EXHIBIT 4.1
EXECUTION COPY
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UNIT AGREEMENT
Dated as of July 8, 1999
among
CYBERNET INTERNET
SERVICES INTERNATIONAL, INC.
and
THE BANK OF NEW YORK,
as Unit Agent, Trustee and Warrant Agent
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UNIT AGREEMENT (this "Agreement"), dated as of July 8, 1999, between
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Cybernet Internet Services International, Inc., a Delaware corporation (the
"Company"), and The Bank of New York, as Unit Agent (in such capacity, the "Unit
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Agent"), as Trustee (in such capacity, the "Trustee") and as Warrant Agent (in
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such capacity, the "Warrant Agent").
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W I T N E S S E T H :
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WHEREAS, the Company proposes to issue $150,000,000 aggregate
principal amount of 14.0% Senior Dollar Notes due 2009 (the "Initial Notes"; and
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together with any Exchange Notes, the "Notes") pursuant to an Indenture dated as
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of July 8, 1999 (the "Indenture"; unless otherwise defined herein, terms defined
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in the Indenture are used herein as defined therein) between the Company and the
Trustee, and the Company proposes to issue 150,000 Warrants (the "Warrants") to
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purchase 4,534,604 shares of common stock, par value $.001, of the Company (the
"Warrant Shares"), pursuant to a Warrant Agreement dated as of July 8, 1999
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(the "Warrant Agreement") between the Company and the Warrant Agent;
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WHEREAS, the Notes and the Warrants will initially be represented by
Units (the "Units"), with each Unit consisting of $1,000 principal amount of
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Notes and one Warrant to purchase 30.2310693 Warrant Shares;
WHEREAS, the Company, the Trustee and the Warrant Agent desire to
appoint The Bank of New York to act as their agent for the purpose of issuing
certificates ("Unit Certificates") representing the Units and for the
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registration of transfers and exchanges thereof; and
WHEREAS, the Units will be exchangeable for the Notes and the Warrants
represented thereby upon the earliest to occur of: (i) the commencement of an
exchange offer or the effectiveness of a shelf registration statement with
respect to the Notes and (ii) such other date as Xxxxxx Brothers International
(Europe) and Xxxxxx Xxxxxxx & Co. International Limited shall jointly determine
in their sole discretion (such earliest date, "Separation Date").
NOW THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereto agree as follows:
SECTION 1. Definitions.
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"Affiliate" as applied to any Person means any other Person directly
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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" means members of, or participants in, DTC.
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"Bankruptcy Law" means Title 11, U.S. Code or any similar Federal,
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state or foreign law for the relief of creditors.
"Business Day" means a day other than a Saturday, Sunday or other day
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on which commercial banking institutions are authorized or
required by law to close in New York City or Munich.
"Cedel" means Cedel Bank, societe anonyme.
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"Company" means the party named as such in the preamble of this
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Agreement until a successor replaces it in accordance with the provisions
of the Indenture and thereafter means such successor.
"Company Order" means a written order or request signed in the name of
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the Company by two Officers of the Company and delivered to the Unit Agent.
"Definitive Units" means Units in definitive registered form
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substantially in the form of Exhibit B.
"DTC" means The Depository Trust Company or its successors.
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"DWAC" means the Depositary/Deposit Withdraw at Custodian system.
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"Euroclear" means Xxxxxx Guaranty Trust Company of New York (Brussels
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office), as operator of the Euroclear System.
"Event of Default" shall have the meaning set forth in Section 6.1 of
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the Indenture.
"Exchange Act" means the U.S. Securities Exchange Act of 1934, as
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amended, and the rules and regulations of the SEC promulgated thereunder.
"Holder" means a Person in whose name a Unit is registered on the
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Registrar's books.
"Initial Purchasers" means Xxxxxx Brothers International (Europe) and
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Xxxxxx Xxxxxxx & Co. International Limited.
"Issue Date" means the date on which the Units are originally issued
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under this Agreement.
"Officer" means, with respect to any Person, the chairman of the board
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of directors, any director, the president, the principal executive officer,
the principal financial officer, the principal accounting officer, the
treasurer, the controller or the secretary of such Person.
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"Officers' Certificate" means a certificate, signed on behalf of the
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Company by two Officers of the Company, that meets the requirements set
forth in Sections 5.2 and 5.3.
"Opinion of Counsel" means a written opinion of legal counsel who is
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reasonably acceptable to the Unit Agent, which opinion is addressed to the
Unit Agent and complies with the requirements of Sections 5.2 and 5.3.
"Person" means any individual, corporation, partnership, joint
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venture, association, joint-stock company, trust, unincorporated
organization, government or any agency or political subdivision thereof or
any other entity.
"Private Placement Legend" means the legend set forth in Section
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2.7(c).
"Qualified Institutional Buyer" or "QIB" shall have the meaning
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specified in Rule 144A under the Securities Act.
"Registrar" shall have the meaning set forth in Section 2.4.
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"Rule 144" means Rule 144 under the Securities Act.
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"Rule 144A" means Rule 144A under the Securities Act.
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"Rule 144A Global Unit" shall have the meaning set forth in Section
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2.2.
"Rule 144A Unit" shall have the meaning set forth in Section 2.2.
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"Rule 144A Global Unit" shall have the meaning set forth in Section
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2.2.
"SEC" means the U.S. Securities and Exchange Commission.
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"Securities Act" means the U.S. Securities Act of 1933, as amended,
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and the rules and regulations of the SEC promulgated thereunder.
"Units" shall have the meaning set forth in the preamble to this
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Agreement.
SECTION 1.2 Appointment of Unit Agent. (a) The Company hereby
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appoints the Unit Agent to act as agent for the Company in accordance with the
instructions set forth hereinafter in this Agreement, and the Unit Agent hereby
accepts such appointment.
(b) The Trustee and the Company hereby appoint the Unit Agent as
Authenticating Agent and Registrar with respect to Notes represented by Units
for so long as such Notes are represented by the Units. In its capacity as
Authenticating Agent and Registrar, the Unit Agent shall have the rights,
obligations, protections, privileges, benefits and immunities
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provided for such capacities in the Indenture. The Trustee hereby appoints, and
the Company hereby consents to the appointment of, the Unit Agent, as its agent
with respect to all such rights and obligations of the Trustee under the
Indenture with respect to Notes represented by Units for so long as such Notes
are represented by the Units, and the Unit Agent hereby accepts such
appointment.
(c) The Warrant Agent and the Company hereby appoint the Unit Agent
as an agent of the Warrant Agent for the purposes of countersigning Warrants so
long as such Warrants are represented by the Units, and for maintaining a
register of the registered owners of and the registration of transfers and
exchanges of Warrants for so long as such Warrants are represented by the Units.
