REGISTRATION RIGHTS AGREEMENT
Dated April 6, 2000
between
VIATEL FINANCING TRUST I
VIATEL, INC.
and
XXXXXX XXXXXXX & CO. INCORPORATED
XXXXXXX XXXXX BARNEY INC.
BANC OF AMERICA SECURITIES LLC
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "AGREEMENT") is made and
entered into on April 6, 2000 between VIATEL FINANCING TRUST I, a special
statutory trust formed under the laws of the State of Delaware (the "TRUST"),
VIATEL, INC., a Delaware corporation ("VIATEL" or the "COMPANY"), and XXXXXX
XXXXXXX & CO. INCORPORATED, XXXXXXX XXXXX BARNEY INC. and BANC OF AMERICA
SECURITIES LLC (the "PLACEMENT AGENTS").
This Agreement is made pursuant to the Placement Agreement, dated
the date hereof, between the Trust, the Company and the Placement Agents (the
"PLACEMENT AGREEMENT"). In order to induce the Placement Agents to enter into
the Placement Agreement, the Trust and the Company have agreed to provide the
registration rights set forth in this Agreement. The execution of this Agreement
is a condition to the closing under the Purchase Agreement.
The Trust and the Company agree with the Placement Agents, (i)
for their benefit as Placement Agents and (ii) for the benefit of the holders
from time to time of the Registrable Securities, including the Placement Agents
(each of the foregoing a "HOLDER" and together the "HOLDERS"), as follows:
In consideration of the foregoing, the parties hereto agree as
follows:
1. DEFINITIONS.
Capitalized terms used herein without definition shall have their
respective meanings set forth in the Placement Agreement. As used in this
Agreement, the following capitalized defined terms shall have the following
meanings:
"AFFILIATE" shall have the same meaning as given to that term in
Rule 405 of the 1933 Act or any successor rule thereunder.
"APPLICABLE CONVERSION PRICE" as of any date of determination
shall mean the Conversion Price, as it may be adjusted from time to
time, in effect as of such date of determination or, if no Convertible
Debentures are then outstanding, the Conversion Price that would be in
effect were Convertible Debentures then outstanding.
"COMMON STOCK" shall mean the shares of common stock, $.01 par
value per share, of Viatel and any other shares of common stock as may
constitute "Common Stock" for purposes of the Indenture, including the
Underlying Common Stock.
"COMPANY" shall have the meaning set forth in the Preamble to
this Agreement and shall also include the Company's successors.
"CONVERSION PRICE" shall have the meaning assigned such term in
Section 14.1 of the Indenture.
"CONVERTIBLE DEBENTURES" shall mean the 7 3/4% Convertible Junior
Subordinated Debentures due 2015 of Viatel to be purchased by the
Trust pursuant to the Debenture Purchase Agreement dated as of the
date hereof between Viatel and the Trust.
"CONVERTIBLE PREFERRED SECURITIES" shall mean 7 3/4% Trust
Convertible Preferred Securities of the Trust.
"DAMAGES ACCRUAL PERIOD" See Section 2(e) hereof.
"DAMAGES PAYMENT DATE" shall mean each distribution payment date
under the Declaration, in the case of Convertible Preferred
Securities, each Interest Payment Date (as defined in the Indenture),
in the case of Convertible Debentures, and each January 15, April 15,
July 15, October 15, in the case of Underlying Common Stock; and, in
the event that any Convertible Preferred Security or Convertible
Debenture (or portion thereof) is called for redemption or surrendered
for conversion, the date of redemption or conversion, as the case may
be, shall be deemed to be a Damages Payment Date with respect to such
Convertible Preferred Security or Convertible Debenture (or portion
thereof), as the case may be, unless accrued and unpaid distributions
or interest, as the case may be, are to paid to the holder on a record
date prior to such date of conversion (in which case the Damages
Payment Date shall be deemed to be the date on which distributions or
interest, as the case may be, are payable to such record holder).
"DECLARATION" shall mean the Amended and Restated Declaration of
Trust dated as of the date hereof of the Trust as amended from time to
time.
"DEFERRAL PERIODS" See Section 2(d)(ii) hereof.
"EFFECTIVENESS PERIOD" shall mean the period commencing with the
date hereof and ending on the date that all Registrable Securities
have ceased to be Registrable Securities.
"EVENT" See Section 2(e) hereof.
"EVENT DATE" See Section 2(e) hereof.
"EVENT TERMINATION DATE" See Section 2(e) hereof.
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"FILING DATE" See Section 2(a) hereof.
"GUARANTEE" shall mean the guarantee by Viatel of the Convertible
Preferred Securities pursuant to the Preferred Securities Guarantee
Agreement dated as of the date hereof between Viatel and The Bank of
New York, as preferred guarantee trustee.
"HOLDER" shall have the meaning set forth in the Preamble to this
Agreement.
"INDENTURE" shall mean the indenture, dated April 12, 2000
between the Company and The Bank of New York, as trustee, pursuant to
which the Convertible Debentures are being issued.
"INITIAL SHELF REGISTRATION" See Section 2(a) hereof.
"LIQUIDATED DAMAGES AMOUNT" See Section 2(e) hereof.
"MAJORITY HOLDERS" shall mean the Holders of a majority of the
outstanding Registrable Securities; PROVIDED THAT whenever the consent
or approval of Holders of a specified percentage of Registrable
Securities is required hereunder, Registrable Securities held by the
Company, the Trust or any of their respective affiliates (as such term
is defined in Rule 405 under the 0000 Xxx) (other than the Placement
Agents or subsequent holders of Registrable Securities if such
subsequent holders are deemed to be such affiliates solely by reason
of their holding of such Registrable Securities) shall not be counted
in determining whether such consent or approval was given by the
Holders of such required percentage or amount.
"MANAGING UNDERWRITERS" shall mean the investment banking firm or
firms that shall manage or co-manage an Underwritten Offering.
"1934 ACT" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"1933 ACT" shall mean the Securities Act of 1933, as amended from
time to time.
"NOTICE HOLDER" See Section 2(d)(i) hereof.
"PERSON" shall mean an individual, partnership, corporation,
limited liability company, joint venture, association, joint stock
company, trust or unincorporated organization or other entity, or a
government or agency or political subdivision thereof.
