Exhibit 10.12
SECURITIES PURCHASE AGREEMENT
by and among
CARRIER ONE, LLC,
CARRIER1 INTERNATIONAL S.A.
AND
EACH OF PURCHASERS
AS DEFINED HEREIN
Dated as of March 1, 1999
TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS
Section 1.1 Definitions........................................................................1
Section 1.2. Hereof, Herein, etc................................................................5
Section 1.3. Computation of Time Periods........................................................5
ARTICLE II
SALE AND PURCHASE OF PURCHASED SECURITIES
Section 2.1. Sale and Purchase of the Purchased Securities......................................5
Section 2.2. Closing............................................................................6
Section 2.3. Purchase of Additional Purchased Securities; Subsequent Closings...................6
Section 2.4. Use of Proceeds....................................................................8
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Section 3.1 Organization and Existence.........................................................8
Section 3.2. Authorization; No Conflicts........................................................8
Section 3.3. Enforceability.....................................................................9
Section 3.4. Necessary Licenses.................................................................9
Section 3.5. Compliance with Law................................................................9
Section 3.6. Litigation........................................................................10
ARTICLE IV
PURCHASERS' REPRESENTATIONS
Section 4.1. Organization and Good Standing....................................................10
Section 4.2. Authorization.....................................................................10
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Section 4.3. Enforceability....................................................................11
ARTICLE V
CONDITIONS TO PURCHASERS' OBLIGATION TO PURCHASE
AND THE COMPANY'S OBLIGATION TO SELL
Section 5.1. Purchasers' Closing Conditions....................................................11
Section 5.2. Company's Closing Conditions......................................................11
ARTICLE VI
EXPENSES; INDEMNITY
Section 6.1. Expenses..........................................................................12
Section 6.2. Indemnification...................................................................13
ARTICLE VII
NOTICES
ARTICLE VIII
AMENDMENTS, WAIVERS AND ASSIGNMENT
ARTICLE IX
GOVERNING LAW; JURISDICTION
ii
ARTICLE X
ENTIRE AGREEMENT; COUNTERPARTS; SECTION HEADINGS
ARTICLE XI
WAIVER OF JURY TRIAL
ARTICLE XII
ADDITIONAL PURCHASERS
iii
LIST OF EXHIBITS AND SCHEDULES
Exhibit A Articles of Association
Exhibit B Form of Registration Rights Agreement
Exhibit C Form of Securityholder's Agreement
Exhibit D Form of Luxembourg law opinion
Schedule 2.1. List of Purchasers
iv
SECURITIES PURCHASE AGREEMENT
CARRIER1 INTERNATIONAL S.A.
c/o Carrier1 International GmbH
Xxxxxxxxxxxxxx 00
0000 Xxxxxx, Xxxxxxxxxxx
As of March 1, 1999
To the Persons Listed in
Schedule 2.1 of this Agreement
c/o Carrier1 International GmbH
Xxxxxxxxxxxxxx 00
0000 Xxxxxx, Xxxxxxxxxxx
Ladies and Gentlemen:
The undersigned, Carrier1 International S.A., a Luxembourg
societe anonyme (the "Company"), hereby agrees with you as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS. Capitalized terms used herein and not
otherwise defined herein shall have the meanings set forth in this Article I:
ADDITIONAL PURCHASER. The term "Additional Purchaser" shall have
the meaning provided in Article XII.
AFFILIATE. The term "Affiliate" shall mean any Person directly
or indirectly controlling, controlled by or under direct or indirect common
control with the Company (or other specified Person) and shall include (a) any
Person who is a manager, officer, director or beneficial owner of at least 8% of
the then Equity Securities (on a fully diluted basis) of the Company (or other
specified Person) and Family Members of any such Person, (b) any Person of which
the Company (or other specified Person) or an Affiliate (as defined in clause
(a) above) of the Company (or other specified Person) shall, directly
or indirectly, either beneficially own at least 10% of the then outstanding
Equity Securities or constitute at least a l0% equity participant, and (c) in
the case of a specified Person who is an individual, Family Members of such
Person.
ARTICLES. The term "Articles" shall mean that certain Articles
of Association of the Company in the form of Exhibit A attached hereto, as
amended, modified, supplemented or restated from time to time.
BUSINESS DAY. The term "Business Day" shall mean any day other
than Saturday, Sunday or other day on which commercial banks in the state of
Rhode Island are required or permitted to close by law.
CARRIER ONE. The term "Carrier One" means Carrier One LLC, a
Delaware limited liability company.
CHARTER. The term "Charter" means the certificate or articles of
incorporation, by-laws, statute, constitution, joint venture, certificate of
limited partnership, partnership agreement, articles of organization, limited
liability company operating agreement or other organizational document of any
Person other than an individual, including the Articles, each as from time to
time amended or modified.
COMPANY. The term "Company" shall mean Carrier1 International
S.A., a Luxembourg societe anonyme, or any corporation into which Carrier1
International S.A. is converted or merged.
CONTRACT. The term "Contract" shall mean all material contracts,
leases, plans and commitments and other agreements entered into by the Company
or any Subsidiary which are in writing or have been orally agreed to by the
Company or any of its Subsidiaries.
DOLLARS. The term "Dollars" and "$" shall mean United States
dollars.
EMPLOYMENT AGREEMENTS. The term "Employment Agreements" shall
mean those certain Employment Agreements, between Carrier1 International GmbH,
and each of the Management, as the same may be amended, modified or supplemented
from time to time.
ENVIRONMENT. The term "Environment" shall mean soil, surface
waters, groundwater, land, stream sediments, surface or subsurface strata,
ambient air and any environmental medium, whether indoors or outdoors.
