EXHIBIT 5
[Execution Copy]
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WARRANT AGREEMENT
BETWEEN
VERSATEL TELECOM INTERNATIONAL N.V.
AND
THE BANK OF NEW YORK
AS U.S. WARRANT AGENT
___________________________________________
DATED AS OF OCTOBER 9, 2002
___________________________________________
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WARRANT AGREEMENT
This Warrant Agreement (this "Warrant Agreement") dated as of October
9, 2002, between Versatel Telecom International N.V., a company incorporated
under the laws of The Netherlands (the "Company"), and The Bank of New York, a
New York banking corporation (the "U.S. Warrant Agent").
W I T N E S S E T H
WHEREAS, the Company will grant to holders as of October 8, 2002 (the
"Record Date") of its ordinary shares, par value Euro 0.02 per share ("Shares"),
one warrant (collectively, the "Share Warrants") for each Share held on the
Record Date; each 4.8 Share Warrants will entitle the holder thereof to purchase
one additional Share at a price of Euro 1.5 per Share; the Share Warrants will
expire on October 8, 2004;
WHEREAS, the Company wishes to grant to holders as of the Record Date
of its American Depositary Shares ("ADSs") issued under the Amended and Restated
Deposit Agreement dated as of May 15, 2002 (the "Deposit Agreement") among the
Company, The Bank of New York, as depositary (the "Depositary"), and all Owners
and Beneficial Owners from time to time of American Depositary Receipts issued
thereunder one warrant (collectively, the "ADS Warrants") corresponding to the
Share Warrants granted in respect of the number of Shares represented by each
ADS; each 4.8 ADS Warrants will entitle the holder thereof to purchase one
additional ADS; the ADS Warrants will expire on October 4, 2004, unless earlier
terminated; and
WHEREAS, the Company wishes the U.S. Warrant Agent to act on behalf of
the Company, and the U.S. Warrant Agent is willing so to act, in connection with
the issuance, transfer, exchange and exercise or termination of ADS Warrants;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby agree as follows:
SECTION 1. CERTAIN DEFINITIONS.
For purposes of this Warrant Agreement, the following terms
have the meanings indicated:
(a) "Business Day" shall mean any day other than a Saturday,
Sunday or a day on which banking institutions in New York are authorized
or obligated by law or executive order to close.
(b) "Close of Business" on any given date shall mean 5:00 P.M.,
New York City time, on such date; provided, however, that if such date
is not a
Business Day it shall mean 5:00 P.M., New York City time, on the next
succeeding Business Day.
(c) "Person" shall mean an individual, corporation, association,
partnership, joint venture, trust, limited liability company,
unincorporated organization, government or political subdivision thereof
or governmental agency or other entity.
(d) "Trading Day" shall mean, with respect to any class of
securities, a day on which the principal foreign or national securities
exchange on which such securities are listed or admitted to trading is
open for the transaction of business or, if such securities are not
listed or admitted to trading on any foreign or national securities
exchange, any Business Day.
(e) Terms used but not defined in this Warrant Agreement that are
defined in the Deposit Agreement have the meanings assigned to them in
the Deposit Agreement.
SECTION 2. APPOINTMENT OF U.S. WARRANT AGENT.
The Company hereby appoints the U.S. Warrant Agent to act as
agent of the Company in accordance with the terms and conditions hereof, and the
U.S. Warrant Agent hereby accepts such appointment. The Company may, with the
prior written consent of the U.S. Warrant Agent (it being understood that the
U.S. Warrant Agent must act in good faith whenever it withholds such consent),
from time to time appoint such co-U.S. Warrant Agents as it may, in its sole
discretion, deem necessary or desirable upon ten days' prior written notice to
the U.S. Warrant Agent. The U.S. Warrant Agent shall have no duty to supervise,
and shall in no event be liable for, the acts or omissions of any such co-U.S.
Warrant Agent.
SECTION 3. FORM OF WARRANT CERTIFICATES.
The certificates evidencing the ADS Warrants (the "Warrant
Certificates") (together with the form of election to purchase ADSs and the form
of assignment to be printed on the reverse thereof) shall be in registered form
only and shall be substantially in the form of Exhibit A hereto and may have
such marks of identification or designation and such legends, summaries or
endorsements printed thereon as the Company may deem appropriate and as are not
inconsistent with the provisions of this Warrant Agreement or as may be required
to comply with any law or with any rule or regulation made pursuant thereto, or
to conform to usage. The Warrant Certificates shall be in a machine readable
format and in a form reasonably satisfactory to the U.S. Warrant Agent. Subject
to the provisions of Section 21 hereof, each Warrant Certificate, shall be dated
the date of its issuance, and on its face shall specify the number of ADS
Warrants evidenced by such Warrant Certificate. As specified in such Warrant
Certificate, for every 4.8 ADS Warrants the holder thereof will be entitled to
purchase one ADS at an initial exercise
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price equal to the U.S. dollar cost to the U.S. Warrant Agent of Euro 1.5 times
the number of Shares at the time represented by one ADS (the "Exercise Price"),
but the Exercise Price and the number of ADSs or other securities purchasable
upon exercise of the ADS Warrants may be subject to change as provided herein.
SECTION 4. EXECUTION, COUNTERSIGNATURE AND REGISTRATION.
The Warrant Certificates shall be executed on behalf of the
Company by any authorized officer of the Company, which shall be an officer
acting in one of the capacities set forth in Exhibit B hereto (an "Authorized
Officer"), which need not be the same authorized signatory for all of the
Warrant Certificates, either manually or by facsimile signature. The Warrant
Certificates shall be countersigned by the U.S. Warrant Agent, either manually
or by facsimile signature, which need not be the same signatory for all of the
Warrant Certificates, and no Warrant Certificate shall be valid for any purpose
unless so countersigned.
The U.S. Warrant Agent shall, upon written instructions of an
Authorized Officer, initially countersign and deliver Warrant Certificates for
all ADS Warrants issuable in respect of the Shares deposited under the Deposit
Agreement as of the Record Date, and thereafter shall countersign and deliver
Warrant Certificates as otherwise provided in this Warrant Agreement.
In case any Authorized Officer of the Company that signed any
of the Warrant Certificates ceases to be an Authorized Officer of the Company
before countersignature by the U.S. Warrant Agent and issuance and delivery by
the Company, such Warrant Certificates, nevertheless, may be countersigned by
the U.S. Warrant Agent, issued and delivered with the same force and effect as
though the person who signed such Warrant Certificate had not ceased to be such
officer of the Company; and any Warrant Certificate may be signed on behalf of
the Company by any person who, at the actual date of the execution of such
Warrant Certificate, shall be an Authorized Officer of the Company authorized to
sign such Warrant Certificate, although at the date of the execution of this
Warrant Agreement any such person was not such an Authorized Officer.
The U.S. Warrant Agent will keep or cause to be kept, at one
of its offices in New York City, books for registration and transfer of the
Warrant Certificates issued hereunder. Such books shall show the names and
addresses of the respective holders of the Warrant Certificates, the number of
ADS Warrants evidenced on its face by each of the Warrant Certificates and the
date of each of the Warrant Certificates.
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SECTION 5. TRANSFER, SPLIT UP, COMBINATION AND EXCHANGE OF
WARRANT CERTIFICATES; MUTILATED, DESTROYED, LOST OR
STOLEN WARRANT CERTIFICATES.