"PLACEMENT AGENTS" shall have the meaning set forth in the
Preamble to this Agreement.
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"PLACEMENT AGREEMENT" shall have the meaning set forth in the
Preamble to this Agreement.
"PROSPECTUS" shall mean the prospectus included in a Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an
effective registration statement in reliance upon Rule 430A
promulgated under the 1933 Act), as amended or supplemented by any
amendment or prospectus supplement, including post-effective
amendments, and in each case including all material incorporated by
reference therein.
"REGISTRABLE SECURITIES" shall mean the Convertible Preferred
Securities, the Guarantee, the Convertible Debentures and the
Underlying Common Stock, whether or not such securities have been
converted or exchanged, and at all times subsequent to any such
conversion or exchange, and any security issued with respect thereto
upon any stock dividend, split or similar event until, in the case of
any such security, (i) it is effectively registered under the 1933 Act
and disposed of in accordance with the Registration Statement covering
its offering and sale, (ii) it is saleable by the Holder thereof
pursuant to Rule 144(k) or any successor provision or (iii) it is sold
to the public pursuant to Rule 144 and, as result of the event or
circumstance described in any of the foregoing clauses (i) through
(iii), the legends with respect to transfer restrictions required
under the Declaration and the Indenture are removed or removable in
accordance with the terms of the Declaration or the Indenture, as the
case may be.
"REGISTRATION EXPENSES" shall mean any and all expenses incident
to performance of or compliance by the Company and the Trust with this
Agreement, including without limitation: (i) all SEC, stock exchange
or National Association of Securities Dealers, Inc. registration and
filing fees, (ii) all fees and expenses incurred in connection with
compliance with state securities or blue sky laws (including
reasonable fees and disbursements of counsel for any underwriters or
Holders in connection with blue sky qualification of any of the
Registrable Securities), (iii) all expenses of any Persons in
preparing or assisting in preparing, word processing, printing and
distributing any Registration Statement, any Prospectus, any
amendments or supplements thereto, any underwriting agreements,
securities sales agreements and other documents relating to the
performance of and compliance with this Agreement, (iv) all rating
agency fees, (v) all fees and disbursements relating to the
qualification of the Indenture under applicable securities laws, (vi)
the fees and disbursements of the Trustee and its counsel, (vii) the
fees and disbursements of counsel for the Company and the Trust and
the reasonable fees and disbursements of one counsel for the Holders
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(which counsel shall be selected by the Majority Holders and which
counsel may also be counsel for the Placement Agents) and (viii) the
fees and disbursements of the independent public accountants of the
Company, including the expenses of any special audits or "cold
comfort" letters required by or incident to such performance and
compliance, but excluding fees and expenses of counsel to the
underwriters (other than reasonable fees and expenses set forth in
clause (ii) above) or the Holders and underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or
disposition of Registrable Securities by a Holder.
"REGISTRATION STATEMENT" shall mean any registration statement of
the Company or the Trust that covers any of the Registrable Securities
pursuant to the provisions of this Agreement and all amendments and
supplements to any such Registration Statement, including
post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated
by reference therein.
"RULE 144" shall mean Rule 144 under the 1933 Act, as such Rule
may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC.
"SEC" shall mean the Securities and Exchange Commission.
"SELLING PERIOD" See Section 2(d)(i) hereof.
"SHELF REGISTRATION" shall mean a registration effected pursuant
to Section 2(a) hereof.
"SUBSEQUENT SHELF REGISTRATION" See Section 2(b) hereof.
"TRUST" shall have the meaning set forth in the preamble to the
agreement.
"TRUSTEE" shall mean The Bank of New York (or any successor
entity), the Institutional Trustee under the Declaration or, in the
event the Convertible Debentures are distributed to holders of the
Convertible Preferred Securities upon dissolution of the Trust, the
Trustee under the Indenture.
"UNDERLYING COMMON STOCK" shall mean the Common Stock into which
the Convertible Debentures are convertible.
"UNDERWRITERS" See Section 3.
"UNDERWRITTEN REGISTRATION" or "UNDERWRITTEN OFFERING" shall mean
a registration in which Registrable Securities are sold to an
Underwriter (as hereinafter defined) for reoffering to the public.
2. SHELF REGISTRATION.
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(a) SHELF REGISTRATION. The Company and the Trust shall prepare
and file with the SEC, as soon as practicable but in any event on or prior to
the date ninety (90) days following the latest date of original issuance of the
Convertible Preferred Securities (the "FILING DATE"), a registration statement
for an offering to be made on a delayed or continuous basis pursuant to Rule 415
of the 1933 Act (the "SHELF REGISTRATION") registering the resale from time to
time by Holders thereof of all of the Registrable Securities (the "INITIAL SHELF
REGISTRATION"). The Initial Shelf Registration shall be on Form S-3 or another
appropriate form permitting registration of the Registrable Securities for
resale by the Holders in one or more Underwritten Offerings, privately
negotiated transactions, sales on the Nasdaq National Market, sales to brokers
or dealers or otherwise. The Company and the Trust shall use their reasonable
best efforts to cause the Initial Shelf Registration to be declared effective
under the 1933 Act as soon as practicable, but in no event later than 180 days
after the date hereof, and to keep the Initial Shelf Registration continuously
effective under the 1933 Act until the earlier of the end of the Effectiveness
Period.
(b) If the Initial Shelf Registration or any Subsequent Shelf
Registration (as defined below) ceases to be effective for any reason at any
time during the Effectiveness Period (other than because all Registrable
Securities registered thereunder shall have been sold or shall have ceased to be
Registrable Securities), the Company and the Trust shall use their reasonable
best efforts to obtain the prompt withdrawal of any order suspending the
effectiveness thereof, and in any event shall, subject to Section 2(d), within
thirty (30) days of such cessation of effectiveness amend such Shelf
Registration in a manner reasonably expected to obtain the withdrawal of the
order suspending the effectiveness thereof, or file an additional Shelf
Registration covering all of the Registrable Securities (a "SUBSEQUENT SHELF
REGISTRATION"). If a Subsequent Shelf Registration is filed, the Company and the
Trust shall use their reasonable best efforts to cause such Subsequent Shelf
Registration to be declared effective as soon as practicable after such filing
and to keep such Registration Statement continuously effective until the end of
the Effectiveness Period.