The Warrant Agent hereby appoints, and the Company hereby consents to the
appointment of, the Unit Agent with respect to all such rights and obligations
of the Warrant Agent under the Warrant Agreement with respect to Warrants
represented by Units for so long as such Warrants are represented by the Units,
and the Warrant Agent hereby accepts such appointment.
SECTION 2 Unit Certificates.
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2.1 Issuance of Units. Units consisting of Notes and Warrants shall
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be issued by the Company on the Issue Date. The Notes and the Warrants shall
not be separately transferable until on or after the Separation Date as provided
in Section 3 hereof.
2.2 Form of Unit. The Units and the notation relating to the Unit
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Agent's certificate of authentication shall be substantially in the form of
Exhibits A or B. The Units may have notations, legends or endorsements required
by law, stock exchange rule or usage. The Company and the Unit Agent shall
approve the form of the Units and any notation, legend or endorsement thereon.
Each Unit shall be dated the date of its issuance and shall show the date of its
authentication.
The terms and provisions contained in the Units, annexed hereto as
Exhibits A and B, shall constitute, and are hereby expressly made, a part of
this Agreement and, to the extent applicable, the Company and the Unit Agent by
their execution and delivery of this Agreement expressly agree to such terms and
provisions and to be bound thereby.
Units offered and sold in their initial distribution in reliance on
Rule 144A shall be initially issued as one or more global Units, in registered
global form, substantially in the form of Exhibit A hereto, with such applicable
legends as are provided in Exhibit A hereto, except as otherwise permitted
herein. Such Global Units shall be referred to collectively herein as the "Rule
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144A Global Unit." Such Rule 144A Global Unit shall be deposited on behalf of
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the holders of the Units represented thereby by the Unit Agent as custodian for
DTC, duly executed by the Company and authenticated by the Unit Agent or
Authenticating Agent as provided herein. The aggregate amount of the Rule 144A
Global Unit outstanding may from time to time be increased or decreased by
adjustments made on the records of the Unit Agent, as custodian for DTC, or the
records of DTC or its nominee, as the case may be, as hereinafter provided (or
by the issue of a further Rule 144A Global Unit), in connection with or in
consequence of the issue of
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Definitive Units or the issue of additional Rule 144A Units, as hereinafter
provided. The Rule 144A Global Unit and all other Units initially evidenced by
such Rule 144A Global Unit, shall collectively be referred to herein as the
"Rule 144A Units."
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The Company may also elect, in its sole discretion, to create
additional forms of global Units containing transfer and other restrictions
which comply with applicable U.S., securities and other laws from time to time,
although the Company is not obligated to do so.
SECTION 2.3 Execution and Authentication. Two Officers (each of whom
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shall have been duly authorized by all requisite corporate actions) shall sign
the Units for the Company by manual or facsimile signature.
If an Officer whose signature is on a Unit was an Officer at the time
of such execution but no longer holds that office or position at the time the
Unit Agent authenticates the Unit, the Unit shall be nevertheless valid.
A Unit shall not be valid until an authorized signatory of the Unit
Agent manually signs the certificate of authentication on the Unit. The
signature shall be conclusive evidence that the Unit has been authenticated
under this Agreement.
The Unit Agent shall authenticate 150,000 Units upon receipt of a
Company Order in the form of an Officers' Certificate. The Officers'
Certificate shall specify the number of Units to be authenticated, the series
and type of Units and the date on which the Units are to be authenticated,
whether the Units are to be issued as Definitive Units or Global Units and
whether or not the Units shall bear the Private Placement Legend, or such other
information as the Unit Agent may reasonably request. In authenticating the
Units and accepting the responsibilities under this Agreement in relation to the
Units, the Unit Agent shall be entitled to receive, and shall be fully protected
in relying upon, an Opinion of Counsel stating that the form and terms thereof
have been established in conformity with the provisions of this Agreement. The
aggregate number of Units outstanding at any time may not exceed 300,000 Units
except as provided in Section 2.8. Upon receipt of a Company Order, the Unit
Agent shall authenticate Units in substitution of Units originally issued to
reflect any name change of the Company.
SECTION 2.4 Registrar. The Company shall maintain an office or
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agency in the Borough of Manhattan, the City of New York where (i) Global Units
may be presented or surrendered for registration of transfer or for exchange
("Registrar") and (ii) notices and demands in respect of such Global Units and
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this Agreement may be served. In the event that Definitive Units are issued,
(x) Definitive Units may be presented or surrendered for registration of
transfer or for exchange, (y) Definitive Units may be presented or surrendered
for payment and (z) notices and demands in respect of the Definitive Units and
this Agreement may be served at an office of the Registrar in the Borough of
Manhattan, the City of New York. The Registrar shall keep a register of the
Units and of their transfer and exchange. The Company, upon notice to the Unit
Agent, may have one or more co-Registrars reasonably acceptable to the Unit
Agent. The term "Registrar" includes any co-Registrar. The Company may change
any Registrar without notice to any Holder. In the case of a transfer of a
Definitive Unit in part, upon surrender of the
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Definitive Unit to be transferred, a Definitive Unit shall be issued to the
transferee in respect of the aggregate number of Units transferred and a
Definitive Unit shall be issued to the transferor in respect of the aggregate
balance of Units that remain outstanding after the transfer at the office of any
transfer agent.
SECTION 2.5 List of Holders. The Unit Agent shall preserve in as
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current a form as is reasonably practicable the most recent list available to it
of the names and addresses of Holders. If the Unit Agent is not the Registrar,
the Company shall furnish to the Unit Agent before each Record Date and at such
other times as the Unit Agent may request in writing a list as of such date and
in such form as the Unit Agent may reasonably require of the names and addresses
of Holders, which list may be conclusively relied upon by the Unit Agent.
SECTION 2.6 Book-Entry Provisions for Global Units. (a) The Global
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Units initially shall (i) be registered in the name of DTC or the nominee of
such depositary, (ii) be delivered to the Unit Agent as custodian for such
depositary and (iii) bear legends as set forth in Section 2.7(b) hereto.
(b) Restrictions on Transfer and Exchange of Global Units.
