Exhibit 4.7
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CONVERSION SHARES REGISTRATION RIGHTS AGREEMENT
Dated April 3, 1998
between
VIATEL, INC.
and
XXXXXX XXXXXXX & CO. INCORPORATED
XXXXXX XXXXXXX BANK XX
XXXXXXX BROTHERS INC
ING BARING (U.S.) SECURITIES, INC.
NATIONSBANC XXXXXXXXXX SECURITIES LLC
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CONVERSION SHARES REGISTRATION RIGHTS AGREEMENT
THIS CONVERSION SHARES REGISTRATION RIGHTS AGREEMENT (the "Agreement")
is made and entered into April 3, 1998 between VIATEL, INC., a Delaware
corporation (the "Company"), and XXXXXX XXXXXXX & CO. INCORPORATED, XXXXXX
XXXXXXX BANK AG, SALOMON BROTHERS INC, ING BARING (U.S.) SECURITIES, INC. and
NATIONSBANC XXXXXXXXXX SECURITIES LLC (the "Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement, dated the
date hereof, between the Company and the Initial Purchasers (the "Purchase
Agreement"), which provides for the sale by the Company to the Initial
Purchasers of 500,000 Senior Discount Dollar Units (the "Senior Discount Dollar
Units"), 400,000 Senior Dollar Units (the "Senior Dollar Units"), 226,000 Senior
Discount DM Units (the "Senior Discount DM Units") and 178,000 Senior DM Units
(the "Senior DM Units" and together with the Senior Discount Dollar Units, the
Senior Dollar Units and the Senior Discount DM Units, collectively, the
"Units"). Each Senior Discount Dollar Unit will consist of (i) one 12.50%
Senior Discount Note Due 2008 of the Company with a principal amount at maturity
of $1,000 (the "Senior Dollar Notes") and (ii) .490 of a share of shares of
Series A redeemable convertible Preferred Stock, $.01 par value per share, of
the Company (the "Preferred Stock"). Each Senior Dollar Unit will consist of
(i) one 11.25% Senior Dollar Note Due 2008 with a principal amount of $1,000
(the "Senior Dollar Notes") and (ii) .483 of a share of Preferred Stock. Each
Senior Discount DM Unit will consist of (i) one 12.40% Senior Discount Note Due
2008 of the Company with a principal amount at maturity of DM 1,000 (the "Senior
Discount DM Notes") and (ii) 2.77 DM denominated 10% Subordinated Convertible
Debentures Due 2011 of the Company (the "Debentures"). Each Senior DM Unit will
consist of (i) one 11.15% Senior Note Due 2008 of the Company with a principal
amount of DM 1,000 (the "Senior DM Notes" and, together with the Senior Discount
Dollar Notes, the Senior Dollar Notes and the Senior Discount DM Notes,
collectively, the "Notes") and (ii) 2.69 Debentures. The Senior Discount Dollar
Notes and the Senior Discount DM Notes are collectively referred to as the
"Discount Notes." The Senior Dollar Notes and the Senior DM Notes are
collectively referred to as the "Senior Notes." In order to induce the Initial
Purchasers to enter into the Purchase Agreement, the Company has agreed to
provide to the Initial Purchasers and their direct and indirect transferees the
registration rights with respect to the Conversion Shares (as defined herein)
set forth in this Agreement. The execution of this Agreement is a condition to
the closing under the Purchase Agreement.
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In consideration of the foregoing, the parties hereto agree as
follows:
1. DEFINITIONS.
As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"CERTIFICATE OF DESIGNATIONS" shall mean the Certificate of
Designations, Preferences and Rights relating to the Preferred Stock, filed
with the Secretary of State of the State of Delaware.
"CLOSING DATE" shall mean the Closing Date as defined in the Purchase
Agreement.
"COMMON STOCK" shall have the meaning set forth in the preamble to
this Agreement.