(c) The Company and the Trust shall supplement and amend the
Shelf Registration if required by the rules, regulations or instructions
applicable to the registration form under the 1933 Act used by the Company and
the Trust for such Shelf Registration, if required by the 1933 Act or if
reasonably requested by the Placement Agents on behalf of the Holders of the
Registrable Securities covered by such Registration Statement or by the Managing
Underwriters of such Registrable Securities; provided that the party or parties
6
making such request shall have furnished to the Company and the Trust with such
request a written description of such request and reasonable legal grounds
therefor.
(d) Each Holder of Registrable Securities agrees that if such
Holder wishes to distribute its Registrable Securities pursuant to a Shelf
Registration and related Prospectus, it will do so only in accordance with this
Section 2(d). Each Holder of Registrable Securities agrees to give written
notice to the Company and the Trust prior to any intended distribution of
Registrable Securities under the Shelf Registration, which notice shall specify
the date on which such Holder intends to begin such distribution and any
information with respect to such Holder and the intended distribution of
Registrable Securities by such Holder required to amend the Registration
Statement with respect to such intended distribution of Registrable Securities
by such Holder. Within five business days after such date, the Company and the
Trust shall either:
(i) (A) If necessary, prepare and file with the SEC a
post-effective amendment to the Shelf Registration or a supplement to
the related Prospectus or a supplement or amendment to any document
incorporated therein by reference or file any other required document
so that such Registration Statement will not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading, and so that, as thereafter delivered to purchasers of the
Registrable Securities being sold thereunder, such Prospectus will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading; (B) provide the Holders of the Registrable
Securities who gave such notice copies of any documents filed pursuant
to Section 2(d)(i)(A); and (C) inform each such Holder that the
Company and the Trust have complied with their obligations in Section
2(d)(i)(A) and that the Registration Statement and the Prospectus may
be used for sales of Registrable Securities (or that, if the Company
or the Trust has filed a post-effective amendment to the Shelf
Registration which has not yet been declared effective, the Company
and the Trust will notify each such Holder to that effect, will use
reasonable efforts to secure the effectiveness of such post-effective
amendment and will immediately notify each such Holder pursuant to
Section 2(d)(i)(A) hereof when the amendment has become effective and
that the Registration Statement and the Prospectus may be used for
sales of Registrable Securities).
Each Holder who has given notice of intention to distribute such
Holder's Registrable Securities in accordance with this Section 2(d)
(a "NOTICE HOLDER") shall distribute all or any such Registrable
Securities pursuant to the Shelf Registration and related Prospectus
only during the 45-day period commencing with the date on which the
Company and the Trust give such notice (such 45-day period is referred
to as a "SELLING PERIOD"). The Notice Holders will not distribute any
7
Registrable Securities pursuant to such Registration Statement or
Prospectus after such Selling Period without giving a new notice of
intention to distribute pursuant to Section 2(d) hereof and receiving
a further notice from the Company and the Trust pursuant to Section
2(d)(i)(C) hereof.
(ii) In the event of the happening of any event (A) of the kind
described in Section 2(e) hereof or (B) that the Company believes in
good faith makes it advisable to suspend use of the Prospectus for a
discrete period of time due to pending material corporate developments
or similar material events that have not yet been publicly disclosed
and as to which the Company believes in good faith that public
disclosure will be disadvantageous to the Company or the Trust, the
Company shall deliver a certificate in writing, signed by its Chief
Executive Officer or Chief Financial Officer, to the Notice Holders,
and the Managing Underwriters, if any, to the effect of the foregoing
and, upon receipt of such certificate, each such Notice Holder's
Selling Period will not recommence or shall be suspended until such
Notice Holder's receipt of copies of the supplemented or amended
Prospectus provided for in Section 2(d)(i)(A) hereof, or until it is
advised in writing by the Company that the Prospectus may be used, and
it has received copies of any additional or supplemental filings that
are incorporated or deemed incorporated by reference in such
Prospectus. The Company and the Trust will use their reasonable best
efforts to ensure that the use of the Prospectus may be resumed, and
the Selling Period will commence or recommence, as soon as practicable
and, in the case of a pending development or event referred to in
Section 2(d)(ii)(B) hereof, as soon as the earlier of (x) public
disclosure of such pending material corporate development or similar
material event or (y) the date upon which in the judgment of the
Company, public disclosure of such material corporate development or
similar material event would not be disadvantageous to the Company or
the Trust. Notwithstanding the foregoing, the period during which a
Selling Period is suspended, whether or not consecutive, in any
12-month period, shall not exceed 60 days (a "DEFERRAL PERIOD").
(e) The parties hereto agree that the Holders of Registrable
Securities will suffer damages, and that it would not be feasible to ascertain
the extent of such damages with precision, if (i) the Initial Shelf Registration
has not been filed on or prior to the Filing Date, (ii) prior to the end of the
Effectiveness Period, the SEC shall have issued a stop order suspending the
effectiveness of the Shelf Registration, (iii) the aggregate number of days in
any one Deferral Period exceeds the periods permitted pursuant to Section
2(d)(ii) hereof or (each of the events of a type described in any of the
foregoing clauses (i) through (iii) are individually referred to herein as an
"Event," and the Filing Date in the case of clause (i), the date on which the
effectiveness of the Shelf Registration has been suspended or proceedings with
respect to the Shelf Registration under Section 8(d) or 8(e) of the 1933 Act
have been commenced in the case of clause (ii), the date on which the duration
of a Deferral Period exceeds the aggregate number of days permitted by Section
2(d)(ii) hereof being referred to herein as an "EVENT DATE"). Events shall be
deemed to continue until the "EVENT TERMINATION DATE," which shall be the
8
following dates with respect to the respective types of Events: the date the
Initial Registration Statement is filed in the case of an Event of the type
described in clause (i), the date that all stop orders suspending effectiveness
of the Shelf Registration have been removed and the proceedings initiated with
respect to the Shelf Registration under Section 8(d) or (e) of the 1933 Act have
terminated, as the case may be, in the case of Events of the types described in
clause (ii), and termination of the Deferral Period which caused the limit on
the duration of a Deferral Period set forth in Section 2(d)(ii) to be exceeded
in the case of the commencement of an Event of the type described in clause
(iii).