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Notwithstanding any other provisions of this Agreement, transfers of a Global
Unit shall be limited to transfers of such Global Unit in whole, but not in
part, by DTC to a nominee of DTC or by a nominee of DTC to DTC or another
successor of DTC or a nominee of such successor depositary. Interests of
beneficial owners in the Global Units may be transferred or exchanged for
Definitive Units in accordance with the rules and procedures of DTC or its
successor and the provisions of Section 2.7. All Global Units shall be
exchanged by the Company (with authentication by the Unit Agent) for one or more
Definitive Units, (a) if DTC (i) has notified the Company that it is unwilling
or unable to continue as, or ceases to be, a clearing agency registered under
the Exchange Act and (ii) a successor to DTC registered as a clearing agency
under the Exchange Act is not able to be appointed by the Company within 90 days
of such notification or (b) at any time at the option of the Company. Whenever
all of a Global Unit is exchanged for one or more Definitive Units, it shall be
surrendered by the Holder thereof to the Unit Agent for cancellation. Whenever
a part of a Global Unit is exchanged for one or more Definitive Units the Global
Unit shall be surrendered by the Holder thereof to the Unit Agent who shall
cause an adjustment to be made to Schedule A of such Global Unit such that the
number of such Global Units will be equal to the remainder of such Global Units
not exchanged and shall thereafter return the Global Unit to such Holder. A
Global Unit may not be exchanged for a Definitive Unit other than as provided in
this Section 2.6(b).
(c) In connection with the transfer of an entire Global Unit to
beneficial owners pursuant to paragraph (b) of this Section 2.6, the Global
Units shall be deemed to be surrendered to the Unit Agent for cancellation, and
the Company shall execute, and the Unit Agent shall, upon written instructions
from the Company, authenticate and make available for delivery, to each
beneficial owner identified by DTC, in exchange for its beneficial interest in
the Global Units, an equal aggregate amount of Definitive Units. In connection
with any transfer of a portion of the beneficial interest in a Global Unit
pursuant to subsection (b) of this Section to beneficial owners who will
thereafter hold Definitive Units, the Unit Agent shall reflect on its
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books and records the date and decrease the amount of such Global Unit in an
amount equal to the amount of the beneficial interest in the Global Unit to be
transferred, and the Company shall execute, and the Unit Agent shall
authenticate and deliver, one or more Definitive Units of like tenor and amount.
(d) Any Definitive Unit constituting a Rule 144A Unit delivered in
exchange for an interest in a Global Unit pursuant to paragraph (b) of this
Section 2.6 shall, except as otherwise provided by Section 2.7, bear the Private
Placement Legend.
(e) The Holder of any Global Unit may grant proxies and otherwise
authorize any Person, including DTC and its Agent Members and Persons that may
hold interest through Agent Members, to take any action which a Holder is
entitled to take under this Agreement or the Units.
(f) Cancellation and/or Adjustment of a Global Unit. At such time as
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all beneficial interests in a Global Unit have either been exchanged for
Definitive Units, redeemed, repurchased or canceled, such Global Unit shall be
returned to or retained and canceled by the Unit Agent. At any time prior to
such cancellation, if any beneficial interest in a Global Unit is exchanged for
Definitive Units, redeemed, repurchased or canceled, the number of Units
represented by such Global Unit shall be reduced and an endorsement shall be
made on such Global Unit by the Unit Agent to reflect such reduction.
SECTION 2.7 Registration of Transfer and Exchange. (a) Prior to the
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Separation Date, notwithstanding any provision to the contrary herein, transfers
of beneficial interests in Global Units or transfers of Definitive Units, in
whole or in part, shall be made only in accordance with this Section 2.7.
(b) Other Exchanges. In the event that a Global Unit is exchanged for
Definitive Units pursuant to Section 2.6(b), or a Definitive Unit in registered
form is exchanged for another such Definitive Unit in registered form, or a
Definitive Unit is exchanged for a beneficial interest in a Global Unit, such
Units may be exchanged or transferred for one another only in accordance with
such procedures as are substantially consistent with the provisions of Sections
2.6 and 2.7 herein and as may be from time to time adopted by the Company and
the Unit Agent.
(c) Private Placement Legend. Each Unit issued hereunder shall, upon
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issuance, bear the legend set forth herein and such legend shall not be removed
from such Unit except as provided in the next sentence. The legend required for
a Rule 144A Unit may be removed from a Rule 144A Unit if there is delivered to
the Company and the Unit Agent such satisfactory evidence, which may include an
opinion of independent counsel licensed to practice law in the State of New
York, as may be reasonably required by the Company, that neither such legend nor
the restrictions on transfer set forth therein are required to ensure that
transfers of such Unit will not violate the registration requirements of the
Securities Act. Upon provision of such satisfactory evidence, the Unit Agent,
at the direction of the Company, shall authenticate and deliver in exchange for
such Unit another Unit or Units of equal aggregate amount that does not bear
such legend. If such a legend required for a Rule 144A Unit has been removed
from a Rule 144A Unit as provided above, no other Unit issued in exchange for
all or any part of such Unit
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shall bear such legend, unless the Company has reasonable cause to believe that
such other Unit is a "restricted security" within the meaning of Rule 144 and
instructs the Unit Agent to cause a legend to appear thereon.
The Units shall bear the following legends (the "Private Placement
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Legend") on the face thereof:
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THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY
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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 IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT),
(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
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RESTRICTION TERMINATION DATE"), OFFER, SELL OR OTHERWISE TRANSFER THIS
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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
THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A OR (D) WITH THE CONSENT OF THE COMPANY
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO
WHICH THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND; PROVIDED THAT, IN CONSENTING TO ANY SALE OR OFFER PURSUANT TO
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CLAUSE (D) ABOVE, THE COMPANY SHALL HAVE THE RIGHT PRIOR TO ANY SUCH OFFER,
SALE OR TRANSFER (I) PURSUANT TO CLAUSE (D) 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 OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS
SECURITY IS COMPLETED AND
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DELIVERED BY THE TRANSFEROR TO THE UNIT AGENT. THIS LEGEND WILL BE REMOVED
UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION
DATE.
THE SECURITIES MAY NOT BE OFFERED, SOLD, TRANSFERRED OR DELIVERED AS
PART OF THEIR INITIAL DISTRIBUTION OR AT ANY TIME
THEREAFTER, DIRECTLY OR INDIRECTLY, OTHER THAN TO
(INVESTMENT) BANKS, PENSION FUNDS, INSURANCE COMPANIES,
SECURITIES FIRMS, INVESTMENT INSTITUTIONS, CENTRAL
GOVERNMENTS, LARGE INTERNATIONAL AND SUPRA-NATIONAL
ORGANIZATIONS AND OTHER COMPARABLE ENTITIES, INCLUDING,
AMONG OTHERS, TREASURIES AND FINANCE COMPANIES OF LARGE
ENTERPRISES, WHICH ARE ACTIVE ON A REGULAR AND PROFESSIONAL
BASIS IN THE FINANCIAL MARKETS FOR THEIR OWN ACCOUNT.
The Global Units 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
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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, ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL BECAUSE 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 SECTION 2.6 OF THE UNIT AGREEMENT PURSUANT TO
WHICH THEY WERE ISSUED.