ENVIRONMENTAL LAWS. The term "Environmental Laws" shall mean
all federal, foreign, state, local or municipal environmental, health or
safety-related laws, regulations, by-laws, rules, ordinances, judicial or
administrative decrees or decisions, orders or requirements applicable to the
Company or any of its Subsidiaries relating to the physical or environmental
condition or use of their respective properties, their respective businesses
or pollution or protection of human health or the Environment, including,
without limitation, the Comprehensive Environmental Response Compensation and
Liability Act, 42 U.S.C., Section 9601, et seq., as amended ("CERCLA"), the
Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et. seq., as
amended, the Clear Air Act, 42 U.S.C. Section 7401 et seq., as amended, the
Clean Water Act, 33 U.S.C. Section 1251, et seq., the Toxic Substance Control
Act, 15 U.S.C. Section 2601 et seq., the
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Occupational Safety and Health Act, laws relating to Release or threatened
Releases manufacture, generation, processing, distribution, use, treatment,
storage, abatement, existence, holding, Release, transport or handling of
Hazardous Substances, and all laws and regulations with regard to record
keeping, notification, disclosure and reporting requirements respecting
Hazardous Substances.
EQUITY SECURITIES. The term "Equity Securities" means all authorized
Shares or capital stock of the Company, including (i) all classes of Shares or
capital stock, voting and non-voting (including, without limitation, the
Purchased Securities), (ii) any warrants, options or other rights to subscribe
for or to acquire, directly or indirectly, whether pursuant to any division or
split of any class of Share or capital stock of the Company or in connection
with a combination, exchange, reorganization, recapitalization,
reclassification, merger, consolidation or similar business combination
transaction involving the Company or otherwise, (iii) any other equity interests
in the Company or any bonds, notes, debentures, or other securities convertible
into or exchangeable for, directly or indirectly, any Shares, capital stock or
equity interests of the Company and (iv) any interests in any of the foregoing
in each case outstanding at any time.
GOVERNMENTAL ENTITIES. The term "Governmental Entities" shall have
the meaning given such term in the Securityholders' Agreement.
HAZARDOUS SUBSTANCES. The term "Hazardous Substances" means any
pollutant, contaminant, toxic substance, hazardous waste, hazardous material,
or hazardous substance, or any oil, petroleum or petroleum product, each as
defined or listed in, or classified pursuant to, any Environmental Laws.
INITIAL CLOSING DATE. The term "Initial Closing Date" shall mean
January 15, 1999 or such other date as the Company and the Purchasers may agree
upon.
LICENSES. The term "Licenses" shall mean all licenses, permits,
consents, approvals, concessions and authorizations of all Governmental
Entities, whether foreign, federal, state or local, including, without
limitation, any state public utilities commission and their equivalents in
foreign countries.
LIEN. The term "Lien" shall mean (a) any encumbrance, mortgage,
pledge, lien, charge or other security interest of any kind upon any property or
assets of any character, or upon the income or profits therefrom; (b) any
acquisition of or agreement to have an option to acquire any property or assets
upon conditional sale or other title retention agreement, device or arrangement
(including a capitalized lease); or (c) any sale, assignment, pledge or other
transfer for security of any accounts, general intangibles or chattel paper,
with or without recourse.
MAJORITY PURCHASERS. The term "Majority Purchasers" shall mean, at
any time, the holders of at least a majority of the outstanding Purchased
Securities.
MANAGEMENT. The term "Management" shall mean Stig Johansson, Xxxxxxx
Xxxxx, Xxxxxx X. Xxxxx, Xxxx van Ophem, Xxxx Xxxxxx, Xxxxxx Xxxxxxx, Xxxxx
Xxxxxxx and Xxxxxx Xxxxx.
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MATERIAL ADVERSE EFFECT. The term "Material Adverse Effect" shall
mean, with respect to any Person, any effect that is, or series of related
effects that are, in the aggregate, materially adverse to the business, assets,
properties, condition (financial or otherwise) or prospects of such Person.
OPTION AGREEMENTS. The term "Option Agreements" shall mean the Option
Agreements of even date herewith between Carrier One, the Company or its
Subsidiaries and certain of their respective employees.
PERSON. The term "Person" shall mean an individual, partnership,
limited liability company, corporation, association, trust, joint venture,
unincorporated organization and any Governmental Entity.
PURCHASED SECURITIES. The term "Purchased Securities" shall mean the
Shares held by Purchasers on the date hereof (whether or not acquired pursuant
to this Agreement) and Shares being purchased by the Purchasers pursuant to
Article II of this Agreement and any Shares, capital stock or other securities
of the Company issued or issuable upon an exchange, conversion, reorganization,
reclassification, recapitalization, merger, consolidation or other similar
business transaction involving the Company, its Subsidiaries or otherwise.
PURCHASER. The term "Purchaser" shall mean the several purchasers
named in Schedule 2.1 (individually, a "Purchaser" and collectively, the
"Purchasers") and their respective successors and assigns and shall include
Additional Purchasers pursuant to Article XII and shall include Carrier One.
RELATED AGREEMENTS. The term "Related Agreements" shall mean the
Articles, the Securityholders' Agreement, the Registration Rights Agreement and
the Option Agreements.
RELEASE. The term "Release" shall mean a "Release" as defined in any
Environmental Laws, including, but not limited to, any releasing, spilling,
leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping,
leaching, dispersing or dumping into the Environment in violation of any
Environmental Laws.
