Exhibit 10.1
EXECUTION COPY
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DOLLAR WARRANT AGREEMENT
between
CARRIER1 INTERNATIONAL S.A.
and
THE CHASE MANHATTAN BANK
Dated as of February 19, 1999
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TABLE OF CONTENTS
PAGE
ARTICLE I
CERTAIN DEFINITIONS
ARTICLE II
ISSUE OF WARRANTS
Section 2.1. FORM OF WARRANT CERTIFICATES...............................................................7
Section 2.2. RESTRICTIVE LEGENDS.......................................................................10
Section 2.3. EXECUTION AND DELIVERY OF WARRANT CERTIFICATES............................................13
Section 2.4. CERTIFICATED WARRANTS.....................................................................13
ARTICLE III
EXERCISE PRICE, EXERCISE AND REPURCHASE OF WARRANTS
Section 3.1. EXERCISE PRICE............................................................................13
Section 3.2. EXERCISE; RESTRICTIONS ON EXERCISE........................................................14
Section 3.3. METHOD OF EXERCISE; PAYMENT OF EXERCISE PRICE.............................................14
Section 3.4. REPURCHASE OFFERS.........................................................................16
Section 3.5. REDEMPTION PRIOR TO THE EXPIRATION DATE...................................................19
ARTICLE IV
ADJUSTMENTS
Section 4.1. ADJUSTMENTS...............................................................................20
Section 4.2. NOTICE OF ADJUSTMENT......................................................................29
Section 4.3. STATEMENT ON WARRANTS.....................................................................29
Section 4.4. NOTICE OF CONSOLIDATION, MERGER, ETC......................................................29
Section 4.5. FRACTIONAL INTERESTS......................................................................30
Section 4.6. WHEN ISSUANCE OR PAYMENT MAY BE DEFERRED..................................................30
Section 4.7. PAR VALUE; VALID ISSUANCE..................................................................30
Section 4.8. INITIAL PUBLIC OFFERING...................................................................30
ii
ARTICLE V
DECREASE IN EXERCISE PRICE
ARTICLE VI
LOSS OR MUTILATION
ARTICLE VII
RESERVATION AND AUTHORIZATION
OF COMMON SHARES
ARTICLE VIII
WARRANT TRANSFER BOOKS; RESTRICTIONS ON TRANSFER
Section 8.1. TRANSFER AND EXCHANGE.....................................................................32
Section 8.2. BOOK-ENTRY PROVISIONS FOR THE GLOBAL WARRANTS.............................................33
Section 8.3. SPECIAL TRANSFER PROVISIONS...............................................................35
Section 8.4. SURRENDER OF WARRANT CERTIFICATES.........................................................38
ARTICLE IX
WARRANT HOLDERS
Section 9.1. WARRANT HOLDER DEEMED NOT A SHAREHOLDER...................................................38
Section 9.2. RIGHT OF ACTION...........................................................................39
ARTICLE X
REMEDIES
Section 10.1. DEFAULTS.................................................................................39
Section 10.2. Omitted..................................................................................39
Section 10.3. REMEDIES; NO WAIVER......................................................................39
iii
ARTICLE XI
THE WARRANT AGENT
Section 11.1. DUTIES AND LIABILITIES...................................................................40
Section 11.2. RIGHT TO CONSULT COUNSEL.................................................................41
Section 11.3. COMPENSATION; INDEMNIFICATION............................................................41
Section 11.4. NO RESTRICTIONS ON ACTIONS...............................................................41
Section 11.5. DISCHARGE OR REMOVAL; REPLACEMENT WARRANT AGENT..........................................42
Section 11.6. SUCCESSOR WARRANT AGENT..................................................................43
ARTICLE XII
MISCELLANEOUS
Section 12.1. MONIES DEPOSITED WITH THE WARRANT AGENT..................................................43
Section 12.2. PAYMENT OF TAXES.........................................................................43
Section 12.3. NO MERGER, CONSOLIDATION OR SALE OF ASSETS OF THE COMPANY................................44
Section 12.4. REPORTS TO HOLDERS.......................................................................44
Section 12.5. NOTICES; PAYMENT.........................................................................45
Section 12.6. BINDING EFFECT...........................................................................46
Section 12.7. COUNTERPARTS.............................................................................46
