EXHIBIT 4.4
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement ("Agreement") is made and entered into
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as of September 19, 2000, by and between Telemonde, Inc., a Delaware corporation
(the "Company"), MCI WorldCom Global Networks U.S., Inc., a Delaware
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corporation("Global U.S.") and MCI WorldCom Global Networks Limited, a Bermuda
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company ("Global Limited", and together with Global U.S., the "Investors").
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This Agreement is made in connection with the execution and delivery of the
Debt Conversion Agreement, dated as of July 25, 2000, by and between the Company
and the Investors (the "Debt Conversion Agreement"). Under the terms of the Debt
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Conversion Agreement, the Investors agreed to cancel and release $9.0 million of
Relevant Debt (as such term is defined therein) in exchange for, and in
consideration of, the issuance of 15,766,792 shares of Common Stock of the
Company and the Company has agreed to provide the registration and other rights
set forth in this Agreement.
The parties hereby agree as follows:
ARTICLE I
Section 1.01. Definitions. Capitalized terms used and not otherwise defined
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herein have the meanings set forth in the Debt Conversion Agreement. The terms
set forth below are used herein as so defined:
"AAA" has the meaning set forth in Section 3.10(b).
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"AC Registration Rights Agreement" means that certain Registration Rights
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Agreement entered into as of August 1999 by and between the Company and Atlantic
Crossing.
"AC Warrants" means those certain warrants issued to Atlantic Crossing
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exercisable into 1.1 million shares of the Company with an exercise price of
$5.25 per share.
"Affiliates" has the meaning set forth in the Exchange Act.
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"Atlantic Crossing" means Atlantic Crossing Ltd., a Bermuda company.
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"CCL" means Communications Collateral Limited.
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"CCL Registration Rights Agreement" means that Registration Rights
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Agreement dated as of September 1, 1999 by and between the Company and CCL.
"CCL Shares" means the shares of Common Stock beneficially owned by CCL as
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of the date hereof that are registrable pursuant to the CCL Registration Rights
Agreement.
"Commission" means the Securities and Exchange Commission.
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"Common Stock" means shares of common stock of the Company, par value
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$0.001 per share.
"Dispute" has the meaning set forth in Section 3.10(a).
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"Exchange Act" means the Securities Exchange Act of 1934, as amended.
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"Holder" means the record holder of any Registrable Security or any right
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to receive a Registrable Security.
"IPO" means the consummation of the initial underwritten public offering
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of Common Stock pursuant to an effective registration statement filed under the
Securities Act (other than any registration statement relating to warrants,
options or shares of capital stock of the Company granted or to be granted or
sold primarily to employees, directors, or officers of the Company, as a
registration statement filed pursuant to Rule 145 under the Securities Act or
any successor rule or a registration statement relating to employee benefit
plans or interests therein) and the listing of such Common Stock on a national
securities exchange or the quotation of prices therefor on NASDAQ (NMS) or on
NASDAQ (SMALLCAP).
"Issued Share Capital" means (i) all shares of issued and outstanding
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capital stock of the Company and (ii) all shares of capital stock of the Company
issuable upon the exercise of any right to subscribe for or convert any debt or
other instrument into or to exercise any option or warrant for such shares of
capital stock.
"Losses" has the meaning set forth in Section 2.06.
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"Person" means any individual, corporation (including any non-profit
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corporation), general or limited partnership, limited liability company, joint
venture, estate, trust, association, organization, labor union or governmental
entity.
"Priority Offering" means any registered primary offering of securities of
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the Company commencing on or prior to the date which is nine months from the
closing date of the Company's IPO.
"Registrable Securities" means (i) the shares of Common Stock and all
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other securities of the Company acquired by the Investors pursuant to the Debt
Conversion Agreement; and (ii) the shares of Common Stock issuable with respect
to the Shares of Common Stock and securities referred to in the foregoing clause
(i) pursuant to Section 1.02 hereof, until such time as such securities cease to
be Registrable Securities pursuant to Section 1.03 hereof.
"Registration Expenses" has the meaning set forth in Section 2.05.
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"Securities Act" means the Securities Act of 1933, as amended.
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"Selling Expenses" has the meaning set forth in Section 2.05.