REGISTRATION RIGHTS AGREEMENT. The term "Registration Rights
Agreement" shall mean that certain Registration Rights Agreement, dated the date
hereof, by and among the Company and certain of its shareholders in the form of
Exhibit B attached hereto, as the same may be amended, modified or supplemented
from time to time.
SECURITIES ACT. The term "Securities Act" shall mean all applicable
securities laws, rules, regulations, notices and policies in force in the United
States, as amended, modified or supplemented from time to time.
SECURITYHOLDERS' AGREEMENT. The term "Securityholders' Agreement"
shall mean the Securityholders' Agreement, dated the date hereof, among the
Company and certain of its shareholders, in the form of Exhibit C attached
hereto, as the same may be amended, modified or supplemented from time to time.
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SHARES. The term "Shares" shall mean the shares of the Company.
SUBSIDIARY. The term "Subsidiary" shall mean any Person of which
the Company or other specified Person now or hereafter shall at the time own,
directly or indirectly through a Subsidiary, at least a majority of the
outstanding Equity Securities (or other shares of beneficial interest)
entitled to vote generally.
"TAX" OR "TAXES". The term "Tax" or "Taxes" shall mean all taxes,
charges, fees, levies, imposts and other assessments, including all income,
sales, use, goods and services, value added, capital, capital gains, alternative
net worth, transfer, profits, withholding, payroll, employer health, excise,
real property and personal property taxes, and any other taxes, customs duties,
fees, assessments or similar charges in the nature of a tax, including, without
limitation, pension plan contributions and workers compensation premiums,
together with any interest, fines and penalties imposed by any Governmental
Entity, and whether disputed or not.
SECTION 1.2. HEREOF, HEREIN, ETC. The words "hereof", "herein" and
"hereunder" and words of similar import when used in this Agreement shall refer
to this Agreement as a whole and not to any particular provision of this
Agreement. Unless otherwise specified herein, the term "or" has the inclusive
meaning represented by the term "and/or" and the term "including" is not
limiting. All references as to "Sections", "Subsections", "Articles",
"Schedules" and "Exhibits" shall be to Section, Subsections, Articles, Schedules
and Exhibits, respectively, of this Agreement unless otherwise specifically
provided.
SECTION 1.3. COMPUTATION OF TIME PERIODS. In the computation of
periods of time from a specified date to a later specified date, unless
otherwise specified herein the words "commencing on" mean "commencing on and
including", the word "from" means "from and including" and the words "to" and
"until" each means "to and including".
ARTICLE II
SALE AND PURCHASE OF PURCHASED SECURITIES
SECTION 2.1. SALE AND PURCHASE OF THE PURCHASED SECURITIES.
Subject to all of the terms and conditions hereof and in reliance on the
representations and warranties set forth or referred to herein, the Company
agrees to issue and sell to each Purchaser and each Purchaser agrees to
purchase, on the Initial Closing Date, the number of Purchased Securities set
forth on Schedule 2.1, in the case of Carrier One, or the number of Purchased
Securities set forth in the separate notice of allocation and acceptance
signed by the Company and such Purchaser on or prior to the date hereof, at a
purchase price per Share of US$ 2.00 (the "Per Share Price") (the "Initial
Closing"). The sale of the Purchased Securities to each Purchaser at the
Initial Closing shall constitute a separate sale hereunder.
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SECTION 2.2. CLOSING. The Initial Closing of the purchase and sale
of the Purchased Securities contemplated by Section 2.1 will take place at the
offices of Etude Notariale Xxxxxx Xxxxxx, 000 Xxxxx xx Xxxxxxxxxx - X.X. 00 -
Xxxxxxxxxx, 0000 Xxxxxxxxxx at 10:00 a.m. on January 15, 1999, or at such other
time, date and place as the parties hereto may agree upon. Subject to the
satisfaction of the conditions to closing set forth in Article V, (i) as payment
in full for the Purchased Securities being purchased by the Purchasers under
this Agreement on the Initial Closing Date, on the Initial Closing Date each
Purchaser shall deliver or cause to be delivered to the Company, in immediately
available funds, an amount equal to (a) the aggregate number of Purchased
Securities set forth on SCHEDULE 2.1 in the case of Carrier One, or the number
of Purchased Securities set forth in the separate notice of allocation and
acceptance signed by the Company and such Purchaser on or prior to the date
hereof, multiplied by (b) US$ 2.00 (the "Per Share Price"), and (ii) upon
confirmation of receipt of such funds in the capital and/or surplus accounts of
the Company, Carrier One shall cause the capital of the Company to be increased
accordingly and the Company shall issue the Purchased Securities to such
Purchaser. As soon as practicable following the Closing, the Company shall
register the Purchaser as the owner of the Purchased Securities in the share
register of the Company and shall cause certificates representing the Purchased
Securities to be delivered to such Purchaser or its designated custodian.
SECTION 2.3. PURCHASE OF ADDITIONAL PURCHASED SECURITIES; SUBSEQUENT
CLOSINGS. (a) At the Subsequent Closings (as defined below), subject to the
terms and conditions set forth herein, the Company shall sell to Carrier One,
and Carrier One agrees to purchase from the Company, an aggregate number of
Shares at the Per Share Price which, when aggregated with all other Shares
previously acquired by Carrier One (whether or not still held by Carrier One),
does not exceed 30.4 million Shares at the Per Share Purchase Price. As of the
date hereof, Carrier One has already subscribed for 18,865,206 Shares, of which
18,845,206 have been paid in full, and 19,999 have been one-quarter paid up.