Accordingly, upon the occurrence of any Event Date and until such
time as there are no Events which have occurred and are continuing (a "DAMAGES
ACCRUAL PERIOD"), commencing on and including the Event Date on which such
Damages Accrual Period began, the Company agrees to pay, as liquidated damages,
and not as a penalty, an additional amount (the "LIQUIDATED DAMAGES AMOUNT"):
(i) to each Holder of (x) a Convertible Preferred Security or (y) in the event
that the Convertible Debentures are distributed to holders of Convertible
Preferred Securities upon dissolution of the Trust in accordance with the
Declaration, a Convertible Debenture, accruing at a rate equal to one-half of
one percent per annum (50 basis points) on an amount equal to the liquidation
amount of such Convertible Preferred Security or principal amount of such
Convertible Debenture, as the case may be, held by such Holder and (ii) to each
Holder of Underlying Common Stock, accruing at a rate equal to one-half of one
percent per annum (50 basis points) calculated on an amount equal to the product
of (x) the Applicable Conversion Price as of the business day immediately prior
to the applicable Damages Payment Date times (y) the number of shares of Common
Stock that are Registrable Securities held by such Notice Holder.
Notwithstanding the foregoing, no Liquidated Damages Amounts shall accrue with
respect to any Registrable Security from and after the earlier of (x) the date
such security is no longer a Registrable Security, and (y) expiration of the
Effectiveness Period. The rate of accrual of the Liquidated Damages Amount with
respect to any period shall not exceed the rate provided for in this paragraph
notwithstanding the occurrence of multiple concurrent Events. Liquidated Damages
Amounts shall be computed on the basis of a 360-day year of twelve 30-day
months, PROVIDED that Liquidated Damages Amounts payable for any period shorter
than a month will be computed on the basis of the actual number of days elapsed
per 30- day month.
The Company shall pay the liquidated damages due on any
Convertible Preferred Security, Convertible Debenture or Underlying Common Stock
by depositing with the Trustee, in trust for the benefit of the Holders of
Convertible Preferred Securities or Convertible Debentures entitled thereto (or,
in the case of Underlying Common Stock, by depositing with the transfer agent
for the benefit of the Holders of Underlying Common Stock entitled thereto), as
the case may be, at least one business day prior to the applicable Damages
Payment Date, sums sufficient to pay all accrued and unpaid liquidated damages
from and including the last Damages Payment Date to which liquidated damages
have been paid in full (or, if no liquidated damages have been paid in respect
of the relevant Damages Accrual Period, from and including the first day of such
9
Damages Accrual Period) to, but excluding, such Damages Payment Date. The
Liquidated Damages Amount due shall be payable on each Damages Payment Date to
the Holders of Registrable Securities entitled thereto holding such Registrable
Securities on the record date for such Damages Payment Date (which record date,
in the case of Underlying Common Stock, shall be established by the Company but
shall in any event be between 10 and 60 days prior to the relevant Damages
Payment Date); PROVIDED that, if any Convertible Preferred Securities or
Convertible Debentures (or portions thereof) are called for redemption, accrued
and unpaid liquidated damages thereon shall be paid to the person entitled to
receive accrued and unpaid interest thereon; and PROVIDED FURTHER that if any
Convertible Preferred Security or Convertible Debenture (or portion thereof) is
surrendered for conversion from and after the close of business on a regular
record date and prior to the corresponding distribution payment or interest
payment date, as the case may be, then accrued and unpaid liquidated damages
thereon shall be paid to the person entitled to receive accrued and unpaid
distributions or interest, as the case may be, in respect of such Convertible
Preferred Security or Convertible Debenture (or portion thereof) as the case may
be; and PROVIDED FURTHER that if any Convertible Preferred Security or
Convertible Debenture (or portion thereof) is surrendered for conversion at any
other time, then the converting Holder thereof shall be entitled to receive all
accrued and unpaid Liquidated Damages thereon to but excluding the date of
conversion. The Trustee shall be entitled, on behalf of the Notice Holders and
the Holders of Convertible Preferred Securities, Convertible Debentures or
Underlying Common Stock, to seek any available remedy for the enforcement of
this Agreement, including for the payment of such liquidated damages.
Notwithstanding the foregoing, the parties agree that the sole damages payable
for a violation of the terms of this Agreement with respect to which liquidated
damages are expressly provided shall be such liquidated damages.
All of the Company's obligations set forth in this Section 2(e)
which are outstanding with respect to any Registrable Securities at the time
such security ceases to be a Registrable Security shall survive until such time
as all such obligations with respect to such security have been satisfied in
full.
The parties hereto agree that the liquidated damages provided for
in this Section 2(e) constitute a reasonable estimate of the damages that may be
incurred by holders of Registrable Securities, other than the Placement Agents,
by reason of the failure of the Shelf Registration to be filed or declared
effective or unavailable (absolutely or as a practical matter) for effecting
resales of Registrable Securities, as the case may be, in accordance with the
provisions hereof.
(f) The Company shall pay all Registration Expenses in connection
with the registration pursuant to Section 2. Each Holder shall pay all
underwriting discounts and commissions and transfer taxes, if any, relating to
the sale or disposition of such Holder's Registrable Securities pursuant to the
Shelf Registration.
3. REGISTRATION PROCEDURES.
10
In connection with the obligations of the Company and the Trust
with respect to the Registration Statements pursuant to Section 2 hereof, the
Company and the Trust shall as expeditiously as possible:
(a) prepare and file with the SEC a Registration Statement on the
appropriate form under the 1933 Act, which form shall be available for
the sale of the Registrable Securities by the selling Holders thereof
and use their best efforts to cause such Registration Statement to
become effective and remain effective in accordance with Section 2
hereof; PROVIDED that before the effective date of any such
Registration Statement or Prospectus or any amendments or supplements
thereto (other than documents that would be incorporated or deemed to
be incorporated therein by reference and that Viatel or the Trust is
required by applicable securities laws or stock exchange requirements
to file) Viatel and the Trust shall furnish to Xxxxxx Xxxxxxx & Co.
Incorporated copies of all such documents proposed to be filed, which
documents will be subject to the review of Xxxxxx Xxxxxxx & Co.