"COMPANY" shall have the meaning set forth in the preamble to this
Agreement and shall also include the Company's successors.
"CONVERSION SHARES" shall mean the shares of Common Stock issuable
upon conversion of the Preferred Stock and the Debentures at the rate and
in the manner described in the Certificate of Designations and the
Indenture, respectively.
"DEBENTURES" shall have the meaning set forth in the preamble to this
Agreement.
"HOLDER" shall mean any Initial Purchaser, for so long as it owns any
of the Preferred Stock or Debentures, and the successors, assigns and
direct and indirect transferees of the Initial Purchasers who become
registered owners of Preferred Stock or Debentures.
"INDENTURE" shall mean the Indenture relating to the Debentures dated
as of April 8, 1998 between the Company and The Bank of New York, as
trustee, and as the same may be amended from time to time in accordance
with the term thereof.
"INITIAL PURCHASERS" shall have the meaning set forth in the preamble to
this Agreement.
"MAJORITY HOLDERS" shall mean the Holders of a majority of the
outstanding Preferred Stock and the outstanding Debentures, as the case may
be; PROVIDED that
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whenever the consent or approval of Holders of a specified percentage of
Preferred Stock or Debentures is required hereunder, Preferred Stock or
Debentures, as the case may be, held by the Company or any of its
affiliates (as such term is defined in Rule 405 under the 0000 Xxx) (other
than the Initial Purchasers or subsequent holders of Preferred Stock or
Debentures, as the case may be, if such subsequent holders are deemed to be
such affiliates solely by reason of their holding of such Preferred Stock
or Debentures, as the case may be) shall not be counted in determining
whether such consent or approval was given by the Holders of such required
percentage or amount.
"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.
"NOTES" shall have the meaning set forth in the preamble to this
Agreement.
"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.
"PREFERRED STOCK" shall have the meaning set forth in the preamble to
this Agreement.
"PROSPECTUS" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a
prospectus supplement with respect to the terms of the offering of any
portion of the Conversion Shares covered by a Shelf Registration Statement,
and by all other amendments and supplements to such prospectus, and in each
case including all material incorporated by reference therein.
"PURCHASE AGREEMENT" shall have the meaning set forth in the preamble
to this Agreement.
"REGISTRATION EXPENSES" shall mean any and all expenses incident to
performance of or compliance by the Company with this Agreement, including
without limitation: (i) all SEC, stock exchange or National Association of
Securities Dealers, Inc. registration, listing 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), (iii) all expenses of any Persons in preparing or assisting
in preparing,
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word processing, printing and distributing the Shelf 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) the fees and disbursements of counsel for the
Company and the reasonable fees and disbursements of counsel for the
Holders (which counsel shall be selected by the Majority Holders and which
counsel may also be counsel for the Initial Purchasers ) and (vi) 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.
"SEC" shall mean the Securities and Exchange Commission.
"SHELF PERIOD" shall have the meaning set forth in Section 2(a)
hereof.
"SHELF REGISTRATION" shall mean a registration effected pursuant to
Section 2(a) hereof.
"SHELF REGISTRATION STATEMENT" shall mean a "shelf" registration
statement of the Company pursuant to the provisions of Section 2(a) of this
Agreement which covers all of the Conversion Shares (but no other
securities unless approved by the Majority Holders) on an appropriate form
under Rule 415 under the 1933 Act, or any similar rule that may be adopted
by the SEC, and all amendments and supplements to 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.
"TRUSTEE" shall mean the trustee with respect to the Notes under the
Indenture.