(b) Carrier One may, upon at least thirty (30) days prior written
notice to the Company (the "Call Notice"), designate a date (which shall be a
Business Day) for the closing (a "Subsequent Closing") of the purchase by
Carrier One of Additional Purchased Securities (each a "Subsequent Closing
Date"), which Call Notice shall specify the aggregate number of Purchased
Securities to be purchased by Carrier One on such Subsequent Closing Date.
The determination of whether to make a Call Notice shall be in the sole and
absolute discretion of Carrier One. No Call Notices shall be given after
March 31, 2002 without the written approval of the Majority Purchasers.
Notwithstanding the foregoing, Carrier One shall be obligated to cause one or
more Call Notices to be made to assure that the Company and its Subsidiaries
have sufficient funds to pay the amounts owed to Management under the
Employment Agreements from the date hereto to March 1, 1999 (the "Management
Compensation Calls"). Each Subsequent Closing will take place at the offices
of Etude Notariale Xxxxxx Xxxxxx, 000 Xxxxx xx Xxxxxxxxxx - X.X.00 -
Xxxxxxxxxx, 0000, Xxxxxxxxxx at 10:00 a.m. on the date specified in the Call
Notice or at such other time, date and place as the Company and Carrier One
may agree upon. Subject to the satisfaction of the conditions to closing set
forth in this Section 2.3, at each Subsequent Closing (i) Carrier One shall
deliver or cause to be delivered to the Company, in immediately
6
available funds, an amount equal to (a) the aggregate number of Purchased
Securities set forth in the Call Notice, multiplied by (b) the Per Share
Price, and (ii) upon confirmation of receipt of such funds in the capital
and/or surplus accounts of the Company, the capital of the Company shall be
increased accordingly and the Company shall issue the Purchased Securities to
Carrier One. As soon as practicable following each Subsequent Closing, the
Company shall register Carrier One as the owner of the Purchased Securities
in the share register of the Company and shall cause certificates
representing the Purchased Securities to be delivered to Carrier One or its
designated custodian.
(c) The obligation of Carrier One to purchase and pay for the
Additional Purchased Securities at each Subsequent Closing is subject to (i)
each of the Company's representations and warranties set forth in Article III
being true and correct in all material aspects as of such Subsequent Closing
Date, (ii) there shall have occurred no material adverse change in the assets,
business, condition (financial or otherwise) or prospects of the Company or its
Subsidiaries taken as a whole as determined by Carrier One in its sole and
absolute discretion, (iii) there shall have been no material breach or violation
by any party (other than Carrier One) under any Related Agreement, provided the
satisfaction of the conditions set forth in clauses (i) - (iii) shall not be
applicable to Management Compensation Calls. Any one or more of such conditions
may be waived with the prior written consent of Carrier One, in its sole and
absolute discretion, provided that a waiver of any of the foregoing conditions
with respect to a Subsequent Closing shall not operate as a waiver of such
condition with respect to any other Subsequent Closing.
(d) The obligations of the Company to sell and issue the
Additional Purchased Securities at each Subsequent Closing is subject to each
of Carrier One's representations and warranties set forth in Article IV being
true and correct in all material respect to as of such Subsequent Closing
Date. Such condition may be waived with the prior written consent of the
Company, in its sole and absolute discretion, provided that a waiver of the
foregoing condition with respect to a Subsequent Closing shall not operate as
a waiver of such condition with respect to any other Subsequent Closing.
(e) Each Purchaser hereby consents to the purchase of Purchased
Securities by Carrier One pursuant to this Section 2.3, and waives any right of
preemption or similar rights that it may have otherwise had in respect of such
Purchased Securities. Each Purchaser acknowledges and agrees that sales and
purchases of Shares pursuant to Section 2.3 shall be made at the Per Share Price
regardless of the financial condition or valuation of the Company at the time
such purchase or sale is consummated and hereby agrees to waive any right to
object to such sale or purchase or to require any appraisal or valuation in
connection therewith.
(f) Notwithstanding anything else contained in this Section 2.3,
so long as that certain Unlimited Guaranty (as amended, modified,
supplemented, extended, renewed, replaced or restated from time to time, the
"Guaranty") issued by Providence Equity Partners L.P. ("PEP") in favor of
Fleet National Bank is in effect and has not been terminated or PEP is
otherwise obligated thereunder, the maximum number of Purchased Securities to
be purchased by Carrier One at Subsequent Closings after the
7
date hereof shall be reduced at the request of Carrier One by an amount equal
to that number of Additional Purchased Securities as equals the quotient of
(i) the maximum amount of PEP's obligations and liabilities under the
Guaranty at any time divided by (ii) the Per Share Purchase Price. In
addition, to the extent that PEP has paid any amount under the Guaranty, and
for so long as PEP shall not have been reimbursed for such payment in full,
Carrier One shall have the right, in its sole discretion, to require the
Company to issue to PEP, Carrier One or its designee, in exchange for the
release or contribution of the Company's or its affiliates' reimbursement
obligations with respect to such payment, that number of Additional Purchased
Securities as equals the quotient of (x) any amounts paid by PEP in respect
of the Guaranty and not theretofore reimbursed divided by (y) the Per Share
Purchase Price.
SECTION 2.4. USE OF PROCEEDS. Proceeds from the sale of the
Purchased Securities hereunder shall be used for working capital and general
corporate purposes as determined from time to time by the Company's Board of
Directors.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
In order to induce the Purchasers to enter into this Agreement and to
purchase the Purchased Securities, the Company hereby represents and warrants as
follows:
SECTION 3.1 ORGANIZATION AND EXISTENCE.