Subject to the provisions of Section 13 hereof, at any time
after the Close of Business on the date hereof, and at or prior to the Close of
Business on the Expiration Date (as defined below), any Warrant Certificate or
Warrant Certificates may be transferred, split up, combined or exchanged for
another Warrant Certificate or Warrant Certificates entitling the registered
holder to purchase a like number of ADSs as the Warrant Certificate or Warrant
Certificates surrendered then entitled such holder to purchase. Any registered
holder desiring to transfer, split up, combine or exchange any Warrant
Certificate shall make such request in writing delivered to the U.S. Warrant
Agent, and shall surrender to the U.S. Warrant Agent the Warrant Certificate or
Warrant Certificates to be transferred, split up, combined or exchanged and in
the case of transfer, the holder shall provide a signature guarantee. Thereupon,
the U.S. Warrant Agent shall countersign and deliver to the person entitled
thereto a Warrant Certificate or Warrant Certificates, as the case may be, as so
requested. The Company and the U.S. Warrant Agent may require payment, by the
holder of Warrants requesting a transfer, split-up, combination or exchange of a
Warrant Certificate, of a sum sufficient to cover any tax or governmental charge
that may be imposed in connection with such transfer, split up, combination or
exchange of Warrant Certificates, together with reimbursement to the Company and
the U.S. Warrant Agent of all reasonable expenses incidental thereto.
Upon receipt by the Company and the U.S. Warrant Agent of
evidence reasonably satisfactory to them of the loss, theft, destruction or
mutilation of a Warrant Certificate, and, in case of loss, theft or destruction,
of indemnity or security in customary form and amount, and reimbursement to the
Company and the U.S. Warrant Agent of all reasonable expenses incidental
thereto, and upon surrender to the U.S. Warrant Agent and cancellation of the
Warrant Certificate if mutilated, the Company will make and deliver, or will
cause to be made and delivered, a new Warrant Certificate of like tenor to the
registered holder in lieu of the Warrant Certificate so lost, stolen, destroyed
or mutilated.
SECTION 6. EXERCISE OF ADS WARRANTS; DEPOSIT AMOUNT; EXPIRATION
DATE OF ADS WARRANTS.
(a) Subject to Section 6(c) below, the registered holder of
any Warrant Certificate may exercise the ADS Warrants evidenced thereby
only in units of 4.8 ADS Warrants or any integral multiple thereof upon
surrender of the Warrant Certificate, with the form of election to
purchase on the reverse side thereof duly executed, to the U.S. Warrant
Agent at the Corporate Trust Office of the U.S. Warrant Agent set forth
in Section 24 hereof, along with a signature guarantee in the case of a
transfer, and such other and further documentation as the U.S. Warrant
Agent may reasonably request, together with payment of the Deposit
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Amount (as defined below) for each ADS for which the ADS Warrants are
exercised, at any time prior to the Close of Business on October 4,
2004 (the "Expiration Date"). ADS Warrants not exercised prior to the
Close of Business on the Expiration Date shall become void and of no
value.
(b) The Deposit Amount for each ADS to be issued upon exercise
of ADS Warrants shall be the dollar equivalent of Euro 1.5 (subject to
adjustment of the Exercise Price, if any) times the number of Shares to
be represented by each ADS (at the date of this Warrant Agreement, each
ADS represents 12 Shares) based on the exchange rate as published in the
most recent print edition of The Wall Street Journal plus seven percent
of that U.S. dollar amount (to cover currency rate fluctuations
occurring between the date of exercise and the date on which the U.S.
Warrant Agent purchases Euro for U.S. dollars, the expenses of the U.S.
Warrant Agent, the fee payable to the Depositary in respect of the
execution and delivery of Receipts and any taxes or governmental
charges). The Deposit Amount shall be payable in lawful money of the
United States of America.
(c) Upon receipt of a Warrant Certificate, with the form of
election to purchase duly executed, accompanied by payment of the
Deposit Amount for the ADSs to be purchased, and an amount equal to any
applicable tax or governmental charge referred to in Section 8, by
certified check or bank draft payable in lawful money of the United
States of America to the order of the U.S. Warrant Agent for the
Company's account, the U.S. Warrant Agent shall thereupon promptly
notify the Company in writing of such exercise.
(d) Upon exercise of any ADS Warrants in accordance with the
foregoing provisions, the U.S. Warrant Agent, as agent for the holder,
(i) shall pay to the Depositary the fee required under the Deposit
Agreement for execution and delivery of Receipts evidencing the New ADSs
and any applicable expenses of the Depositary and (ii) shall purchase,
in any manner and on any terms it considers reasonable, an amount of
euros equal to the Exercise Price times the number of Shares to be
represented by new ADSs for which the holders subscribed, (iii) shall
pay the Exercise Price for the number of Shares to be represented by new
ADSs to the Depositary and (iv) shall request the Depositary to exercise
the number of Share Warrants corresponding to the ADS Warrants that were
exercised and, upon deposit by the Company of the corresponding Shares,
to deliver Receipts evidencing ADSs representing those Share in
accordance with the instructions received by the U.S. Warrant Agent from
the exercising holder. If the Deposit Amount paid by the holder exceeds
the amount required to purchase the euro Exercise Price and to pay the
Depositary's fees and expenses, the expenses of the currency conversion
and any taxes or governmental charges, the U.S. Warrant Agent shall, at
the time the Depositary delivers the new ADSs, remit the excess in U.S.
dollars (without interest) to the holder. If the Deposit
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Amount paid by the holder is less than the amount required to purchase
the euro Exercise Price and to pay the Depositary's fees and expenses,
the expenses of the currency conversion and any taxes or governmental
charges, the U.S. Warrant Agent shall pay the amount of such deficiency
on behalf of such holder. The holder will then be required to pay, upon
notice by the U.S. Warrant Agent to such holder, the amount of such
deficiency promptly (including interest and expenses) to the U.S.
Warrant Agent, and the U.S. Warrant Agent need not instruct the
Depositary to deliver any new ADSs to the holder prior to the receipt by
the U.S. Warrant Agent of such payment. If payment of the amount of any
deficiency is not received from such holder by the U.S. Warrant Agent by
the fifth Business Day after the U.S. Warrant Agent gives notice of such
deficiency, the U.S. Warrant Agent may sell the new ADS subscribed for
by such holder at a public or private sale, at such place or places and
upon such terms as it may deem proper, and the U.S. Warrant Agent may
allocate the proceeds of such sales in an amount sufficient to cover
such deficiency (including interest and expenses). In such event, the
U.S. Warrant Agent will then send promptly any remaining new ADSs to
such holder together with a check in the amount of excess proceeds, if
any, from such sale; provided, however, that, if the amount of such
excess proceeds realized upon the sale of such subscribing holder's ADSs
is less than $5.00, such excess proceeds need not be distributed. The
Company shall indemnify the U.S. Warrant Agent, with interest, for any
deficiency of any Deposit Amount, including fees and expenses.
(e) Upon exercise of the Share Warrants and receipt of the
Exercise Price, the Company shall (i) issue (or cause to be issued) the
requisite number of Shares issuable upon such exercise of such Share
Warrants (subject to clause (g) below) and (ii) cause such Shares to be
deposited with the Custodian in accordance with the terms of the Deposit
Agreement. The Company will only be obligated to issue new Shares once a
month in respect of all Share Warrants exercised during such month.
(f) The U.S. Warrant Agent is authorized and directed to
accept instructions to exercise ADS Warrants and to take delivery of
such ADS Warrants through any book-entry system in which the ADS
Warrants may be held.
(g) All payments of the Exercise Price received upon exercise
of ADS Warrants shall be promptly delivered to the Company (or any agent
appointed by the Company for such purpose) by the U.S. Warrant Agent as
reasonably instructed in writing by the Company. In case the registered
holder of any Warrant Certificate shall exercise less than all ADS
Warrants evidenced thereby, subject to Section 6(a) above, a new Warrant
Certificate evidencing ADS Warrants equivalent to the ADS Warrants
remaining unexercised shall be issued by the U.S. Warrant Agent to the
registered holder of such Warrant Certificate or to his duly authorized
assigns, subject to the provisions of Section 13 hereof.