Section 12.8. AMENDMENTS...............................................................................46
Section 12.9. HEADINGS.................................................................................46
Section 12.10. COMMON SHARES LEGEND....................................................................46
Section 12.11. THIRD PARTY BENEFICIARIES...............................................................48
Section 12.12. TERMINATION.............................................................................49
SECTION 12.13. METHOD OF PAYMENT.......................................................................49
Section 12.13. AGENT FOR SERVICE; SUBMISSION TO JURISDICTION; WAIVER OF IMMUNITIES;
GOVERNING LAW...................................................................................49
iv
EXHIBIT A FORM OF EURO WARRANT CERTIFICATE
EXHIBIT B-1 FORM OF CERTIFICATE TO BE DELIVERED BY TRANSFERORS
IN CONNECTION WITH TRANSFERS PURSUANT TO
REGULATION S
EXHIBIT B-2 FORM OF CERTIFICATE TO BE DELIVERED BY TRANSFEREES
IN CONNECTION WITH TRANSFERS PURSUANT TO
REGULATION S
EXHIBIT C-1 FORM OF CERTIFICATE TO BE DELIVERED BY TRANSFERORS
IN CONNECTION WITH TRANSFERS TO INSTITUTIONAL
ACCREDITED INVESTORS
EXHIBIT C-2 FORM OF CERTIFICATE TO BE DELIVERED BY TRANSFEREES
IN CONNECTION WITH TRANSFERS TO INSTITUTIONAL
ACCREDITED INVESTORS
APPENDIX A LIST OF FINANCIAL EXPERTS
DOLLAR WARRANT AGREEMENT
DOLLAR WARRANT AGREEMENT, dated as of February 19, 1999 (this
"AGREEMENT"), between CARRIER1 INTERNATIONAL S.A., a societe anonyme organized
under the laws of the Grand Duchy of Luxembourg (the "COMPANY"), and The Chase
Manhattan Bank (the "WARRANT AGENT").
W I T N E S S E T H:
WHEREAS, pursuant to the terms of a Placement Agreement dated February
12, 1999 (the "PLACEMENT AGREEMENT"), among the Company, Xxxxxx Xxxxxxx & Co.
Incorporated, Xxxxxxx Xxxxx Barney Inc., Warburg Dillon Read LLC and Bear,
Xxxxxxx & Co. Inc., as placement agents (collectively, the "PLACEMENT AGENTS"),
the Company has agreed to issue and sell to the Placement Agents (i) an
aggregate of 160,000 Dollar warrants (each, a "WARRANT" and collectively, the
"WARRANTS"), each Warrant initially entitling the holder thereof to purchase
6.71013 shares of Common Stock (as defined below) at a per share exercise price
equal to the greater of $2.00 and the minimum par value required by Luxembourg
law (excluding any Luxembourg capital duty which is payable by the Company) as
part of 160,000 Dollar Units (the "DOLLAR UNITS"), each Dollar Unit consisting
of one 13 1/4% Senior Dollar Note due 2009 of the Company (each, a "DOLLAR Note"
and collectively, the "DOLLAR NOTES") to be issued pursuant to the provisions of
an Indenture, dated as of the date hereof, between the Company and The Chase
Manhattan Bank (the "DOLLAR NOTES INDENTURE"), and one Warrant and (ii) an
aggregate of 85,000 Euro warrants (each a "EURO WARRANT") issued pursuant to the
Euro Warrant Agreement (as defined below), each Euro Warrant initially entitling
the holder thereof to purchase 7.53614 shares of Common Stock at a per share
exercise price equal to the greater of $2.00 and the minimum par value required
by Luxembourg law (excluding any Luxembourg capital duty which is payable by the
Company), as part of 85,000 Units (the "EURO UNITS"), each consisting of one 13
1/4% Senior Euro Note due 2009 (a "EURO NOTE") to be issued pursuant to the
terms of an Indenture, dated as of the date hereof, between the Company and The
Chase Manhattan Bank (the "EURO NOTES INDENTURE"), and one Euro Warrant;
WHEREAS, the Dollar Notes and the Warrants included in each Dollar
Unit will become separately transferable at the close of business upon the
earliest to occur of (i) the date that is six months after the Closing Date (as
defined below), (ii) the commencement of an exchange offer with respect to the
Dollar Notes undertaken pursuant to the Notes Registration Rights Agreement (as
defined below), (iii) the effectiveness of a shelf registration statement with
respect to resales of the Dollar Notes and (iv) such date as determined by
Xxxxxx Xxxxxxx & Co. Incorporated in its sole discretion (the "SEPARATION
DATE"); and
WHEREAS, the Company desires to engage the Warrant Agent to act on the
Company's behalf, and the Warrant Agent desires to act on behalf of the Company,
in
connection with the issuance of the Warrant Certificates (as defined below) and
the other matters as provided herein, including, without limitation, for the
purpose of defining the terms and provisions of the Warrants and the respective
rights and obligations thereunder of the Company and the record holders thereof
(together with the holders of shares of Common Stock (or other securities)
received upon exercise thereof, the "HOLDERS").
