Exhibit 4.4
Execution Copy
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VersaTel Telecom International N.V.
Eurodollar 300,000,000 11 1/4% Senior Notes due 2010
REGISTRATION RIGHTS AGREEMENT
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Dated as of March 30, 2000
Among
VERSATEL TELECOM INTERNATIONAL N.V.,
XXXXXX BROTHERS INTERNATIONAL (EUROPE) AND
XXXXXX XXXXXXX & CO. INTERNATIONAL LIMITED
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TABLE OF CONTENTS
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Page
1. Definitions .......................................................... 1
2. Exchange Offer ...................................................... 4
3. Shelf Registration Statement ......................................... 8
4. Liquidated Damages ................................................... 9
5. Registration Procedures .............................................. 11
6. Registration Expenses ................................................ 18
7. Indemnification and Contribution ..................................... 19
8. Rule 144A ............................................................ 23
9. Underwritten Registrations ........................................... 23
10. Miscellaneous ....................................................... 24
(a) No Inconsistent Agreements ...................................... 24
(b) Adjustments Affecting Transfer Restricted Securities ............ 24
(c) Amendments and Waivers .......................................... 24
(d) Notices ......................................................... 25
(e) Successors and Assigns .......................................... 26
(f) Counterparts .................................................... 26
(g) Headings ........................................................ 26
(h) Governing Law ................................................... 26
(i) Submission to Jurisdiction; Appointment of Agent for Service;
Waiver........................................................... 26
(j) Currency Indemnity .............................................. 27
(k) Severability .................................................... 27
(l) Securities Held by the Company or Its Affiliates ................ 28
(m) Third Party Beneficiaries ....................................... 28
(n) Entire Agreement ................................................ 28
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is dated as of
March 30, 2000, among VersaTel Telecom International N.V., a company organized
under the laws of The Netherlands and having its corporate seat in Amsterdam,
The Netherlands (the "Company") and Xxxxxx Brothers International (Europe) and
Xxxxxx Xxxxxxx & Co. International Limited, representatives of the placement
agents referred to below.
This Agreement is entered into in connection with the Placement
Agreement (the "Placement Agreement"), dated as of March 24, 2000, between the
Company and the placement agents named on Schedule I thereto (the "Placement
Agents") which provides for the sale by the Company to the Placement Agents of C
=300,000,000 aggregate principal amount of its 11 1/4% Senior Notes due 2010
(the "Notes"). The Notes are to be issued under an indenture, dated as of March
30, 2000 (the "Indenture"), between the Company and The Bank of New York, as
Trustee. In order to induce the Placement Agents to enter into the Purchase
Agreement, the Company has agreed to provide the registration rights set forth
in this Agreement for the benefit of the Placement Agents and their direct and
indirect transferees and assigns. The parties hereby agree as follows:
1. Definitions
As used in this Agreement, the following terms shall have the
following meanings:
Advice: See Section 5 hereof.
Agreement: See the first introductory paragraph hereto.
Applicable Period: See Section 2(b) hereof.
Authenticating Agent: The Authenticating Agent as defined in the
Indenture.
Company: See the first introductory paragraph hereto.
Effectiveness Period: See Section 3(a) hereof.
Effectiveness Target Date: The 150th day after the Issue Date.
Event Date: See Section 4(b) hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended, and
the rules and regulations of the SEC promulgated thereunder.
Exchange Notes: See Section 2(a)hereof.
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Exchange Offer: See Section 2(a) hereof.
Exchange Offer Registration Statement: See Section 2(a) hereof.
Filin Date: The 90th day after the Issue Date.
Holder: Any holder of Transfer Restricted Securities.
Indenture: See the second introductory paragraph hereto.
Inspectors: See Section 5(o) hereof.
Issue Date: The date the Notes are initially issued under the
Indenture.
Liquidated Damages: See Section 4(a) hereof.
NASD: See Section 5(s) hereof.
Notes: See the second introductory paragraph hereto.
Participant: See Section 7(a) hereof.
Participating Broker-Dealer: See Section 2(b) hereof.
Person: An individual, trustee, corporation, partnership, limited
liability company, joint stock company, trust, unincorporated association,
union, business association, firm or other legal entity.
Placement Agents: See the second introductory paragraph hereto.
Placement Agreement: See the second introductory paragraph hereto.
Private Exchange: See Section 2(b) hereof.
Private Exchange Notes: See Section 2(b) hereof.
Prospectus: The prospectus included in any Registration Statement
(including, without limitation, any prospectus subject to completion and a
prospectus that includes any information previously omitted from a prospectus
filed as part of an effective registration statement in reliance upon Rule 430A
promulgated under the Securities Act), as amended or supplemented by any
prospectus supplement, and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
Records: See Section 5(o) hereof
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Registration Statement: Any registration statement of the Company,
including, but not limited to, the Exchange Offer Registration Statement or the
Shelf Registration Statement, filed with the SEC pursuant to the provisions of
this Agreement, including the Prospectus, amendments and supplements to such
registration statement, including post-effective amendments, all exhibits, and
all material incorporated by reference or deemed to be incorporated by reference
in such registration statement.
Representatives: Xxxxxx Brothers International (Europe) and Xxxxxx
Xxxxxxx & Co. International Limited, as representatives of the Placement Agents.
Rule 144: Rule 144 promulgated under the Securities Act, as such Rule
may be amended from time to time, or any similar rule (other than Rule 144A) or
regulation hereafter adopted by the SEC providing for offers and sales of
securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer of such securities being
free of the registration and prospectus delivery requirements of the Securities
Act.
Rule 144A: Rule 144A promulgated under the Securities Act, as such
Rule may be amended from time to time, or any similar rule (other than Rule 144)
or regulation hereafter adopted by the SEC.
Rule 415: Rule 415 promulgated under the Securities Act, as such Rule
may be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
SEC: The U.S. Securities and Exchange Commission.
Securities Act: The U.S. Securities Act of 1933, as amended, and the
rules and regulations of the SEC promulgated thereunder.
Shelf Notice: See Section 2(c) hereof.
Shelf Registration Statement: See Section 3(a) hereof.
Transfer Restricted Securities: Each Note until the earliest to occur
of (i) the date on which such Note has been exchanged by a Person (other than a
Participating Broker-Dealer) for Exchange Notes in the Exchange Offer, (ii)
following the exchange by a Participating Broker- Dealer in the Exchange Offer
of such Note for one or more Exchange Notes, the date on which such Exchange
Notes are sold to a purchaser who receives from such Participating Broker-Dealer
on or prior to the date of such sale a copy of the prospectus contained in the
Exchange Offer Registration Statement, (iii) the date on which such Note has
been effectively registered under the Securities Act and disposed of in
accordance with the Shelf Registration Statement or (iv) the date on which such
Note is eligible for distribution to the public pursuant to Rule 144 under the
Securities Act.
Trust Indenture Act: The Trust Indenture Act of 1939, as amended.
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Trustee: The trustee under the Indenture and, if existent, the trustee
under any indenture governing the Exchange Notes and Private Exchange Notes (if
any).
underwritten registration or underwritten offering: A registration in
which securities of the Company are sold to an underwriter for reoffering to the
public.
