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Exhibit 10.4
EXECUTION COPY
WARRANT AGREEMENT
Dated as of December 3, 1998
between
VERSATEL TELECOM INTERNATIONAL N.V.
and
UNITED STATES TRUST COMPANY OF NEW YORK
as Warrant Agent
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TABLE OF CONTENTS
WARRANT AGREEMENT
Page
SECTION 1. Defined Terms 2
1.1 Certain Definitions 2
1.2 Rules of Construction 7
SECTION 2. Issuance, Form, Execution, Delivery and Registration of
Warrant Certificates 7
2.1 Issuance of Warrants 7
2.2 Execution of Warrant Certificates 7
2.3 Countersignature and Delivery 8
2.4 Form of Warrant Certificates 8
2.5 Restrictive Legends 9
2.6 Temporary Warrant Certificates 11
2.7 Separation of Warrants and Notes 11
2.8 Registration, Registration of Transfers and Exchanges 12
2.9 Book-Entry Provisions for Global Warrants 12
2.10 Special Transfer Provisions 14
2.11 Offices for Exercise, etc. 16
2.12 Cancellation 17
2.13 Lost, Stolen, Destroyed, Defaced or Mutilated Warrant
Certificates 17
SECTION 3. Terms of Warrants; Exercise of Warrants 18
3.1 Exercise Period 18
3.2 Manner of Exercise 18
3.3 Issuance of Warrant Shares 19
3.4 Fractional Warrant Shares 20
3.5 Sufficient Authorized Share Capital 20
3.6 Payment of Taxes 20
SECTION 4. Adjustment of Exercise Price and Number of Warrant Shares
Issuable 20
4.1 Adjustments 20
4.2 Superseding Adjustment 24
4.3 Minimum Adjustment 24
4.4 Notice of Adjustment 25
4.5 Notice of Certain Transactions 25
4.6 Adjustment to Warrant Certificate 26
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4.7 Challenge to Good Faith Determination 26
4.8 Treasury Stock 26
SECTION 5. Holders' Rights 26
5.1 Registration Rights 26
5.2 Piggyback Registration Right 27
5.3 Repurchase Offer 28
5.4 Change of Control Equity Offer 28
5.5 Drag Along Rights 29
SECTION 6. Warrant Agent 29
6.1 Appointment of Warrant Agent 29
6.2 Rights and Duties of Warrant Agent 29
6.3 Individual Rights of Warrant Agent 31
6.4 Warrant Agent's Disclaimer 31
6.5 Compensation and Indemnity 31
6.6 Successor Warrant Agent 32
SECTION 7. Miscellaneous 33
7.1 Reports 34
7.2 Notices to the Company and Warrant Agent 34
7.3 Supplements and Amendments 35
7.4 Severability 36
7.5 Successors 36
7.6 Termination 36
7.7 Governing Law 36
7.8 Submission to Jurisdiction; Appointment of Agent for
Service; Waiver. 36
7.9 Benefits of This Agreement 37
7.10 Counterparts 37
7.11 Table of Contents 37
EXHIBITS
EXHIBIT A - Form of Face of Global Warrant Certificate
EXHIBIT B - Form of Face of Definitive Warrant Certificate
EXHIBIT C - Form of Transfer Certificate for Transfer from Rule 000X Xxxxxx
Xxxxxxx to Regulation S Global Warrant
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EXHIBIT D - Form of Transfer Certificate for Transfer from Regulation S Global
Warrant to Rule 144A Global Warrant
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Exhibit 10.4
WARRANT AGREEMENT dated as of December 3, 1998 (the
"Agreement") between VersaTel Telecom International N.V. (formerly known as
VersaTel Telecom B.V.), a company organized under the laws of The Netherlands
(the "Company"), and the United States Trust Company of New York, as warrant
agent (in such capacity, the "Warrant Agent").
W I T N E S S E T H :
WHEREAS, on October 15, 1998, the Company converted its legal
structure from a private company with limited liability (besloten vennootschap
met beperkte aansprakelijkheid) to a company with limited liability (naamloze
vennootschap) and in connection therewith created two classes of Ordinary
Shares, Class A Shares and Class B Shares, each with par value NLG 0.10 per
share (together, the "Ordinary Shares"); and
WHEREAS, the Company entered into a purchase agreement dated
November 17, 1998 (the "Purchase Agreement") with Xxxxxx Brothers Inc., Xxxxxx
Brothers International (Europe) and Paribas Corporation (the "Initial
Purchasers") pursuant to which the Company has agreed to sell to the Initial
Purchasers 150,000 units (the "Units") consisting of $1,000 principal amount of
its 13 1/4% Senior Notes due 2008 (the "Notes") to be issued under an indenture
dated as of December 3, 1998 (the "Indenture") by and between the Company and
the United States Trust Company of New York, as Trustee (in such capacity, the
"Trustee"), and one warrant (the "Warrants") to purchase 6.667 Class B Shares;
and
WHEREAS, prior to the separation of the Notes from the
Warrants issued as part of the Units as described herein, the Units shall be
issued pursuant to the Unit Agreement dated as of December 3, 1998 (the "Unit
Agreement") by and among the Company, the Warrant Agent, the Trustee and United
States Trust Company of New York, as unit agent (the "Unit Agent"); and
WHEREAS, the Warrants and the Notes shall not be separately
transferable until on or after the Separation Date (as defined below); and
WHEREAS, the Company desires the Warrant Agent to assist the
Company in connection with the issuance, exchange, cancellation, replacement and
exercise of the Warrants, and in this Agreement wishes to set forth, among other
things, the terms and conditions on which the Warrants may be issued, exchanged,
cancelled, replaced and exercised; and
WHEREAS, the Company desires the Warrant Agent to act on
behalf of the Company, and the Warrant Agent is willing so to act, in connection
with the issuance of Warrant Certificates (as defined below) and other matters
as provided herein;
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NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein set forth, and for the purpose of defining the
respective rights and obligations of the Company, the Warrant Agent and the
Holders (as defined below), the parties hereto agree as follows:
1. SECTION DEFINED TERMS.
1.1 Certain Definitions. As used in this Agreement, the
following terms shall have the following respective meanings:
"Affiliate" means, as applied to any Person, any other Person
directly or indirectly controlling, controlled by, or under direct or
indirect common control with, such Person. For purposes of this
definition, "control" (including, with correlative meanings, the terms
"controlling," "controlled by" and "under common control with"), as
applied to any Person, is defined to mean the possession, directly or
indirectly, of the power to direct or cause the direction of the
management and policies of such Person, whether through the ownership
of voting securities, by contract or otherwise.
"Agent Members" has the meaning specified in Section 2.9(a)
hereof.
"Authorized Agent" has the meaning specified in Section 7.8
hereof.
"Bankruptcy Law" means (i) for purposes of the Company,
Faillissementswet and any similar statute, regulation or provision of
any other jurisdiction in which the Company is organized or conducting
business and (ii) for purposes of the Warrant Agent, Title 11, U.S.
Code or any similar United States Federal, state or foreign law for the
relief of creditors.
"Board" means the Board of Supervisory Directors of the
Company.
"Business Day" means a day other than a Saturday, Sunday or
other day on which commercial banks in New York City and Amsterdam, The
Netherlands are authorized or required by law to close.
"Cash Exercise" has the meaning specified in Section 3.2
hereof.
"Cashless Exercise" has the meaning specified in Section 3.2
hereof.
"Cashless Exercise Ratio" means a fraction, the numerator of
which is the excess of the Current Market Value (as defined below) per
Ordinary Share on the Exercise Date over the Exercise Price per share
as of the Exercise Date and the denominator of which is the Current
Market Value per Ordinary Share on the Exercise Date.
"Change of Control Equity Offer" has the meaning specified in
Section 5.4(a) hereof.
"Change of Control Equity Offer Expiration Date" has the
meaning specified in Section 5.4(b) hereof.
"Cedel" means Cedel Bank, societe anonyme.
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"Class A Shares" means the Class A Shares, par value NLG 0.10
per share, of the Company.
"Class B Shares" means the Class B Shares, par value NLG 0.10
per share, of the Company.
"Combination" has the meaning specified in Section 4.1(d)
hereof.
"Commission" means the Securities and Exchange Commission.
"Consideration" has the meaning specified in Section 4.1(c)
hereof.
"Current Market Value," per Ordinary Share or any other
security at any date, means (i) if the security is not registered under
the Exchange Act, the fair market value of the security (without any
discount for lack of liquidity, the amount of such security offered to
be purchased or the fact that such securities may represent a minority
interest in a private company or a company under the control of another
Person) as determined in good faith by the Board and certified in a
board resolution that is delivered to the Warrant Agent, and determined
to be fair, from a financial point of view, to the holders of such
security or another security exercisable for such security, by an
Independent Financial Expert (as set forth in such Independent
Financial Expert's written fairness opinion); or (ii) if the security
is registered under the Exchange Act, the average of the last reported
sale price of the security (or the equivalent in an over-the-counter
market) for each Business Day (as defined herein) during the period
commencing 15 Business Days before such date and ending on the date one
day prior to such date, or if the security has been registered under
the Exchange Act for less than 15 consecutive Business Days before such
date, the average of the daily closing bid prices (or such equivalent)
for all of the Business Days before such date for which daily closing
bid prices are available (provided, however, that if the closing bid
price is not determinable for at least 10 Business Days in such period,
the "Current Market Value" of the security shall be determined as if
the security were not registered under the Exchange Act). The Company
shall pay the fees and expenses of any Independent Financial Expert in
the determination of Current Market Value.
"Definitive Warrants" means Warrants in definitive registered
form substantially in the form of Exhibit B.
"Depositary" has the meaning specified in Section 2.4 hereof.
"DTC" means The Depository Trust Company or its successors.
"DWAC" means the Depositary/Deposit Withdraw at Custodian
system.
"Euroclear" means Xxxxxx Guaranty Trust Company of New York
(Brussels office), as operator of the Euroclear System.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended (or any successor act), and the rules and regulations
promulgated thereunder.
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"Exercise Date" means the date on which a Warrant is exercised
by the Holder thereof.
"Exercisability Date" means the date of the closing of an
Initial Public Offering (as defined below) by the Company.
"Exercise Price" means the purchase price per Warrant Share to
be paid upon the exercise of each Warrant, which price shall be NLG
5.10 per Warrant Share as adjusted in accordance with the terms hereof.
"Existing Warrants" means the warrants issued under the
Warrant Agreement, dated as of May 27, 1998, between the Company and
United States Trust Company of New York, as warrant agent, representing
the right to purchase 6.667 Ordinary Shares of the Company, subject to
adjustment pursuant to such Agreement.
"Expiration Date" means May 15, 2008.
"Global Warrants" has the meaning specified in Section 2.4
hereof.
"Holder" means the registered holder of a Warrant.
"Independent Financial Expert" means an internationally
recognized investment bank that does not (and whose directors,
executive officers and 5% stockholders do not) have a direct or
indirect financial interest in the Company or any of its subsidiaries
or Affiliates, which has not been for at least five years, and at the
time it is called upon to give independent financial advice to the
Company is not (and none of its directors, executive officers or 5%
stockholders is), a promoter, director, or officer of the Company or
any of its subsidiaries or Affiliates. The Independent Financial Expert
may be compensated and indemnified by the Company for opinions or
services it provides as an Independent Financial Expert.
"Initial Public Offering" means the first time a registration
statement filed under the Securities Act (other than the Shelf
Registration Statement) respecting an offering, whether primary or
secondary, of Ordinary Shares representing at least 15% of the total
issued and outstanding Ordinary Shares of the Company which is
underwritten on a firmly committed or best efforts basis, is declared
effective and the securities so registered are issued and sold.
"Issue Date" means December 3, 1998, the date on which the
Warrants are first issued.
"Majority Holders" means the Holders of a majority of the then
outstanding Warrants.
"Managing Underwriter" has the meaning specified in Section
5.2(b) hereof.
"Nasdaq National Market" means the Nasdaq Stock Market
National Market.
"Offer" has the meaning specified in Section 4.1(e) hereof.
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"Offer Period" has the meaning specified in Section 4.1(e)
hereof.
"Offering" means the offering of the Units, the Notes and the
Warrants.
"Officer" means the principal executive officer, the principal
financial officer, the treasurer or the principal accounting officer of
the Company.
"Officers' Certificate" means a certificate signed on behalf
of the Company by two officers of the Company, one of whom must be the
principal executive officer, the principal financial officer, the
treasurer or the principal accounting officer of the Company.
"Ordinary Shares" has the meaning specified in the Preamble
hereto. References in this Agreement to Ordinary Shares underlying the
Warrants, or issued or deliverable upon exercise of the Warrants to the
Holders thereof, shall be deemed to refer to Class B Shares of the
Company.
"Per Share Consideration" has the meaning specified in Section
4.1(e) hereof.
"Person" means any individual, corporation, partnership, joint
venture, limited liability company, association, joint-stock company,
trust, unincorporated organization, government or any agency or
political subdivision thereof or any other entity.
"Private Placement Legend" has the meaning specified in
Section 2.5 hereof.
"Purchase Date" has the meaning specified in Section 4.1(e)
hereof.
"Qualified Institutional Buyer" or "QIB" shall have the
meaning specified in Rule 144A under the Securities Act.
"Regulation S" means Regulation S (including any successor
regulation thereto) under the Securities Act, as it may be amended from
time to time.
"Regulation S Global Warrants" has the meaning specified in
Section 2.4 hereof.
"Regulation S Warrants" has the meaning specified in Section
2.4 hereof.
"Representatives" has the meaning specified in Section 2.7
hereof.
"Repurchase Offer" has the meaning specified in Section 5.3(a)
hereof.
"Repurchase Price" means, in respect of a Warrant, (i) the
excess of the Current Market Value of an Ordinary Share of the Company
over the Exercise Price per Ordinary Share, multiplied by (ii) the
number of Warrant Shares that would be obtained if one Warrant was
exercised on the date of repurchase.
"Requesting Holders" has the meaning specified in Section
5.2(b) hereof.
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"Resale Restriction Termination Date" has the meaning
specified in Section 2.5 hereof.
"Restricted Period" has the meaning specified in Section 2.4
hereof.
"Right" has the meaning specified in Section 4.1(g) hereof.
"Rule 144A" means Rule 144A (including any successor
regulation thereto) under the Securities Act, as it may be amended from
time to time.
"Rule 144A Warrants" has the meaning specified in Section 2.4
hereof.
"Rule 144A Global Warrants" has the meaning specified in
Section 2.4 hereof. "Securities Act" means the Securities Act of 1933,
as amended.
"Separated" has the meaning specified in Section 2.7 hereof.
"Separation" has the meaning specified in Section 2.7 hereof.
"Separation Date" has the meaning specified in Section 2.7
hereof.
"Successor Company" has the meaning specified in Section
4.1(d) hereof.
"Triggering Date" has the meaning specified in Section 5.3(a)
hereof.
"Unit" means the $1,000 principal amount of Notes and one
Warrant that comprise each Unit.
"Unit Certificates" means the certificates evidencing the
Units to be delivered pursuant to the Purchase Agreement.
"Warrant Agent" means the United States Trust Company of New
York, or the successor or successors of such Warrant Agent appointed in
accordance with the terms hereof.
"Warrant Agent Office" has the meaning specified in Section
2.11 hereof.
"Warrant Certificates" means the certificates evidencing the
Warrants to be delivered pursuant to this Agreement, substantially in
the form of Exhibits A and B hereto.
"Warrant Register" has the meaning specified in Section 2.8
hereof.
"Warrant Registrar" has the meaning specified in Section 2.8
hereof.
"Warrant Shares" has the meaning specified in Section 2.1
hereof.
"Warrants" shall mean the Warrants issued hereunder and all
warrants issued upon transfer, division or combination of, or in
substitution for, any thereof. All Warrants shall at all times be
identical as to terms and conditions and date, except as to the number
of Class B Shares for which they may be exercised.
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1.2 Rules of Construction. Unless the text otherwise required.
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with United States generally accepted accounting
principles ("U.S. GAAP") as in effect from time to time;
(iii) "or" is not exclusive;
(iv) "including" means including, without limitation; and
(v) words in the singular include the plural and words in the
plural include the singular.
2. SECTION ISSUANCE, FORM, EXECUTION, DELIVERY AND
REGISTRATION OF WARRANT CERTIFICATES.
2.1 Issuance of Warrants. Warrants comprising part of the
Units shall be originally issued in connection with the issuance of the Units
and such Warrants shall not be separately transferable from the Notes until on
or after the Separation Date as provided in Section 2.7 hereof.