(d) General. By its acceptance of any Unit bearing the Private
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Placement Legend, each Holder of such a Unit acknowledges the restrictions on
transfer of such Unit set forth in this Agreement and in the Private Placement
Legend and agrees that it will transfer such Unit only as provided in this
Agreement.
The Unit 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 Unit (including any transfers between or among Agent Members or
beneficial owners of interest in any Global Unit) other than to require delivery
of such certificates and other documentation or evidence as are expressly
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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.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 2.6 or this Section 2.7.
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 Registrar.
(e) Definitive Units shall be transferable only upon the surrender of
a Definitive Unit for registration of transfer. When a Definitive Unit is
presented to the Registrar or a co-registrar with a request to register a
transfer, the Registrar shall register the transfer as requested if its
requirements for such transfers are met. When Definitive Units are presented to
the Registrar or a co-registrar with a request to exchange them for an equal
amount of Definitive Units of other denominations, the Registrar shall make the
exchange as requested if the same requirements are met. To permit registration
of transfers and exchanges, the Company shall execute and the Unit Agent shall
authenticate Definitive Units at the Registrar's or co-registrar's request.
(f) The Company may require payment of a sum sufficient to pay all
taxes, assessments or other governmental charges in connection with any transfer
or exchange pursuant to this Section 2.7.
(g) All Units issued upon any transfer or exchange pursuant to the
terms of this Agreement will be entitled to the same benefits under this
Agreement as the Units surrendered upon such transfer or exchange.
(h) Holders of Units (or holders of interests therein) and
prospective purchasers designated by such Holders (or holders of interests
therein) will have the right to obtain from the Company upon request by such
Holders (or holders of interests therein) or prospective purchasers, during any
period in which the Company is not subject to Section 13 or 15(d) of the
Exchange Act, or is exempt from reporting pursuant to 12g3-2(b) under the
Exchange Act, the information required by paragraph d(4)(i) of Rule 144A in
connection with any transfer or proposed transfer of such Units.
(i) The Company, the Unit Agent and any agent may treat the person in
whose name a Unit is registered as the absolute owner of such Unit for all
purposes whatsoever.
SECTION 2.8 Replacement Units. If a mutilated Definitive Unit is
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surrendered to the Registrar, if a mutilated Global Unit is surrendered to the
Company or if the Holder of a Unit claims that such Unit has been lost,
destroyed or wrongfully taken, the Company shall issue and the Unit Agent shall
authenticate a replacement Unit in such form as the Unit being replaced if the
requirements of the Unit Agent, the Registrar and the Company are met. If
required by the Unit Agent, the Registrar or the Company, such Holder must
provide an indemnity bond or other indemnity, sufficient in the judgment of the
Company, the Registrar and the Unit Agent, to protect the Company, the
Registrar, the Unit Agent and any agent from any loss which any of
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them may suffer if a Unit is replaced. The Company may charge such Holder for
its reasonable, out-of-pocket expenses in replacing a Unit, including reasonable
fees and expenses of counsel. Every replacement Unit is an obligation of the
Company.
SECTION 2.9 Outstanding Units. Units outstanding at any time are all
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the Units that have been authenticated by the Unit Agent except those canceled
by it, those delivered to it for cancellation, those reductions in the Global
Unit effected in accordance with the provisions hereof and those described in
this Section as not outstanding. Subject to Section 2.10, a Unit does not cease
to be outstanding because the Company or any of its Affiliates holds the Unit.
If a Unit is replaced pursuant to Section 2.8 (other than a mutilated
Unit surrendered for replacement), it ceases to be outstanding unless the Unit
Agent receives proof satisfactory to it that the replaced Unit is held by a bona
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fide purchaser. A mutilated Unit ceases to be outstanding upon surrender of
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such Unit and replacement thereof pursuant to Section 2.8.
SECTION 2.10 Treasury Units. In determining whether the Holders of
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the required amount of Units have concurred in any direction, waiver or consent,
Units owned by the Company or its Affiliates shall be disregarded, except that,
for the purposes of determining whether the Unit Agent shall be protected in
relying on any such direction, waiver or consent, only Units that the Unit Agent
actually knows are so owned shall be disregarded.
The Company shall notify the Unit Agent, in writing, when it or any of
its Affiliates repurchases or otherwise acquires Units of the amount of such
Units so repurchased or otherwise acquired. The Unit Agent may require an
Officers= Certificate listing Units owned by the Company, a subsidiary of the
Company or an Affiliate of the Company.
SECTION 2.11 Temporary Units. Until permanent Definitive Units are
---------------
ready for delivery, the Company may prepare and the Unit Agent shall
authenticate temporary Definitive Units upon receipt of a Company Order in the
form of an Officers' Certificate. The Officers' Certificate shall specify the
amount of temporary Definitive Units to be authenticated and the date on which
the temporary Definitive Units are to be authenticated. Temporary Definitive
Units shall be substantially in the form of permanent Definitive Units but may
have variations that the Company considers appropriate for temporary Definitive
Units. Without unreasonable delay, the Company shall prepare and the Unit Agent
shall authenticate upon receipt of a Company Order permanent Definitive Units in
exchange for temporary Definitive Units.
SECTION 2.12 Cancellation. The Company at any time may deliver Units
------------
to the Unit Agent for cancellation. The Unit Agent, and no one else, shall
cancel and, at the written direction of the Company, shall dispose of (subject
to the record retention requirements of the Exchange Act) all Units surrendered
for transfer, exchange, payment or cancellation; provided, however, that the
-------- -------
Unit Agent may, but shall not be required to, destroy such canceled Units.
Subject to Section 2.7, the Company may not issue new Units to replace Units
that it has paid or delivered to the Unit Agent for cancellation. If the
Company shall acquire any of the Units, such acquisition shall not operate as a
redemption of such Units unless and until the same are surrendered to the Unit
Agent for cancellation pursuant to this Section 2.12.
11
SECTION 2.13 CUSIP, ISIN and Common Code Numbers. The Company in
-----------------------------------
issuing the Units may use a "CUSIP", "ISIN" or "Common Code" number, and if so,
the Unit Agent shall use the CUSIP, ISIN and Common Code number in notices of
redemption or exchange as a convenience to Holders; provided, however, that any
-------- -------
such notice may state that no representation is made as to the correctness or
accuracy of the CUSIP, ISIN and Common Code number printed in the notice or on
the Units, and that reliance may be placed only on the other identification
numbers printed on the Units. The Company shall promptly notify the Unit Agent
of any change in any CUSIP, ISIN or Common Code number.