2. Exchange Offer
(a) The Company agrees to file at its sole cost and expense with the
SEC no later than the Filing Date, unless prohibited by applicable law or SEC
policy, an offer to exchange (the "Exchange Offer") any and all of the Transfer
Restricted Securities (other than Private Exchange Notes, if any) for a like
aggregate principal amount of notes of the Company, which are substantially
identical in all material respects to the Notes (the "Exchange Notes") (and
which are entitled to the benefits of the Indenture or a trust indenture which
is substantially identical in all material respects to the Indenture (other than
such changes to the Indenture or any such identical trust indenture as are
necessary to comply with any requirements of the SEC to effect or maintain the
qualification thereof under the Trust Indenture Act) and which, in either case,
has been qualified under the Trust Indenture Act), except that the Exchange
Notes (other than Private Exchange Notes, if any) shall have been registered
pursuant to an effective Registration Statement under the Securities Act and
shall contain no restrictive legend thereon. The Exchange Offer shall be
registered under the Securities Act on the appropriate form (the "Exchange Offer
Registration Statement") and shall comply with all applicable tender offer rules
and regulations under the Exchange Act. The Company agrees to (i) use its
reasonable best efforts to cause the Exchange Offer Registration Statement to be
declared effective under the Securities Act on or before the Effectiveness
Target Date; (ii) keep the Exchange Offer open for at least 20 business days (or
longer if required by applicable law) after the date that notice of the Exchange
Offer is mailed to Holders; (iii) (A) file all pre-effective amendments to such
Registration Statement as may be necessary in order to cause such Registration
Statement to become effective, (B) file, if applicable, a post-effective
amendment to such Registration Statement pursuant to Rule 430A under the
Securities Act and (C) cause all necessary filings in connection with the
registration and qualifications of the Exchange Notes to be made under the blue
sky laws of such jurisdictions as are necessary to permit consummation of the
Exchange Offer; and (iv) use its reasonable best efforts to consummate the
Exchange Offer on or prior to 180 days after the Issue Date. Upon the Exchange
Offer Registration Statement being declared effective, the Company will offer
the Exchange Notes in exchange for surrender of the Notes. If after such
Exchange Offer Registration Statement is declared effective by the SEC, the
Exchange Offer or the issuance of the Exchange Notes thereunder is interfered
with by any stop order, injunction or other order or requirement of the SEC or
any other governmental agency or court, such Exchange Offer Registration
Statement shall have ceased to be effective for purposes of this Agreement. Each
Holder who participates in the Exchange Offer will be required to represent that
(i) any Exchange Notes received by it will be acquired in the ordinary course of
its business, (ii) it has no arrangement or understanding with any Person to
participate in the distribution (within the meaning of the Securities Act) of
the Exchange Notes, (iii) it is not a broker-dealer that acquired Notes directly
from the Company, (iv) it is not an "affiliate" (as defined in Rule 405 under
the Securities Act) of the Company or, if it is such an affiliate, it will
comply with the registration and
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prospectus delivery requirements of the Securities Act to the extent applicable
and (v) it is not acting on behalf of any Person who could not truthfully make
the foregoing representations. If such Holder is not a broker-dealer, such
Holder will be required to represent that it is not engaged in, and does not
intend to engage in, the distribution of the Exchange Notes. If such Holder is a
broker-dealer that will receive Exchange Notes for its own account in exchange
for Notes that were acquired as a result of market-making activities or other
trading activities, it will be required to acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Notes. Upon
consummation of the Exchange Offer in accordance with this Section 2, the
Company shall have no further obligation to register Transfer Restricted
Securities (other than Private Exchange Notes and other than in respect of any
Exchange Notes as to which clause 2(c)(iv) hereof applies) pursuant to Section 3
hereof. No securities other than the Exchange Notes shall be included in the
Exchange Offer Registration Statement.
(b) The Company shall include within the Prospectus contained in the
Exchange Offer Registration Statement a section entitled "Plan of Distribution",
reasonably acceptable to the Representatives, which shall contain a summary
statement of the positions taken or policies made by the Staff of the SEC with
respect to the potential "underwriter" status of any broker-dealer that is the
beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange
Notes received by such broker-dealer in the Exchange Offer (a "Participating
Broker-Dealer"), whether such positions or policies have been publicly
disseminated by the Staff of the SEC or such positions or policies, in the
judgment of the Representatives, represent the prevailing views of the Staff of
the SEC. Such "Plan of Distribution" section shall also expressly permit the use
of the Prospectus by all Persons subject to the prospectus delivery requirements
of the Securities Act, including all Participating Broker-Dealers (unless such
Participating Broker- Dealer will be reselling an unsold allotment from the
original sale of the Notes), and include a statement describing the means by
which Participating Broker-Dealers may resell the Exchange Notes.
Upon written request after the consummation of the Exchange Offer, the
Company shall use its best efforts to keep the Exchange Offer Registration
Statement effective and to amend and supplement the Prospectus contained
therein, in order to permit such Prospectus to be lawfully delivered by any
Participating Broker-Dealer subject to the prospectus delivery requirements of
the Securities Act and other Persons, if any, with similar prospectus delivery
requirements for such period of time as is necessary to comply with applicable
law in connection with any resale of the Exchange Notes; provided, however, that
such period shall not exceed 180 days after the consummation of the Exchange
Offer (or such longer period if extended pursuant to the last paragraph of
Section 5 hereof) (the "Applicable Period").
If, prior to consummation of the Exchange Offer, the Placement Agents
hold any Notes acquired by them and having, or which are reasonably likely to be
determined to have, the status of an unsold allotment in the initial
distribution, the Company, upon the written request of the Placement Agents
simultaneously with the delivery of the Exchange Notes in the Exchange Offer,
shall issue and deliver to the Placement Agents in exchange (the "Private
Exchange") for such Notes held by the Placement Agents a like principal amount
of notes of the Company, that are substantially identical in all material
respects to the Exchange Notes (the "Private Exchange
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Notes") (and which are issued pursuant to the same indenture as the Exchange
Notes) except for the placement of a restrictive legend on such Private
Exchange Notes. The Private Exchange Notes shall bear the same CUSIP number as
the Exchange Notes to the extent permitted by the CUSIP Service Bureau of
Standard & Poor's.
Interest on the Exchange Notes and the Private Exchange Notes will
accrue from the last interest payment date on which interest was paid on the
Notes surrendered in exchange therefor or if no interest has been paid on the
Notes, from the Issue Date.
In connection with the Exchange Offer, the Company shall:
(1) mail to each Holder a copy of the Prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate letter
of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with
an address in the Borough of Manhattan, The City of New York, which may be
the Trustee or an affiliate of the Trustee;
(3) permit Holders to withdraw tendered Notes at any time prior to the
close of business, New York time, on the last business day on which the
Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable
laws, rules and regulations.
As soon as practicable after the close of the Exchange Offer or the
Private Exchange, as the case may be, the Company shall:
(1) accept for exchange all Notes tendered and not validly withdrawn
pursuant to the Exchange Offer or the Private Exchange;
(2) deliver to the Trustee or Authenticating Agent for cancellation
all Notes so accepted for exchange; and
(3) cause the Trustee promptly to authenticate and deliver to each
Holder of the Notes, Exchange Notes or Private Exchange Notes, as the case
may be, in global form equal in principal amount to the respective Notes so
accepted for exchange, as further set forth in the Indenture.
The Exchange Notes and the Private Exchange Notes may be issued under
(i) the Indenture or (ii) an indenture substantially identical in all material
respects to the Indenture, which in either event shall provide that (1) the
Exchange Notes shall not be subject to the transfer restrictions set forth in
the Indenture and (2) the Private Exchange Notes shall be subject to the
transfer restrictions set forth in the Indenture. The Indenture or such
indenture substantially
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identical in all material respects to the Indenture shall provide that each
series of Exchange Notes, Private Exchange Notes and Notes shall vote and
consent together on all matters as one class and that none of the Exchange
Notes, the Private Exchange Notes or the Notes will have the right to vote or
consent as a separate class on any matter.
(c) If (i) the Company is not permitted to file the Exchange Offer
Registration Statement or to consummate the Exchange Offer because the Exchange
Offer is not permitted by applicable law or SEC policy, (ii) any Holder of
Transfer Restricted Securities that is a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act) notifies the Company at least 20
business days prior to the consummation of the Exchange Offer that (a)
applicable law or SEC policy prohibits the Company from participating in the
Exchange Offer, (b) such Holder may not resell the Exchange Notes acquired by it
in the Exchange Offer to the public without delivering a prospectus and the
prospectus contained in the Exchange Offer Registration Statement is not
appropriate or available for such resales by such Holder or (c) such Holder is a
broker-dealer and holds Notes acquired directly from the Company or an affiliate
of the Company, (iii) the Exchange Offer is not for any other reason consummated
within 180 days after the Issue Date, (iv) any Holder (other than a
Participating Broker-Dealer) is not eligible to participate in the Exchange
Offer, or in the case of any Holder that participates in the Exchange Offer,
such Holder does not receive Exchange Notes on the date of the exchange that may
be sold without restriction under federal securities laws (other than due solely
to the status of such Holder as an affiliate of the Company within the meaning
of the Securities Act or due to the requirement that such Holder deliver a
Prospectus in connection with any resale of the Exchange Notes) or (v) the
Exchange Offer has been completed and in the opinion of counsel for the
Placement Agents a Registration Statement must be filed and a prospectus must be
delivered by the Placement Agents in connection with any offering or sale of
Transfer Restricted Securities, then the Company shall promptly deliver written
notice thereof (the "Shelf Notice") to the Trustee and in the case of clauses
(i) and (iii), all Holders, or in the case of clauses (ii), (iv) and (v) the
affected Holders, and shall at its own cost file a Shelf Registration Statement
pursuant to Section 3 hereof.