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"Selling Holder" means a Holder who is selling Registrable Securities
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pursuant to a registration statement.
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"Senior Registration Rights" has the meaning set forth in Section 2.07.
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Section 1.02. Stock Splits, Dividends, Recapitalizations, Etc. Any shares
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or other securities resulting from any stock split, stock dividend,
reclassification of the Common Stock of the Company, merger, consolidation or
reorganization of the Company which may be received by the Holder shall also be
deemed to be Registrable Securities.
Section 1.03. Registrable Securities. Any Registrable Security will cease
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to be a Registrable Security when (i) a registration statement covering such
Registrable Security has been declared effective by the Commission and such
Registrable Security has been issued, sold or disposed of pursuant to such
effective registration statement; (ii) such Registrable Security is disposed of
pursuant to Rule 144 (or any similar provision then in force) under the
Securities Act; or (iii) such Registrable Security is held by the Company or any
of its subsidiaries.
ARTICLE II
Section 2.01. Registration in Connection with the IPO. Each of the
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Investors hereby acknowledges and the Company represents and warrants that no
party other than CCL, and then only with respect to the CCL Shares, has or shall
have any right to have any shares of capital stock of the Company registered by
the Company in connection with the IPO.
Section 2.02. Demand Registration. (a) On any date on or after the
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consummation of the IPO, a Holder(s) may request (the "Initiating Request") the
Company register under the Securities Act all of the Registrable Securities held
by the Holder(s) for sale in the manner specified in such notice and in
accordance with Section 2.04 below.
(b) Promptly, and in any event within ten (10) days, following receipt of
any notice under this Section 2.02, the Company immediately shall notify all
other Holders of the receipt of notice under this Section 2.02 and shall use its
best efforts to register under the Securities Act in accordance with Section
2.04 below, for public sale in accordance with the method of disposition
specified in such notice from the Holder, the Registrable Securities specified
in the Holder's notice and in any notices received from other Holders no later
than the later of the tenth (10th) business day after receipt of the notice sent
by the Company (such other Holders together with the Holder who submitted the
Initiating Request are hereinafter referred to as the "Requesting Holders"). If
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such method of disposition shall be an underwritten public offering, the Company
may designate the managing underwriter of such offering, subject to the approval
of Requesting Holders holding a majority of the Registrable Securities to be
registered. Except as specified in the following sentence, the Company shall be
obligated to register Registrable Securities pursuant to this Section 2.02 on
two (2) occasions only. No request for registration of Registrable Securities
may be given prior to the date six (6) months after the effective date of a
registration statement with respect to Registrable Securities pursuant to this
Section 2.02. A request pursuant to this Section 2.02 shall be counted only when
(i) all the Registrable Securities requested to be included in any such
registration have been so included, (ii) the corresponding registration
statement has become effective under the Securities Act, and (iii) the public
offering has been consummated and the Registrable Securities have been sold on
the terms and conditions specified therein. Notwithstanding anything to the
contrary contained herein, the Company may delay the filing or effectiveness of
a registration statement for up to
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forty-five (45) days after receipt of a request hereunder if (i) at the time of
such request the Company is engaged in a firm commitment underwritten public
offering of shares of its capital stock in which Holders may include Registrable
Securities or (ii) the Board of Directors of the Company determines in its
reasonable judgment and in good faith that the filing of such a registration
statement or the making of any required disclosure in connection therewith would
have a material adverse effect on the Company or substantially interfere with a
significant transaction in which the Company is then engaged.
(c) The Company shall be entitled to include in any registration statement
filed pursuant to this Section 2.02, for sale in accordance with the method of
disposition specified by the Requesting Holders, securities of the Company
entitled generally to vote in the election of directors (or any securities
convertible into or exchangeable for or exercisable for the purchase of
securities so entitled generally to vote in the election of directors).