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(h) If an ADS Warrant is exercised and Shares have been issued
by the Company upon such exercise in any year prior to the payment by
the Company of its dividend for the immediately preceding fiscal year,
the Shares issued by the Company upon such exercise shall be entitled to
the payment of such dividend; provided that the holder of ADSs is a
holder of record on the record date fixed pursuant to Section 4.06 of
the Deposit Agreement.
SECTION 7. CANCELLATION AND DESTRUCTION OF WARRANT CERTIFICATES.
All Warrant Certificates surrendered for the purpose of
exercise, transfer, split up, combination or exchange or upon termination of the
ADS Warrants shall, if surrendered to the Company or to any of its agents, be
delivered to the U.S. Warrant Agent for cancellation or in canceled form, or, if
surrendered to the U.S. Warrant Agent, shall be canceled by it, and no Warrant
Certificates shall be issued in lieu thereof except as expressly permitted by
any of the provisions of this Warrant Agreement. The Company shall deliver to
the U.S. Warrant Agent for cancellation and retirement, and the U.S. Warrant
Agent shall so cancel and retire, any other Warrant Certificate purchased or
acquired by the Company otherwise than upon the exercise thereof. Upon the
Company's written request, the U.S. Warrant Agent shall deliver all canceled
Warrant Certificates to the Company.
SECTION 8. RESERVATION AND AVAILABILITY OF SHARES AND ADSS.
The Company covenants and agrees that it will issue Shares
promptly following exercise of Share Warrants. However, the Company will only be
obligated to issue new Shares once a month in respect of all Share Warrants
exercised during such month. The Company further covenants that the offer and
sale of the Shares is exempt from the registration requirements of the
Securities Act of 1933 pursuant to Section 1145 of Title 11 of the United States
Code.
The U.S. Warrant Agent may assume that any ADS Warrant
exercised is permitted to be exercised under applicable law and shall have no
liability for acting in reliance upon such assumption.
The Company covenants and agrees that it will take all such
actions as may be necessary to insure that all ADSs delivered upon exercise of
ADS Warrants and all of the Shares represented thereby shall, at the time of
delivery of the certificates for such ADSs, be duly authorized, validly issued,
fully paid and nonassessable.
The Company further covenants and agrees that it will pay when
due and payable any and all recording, transfer and similar taxes and charges
which may be payable in respect of the original issuance or delivery of the
Warrant Certificates or certificates evidencing ADSs upon exercise of the
Warrant Certificate or other securities or other property issuable hereunder.
The Company shall not, however, be required (i) to pay any tax or governmental
charge which may be payable in respect of any transfer
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involved in (a) the transfer or delivery of Warrant Certificates or (b) the
issuance or delivery of certificates for ADSs in a name other than that of the
registered holder of a Warrant Certificate surrendered for exercise or (ii) to
issue or deliver any certificate for ADSs upon the exercise of any ADS Warrants
until any such tax or governmental charge shall have been paid (any such tax or
governmental charge being payable by the holder of such Warrant Certificate at
the time of surrender) or until it has been established to the Company's
satisfaction that no such tax or governmental charge is due. The U.S. Warrant
Agent shall not be liable for any recording, transfer and similar taxes and
charges.
SECTION 9. RESERVED.
SECTION 10. ADJUSTMENT OF EXERCISE PRICE, NUMBER OF ADSS OR NUMBER
OF SHARES.
Each ADS Warrant represents rights with respect to 12 Share
Warrants. Accordingly:
(a) If the Company makes any adjustment to the exercise price
for Share Warrants or any other change in the rights of holders of Share
Warrants, the Company and the U.S. Warrant Agent shall endeavor, to the
extent lawful and practicable, to make corresponding changes in the
rights of holders of ADS Warrants.
(b) If the number of the Shares represented by each ADS
changes, the number of ADSs for which each ADS Warrant may be exercised
will be adjusted in inverse proportion to the change in that number of
Shares.
(c) All ADS Warrants originally issued by the Company
subsequent to any adjustment made to the Exercise Price hereunder shall
evidence the right to purchase, at the adjusted Exercise Price, the
number of ADSs purchasable from time to time hereunder upon exercise of
the ADS Warrants, all subject to further adjustment as provided herein.
(d) Irrespective of any adjustment or change in the Exercise
Price or the number of ADSs issuable upon the exercise of the ADS
Warrants, the Warrant Certificates theretofore and thereafter issued may
continue to express the Exercise Price per ADS and the number of ADSs
which were expressed upon the initial Warrant Certificates issued
hereunder.
(e) The Company agrees that it will not, by amendment of its
articles of association or similar document or through reorganization,
consolidation, merger, dissolution or sale of assets, or by any other
voluntary act, avoid or seek
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to avoid the observance or performance of any of the covenants,
stipulations or conditions to be observed or performed hereunder by
the Company.
(f) In any case in which this Section 10 shall require that an
adjustment in the Exercise Price be made effective as of a record date
for a specified event, the Company may elect to defer until the
occurrence of such event the issuance to the holder of any ADS Warrant
exercised after such record date the ADSs or other capital stock of the
Company issuable upon such exercise over and above the amount of ADSs or
other capital stock of the Company, if any, issuable upon such exercise
on the basis of the Exercise Price in effect prior to such adjustment;
provided, however, that the Company shall deliver to such holder a due
xxxx or other appropriate instrument evidencing such holder's right to
receive such additional ADSs or other capital stock of the Company upon
the occurrence of the event requiring such adjustment.
(g) Anything in this Section 10 to the contrary
notwithstanding, the Company shall be entitled to make such reductions
in the Exercise Price, in addition to those adjustments expressly
required by this Section 10, as and to the extent that it in its sole
discretion shall determine to be advisable in order that any event
treated for United States federal income tax purposes as a distribution
of stock or stock rights shall not be taxable to the recipients.
(h) If any event occurs as to which the foregoing provisions
of this Section 10 are not strictly applicable or, if strictly
applicable, would not, in the good faith judgment of the Board of
Directors of the Company, fairly and adequately protect the purchase
rights of the ADS Warrants in accordance with the essential intent and
principles of such provisions, then such Board shall make such
adjustments in the application of such provisions, in accordance with
such essential intent and principles, as shall be reasonably necessary,
in the good faith opinion of such Board, to protect such purchase rights
as aforesaid, but in no event shall any such adjustment have the effect
of increasing the Exercise Price or decreasing the number of ADSs
issuable upon exercise of any ADS Warrant.
SECTION 11. CERTIFICATION OF ADJUSTED EXERCISE PRICE OR NUMBER OF
ADSS.
Whenever the Exercise Price or the number of ADSs issuable
upon the exercise of each ADS Warrant is adjusted as provided in Section 10 or
12, the Company shall (a) promptly prepare a certificate setting forth the
Exercise Price as so adjusted and/or the number of ADSs issuable upon exercise
of each ADS Warrant as so adjusted, and a brief statement of the facts
accounting for such adjustment, (b) promptly file with the U.S. Warrant Agent
and with each transfer agent for the ADSs a copy of such certificate and (c)
mail, or cause to be mailed, a brief summary thereof to each holder of a Warrant
Certificate in accordance with Section 24.
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The U.S. Warrant Agent shall be fully protected in relying on
any such certificate and on any adjustment therein contained and shall not be
deemed to have knowledge of such adjustment unless and until it shall have
received such certificate.
SECTION 12. RECLASSIFICATION, CONSOLIDATION, MERGER, COMBINATION,
SALE OR CONVEYANCE.