3. Shelf Registration Statement
If a Shelf Notice is delivered as contemplated by Section 2(c) hereof, then:
(a) Shelf Registration Statement. The Company will use its reasonable
best efforts to: (A) file with the SEC a Registration Statement for an offering
to be made on a continuous basis pursuant to Rule 415 covering all of the
Transfer Restricted Securities (the "Shelf Registration Statement"), within 90
days of the earliest to occur of clauses (i) through (v) in Section 2(c) above
and (B) cause the Shelf Registration Statement to be declared effective by the
SEC on or prior to the 150th day after such obligation arises; provided,
however, that if the Company files a Shelf Registration Statement pursuant to
this Section 3(a), it need not abandon the attempt to cause the SEC to declare
the Exchange Offer Registration Statement effective, and it may satisfy its
obligations to register the Notes pursuant to this Agreement either by complying
with Section 2 and/or Section 3. If the Company shall not have yet filed an
Exchange Offer Registration Statement, the Company shall use its reasonable best
efforts to file with the SEC the Shelf Registration Statement on or prior to the
Filing Date. The Shelf Registration Statement
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shall be on Form F-1 or another appropriate form permitting registration of
such Transfer Restricted Securities for resale by Holders in the manner or
manners designated by them (including, without limitation, one or more
underwritten offerings), or may be an amendment to the Exchange Offer
Registration Statement.
The Company shall not permit any securities other than the Transfer
Restricted Securities to be included in the Shelf Registration Statement. The
Company shall use its reasonable best efforts to keep the Shelf Registration
Statement continuously effective, supplemented and amended to ensure that it is
available for resales of Notes by the holders of Transfer Restricted Securities
entitled to this benefit and to ensure that such Shelf Registration Statement
conforms and continues to conform with the requirements of this Agreement, the
Securities Act and the policies, rules and regulations of the SEC, as announced
from time to time, until the second anniversary of the Issue Date, subject to
extension pursuant to the last paragraph of Section 5 hereof (the "Effectiveness
Period"), or such shorter period ending when all Transfer Restricted Securities
covered by the Shelf Registration Statement have been sold in the manner set
forth and as contemplated in the Shelf Registration Statement or when the
Transfer Restricted Securities become eligible for resale pursuant to Rule 144
under the Securities Act without volume restrictions, if any.
(b) 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.
(c) 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 reasonably
requested by the Holders of a majority in aggregate principal amount of the
Transfer Restricted Securities covered by such Registration Statement or by any
underwriter of such Transfer Restricted Securities based on a reasonable belief
that such supplement or amendment is required by law.
4. Liquidated Damages
(a) The Company and the Placement Agents agree that the Holders of
Notes will suffer damages if the Company fails to fulfill its obligations under
Section 2 or Section 3 hereof and that it would not be feasible to ascertain the
extent of such damages with precision. Accordingly, the Company agrees to pay,
as liquidated damages, additional interest on the Notes ("Liquidated Damages")
under the circumstances and to the extent set forth below (each of which shall
be given independent effect and shall not be duplicative):
(i) if neither the Exchange Offer Registration Statement nor the
Shelf Registration Statement has been filed or confidentially submitted
to the SEC on or prior to the Filing Date, then, commencing on the 91st
day after the Issue Date, Liquidated Damages shall accrue on the Notes
over and above the stated interest at a rate of 0.25% per annum for the
first 90 days immediately following the Filing Date, such Liquidated
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Damages rate increasing by an additional 0.25% per annum at the
beginning of each subsequent 90-day period, or part thereof; or
(ii) if neither the Exchange Offer Registration Statement nor the
Shelf Registration Statement is declared effective by the SEC on or
prior to the Effectiveness Target Date, then, commencing on the 151st
day after the Issue Date, Liquidated Damages shall accrue on the Notes
included or which should have been included in such Registration
Statement over and above the stated interest at a rate of 0.25% per
annum for the first 90 days immediately following the Effectiveness
Target Date, such Liquidated Damages rate increasing by an additional
0.25% per annum at the beginning of each subsequent 90-day period, or
part thereof; or
(iii) if the Exchange Offer has not been consummated on or prior
to the 30 th day after the Effectiveness Target Date, Liquidated
Damages shall accrue on the Notes over and above the stated interest at
a rate of 0.25% per annum for the first 90 days commencing on the 31st
day after the Effectiveness Target Date, such Liquidated Damages rate
increasing by an additional 0.25% per annum at the beginning of each
subsequent 90-day period, or part thereof; or
(iv) (A) the Exchange Offer Registration Statement is filed and
declared effective but thereafter ceases to be effective or fails to be
usable for its intended purpose without being succeeded within five
business days by a post-effective amendment that cures such failure and
is itself immediately declared effective or (B) the Shelf Registration
Statement is filed and declared effective but thereafter ceases to be
effective or fails to be usable for its intended purpose without being
succeeded within five business days by a post-effective amendment that
cures such failure and is itself immediately declared effective,
Liquidated Damages shall accrue on the Notes over and above the stated
interest rate at a rate of 0.25% per annum for the first 90 days
commencing on the day the applicable Registration Statement ceases to
be effective or usable for its intended purpose without being declared
effective again within 5 business days, such Liquidated Damages rate
increasing by an additional 0.25% per annum at the beginning of each
such subsequent 90-day period, or part thereof (it being understood and
agreed that, notwithstanding any provision to the contrary, so long as
any Note which is the subject of a Shelf Notice is then covered by an
effective Shelf Registration Statement, no Liquidated Damages shall
accrue on such Note);
provided, however, that Liquidated Damages may accrue at a maximum rate of
1.50% per annum of the principal amount of Notes; and provided, further, that
(1) upon the filing of the Exchange Offer Registration Statement or a Shelf
Registration Statement as required hereunder (in the case of clause (i) of this
Section 4(a)), (2) upon the effectiveness of the Exchange Offer Registration
Statement or the Shelf Registration Statement as required hereunder (in the
case of clause (ii) of this Section 4(a)), (3) upon the consummation of the
Exchange Offer (in the case of clause (iii) of this Section 4(a)), and (4) upon
the effectiveness or usability of the Exchange Offer Registration Statement
which had ceased to remain effective or be usable (in the case of clause (iv)(A)
of this Section 4(a)), or upon the effectiveness or usability of the Shelf
Registration Statement which had
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ceased to remain effective or be usable (in the case of clause (iv)(B) of this
Section 4(a)), Liquidated Damages on the affected Notes as a result of such
clause (or the relevant subclause thereof), as the case may be, shall cease
to accrue.
(b) The Company shall notify the Trustee within five business days
after each and every date on which an event occurs in respect of which
Liquidated Damages is required to be paid (an "Event Date"). Any amounts of
Liquidated Damages due pursuant to (a)(i), (a)(ii), (a)(iii) or (a)(iv) of this
Section 4 will be payable to the Depositary or its nominee in its capacity as
the registered holder of affected Notes in cash semi-annually on each March 30
and September 30 (to the holders of record on the March 15 and September 30
immediately preceding such dates), commencing with the first such date occurring
after any such Liquidated Damages commences to accrue. The amount of Liquidated
Damages will be determined by multiplying the applicable Liquidated Damages rate
by the principal amount of the affected Notes of such Holders, multiplied by a
fraction, the numerator of which is the number of days such Liquidated Damages
rate was applicable during such period (determined on the basis of a 360-day
year comprised of twelve 30-day months and, in the case of a partial month, the
actual number of days elapsed), and the denominator of which is 360. The Company
shall notify the Trustee within five business days of the cessation of any
requirement to pay Liquidated Damages hereunder.