(a) The Company is duly organized, validly existing and in good
standing in its jurisdiction of organization and is duly qualified as a societe
anonyme and authorized to do business in all other jurisdictions in which the
nature of its business or property makes such qualification necessary except
where the failure to so qualify would not have a Material Adverse Effect. The
Company has the power to own its properties and to carry on its business as now
conducted and as proposed to be conducted.
(b) Each of the Company's Subsidiaries is duly organized, validly
existing and in good standing in its jurisdiction of incorporation and is duly
qualified as a foreign entity and authorized to do business in all other
jurisdictions in which the nature of its business or property makes such
qualification necessary and where the failure to so qualify would not have a
Material Adverse Effect. Each of the Subsidiaries has the power to own its
properties and to carry on its business as now conducted and as proposed to be
conducted.
SECTION 3.2. AUTHORIZATION; NO CONFLICTS. The execution, delivery
and performance by the Company of this Agreement and of each Related Agreement,
and the issuance and sale by the Company of the Purchased Securities hereunder,
(a) are within its power and authority, and (b) have been duly authorized by all
necessary action of the Company and by all other requisite proceedings. Neither
the execution and delivery by the Company of this Agreement or any Related
Agreement nor the consummation by the Company of the transactions contemplated
thereby (including,
8
without limitation, the purchase and sale of the Purchased Securities
hereunder) (a) will violate any provision of the Charter of the Company or
any of its Subsidiaries, (b) will violate or conflict with any applicable
statute, law, ordinance, rule, regulation, order, judgment, writ, injunction,
license, permit or decree applicable to the Company or any of its
Subsidiaries, (c) will conflict with or constitute a violation of or a
default (or an event which with notice or lapse of time or both, would
constitute a default) under, or will result in the termination of, or
accelerate performance required by, any contract to which the Company or any
of its Subsidiaries is a party or to which any of the assets or properties of
the Company or any of its Subsidiaries are subject, (d) will result in the
creation of any Lien upon any of the Equity Securities of the Company or any
of its Subsidiaries or upon any of the property or assets of the Company or
any of its Subsidiaries, or (e) will require the consent, authorization or
approval of, or notice to or filing or registration with, any Person.
SECTION 3.3. ENFORCEABILITY. The execution and delivery by the
Company of this Agreement and of each of the Related Agreements, and the
issuance and sale by the Company of the Purchased Securities hereunder, will
result in legally binding obligations of the Company enforceable against the
Company in accordance with the respective terms and provisions hereof and
thereof.
SECTION 3.4. NECESSARY LICENSES. (a) The Company and its
Subsidiaries hold all necessary Licenses which are required in connection
with the ownership and operation of their businesses as currently conducted.
All Licenses are in full force and effect. The Company and its Subsidiaries
have complied with the terms of the Licenses which they hold and there are no
pending modifications, amendments or revocations of the Licenses which would
adversely affect the ownership or the operation of its business. All fees due
and payable from the Company or any of its Subsidiaries to Governmental
Entities pursuant to the Licenses have been paid. All reports required of the
Company or any of its Subsidiaries to be filed in connection with the
Licenses have been timely filed and are accurate and complete.
(b) No registrations, filings, applications, notices, transfers,
consents, approvals, audits, qualifications, waivers or other action of any kind
is required by virtue of the execution and delivery of this Agreement or any
Related Agreement, or of the consummation of the transactions contemplated
hereby or thereby (a) to avoid the loss of any License or any asset, property or
right pursuant to the terms thereof or the violation or breach of any law
applicable thereto, or (b) to enable the Company and its Subsidiaries to hold
and enjoy the same after the Initial Closing Date (or the Subsequent Closing
Date, as the case may be) in the conduct of its business as conducted
immediately prior to the Initial Closing Date (or the Subsequent Closing Date,
as the case may be). In particular, execution and delivery of this Agreement and
the Related Agreements, and consummation of the transactions contemplated
therein, will not constitute a change of control in the Company or its
Subsidiaries, or otherwise require authorization, approval, consent, or filing
of registration with any Governmental Entity, and will not violate or conflict
with any applicable provision of the laws, rules and regulations administered by
any Governmental Entity.
SECTION 3.5. COMPLIANCE WITH LAW. Neither the Company nor any
Subsidiary is in default under, or in violation of, any laws, rules or
regulations
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(including, without limitation, foreign, federal, state or local laws, rules
or regulations relating to the issuance or sale of securities,
telecommunications, anti-trust, occupational safety, the protection of the
environment, transportation, storage or disposal of hazardous waste,
anti-pollution and air and water quality laws), or any Licenses, granted by,
or any judgment, decree, writ, injunction or order of, any Governmental
Entity, applicable to its business or any of its properties or assets, which
defaults and violations would in the aggregate expose the Company and its
Subsidiaries to liabilities in excess of an aggregate of US$ 50,000 or
otherwise materially adversely affect the assets or properties or business or
operations of the Company and its Subsidiaries or requiring or prohibiting
future activities.
Neither the Company nor any Subsidiary has received any notification
alleging any violations of any of the foregoing with respect to which adequate
corrective action has not been taken.
SECTION 3.6. LITIGATION. (a) There is no suit, claim, action,
proceeding or investigation pending or, to the best knowledge of the Company
after inquiring of its officers and employees, threatened against or adversely
affecting the Company or any of its Subsidiaries, any of their assets or
properties, any officer or director of the Company or any of its Subsidiaries or
the consummation of the transactions contemplated by this Agreement or any
Related Agreement, at law or in equity or before any Governmental Entity or
before any arbitrator of any kind and there is no reasonable basis for any such
suit, claim, action, proceeding or investigation. Neither the Company nor any
Subsidiary nor any officer or director thereof is a party to or subject to (x)
any judgment, order, writ, injunction or decree affecting it or any of its
assets or properties or requiring or prohibiting future activities or (y) any
settlement agreement.
