter, attorney or accountant in connection
with a Shelf Registration Statement;
(n) in the case of a Shelf Registration, use their best efforts to
cause all Registrable Notes to be listed on any securities exchange or any
automated quotation system on which similar securities issued by the Note
Issuer and Holdings are then listed if requested by the Majority Holders,
to the extent such Registrable Notes satisfy applicable listing
requirements;
(o) use their best efforts to cause the Exchange Notes or Registrable
Notes, as the case may be, to be rated by two nationally recognized
statistical rating organizations (as such term is defined in Rule 436(g)(2)
under the 0000 Xxx);
(p) if reasonably requested by any Holder of Registrable Notes covered
by a Registration Statement, (i) promptly incorporate in a Prospectus
supplement or post-effective amendment such information with respect to
such Holder as such Holder reasonably requests to be included therein and
(ii) make all required filings of such Prospectus supplement or such
post-effective amendment as soon as the Note Issuer and Holdings have
received notification of the matters to be incorporated in such filing; and
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(q) in the case of a Shelf Registration, enter into such customary
agreements and take all such other actions in connection therewith
(including those requested by the Holders of a majority of the Registrable
Notes being sold) in order to expedite or facilitate the disposition of
such Registrable Notes including, but not limited to, an Underwritten
Offering and in such connection, (i) to the extent possible, make such
representations and warranties to the Holders and any underwriters of such
Registrable Notes with respect to the business of the Note Issuer, Holdings
and their subsidiaries, the Registration Statement, Prospectus and
documents incorporated by reference or deemed incorporated by reference, if
any, in each case, in form, substance and scope as are customarily made by
issuers to underwriters in underwritten offerings and confirm the same if
and when requested, (ii) obtain opinions of counsel to the Note Issuer and
Holdings (which counsel and opinions, in form, scope and substance, shall
be reasonably satisfactory to the Holders and such underwriters and their
respective counsel) addressed to each selling Holder and underwriter of
Registrable Notes, covering the matters customarily covered in opinions
requested in underwritten offerings, (iii) obtain "cold comfort" letters
from the independent certified public accountants of the Note Issuer and
Holdings (and, if necessary, any other certified public accountant of any
subsidiary of the Note Issuer and Holdings, or of any business acquired by
the Note Issuer or Holdings for which financial statements and financial
data are or are required to be included in the Registration Statement)
addressed to each selling Holder and underwriter of Registrable Notes, such
letters to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with
underwritten offerings, and (iv) deliver such documents and certificates as
may be reasonably requested by the Holders of a majority in aggregate
principal amount of the Registrable Notes being sold or the underwriters,
and which are customarily delivered in underwritten offerings, to evidence
the continued validity of the representations and warranties of the Note
Issuer and Holdings made pursuant to clause (i) above and to evidence
compliance with any customary conditions contained in an underwriting
agreement.
In the case of a Shelf Registration Statement, the Note Issuer and
Holdings may require each Holder of Registrable Notes to furnish to the Note
Issuer and Holdings such information regarding the Holder and the proposed
distribution by such Holder of such Registrable Notes as the Note Issuer and
Holdings may from time to time reasonably request in writing.
In the case of a Shelf Registration Statement, each Holder agrees that
during any consecutive 365-day period, the Note Issuer may suspend availability
of the Shelf Registration Statement for (a) up to two consecutive 30-day periods
if the Note Issuer's Board of Directors determines in good faith that there is a
valid purpose for the suspension and (b) five additional, non-consecutive
three-day periods if the Note Issuer's Board of
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Directors determines in good faith that the Note Issuer cannot provide adequate
disclosure during such period due to circumstances beyond its control, and
further agrees that, with respect to any such suspension, if so directed by the
Note Issuer and Holdings, such Holder will deliver to the Note Issuer and
Holdings (at its expense) all copies in its possession, other than permanent
file copies then in such Holder's possession, of the Prospectus covering such
Registrable Notes current at the time of receipt of such notice and agrees that
upon receipt of written notice of such suspension, it will forthwith discontinue
disposition of Registrable Notes pursuant to such Shelf Registration Statement
until it receives copies of the amended or supplemented Prospectus contemplated
by Section 3(i) hereof. If the Note Issuer and Holdings shall give any such
notice to suspend the disposition of Registrable Notes pursuant to a
Registration Statement, the Note Issuer and Holdings shall extend the period
during which the Registration Statement shall be maintained effective pursuant
to this Agreement by the number of days during the period from and including the
date of the giving of such notice to and including the date when the Holders
shall have received copies of the supplemented or amended Prospectus necessary
to resume such dispositions.