5. Registration Procedures
In connection with the filing of any Registration Statement pursuant
to Sections 2 or 3 hereof, the Company shall effect such registration(s) to
permit the sale of the securities covered thereby in accordance with the
intended method or methods of disposition thereof, and pursuant thereto and in
connection with any Registration Statement filed by the Company hereunder the
Company shall:
(a) Prepare and file with the SEC prior to the Filing Date, a
Registration Statement or Registration Statements as prescribed by Sections 2 or
3 hereof, and use its best efforts to cause each such Registration Statement to
become effective and remain effective as provided herein; provided, however,
that, if (1) such filing is pursuant to Section 3 hereof, or (2) a Prospectus
contained in an Exchange Offer Registration Statement filed pursuant to Section
2 hereof is required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, before filing any Registration Statement or Prospectus or any
amendments or supplements thereto, the Company shall furnish to and afford the
Holders of the Transfer Restricted Securities covered by such Registration
Statement or each such Participating Broker-Dealer, as the case may be, their
counsel and the managing underwriters, if any, a reasonable opportunity to
review copies of all such documents (including copies of any documents to be
incorporated by reference therein and all exhibits thereto) proposed to be filed
(in each case at least five business days prior to such filing).
(b) Prepare and file with the SEC such amendments and post-effective
amendments to each Shelf Registration Statement or Exchange Offer Registration
Statement, as the case may be, as may be necessary to keep such Registration
Statement continuously effective for the Effectiveness Period or the Applicable
Period or until consummation of the Exchange
11
Offer, as the case may be; cause the related Prospectus to be supplemented by
any Prospectus supplement required by applicable law, and as so supplemented to
be filed pursuant to Rule 424 (or any similar provisions then in force)
promulgated under the Securities Act; and comply with the provisions of the
Securities Act and the Exchange Act applicable to it with respect to the
disposition of all securities covered by such Registration Statement as so
amended or in such Prospectus as so supplemented and with respect to the
subsequent resale of any securities being sold by a Participating Broker-Dealer
covered by any such Prospectus. Notwithstanding the foregoing, if the Board of
Managing Directors of the Company determines in good faith that it is in the
best interests of the Company not to disclose the existence of or facts
surrounding any proposed or pending material event or transaction involving the
Company or its subsidiaries, the Company may (i) in the event a Shelf
Registration Statement has been filed, allow the Shelf Registration Statement to
fail to be effective or usable as a result of such nondisclosure for up to 60
days during the Effectiveness Period, but in no event for any period in excess
of 30 consecutive days, and (ii) in the event the Exchange Offer is consummated,
allow the Exchange Offer Registration Statement to fail to be effective or
usable as a result of such non-disclosure for up to 15 days during the
Applicable Period. The Company shall be deemed not to have used its best efforts
to keep a Registration Statement effective during the Applicable Period if it
voluntarily takes any action that would result in selling Holders of the
Transfer Restricted Securities covered thereby or Participating Broker-Dealers
seeking to sell Exchange Notes not being able to sell such Transfer Restricted
Securities or such Exchange Notes during that period unless such action is
required by applicable law or unless the Company complies with this Agreement,
including without limitation, the provisions of paragraph 5(k) hereof and the
last paragraph of this Section 5.
(c) If (1) a Shelf Registration Statement is filed pursuant to Section
3 hereof, or (2) a Prospectus contained in an Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered under
the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, notify the Holders of Transfer Restricted
Securities, or each such Participating Broker-Dealer, as the case may be, their
counsel and the managing underwriters, if any, promptly (but in any event within
five business days), and, if requested by such Persons, confirm such notice in
writing, (i) when a Prospectus or any Prospectus supplement or post-effective
amendment has been filed, and, with respect to a Registration Statement or any
post-effective amendment, when the same has become effective under the
Securities Act (including in such notice a written statement that any Holder
may, upon request, obtain, at the sole expense of the Company, one conformed
copy of such Registration Statement or post-effective amendment including
financial statements and schedules, documents incorporated or deemed to be
incorporated by reference and exhibits), (ii) of the issuance by the SEC of any
stop order suspending the effectiveness of a Registration Statement or of any
order preventing or suspending the use of any preliminary prospectus or the
initiation of any proceedings for that purpose, (iii) if at any time when a
prospectus is required by the Securities Act to be delivered in connection with
sales of the Transfer Restricted Securities or resales of Exchange Notes by
Participating Broker-Dealers the representations and warranties of the Company
contained in any agreement (including any underwriting agreement), contemplated
by Section 5(n) hereof cease to be true and correct, (iv) of the receipt by the
Company of any notification with respect to the suspension of the qualification
or exemption from qualification of
12
a Registration Statement or any of the Transfer Restricted Securities or the
Exchange Notes to be sold by any Participating Broker-Dealer for offer or sale
in any jurisdiction, or the initiation or threatening of any proceeding for such
purpose, (v) of the happening of any event, the existence of any condition or
any information becoming known that makes any statement made in such
Registration Statement or related Prospectus or any document incorporated or
deemed to be incorporated therein by reference untrue in any material respect or
that requires the making of any changes in or amendments or supplements to such
Registration Statement, Prospectus or documents so that, in the case of the
Registration Statement, it will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and that in the case of
the Prospectus, it will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading, and (vi) of the determination by the Company that a
post-effective amendment to a Registration Statement would be appropriate.
(d) Use its best efforts to prevent the issuance of any order
suspending the effectiveness of a Registration Statement or of any order
preventing or suspending the use of a Prospectus or suspending the qualification
(or exemption from qualification) of any of the Transfer Restricted Securities
or the Exchange Notes for sale in any jurisdiction, and, if any such order is
issued, to use its best efforts to obtain the withdrawal of any such order at
the earliest possible moment.
(e) If a Shelf Registration Statement is filed pursuant to Section 3
and if reasonably requested by the managing underwriter or underwriters (if
any), or the Holders of a majority in aggregate principal amount of the Transfer
Restricted Securities being sold in connection with an underwritten offering or
any Participating Broker-Dealer, (i) promptly incorporate in a prospectus
supplement or post-effective amendment such information as the managing
underwriter or underwriters (if any), such Holders, any Participating
Broker-Dealer or counsel for any of them may reasonably request to be included
therein, (ii) make all required filings of such prospectus supplement or such
post-effective amendment as soon as practicable after the Company has received
notification of the matters to be incorporated in such prospectus supplement or
post-effective amendment, and (iii) supplement or make amendments to such
Registration Statement.
(f) If (l) a Shelf Registration Statement is filed pursuant to Section
3 hereof, or (2) a Prospectus contained in an Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered under
the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, furnish to each selling Holder of Transfer
Restricted Securities and to each such Participating Broker-Dealer who so
requests and to counsel and each managing underwriter, if any, at the sole
expense of the Company, one conformed copy of the Registration Statement or
Registration Statements and each post-effective amendment thereto, including
financial statements and schedules, and, if requested, all documents
incorporated or deemed to be incorporated therein by reference and all exhibits
13
(g) If(l) a Shelf Registration Statement is filed pursuant to Section
3 hereof, or (2) a Prospectus contained in an Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered under
the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, deliver to each Holder of Transfer
Restricted Securities, or each such Participating Broker-Dealer, as the case may
be, their respective counsel, and the underwriters, if any, at the sole expense
of the Company, as many copies of the Prospectus or Prospectuses (including each
form of preliminary prospectus) and each amendment or supplement thereto and any
documents incorporated by reference therein as such Persons may reasonably
request; and, subject to the last paragraph of this Section 5, the Company
hereby consents to the use of such Prospectus and each amendment or supplement
thereto by each of the Holders of Transfer Restricted Securities or each such
Participating Broker-Dealer, as the case may be, and the underwriters or agents,
if any, and dealers (if any), in connection with the offering and sale of the
Transfer Restricted Securities covered by, or the sale by Participating
Broker-Dealers of the Exchange Notes pursuant to, such Prospectus and any
amendment or supplement thereto.