In case any of the following shall occur while any ADS
Warrants are outstanding: (i) any consolidation, merger or combination of the
Company with or into another corporation as a result of which holders of Shares
shall be entitled to receive stock, securities or other property or assets
(including cash) with respect to or in exchange for such Shares, or (ii) any
sale or conveyance of all or substantially all of the property or assets of the
Company to any other entity as a result of which holders of Shares shall be
entitled to receive stock, securities or other property or assets (including
cash) with respect to or in exchange for such Shares, then the Company, or such
successor corporation or transferee, as the case may be, shall make appropriate
provision by amendment of this Warrant Agreement or by the successor corporation
or transferee executing with the U.S. Warrant Agent an agreement so that the
holders of the ADS Warrants then outstanding shall have the right at any time
thereafter, upon exercise of such ADS Warrants, to receive the kind and amount
of securities, cash and other property receivable upon such consolidation,
merger, combination, sale or conveyance as would be received by a holder of the
number of Shares represented by the ADSs issuable upon exercise of such ADS
Warrant immediately prior to such consolidation, combination, merger, sale or
conveyance (or depositary shares representing such property).
If the holders of the Shares may elect from choices the kind
or amount of securities, cash and other property receivable upon such
consolidation, merger, combination, sale or conveyance, then for the purpose of
this Section 12 the kind and amount of securities, cash and other property
receivable upon such consolidation, merger, combination, sale or conveyance
shall be deemed to be the choice specified by the holder of the ADS Warrant,
which specification shall be made by the holder of the ADS Warrant by the later
of (i) 10 Trading Days after the holder of the ADS Warrant is provided with a
final version of all information required by law or regulation to be furnished
to holders of the Shares concerning such choice, or if no such information is
required, 10 Trading Days after the Company notified the holder of the ADS
Warrant of all material facts concerning such specification and (ii) the last
time at which holders of Shares are permitted to make their specification known
to the Company. However, if the election referred to in the preceding sentence
is not being made available to holders of ADSs, then the Company, or its
successor or transferee, as the case may be, shall make appropriate provision by
amendment of this Warrant Agreement with respect to the rights of holders of ADS
Warrants with respect to that election. If the holder of the ADS Warrant fails
to make any specification, the holder's choice shall be deemed to be whatever
choice is made by a plurality of holders of Shares not affiliated with the
Company or any other party to the consolidation, merger, combination, sale or
conveyance.
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The Company shall mail, or cause to be mailed, by first-class
mail, postage prepaid, to each registered holder of a ADS Warrant, written
notice of the execution of any such amendment or agreement. Any new agreement
entered into by the successor corporation or transferee shall provide for
adjustments, which shall be as nearly equivalent as may be practicable to the
adjustments provided for in Section 10. The U.S. Warrant Agent shall be under no
responsibility to determine the correctness of any provisions contained in such
agreement relating either to the kind or amount of securities or other property
receivable upon exercise of ADS Warrants or with respect to the method employed
and provided therein for any adjustments and shall be entitled to rely upon the
provisions contained in any such agreement.
The above provisions of this Section 12 shall similarly apply
to successive consolidations, mergers, combinations, sales or conveyances.
SECTION 13. FRACTIONAL ADS WARRANTS AND FRACTIONAL ADSS.
(a) Neither the Company nor the U.S. Warrant Agent shall be
required to issue fractions of ADS Warrants or to distribute Warrant
Certificates which evidence fractional ADS Warrants. In lieu of such
fractional ADS Warrants, the Company shall pay to the persons to whom
Warrant Certificates representing such fractional ADS Warrants would
otherwise be issuable an amount in cash (without interest) equal to the
product of such fraction of a ADS Warrant multiplied by the Current
Market Price per whole ADS Warrant. For the purpose of any computation
under this Section 13(a), "Current Market Price" per ADS Warrant on any
date shall be the fair value per ADS Warrant as determined in good faith
by the Board of Directors of the Company, whose determination shall be
described in a statement filed with the U.S. Warrant Agent.
(b) Neither the Company nor the Depositary shall be required
to issue fractions of ADSs upon exercise of ADS Warrants or to
distribute ADS certificates which evidence fractional ADSs. In lieu of
fractional ADSs, the Company shall pay to the registered holders of
Warrant Certificates at the time such Warrant Certificates are exercised
as herein provided an amount in cash (without interest) equal to the
product of such fractional part of a ADS multiplied by the Current
Market Price per ADS. For the purpose of any computation under this
Section 13(b), "Current Market Price" per ADS on any date shall be
deemed to be the average of the daily Closing Prices per ADS for the 10
consecutive Trading Days immediately prior to such date. The Closing
Price per ADS for each day shall be the last sale price, regular way,
or, in case no such sale takes place on such day, the average closing
bid and asked prices, regular way, in either case as reported in the
principal consolidated transaction reporting system with respect to
securities listed on the principal national securities exchange on which
such securities are listed or admitted to trading or, if such securities
are not listed or admitted to trading on any national securities
exchange, the average of the high
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bid and low asked prices in the over the counter market, as reported by
NASDAQ. If on any such Trading Day or Days such securities are not
quoted by any such organization, such Trading Day or Days shall be
replaced for purposes of the foregoing calculation by the requisite
Trading Day or Days preceding the commencement of such 10 Trading Day
period on which such securities are so quoted. If the ADSs are not so
listed or traded, the "Current Market Price" per ADS shall be deemed to
be the fair value per ADS as determined in good faith by the Board of
Directors of the Company, whose determination shall be described in a
statement filed with the U.S. Warrant Agent, based on (a) the most
recently completed arm's-length transaction between the Company and a
Person other than an affiliate of the Company, the closing of which
occurred on such date or within the three-month period preceding such
date, or (b) if no such transaction shall have occurred on such date or
within such three-month period, the value of the security as determined
by an independent financial expert selected by such Board and reasonably
acceptable to the U.S. Warrant Agent.
(c) The holder of a ADS Warrant by the acceptance of the ADS
Warrant expressly waives his right to receive any fractional ADS Warrant
or any fractional ADS upon exercise of a ADS Warrant (but not to the
cash payment required to be made by the Company in lieu thereof in
accordance with this Section 13).
SECTION 14. RIGHT OF ACTION.
All rights of action in respect of this Warrant Agreement are
vested in the respective registered holders of the Warrant Certificates, and any
registered holder of any Warrant Certificate, without the consent of the U.S.
Warrant Agent or of the holder of any other Warrant Certificate, may, on such
holder's own behalf and for such holder's own benefit, enforce, and may
institute and maintain any suit, action or proceeding against the Company to
enforce, or otherwise act in respect of, such holder's right to exercise the ADS
Warrants evidenced by such Warrant Certificate in the manner provided in such
Warrant Certificate and in this Warrant Agreement.
SECTION 15. AGREEMENT OF WARRANT CERTIFICATE HOLDERS.
Every holder of a Warrant Certificate by accepting the same
consents and agrees with the Company and the U.S. Warrant Agent and with every
other holder of a Warrant Certificate that:
(a) the Warrant Certificates are transferable only on the
registry books of the U.S. Warrant Agent if surrendered at the
designated office of the U.S. Warrant Agent, duly endorsed or
accompanied by a proper instrument of transfer, along with a signature
guarantee and such other and further documentation as the U.S. Warrant
Agent may reasonably request; and
12
(b) the Company and the U.S. Warrant Agent may deem and treat
the person in whose name the Warrant Certificate is registered as the
absolute owner thereof and of the ADS Warrants evidenced thereby
(notwithstanding any notations of ownership or writing on the Warrant
Certificates made by anyone other than the Company or the U.S. Warrant
Agent) for all purposes whatsoever, and neither the Company nor the U.S.
Warrant Agent shall be affected by any notice to the contrary.
(c) notwithstanding anything in this Warrant Agreement to the
contrary, neither the Company nor the U.S. Warrant Agent shall have any
liability to any holder of a Warrant Certificate or other person as a
result of its inability to perform any of its obligations under this
Warrant Agreement by reason of any preliminary or permanent injunction
or other order, decree or ruling issued by a court of competent
jurisdiction or by a governmental, regulatory or administrative agency
or commission, or any statute, rule, regulation or executive order
promulgated or enacted by any governmental authority prohibiting or
otherwise restraining performance of such obligation; provided that the
Company must use its best efforts to have any such order, decree or
ruling lifted or otherwise overturned as soon as possible.