The Holders of Registrable Notes covered by a Shelf Registration
Statement who desire to do so may sell such Registrable Notes in an Underwritten
Offering. In any such Underwritten Offering, the investment banker or investment
bankers and manager or managers (the "underwriters") that will administer the
offering will be selected by the Majority Holders of the Registrable Notes
included in such offering.
4. Participation of Broker-Dealers in Exchange Offer.
(a) The Staff of the SEC has taken the position that any broker-dealer
that receives Exchange Notes for its own account in the Exchange Offer in
exchange for Notes that were acquired by such broker-dealer as a result of
market-making or other trading activities (a "Participating Broker-Dealer"),
may be deemed to be an "underwriter" within the meaning of the 1933 Act and must
deliver a prospectus meeting the requirements of the 1933 Act in connection with
any resale of such Exchange Notes.
The Note Issuer and Holdings understand that it is the Staff's
position that if the Prospectus contained in the Exchange Offer Registration
Statement includes a plan of distribution containing a statement to the above
effect and the means by which Participating Broker-Dealers may resell the
Exchange Notes, without naming the Participating Broker-Dealers or specifying
the amount of Exchange Notes owned by them, such Prospectus may be delivered by
Participating Broker-Dealers to satisfy their prospectus delivery obligation
under the 1933 Act in connection with resales of Exchange Notes for their own
accounts, so long as the Prospectus otherwise meets the requirements of the 1933
Act.
(b) In light of the above, notwithstanding the other provisions of
this Agreement, the Note Issuer and Holdings agree that the provisions of this
Agreement as they
14
relate to a Shelf Registration shall also apply to an Exchange Offer
Registration to the extent, and with such reasonable modifications thereto as
may be reasonably requested by the Placement Agents or by one or more
Participating Broker-Dealers, in each case as provided in clause (ii) below, in
order to expedite or facilitate the disposition of any Exchange Notes by
Participating Broker-Dealers consistent with the positions of the Staff recited
in Section 4(a) above; provided that:
(i) the Note Issuer and Holdings shall not be required to amend or
supplement the Prospectus contained in the Exchange Offer Registration
Statement, as would otherwise be contemplated by Section 3(i), for a period
exceeding 180 days after the last Exchange Date (as such period may be
extended pursuant to the penultimate paragraph of Section 3 of this
Agreement) and Participating Broker-Dealers shall not be authorized by the
Note Issuer and Holdings to deliver and shall not deliver such Prospectus
after such period in connection with the resales contemplated by this
Section 4; and
(ii) the application of the Shelf Registration procedures set forth in
Section 3 of this Agreement to an Exchange Offer Registration, to the
extent not required by the positions of the Staff of the SEC or the 1933
Act and the rules and regulations thereunder, will be in conformity with
the reasonable request to the Note Issuer and Holdings by the Placement
Agents or with the reasonable request in writing to the Note Issuer and
Holdings by one or more broker-dealers who certify to the Placement Agents,
the Note Issuer and Holdings in writing that they anticipate that they will
be Participating Broker-Dealers; and provided further that, in connection
with such application of the Shelf Registration procedures set forth in
Section 3 to an Exchange Offer Registration, the Note Issuer and Holdings
shall be obligated (x) to deal only with one entity representing the
Participating Broker-Dealers, which shall be Xxxxxx Xxxxxxx & Co.
Incorporated, unless it advises the Note Issuer and Holdings in writing
that it elects not to act as such representative, (y) to pay the fees and
expenses of only one counsel representing the Participating Broker-Dealers,
which shall be counsel to the Placement Agents unless such counsel elects
not to so act and (z) to cause to be delivered only one, if any, "cold
comfort" letter with respect to the Prospectus in the form existing on the
last Exchange Date and with respect to each subsequent amendment or
supplement, if any, effected during the period specified in clause (i)
above.
(c) The Placement Agents shall have no liability to the Note Issuer,
Holdings or any Holder with respect to any request that it may make pursuant to
Section 4(b) above.
