Exhibit 10.17
AMENDMENT NO. 2
TO
SECURITYHOLDERS' AGREEMENT
AND SECURITIES PURCHASE AGREEMENT
This Amendment No. 2, dated as of March 1, 1999, is entered into by and
among Carrier 1 International S.A., a Luxembourg SOCIETE ANONYME (the
"Company"), Carrier One, LLC, a limited liability company formed under the
laws of Delaware ("Carrier One"), and Xxxx Xxxxxxxxxxxx (said Amendment being
referred to as "this Amendment"). Capitalized terms used in this Amendment
and not otherwise defined herein shall have the meanings ascribed thereto in
the Securities Purchase Agreement, dated as of March 1, 1999 (the "Securities
Purchase Agreement"), among the Company, Carrier One, and the Purchasers
referred to therein and, or, if not defined therein, in the Securityholder's
Agreement, dated as of March 1, 1999 (the "Securityholders' Agreement"),
among the Company, Carrier One, and the Securityholders referred to therein.
WITNESSETH:
WHEREAS, the Company, Carrier One, and certain of the Purchasers and
Securityholders are parties to the Securities Purchase Agreement and
Securityholders' Agreement;
WHEREAS, Xxxx Xxxxxxxxxxxx may acquire Securityholders Securities pursuant
to a separate Option Agreement with the Company and, in such event, will be
subject to the rights and obligations of Purchasers and Securityholders under
the Securities Purchase Agreement and Securityholders' Agreement;
WHEREAS, pursuant to Article XII of the Securities Purchase Agreement,
the Company may sell additional Equity Securities to Xxxx Xxxxxxxxxxxx as an
Additional Purchaser in accordance with the terms of said agreement, in which
case such Additional Purchaser shall by a separate letter agreement become a
part to said agreement;
WHEREAS, pursuant to Section 24 of the Securityholders' Agreement,
Additional Purchasers may become a party to the Securityholders' Agreement
and shall be bound by the terms of such agreement upon agreement between the
Company, Carrier One and such Additional Purchasers without further notice to
the Management Holders;
WHEREAS, the Company, Carrier One, and Xxxx Xxxxxxxxxxxx have agreed to
amend the Securities Purchase Agreement and Securityholders' Agreement as
provided herein;
NOW, THEREFORE, in consideration of the terms and conditions set forth
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, the
parties hereto hereby agree as follows:
SECTION 1. AMENDMENT TO SECURITIES PURCHASE AGREEMENT. Effective as of the
date hereof, the Securityholders' Agreement is hereby amended in accordance
with Article XII of the Securities Purchase Agreement, to add Xxxx
Xxxxxxxxxxxx as an Additional Purchaser and a party to such agreement; Xxxx
Xxxxxxxxxxxx hereby agrees to be bound by all of the terms and conditions of
the Securities Purchase Agreement and this Amendment and the Company and
Carrier One hereby consent to Xxxx Xxxxxxxxxxxx as an Additional Purchaser.
SECTION 2. AMENDMENT TO SECURITYHOLDERS' AGREEMENT. Effective as of the date
hereof, the Securityholders' Agreement is hereby amended in accordance with
Section 24 of the Securityholders' Agreement, to add Xxxx Xxxxxxxxxxxx as
Securityholder and a party to such agreement; Xxxx Xxxxxxxxxxxx hereby agrees
to be bound by all of the terms and conditions of the Securityholders'
Agreement and this Amendment and the Company and Carrier One hereby consent
to Xxxx Xxxxxxxxxxxx being added as Securityholder.
SECTION 3. REPRESENTATIONS AND WARRANTIES.
Each of the Company and Carrier One hereby represents and warrants
that (i) it has full power and authority to execute and deliver this
Amendment and to perform its obligations hereunder, (ii) it has taken all
action necessary for the execution and delivery by it of this Amendment and
the performance by it of its obligations hereunder, and (iii) this Amendment
constitutes its valid and binding obligation enforceable against it in
accordance with its terms except to the extent enforceability may be subject
to bankruptcy, insolvency, moratorium and other similar laws affecting the
rights of creditors generally or the application of principles of equity,
whether in an action at law or proceeding in equity.
SECTION 4. REFERENCE TO AND EFFECT UPON THE AGREEMENTS
4.1 Except as specifically amended above, the Securities Purchase
Agreement and the Securityholders' Agreement shall remain in full force and
effect and are hereby ratified and confirmed.
4.2 The execution, delivery and effectiveness of this Amendment shall
not operate as a waiver of any right, power or remedy of any Purchaser or
Securityholder under the Securities Purchase Agreement or Securityholders'
Agreement, nor constitute an amendment of any provision of the Securities
Purchase Agreement or Securityholders' Agreement, except as specifically set
forth herein.
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SECTION 5. GOVERNING LAW AND JURISDICTION
5.1 This Amendment shall be construed and administered in accordance
with and governed by the laws of Luxembourg.
5.2 The courts of England have jurisdiction to hear and decide any suit,
action or proceedings, and to settle any disputes, which may arise out of or
in connection with this Agreement (respectively, "PROCEEDINGS" and
"DISPUTES") and for this purpose each party irrevocably submits to the
jurisdiction of the Courts of England. This paragraph does not prevent any
party to this Agreement from taking proceedings relating to Proceedings or
Disputes in any other courts with jurisdiction. Each party irrevocably waives
any objection which it might at any time have to the courts of England being
nominated as the forum to hear and decide any Proceedings and to settle any
disputes and agrees not to claim that the courts of England are not a
convenient or appropriate forum.
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by
the parties hereto as of the day and year first above written.
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CARRIER ONE, LLC
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Chairman
CARRIER 1 INTERNATIONAL S.A.
By: /s/ Stig Johansson
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Name: Stig Johansson
Title: Chairman
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title:
/s/ Xxxx Xxxxxxxxxxxx
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Xxxx Xxxxxxxxxxxx
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