Each Warrant Certificate shall evidence the number of Warrants
specified therein, and each Warrant evidenced thereby shall represent the right,
subject to the provisions contained herein and therein, to purchase from the
Company (and the Company shall issue and sell to such Holder of the Warrant)
6.667 Class B Shares of the Company (the shares purchasable upon exercise of a
Warrant being hereinafter referred to as the "Warrant Shares," subject to
adjustment as provided in Section 4 hereof).
References in this Agreement to Ordinary Shares underlying the
Warrants, or issued or deliverable upon exercise of the Warrants to the Holders
thereof, shall be deemed to refer to Class B Shares of the Company.
2.2 Execution of Warrant Certificates. The Warrant
Certificates shall be executed on behalf of the Company by two Officers of the
Company. Such signatures may be the manual or facsimile signatures of the
present or any future such officers. Typographical and other minor errors or
defects in any such reproduction of any such signature shall not affect the
validity or enforceability of any Warrant Certificate that has been duly
countersigned and delivered by the Warrant Agent.
In case any officer of the Company who shall have signed any
of the Warrant Certificates shall cease to be such an officer before the Warrant
Certificate so signed shall be countersigned and delivered by the Warrant Agent
or disposed of by the Company, such Warrant Certificate nevertheless may be
countersigned and delivered or disposed of as though the Person
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who signed such Warrant Certificate had not ceased to be such an officer of the
Company; and any Warrant Certificate may be signed on behalf of the Company by
such Persons as, at the actual date of the execution of such Warrant
Certificate, shall be the proper officers of the Company, although at the date
of the execution and delivery of this Agreement any such Person was not such an
officer.
2.3 Countersignature and Delivery. Subject to the immediately
following paragraph, Warrant Certificates shall be countersigned by manual
signature and dated the date of countersignature by the Warrant Agent and shall
not be valid for any purpose unless so countersigned and dated. The Warrant
Certificates shall be numbered and shall be registered in the Warrant Register.
Upon the receipt by the Warrant Agent of a written order of
the Company set forth in an Officers' Certificate, specifying the amount of
Warrants to be countersigned, whether the Warrants are to be Global Warrants or
Definitive Warrants, whether the Warrants are to bear the Private Placement
Legend set forth in Section 2.5, the date of such Warrants and such other
information as the Warrant Agent may reasonably request, the Warrant Agent is
authorized, to countersign the Warrant Certificates upon receipt from the
Company at any time and from time to time of the Warrant Certificates, duly
executed as provided in Section 2.2 hereof, and deliver them, without any
further action by the Company. Such countersignature shall be by a duly
authorized signatory of the Warrant Agent (although it shall not be necessary
for the same signatory to sign all Warrant Certificates).
In case any authorized signatory of the Warrant Agent who
shall have countersigned any of the Warrant Certificates shall cease to be such
an authorized signatory before the Warrant Certificate shall be disposed of by
the Company, such Warrant Certificate nevertheless may be delivered or disposed
of as though the Person who countersigned such Warrant Certificate had not
ceased to be such an authorized signatory of the Warrant Agent; and any Warrant
Certificate may be countersigned on behalf of the Warrant Agent by such Persons
as, at the actual time of countersignature of such Warrant Certificates, shall
be the duly authorized signatories of the Warrant Agent, although at the time of
the execution and delivery of this Agreement any such Person is not such an
authorized signatory.
The Warrant Agent's countersignature on all Warrant
Certificates shall be in substantially the form set forth in Exhibit A and B
hereto.
2.4 Form of Warrant Certificates. Warrants offered and sold to
Qualified Institutional Buyers in reliance upon Rule 144A in the United States
of America ("Rule 144A Warrants") shall be issued on the Issue Date in the form
of one or more global Warrants in registered global form ("Rule 144A Global
Warrants"). Rule 144A Global Warrants shall be deposited with the Warrant Agent,
as custodian for, and registered in the name of DTC or its nominee, duly
executed by the Company and countersigned by the Warrant Agent as provided
herein; provided that until such time as the Warrants Separate (as defined
below) from the Notes, the Rule 144A Global Warrants shall be registered in the
name of the Unit Agent and shall be represented by a U.S. Global Unit deposited
with the Unit Agent as custodian for and registered in the name of DTC or its
nominee.
Warrants offered and sold outside the United States of America
in reliance on Regulation S ("Regulation S Warrants") shall be issued on the
Issue Date in the form of one or more global Warrants in registered global form
(the "Regulation S Global Warrants"). Regulation S Global Warrants shall be
deposited with the Warrant Agent as custodian for, and registered in the name
of, DTC or its nominee, for credit to the subscribers' respective accounts at
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Euroclear and Cedel, duly executed by the Company and countersigned by the
Warrant Agent as provided herein; provided that until such time as the Warrants
Separate from the Notes, the Regulation S Global Warrants shall be registered in
the name of the Unit Agent and shall be represented by a Regulation S Global
Unit deposited with the Unit Agent as custodian for, and registered in the name
of, DTC or its nominee, for credit to the subscribers' respective accounts at
Euroclear and Cedel. During a period of 40 days commencing on the latest of the
commencement of the Offering and the Issue Date (such period through and
including such 40th day, the "Restricted Period"), beneficial interests in the
Regulation S Global Warrants may be held only through Euroclear or Cedel (as
indirect participants in DTC). The Rule 144A Global Warrants and the Regulation
S Global Warrants are sometimes collectively referred to herein as the "Global
Warrants".
The Warrant Certificates evidencing the Global Warrants to be
delivered pursuant to this Agreement shall be substantially in the form set
forth in Exhibit A attached hereto. Such Global Warrants shall represent such of
the outstanding Warrants as shall be specified therein and each shall provide
that it shall represent the aggregate amount of outstanding Warrants from time
to time endorsed thereon and that the aggregate amount of outstanding Warrants
represented thereby may from time to time be decreased or increased, as
appropriate. Any endorsement of a Global Warrant to reflect the amount of any
increase or decrease in the amount of outstanding Warrants represented thereby
shall be made by the Warrant Agent and DTC in accordance with instructions given
by the holder thereof. The Depository Trust Company shall act as the Depositary
(the "Depositary") with respect to the Global Warrants until a successor, if
any, shall be appointed by the Company. Except as provided in Section 2.9(b),
owners of beneficial interests in a Global Warrant will not be entitled to
receive physical delivery of Definitive Warrants.
2.5 Restrictive Legends.
Global Warrants shall bear the following legend (the "Private
Placement Legend") on the face thereof:
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR ANY STATE OR OTHER SECURITIES LAWS. NEITHER THIS SECURITY
NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF
THIS SECURITY BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A)
IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON
AND IS ACQUIRING THIS SECURITY IN AN "OFFSHORE TRANSACTION"
PURSUANT TO RULE 904 OF REGULATION S, (2) AGREES THAT IT WILL
NOT PRIOR TO (X) THE DATE WHICH IS TWO YEARS (OR SUCH SHORTER
PERIOD OF TIME AS PERMITTED BY RULE 144(k) UNDER
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THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER)
AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF (OR OF ANY
PREDECESSOR OF THIS SECURITY) OR THE LAST DAY ON WHICH THE
COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS
SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) AND (Y) SUCH
LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAWS (THE
"RESALE RESTRICTION TERMINATION DATE"), OFFER, SELL OR
OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY,
(B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG
AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE
144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS
GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS
THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH
PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND; PROVIDED THAT THE
COMPANY AND THE WARRANT AGENT SHALL HAVE THE RIGHT PRIOR TO
ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSE (D) OR
(E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF
THEM, AND (II) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT
A CERTIFICATION OR TRANSFER IN THE FORM APPEARING ON THE OTHER
SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE
TRANSFEROR TO THE WARRANT AGENT, THIS LEGEND WILL BE REMOVED
UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION
TERMINATION DATE. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE
MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES
ACT.
The Global Warrants shall also bear the following legend on
the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY ("DTC") TO THE
COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR SUCH OTHER REPRESENTATIVE OF DTC AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DTC),
ANY TRANSFER, PLEDGE OR
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OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO.
OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND
TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED
TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN SECTIONS 2.9 AND 2.10 OF THE WARRANT AGREEMENT DATED
AS OF DECEMBER 3, 1998.
2.6 Temporary Warrant Certificates. Pending the preparation of
definitive Warrant Certificates ("Definitive Warrant Certificates"), the Company
may execute, and the Warrant Agent shall countersign and deliver, temporary
Warrant Certificates, which are printed, lithographed, typewritten or otherwise
produced, substantially of the tenor of the Definitive Warrant Certificates in
lieu of which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Warrant
Certificates may determine, as evidenced by their execution of such Warrant
Certificates.
If temporary Warrant Certificates are issued, the Company will
cause Definitive Warrant Certificates to be prepared without unreasonable delay.
After the preparation of Definitive Warrant Certificates, the temporary Warrant
Certificates shall be exchangeable for Definitive Warrant Certificates upon
surrender of the temporary Warrant Certificates at any office or agency
maintained by the Company for that purpose pursuant to Section 2.11 hereof.
Subject to the provisions of Section 3.6 hereof, such exchange shall be without
charge to the holder. Upon surrender for cancellation of any one or more
temporary Warrant Certificates, the Company shall execute, and the Warrant Agent
shall countersign and deliver in exchange therefor, one or more Definitive
Warrant Certificates representing in the aggregate a like number of Warrants.
Until so exchanged, the holder of a temporary Warrant Certificate shall in all
respects be entitled to the same benefits under this Agreement as a holder of a
Definitive Warrant Certificate.
2.7 Separation of Warrants and Notes. The Notes and Warrants
will not be separately transferable until the Separation Date. The "Separation
Date" will be the earliest of (i) May 15, 1999, (ii) the commencement of an
exchange offer or the effectiveness of a Shelf Registration Statement with
respect to the Notes, (iii) the Exercisability Date and (iv) such other date as
Xxxxxx Brothers Inc. and Xxxxxx Brothers International (Europe), as
representatives of the Initial Purchasers (the "Representatives"), will
determine in their sole discretion. The surrender of a Unit Certificate for
separate Warrant and Note certificates is herein referred to as a "Separation"
and the related Warrants being referred to as "Separated." Upon Separation of
the Warrants and the Notes, the Global Warrants shall be transferred to and
deposited with the Warrant Agent, as custodian for, and registered in the name
of DTC or its nominee, duly executed by the Company and countersigned by the
Warrant Agent as provided herein.
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2.8 Registration, Registration of Transfers and Exchanges. The
Company will keep, at the office or agency maintained by the Company for such
purpose, a register or registers in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of, and registration of transfer and exchange of, Warrants as provided herein.
Each person designated by the Company from time to time as a Person authorized
to register the transfer and exchange of the Warrants is hereinafter called,
individually and collectively, the "Warrant Registrar." The Company hereby
initially appoints the Warrant Agent as Warrant Registrar. Upon written notice
to the Warrant Agent and any acting Warrant Registrar, the Company may appoint a
successor Warrant Registrar for such purposes.
The Company will at all times designate one Person (who may be
the Company and who need not be a Warrant Registrar) to act as repository of a
master list of names and addresses of the holders of Warrants (the "Warrant
Register"). The Warrant Agent will act as such repository unless and until some
other Person is, by written notice from the Company to the Warrant Agent and the
Warrant Registrar, designated by the Company to act as such. In the event the
Warrant Registrar is not the repository, the Company shall cause the Warrant
Registrar to furnish to such repository, on a current basis, such information as
to all registrations of transfer and exchanges effected by the Warrant
Registrar, as may be necessary to enable such repository to maintain the Warrant
Register on as current a basis as is practicable.
When Warrants are presented to the Warrant Agent with a
request to register the transfer of the Warrants or exchange Warrants for an
equal number of Warrants of other authorized denominations, the Warrant Agent
shall register the transfer or make the exchange as requested if the
requirements under this Warrant Agreement as set forth herein for such
transactions are met; provided, however, that the Warrants presented or
surrendered for registration of transfer or exchange shall be duly endorsed or
accompanied by a written instruction of transfer in form satisfactory to the
Company and the Warrant Agent, duly executed by the holder thereof or by his
attorney, duly authorized in writing.
Furthermore, any Holder of a Global Warrant shall, by
acceptance of such Global Warrant, agree that transfers of beneficial interests
in such Global Warrant may be effected only through a book-entry system
maintained by the Holder of such Global Warrant (or its agent), and that
ownership of a beneficial interest in the Warrant shall be required to be
reflected in a book entry.
All Warrants issued upon any registration of transfer or
exchange of Warrants shall be the valid obligations of the Company, evidencing
the same obligations, and entitled to the same benefits under this Agreement, as
the Warrants surrendered upon such registration of transfer or exchange.
2.9 Book-Entry Provisions for Global Warrants.
(a) Registered Owner of Global Warrants. Each Global Warrant
initially shall (i) be registered in the name of DTC or its nominee, (ii) be
delivered to the Warrant Agent as custodian for the Depositary and (iii) bear
legends as set forth in Section 2.5.
Members of, or participants in, DTC ("Agent Members") shall
have no rights under this Agreement with respect to any Global Warrant held on
their behalf by DTC, or the Warrant Agent as its custodian, or under the Global
Warrant, and DTC may be treated by the Company, the Warrant Agent and any agent
of the Company or the Warrant Agent as the absolute owner of such Global Warrant
for all purposes whatsoever. Notwithstanding the
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foregoing, nothing herein shall prevent the Company, the Warrant Agent or any
agent of the Company or the Warrant Agent from giving effect to any written
certification, proxy or other authorization furnished by DTC or shall impair, as
between DTC and its Agent Members, the operation of customary practices
governing the exercise of the rights of a Holder of any Warrant.
(b) Transfers of Global Warrants. Transfers of a Global
Warrant shall be limited to transfers of such Global Warrant in whole, but not
in part, to DTC, its successors or their respective nominees. Interests of
beneficial owners in a Global Warrant may be transferred in accordance with the
rules and procedures of DTC and the provisions of this Section 2.9. If required
to do so pursuant to any applicable law or regulation, beneficial owners may
obtain Warrants in definitive form, in exchange for their beneficial interests
in a Global Warrant upon written request in accordance with DTC's and the
Warrant Registrar's procedures. In addition, Definitive Warrants shall be
transferred to all beneficial owners in exchange for their beneficial interests
in a Global Warrant if (i) DTC (A) notifies the Company that it is unwilling or
unable to continue as Depositary for the Global Warrant and the Company
thereupon fails to appoint a successor depositary upon 90 days notice or (B) has
ceased to be a clearing agency registered under the Exchange Act and the Company
thereupon fails to appoint a successor depositary upon 90 days notice, (ii) an
Event of Default under the Indenture occurs and is continuing or (iii) the
Company, at its option, notifies the Warrant Agent in writing that it elects to
cause issuance of Definitive Warrants. In addition, beneficial interests in a
Global Warrant may be exchanged for Definitive Warrants upon request but only
upon at least 20 days' prior written notice given to the Warrant Agent by or on
behalf of DTC in accordance with customary procedures. In all cases, Definitive
Warrants delivered in exchange for any Global Warrants or beneficial interest
therein will be registered in names, and issued in any approved denominations,
requested by or on behalf of DTC (in accordance with its customary procedures)
and will bear the Private Placement Legend set forth in Section 2.5, if
applicable, unless the Company determines otherwise in compliance with
applicable law.
(c) In connection with any transfer of a portion of the
beneficial interest in a Global Warrant pursuant to subsection (b) of this
Section 2.9 to beneficial owners who are required to hold Definitive Warrants,
the Warrant Registrar shall reflect on its books and records the date and a
decrease in the amount of such Global Warrant in an amount equal to the amount
of the beneficial interest in the Global Warrant to be transferred, and the
Company shall execute, and the Warrant Agent shall countersign and deliver, one
or more Definitive Warrants of like tenor and amount.
(d) In connection with the transfer of an entire Global
Warrant to beneficial owners pursuant to subsection (b) of this Section 2.9,
such Global Warrant shall be deemed to be surrendered to the Warrant Agent for
cancellation, and the Company shall execute, and the Warrant Agent shall
countersign and deliver, to each beneficial owner identified by DTC in exchange
for its beneficial interest in such Global Warrant, an equal aggregate amount of
Definitive Warrants of authorized denominations.
(e) Any Definitive Warrant delivered in exchange for an
interest in a Global Warrant pursuant to subsection (c) or subsection (d) of
this Section shall, except as otherwise provided herein, bear the Private
Placement Legend set forth in Section 2.5, if applicable.
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(f) The Holder of a Global Warrant may grant proxies and
otherwise authorize any Person, including Agent Members and Persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Agreement or the Warrants.
2.10 Special Transfer Provisions.
(a) Rule 000X Xxxxxx Xxxxxxx to Regulation S Global Warrant.