5. Indemnification and Contribution.
15
(a) The Note Issuer and Holdings agree, jointly and severally, to
indemnify and hold harmless each Placement Agent, each Holder and each Person,
if any, who controls any Placement Agent or any Holder within the meaning of
either Section 15 of the 1933 Act or Section 20 of the 1934 Act, or is under
common control with, or is controlled by, any Placement Agent or any Holder,
from and against all losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses reasonably incurred by any Placement
Agent, any Holder or any such controlling or affiliated person in connection
with defending or investigating any such action or claim) caused by any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement (or any amendment thereto) pursuant to which Exchange
Note or Registrable Notes were registered under the 1933 Act, including all
documents incorporated therein by reference, or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, or caused by any
untrue statement or alleged untrue statement of a material fact contained in any
Prospectus (as amended or supplemented if the Note Issuer and Holdings shall
have furnished any amendments or supplements thereto), or caused by any omission
or alleged omission to state therein a material fact necessary to make the
statements therein in light of the circumstances under which they were made not
misleading, except insofar as such losses, claims, damages or liabilities are
caused by any such untrue statement or omission or alleged untrue statement or
omission based upon information relating to any Placement Agent or any Holder
furnished to the Note Issuer and Holdings in writing by such Placement Agent or
any selling Holder expressly for use therein. In connection with any
Underwritten Offering permitted by Section 3 hereof, the Note Issuer and
Holdings will also indemnify the underwriters, if any, selling brokers, dealers
and similar securities industry professionals participating in the distribution,
their officers and directors and each Person who controls such Persons (within
the meaning of the 1933 Act and the 0000 Xxx) to the same extent as provided
above with respect to the indemnification of the Holders, if requested in
connection with any Registration Statement.
(b) Each Holder agrees, severally and not jointly, to indemnify and
hold harmless the Note Issuer, Holdings, each Placement Agent and the other
selling Holders, and each of their respective directors and officers who sign
the Registration Statement and each Person, if any, who controls the Note
Issuer, Holdings, any Placement Agent and any other selling Holder within the
meaning of either Section 15 of the 1933 Act or Section 20 of the 1934 Act to
the same extent as the foregoing indemnity from the Note Issuer to the Placement
Agent and the Holders, but only with reference to information relating to such
Holder furnished to the Note Issuer and Holdings in writing by such Holder
expressly for use in any Registration Statement (or any amendment thereto) or
any Prospectus (or any amendment or supplement thereto).
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any Person in respect of which indemnity may be
sought pursuant to
16
either paragraph (a) or paragraph (b) above, such Person (the "indemnified
party") shall promptly notify the Person against whom such indemnity may be
sought (the "indemnifying party") in writing and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably satisfactory
to the indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or reasonably
likely potential differing interests between them. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for (a) the fees and expenses of
more than one separate firm (in addition to any local counsel) for the Placement
Agents and all Persons, if any, who control any Placement Agent within the
meaning of either Section 15 of the 1933 Act or Xxxxxxx 00 xx xxx 0000 Xxx, (x)
the fees and expenses of more than one separate firm (in addition to any local
counsel) for the Note Issuer and Holdings, their directors, their officers who
sign the Registration Statement and each Person, if any, who controls the Note
Issuer or Holdings within the meaning of either such Section and (c) the fees
and expenses of more than one separate firm (in addition to any local counsel)
for all Holders and all Persons, if any, who control any Holders within the
meaning of either such Section, and that all such fees and expenses shall be
reimbursed as they are incurred. In such case involving any Placement Agent and
persons who control such Placement Agent, such firm shall be designated in
writing by Xxxxxx Xxxxxxx & Co. Incorporated. In such case involving the Holders
and such Persons who control Holders, such firm shall be designated in writing
by the Majority Holders. In all other cases, such firm shall be designated by
the Note Issuer and Holdings. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent but, if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel as contemplated by the second and third sentences of this paragraph,
the indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed the
indemnified party for such fees and expenses of counsel in accordance with such
request prior to the date of such settlement. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which such
indemnified party is or could have been a party and indemnity could have
17
been sought hereunder by such indemnified party, unless such settlement includes
an unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(d) If the indemnification provided for in paragraph (a) or paragraph
(b) of this Section 5 is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities, then each indemnifying
party under such paragraph, in lieu of indemnifying such indemnified party
thereunder, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party or parties on the one hand and of the indemnified party or parties on the
other hand in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Note Issuer and Holdings, the Holders
and the Placement Agents shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Note Issuer and Holdings, the Holders or the Placement Agents
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Holders'
respective obligations to contribute pursuant to this Section 5(d) are several
in proportion to the respective number of Registrable Notes of such Holder that
were registered pursuant to a Registration Statement.