2. REGISTRATION UNDER THE 1933 ACT.
(a) The Company shall use its best efforts to cause to be filed and
to be declared effective by the SEC on or prior to the date that is one year
after the Closing Date, a Shelf Registration Statement covering the issuance of
the Conversion Shares. Subject to certain limited "blackout periods" referred
to in the last paragraph of Section 4 the Company shall keep the Shelf
Registration Statement effective for two years, or if earlier, when all
Debentures and shares of Preferred Stock have been converted into Common Stock
pursuant to the Shelf Registration Statement (the "Shelf Period"). The Company
further agrees to supplement or amend the Shelf Registration Statement if
required by the rules, regulations or
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instructions applicable to the registration form used by the Company for such
Shelf Registration Statement or by the 1933 Act or by any other applicable rules
and regulations thereunder for shelf registration or if reasonably requested by
a Holder with respect to information relating to such Holder, and to use its
best efforts to cause any such amendment to become effective and such Shelf
Registration Statement to become usable as soon as thereafter practicable. The
Company agrees to furnish to the Holders copies of any such supplement or
amendment promptly after its being used or filed with the SEC.
(b) The Company shall pay all Registration Expenses in connection
with the registration pursuant to Section 2(a).
(c) The Shelf Registration Statement pursuant to Section 2(a) hereof
will not be deemed to have become effective unless it has been declared
effective by the SEC; PROVIDED, HOWEVER, that, if, after it has been declared
effective, the offering of Conversion Shares pursuant to the Shelf Registration
Statement is interfered with by any stop order, injunction or other order or
requirement of the SEC or any other governmental agency or court, such Shelf
Registration Statement will be deemed not to have become effective during the
period of such interference until the offering of Conversion Shares pursuant to
such Registration Statement may legally resume. If the Shelf Registration
Statement is not declared effective on or prior to the date that is one year
after the Closing Date (except during the "blackout periods" referred to in the
last paragraph of Section 4 and after the Shelf Period), the dividend rate on
the Preferred Stock will increase by (expressed as a percentage of liquidation
preference) 0.5% per annum and the interest rate on the Debentures will increase
by 0.5% per annum (per 1,000 principal amount) each of which increase must be
paid in cash, until a Shelf Registration Statement is declared effective.
(d) Without limiting the remedies available to the Initial Purchasers
and the Holders, the Company acknowledges that any failure by the Company to
comply with its obligations under Section 2(a) hereof may result in material
irreparable injury to the Initial Purchasers or the Holders for which there is
no adequate remedy at law, that it will not be possible to measure damages for
such injuries precisely and that, in the event of any such failure, the Initial
Purchasers or any Holder may obtain such relief as may be required to
specifically enforce the Company's obligations under Section 2(a).
3. REGISTRATION PROCEDURES.
In connection with the obligations of the Company with respect to the
Shelf Registration Statement pursuant to Section 2(a) hereof, the Company shall
as expeditiously as possible:
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(a) furnish to each Holder of Preferred Stock and Debentures, to
counsel for the Initial Purchasers and to counsel for the Holders, 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 may reasonably request, in order to facilitate the conversion of the
Preferred Stock and Debentures;
(b) use its reasonable best efforts to register or qualify the
Conversion Shares under all applicable state securities or "blue sky" laws of
such jurisdictions as any Holder shall reasonably request in writing by the time
the applicable Shelf 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 in each such jurisdiction the conversion of the
Preferred Stock and the Debentures, as the case may be, owned by such Holder;
PROVIDED, HOWEVER, that the Company shall not 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(b), (ii) file
any general consent to service of process or (iii) subject itself to taxation in
any such jurisdiction if it is not so subject;
(c) notify each Holder, counsel for the Holders and counsel for the
Initial Purchasers promptly and, if requested by any such Holder or counsel,
confirm such advice in writing (i) when the Shelf Registration Statement has
become effective and when any post-effective amendment thereto has been filed
and becomes effective, (ii) of any request by the SEC or any state securities
authority for amendments and supplements to the Shelf Registration Statement and
Prospectus or for additional information after the Shelf 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 the Shelf