(h) Prior to any public offering of Transfer Restricted Securities or
Exchange Notes or any delivery of a Prospectus contained in the Exchange Offer
Registration Statement by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, use its reasonable best efforts to
register or qualify (and to cooperate with selling Holders of Transfer
Restricted Securities or each such Participating Broker-Dealer, as the case may
be, the managing underwriter or underwriters, if any, and their respective
counsel in connection with the registration or qualification (or exemption from
such registration or qualification) of such Transfer Restricted Securities) for
offer and sale under the securities or Blue Sky laws of such jurisdictions
within the United States as any selling Holder, Participating Broker-Dealer, or
the managing underwriter or underwriters reasonably request; provided, however,
that where Exchange Notes held by Participating Broker-Dealers or Transfer
Restricted Securities are offered other than through an underwritten offering,
the Company agrees to cause its counsel to perform Blue Sky investigations and
file registrations and qualifications required to be filed pursuant to this
Section 5(h); keep each such registration or qualification (or exemption
therefrom) effective during the period such Registration Statement is required
to be kept effective and do any and all other acts or things reasonably
necessary or advisable to enable the disposition in such jurisdictions of the
Exchange Notes held by Participating Broker-Dealers or the Transfer Restricted
Securities covered by the applicable Registration Statement; provided, however,
that the Company shall not be required to (A) qualify generally to do business
in any jurisdiction where it is not then so qualified, (B) take any action that
would subject it to general service of process in any such jurisdiction where it
is not then so subject or (C) subject itself to taxation in any such
jurisdiction where it is not then so subject.
(i) If a Shelf Registration Statement is filed pursuant to Section 3
hereof, cooperate with the selling Holders of Transfer Restricted Securities and
the managing underwriter or underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing Transfer Restricted
Securities to be sold, which certificates shall not bear any restrictive legends
and shall be in a form eligible for deposit with The Depository Trust Company;
and enable such
14
Transfer Restricted Securities to be in such denominations and registered in
such names as the managing underwriter or underwriters, if any, or Holders
may request.
(j) Use its best efforts to cause the Transfer Restricted Securities
covered by the Registration Statement and the Exchange Notes to be registered
with or approved by such other governmental agencies or authorities as may be
necessary to enable the selling Holders thereof or the underwriter or
underwriters, if any, to dispose of such Transfer Restricted Securities or
Exchange Notes, except as may be required solely as a consequence of the nature
of a selling Holder's business, in which case the Company will cooperate in all
reasonable respects with the filing of such Registration Statement and the
granting of such approvals.
(k) If (l) a Shelf Registration Statement is filed pursuant to Section
3 hereof, or (2) a Prospectus contained in an Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered under
the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, upon the occurrence of any event
contemplated by paragraph 5(c)(v) or 5(c)(vi) hereof, as promptly as practicable
prepare and (subject to Section 5(b) hereof) file with the SEC, at the sole
expense of the Company, a supplement or post-effective amendment to the
Registration Statement or a supplement to the related Prospectus or any document
incorporated or deemed to be incorporated therein by reference, or file any
other required document so that, as thereafter delivered to the purchasers of
the Transfer Restricted Securities being sold thereunder or to the purchasers of
the Exchange Notes to whom such Prospectus will be delivered by a Participating
Broker-Dealer, any such Prospectus will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
(l) Unless the rating in effect for the Notes is equally applicable
and in effect for the Exchange Notes and the Transfer Restricted Securities, use
its best efforts to cause the Transfer Restricted Securities covered by a
Registration Statement or the Exchange Notes, as the case may be, to be rated
with the appropriate rating agencies.
(m) Prior to the effective date of the first Registration Statement
relating to the Transfer Restricted Securities, provide a CUSIP number, ISIN
Code and Common Code for each series of Transfer Restricted Securities or
Exchange Notes, as the case may be.
(n) In connection with any underwritten offering of Transfer Restricted
Securities pursuant to a Shelf Registration Statement, enter into an
underwriting agreement as is customary in underwritten offerings of debt
securities similar to the Notes and take all such other actions as are
reasonably requested by the managing underwriter or underwriters in order to
facilitate the registration or the disposition of such Transfer Restricted
Securities and, in such connection, (i) make such representations and warranties
to, and covenants with, the underwriters with respect to the business of the
Company and its subsidiaries (including any acquired business, properties or
entity, if applicable) and the Registration Statement, Prospectus and documents,
if any, incorporated or deemed to be incorporated by reference therein, in each
case, as are customarily made by issuers to underwriters in underwritten
offerings of debt securities similar to
15
the Notes, and confirm the same in writing if and when requested; (ii) obtain
the written opinion of counsel to the Company and written updates thereof in
form, scope and substance reasonably satisfactory to the managing underwriter or
underwriters, addressed to the underwriters covering the matters customarily
covered in opinions requested in underwritten offerings of debt similar to the
Notes and such other matters as may be reasonably requested by the managing
underwriter or underwriters; (iii) obtain "cold comfort" letters and updates
thereof in form, scope and substance reasonably satisfactory to the managing
underwriter or underwriters from the independent certified public accountants of
the Company (and, if necessary, any other independent certified public
accountants of any subsidiary of the Company or of any business acquired by the
Company for which financial statements and financial data are, or are required
to be, included or incorporated by reference in the Registration Statement),
addressed to each of the underwriters, such letters to be in customary form and
covering matters of the type customarily covered in "cold comfort" letters in
connection with underwritten offerings of debt similar to the Notes and such
other matters as reasonably requested by the managing underwriter or
underwriters; and (iv) if an underwriting agreement is entered into, the same
shall contain indemnification provisions and procedures substantially similar to
those set forth in Section 7 hereof (or such other provisions and procedures
acceptable to Holders of a majority in aggregate principal amount of Transfer
Restricted Securities covered by such Registration Statement and the managing
underwriter or underwriters or agents) with respect to all parties to be
indemnified pursuant to said Section, including, without limitation, the Holders
of Transfer Restricted Securities and the underwriters. The above shall be done
at each closing under such underwriting agreement, or as and to the extent
required thereunder.
(o) If (1) a Shelf Registration Statement is filed pursuant to Section
3 hereof, or (2) a Prospectus contained in an Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered under
the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, make available for inspection by any selling
Holder of such Transfer Restricted Securities being sold, or each such
Participating Broker-Dealer, as the case may be, any underwriter participating
in any such disposition of Transfer Restricted Securities, if any, and any
attorney, accountant or other agent retained by any such selling Holder or each
such Participating Broker-Dealer, as the case may be, or underwriter
(collectively, the "Inspectors"), at the offices where normally kept, during
reasonable business hours, all financial and other records, pertinent corporate
documents and instruments of the Company and its subsidiaries (collectively, the
"Records") as shall be reasonably necessary to enable them to exercise any
applicable due diligence responsibilities, and cause the officers, directors and
employees of the Company and its subsidiaries to supply all information
reasonably requested by any such Inspector in connection with such Registration
Statement. Records which the Company determines, in good faith, to be
confidential and any Records which it notifies the Inspectors are confidential
shall not be disclosed by the Inspectors unless (i) the disclosure of such
Records is necessary to avoid or correct a misstatement or omission in such
Registration Statement, (ii) the release of such Records is ordered pursuant to
a subpoena or other order from a court of competent jurisdiction, (iii)
disclosure of such information is, in the opinion of counsel for any Inspector
and after consultation with the Company, necessary in connection with any
action, claim, suit or proceeding, directly or indirectly, involving or
potentially involving such Inspector and arising out of, based upon,
16
relating to, or involving this Agreement, or any transactions contemplated
hereby or arising hereunder, or (iv) the information in such Records has been
made generally available to the public. Each selling Holder of such Transfer
Restricted Securities and each such Participating Broker-Dealer will be required
to agree that information obtained by it as a result of such inspections shall
be deemed confidential and shall not be used by it as the basis for any market
transactions in the securities of the Company unless and until such information
is generally available to the public. Each selling Holder of such Transfer
Restricted Securities and each such Participating Broker-Dealer or underwriter,
as the case may be, will be required further to agree that it will, upon
learning that disclosure of such Records is sought in a court of competent
jurisdiction, give notice to the Company and allow the Company at its sole
expense to undertake appropriate action to prevent disclosure of the Records
deemed confidential.