(d) Subject to Section 2.02(e) below and otherwise notwithstanding anything
herein to the contrary, if the Company shall have received a demand request for
registration from any Person other than a Holder and the Holders shall not have
had an opportunity to have their Registrable Securities registered in full prior
to the Company's receipt of such demand request, then the Company shall promptly
notify the Holders in writing of its receipt of such written request and the
Holders shall have five (5) business days from the date of their receipt of such
notice to elect to exercise one of their demand registration rights in respect
of the Registrable Securities which exercise shall be deemed to have occurred
immediately prior to such other demand request, in which event, the shares of
Common Stock of any other Person (other than a Holder) who demanded or, prior to
the effective date of the registration statement being filed in respect of the
Holders' shares of Common Stock, demands registration of their shares of Common
Stock, may be included in such registration; provided, however, that the number
of shares of Common Stock of such Person(s) (other than a Holder) to be included
in such a registration may be reduced or eliminated if and to the extent the
managing underwriter shall render to the Company its opinion that such inclusion
would jeopardize the successful marketing of the Registrable Securities proposed
to be sold therein.
(e) The Investors hereby acknowledge that the rights of the Holders set
forth herein are subject to and shall not affect in any way, the registration
rights of (i) Atlantic Crossing set forth in the AC Registration Rights
Agreement in respect of 1.1 million shares of Common Stock issuable by the
Company to Atlantic Crossing upon exercise of the AC Warrants and (ii) CCL set
forth in the CCL Registration Rights Agreement, in each case as now in effect.
The Company hereby covenants that it shall not, without the prior written
consent of all of the Holders, increase the number of shares covered by the AC
Registration Rights Agreement or the CCL Registration Rights Agreement or grant
additional registration rights to Atlantic Crossing or CCL, or amend the AC
Registration Rights Agreement or the CCL Registration Rights Agreement in any
way that could, in the reasonable opinion of the Holders, adversely affect the
ability of the Holders to effect the registration of the Registrable Securities;
provided, however, that the Investors acknowledge and agree that the Company may
reduce the exercise price of the CCL Warrants without increasing the number of
shares issuable upon exercise thereof.
Section 2.03. Piggy-Back Registration. If the Company proposes to register
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any securities under the Securities Act for sale to the public (other than in an
IPO), whether for its
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own account or for the account of other security holders or both (except with
respect to registration statements on Forms S-4 or S-8 for purposes permissible
under such forms as of the date hereof, or any successor forms for comparable
purposes that may be adopted by the Commission), each such time the Company will
give written notice to all Holders of its intention to do so (but in any event
no less than fifteen (15) business days before the anticipated filing date).
Upon the written request of any such Holder, received by the Company no later
than the tenth (10th) business day after receipt by such Holder of the notice
sent by the Company, to register, on the same terms and conditions as the shares
of securities otherwise being sold pursuant to such registration, any of its
Registrable Securities (which request shall state the intended method of
disposition thereof), the Company will use its best efforts to cause the
Registrable Securities as to which registration shall have been so requested to
be included in the securities to be covered by the registration statement
proposed to be filed by the Company on the same terms and conditions as any
similar securities included therein, all to the extent requisite to permit the
sale or other disposition by each Holder (in accordance with its written
request) of such Registrable Securities so registered; provided, however, that
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the Company may at any time prior to the effectiveness of any such registration
statement, in its sole discretion and without the consent of any Holder, abandon
the proposed offering. The number of Registrable Securities to be included in
such a registration may be reduced or eliminated if and to the extent the
managing underwriter shall render to the Company its opinion that such inclusion
would jeopardize the successful marketing of the securities (including the
Registrable Securities) proposed to be sold therein; provided, however, that
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such number of shares of Registrable Securities shall not be reduced (i) if, in
the context of a Priority Offering, shares of Common Stock are to be included in
such underwriting for the account of any other Person (other than CCL, and then
only with respect to the CCL Shares) or (ii) unless, in the context of any
primary offering other than a Priority Offering, the shares to be included in
such underwriting for the account of any Person are also reduced on a pro rata
basis. Within ten (10) business days after receipt by each Holder proposing to
sell Registrable Securities pursuant to the registered offering of the opinion
of such managing underwriter, all such Holders may allocate among themselves the
number of shares of such Registrable Securities which such opinion states may be
distributed without adversely affecting the distribution of the securities
covered by the registration statement (or if such registered holders are unable
to agree among themselves with respect to such allocation, such allocation shall
be in proportion to the respective numbers of shares specified in their
respective written requests). Notwithstanding anything to the contrary contained
in this Section 2.03, in the event that there is a firm underwriting commitment
offer of securities of the Company pursuant to a registration statement covering
Registrable Securities and a Holder does not elect to sell its Registrable
Securities to the underwriters of the Company's securities in connection with
such offering, such Holder shall not offer for sale, sell, grant any option for
the sale of, or otherwise dispose of, directly or indirectly, any shares of
Common Stock, or any securities convertible into or exchangeable into or
exercisable for any shares of Common Stock during the period of distribution of
the Company's securities by such underwriters, which shall be specified in
writing by the underwriters and shall not exceed sixty (60) days following the
date of effectiveness under the Securities Act of the registration statement
relating thereto.