(b) Neither the Company nor any Subsidiary nor any officer or
director thereto has been party to administrative or regulatory proceedings or
other governmental investigations or inquiries, pending or threatened, affecting
business operations of the Company or any Subsidiary.
ARTICLE IV
PURCHASERS' REPRESENTATIONS
SECTION 4.1. ORGANIZATION AND GOOD STANDING. Each Purchaser that is
not an individual represents that it is validly existing and in good standing
under the laws of its state of formation.
SECTION 4.2. AUTHORIZATION. Each Purchaser represents that this
Agreement and the Related Agreements to which it is a party have been executed
by him, or in the case of a Purchaser which is not an individual by a duly
authorized Person on its behalf and the execution, delivery and performance
hereof and thereof (a) have been duly authorized by all appropriate action, and
(b) will not violate the provision of any material law or regulation of any
Governmental Entity applicable to
10
it or constitute a violation of any material agreement or instrument by which
it is bound.
SECTION 4.3. ENFORCEABILITY. Each Purchaser represents that the
execution and delivery of this Agreement and the Related Agreements and the
transactions contemplated thereunder will result in legally binding obligations
of such Purchaser enforceable against such Purchaser in accordance with the
respective terms and provisions hereof and thereof, subject, however, to
limitations with respect to enforcement imposed by law in connection with
bankruptcy or similar proceedings to the extent that equitable remedies such as
specific performance and injunction are in the discretion of the court from
which they are sought.
ARTICLE V
CONDITIONS TO PURCHASERS' OBLIGATION TO PURCHASE
AND THE COMPANY'S OBLIGATION TO SELL
SECTION 5.1. PURCHASERS' CLOSING CONDITIONS. Each Purchaser's
obligation to purchase the Purchased Securities pursuant to Section 2.1 is
subject to compliance by the Company with its agreements herein contained, and
to the satisfaction, on or prior to the Initial Closing Date of the following
conditions:
(a) RELATED AGREEMENTS. Each of the Related Agreements shall have
been executed and delivered in a form satisfactory to the Purchasers. All
covenants, agreements and conditions contained in the Related Agreements which
are to be performed or complied with on or prior to the Initial Closing Date
shall have been performed or complied with in all material respects.
(b) LEGAL OPINION. The Purchaser shall have received from Xxxxxxx &
Bonn, Luxembourg counsel to the Company, an opinion substantially in the form of
Exhibit D attached hereto.
(c) LEGALITY; GOVERNMENTAL AND OTHER AUTHORIZATIONS. The purchase of
the Purchased Securities shall not be prohibited by any law or governmental
order or regulation, and shall not subject any Purchaser to any penalty, special
Tax, or other onerous condition. All necessary consents, approvals, Licenses,
orders and authorizations of, and registrations, declarations and filings with,
any Governmental Entity or any other Person, with respect to any of the
transactions contemplated by this Agreement or any of the Related Agreements,
shall have been duly obtained or made and shall be in full force and effect.
(d) NO DEFAULT. The Company shall not be in material default under
any of its Contracts.
(e) GENERAL. All instruments and corporate proceedings in connection
with the transactions contemplated by this Agreement and the Related Agreements
shall be satisfactory in form and substance to the Purchasers, and the
Purchasers shall have received copies of all documents, including, without
limitation, records of corporate
11
or other proceedings and consents which the Purchaser may have reasonably
requested in connection therewith.
SECTION 5.2. COMPANY'S CLOSING CONDITIONS. The Company's obligation
to sell the Purchased Securities pursuant to SECTION 2.1 is subject to the
representations and warranties of the Purchasers contained herein being true and
correct in all material respects on and as of the Initial Closing Date, and to
the satisfaction, on or prior to the Initial Closing Date of the following
conditions:
(a) RELATED AGREEMENTS. Each of the Related Agreements shall have
been executed and delivered in a form satisfactory to the Company. All
covenants, agreements and conditions contained in the Related Agreements which
are to be performed or complied with on or prior to the Initial Closing Date
shall have been performed or complied with in all material respects.
(b) LEGALITY; GOVERNMENTAL AND OTHER AUTHORIZATIONS. The purchase of
the Purchased Securities shall not be prohibited by any law or governmental
order or regulation, and shall not subject the Company to any penalty, special
Tax, or other onerous condition. All necessary consents, approvals, Licenses,
orders and authorizations of, and registrations, declarations and filings with,
any Governmental Entity or any other Person, with respect to any of the
transactions contemplated by this Agreement or any of the Related Agreements,
shall have been duly obtained or made and shall be in full force and effect.
(c) GENERAL. The Company shall have received copies of all documents,
including, without limitation, documents evidencing the compliance of
sub-paragraph (b) above, which the Company may have reasonably requested in
connection therewith.
ARTICLE VI
EXPENSES; INDEMNITY
SECTION 6.1. EXPENSES. The Company hereby agrees to pay at the
Initial Closing and each Subsequent Closing all reasonable fees, costs and
expenses incurred by the Purchasers, and approved by the Company, in connection
with the transactions hereunder and in connection with any amendments or waivers
(whether or not the same become effective) hereof and all reasonable expenses
incurred by the Purchasers in connection with the enforcement of any rights
hereunder or with respect to any Purchased Security, including without
limitation (i) the cost and expenses of preparing and duplicating this
Agreement, each Related Agreement and the Purchased Securities; and (ii) all
Taxes arising from this Agreement or the consummation of the transactions
contemplated herein including, without limitation, any recording fees, filing
fees and documentary stamp and similar Taxes at any time payable in respect of
this Agreement or any Related Agreement or the issuance of any of the Purchased
Securities and any securities issued in exchange therefor provided that the
Company shall not be liable for (i) Taxes determined with respect to income, and
(ii) Taxes
12
relating to and transfer of the Purchased Securities to any Person other than
the Company.