If a Holder of a beneficial interest in the Rule 144A Global Warrant deposited
with the Warrant Agent, as custodian for DTC, wishes at any time to exchange its
interest in such Rule 144A Global Warrant for an interest in the Regulation S
Global Warrant, or to transfer its interest in such Rule 144A Global Warrant to
a Person who wishes to take delivery thereof in the form of an interest in such
Regulation S Global Warrant, such Holder may, subject to the rules and
procedures of DTC and to the requirements set forth in the following sentence,
exchange or cause the exchange or transfer or cause the transfer of such
interest for an equivalent beneficial interest in such Regulation S Global
Warrant. Upon receipt by the Warrant Agent, as Transfer Agent, of (1)
instructions given in accordance with DTC's procedures from or on behalf of a
Holder of a beneficial interest in the Rule 000X Xxxxxx Xxxxxxx, directing (via
DWAC) the Warrant Agent, as Transfer Agent, to credit or cause to be credited a
beneficial interest in the Regulation S Global Warrant in an amount equal to the
beneficial interest in the Rule 000X Xxxxxx Xxxxxxx to be exchanged or
transferred, (2) a written order given in accordance with DTC's procedures
containing information regarding the Euroclear or Cedel account to be credited
with such increase and the name of such account, and (3) a certificate in the
form of Exhibit C given by the Holder of such beneficial interest stating that
the exchange or transfer of such interest has been made pursuant to and in
accordance with Rule 904 of Regulation S or Rule 144 under the Securities Act,
the Warrant Agent, as Transfer Agent, shall promptly deliver appropriate
instructions (via DWAC) to DTC, its nominee, or the custodian for DTC, as the
case may be, to reduce or reflect on its records a reduction of the Rule 144A
Global Warrant by the amount of the beneficial interest in such Rule 144A Global
Warrant to be so exchanged or transferred from the relevant participant, and the
Warrant Agent, as Transfer Agent, shall promptly deliver appropriate
instructions (via DWAC) to DTC, its nominee, or the custodian for DTC, as the
case may be, concurrently with such reduction, to increase or reflect on its
records an increase of the amount of such Regulation S Global Warrant by the
amount of the beneficial interest in such Rule 144A Global Warrant to be so
exchanged or transferred, and to credit or cause to be credited to the account
of the Person specified in such instructions (who shall be the agent member of
Euroclear or Cedel, or both, as the case may be) a beneficial interest in such
Regulation S Global Warrant equal to the reduction in the amount of such Rule
144A Global Warrant.
(b) Regulation S Global Warrant to Rule 144A Global Warrant.
If a Holder of a beneficial interest in the Regulation S Global Warrant wishes
at any time to exchange its interest in such Regulation S Global Warrant for an
interest in the Rule 000X Xxxxxx Xxxxxxx, or to transfer its interest in such
Regulation S Global Warrant to a Person who wishes to take delivery thereof in
the form of an interest in such Rule 000X Xxxxxx Xxxxxxx, such Holder may,
subject to the rules and procedures of Euroclear or Cedel and DTC, as the case
may be, and to the requirements set forth in the following sentence, exchange or
cause the exchange or transfer or cause the transfer of such interest for an
equivalent beneficial interest in such Rule 144A Global Warrant. Upon receipt by
the Warrant Agent, as Transfer Agent, of (l) instructions given in accordance
with the procedures of Euroclear or Cedel and DTC, as the case may be, from or
on behalf of a beneficial owner of an interest in the Regulation S Global
Warrant directing the Warrant Agent, as Transfer Agent, to credit or cause to be
credited a beneficial interest in the Rule 144A Global Warrant in an amount
equal to the beneficial interest in the Regulation S Global Warrant to be
exchanged or transferred, (2) a written order given in accordance with the
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procedures of Euroclear or Cedel and DTC, as the case may be, containing
information regarding the account with DTC to be credited with such increase and
the name of such account, and (3) prior to the expiration of the Restricted
Period, a certificate in the form of Exhibit D given by the Holder of such
beneficial interest and stating that the Person transferring such interest in
such Regulation S Global Warrant reasonably believes that the Person acquiring
such interest in such Rule 000X Xxxxxx Xxxxxxx is a Qualified Institutional
Buyer and is obtaining such beneficial interest in a transaction meeting the
requirements of Rule 144A and any applicable securities laws of any state of the
United States or any other jurisdiction, the Warrant Agent, as Transfer Agent,
shall promptly deliver (via DWAC) appropriate instructions to DTC, its nominee,
or the custodian for DTC, as the case may be, to reduce or reflect on its
records a reduction of the Regulation S Global Warrant by the amount of the
beneficial interest in such Regulation S Global Warrant to be exchanged or
transferred, and the Warrant Agent, as Transfer Agent, shall promptly deliver
(via DWAC) appropriate instructions to DTC, its nominee, or the custodian for
DTC, as the case may be, concurrently with such reduction, to increase or
reflect on its records an increase of the amount of such Rule 144A Global
Warrant by the amount of the beneficial interest in such Regulation S Global
Warrant to be so exchanged or transferred, and to credit or cause to be credited
to the account of the Person specified in such instructions a beneficial
interest in such Rule 144A Global Warrant equal to the reduction in the amount
of such Regulation S Global Warrant. After the expiration of the Restricted
Period, the certification requirement set forth in clause (3) of the second
sentence of this Section 2.10(b) will no longer apply to such transfers.
(c) Any beneficial interest in one of the Global Warrants that
is transferred to a Person who takes delivery in the form of an interest in the
other Global Warrant will, upon transfer, cease to be an interest in such Global
Warrant and become an interest in the other Global Warrant and, accordingly,
will thereafter be subject to all transfer restrictions and other procedures
applicable to beneficial interests in such other Global Warrant for as long as
it remains such an interest.
(d) Other Exchanges. In the event that a Global Warrant is
exchanged for Definitive Warrants in registered form pursuant to Section 2.9(b),
such Warrants may be exchanged or transferred for one another only in accordance
with such procedures as are substantially consistent with the provisions of
Sections 2.10(a) and (b) above (including the certification requirements
intended to ensure that such exchanges or transfers comply with Rule 144, Rule
144A or Regulation S, as the case may be) and as may be from time to time
adopted by the Company and the Warrant Agent.
(e) Private Placement Legend. Upon the transfer, exchange or
replacement of Warrants not bearing the Private Placement Legend, the Warrant
Registrar shall deliver Warrants that do not bear the Private Placement Legend.
Upon the transfer, exchange or replacement of Warrants bearing the Private
Placement Legend, the Warrant Registrar shall deliver only Warrants that bear
the Private Placement Legend unless there is delivered to the Warrant Registrar
an opinion of counsel reasonably satisfactory to the Company and the Warrant
Agent to the effect that neither such legend nor the related restrictions on
transfer are required in order to maintain compliance with the provisions of the
Securities Act.
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(f) General. The provisions hereof shall be qualified in their
entirety by any applicable securities laws of the United States and any other
applicable jurisdiction and by the procedures of any applicable clearing agency,
in each case as in effect from time to time, and all such laws and clearing
procedures shall be deemed to be incorporated herein by reference. By its
acceptance of any Warrant bearing the Private Placement Legend, each Holder of
such a Warrant acknowledges the restrictions on transfer of such Warrant set
forth in this Agreement and in the Private Placement Legend and agrees that it
will transfer such Warrant only as provided in this Agreement. The Warrant Agent
shall not register a transfer of any Warrant Certificate unless such transfer
complies with the restrictions on transfer of such Warrant Certificate set forth
in this Warrant Agreement.
(g) Resale Restriction Termination Date. The Company shall
deliver to the Warrant Agent an Officer's Certificate setting forth the dates on
which the Resale Restriction Termination Date terminates.
The Warrant Registrar shall retain copies of all letters,
notices and other written communications received pursuant to Section 2.9 or
this Section 2.10. The Company shall have the right to inspect and make copies
of all such letters, notices or other written communications at any reasonable
time upon the giving of reasonable written notice to the Warrant Registrar.
(i) No Obligation of the Warrant Agent. The Warrant Agent
shall have no responsibility or obligation to any beneficial owner of a Global
Warrant, a member of, or a participant in DTC or other Person with respect to
any ownership interest in the Warrants, with respect to the accuracy of the
records of DTC or its nominee or of any participant or member thereof or with
respect to the delivery to any participant, member, beneficial owner or other
Person (other than DTC) of any notice (including any notice of redemption) or
the payment of any amount, under or with respect to such Warrants. All notices
and communications with respect to the Warrants shall be given to the Holders
and all payments in respect of the Warrants represented by the Global Warrant
shall be made by wire transfer of immediately available funds to the accounts
specified by the Holder of the Global Warrant. With respect to Definitive
Warrants, the Company will make all payments by wire transfer of immediately
available funds to the accounts specified by the Holders thereof or, if no such
account is specified, by mailing a check to each such Holder's registered
address. The rights of beneficial owners in any Global Warrant shall be
exercised only through DTC subject to the applicable rules and procedures of
DTC. The Warrant Agent may rely and shall be fully protected and indemnified
pursuant to Section 6.5 in relying upon information furnished by DTC with
respect to any beneficial owners, its members and participants.
(ii) The Warrant Agent shall have no obligation or duty to
monitor, determine or inquire as to compliance with any restrictions on transfer
imposed under this Agreement or under applicable law with respect to any
transfer of any interest in any Warrant (including without limitation any
transfers between or among DTC participants, members or beneficial owners in any
Global Warrant) other than to require delivery of such certificates and other
documentation of evidence as are expressly required by, and to do so if and when
expressly required by, the terms of this Agreement, and to examine the same to
determine substantial compliance as to form with the express requirements
hereof.
2.11 Offices for Exercise, etc. So long as any of the Warrants
remain outstanding, the Company will designate and maintain in the Borough of
Manhattan, The City of New York: (a) an office or agency where the Warrant
Certificates may be presented for exercise, (b) an office or agency where the
Warrant Certificates may be presented for registration of
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transfer and for exchange (including the exchange of temporary Warrant
Certificates for Definitive Warrant Certificates pursuant to Section 2.6
hereof), and (c) an office or agency where notices and demands to or upon the
Company in respect of the Warrants or of this Agreement may be served. The
Company may from time to time change or rescind such designation, as it may deem
desirable or expedient; provided, however, that an office or agency shall at all
times be maintained in the Borough of Manhattan, The City of New York, as
provided in the first sentence of this Section. In addition to such office or
offices or agency or agencies, the Company may from time to time designate and
maintain one or more additional offices or agencies within or outside The City
of New York, where Warrant Certificates may be presented for exercise or for
registration of transfer or for exchange, and the Company may from time to time
change or rescind such designation, as it may deem desirable or expedient. The
Company will give to the Warrant Agent and the Warrant Registrar written notice
of the location of any such office or agency and of any change of location
thereof. The Company hereby designates the Warrant Agent at its corporate trust
office in the Borough of Manhattan, The City of New York (the "Warrant Agent
Office"), as the initial agency maintained for each such purpose. In case the
Company shall fail to maintain any such office or agency or shall fail to give
such notice of the location or of any change in the location thereof,
presentations and demands may be made and notice may be served at the Warrant
Agent Office and the Company appoints the Warrant Agent as its agent to receive
all such presentations, surrenders, notices and demands.
2.12 Cancellation. All Warrant Certificates surrendered for
the purpose of exercise (in whole or in part), exchange, substitution or
transfer shall, if surrendered to the Company or to any of its agents, be
delivered to the Warrant Agent for cancellation or in cancelled form, or if
surrendered to the Warrant Agent shall be cancelled by it, and no Warrant
Certificates shall be issued in lieu thereof except as expressly permitted by
any of the provisions of this Agreement. If the Company purchases or acquires
Warrants and if the Company so chooses, the Company may deliver to the Warrant
Agent for cancellation and retirement, and the Warrant Agent shall so cancel and
retire (subject to the record retention provisions of the Exchange Act), the
Warrant Certificates evidencing said Warrants. The Warrant Agent shall destroy
such cancelled Warrant Certificates, and in such case shall upon the written
request of the Company deliver a certificate of destruction thereof to the
Company. The Warrant Agent shall account promptly to the Company with respect to
Warrants exercised and concurrently pay to the Company all monies received by
the Warrant Agent for the purchase of the Warrant Shares through the exercise of
such Warrants.
2.13 Lost, Stolen, Destroyed, Defaced or Mutilated Warrant
Certificates. Upon receipt by the Company and the Warrant Agent (or any agent of
the Company or the Warrant Agent, if requested by the Company) of evidence
satisfactory to them of the loss, theft, destruction, defacement, or mutilation
of any Warrant Certificate and of indemnity satisfactory to them (which may
include posting a bond) and, in the case of mutilation or defacement, upon
surrender thereof to the Warrant Agent for cancellation, then, in the absence of
notice to the Company or the Warrant Agent that such Warrant Certificate has
been acquired by a bona fide purchaser or holder in due course, the Company
shall execute, and an authorized signatory of the Warrant Agent shall manually
countersign and deliver, in exchange for or in lieu of the lost, stolen,
destroyed, defaced or mutilated Warrant Certificate, a new Warrant Certificate
representing a like number of Warrants, bearing a number or other distinguishing
symbol not contemporaneously outstanding. Upon the issuance of any new Warrant
Certificate under this
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Section, the Company may require the payment from the Holder of such Warrant
Certificate of a sum sufficient to cover any tax, stamp tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Warrant Agent and the Warrant
Registrar) in connection therewith. Every substitute Warrant Certificate
executed and delivered pursuant to this Section in lieu of any lost, stolen or
destroyed Warrant Certificate shall constitute an additional contractual
obligation of the Company, whether or not the lost, stolen or destroyed Warrant
Certificate shall be at any time enforceable by anyone, and shall be entitled to
the benefits of (but shall be subject to all the limitations of rights set forth
in) this Agreement equally and proportionately with any and all other Warrant
Certificates duly executed and delivered hereunder. The provisions of this
Section 2.13 are exclusive with respect to the replacement of lost, stolen,
destroyed, defaced or mutilated Warrant Certificates and shall preclude (to the
extent lawful) any and all other rights or remedies notwithstanding any law or
statute existing or hereafter enacted to the contrary with respect to the
replacement of lost, stolen, destroyed, defaced or mutilated Warrant
Certificates.
The Warrant Agent is hereby authorized to countersign in
accordance with the provisions of this Agreement, and deliver the new Warrant
Certificates required pursuant to the provisions of this Section.
3. SECTION TERMS OF WARRANTS; EXERCISE OF WARRANTS.
3.1 Exercise Period. Subject to the terms of this Agreement,
each Warrant Holder shall have the right, which may be exercised commencing at
the opening of business on the Exercisability Date and until 5:00 p.m., New York
City time on the Expiration Date, to receive from the Company the number of
fully paid and nonassessable Warrant Shares which the Holder may at the time be
entitled to receive on exercise of such Warrants and payment of the Exercise
Price then in effect for such Warrant Shares. Each Warrant not exercised prior
to 5:00 p.m., New York City time, on the Expiration Date shall become void and
all rights thereunder and all rights in respect thereof under this Agreement
shall cease as of such time.
Until the Separation Date, each $1,000 principal amount of
Notes and one Warrant which comprise each Unit, may not be separately
transferred or exchanged. The Warrant Agent shall coordinate its activities
hereunder with the Trustee under the Indenture and the Unit Agent under the Unit
Agreement, and may rely upon information provided by such Trustee regarding
ownership or transfer of the Notes and/or by the Unit Agent regarding ownership
or transfer of the Units.
The Company shall give notice not less than 90, and not more
than 120, days prior to the Expiration Date to the Holders of the outstanding
Warrants to the effect that the Warrants will terminate and become void as of
5:00 p.m., New York City time, on the Expiration Date; provided, however, that
the failure by the Company to give such notice as provided in this Section shall
not affect such termination and becoming void of the Warrants as of 5:00 p.m.,
New York City time, on the Expiration Date.