SECTION 16. WARRANT CERTIFICATE HOLDER NOT DEEMED A STOCKHOLDER.
No holder, as such, of any Warrant Certificate shall be
entitled to vote, receive dividends or distributions on, or be deemed for any
purpose the holder of, ADSs or Shares or any other securities of the Company
which may at any time be issuable on the exercise or conversion of the ADS
Warrants represented thereby, nor shall anything contained herein or in any
Warrant Certificate be construed to confer upon the holder of any Warrant
Certificate, as such, any of the rights of a stockholder of the Company or any
right to vote for the election of directors or upon any matter submitted to
stockholders at any meeting thereof, or to give or withhold consent to any
corporate action, or to receive notice of meetings or other actions affecting
stockholders (except as provided in Section 23), or to receive dividends or
distributions or subscription rights, or otherwise, until the ADS Warrant or ADS
Warrants evidenced by such Warrant Certificate shall have been exercised in
accordance with the provisions hereof.
SECTION 17. CONCERNING THE U.S. WARRANT AGENT.
(a) The Company shall pay to the U.S. Warrant Agent such
compensation for all services rendered by it hereunder and, from time to
time, on demand of the U.S. Warrant Agent, out-of-pocket expenses and
counsel fees and other disbursements incurred in the administration and
execution of this Warrant Agreement and the exercise and performance of
its duties hereunder, as shall be agreed in writing between the Company
and the U.S. Warrant Agent.
13
(b) The Company shall indemnify the U.S. Warrant Agent for,
and to hold it harmless against, any loss, liability or expense,
incurred without gross negligence, bad faith or willful misconduct on
the part of the U.S. Warrant Agent, for anything done or omitted by the
U.S. Warrant Agent in connection with the acceptance and administration
of this Warrant Agreement, including without limitation, the costs and
expenses of defending against any claim of liability in the premises,
including reasonable attorney fees and expenses.
(c) The U.S. Warrant Agent shall be protected and shall incur
no liability for or in respect of any action taken, suffered or omitted
by it in connection with its administration of this Warrant Agreement in
reliance upon any Warrant Certificate, instrument of assignment or
transfer, power of attorney, endorsement, affidavit, letter, notice,
instruction, direction, consent, certificate, statement, or other paper
or document, reasonably believed by it to be genuine and to be signed
and executed by the proper person or persons.
(d) The provisions of this Section 17 shall survive
termination of this Warrant Agreement or the resignation or removal of
the U.S. Warrant Agent under the terms hereof.
SECTION 18. MERGER OR CONSOLIDATION OR CHANGE OF NAME OF U.S.
WARRANT AGENT.
Any corporation into which the U.S. Warrant Agent or any
successor U.S. Warrant Agent may be merged or with which it may be consolidated,
or any corporation resulting from any merger or consolidation to which the U.S.
Warrant Agent or any successor U.S. Warrant Agent shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the U.S. Warrant Agent or any successor U.S. Warrant Agent, shall be the
successor to the U.S. Warrant Agent under this Warrant Agreement without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, provided that such corporation would be eligible for appointment
as a successor U.S. Warrant Agent under the provisions of Section 20. In case at
the time such successor U.S. Warrant Agent shall succeed to the agency created
by this Warrant Agreement any of the Warrant Certificates shall have been
countersigned but not delivered, any such successor U.S. Warrant Agent may adopt
the countersignature of the predecessor U.S. Warrant Agent and deliver such
Warrant Certificates so countersigned; and in case at that time any of the
Warrant Certificates shall not have been countersigned, any successor U.S.
Warrant Agent may countersign such Warrant Certificates either in the name of
the predecessor U.S. Warrant Agent or in the name of the successor U.S. Warrant
Agent; and in all such cases such Warrant Certificates shall have the full force
provided in the Warrant Certificates and in this Warrant Agreement.
In case at any time the name of the U.S. Warrant Agent shall
be changed and at such time any of the Warrant Certificates shall have been
countersigned but not delivered, the U.S. Warrant Agent may adopt the
countersignature under its prior name
14
and deliver Warrant Certificates so countersigned; and in case at that time any
of the Warrant Certificates shall not have been countersigned, the U.S. Warrant
Agent may countersign such Warrant Certificates either in its prior name or in
its changed name; and in all such cases such Warrant Certificates shall have the
full force provided in the Warrant Certificates and in this Warrant Agreement.
SECTION 19. DUTIES OF U.S. WARRANT AGENT.
The U.S. Warrant Agent undertakes the duties and obligations
expressly imposed by this Warrant Agreement (and no implied duties or
obligations shall be read into this Warrant Agreement against the U.S. Warrant
Agent) upon the following terms and conditions, by all of which the Company and
the holders of ADSs Warrants, by their acceptance thereof, shall be bound:
(a) The U.S. Warrant Agent may consult with legal counsel (who
may be legal counsel for the Company), and the opinion or advice of such
counsel shall be full and complete authorization and protection to the
U.S. Warrant Agent as to any action taken or omitted by it in good faith
and in accordance with the opinion or advice of such counsel.
(b) Whenever in the performance of its duties under this
Warrant Agreement the U.S. Warrant Agent shall deem it necessary or
desirable that any fact or matter be proved or established by the
Company prior to taking or suffering any action hereunder, such fact or
matter (unless other evidence in respect thereof be herein specifically
prescribed) may be deemed to be conclusively proved and established by a
certificate signed by any Authorized Officer of the Company and
delivered to the U.S. Warrant Agent; and such certificate shall be full
authorization and protection to the U.S. Warrant Agent for any action
taken or suffered in good faith by it under the provisions of this
Warrant Agreement in reliance upon such certificate.
(c) The U.S. Warrant Agent shall act hereunder solely as agent
for the Company, and its duties shall be determined solely by the
provisions of this Warrant Agreement. The U.S. Warrant Agent shall not
be liable for anything which it may do or refrain from doing in
connection with this Warrant Agreement except for its own gross
negligence or willful misconduct. The U.S. Warrant Agent shall not be
liable for any error of judgment made in good faith by it, unless it
shall be proved that the U.S. Warrant Agent was grossly negligent in
ascertaining the pertinent facts. Notwithstanding anything in this
Warrant Agreement to the contrary, in no event shall the U.S. Warrant
Agent be liable for special, indirect, punitive or consequential loss or
damage of any kind whatsoever (including but not limited to lost
profits), even if the U.S. Warrant Agent has been advised of the
likelihood of the loss or damage and regardless of the form of the
action.
15
(d) The U.S. Warrant Agent shall not be liable for or by
reason of any of the statements of fact or recitals contained in this
Warrant Agreement or in the Warrant Certificates (except its
countersignature thereof) or be required to verify the same, but all
such statements and recitals are and shall be deemed to have been made
by the Company only.
(e) The U.S. Warrant Agent shall not be under any
responsibility or liability in respect of the validity of this Warrant
Agreement or the execution and delivery hereof (except the due execution
hereof by the U.S. Warrant Agent) or in respect of the validity or
execution of any Warrant Certificate (except its countersignature
thereof); nor shall it be responsible or liable for any breach by the
Company of any covenant or condition contained in this Warrant Agreement
or in any Warrant Certificate; nor shall it be responsible or liable for
the adjustment of the Exercise Price or the making of any change in the
number of ADSs or Shares required under the provisions of Sections 10 or
12 or responsible for the manner, method or amount of any such change or
the ascertaining of the existence of facts that would require any such
adjustment or change (except with respect to the exercise of ADS
Warrants evidenced by Warrant Certificates after actual notice of any
adjustment of the Exercise Price); nor shall it by any act hereunder be
deemed to make any representation or warranty as to the authorization or
reservation of any Shares or ADSs to be issued pursuant to this Warrant
Agreement or any Warrant Certificate or as to whether any ADSs or Shares
will, when issued, be duly authorized, validly issued, fully paid and
nonassessable; nor shall the U.S. Warrant Agent be responsible for the
legality of the terms hereof in its capacity as an administrative agent.