(p) Provide an indenture trustee for the Transfer Restricted
Securities or the Exchange Notes, as the case may be, and cause the Indenture or
the trust indenture provided for in Section 2(a) hereof, as the case may be, to
be qualified under the Trust Indenture Act not later than the effective date of
the first Registration Statement relating to the Transfer Restricted Securities;
and in connection therewith, cooperate with the trustee under any such indenture
and the Holders of the Transfer Restricted Securities, to effect such changes to
such indenture as may be required for such indenture to be so qualified in
accordance with the terms of the Trust Indenture Act; furnish the trustee with
an officer's certificate certifying that such indenture has been so qualified
under the Trust Indenture Act and that the Transfer Restricted Securities are
the subject of a Registration Statement; and execute, and use its reasonable
best efforts to cause such trustee to execute, all documents as may be required
to effect such changes, and all other forms and documents required to be filed
with the SEC to enable such indenture to be so qualified in a timely manner.
(q) Comply with all applicable rules and regulations of the SEC and
make generally available to its securityholders earnings statements satisfying
the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder
(or any similar rule promulgated under the Securities Act) no later than 45 days
after the end of any 12-month period (or 90 days after the end of any 12-month
period if such period is a fiscal year) (i) commencing at the end of any fiscal
quarter in which Transfer Restricted Securities are sold to underwriters in a
firm commitment or best efforts underwritten offering and (ii) if not sold to
underwriters in such an offering, commencing on the first day of the first
fiscal quarter of the Company after the effective date of a Registration
Statement, which statements shall cover said 12-month periods.
(r) If an Exchange Offer or a Private Exchange is to be consummated,
upon delivery of the Transfer Restricted Securities by Holders to the Company
(or to such other Person as directed by the Company) in exchange for the
Exchange Notes or the Private Exchange Notes, as the case may be, the Company
shall xxxx, or cause to be marked, on such Transfer Restricted Securities that
such Transfer Restricted Securities are being cancelled in exchange for the
Exchange Notes or the Private Exchange Notes, as the case may be; in no event
shall such Transfer Restricted Securities be marked as paid or otherwise
satisfied.
17
(s) Cooperate with each seller of Transfer Restricted Securities
covered by any Registration Statement and each underwriter, if any,
participating in the disposition of such Transfer Restricted Securities and
their respective counsel in connection with any filings required to be made with
the National Association of Securities Dealers, Inc. (the "NASD").
(t) Use its best efforts to take all other steps necessary or
advisable to effect the registration of the Exchange Notes and/or Transfer
Restricted Securities covered by a Registration Statement contemplated hereby.
(u) Make an application to list the Exchange Notes on the Amsterdam
Stock Exchange and to use its best efforts to have the Exchange Notes admitted
to trading on the Amsterdam Stock Exchange as promptly as practicable.
The Company may require each seller of Transfer Restricted Securities
as to which any Shelf Registration Statement is being effected to (i) furnish to
the Company such information regarding such seller and the distribution of such
Transfer Restricted Securities and (ii) make such representations, in each case
as the Company may, from time to time, reasonably request. The Company may
exclude from such registration the Transfer Restricted Securities of any seller
who unreasonably fails to furnish such information or make such representations
within a reasonable time after receiving such request. Each seller as to which
any Shelf Registration Statement is being effected agrees to furnish promptly to
the Company all information required to be disclosed in order to make the
information previously furnished to the Company by such seller not materially
misleading.
Each Holder of Transfer Restricted Securities and each Participating
Broker-Dealer agrees by acquisition of such Transfer Restricted Securities or
Exchange Notes to be sold by such Participating Broker-Dealer, as the case may
be, that, upon actual receipt of any notice from the Company of the happening of
any event of the kind described in Section 5(c)(ii), 5(c)(iv), 5(c)(v) or
5(c)(vi) hereof, such Holder will forthwith discontinue disposition of such
Transfer Restricted Securities covered by such Registration Statement or
Prospectus or Exchange Notes to be sold by such Holder or Participating
Broker-Dealer, as the case may be, until such Holder's or Participating
Broker-Dealer's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 5(k) hereof, or until it is advised in writing (the
"Advice") by the Company that the use of the applicable Prospectus may be
resumed, and has received copies of any amendments or supplements thereto. In
the event the Company shall give any such notice, each of the Effectiveness
Period and the Applicable Period shall be extended by the number of days during
such periods from and including the date of the giving of such notice to and
including the date when each seller of Transfer Restricted Securities covered by
such Registration Statement or Exchange Notes to be sold by such Participating
Broker-Dealer, as the case may be, shall have received (x) the copies of the
supplemented or amended Prospectus contemplated by Section 5(k) hereof or (y)
the Advice.
6. Registration Expenses
18
(a) All fees and expenses incident to the performance of or compliance
with this Agreement by the Company shall be borne by the Company whether or not
the Exchange Offer Registration Statement or a Shelf Registration Statement is
filed or becomes effective, including, without limitation, (i) all registration
and filing fees (including, without limitation, (A) fees with respect to filings
required to be made with the NASD in connection with an underwritten offering,
(B) fees and expenses of compliance with state securities or Blue Sky laws
(including, without limitation, reasonable fees and disbursements of counsel in
connection with Blue Sky qualifications of the Transfer Restricted Securities or
Exchange Notes and determination of the eligibility of the Transfer Restricted
Securities or Exchange Notes for investment under the laws of such jurisdictions
(x) where the holders of Transfer Restricted Securities are located, in the case
of the Exchange Notes, or (y) as provided in Section 5(h) hereof, in the case of
Transfer Restricted Securities or Exchange Notes to be sold by a Participating
Broker-Dealer during the Applicable Period)), and (C) all expenses and fees in
connection with the obtaining of any approval from the Stichting Toezicht
Effectenverkeer or any other relevant authority in The Netherlands; (ii)
printing expenses, including, without limitation, the printing of prospectuses
if the printing of prospectuses is requested by the managing underwriter or
underwriters, if any, by the Holders of a majority in aggregate principal amount
of the Transfer Restricted Securities included in any Registration Statement or
by any Participating Broker-Dealer, as the case may be, (iii) reasonable fees
and disbursements of counsel for the Company and reasonable fees and
disbursements of special counsel for the sellers of Transfer Restricted
Securities (subject to the provisions of Section 6(b) hereof), (iv) reasonable
fees and disbursements of all independent certified public accountants referred
to in Section 5(n)(iii) hereof (including, without limitation, the expenses of
any special audit and "cold comfort" letters required by or incident to such
performance), (v) rating agency fees, if any, and any fees associated with
making the Exchange Notes eligible for trading through The Depository Trust
Company, (vi) Securities Act liability insurance, if the Company desires such
insurance, (vii) reasonable fees and expenses of all other Persons retained by
the Company, (viii) internal expenses of the Company (including, without
limitation, all salaries and expenses of officers and employees of the Company
performing legal or accounting duties), (ix) the expense of any annual audit,
(x) the reasonable fees and expenses incurred in connection with the listing of
the securities to be registered on any securities exchange, if applicable, and
(xi) the expenses relating to printing, word processing and distributing all
Registration Statements, underwriting agreements, securities sales agreements,
indentures and any other documents necessary in order to comply with this
Agreement.
(b) The Company shall reimburse the Holders of the Transfer Restricted
Securities being registered in a Shelf Registration Statement for the reasonable
fees and disbursements of not more than one counsel (in addition to appropriate
local counsel) chosen by the Holders of a majority in aggregate principal amount
of the Transfer Restricted Securities to be included in such Registration
Statement (which counsel shall be Xxxxxxx Xxxxxxx & Xxxxxxxx unless otherwise
affirmatively stated by the Holders).
