Exhibit 10.18
AMENDMENT NO. 3
TO
SECURITYHOLDERS' AGREEMENT
AND SECURITIES PURCHASE AGREEMENT
This Amendment No. 3, dated as of March 1, 1999 (the "Amendment"), is
entered into by and among Carrier 1 International S.A., a Luxembourg SOCIETE
ANONYME (the "Company"), Carrier One, LLC, a limited liability company formed
under the laws of Delaware ("Carrier One"), and Xxxx Xxxxxxxx. 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 as amended from time to time (the "Securityholders'
Agreement"), among the Company, Carrier One, and the Securityholders referred
to therein and, or, if not defined therein, in the Securities Purchase
Agreement, dated as of March 1, 1999 as amended from time to time (the
"Securities Purchase Agreement"), among the Company, Carrier One, and the
Purchasers referred to therein (the "Securities Purchase Agreement").
WITNESSETH:
WHEREAS, the Company, Carrier One, and certain of the Securityholders are
parties to the Securityholders' Agreement;
WHEREAS, Xxxx Xxxxxxxx intends to purchase Securityholder Securities, and
will be subject to the rights and obligations of Management Investors under
the 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 upon agreement between the
Company, Carrier One and such Additional Purchasers without further notice to
the other Management Holders;
WHEREAS, pursuant to Article XII of the Securities Purchase Agreement,
the Company may sell additional Equity Securities to Xxxx Xxxxxxxx as an
Additional Purchaser in accordance with the terms of said agreement, in which
case such Additional Purchaser shall by a separate letter agreement become a
party to said agreement;
WHEREAS, the Company, Carrier One, and Xxxx Xxxxxxxx, have agreed to
amend the Securityholders' Agreement and the Securities Purchase 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' Agreement, to add Xxxx Xxxxxxxx as
Securityholder and Management Holder and a party to such agreement; Xxxx
Xxxxxxxx hereby agrees 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 Xxxx Xxxxxxxx being added as a Securityholder and a
Management Holder.
SECTION 2. AMENDMENT TO SECURITIES PURCHASE AGREEMENT. Effective as of
the date hereof, the Securityholders' Agreement is hereby amended in
accordance with Article XII of the Securities Purchase Agreement, to add Xxxx
Xxxxxxxx as an Additional Purchaser and a party to such agreement; Xxxx
Xxxxxxxx hereby agrees to be bound by all of the terms and conditions of the
Securities Purchase Agreement and this Amendment and the Company and Carrier
One hereby consent to Xxxx Xxxxxxxx being added as an Additional Purchaser.
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 Securities Purchase Agreement shall remain in full force and effect
and are hereby ratified and confirmed.
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 Additional
Purchaser under the Securities Purchase
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Agreement, nor constitute an amendment of any provision of the
Securityholders' Agreement or the Securities Purchase Agreement, except as
specifically set forth herein.
SECTION 5. GOVERNING LAW AND JURISDICTION.
5.1 This Agreement shall be governed by, and construed in accordance
with, the laws of Luxembourg, without giving effect to any choice of law or
conflict of law rules or provisions that would cause the application of the
laws of any jurisdiction other than Luxembourg.
5.2 The courts of England 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 Agreement (respectively, "Proceedings" and
"Disputes") and for this purpose each party irrevocably submits to the
jurisdiction of the Courts of England.
5.3 Paragraph 5.2 above does not prevent any party to this Agreement
from taking proceedings relating to Proceedings or Disputes in any other
courts with jurisdiction.
5.4 Each party irrevocably waives any objection which it might at any
time have to the courts of England being nominated as the forum to hear and
decide any Proceedings and to settle any disputes and agrees not to claim
that the courts of England 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/ XXXX XXXXXXXXX
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Name: Xxxx Xxxxxxxxx
Title: CHAIRMAN
/s/ XXXX XXXXXXXX
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Xxxx Xxxxxxxx
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