(f) The Company agrees that it will perform, execute,
acknowledge and deliver or cause to be performed, executed, acknowledged
and delivered all such further and other acts, instruments and
assurances as may reasonably be required by the U.S. Warrant Agent for
the carrying out or performing by the U.S. Warrant Agent of the
provisions of this Warrant Agreement.
(g) The U.S. Warrant Agent is hereby authorized and directed
to accept instructions with respect to the performance of its duties
hereunder from any Authorized Officer of the Company, and to apply to
such officers for advice or instructions in connection with its duties,
and it shall not be liable for any action taken or suffered to be taken
by it in good faith in accordance with instructions of any such officer
or for any delay in acting while waiting for those instructions. Any
application by the U.S. Warrant Agent for written instructions from the
Company may, at the option of the U.S. Warrant Agent, set forth in
writing any action proposed to be taken or omitted by the U.S. Warrant
Agent under this Agreement and the date on/or after which such action
shall be taken or such omission shall be effective. The U.S. Warrant
Agent shall not be liable for any action taken by, or omission of, the
U.S. Warrant Agent in accordance with a
16
proposal included in such application on or after the date specified in
such application (which date shall not be less than three Business Days
after the date of such application, unless any such Authorized Officer
shall have consented in writing to any earlier date) unless prior to
taking any such action (or the effective date in the case of an
omission), the U.S. Warrant Agent shall have received written
instructions in response to such application specifying the action to be
taken or omitted.
(h) The U.S. Warrant Agent and any shareholder, director,
officer or employee of the U.S. Warrant Agent may buy, sell or deal in
any of the ADS Warrants or other securities of the Company or become
pecuniarily interested in any transaction in which the Company may be
interested, or contract with or lend money to the Company or otherwise
act as fully and freely as though it were not U.S. Warrant Agent under
this Warrant Agreement. Nothing herein shall preclude the U.S. Warrant
Agent from acting in any other capacity for the Company or for any other
legal entity.
(i) The U.S. Warrant Agent may execute and exercise any of the
rights or powers hereby vested in it or perform any duty hereunder
either itself or by or through its attorneys or agents, and the U.S.
Warrant Agent shall not be answerable or accountable for any act,
default, neglect or misconduct of any such attorneys or agents or for
any loss to the Company resulting from any such act, default, neglect or
misconduct, provided reasonable care was exercised in the selection and
continued employment thereof.
(j) No provision of this Warrant Agreement shall require the
U.S. Warrant Agent to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its duties
hereunder or in the exercise of its rights if there shall be reasonable
grounds for believing that repayment of such funds or adequate
indemnification against such risk or liability is not reasonably assured
to it.
(k) The U.S. Warrant Agent shall be under no obligation to
institute any action, suit or legal proceeding on behalf of any holder
of any ADS Warrants or any other Person, but this provision shall not
affect the power of the U.S. Warrant Agent to take such action as it may
consider proper.
(l) The Company agrees to give the U.S. Warrant Agent prompt
written notice of any event that would prohibit the exercise or transfer
of the Warrant Certificates.
SECTION 20. CHANGE OF U.S. WARRANT AGENT.
The U.S. Warrant Agent may resign and be discharged from its
duties under this Warrant Agreement upon 60 days' notice in writing mailed to
the Company by
17
registered or certified mail, and the successor U.S. Warrant Agent will give
notice in writing to the holders of the Warrant Certificates by first-class
mail. The Company may remove the U.S. Warrant Agent or any successor U.S.
Warrant Agent upon 60 days' notice in writing, mailed to the U.S. Warrant Agent
or successor U.S. Warrant Agent, as the case may be, by registered or certified
mail, and to the holders of the Warrant Certificates by first-class mail. If the
U.S. Warrant Agent shall resign or be removed or shall otherwise become
incapable of acting, the Company shall appoint a successor to the U.S. Warrant
Agent. If the Company shall fail to make such appointment within a period of 60
days after such removal or after it has been notified in writing of such
resignation or incapacity by the resigning or incapacitated U.S. Warrant Agent
or by the holder of a Warrant Certificate (who shall, with such notice, submit
his Warrant Certificate for inspection by the Company) then, at the expense of
the Company, the U.S. Warrant Agent or registered holder of any Warrant
Certificate may apply to any court of competent jurisdiction for the appointment
of a new U.S. Warrant Agent. Any successor U.S. Warrant Agent, whether appointed
by the Company or by a court, shall be a corporation organized and doing
business under the laws of the United States or of a state thereof, in good
standing, which is authorized under such laws to exercise corporate trust powers
and is subject to supervision or examination by federal or state authority and
which has at the time of its appointment as U.S. Warrant Agent a combined
capital and surplus of at least $50,000,000. After appointment, the successor
U.S. Warrant Agent shall be vested with the same powers, rights, duties and
responsibilities as if it had been originally named as U.S. Warrant Agent
without further act or deed; but the predecessor U.S. Warrant Agent shall
deliver and transfer to the successor U.S. Warrant Agent any property at the
time held by it hereunder, and execute and deliver any further assurance,
conveyance, act or deed necessary for the purpose. Not later than the effective
date of any such appointment, the Company shall file notice thereof in writing
with the predecessor U.S. Warrant Agent, and mail a notice thereof in writing to
the registered holders of the Warrant Certificates. However, failure to give any
notice provided for in this Section 20, or any defect therein, shall not affect
the legality or validity of the resignation or removal of the U.S. Warrant Agent
or the appointment of the successor U.S. Warrant Agent, as the case may be.
SECTION 21. ISSUANCE OF NEW WARRANT CERTIFICATES.
Notwithstanding any of the provisions of this Warrant
Agreement or of the ADS Warrants to the contrary, the Company may, at its
option, issue new Warrant Certificates evidencing ADS Warrants in such form as
may be approved by its Board of Directors to reflect any adjustment or change in
the Exercise Price per ADS and the number or kind or class of shares of stock or
other securities or property purchasable under the several Warrant Certificates
made in accordance with the provisions of this Warrant Agreement, or any change
in the number of Shares represented by one ADS.
18
SECTION 22. PURCHASE OF ADS WARRANTS BY THE COMPANY.
Nothing in this Warrant Agreement shall prevent the Company
from acquiring ADS Warrants.
SECTION 23. NOTICE OF PROPOSED ACTIONS.
In case the Company shall propose (a) to declare a dividend on
the Shares payable in shares of capital stock of any class or to make any other
distribution to all holders of Shares (including any distribution made in
connection with a consolidation, merger or combination in which the Company is
the continuing corporation), or (b) to offer rights, options or warrants to all
holders of Shares entitling them to subscribe for or purchase Shares (or
securities convertible into or exercisable or exchangeable for Shares or any
other securities), or (c) to offer any shares of capital stock in a
reclassification of Shares (including any such reclassification in connection
with a consolidation, merger or combination in which the Company is the
continuing corporation), or (d) to effect any consolidation, merger or
combination into or with, or to effect any sale or other transfer (or to permit
one or more of its subsidiaries to effect any sale or other transfer), in one or
more transactions, of more than 50% of the assets or net income of the Company
and its subsidiaries (taken as a whole) to, any other Person, (e) to effect the
liquidation, dissolution or winding up of the Company or (f) to take any other
action referred to in Section 10, then, in each such case, the Company shall
give, or cause to be given, to each registered holder of a ADS Warrant and the
U.S. Warrant Agent, in accordance with Section 24, a notice of such proposed
action, which shall specify the date of such stock dividend, distribution of
rights or warrants, or the date on which such reclassification, consolidation,
merger, sale, transfer, liquidation, dissolution, winding up or other action
referred to in Section 10 is to take place and the date of participation therein
by the holders of Shares, if any such date is to be fixed, and such notice shall
be so given at least 10 days prior to the date of the taking of such proposed
action or the date of participation therein by the holders of Shares, whichever
shall be the earlier. The failure to give notice required by this Section 23 or
any defect therein shall not affect the legality or validity of the action taken
by the Company or the vote upon any such action. Unless specifically required by
Section 10, the Exercise Price, the number of ADSs covered by each ADS Warrant
and the number of ADS Warrants outstanding shall not be subject to adjustment as
a result of the Company being required to give notice pursuant to this Section
23.