3.2 Manner of Exercise. A Warrant may be exercised at any time
on or after the Exercisability Date and prior to the Expiration Date upon (i)
surrender to the Warrant Agent of the Warrant Certificates, together with the
form of election to purchase properly completed and executed by the Holder
thereof and (ii) payment to the Warrant Agent, for the account of the Company,
of the Exercise Price for each Class B Share or other securities issuable upon
exercise of such Warrants. The Exercise Price may be paid (i) in cash or by
certified or official bank
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check or by wire transfer to an account designated by the Company for such
purpose (a "Cash Exercise") or (ii) without the payment of cash, by reducing the
number of Class B Shares that would be obtainable upon the exercise of a Warrant
and payment of the Exercise Price in cash so as to yield a number of Class B
Shares upon the exercise of such Warrant equal to the product of (a) the number
of Class B Shares for which such Warrant is exercisable as of the date of
exercise (if the Exercise Price were being paid in cash) and (b) the Cashless
Exercise Ratio. An exercise of a Warrant in accordance with clause (ii) of the
immediately preceding sentence is herein called a "Cashless Exercise." In the
event of a Cashless Exercise of Warrants, the Company will purchase from the
Holder thereof such number of Warrants as would have entitled the Holder thereof
to receive the excess of the number of Class B Shares deliverable upon a Cash
Exercise over the number of Class B Shares deliverable upon a Cashless Exercise,
for a purchase price equal to the Exercise Price multiplied by the excess of the
number of Class B Shares purchasable upon a Cash Exercise over the number of
Class B Shares purchasable upon a Cashless Exercise. The Company agrees to
offset the purchase price referred to in the immediately preceding sentence with
the obligation to pay the Exercise Price in respect of the Class B Shares
deliverable upon a Cashless Exercise. Upon surrender of a Warrant Certificate
representing more than one Warrant in connection with the Holder's option to
elect a Cashless Exercise, the number of Class B Shares deliverable upon a
Cashless Exercise shall be equal to the number of Class B Shares issuable upon
the exercise of Warrants that the Holder specifies are to be exercised pursuant
to a Cashless Exercise multiplied by the Cashless Exercise Ratio. All provisions
of this Agreement shall be applicable with respect to a surrender of a Warrant
Certificate pursuant to a Cashless Exercise for less than the full number of
Warrants represented thereby. Upon surrender of the Warrant Certificate and
payment of the Exercise Price in accordance with this Agreement, the Company
will issue Class B Shares of the Company for each Warrant evidenced by such
Warrant Certificate, subject to adjustment as described herein. Whenever there
occurs a Cashless Exercise, the Company shall deliver to the Warrant Agent a
certificate setting forth the Cashless Exercise Ratio. The Warrant Agent shall
be entitled to rely on such certificate and shall be under no duty or
responsibility with respect to any such certificate, except to exhibit the same
from time to time, to any Holder desiring an inspection thereof during
reasonable business hours. The Warrant Agent shall not at any time be under any
duty or responsibility to any Holder to determine whether the Cashless Exercise
Ratio is correct or with respect to the method employed in determining the
Cashless Exercise Ratio or the validity or value of any Class B Shares. In
connection with the exercise of Warrants pursuant to this Agreement, the Company
and the Warrant Agent may take any actions required by the introduction of the
Euro.
3.3 Issuance of Warrant Shares. Subject to Section 2.13, upon
the surrender of Warrant Certificates and payment of the Exercise Price, as set
forth above, the Company shall issue Class B Shares in such name or names as the
Holder may designate, for the number of full Warrant Shares so purchased upon
the exercise of such Warrants or other securities or property to which it is
entitled, registered or otherwise, to the Person or Persons entitled to receive
the same, together with cash as provided in Section 3.4 in respect of any
fractional Warrant Shares otherwise issuable upon such exercise. Such Class B
Shares shall be deemed to have been issued and any Person so designated shall be
deemed to have become a Holder of record of such Warrant Shares as of the date
of the surrender of such Warrant Certificates and payment of the per share
Exercise Price or upon a Cashless Exercise.
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The Company hereby agrees that no service charge will be made
for registration of transfer or exchange upon surrender of any Warrant
Certificate at the office of the Warrant Agent maintained for that purpose.
Holders may be required to make payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any
registration or transfer or exchange of Warrant Certificates.
3.4 Fractional Warrant Shares. The Company shall not be
required to issue fractional Warrant Shares on the exercise of Warrants. If more
than one Warrant shall be exercised in full at the same time by the same Holder,
the number of full Warrant Shares which shall be issuable upon such exercise
shall be computed on the basis of the aggregate number of Warrant Shares
purchasable pursuant thereto. If any fraction of a Warrant Share would, except
for the provisions of this Section 3.4, be issuable on the exercise of any
Warrant (or specified portion thereof), the Company may, at its option, pay an
amount in cash equal to the Current Market Value for one Warrant Share on the
Business Day immediately preceding the date the Warrant is exercised, multiplied
by such fraction, computed to the nearest whole Dutch guilder.
3.5 Sufficient Authorized Share Capital.
The Company has and will maintain an authorized share capital
sufficient for the issuance of such number of Class B Shares as will be issuable
upon the exercise of all outstanding Warrants. Such Class B Shares, when issued
and paid for in accordance with the Warrant Agreement, will be duly and validly
issued, fully paid and nonassessable, free of preemptive rights and free from
all liens, charges and security interests with respect to the issue thereof.
3.6 Payment of Taxes. The Company will pay all documentary
stamp taxes attributable to the initial issuance of the Warrants and the Warrant
Shares issuable upon the exercise of Warrants; provided, however, that the
Company shall not be required to pay any tax or taxes which may be payable in
respect of any transfer involved in the issue of any Warrant Certificates or
Warrant Shares in a name other than that of the Holder of a Warrant Certificate
surrendered upon the exercise of a Warrant, and the Company shall not be
required to issue or deliver such Warrant Certificates unless or until the
Person or Persons requesting the issuance thereof shall have paid to the Company
the amount of such tax or shall have established to the satisfaction of the
Company that such tax has been paid.
4. SECTION ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF WARRANT
SHARES ISSUABLE.
4.1 Adjustments. The Exercise Price and the number of Warrant
Shares purchasable upon the exercise of Warrants shall be subject to adjustment
from time to time as follows:
(a) Changes in Ordinary Shares. In the event that at any time
or from time to time after the date hereof the Company shall (i) pay a dividend
or make a distribution on its Ordinary Shares in Ordinary Shares or other shares
of capital stock, (ii) subdivide its outstanding Ordinary Shares into a larger
number of Ordinary Shares, (iii) combine its outstanding Ordinary Shares into a
smaller number of Ordinary Shares or (iv) increase or decrease the number of
Ordinary Shares outstanding by reclassification of its Ordinary Shares, then the
number of Ordinary Shares purchasable upon exercise of each Warrant immediately
after the happening of such event shall be adjusted (including by adjusting the
definition of "Warrant Shares") so that,
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after giving effect to such adjustment, the Holder of each Warrant shall be
entitled to receive the number of Ordinary Shares upon exercise that such Holder
would have owned or have been entitled to receive had such Warrants been
exercised immediately prior to the happening of the events described above (or,
in the case of a dividend or distribution of Ordinary Shares, immediately prior
to the record date therefor). An adjustment made pursuant to this Section 4.1(a)
shall become effective immediately after the effective date, retroactive to the
record date therefor in the case of a dividend or distribution in Ordinary
Shares, and shall become effective immediately after the effective date in the
case of a subdivision, combination or reclassification.
(b) Cash Dividends and Other Distributions. In case at any
time or from time to time after the date hereof the Company shall distribute to
holders of Ordinary Shares (i) any dividend or other distribution of cash,
evidences of its indebtedness, shares of its capital stock or any other
properties or securities or (ii) any options, warrants or other rights to
subscribe for or purchase any of the foregoing (other than, in each case set
forth in (i) and (ii), (x) any dividend or distribution described in Section
4.1(a) or (y) any rights, options, warrants or securities described in Section
4.1(c)) then the number of Warrant Shares purchasable upon the exercise of each
Warrant shall be increased to a number determined by multiplying the number of
Ordinary Shares issuable immediately prior to the record date upon exercise of
each Warrant by a fraction, the numerator of which shall be the sum of (x) any
cash distributed per Warrant Share and (y) the Current Market Value of the
portion, if any, of the distribution applicable to one Warrant Share consisting
of evidences of indebtedness, shares of stock, securities, other property,
warrants, options or subscription of purchase rights and the denominator of
which shall be the Current Market Value of the Ordinary Shares comprising one
Warrant Share immediately after such dividend or other distribution. Such
adjustment shall be made whenever any distribution is made and shall become
effective as of the date of distribution, retroactive to the record date for any
such distribution; provided, however, that the Company is not required to make
an adjustment pursuant to this Section 4.1(b) if at the time of such
distribution the Company makes the same distribution to Holders of Warrants as
it makes to holders of Ordinary Shares pro rata based on the number of Ordinary
Shares for which such Warrants are exercisable (whether or not currently
exercisable). No adjustment shall be made pursuant to this Section 4.1(b) which
shall have the effect of decreasing the number of Warrant Shares purchasable
upon exercise of each Warrant.
(c) Rights Issue. In the event that at any time or from time
to time after the date hereof the Company shall issue, sell, distribute or
otherwise grant any rights to subscribe for or to purchase, or any options or
warrants for the purchase of, or any securities convertible or exchangeable
into, Ordinary Shares to all holders of Ordinary Shares, entitling such holders
to subscribe for or purchase Ordinary Shares or stock or securities convertible
into Ordinary Shares within 60 days after the record date for such issuance,
sale, distribution or other grant, as the case may be, and the sum of (a) the
offering price of such right, option, warrant or other security (on a per share
basis) and (b) any subscription, purchase, conversion or exchange price per
share of Ordinary Shares (the "Consideration") is lower at the record date for
such issuance than the then Current Market Value per share of such Ordinary
Shares, the number of Ordinary Shares thereafter purchasable shall be increased
to a number determined by multiplying the number of Ordinary Shares issuable
immediately prior to the record date upon exercise of each Warrant by a
fraction, the numerator of which shall be the number of Ordinary Shares
outstanding on the date of issuance of such rights, options, warrants or
securities plus the number of additional Ordinary
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Shares offered for subscription or purchase or into or for which such securities
are convertible or exchangeable, and the denominator of which shall be the
number of Ordinary Shares outstanding on the date of issuance of such rights,
options, warrants or securities plus the total number of Ordinary Shares which
could be purchased at the Current Market Value with the aggregate of the
Consideration with respect to such issuance, sale, distribution or other grant.
Such adjustment shall be made whenever such rights, options or warrants are
issued and shall become effective retroactively immediately after the record
date for the determination of stockholders entitled to receive such rights,
options, warrants or securities; provided, however, that the Company is not
required to make an adjustment pursuant to this Section 4.1(c) if the Company
shall make the same distribution to Holders of Warrants. No adjustment shall be
made pursuant to this Section 4.1(c) which shall have the effect of decreasing
the number of Ordinary Shares purchasable upon exercise of each Warrant.
If the Company at any time shall issue two or more securities
as a unit and one or more of such securities shall be rights, options or
warrants for or securities convertible or exchangeable into, Ordinary Shares
subject to this Section 4.1(c), the consideration allocated to each such
security shall be determined in good faith by the Board.
(i) Combination; Liquidation. Except as provided in clause
(ii) below, in the event of certain consolidations, mergers or demergers of the
Company, or the sale of all or substantially all of the assets of the Company to
another Person (a "Combination"), each Warrant will thereafter be exercisable
for the right to receive the kind and amount of shares of stock or other
securities or property to which such holder would have been entitled as a result
of such Combination had the Warrants been exercised immediately prior thereto.
Unless clause (ii) is applicable to a Combination, if any Warrants shall be
outstanding after a Combination, the Company shall provide that the surviving or
acquiring Person (the "Successor Company") in such Combination will enter into
an agreement with the Warrant Agent confirming the Holders' rights pursuant to
this Section 4.1(d) and providing for adjustments, which shall be as nearly
equivalent as may be practicable to the adjustments provided for in this Section
4. The provisions of this Section 4.1(d) shall similarly apply to successive
Combinations involving any Successor Company.
(ii) In the event of (A) a Combination, and, in connection
therewith, the consideration payable to the holders of Ordinary Shares in
exchange for their shares is payable solely in cash or (B) a dissolution,
liquidation or winding-up of the Company, then the Holders of the Warrants will
be entitled to receive distributions on an equal basis with the holders of
Ordinary Shares or other securities issuable upon exercise of the Warrants, as
if the Warrants had been exercised immediately prior to such event, less the
Exercise Price. Upon receipt of such payment, if any, the Warrants will expire
and the rights of Holders thereof will cease.
(iii) In the case of any such Combination, the surviving or
acquiring Person as described in this Section 4.1(d) and, in the event of any
dissolution, liquidation or winding-up of the Company, the Company, shall
deposit promptly with the Warrant Agent the funds, if any, necessary to pay to
the Holders of the Warrants the amounts to which they are entitled as described
above. After such funds and the surrendered Warrant Certificates are received,
the Warrant Agent shall make payment to the Holders by delivering a check, or by
wire transfer of same-day funds, in such amount as is appropriate (or, in the
case of consideration other than cash, such other consideration as is
appropriate) to such Person or Persons as it may be directed in writing by the
Holders surrendering such Warrants.
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(d) Tender Offers; Exchange Offers. In the event that the
Company or any subsidiary of the Company shall purchase Ordinary Shares pursuant
to a tender offer or an exchange offer for a price per Ordinary Share that is
greater than the then Current Market Value per share of Ordinary Shares in
effect at the end of the trading day immediately following the day on which such
tender offer or exchange offer expires, then the Company, or such subsidiary of
the Company, shall, within 10 Business Days of the expiry of such tender offer
or exchange offer, offer to purchase Warrants for comparable consideration per
Ordinary Share based on the number of Ordinary Shares which the Holders of such
Warrants would receive upon exercise of such Warrants (the "Offer") (such amount
less the Exercise Price in respect of such share, the "Per Share
Consideration"); provided, however, that if a tender offer is made for only a
portion of the outstanding Ordinary Shares, then such offer shall be made for
such Ordinary Shares issuable upon exercise of the Warrants in the same pro rata
proportion.
The Offer shall remain open for a period of 20 Business Days
following its commencement and no longer, except to the extent that a longer
period is required by applicable law (the "Offer Period"). No later than five
Business Days after the termination of the Offer Period (the "Purchase Date"),
the Company shall purchase such Warrants for the applicable Per Share
Consideration.
(e) Other Events. If any event occurs as to which the
foregoing provisions of this Section 4 are not strictly applicable or, if
strictly applicable, would not, in the good faith judgment of the Board, fairly
and adequately protect the purchase rights of the Warrants in accordance with
the essential intent and principles of such provisions, then the 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 the Board, to protect such purchase rights as aforesaid.
(f) When No Adjustment Required. Without limiting any other
exception contained in this Section 4.1, and in addition thereto, no adjustment
need be made for:
(i) (A) grants to, exercises of Rights by, or issuances of
equity securities to employees, directors, consultants or advisors of
the Company or any of its subsidiaries and (B) exercises of Rights by,
or issuances of equity securities in connection with Rights previously
issued to former employees, former directors, former consultants (to
the extent that all such securities, other than those permitted by
clause (ii) below, do not have an aggregate value in excess of 15% of
the equity value of the Company on a fully diluted basis, as determined
in good faith by the Board). As used herein, "Right" shall mean any
right, option, warrant or convertible or exchangeable security
containing the right to subscribe for or acquire one or more Ordinary
Shares, excluding the Warrants;
(ii) options, warrants or other agreements or rights to
purchase capital stock of the Company entered into or granted prior to
the date of the issuance of the Warrants or any issuance of capital
stock pursuant thereto or in connection therewith;
(iii) bona fide public offerings or private placements through
investment banks of international standing;
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(iv) rights to purchase Ordinary Shares pursuant to a Company
plan for reinvestment of dividends or interest; and
(v) a change in the par value of Ordinary Shares (including a
change from par value to no par value or vice versa).
(g) Adjustment of Exercise Price. Whenever the number of
Ordinary Shares purchasable upon the exercise of each Warrant is adjusted, as
provided under this Section 4, the Exercise Price per Ordinary Share payable
upon exercise of such Warrant shall be adjusted (calculated to the nearest NLG
0.01) so that it shall equal the price determined by multiplying such Exercise
Price immediately prior to such adjustment by a fraction the numerator of which
shall be the number of Ordinary Shares purchasable upon the exercise of each
Warrant immediately prior to such adjustment and the denominator of which shall
be the number of Ordinary Shares so purchasable immediately thereafter.
Following any adjustment to the Exercise Price pursuant to this Section 4, the
amount payable, when adjusted, shall never be less than the par value per
Ordinary Share at the time of such adjustment.
If after an adjustment, a Holder of a Warrant upon exercise of
it may receive shares of two or more classes of capital stock of the Company,
the Company shall determine the allocation of the adjusted Exercise Price
between such classes of shares in a manner that the Board deems fair and
equitable to the Holders. After such allocation, the exercise privilege and the
Exercise Price of each class of shares shall thereafter be subject to adjustment
on terms comparable to those applicable to Ordinary Shares under this Section 4.
Such adjustment shall be made successively whenever any event
listed above shall occur.