SECTION 2.14 Certain Matters Relating to the Global Units. Agent
--------------------------------------------
Members shall have no rights under this Agreement with respect to any Global
Unit held on their behalf by DTC or the Unit Agent as its custodian, or under
the Global Unit, and DTC may be treated by the Company, the Unit Agent and any
agent of the Company or the Unit Agent as the absolute owner of the Global Unit
for all purposes whatsoever. Notwithstanding the foregoing, nothing herein
shall prevent the Company, the Unit Agent or any agent of the Company or the
Unit Agent from giving effect to any written certification, proxy or other
authorization furnished by DTC or impair, as between DTC and its Agent Members,
the operation of customary practices governing the exercise of the rights of a
Holder of any Unit.
SECTION 3 Separation of the Notes and the Warrants.
----------------------------------------
After the Separation Date, the Notes and the Warrants represented by
the Units shall be separately transferable. Upon presentation after the
Separation Date of any Unit Certificate for exchange for Warrants and Notes or
for registration of transfer or otherwise, the Unit Agent shall notify the
Trustee, the Registrar and the Warrant Agent of the number of Units so
presented, the registered owner thereof, such owner=s registered address, the
nature of any legends or restrictive endorsements set forth on such Unit
Certificate and any other information provided by the holder thereof in
connection therewith. The Company will notify the Unit Agent of any additional
requirements in connection with a particular transfer or exchange.
Following the Separation Date, no Unit Certificates shall be issued
upon transfer, or exchange of Unit Certificates, or otherwise.
SECTION 4 Rights of Unit Holders.
----------------------
The registered owner of a Unit Certificate shall have all the rights
and privileges of a registered owner of the principal amount of Notes of the
Company represented thereby and the number of Warrants of the Company
represented thereby and shall be treated as the registered owner thereof for all
purposes.
XXXXXXX 0 Xxxx Xxxxx.
----------
5.1 Rights and Duties of Unit Agent. (a) In acting under this
-------------------------------
Agreement and in connection with the Unit Certificates, the Unit Agent is acting
solely as agent of the Company,
12
the Warrant Agent and the Trustee and does not assume any obligation or
relationship or agency or trust for or with any of the holders of Unit
Certificates or beneficial owners of Units.
(b) The Unit 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 Unit 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 Unit Certificate, notice, resolution, direction, consent, certificate,
affidavit, statement or other paper or document reasonably believed by it to be
genuine and to have been presented or signed by the proper parties.
(d) The Unit Agent shall be obligated to perform only such duties as
are specifically set forth herein and in the Unit Certificates and no implied
duties or obligations shall be read into this Agreement or the Unit Certificates
against the Unit Agent. The Unit Agent shall not be under any obligation to
institute any action, suit or legal proceeding or to take any other action
hereunder which may tend to involve it in any expense or liability for which it
does not receive indemnity if such indemnity is requested. The Unit Agent shall
not be accountable or under any duty or responsibility for the use by the
Company of any of the Unit Certificates countersigned by the Unit 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 Units.
The Unit 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 Unit 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) All rights of action under this Agreement or under any of the
Units may be enforced by the Unit Agent without the possession of any of the
Unit Certificates or the production thereof at any trial or other proceeding
relative thereto, and any such action, suit or proceeding instituted by the Unit
Agent shall be brought in its name as Unit Agent and any recovery of judgment
shall be for the ratable benefit of the registered holders of the Units, as
their respective rights or interests may appear.
(f) The Unit Agent shall not be liable for any action taken or omitted
or for any loss or injury resulting from its actions or its performance or lack
of performance of its duties hereunder or in connection with its appointment in
Section 1.2 in the absence of gross negligence or willful misconduct on its
part. In no event shall the Unit Agent be liable (i) for any indirect,
consequential, punitive or special damages, regardless of the form of action and
whether or not any such damages were foreseeable or contemplated, or (ii) for
the acts or omissions of its nominees, correspondents, designees, agents,
subagents or independent contractors.
(g) The Unit Agent shall not be required to expend or risk its own
funds or otherwise incur any financial liability in the performance or its
duties hereunder.
13
(h) Whenever in the administration of this Agreement the Unit Agent
shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Unit Agent (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith on
its part, conclusively rely upon an Officers= Certificate.
SECTION 5.2 Certificate and Opinion as to Conditions Precedent.
---------------------------------------------------
Upon any request or application by the Company to the Unit Agent to take any
action under this Agreement, the Company shall furnish to the Unit Agent at the
request of the Unit Agent:
(1) an Officers' Certificate, in form and substance reasonably
satisfactory to the Unit Agent (which shall include the statements set
forth in Section 5.3), stating that, in the opinion of the signatories
thereto, all conditions precedent and covenants, if any, provided for in
this Agreement relating to the proposed action have been satisfied or
complied with; and
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Unit Agent (which shall include the statements set
forth in Section 5.3) stating that, in the opinion of such counsel, all
such conditions precedent and covenants have been satisfied or complied
with.
SECTION 5.3 Statements Required in Certificate or Opinion. Each
----------------------------------------------
certificate or opinion with respect to compliance with a condition or covenant
provided for in this 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, such Person has
made such examination or investigation as is necessary to enable such
Person 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 each 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 Unit Agent shall not be liable for any action which it takes or
intends to take in good faith in reliance on any such certificate or opinion.
14
SECTION 5.4 Rules by Unit Agent. The Unit Agent may make reasonable
--------------------
rules for its functions.
SECTION 5.5 Individual Rights of Unit Agent. The Unit Agent and any
--------------------------------
stockholder, director, officer or employee of the Unit Agent may buy, sell or
deal in any of the Units 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
Unit Agent under this Agreement. Nothing herein shall preclude the Unit Agent
from acting in any other capacity for the Company or for any other legal entity.
SECTION 5.6 Unit Agent's Disclaimer. The Unit Agent shall not be
------------------------
responsible for and makes no representation as to the validity or adequacy of
this Agreement or the Unit Certificates and it shall not be responsible for any
statement in this Agreement or the Unit Certificates other than its certificate
of authentication thereon.
SECTION 5.7 Compensation and Indemnity. The Company shall pay to the
---------------------------
Unit Agent from time to time such compensation as the Company and the Unit Agent
shall from time to time agree in writing for its acceptance of this Agreement
and services hereunder. The Company shall reimburse the Unit 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 their services, except any such disbursements, expenses and
advances as may be attributable to the Unit Agent's gross negligence or bad
faith. Such expenses shall include the reasonable compensation, disbursements
and expenses of the Unit Agent's accountants, experts and counsel.