Section 2.04. Registration Procedures. If and whenever the Company is
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required pursuant to this Agreement to effect the registration of any of the
Registrable Securities under the Securities Act, the Company will, as
expeditiously as possible:
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(a) prepare and file as promptly as possible with the Commission a
registration statement in accordance with this Article II with respect to such
securities (which filing made pursuant to Section 2.02 shall be made within
thirty (30) days after the receipt by the Company of a notice requesting such
registration or at such later date as may reasonably be expected to result in
such registration statement being declared effective by the Commission on or
prior to the date which is two hundred seventy (270) days from the closing date
of the IPO) and use its best efforts to cause such registration statement to
become and remain effective for the period of the distribution contemplated
thereby (as determined below);
(b) prepare and file with the Commission such amendments and supplements to
such registration statement and the prospectus used in connection therewith as
may be necessary to keep such registration statement effective for the period
specified below and as may be necessary to comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
registration statement in accordance with the sellers' intended method of
disposition set forth in such registration statement for such period;
(c) furnish to each Selling Holder and to each underwriter such number of
copies of the registration statement and the prospectus included therein
(including each preliminary prospectus and each document incorporated by
reference therein prior to the filing with the Commission) as such Persons may
reasonably request in order to review such documentation and to facilitate the
public sale or other disposition of the Registrable Securities covered by such
registration statement;
(d) use its best efforts to register or qualify the Registrable Securities
covered by such registration statement under the securities or blue sky laws of
such jurisdictions as the Selling Holders or, in the case of an underwritten
public offering, the managing underwriter, shall reasonably request;
(e) immediately notify each Selling Holder and each underwriter, at any
time when a prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus contained in such registration statement, as then in effect, includes
an untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing;
(f) furnish at the request of a Selling Holder, (i) on the date that
Registrable Securities are delivered to the underwriters for sale pursuant to
such registration statement (or on the effective date in the case of an offering
that is not underwritten), an opinion of counsel for the Company dated as of
such date and addressed to the underwriters, if any, and to the Selling Holders,
stating that such registration statement has become effective under the
Securities Act and that (A) to the best knowledge of such counsel, no stop order
suspending the effectiveness thereof has been issued and no proceedings for that
purpose have been instituted or are pending or contemplated under the Securities
Act, (B) the registration statement, the related prospectus, and each amendment
or supplement thereof, comply as to form in all material respects with the
requirements of the Securities Act and the applicable rules and regulations
thereunder of the Commission (except that such counsel need express no opinion
as to the financial statements or any engineering report contained or
incorporated therein) and (C) to such other effects as may
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reasonably be requested by counsel for the underwriters or by any such Selling
Holder or its counsel; and (ii) on the effective date of the registration
statement and on the date that Registrable Securities are delivered to the
underwriters for sale pursuant to such registration statement, a letter dated
such dates from the independent accountants retained by the Company, addressed
to the underwriters, if any, and to the Selling Holders, stating that they are
independent public accounts within the meaning of the Securities Act and that,
in the opinion of such accountings, the financial statements of the Company and
the schedules thereto that are included or incorporated by reference in the
registration statement or the prospectus, or any amendment or supplement
thereof, comply as to form in all material respects with the applicable
requirements of the Securities Act and the published rules and regulations
promulgated thereunder, and such letter shall additionally address such other
financial matters (including information as to the period ending no more than
five business days prior to the date of such letter) included in the
registration statement in respect to which such letter is being given as the
underwriters or any Selling Holder may reasonably request;
(g) use its best efforts to keep effective and maintain a registration,
qualification, approval or listing on a national securities exchange or the
quotation of prices thereof on NASDAQ (NMS) or NASDAQ (SMALLCAP) obtained to
cover the Registrable Securities as may be necessary for the Selling Holders to
dispose thereof, and shall from time to time amend or supplement any prospectus
used in connection therewith to the extent necessary in order to comply with
applicable law;
(h) use its best efforts to cause the Registrable Securities to be
registered with or approved by such other governmental agencies or authorities
as may be necessary by virtue of the business and operations of the Company to
enable the Selling Holders to consummate the disposition of such Registrable
Securities; and
(i) enter into customary agreements (including, if requested, an
underwriting agreement in the customary form) and take such other actions as are
reasonably requested by the Selling Holders or the underwriters, if any, in
order to expedite or facilitate the disposition of such Registrable Securities.