4.2 Superseding Adjustment. Upon the expiration of any rights,
options, warrants or conversion or exchange privileges which resulted in the
adjustments pursuant to this Section 4, if any thereof shall not have been
exercised, the number of Warrant Shares purchasable upon the exercise of each
Warrant shall be readjusted as if (A) the only Ordinary Shares issuable upon
exercise of such rights, options, warrants, conversion or exchange privileges
were the Ordinary Shares, if any, actually issued upon the exercise of such
rights, options, warrants or conversion or exchange privileges and (B) Ordinary
Shares actually issued, if any, were issuable for the consideration actually
received by the Company upon such exercise plus the aggregate consideration, if
any, actually received by the Company for the issuance, sale or grant of all
such rights, options, warrants or conversion or exchange privileges whether or
not exercised; provided, however, that no such readjustment shall (except by
reason of an intervening adjustment under Section 4.1(a)) have the effect of
decreasing the number of Warrant Shares purchasable upon the exercise of each
Warrant by an amount in excess of the amount of the adjustment initially made in
respect of the issuance, sale or grant of such rights, options, warrants or
conversion or exchange privileges.
4.3 Minimum Adjustment. The adjustments required by the
preceding Sections of this Section 4 shall be made whenever and as often as any
specified event requiring an adjustment shall occur, except that no adjustment
of the number of Ordinary Shares purchasable upon exercise of Warrants that
would otherwise be required shall be made (except in the case of a subdivision
or combination of Ordinary Shares, as provided for in Section 4.1(a)) unless and
until such adjustment either by itself or with other adjustments not previously
made increases or decreases by at least 1% of the number of Ordinary Shares
purchasable upon exercise of Warrants immediately prior to the making of such
adjustment. Any adjustment
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representing a change of less than such minimum amount shall be carried forward
and made as soon as such adjustment, together with other adjustments required by
this Section 4 and not previously made, would result in a minimum adjustment.
For the purpose of any adjustment, any specified event shall be deemed to have
occurred at the close of business on the date of its occurrence. In computing
adjustments under this Section 4, fractional interests in Ordinary Shares shall
be taken into account to the nearest one-hundredth of a share.
4.4 Notice of Adjustment. Whenever the number of Ordinary
Shares and other property, if any, purchasable upon exercise of Warrants is
adjusted, as herein provided, the Company shall deliver to the Warrant Agent a
certificate of a firm of internationally recognized independent accountants (who
may be the regular accountants employed by the Company) setting forth, in
reasonable detail, the event requiring the adjustment and the method by which
such adjustment was calculated (including a description of the basis on which
the Board determined the fair market value of any evidences of indebtedness,
other securities or property or warrants or other subscription or purchase
rights), and specifying the number of Ordinary Shares purchasable upon exercise
of Warrants after giving effect to such adjustment. The Company shall promptly
mail, or at the expense of the Company cause the Warrant Agent to mail, a copy
of such certificate to each Holder in accordance with Section 7.2. The Warrant
Agent shall be entitled to rely on such certificate and shall be under no duty
or responsibility with respect to any such certificate, except to exhibit the
same from time to time, to any Holder desiring an inspection thereof during
reasonable business hours. The Warrant Agent shall not at any time be under any
duty or responsibility to any Holder to determine whether any facts exist which
may require any adjustment of the number of Ordinary Shares or other stock or
property, purchasable on exercise of the Warrants, or with respect to the nature
or extent of any such adjustment when made, or with respect to the method
employed in making such adjustment or the validity or value of any Ordinary
Shares.
4.5 Notice of Certain Transactions. In the event that the
Company shall propose (a) to pay any dividend payable in securities of any class
to the holders of its Ordinary Shares or to make any other distribution to the
holders of its Ordinary Shares, (b) to offer the holders of its Ordinary Shares
rights to subscribe for or to purchase any securities convertible into Ordinary
Shares or Ordinary Shares or shares of stock of any class or any other
securities, rights or options, (c) to effect any reclassification of its
Ordinary Shares, capital reorganization or Combination or (d) to effect the
voluntary or involuntary dissolution, liquidation or winding-up of the Company,
or in the event of a tender offer or exchange offer described in Section 4.1(e),
the Company shall within five (5) Business Days of making such proposal, tender
offer or exchange offer send to the Warrant Agent and the Warrant Agent shall
within five (5) Business Days thereafter send the Holders written notice (in
such form as shall be furnished to the Warrant Agent by the Company) of such
proposed action or offer, such notice to be mailed by the Company, or at the
expense of the Company by the Warrant Agent, to the Holders at their addresses
as they appear in the Warrant Register, which shall specify the record date for
the purposes of such dividend, distribution or rights, or the date such issuance
or event is to take place and the date of participation therein by the holders
of Ordinary Shares, if any such date is to be fixed, and shall briefly indicate
the effect of such action on the Ordinary Shares and on the number and kind of
any other shares of stock and on other property, if any, and the number of
Ordinary Shares and other property, if any, purchasable upon exercise of each
Warrant after giving effect to any adjustment which will be required as a result
of such action. Such notice
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shall be given by the Company as promptly as possible and, in the case of any
action covered by clause (a) or (b) above, at least 10 Business Days prior to
the record date for determining holders of the Ordinary Shares for purposes of
such action and, in the case of any other such action, at least 20 Business Days
prior to the date of the taking of such proposed action or the date of
participation therein by the holders of Ordinary Shares, whichever shall be the
earlier.
4.6 Adjustment to Warrant Certificate. The form of Warrant
Certificate need not be changed because of any adjustment made pursuant to this
Section 4, and Warrant Certificates issued after such adjustment may state the
same Exercise Price and the same number of Ordinary Shares as are stated in any
Warrant Certificates issued prior to the adjustment. The Company, however, may
at any time in its sole discretion make any change in the form of Warrant
Certificate that it may deem appropriate to give effect to such adjustments and
that does not affect the substance of the Warrant Certificate, and any Warrant
Certificate thereafter issued or countersigned, whether in exchange or
substitution for an outstanding Warrant Certificate or otherwise, may be in the
form as so changed.
4.7 Challenge to Good Faith Determination. Whenever the Board
shall be required to make a determination in good faith of the Current Market
Value of any item under Section 4, such determination may be challenged in good
faith by the Majority Holders.
4.8 Treasury Stock. The sale or other disposition of any
issued Ordinary Shares owned or held by or for the account of the Company shall
be deemed an issuance thereof and a repurchase thereof and designation of such
shares as treasury stock shall be deemed to be a redemption thereof for the
purposes of this Agreement.
5. SECTION HOLDERS' RIGHTS.
5.1 Registration Rights.
(a) Shelf Registration Statement. The Company agrees with and
for the benefit of the Holders of the Warrants, that upon exercise of the
Warrants by the Holders thereof, to file with the Commission a Registration
Statement for an offering to be made on a continuous basis pursuant to Rule 415
covering all of the Warrants (the "Shelf Registration Statement"). The Shelf
Registration Statement shall be on Form F-1 or another appropriate form
permitting registration of such Warrants for resale by Holders in the manner or
manners designated by them (including, without limitation, one or more
underwritten offerings). The Company shall not permit any securities other than
the Warrants (and the Existing Warrants and any other like warrants hereafter
issued) to be included in the Shelf Registration Statement. In addition, the
Company agrees that it shall make all required filings pursuant to all
applicable state "Blue Sky" or securities laws.
(b) The Company shall use its best efforts to cause the Shelf
Registration Statement to be declared effective under the Securities Act (and to
make any required filings as may be necessary to comply with all applicable
state "Blue Sky" or securities laws) on or prior to the Exercisability Date and
shall cause such Shelf Registration Statement to remain effective under the
Securities Act (and all applicable state "Blue Sky" or securities laws) until
the earlier of (i) such time as all Warrants have been exercised and (ii) the
Expiration Date (the "Effectiveness Period"), or such shorter period ending when
all Warrants covered by the Shelf Registration Statement have been sold in the
manner set forth and as contemplated in the Shelf Registration Statement;
provided that the obligation of the Company to cause the Shelf Registration
Statement to be declared effective with respect to Warrant Shares of any Holder
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who did not request inclusion of their Warrant Shares in the Initial Public
Offering pursuant to Section 5.2 shall be extended until the date which is 180
days after the Exercisability Date.
(c) Withdrawal of Stop Orders. If the Shelf Registration
Statement ceases to be effective for any reason at any time during the
Effectiveness Period (other than because of the sale of all of the securities
registered thereunder), the Company shall use its best efforts to obtain the
prompt withdrawal of any order suspending the effectiveness thereof.
(d) Supplements and Amendments. The Company shall promptly
supplement and amend the Shelf Registration Statement if required by the rules,
regulations or instructions applicable to the registration form used for such
Shelf Registration Statement, if required by the Securities Act, or if requested
by the holders of a majority of the Warrants covered by such Registration
Statement or by any underwriter of such Warrants based on a reasonable belief
that such supplement or amendment is required by law.
(e) Suspension of Shelf Registration Statement. During any
consecutive 365-day period, the Company shall be entitled to suspend the
availability of the Shelf Registration Statement for up to two 30
consecutive-day periods (except for the 30 consecutive-day period immediately
prior to the Expiration Date) if the Board determines in the exercise of its
reasonable judgment that there is a valid business purpose for such suspension
and provides notice that such determination was made to the Holders of the
Warrants; provided, however, that in no event shall the Company be required to
disclose the business purpose for such suspension if the Company determines in
good faith that such business purpose must remain confidential.
(f) Registration Expenses. All expenses incident to the
Company's performance of or compliance with this Section 5.1 will be borne by
the Company, including without limitation: (i) all registration and filing fees
and expenses; (ii) all fees and expenses of compliance with federal securities
and state Blue Sky or securities laws; (iii) all expenses of printing (including
printing certificates for the Warrant Shares and printing of prospectuses),
messenger and delivery services; (iv) all fees and disbursements of counsel for
the Company; (v) all fees and disbursements of independent certified public
accountants of the Company (including the expenses of any special audit and
comfort letters required by or incident to such performance); and (vi) the
Company's internal expenses, the expenses of any annual or other audit and the
fees and expenses of any Person, including special experts, retained by the
Company.
(g) Piggyback Registration Right. If the Company proposes to
effect an Initial Public Offering, the Company must, not later than the date of
the initial filing of a registration statement pertaining thereto, provide
written notice thereof to the holders of the Warrants. Each such holder will
have the right, within 20 days after receipt of such notice, to request (which
request will indicate the intended method of distribution) that the Company
include such holder's Warrant Shares for sale pursuant to such registration
statement.
(h) The Company will include in such Initial Public Offering
all the Warrant Shares for which it receives notice pursuant to Section 5.2(a),
unless the managing underwriter for such Initial Public Offering (the "Managing
Underwriter") determines that, in its opinion, the number of Warrant Shares that
the Holders of Warrants (the "Requesting Holders") have
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requested to be sold in such Initial Public Offering, plus the total number of
Ordinary Shares that the Company and any other selling stockholders entitled to
sell Ordinary Shares in such Initial Public Offering propose to sell in such
Initial Public Offering, exceed the maximum number of Ordinary Shares that may
be distributed without materially adversely affecting the price, timing or
distribution of the Ordinary Shares to be sold by the Company. In such event,
the Company will be required to include in such Initial Public Offering only
that number of Ordinary Shares which the Managing Underwriter believes may be
sold without causing such adverse effect in the following order: (i) all of the
Ordinary Shares that the Company proposes to sell in such Initial Public
Offering and (ii) Ordinary Shares of the Requesting Holders and all other
Ordinary Shares that are proposed to be sold by any holder of Ordinary Shares on
a pro rata basis in an aggregate number which is equal to the difference between
the maximum number of Ordinary Shares that may be distributed in such Initial
Public Offering as determined by the Managing Underwriter and the number of
Ordinary Shares to be sold in such Initial Public Offering pursuant to clause
(i) above. The Company will have the right to postpone or withdraw any
registration statement prior to the effective date without obligation to any
Requesting Holder.
(i) Repurchase Offer. In the event that an Initial Public
Offering has not been completed on or prior to the fifth anniversary of the
Issue Date (the "Triggering Date"), the Company will be required to make an
offer to purchase (the "Repurchase Offer") all outstanding Warrants issued by it
in cash at the Repurchase Price no later than 120 days after the Triggering
Date. If an Initial Public Offering relating to the Company occurs at any time
between the Triggering Date and 90 days after the expiration date for a
Repurchase Offer pursuant to the preceding sentence, the Company will pay to
each Holder of Warrants that were purchased in such offer an amount in cash
equal to the number of Warrants purchased multiplied by the excess, if any, of
(i) the value, as determined pursuant to the terms of an Initial Public Offering
(net of applicable underwriting discounts and placement fees) of the number of
Warrant Shares issuable upon the exercise of one Warrant over (ii) the
Repurchase Price paid by the Company for each Warrant in such Repurchase Offer.
(j) The Company will comply, to the extent applicable, with
the requirements of Rule 13e-4 under the Exchange Act and any other applicable
securities laws or regulations in connection with any repurchase offers for
Warrants.
(k) Change of Control Equity Offer. If prior to the
consummation of an Initial Public Offering by the Company, a Change of Control
(as defined in the Indenture) occurs pursuant to which a Person (including such
Person's Affiliates and associates), other than a Permitted Holder, becomes the
beneficial owner of more than 50% of the total voting power of the Ordinary
Shares of the Company, and the Company is not eligible to, or elects not to,
effect a Drag Along Purchase (as defined below), the Company shall make an offer
to purchase (the "Change of Control Equity Offer") any and all of the
outstanding Warrants at cash purchase prices at least equal to the Repurchase
Price.
(l) Within 30 days of such Change of Control, the Company
shall give notice of the Change of Control Equity Offer to each holder of
Warrants by first class mail, postage prepaid, which notice shall govern the
terms of the Change of Control Equity Offer and shall (i) set forth the
Repurchase Price to be paid for Warrants tendered in the Change of Control
Equity Offer, (ii) include the full text of the fairness opinion delivered by an
internationally recognized investment bank in connection with the Change of
Control, (iii) identify the date on which the Change of Control Equity Offer
will expire (the "Change of Control Equity Offer Expiration Date"), which date
shall not be less than 20 Business Days following the date of commencement of
the Change of Control Equity Offer, which commencement date shall be the
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date such notice is mailed to holders of Warrants, (iv) explain the facts and
circumstances of the Change of Control, (v) include a letter of transmittal
which identifies where Warrant Certificates tendered pursuant to the Change of
Control Equity Offer are to be delivered, (vi) state that, unless the Company
defaults in the purchase of the Warrants tendered pursuant to the Change of
Control Equity Offer, Holders of Warrants so tendered shall have no rights with
respect to the Warrants tendered after the Change of Control Expiration Date and
the only remaining right of such holders with respect thereto is to receive the
Repurchase Price therefor promptly after the Change of Control Equity Offer
Expiration Date and (vii) that holders whose Warrants are tendered for purchase
in part only will be issued new Warrant Certificates representing the number of
unpurchased Warrants surrendered.
(m) On the Change of Control Equity Offer Expiration Date, the
Company will (i) accept for purchase all Warrants tendered pursuant to the
Change of Control Equity Offer, (ii) promptly deliver to tendering holders of
Warrants the respective Repurchase Price therefor and (iii) issue and mail or
deliver to holders tendering a portion of their Warrants new Warrant
Certificates representing the number of Warrants equal to the unpurchased
portion of the Warrants surrendered.
(n) The Company will comply with the requirements of the
Exchange Act and other securities laws and regulations to the extent such laws
and regulations are applicable in connection with the Change of Control Equity
Offer. To the extent the provisions of any securities laws or regulations
conflict with the Change of Control Equity offer provisions of this Agreement,
the Company shall comply with the applicable securities laws and regulations and
shall not be deemed to have breached its obligations hereunder.
5.2 Drag Along Rights. If, prior to the consummation of an
Initial Public Offering, the Board and the holders of a majority of the Ordinary
Shares entitled to vote thereon approve a sale of the Company, the Company shall
have the right to require the holders of the Warrants to sell such Warrants to
such transferee; provided that the consideration to be received by such holders
is the same (in terms of price per share and in all other material respects, but
adjusted, in the case of Warrants, for the Exercise Price therefor) as that to
be received by the other holders and, in any event, shall be cash and/or
securities registered under the Securities Act and listed on a national
securities exchange or authorized for quotation on The Nasdaq Stock Market, Inc.
Any purchase of Warrants pursuant to this paragraph shall be deemed a "Drag
Along Purchase."
6. SECTION WARRANT AGENT.
6.1 Appointment of Warrant Agent. The Company hereby appoints
the Warrant Agent to act as agent for the Company in accordance with provisions
of this Agreement and the Warrant Agent hereby accepts such appointment. The
Company hereby agrees that so long as any Units remain outstanding, the Warrant
Agent may appoint the Unit Agent to act as its agent with respect to its duties
hereunder as provided in the Unit Agreement.