The Company shall indemnify each of the Unit Agent and any predecessor
Unit 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 Unit Agent) incurred by the Unit Agent without gross negligence, willful
misconduct or bad faith on its part in connection with acceptance of
administration of this trust and its duties under this Agreement, including the
reasonable expenses and attorneys' fees and expenses of defending itself against
any claim of liability arising hereunder. The Unit Agent shall notify the
Company promptly of any claim asserted against the Unit Agent for which it may
seek indemnity. However, the failure by the Unit Agent to so notify the Company
shall not relieve the Company of its obligations hereunder. The Company shall
defend the claim and the Unit Agent shall cooperate in the defense (and may
employ its own counsel satisfactory to the Unit Agent) at the Company's expense.
The Unit 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 Unit Agent as a result of the
violation of this Agreement by the Unit Agent if such violation arose from the
Unit Agent's gross negligence, willful misconduct or bad faith.
15
To secure the Company's payment obligations in this Section 5.7, the
Unit Agent and the Agents shall have a senior Lien prior to the Notes against
all money or property held or collected by the Unit Agent, in its capacity as
Unit Agent, except money or property held in trust to pay principal or premium,
if any, or interest on particular Notes.
The Company's obligations under this Section 5.7 and any claim arising
hereunder shall survive the termination of this Agreement, the resignation or
removal of any Unit Agent or Agent and any rejection or termination under any
Bankruptcy Law.
SECTION 5.8 Successor Unit Agent. (a) The Unit 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 Unit
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 Unit Agent otherwise
agrees. Any removal under this Section 5.8 shall take effect upon the
appointment by the Company as hereinafter provided of a successor Unit Agent
(which shall 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 Unit Agent.
(b) In case at any time the Unit Agent shall resign, or shall be
removed, or shall become incapable of acting, or shall be adjudged bankrupt or
insolvent, or shall commence a voluntary case under 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 or
sequestrator (or other similar official) of the Unit 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 Unit Agent in an involuntary case under federal
bankruptcy laws, as now or hereafter constituted, or any other applicable
federal or state bankruptcy, insolvency or similar law; or a decree or order by
a court having jurisdiction in the premises shall have been entered for the
appointment of a receiver, custodian, liquidator, assignee, trustee or
sequestrator (or similar official) of the Unit Agent or of its property or
affairs, or any public officer shall take charge or control of the Unit Agent or
of its property or affairs for the purpose of rehabilitation, conservation,
winding up of or liquidation, a successor Unit Agent, qualified as aforesaid,
shall be appointed by the Company by an instrument in writing, filed with the
successor Unit Agent. Upon the appointment as aforesaid of a successor Unit
Agent and acceptance by the successor Unit Agent of such appointment, the Unit
Agent shall cease to be Unit Agent hereunder; provided, however, that in the
-------- -------
event of the resignation of the Unit Agent hereunder, such resignation shall be
effective on the earlier of (i) the date specified in the Unit Agent's notice of
resignation and (ii) the appointment and acceptance of a successor Unit Agent
hereunder. If a successor Unit Agent does not accept such appointment within 60
days after the notice of
16
resignation or removal is given, the Unit Agent may petition any court of
competent jurisdiction for the appointment of a successor.
(c) Any successor Unit 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 Unit 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 Unit 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 Unit Agent shall be entitled to
receive, all monies, securities and other property on deposit with or held by
such predecessor, as Unit Agent hereunder.
(d) Any corporation into which the Unit Agent hereunder may be merged
or consolidated, or any corporation resulting from any merger or consolidation
to which the Unit Agent shall be a party, or any corporation to which the Unit
Agent shall sell or otherwise transfer all or substantially all the assets and
business of the Unit Agent (provided that it shall be qualified as aforesaid)
shall be the successor Unit 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.
SECTION 6 Miscellaneous.
-------------
SECTION 6.1 Notices. Any notices or other communications required or
--------
permitted hereunder shall be in writing, and shall be sufficiently given if made
by hand delivery, by telecopier or first-class mail, postage prepaid, addressed
as follows:
if to the Company:
Cybernet Internet Services International, Inc.
Xxxxxx-Xxxxxx-Ring 19-23
D-81929 Munchen
Facsimile: x00-00-000-00000
Attention: Xxxxxx Xxxxxx
with a copy to:
Powell, Goldstein, Xxxxxx and Xxxxxx LLP
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx X.X. 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxx
17
if to the Unit Agent, Warrant Agent or Trustee:
The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 00X
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: 000-000-0000
Attention: Corporate Trust Trustee Administration
Each of the Company and the Unit Agent, Warrant Agent and Trustee by
written notice to each other such Person may designate additional or different
addresses for notices to such Person. Any notice or communication to the
Company and the Unit Agent, Warrant Agent and Trustee, shall be deemed to have
been given or made: (i) as of the date so delivered, if personally delivered;
(ii) when receipt is confirmed, if telecopied; and (iii) upon receipt, if sent
by first class mail, postage prepaid (except that a notice of change of address
shall not be deemed to have been given until actually received by the
addressee).
Any notice or communication mailed to a Holder shall be mailed to such
Person by first-class mail or other equivalent means at such Person's address as
it appears on the registration books of the Registrar and shall be sufficiently
given to such Holder if so mailed within the time prescribed.
Failure to mail a notice or communication to a Holder or any defect in
it shall not affect its sufficiency with respect to other Holders. If a notice
or communication is mailed in the manner provided above, it is duly given
whether or not the addressee receives it.
Notices regarding the Units will be (i) published by the Company in a
leading newspaper having a general circulation in New York (which is expected to
be The Wall Street Journal) and in Frankfurt (which is expected to be the
Frankfurter Allgemeine Zeitung) or (ii) in the case of Definitive Units, mailed
to Holders by first-class mail at their respective addresses as they appear on
the registration books of the Registrar. Notices given by publication will be
deemed given on the first date on which publication is made and notices given by
first-class mail, postage prepaid, will be deemed given five calendar days after
mailing.
SECTION 6.2 Supplements and Amendments. The Company, the Unit Agent,
--------------------------
the Trustee and the Warrant Agent may from time to time supplement or amend this
Agreement without the approval of any holders of Unit Certificates in order to
cure any ambiguity or to correct or supplement any provision contained herein
which may be defective or inconsistent with any other provision herein, or to
make any other provisions in regard to matters or questions arising hereunder
which the Company, the Trustee, the Warrant Agent and the Unit Agent may deem
necessary or desirable and which shall not in any way adversely affect the
interests of the holders of Unit Certificates. Any amendment or supplement to
this Agreement that has a material adverse effect on the interests of Unit
holders shall require the written consent of registered holders of Units
representing not less than a majority of the then outstanding Units.
18
Prior to executing any supplement or amendment, the Unit Agent,
Trustee and Warrant Agent shall be entitled to receive and rely upon an Opinion
of Counsel to the effect that such supplement or amendment is permitted or
authorized by this Agreement.