7. Indemnification and Contribution
19
(a) The Company shall indemnify and hold harmless each Holder of
Transfer Restricted Securities offered pursuant to a Shelf Registration
Statement, each Participating Broker-Dealer selling Exchange Notes during the
Applicable Period and the Placement Agents and the officers and employees and
each Person, if any, who controls any such Person within the meaning of the
Securities Act (each a "Participant") from and against any loss, claim, damage
or liability, joint or several, or any action in respect thereof (including, but
not limited to, any loss, claim, damage, liability or action relating to the
exchange of or sales of the Transfer Restricted Securities), to which that
Participant may become subject, under the Securities Act or otherwise, insofar
as such loss, claim, damage, liability or action arises out of, or is based
upon, (i) any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement or Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus, or in any blue sky
application or other document prepared or executed by the Company (or based upon
any written information furnished by the Company) specifically for the purpose
of qualifying any or all of the Transfer Restricted Securities under the
securities laws of any state or other jurisdiction (such application, document
or information being hereinafter called a "Blue Sky Application"), (ii) the
omission or alleged omission to state therein any material fact required to be
stated therein or necessary to make the statements therein not misleading or
(iii) any act or failure to act, or any alleged act or failure to act, by any
Participant in connection with, or relating in any manner to, the Transfer
Restricted Securities or the registration contemplated hereby, and which is
included as part of or referred to in any loss, claim, damage, liability or
action arising out of or based upon matters covered by clause (i) or (ii) above
(provided that the Company shall not be liable in the case of any matter covered
by this clause (iii) to the extent that it is determined in a final judgment by
a court of competent jurisdiction that such loss, claim, damage, liability or
action resulted directly from any such act or failure to act undertaken or
omitted to be taken by such Participant through its gross negligence or wilful
misconduct), and shall reimburse each Participant promptly upon demand for any
legal or other expenses reasonably incurred by that Participant in connection
with investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage, liability or action arises out of, or is
based upon, any untrue statement or alleged untrue statement or omission or
alleged omission made in the Registration Statement or Prospectus, or in any
such amendment or supplement, or in any Blue Sky Application in reliance upon
and in conformity with the written information furnished to the Company by or on
behalf of any Participant specifically for inclusion therein; provided, further,
that with respect to any such untrue statement in or omission from any
preliminary prospectus, the indemnity agreement contained in this Section 7(a)
shall not inure to the benefit of any such Participant to the extent that the
sale to the Person asserting any such loss, claim, damage, liability or action
was an initial resale by such Participant and any such loss, claim, damage,
liability or action of or with respect to such Participant results from the fact
that both (A) to the extent required by applicable law, a copy of the Prospectus
was not sent or given to such Person at or prior to the written confirmation of
the sale of such securities to such Person and (B) the untrue statement in or
omission from such preliminary prospectus was corrected in the Prospectus
unless, in either case, such failure to deliver the Prospectus was a result of
non-compliance by the Company with Section 5(g) of this Agreement. The foregoing
indemnity agreement is in addition to any liability which the Company may
otherwise have to any Participant.
20
(b) Each Holder of Transfer Restricted Securities offered pursuant to
a Shelf Registration Statement, each Participating Broker-Dealer selling
Exchange Notes during the Applicable Period and the Placement Agents (each a
"Participant Indemnifying Party") severally and not jointly, shall indemnify and
hold harmless the Company, its officers and employees, each of its directors and
each Person, if any, who controls the Company within the meaning of the
Securities Act from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof, to which the Company or any such
director, officer or controlling Person may become subject, under the Securities
Act or otherwise, insofar as such loss, claim, damage, liability or action
arises out of, or is based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained (A) in any preliminary prospectus or the
Registration Statement or Prospectus, or in any amendment or supplement thereto,
or (B) in any Blue Sky Application or (ii) the omission or alleged omission to
state therein any material fact required to be stated therein or necessary to
make the statements therein not misleading, but in each case only to the extent
that the untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with the written
information furnished to the Company by that Participant Indemnifying Party
specifically for inclusion therein, and shall reimburse the Company and any such
director, officer or controlling Person for any legal or other expenses
reasonably incurred by the Company or any such director, officer or controlling
Person in connection with investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action as such expenses are
incurred. The foregoing indemnity agreement is in addition to any liability
which any Participant Indemnifying Party may otherwise have to the Company or
any such director, officer or controlling Person.
(c) Promptly after receipt by an indemnified party under this Section
7 of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 7, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 7 except to the extent it has
been materially prejudiced by such failure and, provided, further, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 7.
If any such claim or action shall be brought against an indemnified party, and
it shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
any indemnified party shall have the right to employ separate counsel in any
such action and to participate in the defense thereof but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless (i) the
employment thereof has been specifically authorized by the indemnifying party in
writing, (ii) such indemnified party shall have been advised by such counsel
that there may be one or more legal defenses available to it which are different
from or additional to those available to the indemnifying party and in the
reasonable judgement of such counsel it is
21
advisable for such indemnified party to employ separate counsel or (iii) the
indemnifying party has failed to assume the defense of such action and employ
counsel reasonably satisfactory to the indemnified party, in which case, if such
indemnified party notifies the indemnifying party in writing that it elects to
employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such action
on behalf of such indemnified party, it being understood, however, that the
indemnifying party shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys at any
time for all such indemnified parties, which firm shall be designated in writing
by the Placement Agents, if the indemnified parties under this Section 7 consist
of any Participants, or by the Company, if the indemnified parties under this
Section consist of the Company or any of the Company's directors, officers,
employees or controlling Persons. Each indemnified party, as a condition of the
indemnity agreements contained in Sections 7(a) and 7(b), shall use its
reasonable efforts to cooperate with the indemnifying party in the defense of
any such action or claim. No indemnifying party shall (i) without the prior
written consent of the indemnified parties (which consent shall not be
unreasonably withheld) settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
(a) includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding and (b) does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of the indemnified party, or (ii) be liable for any
settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with its written
consent or if there be a final judgment of the plaintiff in any such action, the
indemnifying party agrees to indemnify and hold harmless any indemnified party
from and against any loss of liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 7 shall for
any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section 7(a) or 7(b) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Company on the one hand and the Participants on the other from
the offering of the Notes or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also
the relative fault of the Company on the one hand and the Participants on the
other with respect to the statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Participants on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering of the Notes (before deducting
expenses underwriting discounts and commissions) received by the Company bear on
the one hand, and the total underwriting discounts and commissions received by
the
22
Participants with respect to the Notes purchased under the Purchase Agreement,
on the other hand, bear to the total gross proceeds from the offering of the
Notes under the Purchase Agreement. The relative fault shall be determined by
reference to whether the untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company or the Participants, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and the Participants agree that it would
not be just and equitable if contributions pursuant to this Section 7(d) were to
be determined by pro rata allocation (even if the Participants were treated as
one entity for such purpose) or by any other method of allocation which does not
take into account the equitable considerations referred to herein. The amount
paid or payable by an indemnified party as a result of the loss, claim, damage
or liability, or action in respect thereof, referred to above in this Section
7(d) shall be deemed to include, for purposes of this Section 7(d), any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7(d), no Participant shall be required to contribute
any amount in excess of the amount by which the total price at which the Notes
purchased by it were resold exceeds the amount of any damages which such has
otherwise paid or become liable to pay by reason of any untrue or alleged untrue
statement or omission or alleged omission. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation. The Participant's obligations to contribute as
provided in this Section 7(d) are several in proportion to their respective
purchase obligations and not joint.
8. Rule 144A
Whether or not required by the rules and regulations of the SEC and
until such time as none of the Notes remain outstanding, the Company covenants
to furnish to the holders of the Notes, (i) all annual and quarterly financial
information that would be required to be contained in a filing with the SEC 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 SEC on Form 8-K if the
Company were required to file such reports. Such quarterly financial information
shall be furnished to the holders of the Notes 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. The Company will also be required
(a) to file with the Trustee copies of such reports and documents within 15 days
after the date on which the Company files such reports and documents with the
SEC 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 SEC is not accepted by the SEC or is prohibited under the
Exchange Act, to supply at the Company's cost copies of such reports and
documents to any prospective holder promptly upon request. In addition, the
Company
23
covenants to furnish to the holders of the Notes and to prospective investors,
upon the request of such holder, any information required to be delivered
pursuant to Rule 144A(d)(4) under the Securities Act so long as the Notes are
not freely transferable under the Securities Act.