The period of distribution of Registrable Securities in a firm commitment
underwritten public offering shall be deemed to extend until each underwriter
has completed the distribution of all securities purchased by it, and the period
of distribution of Registrable Securities in any other registration shall be
deemed to extend until the earlier of the sale of all Registrable Securities
covered thereby or the fulfillment of the Company's obligations under subsection
(g) of this Section 2.04.
In connection with each registration hereunder, each Selling Holder will
furnish promptly to the Company in writing such information with respect to
itself and the proposed distribution by it as shall be reasonably necessary in
order to ensure compliance with federal and applicable state securities laws.
In connection with each registration hereunder with respect to an
underwritten public offering, each Selling Holder agrees to enter into a written
agreement with the managing underwriter or underwriters selected in the manner
herein provided in such form and containing such provisions as are customary in
the securities business for such an arrangement between underwriters and
companies of the Company's size and investment stature, provided that such
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agreement shall not contain any such provision applicable to the Selling Holders
that is inconsistent with the provisions hereof; and further provided, that the
time and place of the consummation of the transactions under said agreement
shall be as mutually agreed upon among the Company, the Selling Holders and such
managing underwriter.
Section 2.05. Expenses. (a) All expenses incident to the Company's
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performance or compliance with this Agreement, including without limitation, all
registration and filing fees, blue sky fees and expenses, printing expenses,
listing fees, fees and disbursements of counsel and independent public
accountants for the Company, fees of the National Association of Securities
Dealers, Inc., transfer taxes, fees of transfer agents and registrars, and costs
of insurance and reasonable out-of-pocket expenses of the Selling Holders, but
excluding any Selling Expenses (as defined below), are herein called
"Registration Expenses." All underwriting, discounts and selling commissions
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attributable to the sale of the Registrable Securities are herein called
"Selling Expenses."
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(b) The Company will pay all Registration Expenses with each registration
statement filed pursuant to this Agreement, whether or not the registration
becomes effective, and the Selling Holders shall pay Selling Expenses in
connection with any Registrable Securities registered pursuant to this
Agreement.
Section 2.06. Indemnification. (a) In the event of a registration of any
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Registrable Securities under the Securities Act pursuant to this Agreement, the
Company will indemnify and hold harmless each Selling Holder thereunder and each
underwriter of Registrable Securities thereunder and each Person, if any, who
controls such Selling Holder or underwriter within the meaning of the Securities
Act and the Exchange Act, against any losses, claims, damages or liabilities,
including reasonable attorneys' fees ("Losses"), joint or several, to which such
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Selling Holder or underwriter or controlling Person may become subject under the
Securities Act, the Exchange Act or otherwise, insofar as such Losses (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in any registration
statement under which such Registrable Securities were registered under the
Securities Act pursuant to this Agreement, any preliminary prospectus or final
prospectus contained therein, or any amendment or supplement thereof, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each such Selling Holder, each such
underwriter and each such controlling Person for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such Loss or actions; provided, however, that the Company will not be liable in
any such case if and to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission so made in conformity with information
furnished by such Selling Holder, such underwriter or such controlling Person in
writing specifically for use in such registration statement or prospectus.
(b) Each Selling Holder agrees to indemnify and hold harmless the Company,
its directors, officers, employees and agents and each Person, if any, who
controls the Company within the meaning of the Securities Act or of the Exchange
Act to the same extent as the foregoing indemnity from the Company to such
Selling Holder, but only with respect to information with respect to such
Selling Holder furnished in writing by or on behalf of such
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Selling Holder expressly for inclusion in any registration statement or
prospectus relating to the Registrable Securities, or any amendment or
supplement thereto.