(a) Rights and Duties of Warrant Agent. In acting under this
Warrant Agreement and in connection with the Warrant Certificates, the Warrant
Agent is acting solely as
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agent of the Company and does not assume any obligation or relationship or
agency or trust for or with any of the holders of Warrant Certificates or
beneficial owners of Warrants.
(b) The Warrant Agent may consult with counsel satisfactory to
it (who may be counsel for the Company), and the advice of such counsel shall be
full and complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in accordance with the
advice of such counsel.
(c) The Warrant Agent shall be protected and shall incur no
liability for or in respect of any action taken or thing suffered by it in
reliance upon any Warrant Certificate, certificate of shares, notice,
resolution, direction, consent, certificate, affidavit, statement or other paper
or document believed by it to be genuine and to have been presented or signed by
the proper parties.
(d) The Warrant Agent shall be obligated to perform only such
duties as are herein and in the Warrant Certificates specifically set forth and
no implied duties or obligations shall be read into this Agreement or the
Warrant Certificates against the Warrant Agent. The Warrant Agent shall not be
under any obligation to institute any action, suit or legal proceeding or to
take any other action which may tend to involve it in any expense or liability
for which it does not receive indemnity if such indemnity is requested. The
Warrant Agent shall not be accountable or under any duty or responsibility for
the use by the Company of any of the Warrant Certificates countersigned by the
Warrant Agent and delivered by it to the Holders or on behalf of the Holders
pursuant to this Agreement or for the application by the Company of the proceeds
of the Warrants. The Warrant Agent shall have no duty or responsibility in case
of any default by the Company in the performance of its covenants or agreements
contained herein or in the Warrant Certificates or in the case of the receipt of
any written demand from a Holder with respect to such default, including any
duty or responsibility to initiate or attempt to initiate any proceedings at law
or otherwise.
(e) The Warrant Agent shall not at any time be under any duty
or responsibility to any Holder to determine whether any facts exist that may
require an adjustment of the number of Ordinary Shares purchasable upon exercise
of each Warrant or the Exercise Price, or with respect to the nature or extent
of any adjustment when made, or with respect to the method employed, or herein
or in any supplemental agreement provided to be employed, in making the same.
The Warrant Agent shall not be responsible to determine the Cashless Exercise
Ratio. The Warrant Agent shall not be accountable with respect to the validity
or value of any Ordinary Shares or of any securities or property which may at
any time be issued or delivered upon the exercise of any Warrant or upon any
adjustment pursuant to Section 4, and it makes no representation with respect
thereto. The Warrant Agent shall not be responsible for any failure of the
Company to make any cash payment or to issue, transfer or deliver any Ordinary
Shares or stock certificates upon the surrender of any Warrant Certificate for
the purpose of exercise or upon any adjustment pursuant to Section 4, or to
comply with any of the covenants of the Company contained in Section 4.
(f) Before the Warrant Agent acts or refrains from acting with
respect to any matter contemplated by this Warrant Agreement, it may require
from the Company:
(i) an Officers' Certificate of the Company stating that, in
the opinion of the signers, all conditions precedent, if any, provided
for in this Warrant Agreement relating to the proposed action have been
complied with; and
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(ii) an opinion of counsel for the Company stating that, in
the opinion of such counsel, all such conditions precedent have been
complied with.
Each Officers' Certificate or opinion of counsel with respect
to compliance with a condition or covenant provided for in this Warrant
Agreement shall include:
(1) a statement that the Person making such
certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of
the examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person,
he or she has made such examination or investigation as is
necessary to enable him or her to express an informed opinion
as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether or not, in the opinion
of such Person, such condition or covenant has been complied
with.
provided, however, that with respect to matters of fact an opinion of counsel
may rely on an Officers' Certificate or certificates of public officials.
The Warrant Agent shall not be liable for any action it takes
or omits to take in good faith in reliance on any such certificate or opinion.
(g) The Warrant Agent shall keep copies of this Agreement and
any notices given or received hereunder by or from the Company available for
inspection by the Holders during normal business hours at its office. The
Company shall supply the Warrant Agent from time to time with such numbers of
copies of this Agreement as the Warrant Agent may request.
6.2 Individual Rights of Warrant Agent. The Warrant Agent and
any stockholder, director, officer or employee of the Warrant Agent may buy,
sell or deal in any of the Warrants or other securities of the Company or its
affiliates or become pecuniarily interested in transactions in which the Company
or its affiliates may be interested, or contract with or lend money to the
Company or its affiliates or otherwise act as fully and freely as though it were
not the Warrant Agent under this Agreement. Nothing herein shall preclude the
Warrant Agent from acting in any other capacity for the Company or for any other
legal entity.
6.3 Warrant Agent's Disclaimer. The Warrant Agent shall not be
responsible for and makes no representation as to the validity or adequacy of
this Agreement or the Warrant Certificates and it shall not be responsible for
any statement in this Agreement or the Warrant Certificates other than its
countersignature thereon.
6.4 Compensation and Indemnity. The Company shall pay to the
Warrant Agent from time to time such compensation as the Company and the Warrant
Agent shall from
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time to time agree in writing for its acceptance of this Warrant Agreement and
services hereunder. The Company shall reimburse the Warrant Agent upon request
for all reasonable disbursements, expenses and advances (including reasonable
fees and expenses of counsel) incurred or made by it in addition to the
compensation for its services, except any such disbursements, expenses and
advances as may be attributable to the Warrant Agent's or any Agent's negligence
or bad faith. Such expenses shall include the reasonable compensation,
disbursements and expenses of the Warrant Agent's accountants, experts and
counsel.
The Company shall indemnify each of the Warrant Agent and any
predecessor Warrant Agent for, and hold them harmless against, any and all loss,
damage, claim, expense or liability including taxes (other than taxes based on
the income of the Warrant Agent) incurred by the Warrant Agent without
negligence, willful misconduct or bad faith on its part in connection with
acceptance of administration of this trust and its duties under this Warrant
Agreement, including the reasonable expenses and attorneys' fees and expenses of
defending itself against any claim of liability arising hereunder. The Warrant
Agent shall notify the Company promptly of any claim asserted against the
Warrant Agent for which it may seek indemnity. However, the failure by the
Warrant Agent to so notify the Company shall not relieve the Company of its
obligations hereunder. The Company shall defend the claim and the Warrant Agent
shall cooperate in the defense (and may employ its own counsel satisfactory to
the Warrant Agent) at the Company's expense. The Warrant Agent may have separate
counsel and the Company shall pay the reasonable fees and expenses of such
counsel. The Company need not pay for any settlement made without its written
consent, which consent shall not be unreasonably withheld. The Company need not
reimburse any expense or indemnify against any loss or liability incurred by the
Warrant Agent as a result of the violation of this Warrant Agreement by the
Warrant Agent if such violation arose from the Warrant Agent's negligence or bad
faith.
To secure the Company's payment obligations in this Section
6.5, the Warrant Agent shall have a senior lien against all money or property
held or collected by the Warrant Agent in its capacity as Warrant Agent.
When the Warrant Agent incurs expenses or renders services
after an Event of Default specified in the Indenture occurs, the expenses
(including the reasonable fees and expenses of its agents and counsel) and the
compensation for the services shall be preferred over the status of the Holders
in a proceeding under any Bankruptcy Law and are intended to constitute expenses
of administration under any Bankruptcy Law. The Company's obligations under this
Section 6.5 and any claim arising hereunder shall survive the termination of
this Warrant Agreement, the resignation or removal of any Warrant Agent, and any
rejection or termination under any Bankruptcy Law.
(a) Successor Warrant Agent. The Company agrees for the
benefit of the Holders that there shall at all times be a Warrant Agent
hereunder until all the Warrants have been exercised or are no longer
exercisable.
(b) The Warrant Agent may at any time resign by giving written
notice to the Company of such intention on its part, specifying the date on
which its desired resignation shall become effective; provided, however, that
such date shall not be less than 30 days after the date on which such notice is
given unless the Company otherwise agrees. The Warrant Agent hereunder may be
removed at any time by the filing with it of an instrument in writing signed by
or on behalf of the Company and specifying such removal and the date when it
shall become effective, which date shall not be less than 30 days after such
notice is given unless the Warrant Agent otherwise agrees. Any removal under
this Section 6.6 shall take effect upon the appointment by the Company as
hereinafter provided of a successor Warrant Agent (which shall
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33
be a bank or trust company authorized under the laws of the jurisdiction of its
organization to exercise corporate trust powers) and the acceptance of such
appointment by such successor Warrant Agent.
(c) In case at any time the Warrant Agent shall resign, or
shall be removed, or shall become incapable of acting, or shall be adjudged a
bankrupt or insolvent, or shall commence a voluntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or under any other applicable
Federal or state bankruptcy, insolvency or similar law or shall consent to the
appointment of or taking possession by a receiver, custodian, liquidator,
assignee, trustee, sequestrator (or other similar official) of the Warrant Agent
or its property or affairs, or shall make an assignment for the benefit of
creditors, or shall admit in writing its inability to pay its debts generally as
they become due, or shall take corporate action in furtherance of any such
action, or a decree or order for relief by a court having jurisdiction in the
premises shall have been entered in respect of the Warrant Agent in an
involuntary case under the Federal bankruptcy laws, as now or hereafter
constituted, or any other applicable Federal or State bankruptcy, insolvency or
similar law; or a decree order by a court having jurisdiction in the premises
shall have been entered for the appointment of a receiver, custodian,
liquidator, assignee, trustee, sequestrator (or similar official) of the Warrant
Agent or of its property or affairs, or any public officer shall take charge or
control of the Warrant Agent or of its property or affairs for the purpose of
rehabilitation, conservation, winding up of or liquidation, a successor Warrant
Agent, qualified as aforesaid, shall be appointed by the Company by an
instrument in writing, filed with the successor Warrant Agent. Upon the
appointment as aforesaid of a successor Warrant Agent and acceptance by the
successor Warrant Agent of such appointment, the Warrant Agent shall cease to be
Warrant Agent hereunder; provided, however, that in the event of the resignation
of the Warrant Agent hereunder, such resignation shall be effective on the
earlier of (i) the date specified in the Warrant Agent's notice of resignation
and (ii) the appointment and acceptance of a successor Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall
execute, acknowledge and deliver to its predecessor and to the Company an
instrument accepting such appointment hereunder, and thereupon such successor
Warrant Agent, without any further act, deed or conveyance, shall become vested
with all the rights and obligations of such predecessor with like effect as if
originally named as Warrant Agent hereunder, and such predecessor, upon payment
of its charges and disbursements then unpaid, shall thereupon become obligated
to transfer, deliver and pay over, and such successor Warrant Agent shall be
entitled to receive, all monies, securities and other property on deposit with
or held by such predecessor, as Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder may
be merged or consolidated, or any corporation resulting from any merger or
consolidation to which the Warrant Agent shall be a party, or any corporation to
which the Warrant Agent shall sell or otherwise transfer all or substantially
all its corporate trust business, provided that it shall be qualified as
aforesaid, shall be the successor Warrant Agent under this Agreement without the
execution or filing of any paper or any further act on the part of any of the
parties hereto.
7. SECTION MISCELLANEOUS.
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7.1 Reports. (a) The Company will file on a timely basis with
the Commission, to the extent such filings are accepted by the Commission and
whether or not the Company has a class of securities registered under the
Exchange Act, (i) all annual and quarterly financial statements and other
financial information that would be required to be contained in a filing with
the Commission on Forms 20-F and 10-Q if the Company were required to file such
Forms (which financial statements shall be prepared in accordance with U.S.
GAAP), including a "Management's Discussion and Analysis of Financial Condition
and Results of Operations" and, with respect to the annual financial
information, a report thereon by the Company's certified independent accountants
and (ii) all current reports that would be required to be filed with the
Commission on Form 8-K if the Company were required to file such reports. Such
quarterly financial information shall be filed with the Commission within 45
days following the end of each fiscal quarter of the Company, and such annual
financial information shall be furnished within 90 days following the end of
each fiscal year of the Company. Such annual financial information shall include
the geographic segment financial information required to be disclosed by the
Company under Item 101(d) of Regulation S-K under the Securities Act.
(b) The Company will also be required (a) to file with the
Warrant Agent, and provide to each holder of the Warrants or Warrant Shares,
without cost to such holder, copies of such reports and documents within 15 days
after the date on which the Company files such reports and documents with the
Commission or the date on which the Company would be required to file such
reports and documents if the Company were so required, and (b) if filing such
reports and documents with the Commission is not accepted by the Commission or
is prohibited under the Exchange Act, to supply at the Company's cost copies of
such reports and documents to any prospective holder of Warrants or Warrant
Shares promptly upon request. In addition, for so long as the Warrants or
Warrant Shares remain outstanding and the Company is not subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act nor exempt
from reporting under Rule 12g3-2(b) of the Exchange Act, the Company shall
furnish to the holders of Warrants and Warrant Shares and to prospective holders
thereof, upon their request, any information required to be delivered pursuant
to Rule 144A(d)(4) under the Securities Act and, to any beneficial holder of
Warrants or Warrant Shares, information of the type that would be filed with the
Commission pursuant to the foregoing provisions, upon the request of any such
holder.
7.2 Notices to the Company and Warrant Agent. Any notice or
demand authorized by this Agreement to be given or made by the Warrant Agent or
by the Holder of any Warrant Certificate to or on the Company shall be
sufficiently given or made (i) five (5) Business Days after deposited in the
mail, first class or registered, postage prepaid, (ii) one Business Day after
being timely delivered to a next-day air courier or (ii) when receipt is
acknowledged by the addressee, if telecopied, addressed (until another address
is filed in writing by the Company with the Warrant Agent), as follows:
VersaTel Telecom International N.V.
Xxxxxxxxxxx 00
0000 XX Xxxxxxxxx-Xxxxxxxx
Xxx Xxxxxxxxxxx
Attention: Xxx Xxxxxxxxx
Telecopy: 00-00-000-0000
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with a copy to:
Stibbe Simont Xxxxxxx Duhot Lawyers
Strawinskylaan 2001
1077 ZZ Amsterdam
The Netherlands
Attention: Alfons F.J.A. Leijten
Telecopy: 00-00-000-00-00
and
Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxx, Xx.
Telecopy: (000) 000-0000
In case the Company shall fail to maintain such office or
agency or shall fail to give such notice of the location or of any change in the
location thereof, presentations may be made and notices and demands may be
served at the principal office of the Warrant Agent.
Any notice pursuant to this Agreement to be given by the
Company or by the Holder(s) of any Warrant Certificate to the Warrant Agent
shall be sufficiently given or made (i) five (5) Business Days after deposited
in the mail, first-class or registered, postage prepaid, (ii) one Business Day
after being timely delivered to a next-day air courier or (ii) when receipt is
acknowledged by the addressee, if telecopied, addressed (until another address
is filed in writing by the Warrant Agent with the Company) to the Warrant Agent
as follows:
United States Trust Company of New York
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Corporate Trust Administration
Telecopy: (000) 000-0000
7.3 Supplements and Amendments. This Agreement may be amended
by the parties hereto without the consent of any Holder for the purpose of
curing any ambiguity, or of curing, correcting or supplementing any defective
provision contained herein or making any other provisions with respect to
matters or questions arising under this Agreement as the Company and the Warrant
Agent may deem necessary or desirable; provided, however, that such action shall
not affect adversely the rights of the Holders. Any amendment or supplement to
this Agreement that has or would have an adverse effect on the interests of the
Holders shall require the written consent of the Majority Holders. The consent
of each Holder of Warrants affected shall be required for any amendment pursuant
to which the Exercise Price would be increased or the number of Ordinary Shares
purchasable upon exercise of Warrants would be decreased (other than pursuant to
adjustments provided herein) or the exercise period with respect to the Warrants
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36
would be shortened. In determining whether the Holders of the required number of
Warrants have concurred in any direction, waiver or consent, Warrants owned by
the Company or by any Affiliate of the Company shall be disregarded and deemed
not to be outstanding, except that, for the purpose of determining whether the
Warrant Agent shall be protected in relying on any such direction, waiver or
consent, only Warrants which the Warrant Agent knows are so owned shall be so
disregarded. Also, subject to the foregoing, only Warrants outstanding at the
time shall be considered in any such determination.
7.4 Severability. The provisions of this Agreement are
severable, and if any clause or provision shall be held invalid, illegal or
unenforceable in whole or in part in any jurisdiction, then such invalidity or
unenforceability shall affect in that jurisdiction only such clause or
provision, or part thereof, and shall not in any manner affect such clause or
provision in any other jurisdiction or any other clause or provision of this
Agreement in any jurisdiction.