Incorporated;
(b) subject to Section 2(d), prepare and file with the SEC such
amendments and post-effective amendments to each Registration
Statement as may be necessary to keep such Registration Statement
effective for the applicable period specified in Section 2 and cause
each Prospectus to be supplemented by any required prospectus
supplement and, as so supplemented, to be filed pursuant to Rule 424
under the 1933 Act; and, subject to Section 2(d), comply in all
material respects with the provisions of the 1933 Act with respect to
the disposition of all securities covered by such Registration
Statement during the applicable period in accordance with the intended
methods of disposition by the sellers thereof set forth in such
Registration Statement as so amended or such Prospectus as so
supplemented;
(c) furnish to each Holder of Registrable Securities, to counsel
for the Placement Agents, to counsel for the Holders and to each
Underwriter of an Underwritten Offering of Registrable Securities, if
any, without charge, as many copies of each Prospectus, including each
preliminary Prospectus, and any amendment or supplement thereto and
such other documents as such Holder or Underwriter may reasonably
request, in order to facilitate the public sale or other disposition
of the Registrable Securities; and the Company and the Trust consent
to the use of such Prospectus and any amendment or supplement thereto
in accordance with applicable law by each of the selling Holders of
Registrable Securities and any such Underwriters in connection with
the offering and sale of the Registrable Securities covered by and in
the manner described in such Prospectus or any amendment or supplement
thereto in accordance with applicable law;
(d) use their reasonable best efforts to register or qualify the
Registrable Securities under all applicable state securities or "blue
11
sky" laws of such jurisdictions as any Holder of Registrable
Securities covered by a Registration Statement shall reasonably
request in writing by the time the applicable Registration Statement
is declared effective by the SEC, to cooperate with such Holders in
connection with any filings required to be made with the National
Association of Securities Dealers, Inc. and do any and all other acts
and things which may be reasonably necessary or advisable to enable
such Holder to consummate the disposition in each such jurisdiction of
such Registrable Securities owned by such Holder; PROVIDED, HOWEVER,
that neither the Company nor the Trust shall be required to (i)
qualify as a foreign corporation or as a dealer in securities in any
jurisdiction where it would not otherwise be required to qualify but
for this Section 3(d), (ii) file any general consent to service of
process or (iii) subject themselves to taxation in any such
jurisdiction if it is not so subject;
(e) notify each Holder of Registrable Securities, counsel for the
Holders and counsel for the Placement Agents promptly and, if
requested by any such Holder or counsel, confirm such advice in
writing (i) when a Prospectus, any Prospectus supplement, a
Registration Statement or a post-effective amendment to a Registration
Statement or post-effective amendment has been filed with the SEC and
when a Registration Statement or post-effective amendment has become
effective, (ii) of any request by the SEC or any state securities
authority for amendments and supplements to a Registration Statement
and Prospectus or for additional information after the Registration
Statement has become effective, (iii) of the issuance by the SEC or
any state securities authority of any stop order suspending the
effectiveness of a Registration Statement or the initiation of any
proceedings for that purpose, (iv) if, between the effective date of a
Registration Statement and the closing of any sale of Registrable
Securities covered thereby, the representations and warranties of the
Company or the Trust contained in any underwriting agreement,
securities sales agreement or other similar agreement, if any,
relating to the offering cease to be true and correct in all material
respects or if the Company or the Trust receives any notification with
respect to the suspension of the qualification of the Registrable
Securities for sale in any jurisdiction or the initiation of any
proceeding for such purpose, (v) of the happening of any event during
the period a Registration Statement is effective which makes any
statement made in such Registration Statement or the related
Prospectus untrue in any material respect or which requires the making
of any changes in such Registration Statement or Prospectus in order
to make the statements therein not misleading in any material respect
and (vi) of any determination by the Company that a post-effective
amendment to a Registration Statement would be appropriate;
(f) subject to Section 2(d) make every reasonable effort to
obtain the withdrawal of any order suspending the effectiveness of a
Registration Statement at the earliest possible moment and provide
prompt notice to each Holder of the withdrawal of any such order;
12
(g) furnish to each Holder of Registrable Securities and the
Placement Agents, without charge, at least one conformed copy of each
Registration Statement and any post-effective amendment thereto
(without documents incorporated therein by reference or exhibits
thereto, unless requested);
(h) cooperate with the selling Holders of Registrable Securities
to facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold and not bearing any
restrictive legends and enable such Registrable Securities to be in
such denominations and registered in such names as the selling Holders
may reasonably request at least two business days prior to the closing
of any sale of Registrable Securities;
(i) upon the occurrence of any event contemplated by Section
3(e)(v) hereof, use their best efforts to prepare and file with the
SEC a supplement or post-effective amendment to a Registration
Statement or the related Prospectus or any document incorporated
therein by reference or file any other required document so that, as
thereafter delivered to the purchasers of the Registrable Securities,
such Prospectus will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading. Each of the Company and the Trust agrees to notify the
Holders to suspend use of the Prospectus as promptly as practicable
after the occurrence of such an event, and the Holders hereby agree to
suspend use of the Prospectus until the either the Company or the
Trust has amended or supplemented the Prospectus to correct such
misstatement or omission;
(j) a reasonable time prior to the filing of any Registration
Statement, any Prospectus, any amendment to a Registration Statement
or amendment or supplement to a Prospectus or any document that is to
be incorporated by reference into a Registration Statement or a
Prospectus after initial filing of a Registration Statement, provide
copies of such document to the Holders and their counsel and make such
of the representatives of the Company as shall be reasonably requested
by the Holders or their counsel available for discussion of such
document, and shall not at any time file or make any amendment to the
Registration Statement, any Prospectus or any amendment of or
supplement to a Registration Statement or a Prospectus or any document
(other than a document which the Company is legally required to file
under the 0000 Xxx) which is to be incorporated by reference into a
Registration Statement or a Prospectus, of which the Holders and their
counsel shall not have previously been advised and furnished a copy or
to which the Holders or their counsel shall reasonably object;
(k) obtain a CUSIP number for all Registrable Securities not
later than the effective date of the Registration Statement and
13
provide the Trustee and the transfer agent for the Common Stock with
printed certificates for the Registrable Securities which are in a