(e) The Note Issuer and Holdings and each Holder agree that it would
not be just or equitable if contribution pursuant to this Section 5 were
determined by pro rata allocation or by any other method of allocation that does
not take account of the equitable considerations referred to in paragraph (d)
above. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages and liabilities referred to in paragraph (d) above shall
be deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 5, no Holder shall be required to indemnify or
contribute any amount in excess of the amount by which the total price at which
Registrable Notes were sold by such Holder exceeds the amount of any damages
that such Holder has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 0000
Xxx) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The remedies provided for in this Section 5
are not exclusive and shall not limit any rights or remedies which may otherwise
be available to any indemnified party at law or in equity.
The indemnity and contribution provisions contained in this Section 5
shall remain operative and in full force and effect regardless of (i) any
termination of this
18
Agreement, (ii) any investigation made by or on behalf of any Placement Agent,
any Holder or any person controlling any Placement Agent or any Holder, or by or
on behalf of the Note Issuer and Holdings, their officers or directors or any
Person controlling the Note Issuer or Holdings, (iii) acceptance of any of the
Exchange Notes and (iv) any sale of Registrable Notes pursuant to a Shelf
Registration Statement.
6. Miscellaneous.
(a) No Inconsistent Agreements. The Note Issuer and Holdings have not
entered into, and on or after the date of this Agreement will not enter into,
any agreement which is inconsistent with the rights granted to the Holders of
Registrable Notes in this Agreement or otherwise materially conflicts with the
provisions hereof. The rights granted to the Holders hereunder do not in any way
conflict with and are not inconsistent with the rights granted to the holders of
the Note Issuer's or Holdings' other issued and outstanding securities under any
such agreements.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Note Issuer and Holdings have obtained the written
consent of Holders of at least a majority in aggregate principal amount of the
outstanding Registrable Notes affected by such amendment, modification,
supplement, waiver or consent; provided that the signatories hereto may make any
amendment hereto that does not, in the good faith opinion of the Board of
Directors of Holdings (and evidenced by a resolution of such board) materially
adversely effect any Holder; provided, however, that notwithstanding the
foregoing no amendment, modification, supplement, waiver or consents to any
departure from the provisions of Section 5 hereof shall be effective as against
any Holder of Registrable Notes unless consented to in writing by such Holder.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (i) if to a Holder, at the most current address given by such Holder to
the Note Issuer and Holdings by means of a notice given in accordance with the
provisions of this Section 6(c), which address initially is, with respect to the
Placement Agents, the address set forth in the Placement Agreement; (ii) if to
the Note Issuer, initially at the Note Issuer's address set forth in the
Indenture and thereafter at such other address, notice of which is given in
accordance with the provisions of this Section 6(c); and (iii) if to Holdings,
initially at Holdings' address set forth in the Indenture and thereafter at such
other address, notice of which is given in accordance with the provisions of
this Section 6(c).
19
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt is acknowledged, if telecopied; and on
the next business day if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the person giving the same to the Trustee, at the
address specified in the Indenture.
(d) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors, assigns and transferees of each of the
parties, including, without limitation and without the need for an express
assignment, subsequent Holders; provided that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Registrable Notes in
violation of the terms of the Placement Agreement. If any transferee of any
Holder shall acquire Registrable Notes, in any manner, whether by operation of
law or otherwise, such Registrable Notes shall be held subject to all of the
terms of this Agreement, and by taking and holding such Registrable Notes such
person shall be conclusively deemed to have agreed to be bound by and to perform
all of the terms and provisions of this Agreement and such person shall be
entitled to receive the benefits hereof. The Placement Agents (in their capacity
as Placement Agents) shall have no liability or obligation to the Note Issuer or
Holdings with respect to any failure by a Holder to comply with, or any breach
by any Holder of, any of the obligations of such Holder under this Agreement.