9. Underwritten Registrations
If any of the Transfer Restricted Securities covered by any Shelf
Registration Statement are to be sold in an underwritten offering, the
investment banker or investment bankers and manager or managers that will manage
the offering will be selected by the Holders of a majority in aggregate
principal amount of such Transfer Restricted Securities included in such
offering and shall be reasonably acceptable to the Company.
No Holder of Transfer Restricted Securities may participate in any
underwritten registration hereunder unless such Holder (a) agrees to sell such
Holder's Transfer Restricted Securities on the basis provided in any
underwriting arrangements approved by the Persons entitled hereunder to approve
such arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
10. Miscellaneous
(a) No Inconsistent Agreements. The Company has not, as of the date
hereof, nor will it, after the date of this Agreement, enter into any agreement
with respect to any of its securities that is inconsistent with the rights
granted to the Holders of Transfer Restricted Securities in this Agreement or
otherwise conflicts with the provisions hereof. The Company will not enter into
any agreement with respect to any of its securities which will grant to any
Person piggy-back registration rights with respect to the Exchange Offer
Registration Statement or the Shelf Registration Statement.
(b) Adjustments Affecting Transfer Restricted Securities. The Company
shall not, directly or indirectly, take any action with respect to the Transfer
Restricted Securities as a class that would adversely affect the ability of the
Holders of Transfer Restricted Securities to include such Transfer Restricted
Securities in a registration undertaken pursuant to this Agreement.
(c) Amendments and Waivers. The provisions of this Agreement may not
be amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, otherwise than with the prior written
consent of (A) the Holders of not less than a majority in aggregate principal
amount of any series of the then outstanding Transfer Restricted Securities with
respect to such series of Transfer Restricted Securities and (B) in
circumstances that would adversely affect the Participating Broker-Dealers, the
Participating Broker-Dealers holding not less than a majority in aggregate
principal amount of any series of the Exchange Notes held by all Participating
Broker-Dealers with respect to such series of Exchange Notes; provided, however,
that Section 7 and this Section 10(c) may not be amended, modified or
supplemented without the prior written consent of each Holder and each
Participating
24
Broker-Dealer (including any Person who was a Holder or Participating
Broker-Dealer of Transfer Restricted Securities or Exchange Notes, as the case
may be, disposed of pursuant to any Registration Statement). Notwithstanding the
foregoing, a waiver or consent to depart from the provisions hereof with respect
to a matter that relates exclusively to the rights of Holders of any series of
Transfer Restricted Securities whose securities are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect, impair,
limit or compromise the rights of other Holders of Transfer Restricted
Securities may be given by Holders of at least a majority in aggregate principal
amount of the Transfer Restricted Securities being sold by such Holders pursuant
to such Registration Statement; provided, however, that the provisions of this
sentence may not be amended, modified or supplemented except in accordance with
the provisions of the immediately preceding sentence.
(d) Notices. All notices and other communications (including, without
limitation, any notices or other communications to the Trustee) provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, next-day air courier or facsimile:
(1) if to a Holder of the Transfer Restricted Securities or any
Participating Broker-Dealer, at the most current address of such
Holder or Participating Broker-Dealer, as the case may be, set forth
on the records of the registrar under the Indenture, with a copy in
like manner to the Representatives as follows:
Xxxxxx Brothers International (Europe)
c/x Xxxxxx Brothers Inc.
Three World Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No: 000-000-0000
Attention: Syndicate Department
and:
Xxxxxx Xxxxxxx & Co. International Limited
00 Xxxxx Xxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
Facsimile No: 00-00-0000-0000
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
00 Xxxxxxxxxxx
00xx Xxxxx
Xxxxxx XX0X 0XX
Facsimile No: 00-00-0000-0000
Attention: Xxxxxxx X. Xxxxxxxxx, Esq.
25
(2) if to any of the Placement Agents, at the addresses specified
in Section 10(d)(1);
(3) if to the Company, as follows:
VersaTel Telecom International N.V.
Xxxxxxxxxxx 00
0000 XX Xxxxxxxxxx-X.X.
Xxx Xxxxxxxxxxx
Facsimile No: 00-00-000-00-00
Attention: Xxx Xxxxxxxxx
with a copy to:
Shearman & Sterling
Xxxxxxxxx Xxxx
0 Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Facsimile No: 00-00-0000-0000
Attention: Xxxxx Xxxxxxxxx, Esq.
Any such statements, requests, notices or agreements shall take
effect at the time of receipt thereof. The Company shall be entitled to act and
rely upon any request, consent, notice or agreement given or made on behalf of
the Placement Agents.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address and in the manner specified in the Indenture.
(e) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties hereto
and the Holders; provided, however, that this Agreement shall not inure to the
benefit of or be binding upon a successor or assign of a Holder unless and to
the extent such successor or assign holds Transfer Restricted Securities.
(f) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
26
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
(i) 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 Agreement, 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 Agreement or the transactions
contemplated hereby may also be instituted by any of the Placement Agents, their
officers and employees or any person who controls any of the Placement Agents
within the meaning of the Securities Act 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 suit, action or proceeding against it
arising out of or based on this Agreement or the transactions contemplated
hereby.
The provisions of this Section 10(i) are intended to be effective upon
the execution of this Agreement without any further action by the Company or the
Placement Agents and the introduction of a true copy of this Agreement into
evidence shall be conclusive and final evidence as to such matters.
(j) Currency Indemnity. The Company shall indemnify each Participant
against any loss incurred by it as a result of any judgment or order being given
or made and expressed and paid in a currency (the "Judgment Currency") other
than U.S. dollars and as a result of any variation as between (i) the rate of
exchange at which the U.S. dollar amount is converted into the Judgment Currency
for the purpose of such judgment or order and (ii) the spot
27
rate of exchange in New York, New York at which such Participant on the date of
payment of such judgment or order is able to purchase U.S. dollars with the
amount of the Judgment Currency actually received by such Participant. If the
U.S. dollars so purchased are greater than the amount originally due to such
Participant hereunder, such Participant agrees to pay to the Company an amount
equal to the excess of the U.S. dollars so purchased over the amount originally
due to such Participant hereunder. The foregoing shall constitute a separate and
independent obligation of the Company and the Participant, as the case may be,
and shall continue in full force and effect notwithstanding any such judgment or
order as aforesaid. The term "spot rate of exchange" shall include any premiums
and costs of exchange payable in connection with the purchase of, or conversion
into, U.S. dollars.
(k) Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.
(l) Securities Held by the Company or Its Affiliates. Whenever the
consent or approval of Holders of a specified percentage of Transfer Restricted
Securities is required hereunder, Transfer Restricted Securities held by the
Company or its "affiliates" (as such term is defined in Rule 405 under the
Securities Act) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
(m) Third Party Beneficiaries. Holders of Transfer Restricted
Securities and Participating Broker-Dealers are intended third party
beneficiaries of this Agreement, and this Agreement may be enforced by such
Persons.
(n) Entire Agreement. This Agreement, together with the Placement
Agreement and the Indenture, is intended by the parties as a final and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein and therein and any and all prior oral or
written agreements, representations, or warranties, contracts, understandings,
correspondence, conversations and memoranda between the Placement Agents on the
one hand and the Company on the other, or between or among any agents,
representatives, parents, subsidiaries, affiliates, predecessors in interest or
successors in interest with respect to the subject matter hereof and thereof are
merged herein and replaced hereby.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first written above.
VERSATEL TELECOM INTERNATIONAL N.V.
By: /s/ R. Xxxx Xxxxx
------------------------------
Name: R. Xxxx Xxxxx
Title: Managing Director
XXXXXX BROTHERS INTERNATIONAL
(EUROPE) and
XXXXXX XXXXXXX & CO. INTERNATIONAL
LIMITED
For themselves and on behalf of the other
Placement Agents
XXXXXX BROTHERS INTERNATIONAL
(EUROPE)
By: /s/ Xxxxx Xxxxxx
------------------------------
Name: Xxxxx Xxxxxx
Title: Attorney-in-Fact
XXXXXX XXXXXXX & CO. INTERNATIONAL
LIMITED
By: /s/ Carlo Michilini
------------------------------
Name: Carlo Michilini
Title: Attorney-in-Fact