SECTION 6.2. INDEMNIFICATION. The Company hereby further agrees to
indemnify, exonerate and hold each Purchaser, its Affiliates and their
investors, and its (if applicable) general and limited partners and their
respective shareholders, officers, directors, employees and agents free and
harmless from and against any and all actions, causes of action, suits, losses,
liabilities, damages and expenses, including, without limitation, reasonable
attorneys' fees and disbursements, incurred in any capacity by any of the
indemnities as a result of or relating to (i) any transaction financed or to be
financed in whole or in part, directly or indirectly, with proceeds from the
sale of any of the Purchased Securities, (ii) the execution, delivery,
performance or enforcement of this Agreement, the Related Agreements or any
agreement, document or instrument contemplated hereby or thereby (including,
without limitation, any failure by the Company to comply with any of the
covenants thereunder), (iii) any breach of any representation or warranty of the
Company in this Agreement or any Related Agreement, (iv) any violation of any
Environmental Laws with respect to conditions at the property now, heretofore or
hereafter owned or used by the Company or any of its Subsidiaries or the
operations conducted thereon, and (v) the investigation or remediation of
offsite locations at which the Company or any of its Subsidiaries or their
predecessors are alleged to have directly or indirectly disposed of Hazardous
Materials.
ARTICLE VII
NOTICES
Any notices or other communications required to be given pursuant to
this Agreement shall be in writing and shall be deemed given: (i) upon delivery,
if by hand; (ii) three (3) Business Days after mailing, if sent by registered or
certified mail, postage prepaid, return receipt requested; (iii) one (1)
Business Day after mailing, if sent via overnight courier; or (iv) upon
transmission, if sent by telex or facsimile except that if such notice or other
communication is received by telex or facsimile after 5:00 p.m. on a Business
Day at the place of receipt, it shall be effective as of the following Business
Day. All notices and other communications hereunder shall be given as follows:
(a) If to the Company, to it at:
Carrier1 International GmbH
Xxxxxxxxxxxxxx 00
0000 Xxxxxx, Xxxxxxxxxxx
Attention:
Facsimile: 01/297 26 01
Telephone: 01/000 00 00
13
With a copy to:
Carrier One, LLC
000 Xxxxx Xxxxxx
00 Xxxxxxx Xxxxx
Xxxxxxxxxx XX 00000
Attention: Xxxxx X. Xxxxxxx
Facsimile: (000)000-0000
Telephone: (000)000-0000
(b) If to Carrier One, to it at:
000 Xxxxx Xxxxxx
00 Xxxxxxx Xxxxx
Xxxxxxxxxx XX 00000
Attention: Xxxxx X. Xxxxxxx
Facsimile: (000)000-0000
Telephone: (000)000-0000
(c) If to other Purchasers, to them at their respective addresses
notified by them to the Company from time to time:
Any party may change its address for receiving notice by written notice given
to the other names above in the manner provided above.
ARTICLE VIII
AMENDMENTS, WAIVERS AND ASSIGNMENT
No modification to or amendment of any provision of this Agreement
shall be effective against the Company, Carrier One or any Purchaser unless such
modification or amendment is approved in writing by the Majority Purchasers and
the Company, except for adding Additional Purchasers to this Agreement and any
consequential amendment to Schedule 2.1 hereto, which amendment may be made in
accordance with Article XII. No waiver of the rights and obligations hereunder
of any party hereto shall be effective unless such waiver is in writing and duly
executed and delivered by (a) the Majority Purchasers (in the event such waiver
is sought by the Company), or (b) the Company (in the event such waiver is
sought by any Purchaser). The failure of any party hereto to enforce any of
provision of this Agreement shall in no way be construed as a waiver of such
provision and shall not affect the right of such party thereafter to enforce
each and every provision of this Agreement in accordance with its terms. Any
amendment or waiver effected in accordance with this Article VIII shall be
binding upon the Company, Carrier One and each Purchaser. The Company
acknowledges and agrees that any Purchaser which is not an individual, upon the
approval of the Majority Purchasers, shall have the right to assign its rights
and obligations hereunder to one or more institutional or venture capital
investors and shall be released from its commitments hereunder to the extent
assigned; provided that Providence Equity Partners L.P. and its affiliates shall
retain, directly or indirectly, sufficient Purchased Securities to be the
Majority Purchasers.
14
ARTICLE IX
GOVERNING LAW; JURISDICTION
(a) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF LUXEMBOURG WITHOUT GIVING EFFECT TO ANY CHOICE OR CONFLICT OF
LAW PROVISION OR RULE THAT WOULD CAUSE THE APPLICATION OF THE SUBSTANTIVE LAWS
OF ANY OTHER JURISDICTION, AND SHALL BIND AND INURE TO THE BENEFIT OF THE
PARTIES HERETO AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
(b) 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.
(c) Paragraph (b) above does not prevent any party to this Agreement
from taking proceedings relating to Proceedings or Disputes in any other courts
with jurisdiction.
(d) 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.