7.5 Successors. All the covenants and provisions of this
Agreement by or for the benefit of the Company or the Warrant Agent shall bind
and inure to the benefit of their respective successors and assigns hereunder.
7.6 Termination. This Agreement (other than the Company's
obligations with respect to Warrants previously exercised) shall terminate at
5:00 p.m., New York City time on the Expiration Date.
7.7 Governing Law. THIS WARRANT AGREEMENT AND THE WARRANTS
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE
STATE OF NEW YORK.
7.8 Submission to Jurisdiction; Appointment of Agent for
Service; Waiver. To the fullest extent permitted by applicable law, the Company
irrevocably submits to the non-exclusive jurisdiction of any federal or state
court in the Borough of Manhattan in The City of Xxx Xxxx, Xxxxxx xxx Xxxxx xx
Xxx Xxxx, Xxxxxx Xxxxxx of America, in any suit or proceeding based on or
arising under this Warrant Agreement and the Warrants, and irrevocably agrees
that all claims in respect of such suit or proceeding may be determined in any
such court. The Company, to the fullest extent permitted by applicable law,
irrevocably and fully waives the defense of an inconvenient forum to the
maintenance of such suit or proceeding and hereby irrevocably designates and
appoints CT Corporation System (the "Authorized Agent"), as its authorized agent
upon whom process may be served in any such suit or proceeding. The Company
represents that it has notified the Authorized Agent of such designation and
appointment and that the Authorized Agent has accepted the same in writing. The
Company hereby irrevocably authorizes and directs its Authorized Agent to accept
such service. The Company further agrees that service of process upon its
Authorized Agent and written notice of said service to the Company mailed by
first class mail or delivered to its Authorized Agent shall be deemed in every
respect effective service of process upon the Company in any such suit or
proceeding. Nothing herein shall affect the right of any person to serve process
in any other manner permitted by law. The Company agrees that a final action in
any such suit or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other lawful manner.
Notwithstanding the foregoing, any action against the Company arising out of or
based on this Warrant Agreement, the Warrants or the transactions contemplated
hereby may also be instituted in any competent court in The Netherlands, and the
Company expressly accepts the jurisdiction of any such court in any such action.
The Company hereby irrevocably waives, to the extent permitted
by law, any immunity to jurisdiction to which it may otherwise be entitled
(including, without limitation, immunity to pre-judgment attachment,
post-judgment attachment and execution) in any legal
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suit, action or proceeding against it arising out of or based on this Warrant
Agreement, the Warrant Certificates or the transactions contemplated hereby.
The provisions of this Section 7.8 are intended to be
effective upon the execution of this Warrant Agreement and the Warrant
Certificates without any further action by the Company or the Warrant Agent and
the introduction of a true copy of this Warrant Agreement into evidence shall be
conclusive and final evidence as to such matters.
(a) Benefits of This Agreement. Nothing in this Agreement
shall be construed to give to any Person or corporation other than the Company,
the Warrant Agent and the holders of the Warrant Certificates any legal or
equitable right, remedy or claim under this Agreement; but this Agreement shall
be for the sole and exclusive benefit of the Company, the Warrant Agent and the
holders of the Warrant Certificates.
(b) Prior to the exercise of the Warrants, no Holder of a
Warrant Certificate, as such, shall be entitled to any rights of a stockholder
of the Company, including, without limitation, the right to receive dividends or
subscription rights, the right to vote, to consent, to exercise any preemptive
right, to receive any notice of meetings of stockholders for the election of
directors of the Company, to share in the assets of the Company in the event of
the liquidation, dissolution or winding up of the Company's affairs or any other
matter or to receive any notice of any proceedings of the Company, except as may
be specifically provided for herein.
(c) All rights of action in respect of this Agreement are
vested in the Holders of the Warrants, and any Holder of any Warrant, without
the consent of the Warrant Agent or the Holder of any other Warrant, 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
suitable to enforce, or otherwise in respect of, such Holder's rights hereunder,
including the right to exercise, exchange or surrender for purchase such
Holder's Warrants in the manner provided in this Agreement.
7.9 Counterparts. This 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.
7.10 Table of Contents. The table of contents and headings of
the Sections of this Agreement have been inserted for convenience of reference
only, are not intended to be considered a part hereof and shall not modify or
restrict any of the terms or provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed, as of the day and year first above written.
VERSATEL TELECOM INTERNATIONAL N.V.
By: /s/ R. Xxxx Xxxxx
-------------------------------------
Name: R. Xxxx Xxxxx
Title: Managing Director
UNITED STATES TRUST COMPANY OF NEW YORK,
as Warrant Agent
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Name:
Title:
43
EXHIBIT A TO
WARRANT AGREEMENT
[FORM OF FACE OF GLOBAL WARRANT CERTIFICATE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY ("DTC") TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER REPRESENTATIVE OF
DTC AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. TRANSFERS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF
CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS
OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN
ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTIONS 2.9 AND 2.10 OF THE
WARRANT AGREEMENT DATED AS OF DECEMBER 3, 1998.
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR
OTHER SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF (1)
REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING
THIS SECURITY IN AN "OFFSHORE TRANSACTION" PURSUANT TO RULE 904 OF REGULATION S,
(2) AGREES THAT IT WILL NOT PRIOR TO (X) THE DATE WHICH IS TWO YEARS (OR SUCH
SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144(k) UNDER THE SECURITIES ACT OR
ANY SUCCESSOR PROVISION THEREUNDER) AFTER THE LATER OF THE ORIGINAL ISSUE DATE
HEREOF (OR OF ANY PREDECESSOR OF THIS SECURITY) OR THE LAST DAY ON WHICH THE
COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY
PREDECESSOR OF THIS SECURITY) AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE
REQUIRED BY APPLICABLE LAWS (THE "RESALE RESTRICTION TERMINATION DATE"), OFFER,
SELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY, (B) PURSUANT
TO A
44
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE
144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT
OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN
THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS
AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE
MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
(3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED
A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND; PROVIDED THAT THE COMPANY
AND THE WARRANT AGENT SHALL HAVE THE RIGHT PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER (I) PURSUANT TO CLAUSE (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION
OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM,
AND (II) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATION OR
TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED
AND DELIVERED BY THE TRANSFEROR TO THE WARRANT AGENT, THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION
DATE. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND
"U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE
SECURITIES ACT.
45
CUSIP No._____________
No. ___ _____ Warrants
WARRANT CERTIFICATE
VERSATEL TELECOM INTERNATIONAL N.V.
THIS CERTIFIES THAT, _______________, or its registered
assigns, is the registered holder of the number of Warrants set forth above (the
"Warrants"). Each Warrant entitles the holder thereof (the "Holder"), at its
option and subject to the provisions contained herein and in the Warrant
Agreement dated as of December 3, 1998 (the "Warrant Agreement"), between the
Company and United States Trust Company of New York, as Warrant Agent (the
"Warrant Agent", which term includes any successor Warrant Agent under the
Warrant Agreement), to purchase from VersaTel Telecom International N.V., a
company organized under the laws of The Netherlands (the "Company"), 6.667
Warrant Shares per Warrant at the exercise price of NLG 5.10 per share (the
"Exercise Price"), or by Cashless Exercise. This Warrant is subject to the terms
and provisions contained in the Warrant Agreement, to all of which terms and
provisions the Holder of this Warrant Certificate consents by acceptance hereof.
The Warrant Agreement is hereby incorporated herein by reference and made a part
hereof. Reference is hereby made to the Warrant Agreement for a full statement
of the respective rights, limitations of rights, duties and obligations of the
Company, the Warrant Agent and the Holders of the Warrants. Capitalized terms
used but not defined herein shall have the meanings ascribed thereto in the
Warrant Agreement. This Warrant Certificate shall terminate and become void as
of 5:00 p.m. on May 15, 2008 (the "Expiration Date") or upon the exercise hereof
as to all the Ordinary Shares subject hereto. The Exercise Price and the number
of Warrant Shares purchasable upon exercise of the Warrants shall be subject to
adjustment from time to time as set forth in the Warrant Agreement. References
in this Warrant Certificate to Ordinary Shares underlying the Warrants, or
deliverable upon exercise of the Warrants to the Holders thereof, shall be
deemed to refer to Class B Shares of the Company.
AS PROVIDED IN THE WARRANT AGREEMENT UNTIL THE EARLIEST OF (i)
MAY 15, 1999, (ii) THE COMMENCEMENT OF AN EXCHANGE OFFER OR THE EFFECTIVENESS OF
A SHELF REGISTRATION STATEMENT WITH RESPECT TO THE NOTES, (iii) THE
EXERCISABILITY DATE AND (iv) SUCH OTHER DATE AS THE REPRESENTATIVES WILL
DETERMINE IN THEIR SOLE DISCRETION, EACH $1,000 PRINCIPAL AMOUNT OF NOTES AND
ONE WARRANT WHICH COLLECTIVELY COMPRISE EACH UNIT MAY NOT BE TRANSFERRED OR
EXCHANGED SEPARATELY.
Reference is hereby made to the further provisions of this
Warrant Certificate set forth on the reverse hereof and such further provisions
shall for all purposes have the same effect as though fully set forth at this
place.
This Warrant Certificate shall not be valid unless
countersigned by the Warrant Agent, as such term is used in the Warrant
Agreement.
46
THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL GOVERN THE
WARRANT AGREEMENT AND THE WARRANTS WITHOUT REGARD TO CONFLICT OF LAW PROVISIONS
THEREOF.
47
IN WITNESS WHEREOF, VersaTel Telecom International N.V. has
caused this Warrant Certificate to be executed on behalf of the Company by two
Officers of the Company.
Dated: December __, 1998
VERSATEL TELECOM INTERNATIONAL N.V.
By:
-------------------------------------
Name: R. Xxxx Xxxxx
Title: Managing Director
By:
-------------------------------------
Name:
Title:
48
Countersigned:
UNITED STATES TRUST COMPANY OF NEW YORK,
as Warrant Agent
By
--------------------------------
Authorized Signatory
49
[FORM OF REVERSE OF WARRANT CERTIFICATE]
This Warrant Certificate is issued under and in accordance
with the Warrant Agreement. A copy of the Warrant Agreement may be obtained for
inspection by the Holder hereof upon written request to the Warrant Agent at
United States Trust Company of New York, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx
Xxxx, 00000-0000. References in this Warrant Certificate to Ordinary Shares
underlying the Warrants, or deliverable upon exercise of the Warrants to the
Holders thereof, shall be deemed to refer to Class B Shares of the Company.
Warrants may be exercised at any time commencing at the
opening of business on the Exercisability Date and until 5:00 p.m., New York
City time on the Expiration Date. Subject to the terms of the Warrant Agreement,
the Warrants may be exercised in whole or in part (i) by surrender of this
Warrant Certificate with the form of election to purchase Warrant Shares
attached hereto duly executed and with the simultaneous payment of the Exercise
Price in cash to the Warrant Agent for the account of the Company at the office
of the Warrant Agent or (ii) by Cashless Exercise. Payment of the Exercise Price
in cash shall be made in cash or by certified or official bank check payable to
the order of the Company or by wire transfer of funds to an account designated
by the Company for such purpose. Payment by Cashless Exercise shall be made by
the surrender of a Warrant or Warrants represented by one or more Warrant
Certificates and without payment of the Exercise Price in cash, in exchange for
the issuance of such number of Ordinary Shares equal to the product of (1) the
number of Ordinary Shares for which such Warrant would otherwise then be
nominally exercised if payment of the Exercise Price were being made in cash and
(2) the Cashless Exercise Ratio.
The Warrant Agreement provides that upon the occurrence of
certain events the Exercise Price and the number of Ordinary Shares issuable
upon the exercise of each Warrant shall, subject to certain conditions, be
adjusted.
In the event the Company enters into a Combination following
which this Warrant remains outstanding, the Holder hereof will be entitled to
receive upon exercise of the Warrants the shares of capital stock or other
securities or other property of such surviving entity as such Holder would have
been entitled to receive upon or as the result of such Combination had the
Holder exercised its Warrants immediately prior to such Combination; provided,
however, that in the event that, in connection with such Combination,
consideration to holders of Ordinary Shares in exchange for their shares is
payable solely in cash or in the event of the dissolution, liquidation or
winding-up of the Company, the Holder hereof will be entitled to receive
distributions on an equal basis with the holders of Ordinary Shares or other
securities issuable upon exercise of the Warrants, as if the Warrants had been
exercised immediately prior to such events, less the Exercise Price.
The Company may require payment of a sum sufficient to pay all
taxes, assessments or other governmental charges in connection with the transfer
or exchange of the Warrant Certificates pursuant to Section 3.6 of the Warrant
Agreement but not for any exchange or original issuance (not involving a
transfer) with respect to temporary Warrant Certificates, the exercise of the
Warrants or the Warrant Shares.
50
Upon any partial exercise of the Warrants, there shall be
countersigned and issued to the Holder hereof a new Warrant Certificate in
respect of the Warrant Shares as to which the Warrants shall not have been
exercised. This Warrant Certificate may be exchanged at the office of the
Warrant Agent by presenting this Warrant Certificate properly endorsed with a
request to exchange this Warrant Certificate for other Warrant Certificates
evidencing an equal number of Warrants. In the event any fractional Warrant
Shares would have to be issued upon the exercise of the Warrants, the Company
may, at its option, pay an amount in cash equal to the Current Market Value for
one Warrant Share on the Business Day immediately preceding the date the Warrant
is exercised, multiplied by such fraction, computed to the nearest whole Dutch
guilder in lieu of issuing such fractional share.
Pursuant to the Warrant Agreement, the Company has certain
registration obligations with respect to the Ordinary Shares issuable upon
exercise of the Warrants.
Pursuant to the Warrant Agreement, if the Company proposes to
effect an Initial Public Offering, it shall be obligated to include the Warrant
Shares of holders who request to have such Warrant Shares included; provided,
however, that the Managing Underwriter may, under certain conditions, limit the
number of such Warrant Shares to be included in the Initial Public Offering.
Pursuant to the Warrant Agreement, in the event that an
Initial Public Offering has not occurred by the Triggering Date, the Company
will be required to make an offer to purchase all outstanding Warrants in cash
at the Repurchase Price.
Pursuant to the Warrant Agreement, under certain circumstances
in the event of a Change of Control, the Company shall make an offer to purchase
any and all of the outstanding Warrants at cash purchase prices at least equal
to the Repurchase Price. In addition, in the event of a sale of the Company, the
Company has the power to require holders of the Warrants to sell such Warrants
to the transferee.
The Warrants do not entitle any holder hereof to any of the
rights of a stockholder of the Company, including, without limitation, the right
to receive dividends, to vote, to consent, to exercise any preemptive rights or
to receive notice as stockholders of the Company in respect of any stockholders'
meeting for election of directors of the Company. All Ordinary Shares issuable
by the Company upon the exercise of the Warrants shall, upon such issue, be duly
and validly issued and fully paid and non-assessable.
The Holder in whose name the Warrant Certificate is registered
may be deemed and treated by the Company and the Warrant Agent as the absolute
owner of the Warrant Certificate for all purposes whatsoever and neither the
Company nor the Warrant Agent shall be affected by notice to the contrary.
This Warrant Certificate shall not be valid or obligatory for
any purpose until it shall have been countersigned by the Warrant Agent.
51
FORM OF ELECTION TO PURCHASE WARRANT SHARES (to
be executed only upon exercise of Warrants)
[ ]
The undersigned hereby irrevocably elects to exercise
----------------
Warrants at an exercise price per Warrant Share of NLG
--------
to acquire an equal number of Warrant Shares on the terms and conditions
specified in the within Warrant Certificate and the Warrant Agreement therein
referred to, surrenders this Warrant Certificate and all right, title and
interest therein to , and directs that the Ordinary Shares deliverable
-------
upon the exercise of such Warrants be registered or placed in the name and at
the address specified below and delivered thereto.
Date:
----------------, ----
---------------------------------------(1)
(Signature of Owner)
----------------------------------------
(Street Address)
----------------------------------------
(City) (State) (Zip Code)
Signature Guaranteed by:
----------------------------------------
--------------
(1) The signature must correspond with the name as written upon the face of the
within Warrant Certificate in every particular, without alteration or
enlargement or any change whatever, and must be guaranteed by a national
bank or trust company or by a member firm of any national securities
exchange.
52
Securities and/or check to be issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
Any unexercised Warrants evidenced by the within Warrant Certificate to be
issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
53
SCHEDULE A
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL WARRANTS(2)
The following increases or decreases in this Global Warrant have been made:
Date of Amount of Amount of Number of Signature of
Exchange decrease in increase in Warrants of authorized
Number of Number of this Global officer of
Warrants of this Warrants of this Warrant Warrant Agent
Global Warrant Global Warrant following
such decrease
or increase
----------------------------------------------------------------------------------------------------------------------------
---------
(2) This is to be included only if the Warrant is in global form.