form eligible for deposit with The Depositary Trust Company, as
applicable;
(l) cause the Registrable Securities covered by the applicable
Registration Statement to be registered with or approved by such other
governmental agencies or authorities within the United States (except
as may be required solely as a consequence of the nature of such
selling Holder, in which case Viatel and the Trust will cooperate in
all reasonable respects with the filing of such Registration Statement
and the granting of such approvals) as may be necessary to enable the
selling Holder or Holders thereof to consummate the disposition of
such Registrable Securities;
(m) upon execution of customary confidentiality agreements
reasonably satisfactory to the Company and the Trust and their
counsel, make available for inspection by a representative of the
Holders of the Registrable Securities, any Underwriter participating
in any disposition pursuant to such Shelf Registration, and attorneys
and accountants designated by the Holders, at reasonable times and in
a reasonable manner, all financial and other records, pertinent
documents and properties of the Company, and cause the respective
officers, directors and employees of the Company to supply all
information reasonably requested by any such representative,
Underwriter, attorney or accountant in connection with a Shelf
Registration;
(n) if reasonably requested by the Placement Agents or any Holder
of Registrable Securities covered by such Registration Statement, (i)
promptly incorporate in a Prospectus supplement or post-effective
amendment such information with respect to such Holder as is legally
required to be included therein and (ii) make all required filings of
such Prospectus supplement or such post-effective amendment as soon as
the Company and the Trust have received notification of the matters to
be incorporated in such filing;
(o) use their reasonable best efforts to enter into such
customary agreements and take all such other actions in connection
therewith (including those requested by the Holders of a majority of
the Registrable Securities being sold) in order to expedite or
facilitate the disposition of such Registrable Securities including,
but not limited to, an Underwritten Offering and in such connection,
(i) to the extent possible, make such representations and warranties
to the Holders and any Underwriters of such Registrable Securities
with respect to the business of the Company and its subsidiaries, the
Shelf Registration, Prospectus and documents incorporated by reference
therein or deemed incorporated by reference therein, if any, in each
case, in form, substance and scope as are customarily made by issuers
to underwriters in Underwritten Offerings and confirm the same if and
when requested, (ii) use their reasonable best efforts to obtain
opinions of counsel to the Company (which counsel and opinions, in
form, scope and substance, shall be reasonably satisfactory to the
Holders and such Underwriters and their respective counsel) addressed
14
to each selling Holder and Underwriter of Registrable Securities,
covering the matters customarily covered in opinions requested in
underwritten offerings, (iii) use their reasonable best efforts to
obtain "cold comfort" letters from the independent certified public
accountants of the Company (and, if necessary, any other certified
public accountant of any subsidiary of the Company, or of any business
acquired by the Company for which financial statements and financial
data are or are required to be included in the Registration Statement)
addressed to each selling Holder and Underwriter of Registrable
Securities, such letters to be in customary form and covering matters
of the type customarily covered in "cold comfort" letters in
connection with underwritten offerings, and (iv) deliver such
documents and certificates as may be reasonably requested by the
Holders of a majority of the Registrable Securities being sold or the
Underwriters, and which are customarily delivered in underwritten
offerings, to evidence the continued validity of the representations
and warranties of the Company made pursuant to clause (i) above and to
evidence compliance with any customary conditions contained in an
underwriting agreement;
(q) cooperate with the selling Holders of Registrable Securities
to facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold and not bearing any
restrictive legends; and enable such Registrable Securities to be in
such denominations and registered in such names as the Holders may
request;
(r) cause all Underlying Common Stock covered by the Registration
Statement to be listed on each securities exchange or quotation system on which
the Common Stock is then listed no later than the date the Registration
Statement is declared effective and, in connection therewith, to the extent
applicable, to make such filings under the 1934 Act (E.G., the filing of a
Registration Statement on Form 8-A) and to have such filings declared effective
thereunder.
The Company and the Trust may require each Holder of Registrable
Securities to furnish to the Company such information regarding the Holder and
the proposed distribution by such Holder of such Registrable Securities as the
Company may from time to time reasonably request in writing. No Holder of
Registrable Securities may include its Registrable Securities in such
Registration Statement unless and until such Holder furnishes such information
to the Company. Each Holder including Registrable Securities in a Shelf
Registration shall agree to furnish promptly to the Company any information
regarding such Holder and the proposed distribution by such Holder of such
Registrable Securities required to make any information previously furnished to
the Company by such Holder not materially misleading.
Each Holder agrees that, upon receipt of any notice from the
Company or the Trust of the happening of any event of the kind described in
Section 3(e)(v) hereof, such Holder will forthwith discontinue disposition of
Registrable Securities pursuant to a Shelf Registration until such Holder's
receipt of the copies of the supplemented or amended Prospectus contemplated by
15
Section 3(i) hereof, and, if so directed by the Company, such Holder will
deliver to the Company (at its expense) all copies in its possession, other than
permanent file copies then in such Holder's possession, of the Prospectus
covering such Registrable Securities current at the time of receipt of such
notice. If the Company shall give any such notice to suspend the disposition of
Registrable Securities pursuant to a Shelf Registration, the Company and the
Trust shall extend the period during which the Registration Statement shall be
maintained effective pursuant to this Agreement by the number of days during the
period from and including the date of the giving of such notice to and including
the date when the Holders shall have received copies of the supplemented or
amended Prospectus necessary to resume such dispositions. There may not be more
than two such suspensions during any 365 day period and any such suspensions may
not exceed 30 days for each suspension.
The Holders of Registrable Securities covered by a Shelf
Registration who desire to do so may sell such Registrable Securities in an
Underwritten Offering; PROVIDED that the Company and the Trust shall be required
to use their reasonable best efforts to effect an underwritten offering only
upon the request of Holders of at least 25% of the Registrable Securities
outstanding at the time such request is delivered to the Company. In any such
Underwritten Offering, the investment banker or investment bankers and manager
or managers (the "UNDERWRITERS") that will administer the offering will be
selected by the Majority Holders of the Registrable Securities included in such
offering, subject to approval by the Company, which approval will not be
unreasonably withheld.