NOW, THEREFORE, in consideration of the foregoing and of the mutual
agreements contained herein and in the Placement Agreement, the Company and the
Warrant Agent hereby agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
"Affiliate" means, as applied to any Person, any other Person directly
or indirectly controlling, controlled by, or under direct or indirect common
control with, such Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as applied to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise.
"Agent Members" has the meaning specified in Section 8.2 hereof.
"Auditors" means, at any time, the independent auditors of the Company
at such time.
"Beneficial Investor" means industry experts or other individuals
whose affiliation with the Company should, in the good faith judgment of the
Board, provide the Company with a strategic advantage.
"Board" means the board of directors of the Company from time to time.
"Business Day" means a day except a Saturday, Sunday or other day on
which commercial banks in The City of New York, or in the city of the corporate
trust office of the Warrant Agent, are authorized by law to close.
"Certificate for Surrender" means the form on the reverse side of the
Warrant Certificate substantially in the form of Exhibit A hereto.
"Certificated Warrants" has the meaning specified in Section 2.1
hereof.
2
"Closing Date" means the date hereof.
"Commission" means the United States Securities and Exchange
Commission.
"Common Shares" means the shares of the Common Stock of the Company.
"Common Stock" means the voting Common Stock, par value $2.00 per
share of the Company, and any other capital stock of the Company into which such
Common Stock may be converted or reclassified or that may be issued in respect
of, in exchange for or in substitution of such Common Stock by reason of any
stock splits, stock dividends, distributions, mergers, consolidations or other
like events.
"Company" means Carrier1 International S.A. and its successors under
this Agreement.
"Current Market Value" has the meaning specified in Section 4.1(f)
hereof.
"Default" has the meaning specified in Section 10.1 hereof.
"Depositary" means The Depository Trust Company, its nominees and
their respective successors.
"Dollar Units" has the meaning provided in the recitals to this
Agreement.
"Dollar Notes" has the meaning provided in the recitals to this
Agreement.
"Dollar Notes Indenture" has the meaning provided in the recitals to
this Agreement.
"Euro Note" has the meaning provided in the recitals to this
Agreement.
"Euro Notes Indenture" has the meaning provided in the recitals to
this Agreement.
"Euro Units" has the meaning provided in the recitals to this
Agreement.
"Euro Warrant" has the meaning provided in the recitals to this
Agreement.
"Euro Warrant Agreement" means the Warrant Agreement dated as of the
Closing Date between the Company and The Chase Manhattan Bank, warrant agent,
relating to the Euro Warrants, as such agreement may be amended or modified from
time to time.
3
"Exchange Act" means the United States Securities Exchange Act of
1934, as amended.
"Exchange Offer" has the meaning specified in Section 12.4 hereof.
"Exercise Price" has the meaning specified in Section 3.1 hereof.
"Existing Equity Agreements" means the arrangements described in the
Offering Memorandum, dated February 12, 1999 relating to the Dollar Units and
the Euro Units, under the caption "Certain Relationships and Related
Transactions -- Equity Investor Agreements --Securities Purchase and
Cancellation Agreement," "--1999 Share Option Plan" and "--Securities Purchase
Agreement" and in footnote (4) to the second table set forth under the caption
"Principal Security Holders."
"Expiration Date" means February 19, 2009.
"Final Surrender Time" has the meaning specified in Section 3.4
hereof.
"Financial Expert" means one of the Persons listed in Appendix A
hereto.
"Global Warrants" has the meaning specified in Section 2.1 hereof.
"Holders" has the meaning specified in the recitals to this Agreement.
"IAI Certificated Warrants" has the meaning provided in Section 2.1.
"Independent Financial Expert" means a Financial Expert that does not
(and whose directors, executive officers and 5% stockholders do not) have a
direct or indirect financial interest in the Company or any of its subsidiaries
or affiliates, which has not been for at least five years and, at the time that
it is called upon to give independent financial advice to the Company, is not
(and none of its directors, executive officers or 5% stockholders is) a
promoter, director or officer of the Company or any of its subsidiaries or
affiliates. The Independent Financial Expert may be compensated and indemnified
by the Company for opinions and services it provides as an Independent Financial
Expert. No Financial Expert shall be deemed not to be an Independent Financial
Expert solely by reason of its having made one or more valuations hereunder, or
under the Euro Warrant Agreement.
"Institutional Accredited Investor" shall mean an institution that is
an "accredited investor" as that term is defined in Rule 501(a)(1), (2), (3) or
(7) of Regulation D under the Securities Act.
"LLC" means Carrier1 L.L.C. and its successors.
4
"Management Investor" means any officer, director, employee or
other member of the management of the Company or any of its Subsidiaries, or
family members or relatives thereof, or trusts or partnerships for the
benefit of any of the foregoing, or any of their heirs, executors, successors
and legal representatives.