(c) Promptly after receipt by an indemnified party hereunder of notice of
the commencement of any action, such indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying party hereunder, notify
the indemnifying party in writing thereof, but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party other than under this Section 2.06. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate in and, to the extent it shall wish, to assume and
undertake the defense thereof with counsel reasonably satisfactory to such
indemnified party and, after notice from the indemnifying party to such
indemnified party of its election so to assume and undertake the defense
thereof, the indemnifying party shall not be liable to such indemnified party
under this Section 2.06 for any legal expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation and of liaison with counsel so selected; provided,
however, that, (i) if the indemnifying party has failed to assume the defense
and employ counsel or (ii) if the defendants in any such action include both the
indemnified party and the indemnifying party and counsel to the indemnified
party shall have concluded that there may be reasonable defenses available to
the indemnified party that are different from or additional to those available
to the indemnifying party or if the interests of the indemnified party
reasonably may be deemed to conflict with the interests of the indemnifying
party, then the indemnified party shall have the right to select a separate
counsel and to assume such legal defense and otherwise to participate in the
defense of such action, with the expenses and fees of such separate counsel and
other expenses related to such participation to be reimbursed by the
indemnifying party as incurred.
(d) If the indemnification provided for in this Section 2.06 is available
to the Company or the Selling Holders or is insufficient to hold them harmless
in respect of any losses, claims, damages, liabilities or expenses referred to
herein, then each such indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities and
expenses as between the Company on the one hand and each Selling Holder on the
other, in such proportion as is appropriate to reflect the relative fault of the
Company on the one hand and of each Selling Holder on the other in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities, as well as any other relevant equitable considerations. The
relative fault of the Company on the one hand and each Selling Holder on the
other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statements of a material fact or the omission or
alleged omission to state a material fact has been made by, or relates to,
information supplied by such party, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. No Person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any Person who is not guilty of such fraudulent misrepresentation.
Section 2.07. Senior Registration Rights. The Company shall not grant or
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permit to exist any registration rights to any other person which registration
rights are senior to the
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registration rights of any Holder of Registrable Securities ("Senior
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Registration Rights"), unless either (i) the Company shall first obtain the
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written consent of the Holders of a majority of the Registrable Securities or
(ii) each Holder of Registrable Securities is also granted Senior Registration
Rights. The Investors hereby consent to the existence of those registration
rights previously granted to CCL and Atlantic Crossing as expressly set forth in
the CCL Registration Rights Agreement and the AC Registration Rights Agreement,
respectively.
ARTICLE III
Section 3.01. Communications. All notices and other communications provided
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for or permitted hereunder shall be made in writing by registered or certified
first-class mail, return receipt requested, telex, telegram, telecopy, courier
service or personal delivery:
(i) if to a Holder of Registrable Securities, at the most current address
given by such Holder of the Company in accordance with the provisions of
this Section 3.01, which address initially is, with respect to each of the
Investors, the address for such Investor set forth in the Debt Conversion
Agreement, and
(ii) if to the Company, initially at its address set forth in the Debt
Conversion Agreement and thereafter at such other address, notice of which
is given in accordance with the provisions of this Section 3.01.
All such notices and communications shall be deemed to have been duly given
at the time delivered by hand, if personally delivered; four days after mailed
by certified mail, return receipt requested, if mailed; when answered back, if
telexed; when receipt acknowledged, if telecopied; and on the next business day
if timely delivered to an air courier guaranteeing overnight delivery.
Section 3.02. Counterparts. This Agreement may be executed in any number of
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counterparts and by different parties hereto in separate counterparts, each of
which counterparts, when so executed and delivered, shall be deemed to be an
original and all of which counterparts, taken together, shall constitute but one
and the same Agreement.
Section 3.03. Headings. The headings in this Agreement are for convenience
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of reference only and shall not limit or otherwise affect the meaning hereof.
Section 3.04. Governing Law. The laws of the State of New York shall govern
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this Agreement without regard to principles of conflict of laws.
Section 3.05. Severability of Provisions. Any provision of this Agreement
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which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting or impairing the validity or enforceability of such provision in any
other jurisdiction.