SECTION 6.3 Successors. All the covenants and provisions of this
----------
Agreement by or for the benefit of the Company, the Trustee, the Warrant Agent
or the Unit Agent shall bind and inure to the benefit of their respective
successors and assigns hereunder.
SECTION 6.4 Governing Law. This Agreement and the Units shall be
-------------
governed by, and construed and interpreted in accordance with, the law of the
State of New York.
SECTION 6.5 Submission to Jurisdiction; Appointment of Agent for
----------------------------------------------------
Service; Waiver. To the fullest extent permitted by applicable law, the Company
---------------
irrevocably submits to the nonexclusive 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 Agreement and the Units, 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 Corporation Services Company (the "Authorized Agent"), for a period of
----------------
ten years from the date hereof or until such time as no Units, Notes or Warrants
remain outstanding, 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 Agreement, the Units
or the transactions contemplated hereby may also be instituted in any competent
court in Germany, 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 suit, action or proceeding against it
arising out of or based on this Agreement, the Unit Certificates or the
transactions contemplated hereby.
To the extent permitted by applicable law, the Company and the Unit
Agent each waive any right to have a jury participate in resolving any dispute,
whether sounding in contract,
19
tort, or otherwise arising out of, connected with, related to or incidental to
the relationship established between them in connection with this Agreement.
Instead, any disputes resolved in court will be resolved in a bench trial
without a jury.
The provisions of this Section 6.5 are intended to be effective upon
the execution of this Agreement and the Unit Certificates without any further
action by the Company or the Unit Agent and the introduction of a true copy of
this Agreement into evidence shall be conclusive and final evidence as to such
matters.
SECTION 6.6 Benefits of this Agreement. Nothing in this Agreement
--------------------------
shall be construed to give to any person or corporation other than the Company,
the Trustee, the Warrant Agent, the Unit Agent and the registered holders of the
Unit 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 Trustee, the Warrant Agent, the Unit Agent and the registered
holders of the Unit Certificates.
SECTION 6.7 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.
SECTION 6.8 Severability. In case any one or more of the provisions
------------
in this Agreement or in the Units shall be held invalid, illegal or
unenforceable, in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions shall not in any way be affected or impaired thereby, it being
intended that all of the provisions hereof shall be enforceable to the full
extent permitted by law.
SECTION 6.9 Headings, etc. The Headings of the Articles and Sections
--------------
of this Agreement have been inserted for convenience of reference only, are not
to be considered a part of this Agreement and shall in no way modify or restrict
any of the terms or provisions hereof.
20
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, as of the day and year first above written.
CYBERNET INTERNET SERVICES INTERNATIONAL, INC.
By: /s/ Authorized Signatory
-----------------------------------
By: /s/ Authorized Signatory
-----------------------------------
21
THE BANK OF NEW YORK, as Unit Agent
By: /s/ Authorized Signatory
--------------------------------
THE BANK OF NEW YORK, as Trustee
By: /s/ Authorized Signatory
--------------------------------
THE BANK OF NEW YORK, as Warrant Agent
By: /s/ Authorized Signatory
--------------------------------
22
Exhibit A to
Unit Agreement
[FORM OF GLOBAL UNIT CERTIFICATE]
150,000 Units
THIS UNIT (THIS "UNIT") IS A GLOBAL UNIT WITHIN THE MEANING OF THE UNIT
----
AGREEMENT HEREINAFTER REFERRED TO.
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE U.S.
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
IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT), (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 THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, OR (D) WITH THE CONSENT OF THE
COMPANY PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH
PERSON TO WHICH THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND; PROVIDED THAT, IN CONSENTING TO ANY SALE OR OFFER
--------
PURSUANT TO CLAUSE (D) ABOVE, THE COMPANY AND THE UNIT AGENT SHALL HAVE THE
RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSE (D) 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 OF TRANSFER IN THE FORM APPEARING ON THE
OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE
UNIT AGENT, THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE
RESALE RESTRICTION TERMINATION DATE.
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, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL BECAUSE 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 SECTION 2.6 OF THE UNIT AGREEMENT
PURSUANT TO WHICH THEY WERE ISSUED.
A-1
THESE SECURITIES HAVE BEEN OFFERED AS PART OF A UNIT. EACH OF THE UNITS
CONSISTS OF $1,000 PRINCIPAL AMOUNT OF 14.0% SENIOR NOTES DUE 2009 (THE "NOTES")
-----
OF CYBERNET INTERNET SERVICES INTERNATIONAL, INC. (THE "COMPANY") AND ONE
-------
WARRANT (THE "WARRANTS") OF THE COMPANY TO PURCHASE 30.2310693 SHARES OF COMMON
--------
STOCK, PAR VALUE $.001, OF THE COMPANY. THE NOTES AND WARRANTS WILL NOT BE
TRANSFERABLE BY A HOLDER THEREOF SEPARATELY FROM EACH OTHER UNTIL THE SEPARATION
DATE, WHICH SHALL BE THE EARLIEST OF (I) THE COMMENCEMENT OF AN EXCHANGE OFFER
OR THE EFFECTIVENESS OF A SHELF REGISTRATION STATEMENT WITH RESPECT TO THE NOTES
AND (II) SUCH OTHER DATE AS XXXXXX BROTHERS INTERNATIONAL (EUROPE) AND XXXXXX
XXXXXXX & CO. INTERNATIONAL LIMITED SHALL JOINTLY DETERMINE IN THEIR SOLE
DISCRETION.
A-2
CYBERNET INTERNET SERVICES INTERNATIONAL, INC.
Units, Each Consisting of $1,000 Principal Amount of 14.0 % Senior
Notes due 2009 and One Warrant to Purchase 30.2310693 shares of
common stock, par value $.001, of Cybernet Internet Services International, Inc.
Xx. 0 XXXXX Xx. 000000XX0
Cybernet Internet Services International, Inc., a Delaware
corporation, hereby certifies that Cede & Co., or its registered assigns, is the
registered owner of the number of Units listed on Schedule A, 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 this Unit Certificate properly
endorsed. This Unit is issued pursuant to the Unit Agreement, dated as of July
8, 1999 (the "Unit Agreement"; unless otherwise defined herein, terms defined in
--------------
the Unit Agreement are used herein as defined therein) between the Company and
The Bank of New York, as Unit Agent (the "Unit Agent"), as Warrant Agent and as
----------
Trustee, and is subject to the terms and provisions contained therein, all of
which terms and provisions the holder of this Unit consents to by acceptance
hereof.
Each Unit consists of (i) $1,000 principal amount of 14.0 % Senior
Notes due 2009 of the Company and (ii) one Warrant to purchase 30.2310693 shares
of common stock, par value $.001 per share, of the Company.