Registration Statement or the initiation of any proceedings for that purpose,
(iv) if, between the effective date of the Shelf Registration Statement and the
end of the Shelf Period if the Company receives any notification with respect to
the suspension of the qualification of the Conversion Shares for sale in any
jurisdiction or the initiation of any proceeding for such purpose, (v) of the
happening of any event during the period the Shelf Registration Statement is
effective which makes any statement made in the Shelf Registration Statement or
the related Prospectus untrue in any material respect or which requires the
making of any changes in the Shelf 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 the Shelf
Registration Statement would be appropriate;
(d) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of the Shelf Registration Statement at the
earliest possible moment and provide prompt notice to each Holder of the
withdrawal of any such order;
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(e) furnish to each Holder, without charge, at least one conformed
copy of the Shelf Registration Statement and any post-effective amendment
thereto (without documents incorporated therein by reference or exhibits
thereto, unless requested);
(f) cooperate with the converting Holders to facilitate the timely
preparation and delivery of certificates representing Conversion Shares and not
bearing any restrictive legends and enable such Conversion Shares to be
registered in such names as the converting Holders may reasonably request at
least one business day prior to any conversion of Preferred Stock or Debentures,
as the case may be, into Conversion Shares;
(g) upon the occurrence of any event contemplated by Section 3(c)(v)
hereof, use its best efforts to prepare and file with the SEC a supplement or
post-effective amendment to the Shelf 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 Holders, 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. The Company
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 Company has amended or supplemented
the Prospectus to correct such misstatement or omission;
(h) a reasonable time prior to the filing of the Shelf Registration
Statement, any Prospectus, any amendment to the Shelf Registration Statement or
amendment or supplement to a Prospectus or any document which is to be
incorporated by reference into the Shelf Registration Statement or a Prospectus
after initial filing of the Shelf Registration Statement, provide copies of such
document to the Initial Purchasers, the Holders and their counsel and make such
of the representatives of the Company as shall be reasonably requested by the
Initial Purchasers, the Holders or their counsel available for discussion of
such document, and shall not at any time file or make any amendment to the Shelf
Registration Statement, any Prospectus or any amendment of or supplement to the
Shelf Registration Statement or a Prospectus or any document which is to be
incorporated by reference into the Shelf Registration Statement or a Prospectus,
of which the Initial Purchasers, the Holders and their counsel shall not have
previously been advised and furnished a copy or to which the Initial Purchasers,
the Holders or their counsel shall reasonably object;
(i) upon execution of customary confidentiality agreements reasonably
satisfactory to the Company and its counsel, make available for inspection by a
representative of the Holders of each of the Preferred Stock and the Debentures,
and attorneys and accountants designated by the Holders of each of the Preferred
Stock and the Debentures, at reasonable times and in a reasonable manner, all
financial and other records, pertinent
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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, attorney or accountant in connection with
the Shelf Registration Statement; and
(j) if reasonably requested by any Holder covered by the Shelf
Registration Statement, (i) promptly incorporate in a Prospectus supplement or
post-effective amendment such information with respect to such Holder as such
Holder reasonably requests to be included therein and (ii) make all required
filings of such Prospectus supplement or such post-effective amendment as soon
as the Company has received notification of the matters to be incorporated in
such filing.
Each Holder agrees that, upon receipt of any notice from the Company
of the happening of any event of the kind described in Section 3(c)(v) hereof,
such Holder will forthwith discontinue conversion of Preferred Stock and
Debentures pursuant to the Shelf Registration Statement until such Holder's
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 3(g) 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 the Conversion Shares current at the time of receipt of such notice.
If the Company shall give any such notice to suspend the conversion of Preferred
Stock and Debentures pursuant to the Shelf Registration Statement, the Company
shall extend the period during which the Shelf 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 conversion. 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.
4. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless each Initial
Purchaser, each Holder and each person, if any, who controls any Initial
Purchaser 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, any Initial Purchaser or any Holder, from and against all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred by any Initial Purchaser, 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 the Shelf Registration Statement (or
any amendment thereto) pursuant to which the Conversion Shares were registered
under the 1933 Act, including all documents incorporated therein by reference,
or caused by any omission or alleged omission to state
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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 any Initial Purchaser or any Holder furnished to the Company in
writing by such Initial Purchaser 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
conversion of Preferred Stock or Debentures into Conversion Shares by such
Holder in violation of the final paragraph of Section 3 of this Agreement.
(b) Each Holder agrees, severally and not jointly, to indemnify and
hold harmless the Company, each Initial Purchaser and the other selling Holders,
and each of their respective directors, officers who sign the Shelf Registration
Statement and each Person, if any, who controls the Company, any Initial
Purchaser 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 Initial Purchasers 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 the Shelf 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
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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 Initial Purchasers and all Persons, if any, who control any
Initial Purchaser 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 Company, its
directors, its officers who sign the Shelf Registration Statement and each
Person, if any, who controls the Company 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 such case
involving any Initial Purchaser and Persons who control such Initial Purchaser,
such firm shall be designated in writing by Xxxxxx Xxxxxxx & Co. Incorporated.
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 (i) such settlement is entered into more than 60 days after
receipt by such indemnifying party of the aforesaid request and (ii) 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 4 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
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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 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
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 4(d)
are several in proportion to the respective number of Conversion Shares of such
Holder that were registered pursuant to the Shelf Registration Statement.
(e) The Company and each Holder agree that it would not be just or
equitable if contribution pursuant to this Section 4 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. 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 4 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 4
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
any Initial Purchaser, any Holder or any Person controlling any Initial
Purchaser or any Holder, or by or on behalf of the Company, its officers or
directors or any Person controlling the Company and (iii) any conversion of
Preferred Stock or Debentures into Conversion Shares pursuant to the Shelf
Registration Statement.
5. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. The Company has not entered into,
and on or after the date of this Agreement will not enter into, any agreement
which is inconsistent with the rights granted to the Holders 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 other issued and outstanding
securities under any such agreements.
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(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 has obtained the written consent of Holders
of at least a majority of the outstanding shares of Preferred Stock and at least
a majority of the outstanding principal amount of Debentures affected by such
amendment, modification, supplement, waiver or consent; PROVIDED, HOWEVER, that
no amendment, modification, supplement, waiver or consent to any departure from
the provisions of Section 4 hereof shall be effective as against any Holder
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 5(c), which address initially is, with respect to the Initial
Purchasers, the address set forth in the Purchase Agreement; and (ii) if to the
Company, initially at the Company's address set forth in the Purchase Agreement
and thereafter at such other address, notice of which is given in accordance
with the provisions of this Section 5(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.
(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. If any transferee of any Holder shall
acquire Preferred Stock or Debentures, as the case may be, in any manner,
whether by operation of law or otherwise, such Preferred Stock or Debentures, as
the case may be, shall be held subject to all of the terms of this Agreement,
and by taking and holding such Preferred Stock or Debentures, as the case may
be, 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 Initial Purchasers (in
their capacity as Initial Purchasers) shall have no liability or obligation to
the Company 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.
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(e) THIRD PARTY BENEFICIARY. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company, on the one
hand, and the Initial Purchasers, 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.
(f) 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.
(g) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
(i) 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.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
VIATEL, INC.
By /s/ Xxxxxxx X. Xxxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President and Chief Executive
Officer
Confirmed and accepted as of
the date first above written:
XXXXXX XXXXXXX & CO. INCORPORATED
XXXXXX XXXXXXX BANK XX
XXXXXXX BROTHERS INC
ING BARING (U.S.) SECURITIES, INC.
NATIONSBANC XXXXXXXXXX SECURITIES LLC
By: XXXXXX XXXXXXX & CO. INCORPORATED
In its individual capacity and as representative
of the other Initial Purchasers.
By /s/ Xxxxxxx X. Xxxx
-----------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