ARTICLE X
ENTIRE AGREEMENT; COUNTERPARTS; SECTION HEADINGS
This Agreement, the Purchased Securities and the Related Agreements
set forth the entire understanding of the parties hereto with respect to the
transactions contemplated hereby and supersede any prior written or oral
understandings with respect thereto. This Agreement may be executed
simultaneously in one or more counterparts thereof, each of which shall be
deemed an original but all of which together shall constitute one and the same
instrument. The parties shall execute at least as many copies of this Agreement
as there are parties to this Agreement. The headings in this Agreement are for
convenience of reference only and shall not alter or otherwise affect the
meaning hereof.
15
ARTICLE XI
WAIVER OF JURY TRIAL
The parties hereto each hereby knowingly, voluntarily and
intentionally waive any rights to have a trial by jury in respect of a
litigation (whether as claim, counterclaim, affirmative defense of otherwise)
in connection with or in any way related to this Agreement.
ARTICLE XII
ADDITIONAL PURCHASERS
The Company may agree to sell additional Equity Securities to any
Person (an "Additional Purchaser") in accordance with the terms of this
Agreement, in which case (i) this Agreement shall be amended to reflect such
Additional Purchaser as Purchaser by a separate letter agreement among Carrier
One, the Company and such Additional Purchaser, and (ii) the representations
given in ARTICLE IV shall be given to the Company by such Additional Purchaser
as at such date of such sale.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
16
If the foregoing corresponds with your understanding of our
agreement, kindly sign this letter and the accompanying copies thereof in the
appropriate space below.
VERY TRULY YOURS,
CARRIER ONE, LLC
BY: /s/ Xxxxx X. Xxxxxxx
--------------------------------
NAME: XXXXX X. XXXXXXX
TITLE: CHAIRMAN
ACCEPTED AND AGREED TO:
CARRIER1 INTERNATIONAL S.A.
BY: /s/ Xxxxx X. Xxxxxxx
--------------------------------
NAME: XXXXX X. XXXXXXX
TITLE: CHAIRMAN
17
ACCEPTED AND AGREED TO:
/s/ Kees Van Ophem
--------------------------
KEES VAN OPHEM
[SIGNATURE PAGE TO SECURITIES PURCHASE AGREEMENT]
18
ACCEPTED AND AGREED TO:
/s/ Xxxx Xxxxxx
--------------------------
XXXX XXXXXX
[SIGNATURE PAGE TO SECURITIES PURCHASE AGREEMENT]
18
ACCEPTED AND AGREED TO:
/s/ Xxxxxx Xxxxx
--------------------------
XXXXXX XXXXX
[SIGNATURE PAGE TO SECURITIES PURCHASE AGREEMENT]
18
ACCEPTED AND AGREED TO:
/s/ Xxxxxx Xxxxxxx
--------------------------
XXXXXX XXXXXXX
[SIGNATURE PAGE TO SECURITIES PURCHASE AGREEMENT]
18
ACCEPTED AND AGREED TO:
/s/ Xxxxx Xxxxxxx
--------------------------
XXXXX XXXXXXX
[SIGNATURE PAGE TO SECURITIES PURCHASE AGREEMENT]
18
ACCEPTED AND AGREED TO:
/s/ Xxxxxx X. Xxxxx
--------------------------
XXXXXX X. XXXXX
[SIGNATURE PAGE TO SECURITIES PURCHASE AGREEMENT]
18
ACCEPTED AND AGREED TO:
/s/ Stig Johansson
--------------------------
STIG JOHANSSON
[SIGNATURE PAGE TO SECURITIES PURCHASE AGREEMENT]
18
ACCEPTED AND AGREED TO:
/s/ Xxxxxxx Xxxxx
--------------------------
XXXXXXX XXXXX
[SIGNATURE PAGE TO SECURITIES PURCHASE AGREEMENT]
18
SCHEDULE 2.1
LIST OF PURCHASERS
------------------
NAME
----
1 Carrier One, LLC/_______Shares
2 Stig Johansson
3 Xxxxxxx Xxxxx
4 Xxxxxx X. Xxxxx
5 Kees Van Ophem
6 Xxxx Xxxxxx
7 Xxxxx Xxxxxxx
8 Xxxxxx Xxxxx
9 Xxxxxx Xxxxxxx
10 Xxxxxxxxx Xxxxxxxx
11 Xxxxxx Xxxxxxxxx
12 Xxxxxx Xxxxxx
13 Xxxxxx Xxxxxxxxx
14 Jan van Veldhoven
15 Xxxxxx Xxxx
16 Xxxxxx Xxxxxxx
17 Xxxxxx Xxxxxxxxx
18 Xxxx Xxxx
19 Xxx Xxxxxx
20 Harm Xxxxxxx
21 Xxxxxx Xxxxxx
22 Xxxxx Xxxxx
23 Xxxxx Xxxxxxx
24 Xxxxxxxx Xxxxxxx
25 Xxxxxxxxx Xxxx
26 Xxxxx Xxxxxxxxx
27 Xxxxxxxxxxx Xxxxxxx
28 Xxxxxx Xxxxxxxx
29 Xxxxxx Xxxxxx Xxxxx
30 Xxxxxxxx Xxxxxxxxxxxxxx
00 Xxxxx Xxxxxx
32 Xxxx Xxxxxxx
33 Xxxxxxxx Xxxxxxx
34 Xxxxxxx Xxxxxx
35 Xxx Xxxx
36 Xxxxx Xxxxx
37 Gertfried Xxxx
38 Xxxxxx Xxxxxx
39 Xxxxxxx XxXxxxxxxx
40 Xxxxx Xxxxxx
41 Xxxxxxx Xxxxxxxx
42 Xxxx Xxxxxxxxxxx