4. HOLDER'S OBLIGATIONS.
Each Holder, severally and not jointly, agrees, by acquisition of
the Registrable Securities, that such Holder of Registrable Securities shall not
be entitled to sell any of such Registrable Securities pursuant to a
Registration Statement or to receive a Prospectus relating thereto, unless such
Holder has furnished Viatel and the Trust with the notice required pursuant to
Section 2(d) hereof (including the information required to accompany such
notice) and, promptly after the request by Viatel and the Trust, such other
information regarding such Holder and the distribution of such Registrable
Securities as Viatel and the Trust may from time to time reasonably request.
Viatel and the Trust may exclude from such registration the Registrable
Securities of any Holder who does not furnish such information provided above
for so long as such information is not so furnished. Each Holder of Registrable
Securities as to which any Registration Statement is being effected, severally
and not jointly, agrees promptly to furnish to Viatel and the Trust all
information required to be disclosed in order to make the information previously
furnished to Viatel and the Trust by such Holder not misleading. Any sale of any
Registrable Securities by any Holder shall constitute a representation and
warranty by such Holder, severally and not jointly, that the information
relating to such Holder and its plan of distribution is as set forth in the
Prospectus delivered by such Holder in connection with such disposition, that
16
such Prospectus does not as of the time of such sale contain any untrue
statement of a material fact relating to such Holder or its plan of distribution
and that such Prospectus does not as of the time of such sale omit to state any
material fact relating to such Holder or its plan of distribution necessary to
make the statements in such Prospectus, in the light of the circumstances under
which they were made, not misleading.
5. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless the
Placement Agents, each Holder and each person, if any, who controls the
Placement Agents or any Holder within the meaning of either Section 15 of the
1933 Act or Section 20 of the 1934 Act, or is under common control with, or is
controlled by, the Placement Agents or any Holder, from and against all losses,
claims, damages and liabilities (including, without limitation, any legal or
other expenses reasonably incurred by the Placement Agents, any Holder or any
such controlling or affiliated person in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement (or any amendment thereto) pursuant to which Registrable Securities
were registered under the 1933 Act, including all documents incorporated therein
by reference, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or caused by any untrue statement or alleged untrue
statement of a material fact contained in any Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any such untrue statement
or omission or alleged untrue statement or omission based upon information
relating to the Placement Agents or any Holder furnished to the Company in
writing by the Placement Agents or any selling Holder expressly for use therein;
PROVIDED that the foregoing indemnity agreement shall not inure to the benefit
of any Holder or any Person controlling such Holder, with respect to any sale or
disposition of Registrable Securities by such Holder in violation of the
penultimate paragraph of Section 3 of this Agreement. In connection with any
Underwritten Offering permitted by Section 3, the Company will also indemnify
the Underwriters, if any, selling brokers, dealers and similar securities
industry professionals participating in the distribution, their officers and
directors and each Person who controls such Persons (within the meaning of
either Section 15 of the 1933 Act or Section 20 of the 0000 Xxx) to the same
extent as provided above with respect to the indemnification of the Holders, if
requested in connection with any Registration Statement.
The foregoing notwithstanding, the Company shall not be liable to
the extent that such losses, claims, damages or liabilities arise out of or are
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Prospectus that is a preliminary prospectus if (i)
such indemnified person failed to send or deliver a copy of the Prospectus with
or prior to the delivery of written confirmation of the xxxx of Registrable
17
Securities giving rise to such losses, claims, damages or liabilities and (ii)
the Prospectus would have corrected such untrue statement or omission.
(b) Each Holder agrees, severally and not jointly, to indemnify
and hold harmless the Company, the Placement Agents and the other selling
Holders, and each of their respective directors, officers who sign the
Registration Statement and each Person, if any, who controls the Company, the
Placement Agents and any other selling Holder within the meaning of either
Section 15 of the 1933 Act or Section 20 of the 1934 Act to the same extent as
the foregoing indemnity from the Company to the Placement Agents and the
Holders, but only with reference to information relating to such Holder
furnished to the Company in writing by such Holder expressly for use in any
Registration Statement (or any amendment thereto) or any Prospectus (or any
amendment or supplement thereto).
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any Person in respect of which
indemnity may be sought pursuant to either paragraph (a) or paragraph (b) above,
such person (the "INDEMNIFIED PARTY") shall promptly notify the Person against
whom such indemnity may be sought (the "INDEMNIFYING PARTY") in writing (but the
failure to so notify an indemnifying party shall not relieve it from any
liability which it may have under this Section, except to the extent that it has
been prejudiced in any material respect by such failure, or from any liability
it may otherwise have) and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for (A) the reasonable fees and expenses of more than one separate
firm (in addition to any local counsel) for the Placement Agents and all
Persons, if any, who control the Placement Agents within the meaning of either
Section 15 of the 1933 Act or Xxxxxxx 00 xx xxx 0000 Xxx, (X) the reasonable
fees and expenses of more than one separate firm (in addition to any local
counsel) for the Trust and the Company, its directors, its officers who sign the
Registration Statement and each Person, if any, who controls the Company or the
Trust within the meaning of either such Section and (C) the reasonable fees and
expenses of more than one separate firm (in addition to any local counsel) for
all Holders and all Persons, if any, who control any Holders within the meaning
of either such Section, and that all such fees and expenses shall be reimbursed
as they are incurred. In cases involving the Placement Agents and Persons
18
controlling the Placement Agents, the firm shall be designated in writing by
Xxxxxx Xxxxxxx & Co. Incorporated. In the case of any such separate firm for the
Company and the Trust and any such control persons of the Company or the Trust,
such firm shall be designated in writing by the Company. In such case involving
the Holders and such Persons who control Holders, such firm shall be designated
in writing by the Majority Holders. In all other cases, such firm shall be
designated by the Company. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent but, if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel as contemplated by the second and third sentences of this paragraph,
the indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (x) such settlement is
entered into more than 60 days after receipt by such indemnifying party of the
aforesaid request and (y) such indemnifying party shall not have reimbursed the
indemnified party for such fees and expenses of counsel in accordance with such
request prior to the date of such settlement. No indemnifying party shall,
without the prior written consent of the indemnified party (which consent may
not be unreasonably withheld), effect any settlement of any pending or
threatened proceeding in respect of which such indemnified party is or could
have been a party and indemnity could have been sought hereunder (whether or not
any indemnified party is an actual or potential party to such proceeding) by
such indemnified party, unless such settlement includes an unconditional release
of such indemnified party from all liability on claims that are the subject
matter of such proceeding.