(e) Purchases and Sales of Notes. The Note Issuer and Holdings shall
not, and shall use their best efforts to cause their affiliates (as defined in
Rule 405 under the 0000 Xxx) not to, purchase and then resell or otherwise
transfer any Notes.
(f) Third Party Beneficiary. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Note Issuer and
Holdings, on the one hand, and the Placement Agents, on the other hand, and each
Holder shall have the right to enforce such agreements directly to the extent it
deems such enforcement necessary or advisable to protect its rights or the
rights of Holders hereunder.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
20
(i) Designation of Process Agent; Submission to Jurisdiction. Each of
the parties hereto hereby agrees that any legal suit, action or proceeding
arising out of or relating to this Agreement or the transactions contemplated
herein may be instituted in any U.S. federal or New York State court in the
Borough of Manhattan in the City of New York (each a "New York court") and each
of the parties hereto hereby irrevocably waives any objection it may now or
hereafter have to the laying of venue of any such proceeding and irrevocably
submits to the jurisdiction of such courts and to the courts of its corporate
domicile, with respect to actions brought against it as defendant, in any suit,
action or proceeding. The Note Issuer and Holdings hereby each (i) represents
that it has irrevocably designated and appointed RSL Communications N. America,
Inc. ("RSL USA"), 000 Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000
(together with any successor, the "Process Agent") as its authorized agent in
the Borough of Manhattan in the City of New York upon which process may be
served in any such suit, action or proceeding, or brought under U.S. federal or
state securities laws, and acknowledges that the Process Agent has accepted such
designation, (ii) agrees that prior to any dissolution, liquidation, winding-up
or sale of RSL USA, or incorporation of RSL USA in a jurisdiction outside the
United States, it will cause such obligation of RSL USA to be assumed by (A) CT
Corporation System ("CT Corporation"), 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000
or (B) any other direct or indirect subsidiary of Holdings organized under the
laws of the United States; provided that such subsidiary also agrees to be bound
by the terms of this subclause (ii) as if such terms applied to such subsidiary,
(iii) agrees that service of process upon the Process Agent, and written notice
of such service to the Note Issuer and Holdings, shall be deemed in every
respect effective service of process upon the Note Issuer and Holdings in any
such suit, action or proceeding and (iv) agrees to take any and all action,
including the execution and filing of any and all such documents and instruments
as may be necessary to continue such designation and appointment of the Process
Agent in full force and effect so long as any of the Notes shall be outstanding.
(j) Governing Law. This Agreement shall be governed by the laws of the
State of New York.
(k) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(l) Waiver of immunity. To the extent that the Note Issuer or Holdings
has or hereafter may acquire any immunity from jurisdiction of any court or from
any legal process (whether through service of notice, attachment prior to
judgement, attachment in aid of execution, execution or otherwise) with respect
to itself or its property, each of them
21
hereby irrevocably waives such immunity in respect of their obligations under
this Agreement to the fullest extent permitted by law.
(m) The Issuers agree to cause Cyberlink, Inc. to be in good standing
in New Jersey and Massachusetts as soon as practicable after the date hereof.
22
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
RSL COMMUNICATIONS PLC
By /s/ Xxxxxx Xxxxxx
--------------------------------
Name: Xxxxxx Xxxxxx
Title:
RSL COMMUNICATIONS, LTD.
By /s/ Xxxxxx Xxxxxx
--------------------------------
Name: Xxxxxx Xxxxxx
Title:
Confirmed and accepted as of the date first above written:
XXXXXX XXXXXXX & CO. INCORPORATED
By_______________________________
Name:
Title:
BEAR, XXXXXXX & CO. INC.
By_______________________________
Name:
Title:
XXXXXX READ & CO. INC.
By_______________________________
Name:
Title:
22
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
RSL COMMUNICATIONS PLC
By _________________________________
Name:
Title:
RSL COMMUNICATIONS, LTD.
By_________________________________
Name:
Title:
Confirmed and accepted on
behalf of the Placement Agents
as of the date first above
written:
XXXXXX XXXXXXX & CO. INCORPORATED
By /s/ Xxxxx X. Xxxxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Principal