Section 3.06. Attorneys' Fees. In any action or proceeding brought to
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enforce any provision of this Agreement, the successful party shall be entitled
to recover reasonable attorneys' fees in addition to its costs and expenses and
any other available remedy.
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Section 3.07. Amendment. This Agreement may be amended only by means of a
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written amendment signed by the Company and by the Holders of a majority of the
Registrable Securities.
Section 3.08. Registrable Securities Held by the Company or Its Affiliates.
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In determining whether the Holders of the required amount of Registrable
Securities have concurred in any direction, amendment, supplement, waiver or
consent, Registrable Securities owned by the Company or its Affiliates shall be
disregarded.
Section 3.09. Assignment. The rights of each of the Investors under this
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Agreement shall be assignable only to Affiliates. Any prohibited assignment or
attempted assignment shall be void.
Section 3.10. Arbitration.
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(a) Binding Arbitration. On the request of either the Company or an
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Investor (whether made before or after the institution of any legal proceeding),
any action, dispute, claim or controversy of any kind now existing or hereafter
arising between any of the parties hereto in any way arising out of, pertaining
to or in connection with this Agreement (a "Dispute") shall be resolved by
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binding arbitration in accordance with the terms hereof. Either the Company or
the an affected Investor may, by summary proceedings, bring an action in court
to compel arbitration of any Dispute.
(b) Governing Rules. Any arbitration shall be administered by the American
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Arbitration Association (the "AAA") in accordance with the terms of this
---
Section, the Commercial Arbitration Rules of the AAA, and, to the maximum extent
applicable, the Federal Arbitration Act. Judgment on any award rendered by an
arbitrator may be entered in any court having jurisdiction.
(c) Arbitrators. Arbitration hereunder shall be before a three-person
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panel of neutral arbitrators, consisting of one person from each of the
following categories: (i) an attorney who has practiced in the area of
commercial law for at least ten (10) years or a retired judge at the United
States District Court or an appellate court level; (ii) a person with at least
ten (10) years experience in capital financing or investment banking; and (iii)
a person with at least ten (10) years experience in the telecommunications
industry. The AAA shall submit a list of persons meeting the criteria outlined
above for each category of arbitrator, and the parties shall select one person
from each category in the manner established by the AAA. If the parties cannot
agree on an arbitrator within thirty (30) days after the request for an
arbitration, then any party may request the AAA to select an arbitrator. The
arbitrators may engage engineers, accountants or other consultants that the
arbitrator deems necessary to render a conclusion in the arbitration proceeding.
(d) Conduct of Arbitration. To the maximum extent practicable, an
----------------------
arbitration proceeding hereunder shall be concluded within one hundred eighty
(180) days of the filing of the Dispute with the AAA. Arbitration proceedings
shall be conducted in New York, New York. Arbitrators shall be empowered to
impose sanctions and to take such other
11
actions as the arbitrators deem necessary to the same extent a judge could
impose sanctions or take such other actions pursuant to the Federal Rules of
Civil Procedure and applicable law. At the conclusion of any arbitration
proceeding, the arbitrator shall make specific written findings of fact and
conclusions of law. The arbitrators shall have the power to award recovery of
all costs and fees to the prevailing party. The Company and each of the
Investors each agrees to keep all Disputes and arbitration proceedings strictly
confidential except for disclosure of information required by applicable law.
(e) Costs of Arbitration. All fees of the arbitrators and any engineer,
--------------------
accountant or other consultant engaged by the arbitrators, shall be paid by the
parties thereto equally unless otherwise awarded by the arbitrators.
Section 3.11. Facsimiles. This Agreement may be executed by a facsimile
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signature, which shall have the same force and effect as a manually executed
signature.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
ATTEST: TELEMONDE, INC.
/s/ Gottfried von Bismarck By: /s/ Xxxx Xxxxxx
--------------------------- ---------------------------
Secretary Title: President
MCI WORLDCOM GLOBAL NETWORKS
U.S., INC.
By: /s/ Xxxxx Xxxxx
---------------------------
Title:
MCI WORLDCOM GLOBAL NETWORKS
LIMITED
By: /s/ Xxxxx Xxxxx
---------------------------
Title:
12