(d) To the extent the indemnification provided for in paragraph
(a) or paragraph (b) of this Section 5 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities in such proportion as is appropriate to reflect the
relative fault of the indemnifying party or parties, on the one hand, and of the
indemnified party or parties, on the other hand, in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative fault of the Company, the Trust and the Holders shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company, the Trust or by the Holders and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Holders' respective
obligations to contribute pursuant to this Section 5(d) are several in
proportion to the respective principal amount of Registrable Securities of such
Holder that were registered pursuant to a Registration Statement.
19
(e) The Company, the Trust and each Holder agree that it would
not be just or equitable if contribution pursuant to this Section 5 were
determined by PRO RATA allocation or by any other method of allocation that does
not take account of the equitable considerations referred to in paragraph (d)
above. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages and liabilities referred to in paragraph (d) above shall
be deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 5, no Holder shall be required to indemnify or
contribute any amount in excess of the amount by which the total price at which
Registrable Securities were sold by such Holder exceeds the amount of any
damages that such Holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the 0000 Xxx) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The remedies provided for in this
Section 5 are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law or in equity.
The indemnity and contribution provisions contained in this
Section 5 shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of the Placement Agents, any Holder or any Person controlling the Placement
Agents or any Holder, or by or on behalf of the Trust, the Company, their
officers or directors or any Person controlling the Trust or the Company and
(iii) any sale of Registrable Securities by any Holder.
6. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. Neither the Company nor the Trust
has entered into, and on or after the date of this Agreement will enter into,
any agreement which is inconsistent with the rights granted to the Holders of
Registrable Securities in this Agreement or otherwise conflicts with the
provisions hereof. The rights granted to the Holders hereunder do not in any way
conflict with and are not inconsistent with the rights granted to the holders of
the Company's or the Trust's other issued and outstanding securities under any
such agreements.
(b) AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company and the Trust have obtained the written
consent of Holders of at least a majority of the then outstanding Underlying
Common Stock constituting Registrable Securities (with Holders of Convertible
Preferred Securities deemed to be the Holders, for purposes of this Section, of
the number of outstanding shares of Underlying Common Stock into which such
Convertible Preferred Securities are convertible or exchangeable or, in the
event that the Convertible Debentures have been distributed to Holders upon
liquidation of the Trust, with the Holders of Convertible Debentures deemed to
20
be the Holders, for purposes of this Section, the number of outstanding shares
of Underlying Common Stock into which such Convertible Debentures are
convertible); PROVIDED, HOWEVER, that no amendment, modification, supplement,
waiver or consent to any departure from the provisions of Section 5 hereof shall
be effective as against any Holder of Registrable Securities unless consented to
in writing by such Holder.
(c) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, registered
first-class mail, telex, telecopier or any courier guaranteeing overnight
delivery (i) if to a Holder, at the most current address given by such Holder to
the Company by means of a notice given in accordance with the provisions of this
Section 6(c), which address initially is, with respect to the Placement Agents,
the address set forth in the Purchase Agreement; and (ii) if to the Company or
the Trust, initially at the Company's or the Trust's address, respectively set
forth in the Placement Agreement and thereafter at such other address, notice of
which is given in accordance with the provisions of this Section 6(c).
All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five
business days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt is acknowledged, if telecopied; and
on the next business day, if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands or other communications shall
be concurrently delivered by the person giving the same to the Trustee, at the
address specified in the Indenture.
(d) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of each
of the parties, including, without limitation and without the need for an
express assignment, subsequent Holders; PROVIDED that nothing herein shall be
deemed to permit any assignment, transfer or other disposition of Registrable
Securities in violation of the terms of the Purchase Agreement. If any
transferee of any Holder shall acquire Registrable Securities, in any manner,
whether by operation of law or otherwise, such Registrable Securities shall be
held subject to all of the terms of this Agreement, and by taking and holding
such Registrable Securities such person shall be conclusively deemed to have
agreed to be bound by and to perform all of the terms and provisions of this
Agreement and such person shall be entitled to receive the benefits hereof. The
Placement Agents (in their capacity as the Placement Agents) shall have no
liability or obligation to the Company or the Trust with respect to any failure
by a Holder to comply with, or any breach by any Holder of, any of the
obligations of such Holder under this Agreement.
21
(e) PURCHASES AND SALES OF REGISTRABLE SECURITIES. Neither the
Company nor the Trust shall, and shall use its best efforts to cause its
affiliates (as defined in Rule 405 under the 0000 Xxx) not to, purchase and then
resell or otherwise transfer any Registrable Securities.
(f) THIRD PARTY BENEFICIARY. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company and the
Trust, on the one hand, and the Placement Agents, on the other hand, and shall
have the right to enforce such agreements directly to the extent it deems such
enforcement necessary or advisable to protect its rights or the rights of
Holders hereunder.
(g) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) HEADINGS. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(i) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York.
(j) SEVERABILITY. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby
(k) JOINT AND SEVERAL OBLIGATIONS. Anything herein to the
contrary notwithstanding, the representations, warranties, covenants and
agreements of Viatel and the Trust contained in this Agreement are joint and
several, other than the obligations under Section 5 hereof.
[THE REST OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
22
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first written above.
VIATEL, INC.
By: /s/ Xxxxx X. Xxxx
_________________________________
Name: Xxxxx X. Xxxx
Title: Chief Financial Officer
VIATEL FINANCING TRUST I
By: VIATEL, INC., as Sponsor
By: /s/ Xxxxx X. Xxxx
____________________________
Name: Xxxxx X. Xxxx
Title: Chief Financial Officer
Confirmed and accepted as of the date first above written:
XXXXXX XXXXXXX & CO. INCORPORATED
XXXXXXX XXXXX BARNEY INC.
BANC OF AMERICA SECURITIES LLC
Acting severally on behalf of themselves and the several
Placement Agents
By: Xxxxxx Xxxxxxx & Co. Incorporated
By: /s/ Xxxxx X. Xxxxx
______________________________
Name: Xxxxx X. Xxxxx
Title: Principal