54
EXHIBIT B TO
WARRANT AGREEMENT
[FORM OF FACE OF DEFINITIVE WARRANT CERTIFICATE]
55
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR
OTHER SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF (1)
REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING
THIS SECURITY IN AN "OFFSHORE TRANSACTION" PURSUANT TO RULE 904 OF REGULATION S,
(2) AGREES THAT IT WILL NOT PRIOR TO (X) THE DATE WHICH IS TWO YEARS (OR SUCH
SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144(k) UNDER THE SECURITIES ACT OR
ANY SUCCESSOR PROVISION THEREUNDER) AFTER THE LATER OF THE ORIGINAL ISSUE DATE
HEREOF (OR OF ANY PREDECESSOR OF THIS SECURITY) OR THE LAST DAY ON WHICH THE
COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY
PREDECESSOR OF THIS SECURITY) AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE
REQUIRED BY APPLICABLE LAWS (THE "RESALE RESTRICTION TERMINATION DATE"), OFFER,
SELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY, (B) PURSUANT
TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR
OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE
TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO
THE EFFECT OF THIS LEGEND; PROVIDED THAT THE COMPANY AND THE WARRANT AGENT SHALL
HAVE THE RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSE
(D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION
AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (II) IN EACH OF THE
FOREGOING CASES, TO REQUIRE THAT A CERTIFICATION OR TRANSFER IN THE FORM
APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE
TRANSFEROR TO THE WARRANT AGENT, THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF
THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. AS USED HEREIN, THE
TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE
MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
56
CUSIP No._____________
No. ___ _____ Warrants
WARRANT CERTIFICATE
VERSATEL TELECOM INTERNATIONAL N.V.
THIS CERTIFIES THAT, _______________ is the owner of _____
Warrants (the "Warrants") as described above, transferable only on the books of
the Company by the holder thereof in person or by his or her duly authorized
attorney, on surrender of the Certificate properly endorsed. This Warrant
entitles the holder thereof (the "Holder"), at its option and subject to the
provisions contained herein and in the Warrant Agreement, dated as of December
3, 1998 (the "Warrant Agreement"), between the Company and United States Trust
Company of New York, as Warrant Agent (the "Warrant Agent", which term includes
any successor Warrant Agent under the Warrant Agreement), to purchase from
VersaTel Telecom International N.V., a company organized under the laws of The
Netherlands (the "Company"), 6.667 Warrant Shares per Warrant at the exercise
price per share of NLG 5.10 (the "Exercise Price"), or by Cashless Exercise.
This Warrant is subject to the terms and provisions contained in the Warrant
Agreement, to all of which terms and provisions the Holder of this Warrant
Certificate consents by acceptance hereof. The Warrant Agreement is hereby
incorporated herein by reference and made a part hereof. Reference is hereby
made to the Warrant Agreement for a full statement of the respective rights,
limitations of rights, duties and obligations of the Company, the Warrant Agent
and the Holders of the Warrants. Capitalized terms used but not defined herein
shall have the meanings ascribed thereto in the Warrant Agreement. This Warrant
Certificate shall terminate and become void as of 5:00 p.m. on May 15, 2008 (the
"Expiration Date") or upon the exercise hereof as to all the Ordinary Shares
subject hereto. The Exercise Price and the number of Warrant Shares purchasable
upon exercise of the Warrants shall be subject to adjustment from time to time
as set forth in the Warrant Agreement. References in this Warrant Certificate to
Ordinary Shares underlying the Warrants, or deliverable upon exercise of the
Warrants to the Holders thereof, shall be deemed to refer to Class B Shares of
the Company.
AS PROVIDED IN THE WARRANT AGREEMENT UNTIL THE EARLIEST OF (i)
MAY 15, 1999, (ii) THE COMMENCEMENT OF AN EXCHANGE OFFER OR THE EFFECTIVENESS OF
A SHELF REGISTRATION STATEMENT WITH RESPECT TO THE NOTES, (iii) THE
EXERCISABILITY DATE AND (iv) SUCH OTHER DATE AS THE REPRESENTATIVES WILL
DETERMINE IN THEIR SOLE DISCRETION, EACH $1,000 PRINCIPAL AMOUNT OF NOTES AND
ONE WARRANT WHICH COLLECTIVELY COMPRISE EACH UNIT MAY NOT BE TRANSFERRED OR
EXCHANGED SEPARATELY.
Reference is hereby made to the further provisions of this
Warrant Certificate set forth on the reverse hereof and such further provisions
shall for all purposes have the same effect as though fully set forth at this
place.
This Warrant Certificate shall not be valid unless
countersigned by the Warrant Agent, as such term is used in the Warrant
Agreement.
57
THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL GOVERN THE
WARRANT AGREEMENT AND THE WARRANTS WITHOUT REGARD TO CONFLICT OF LAW PROVISIONS
THEREOF.
IN WITNESS WHEREOF, VersaTel Telecom International N.V. has
caused this Warrant Certificate to be executed on behalf of the Company by two
Officers of the Company.
Dated: December __, 1998
VERSATEL TELECOM INTERNATIONAL N.V.
By:
-------------------------------------
Name: R. Xxxx Xxxxx
Title: Managing Director
By:
-------------------------------------
Name:
Title:
58
Countersigned:
UNITED STATES TRUST COMPANY OF NEW YORK,
as Warrant Agent
By
---------------------------
Authorized Signatory
59
[FORM OF REVERSE OF WARRANT CERTIFICATE]
This Warrant Certificate is issued under and in accordance
with the Warrant Agreement. A copy of the Warrant Agreement may be obtained for
inspection by the Holder hereof upon written request to the Warrant Agent at
United States Trust Company of New York, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx
Xxxx, 00000-0000. References in this Warrant Certificate to Ordinary Shares
underlying the Warrants, or deliverable upon exercise of the Warrants to the
Holders thereof, shall be deemed to refer to Class B Shares of the Company.
Warrants may be exercised at any time commencing at the
opening of business on the Exercisability Date and until 5:00 p.m., New York
City time on the Expiration Date. Subject to the terms of the Warrant Agreement,
the Warrants may be exercised in whole or in part (i) by surrender of this
Warrant Certificate with the form of election to purchase Warrant Shares
attached hereto duly executed and with the simultaneous payment of the Exercise
Price in cash to the Warrant Agent for the account of the Company at the office
of the Warrant Agent or (ii) by Cashless Exercise. Payment of the Exercise Price
in cash shall be made in cash or by certified or official bank check payable to
the order of the Company or by wire transfer of funds to an account designated
by the Company for such purpose. Payment by Cashless Exercise shall be made by
the surrender of a Warrant or Warrants represented by one or more Warrant
Certificates and without payment of the Exercise Price in cash, in exchange for
the issuance of such number of Ordinary Shares equal to the product of (1) the
Exercise Price and the number of Ordinary Shares for which such Warrant would
otherwise then be nominally exercised if payment of the Exercise Price were
being made in cash and (2) the Cashless Exercise Ratio.
The Warrant Agreement provides that upon the occurrence of
certain events the number of Ordinary Shares issuable upon the exercise of each
Warrant shall, subject to certain conditions, be adjusted.
In the event the Company enters into a Combination following
which this Warrant remains outstanding, the Holder hereof will be entitled to
receive upon exercise of the Warrants the shares of capital stock or other
securities or other property of such surviving entity as such Holder would have
been entitled to receive upon or as the result of such Combination had the
Holder exercised its Warrants immediately prior to such Combination; provided,
however, that in the event that, in connection with such Combination,
consideration to holders of Ordinary Shares in exchange for their shares is
payable solely in cash or in the event of the dissolution, liquidation or
winding-up of the Company, the Holder hereof will be entitled to receive
distributions on an equal basis with the holders of Ordinary Shares or other
securities issuable upon exercise of the Warrants, as if the Warrants had been
exercised immediately prior to such events, less the Exercise Price.
The Company may require payment of a sum sufficient to pay all
taxes, assessments or other governmental charges in connection with the transfer
or exchange of the Warrant Certificates pursuant to Section 3.6 of the Warrant
Agreement but not for any exchange or original issuance (not involving a
transfer) with respect to temporary Warrant Certificates, the exercise of the
Warrants or the Warrant Shares.
60
Upon any partial exercise of the Warrants, there shall be
countersigned and issued to the Holder hereof a new Warrant Certificate in
respect of the Warrant Shares as to which the Warrants shall not have been
exercised. This Warrant Certificate may be exchanged at the office of the
Warrant Agent by presenting this Warrant Certificate properly endorsed with a
request to exchange this Warrant Certificate for other Warrant Certificates
evidencing an equal number of Warrants. In the event any fractional Warrant
Shares would have to be issued upon the exercise of the Warrants, the Company
may, at its option, pay an amount in cash equal to the Current Market Value for
one Warrant Share on the Business Day immediately preceding the date the Warrant
is exercised, multiplied by such fraction, computed to the nearest whole Dutch
guilder in lieu of issuing such fractional share.
Pursuant to the Warrant Agreement, the Company has certain
registration obligations with respect to the Ordinary Shares issuable upon
exercise of the Warrants.
Pursuant to the Warrant Agreement, if the Company proposes to
effect an Initial Public Offering, it shall be obligated to include the Warrant
Shares of holders who request to have such Warrant Shares included; provided,
however, that the Managing Underwriter may, under certain conditions, limit the
number of such Warrant Shares to be included in the Initial Public Offering.
Pursuant to the Warrant Agreement, in the event that an
Initial Public Offering has not occurred by the Triggering Date, the Company
will be required to make an offer to purchase all outstanding Warrants in cash
at the Repurchase Price.
Pursuant to the Warrant Agreement, under certain circumstances
in the event of a Change of Control, the Company shall make an offer to purchase
any and all of the outstanding Warrants at cash purchase prices at least equal
to the Repurchase Price. In addition, in the event of a sale of the Company, the
Company has the power to require holders of the Warrants to sell such Warrants
to the transferee.
The Warrants do not entitle any holder hereof to any of the
rights of a stockholder of the Company, including, without limitation, the right
to receive dividends, to vote, to consent, to exercise any preemptive rights or
to receive notice as stockholders of the Company in respect of any stockholders'
meeting for election of directors of the Company. All Ordinary Shares issuable
by the Company upon the exercise of the Warrants shall, upon such issue, be duly
and validly issued and fully paid and non-assessable.
The Holder of this Warrant Certificate may be deemed and
treated by the Company and the Warrant Agent as the absolute owner of the
Warrant Certificate for all purposes whatsoever and neither the Company nor the
Warrant Agent shall be affected by notice to the contrary.
This Warrant Certificate shall not be valid or obligatory for
any purpose until it shall have been countersigned by the Warrant Agent.
61
FORM OF ELECTION TO PURCHASE WARRANT SHARES
(to be executed only upon exercise of Warrants)
[ ]
The undersigned hereby irrevocably elects to exercise
Warrants at an exercise price per Warrant Share of
---------------
NLG to acquire an equal number of Warrant Shares on the terms and
--------
conditions specified in the within Warrant Certificate and the Warrant Agreement
therein referred to, surrenders this Warrant Certificate and all right, title
and interest therein to , and directs that the Ordinary Shares
----------
deliverable upon the exercise of such Warrants be registered or placed in the
name and at the address specified below and delivered thereto.
Date:
------------------, ----
---------------------------------------(3)
(Signature of Owner)
----------------------------------------
(Street Address)
----------------------------------------
(City) (State) (Zip Code)
Signature Guaranteed by:
----------------------------------------
---------
(3) The signature must correspond with the name as written upon the face of
the within Warrant Certificate in every particular, without alteration
or enlargement or any change whatever, and must be guaranteed by a
national bank or trust company or by a member firm of any national
securities exchange.
62
Securities and/or check to be issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
Any unexercised Warrants evidenced by the within Warrant Certificate to be
issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
63
EXHIBIT C TO
WARRANT AGREEMENT
FORM OF TRANSFER CERTIFICATE
FOR TRANSFER FROM RULE 000X XXXXXX
XXXXXXX TO REGULATION S GLOBAL WARRANT
(Transfers pursuant to Section 2.10(a)
of the Warrant Agreement)
VersaTel Telecom International N.V.
c/o United States Trust Company of New York
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Re: VersaTel Telecom International N.V.
Reference is hereby made to the Warrant Agreement dated as of
December 3, 1998 (the "Warrant Agreement") between VersaTel Telecom
International N.V. and United States Trust Company of New York, as Warrant
Agent. Capitalized terms used but not defined herein shall have the meanings
given them in the Warrant Agreement.
This letter relates to the Warrants beneficially held through
interests in the Rule 144A Global Warrant (CUSIP No. _________) with DTC in the
name of ________ (the "Transferor") account no. ___. The Transferor hereby
requests that on [INSERT DATE] such beneficial interest in the Rule 144A Global
Warrant be transferred or exchanged for an interest in the Regulation S Global
Warrant (CUSIP (CINS) No. _________) in the same number of Warrants and transfer
to (account no. ________).
In connection with such request and in respect of such
Warrants the Transferor does hereby certify that such transfer has been effected
in accordance with the transfer restrictions set forth in the Warrant Agreement
and the Warrants and pursuant to and in accordance with 904 of Regulation S
under the United States Securities Act of 1933, as amended (the "Securities
Act"), and accordingly the Transferor further certifies that:
(A) (1) the offer of the Warrants was not made to a person in
the United States;
64
(2) either (a) at the time the buy order was
originated, the transferee was outside the United States or we
and any person acting on our behalf reasonably believed that
the transferee was outside the United States, or (b) the
transaction was executed in, on or through the facilities of a
designated offshore securities market and neither the
Transferor nor any person acting on our behalf knows that the
transaction was prearranged with a buyer in the United States;
(3) no directed selling efforts have been made in
contravention of the requirements of 904(b) of Regulation S,
as applicable; and
(4) the transaction is not part of a plan or scheme
to evade the registration requirements of the Securities Act.
OR
(B) Such transfer is being made in accordance with Rule 144
under the Securities Act.
65
This certificate and the statements contained herein are made
for your benefit and the benefit of the Company. Terms used in this certificate
and not otherwise defined in the Warrant Agreement have the meanings set forth
in Regulation S under the Securities Act.
Dated:
---------------, ----
[Name of Transferor]
By:
--------------------------
Name:
Title:
Telephone No.:
Please print name and address (including zip code number)
66
EXHIBIT D TO
WARRANT AGREEMENT
FORM OF TRANSFER CERTIFICATE
FOR TRANSFER FROM REGULATION S GLOBAL
WARRANT TO RULE 144A GLOBAL WARRANT
PRIOR TO EXPIRATION OF RESTRICTED PERIOD
(Transfers pursuant to Section 2.10(b)
of the Warrant Agreement)
VersaTel Telecom International N.V.
c/o United States Trust Company of New York
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Re: VersaTel Telecom International N.V.
Reference is hereby made to the Warrant Agreement dated as of
December 3, 1998 (the "Warrant Agreement") between VersaTel Telecom
International N.V. and United States Trust Company of New York, as Warrant
Agent. Capitalized terms used but not defined herein shall have the meanings
given them in the Warrant Agreement.
This letter relates to the Warrants beneficially held through
interests in the Regulation S Global Warrant (CUSIP (CINS) No. _________) with
[Euroclear] [Cedel] (Common Code No. _______) through DTC in the name of
_______________ (the "Transferor") [Euroclear] [Cedel] account no._________. The
Transferor hereby requests that on [INSERT DATE] such beneficial interest in the
Regulation S Global Warrant be transferred or exchanged for an interest in the
Rule 144A Global Warrant (CUSIP No. _________) in the same number of Warrants
and transfer to ______________ (DTC account no. ________).
In connection with such request, and in respect of such
Warrants, the Transferor does hereby certify that such Warrants are being
transferred in accordance with Rule 144A under the United States Securities Act
of 1933, as amended (the "Securities Act"), to a transferee that the Transferor
reasonably believes is purchasing the Warrants for its own account or an account
with respect to which the transferee exercises sole investment discretion and
the transferee and any such account is a "qualified institutional buyer" within
the meaning of Rule 144A, in each case in a transaction meeting the requirements
of Rule 144A and in accordance with any applicable securities laws of any state
of the United States or any other jurisdiction.
67
This certificate and the statements contained herein are made
for your benefit and the benefit of the Company.
Dated:
---------------, ----
[Name of Transferor]
By:
--------------------------
Name:
Title:
Telephone No.:
Please print name and address (including zip code number)