Reference is made to the provisions of the Notes and Warrants attached
hereto, which will for all purposes have the same effect as if set forth at this
place.
The Notes and Warrants attached to this Unit shall be non-detachable
and not separately transferable until the earlier to occur of: (i) the
commencement of an exchange offer or the effectiveness of a shelf registration
statement with respect to the Notes and (ii) such other date as Xxxxxx Brothers
International (Europe) and Xxxxxx Xxxxxxx & Co. International Limited shall
jointly determine in their sole discretion (such earliest date, the "Separation
Date").
A-3
IN WITNESS WHEREOF, the Company has caused this Unit to be signed
manually or by facsimile by its duly authorized Officers.
Dated: July 8, 1999
Cybernet Internet Services International, Inc.
By: ____________________
Name:
Title:
By: ____________________
Name:
Title:
A-4
Certificate of Authentication:
This is one of the Units
referred to in the within
mentioned Unit Agreement.
THE BANK OF NEW YORK,
as Unit Agent
By:___________________________
Authorized Signatory
A-5
ASSIGNMENT FORM
If you, the Holder, want to assign this Unit, fill in the form below
and have your signature guaranteed:
I or we assign and transfer this Unit to:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint , agent to
--------------------------------------
transfer this Unit on the books of Cybernet Internet Services International,
Inc. The agent may substitute another to act for him.
Dated: Signed:
--------- -----------------------------------
(Sign exactly as your name appears
on the other side of this Unit)
A-6
Schedule A
SCHEDULE OF INCREASES OR DECREASES OF UNITS
The following increases or decreases in this Global Unit have been made:
Number of Units of
Amount of decrease Amount of increase this Global Unit Signature of
Date of in number of Units in number of Units following such authorized signatory
Exchange of this Global Unit of this Global Unit decrease or increase of Unit Agent
------------------------------------------------------------------------------------------------------
A-7
Exhibit B to
Unit Agreement
[FORM OF DEFINITIVE UNIT CERTIFICATE]
________ Units
THIS UNIT (THIS "UNIT") IS A DEFINITIVE UNIT WITHIN THE MEANING OF THE
----
UNIT AGREEMENT HEREINAFTER REFERRED TO.
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
U.S. 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 IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT), (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 THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, OR (D) WITH THE CONSENT OF THE
COMPANY PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH
PERSON TO WHICH THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND; PROVIDED THAT, IN CONSENTING TO ANY SALE OR OFFER
--------
PURSUANT TO CLAUSE (D) ABOVE, THE COMPANY AND THE UNIT AGENT SHALL HAVE THE
RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSE (D) 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 OF TRANSFER IN THE FORM APPEARING ON THE
OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE
UNIT AGENT, THIS
B-1
LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE.
THESE SECURITIES HAVE BEEN OFFERED AS PART OF A UNIT. EACH OF THE
UNITS CONSISTS OF $1,000 PRINCIPAL AMOUNT OF 14.0 % SENIOR NOTES DUE 2009 (THE
"NOTES") OF CYBERNET INTERNET SERVICES INTERNATIONAL, INC. (THE "COMPANY") AND
------ -------
ONE WARRANT (THE "WARRANTS") OF THE COMPANY TO PURCHASE 30.2310693 SHARES OF
--------
COMMON STOCK, PAR VALUE $.001, OF THE COMPANY. THE NOTES AND WARRANTS WILL NOT
BE TRANSFERABLE BY A HOLDER THEREOF SEPARATELY FROM EACH OTHER UNTIL THE
SEPARATION DATE, WHICH SHALL BE THE EARLIEST OF (I) THE COMMENCEMENT OF AN
EXCHANGE OFFER OR THE EFFECTIVENESS OF A SHELF REGISTRATION STATEMENT WITH
RESPECT TO THE NOTES AND (II) SUCH OTHER DATE AS XXXXXX BROTHERS INTERNATIONAL
(EUROPE) AND XXXXXX XXXXXXX & CO. INTERNATIONAL LIMITED SHALL JOINTLY DETERMINE
IN THEIR SOLE DISCRETION.
B-2
CYBERNET INTERNET SERVICES INTERNATIONAL, INC.
Units, Each Consisting of $1,000 Principal Amount of 14.0 % Senior
Notes due 2009 and One Warrant to Purchase 30.2310693 shares of
common stock, par value $.001, of Cybernet Internet Services International, Inc.
No. ________ CUSIP No.
Cybernet Internet Services International, Inc., a Delaware
corporation, hereby certifies that ___________ is the owner of ______________
Units 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 this Unit Certificate properly endorsed. This Unit is issued pursuant to the
Unit Agreement, dated as of July 8, 1999 (the "Unit Agreement"; unless otherwise
--------------
defined herein, terms defined in the Unit Agreement are used herein as defined
therein) between the Company and The Bank of New York, as Unit Agent (the "Unit
----
Agent"), as Warrant Agent and as Trustee, and is subject to the terms and
-----
provisions contained therein, all of which terms and provisions the holder of
this Unit consents to by acceptance hereof.
Each Unit consists of (i) $1,000 principal amount of 14.0 % Senior
Notes due 2009 of the Company and (ii) one Warrant to purchase 30.2310693 shares
of common stock, par value $.001 per share, of the Company.
Reference is made to the provisions of the Notes and Warrants attached
hereto, which will for all purposes have the same effect as if set forth at this
place.
The Notes and Warrants attached to this Unit shall be non-detachable
and not separately transferable until the earlier to occur of: (i) the
commencement of an exchange offer or the effectiveness of a shelf registration
statement with respect to the Notes and (ii) such other date as Xxxxxx Brothers
International (Europe) and Xxxxxx Xxxxxxx & Co. International Limited shall
jointly determine in their sole discretion (such earliest date, the "Separation
Date").
B-3
IN WITNESS WHEREOF, the Company has caused this Unit to be signed
manually or by facsimile by its duly authorized officers.
Dated: July 8, 1999
CYBERNET INTERNET SERVICES INTERNATIONAL, INC.
By: ____________________
Name:
Title:
By: ____________________
Name:
Title:
B-4
Certificate of Authentication:
This is one of the Units
referred to in the within
mentioned Unit Agreement.
THE BANK OF NEW YORK,
as Unit Agent
By:___________________________
Authorized Signatory
B-5
ASSIGNMENT FORM
If you, the Holder, want to assign this Unit, fill in the form below
and have your signature guaranteed:
I or we assign and transfer this Unit to:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint ______________________________________, agent to
transfer this Unit on the books of Cybernet Internet Services International,
Inc. The agent may substitute another to act for him.
Dated: _____________ Signed: ________________________________
(Sign exactly as your name appears
on the other side of this Unit)
B-6