SECTION 24. NOTICES.
Notices or demands authorized by this Warrant Agreement to be
given or made (i) by the U.S. Warrant Agent or by the holder of any Warrant
Certificate to or on the Company, (ii) subject to the provisions of Section 20,
by the Company or by the holder of any Warrant Certificate to or on the U.S.
Warrant Agent or (iii) by the Company or the U.S. Warrant Agent to the holder of
any Warrant Certificate, shall be deemed given (x) on the date delivered, if
delivered personally or by facsimile, (y) on the first Trading Day following the
deposit thereof with Federal Express, DHL or another
19
recognized overnight courier, if sent by Federal Express, DHL or another
recognized overnight courier, and (z) on the fourth Trading Day following the
mailing thereof with postage prepaid, if mailed by registered or certified mail
(return receipt requested), in each case to the parties at the following
addresses (or at such other address for a party as shall be specified by like
notice):
(a) If to the Company, to:
Versatel Telecom International N.V.
Xxxxxxxxxxxxx 000
0000 XX Xxxxxxxxx-Xxxxxxxx
Xxx Xxxxxxxxxxx
Phone: 000-00-00-000-0000
Facsimile: 011-31-20-750-1011
Attention: Xxx X. xxx Xxxxx, General Counsel and
Chief Development Officer
(b) If to the U.S. Warrant Agent, to:
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: American Depositary Receipt
Administration
(c) If to the holder of any Warrant Certificate, to the
address of such holder as shown on the register of ADS Warrants.
SECTION 25. SUPPLEMENTS AND AMENDMENTS.
(a) The Company and the U.S. Warrant Agent may from time to
time supplement or amend this Warrant Agreement without the approval of
any holders of Warrant Certificates in order to cure any ambiguity, to
correct or supplement any provision contained herein which may be
defective or inconsistent with any other provisions herein, or to make
any other provisions with regard to matters or questions arising
hereunder which the Company and the U.S. Warrant Agent may deem
necessary or desirable and which shall not materially adversely affect
the interests of the holders of Warrant Certificates.
(b) In addition to the foregoing, with the consent of holders
other than the Company or any affiliate thereof of not less than a
majority in number of the then outstanding ADS Warrants (other than
those held by the Company or any affiliate thereof), the Company and the
U.S. Warrant Agent may modify this Warrant Agreement for the purpose of
adding any provisions to or changing in any manner or eliminating any of
the provisions of this Warrant Agreement or modifying in any manner the
rights of the holders of the Warrant Certificates; provided, however,
that no modification of the terms (including but not limited to
20
the adjustments described in Section 10) upon which the ADS Warrants are
exercisable or reducing the percentage required for consent to
modification of this Warrant Agreement or otherwise modifying, or adding
a provision inconsistent with, this Section 25(b) may be made without
the consent of the holder of each outstanding ADS Warrant affected
thereby.
(c) Upon the delivery of a certificate from an Authorized
Officer of the Company which states that the proposed supplement or
amendment is in compliance with the terms of this Section, the U.S.
Warrant Agent shall execute such supplement or amendment.
Notwithstanding any other provision hereof, the U.S. Warrant Agent's
consent must be obtained regarding any amendment or supplement pursuant
to this Section 25 which alters the U.S. Warrant Agent's rights or
duties.
SECTION 26. REPORTS.
The Company will furnish the U.S. Warrant Agent with its
annual reports containing audited consolidated financial statements prepared in
conformity with U.S. GAAP. The Company will also furnish the U.S. Warrant Agent
with notices of general shareholders' meeting and other reports and
communications that are generally available to shareholders of the Company (or
summaries thereof). If requested in writing by the Company, the U.S. Warrant
Agent will arrange for the mailing of such reports and communications (or
summaries) to all record holders of the ADS Warrants, at the Company's expense.
The Company shall timely provide the U.S. Warrant Agent will the quantities of
such reports and communications as requested by the U.S. Warrant Agent from time
to time in order for the U.S. Warrant Agent to effect such mailings.
SECTION 27. TERMINATION OF ADS WARRANTS.
(a) The Company may, at any time, instruct the U.S. Warrant
Agent in writing to terminate the ADS Warrants. Upon receiving that instruction,
the U.S. Warrant Agent shall mail notice of termination of the ADS Warrants to
all Holders at least 20 days prior to the date fixed in the notice as the date
of termination (the "Termination Date"). The notice shall request Holders to
give the U.S. Warrant Agent instructions for delivery of Share Warrants and
shall state that, to the extent the Depositary does not receive delivery
instructions from a Holder by the Termination Date, that Holder will not be
entitled to receive Share Warrants, and the U.S. Warrant Agent will attempt to
cause the Share Warrants to be sold and will deliver to that Holder the net
proceeds of any such sale.
(b) As soon as practical after the Termination Date, upon
surrender of ADS Warrants to the U.S. Warrant Agent by a Holder that provided
delivery instructions for Share Warrants received by the U.S. Warrant Agent on
or prior to the Termination Date, the U.S. Warrant Agent shall cancel those ADS
Warrants and instruct the
21
Depositary to deliver the number of Share Warrants underlying the surrendered
ADS Warrants in accordance with the instructions provided by the surrendering
Holder.
(c) To the extent that the U.S. Warrant Agent has not received
instructions from Holders for delivery of Share Warrants on or prior to the
Termination Date, the U.S. Warrant Agent shall, as soon as practical after the
Termination Date, shall instruct the Depositary to sell the number of Share
Warrants underlying those ADS Warrants and deliver the proceeds of any such
sale, net of the fees and expenses of the Depositary to the U.S. Warrant Agent.
The U.S. Warrant Agent shall distribute those net proceeds to those Holders upon
surrender by them of the ADS Warrants. The U.S. Warrant Agent shall cancel all
ADS Warrants that are surrendered for payment under this Section 27(c).
(d) Holders may not exercise ADS Warrants after the
Termination Date. The Depositary shall not register any transfer of ADS Warrants
after the Termination Date.
SECTION 28. SUCCESSORS.
All covenants and provisions of this Warrant Agreement by or
for the benefit of the Company or the U.S. Warrant Agent shall bind and inure to
the benefit of their respective successors and assigns hereunder.
SECTION 29. BENEFITS OF THIS WARRANT AGREEMENT.
Nothing in this Warrant Agreement shall be construed to give
any Person other than the Company, the U.S. Warrant Agent and the registered
holders of the Warrant Certificates any legal or equitable right, remedy or
claim under this Warrant Agreement; but this Warrant Agreement shall be for the
sole and exclusive benefit of the Company, the U.S. Warrant Agent and the
registered holders of the Warrant Certificates.
SECTION 30. GOVERNING LAW.
This Warrant Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York, without giving effect to the
conflicts of law principles thereof.
SECTION 31. COUNTERPARTS.
This Warrant Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.
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SECTION 32. CAPTIONS.
The caption of the sections of this Warrant Agreement have
been inserted for convenience only and shall not control or affect the meaning
or construction of any of the provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Warrant
Agreement to be duly executed, all as of the day and year first above written.
VERSATEL TELECOM
INTERNATIONAL N.V.
By: /s/ Xxx Xxxxxxxxx
---------------------------------
Name: Xxx Xxxxxxxxx
Title: Chief Executive Officer
THE BANK OF NEW YORK,
as U.S. Warrant Agent
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
Exhibit A to the
Warrant Agreement
Form of Warrant Certificate
Certificate No. --
_____________ Warrants
NOT EXERCISABLE AFTER ________________, 2004
Warrant Certificate
VERSATEL TELECOM INTERNATIONAL N.V.
This certifies that ___________________, or registered assigns, is the
registered owner of the number of ADS Warrants set forth above; each 4.8 ADS
Warrants entitle the owner thereof, subject to the terms, provisions and
conditions of the Warrant Agreement dated as of October 8, 2002 (the "Warrant
Agreement") between Versatel Telecom International N.V., a company incorporated
under the laws of The Netherlands (the "Company"), and The Bank of New York, a
New York banking corporation (the "U.S. Warrant Agent"), to purchase or receive
from the Company at any time prior to 5:00 P.M. (New York City time) on October
4, 2004 (unless earlier terminated in accordance with the Warrant Agreement), at
the designated office of the U.S. Warrant Agent located at 000 Xxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, or its successors as U.S. Warrant Agent, in New York
City, one American depositary share of the Company (each, an "ADS"), each ADS
representing, as of the date of the Warrant Agreement, 12 shares, nominal value
Euro 0.02 per share, of the Company (each, a "Share"), to be purchased at an
initial exercise price equal to the cost to the U.S. Warrant Agent of Euro 1.5
times the number of Shares represented by one ADS (the "Exercise Price"), in
each case upon presentation and surrender of this Warrant Certificate with the
Form of Election to Purchase duly executed, and in the case of a transfer, a
signature guarantee, and such other and further documentation as the U.S.
Warrant Agent may reasonably request, accompanied by payment of the Deposit
Amount for the ADSs to be purchased and any applicable taxes or charges. The
Deposit Amount for each ADS to be issued upon exercise of ADS Warrants shall be
the dollar equivalent of Euro 1.5 (subject to adjustment of the Exercise Price)
times the number of Shares to be represented by each ADS (at the date of the
Warrant Agreement, each ADS represents 12 Shares) based on the exchange rate as
published in the most recent print edition of The Wall Street Journal plus seven
percent of that U.S. dollar amount (to cover currency rate fluctuations
occurring between the date of exercise and the date on which the U.S. Warrant
Agent purchases Euro for U.S. dollars, the expenses of the U.S. Warrant Agent,
the fee payable to the Depositary in respect of the execution and delivery of
Receipts and any taxes or governmental charges). The Deposit Amount may be paid
by certified bank check or money order payable to the order of the U.S. Warrant
Agent for the Company's account, in lawful money of the United States of
America. The number of ADSs which may be purchased upon exercise of the ADS
Warrants evidenced by this Warrant Certificate and
the Exercise Price set forth above are the number and Exercise Price as of the
date of the Warrant Agreement, based on the ADSs as constituted at such date. As
provided in the Warrant Agreement, the Exercise Price and the number and type of
securities which may be purchased upon the exercise of the ADS Warrants
evidenced by this Warrant Certificate, and the number of Shares represented by
one ADS, may be subject to change.
This Warrant Certificate is subject to all of the terms, provisions and
conditions of the Warrant Agreement, which terms, provisions and conditions are
hereby incorporated herein by reference and made a part hereof and to which
Warrant Agreement reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities hereunder of the U.S.
Warrant Agent, the Company, and the holders of the Warrant Certificates. Copies
of the Warrant Agreement are on file at the above-mentioned office of the U.S.
Warrant Agent.
This Warrant Certificate, with or without other Warrant Certificates,
upon surrender at the designated office of the U.S. Warrant Agent, may be
exchanged for another Warrant Certificate or Warrant Certificates of like tenor
and date evidencing ADS Warrants entitling the holder to purchase a like
aggregate number of ADSs, in each case as the ADS Warrants evidenced by the
Warrant Certificate or Warrant Certificates surrendered shall have entitled such
holder to purchase or receive. If this Warrant Certificate shall be exercised in
part, the holder hereof shall be entitled to receive upon surrender hereof
another Warrant Certificate or Warrant Certificates for the number of ADS
Warrants not exercised. ADS Warrants are only exercisable in units of 4.8 ADS
Warrants or any integral multiple thereof.
No holder of this Warrant Certificate shall be entitled to vote,
participate in any shareholder meeting, receive dividends or distributions on,
or be deemed for any purpose the holder of, ADSs or Shares or of any other
securities of the Company which may at any time be issuable on the exercise
hereof, nor shall anything contained in the Warrant Agreement or herein be
construed to confer upon the holder hereof, as such, any of the rights of a
stockholder of the Company or any right to vote for the election of directors or
upon any matter submitted to stockholders at any meeting thereof, or to give or
withhold consent to any corporate action, or to receive notice of meetings or
other actions affecting stockholders (except as provided in the Warrant
Agreement), or to receive dividends or subscription rights, or otherwise, until
the ADS Warrant or ADS Warrants evidenced by this Warrant Certificate shall have
been exercised as provided in the Warrant Agreement.
The Company has a right to terminate the ADS Warrants, in the manner
and with the effect set forth in the Warrant Agreement.
This Warrant Certificate shall not be valid or obligatory for any
purpose until it shall have been countersigned by an authorized signatory of the
U.S. Warrant Agent.
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WITNESS the facsimile signature of the proper officers of the Company.
VERSATEL TELECOM INTERNATIONAL N.V.
By:
---------------------------------
Name:
Title:
Dated:
Countersigned:
THE BANK OF NEW YORK,
as U.S. Warrant Agent
By:
-----------------------------
Name:
Title:
-3-
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to exercise the Warrant Certificate.)
To _____________________________________________________, as U.S. Warrant Agent:
The undersigned hereby irrevocably elects to exercise _____________________ ADS
Warrants represented by this Warrant Certificate to purchase the ADSs issuable
upon the exercise of such ADS Warrants and requests that Certificates for such
ADSs be issued in the name of and delivered to:
Please insert social security
or other identifying number
________________________________________________________________________________
(Please print name and address)
________________________________________________________________________________
If such number of ADS Warrants shall not be all the ADS Warrants evidenced by
this Warrant Certificate, a new Warrant Certificate for the balance remaining of
such ADS Warrants shall be registered in the name of and delivered to:
Please insert social security
or other identifying number
________________________________________________________________________________
(Please print name and address)
________________________________________________________________________________
Dated: ______________________
Signature
(Signature must conform in all respects to name of holder as specified on the
face of this Warrant Certificate)
Signature Guaranteed:
-4-
Annex A to Warrant Certificate
ASSIGNMENT FORM
(To be executed by the registered holder if such holder
desires to transfer the Warrant Certificate)
FOR VALUE RECEIVED, _______________________________________________ hereby
sells, assigns and transfers unto
Name:___________________________________________________________________________
(please typewrite or print in block letters)
Address:________________________________________________________________________
this Warrant Certificate, together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint _______________ Attorney, to
transfer within the Warrant Certificate the same on the books of the Company,
with full power of substitution in the premises.
Date: _____________________, ____
Signature
______________________________________
Signature Guaranteed:
Notice
The signature to the foregoing assignment must correspond to the name
as written upon the face of this Warrant Certificate in every particular,
without alteration or enlargement or any change whatsoever.
Signatures must be guaranteed by financial institution that is a
participant in the Security Transfer Agents Medallion Program, the Stock
Exchange Medallion Program or the New York Stock Exchange Inc. Medallion
Signature Program.
-5-