"Non-U.S. Person" means a person who is not a U.S. person as
defined in Rule 902 of Regulation S.
"Notes Registration Rights Agreement" means the Registration Rights
Agreement with respect to the Dollar Notes and the Euro Notes dated February 12,
1999 between the Company and the Placement Agents.
"Notice Date" has the meaning specified in Section 3.4 hereof.
"Officer" means, with respect to the Company, (i) any member of the
Board of the Company, or the Chairman, the President, the Chief Executive
Officer, any Vice President, the Chief Operating Officer or the Chief Financial
Officer of the Company, any officer of a Restricted Subsidiary designated by the
Board to act as such officer of the Company or any other person duly authorized
and empowered by the Board to execute for and on behalf and in the name of the
Company (any officer or other person described in this clause (i), a "Senior
Officer") and (ii) the Treasurer, Assistant Treasurer, the Secretary or an
Assistant Secretary of the Company or any officer of a Restricted Subsidiary
designated by the Board to act as such officer of the Company.
"Officers' Certificate" means a certificate signed by one Senior
Officer and one other Officer or by two Senior Officers.
"Offshore Certificated Warrants " has the meaning provided in Section
2.1.
"Opinion of Counsel" means a written opinion signed by legal counsel
who may be an employee of or counsel to the Company or Carrier1 International
GmbH.
"Parent Entity" means any Person of which the Company is a direct or
indirect subsidiary.
"Person" means an individual, general partnership, limited
partnership, corporation, trust, joint stock company, association, joint venture
or any other entity or organization, whether or not legal entities, including,
without limitation, a government or political subdivision or an agency or
instrumentality thereof.
"Placement Agreement" has the meaning specified in the recitals to
this Agreement.
5
"Private Placement Legend" means the legend set forth on the Warrant
Certificates in the form set forth in Section 2.2(a), and, in the case of
Warrants transferred pursuant to Regulation S prior to February 19, 2000,
Section 2.2(b).
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Reference Security" has the meaning specified in Section 4.1(l)(iv)
hereof.
"Registration" means the date of the commencement of an exchange offer
for, or the effectiveness of a shelf registration statement with respect to, the
Dollar Notes.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Global Warrant" has the meaning specified in Section 2.1
hereof.
"Relevant Value" means the value of the Warrants as set forth in the
Value Report in accordance with Section 3.4(d) hereof.
"Repurchase Event" means, and shall be deemed to occur on, any date
when the Company (i) consolidates with or merges into or with another person
(but only where the holders of Common Stock receive consideration in exchange
for all or part of such Common Stock), if the Common Stock (or other securities)
thereafter purchasable upon exercise of the Warrants is not registered under the
Exchange Act or (ii) sells all or substantially all of its assets to another
person, if the Common Stock (or other securities) thereafter purchasable upon
exercise of the Warrants is not registered under the Exchange Act; PROVIDED that
in each case a "Repurchase Event" shall not be deemed to have occurred if the
consideration for such transaction consists solely of cash.
"Repurchase Notice" has the meaning specified in Section 3.4(a)
hereof.
"Repurchase Offer" means the Company's offer to repurchase the
Warrants in accordance with Section 3.4 hereof.
"Repurchase Price" means the amount of cash payable in respect of the
Warrants surrendered pursuant to a Repurchase Offer determined in accordance
with Section 3.4(d) hereof.
"Restricted Certificated Warrants" has the meaning specified in
Section 2.1 hereof.
"Restricted Global Warrant" has the meaning specified in Section 2.1
hereof.
"Right" has the meaning specified in Section 4.1(c) hereof.
6
"Rule 144A" means Rule 144A under the Securities Act.
"Securities Act" means the United States Securities Act of 1933, as
amended.
"Separation Date" has the meaning specified in the recitals to this
Agreement.
"Subscription Form" means the form on the reverse side of the Warrant
Certificate substantially in the form of Exhibit A hereto.
"Underlying Securities" shall mean the Common Shares (or other
securities) purchasable upon exercise of the Warrants.
"Units" has the meaning specified in the recitals to this Agreement.
"Valuation Date" means the date five Business Days prior to the Notice
Date.
"Value Certificate" has the meaning specified in Section 3.4 hereof.
"Value Report" has the meaning specified in Section 4.1(k) hereof.
"Warrant" has the meaning specified in the recitals to this Agreement.
"Warrant Agent" has the meaning specified in the preamble to this
Agreement.
"Warrant Certificates" has the meaning specified in Section 2.1
hereof.
"Warrant Registration Rights Agreement" means the Warrant Registration
Rights Agreement relating to the Warrants and the Euro Warrants, dated February
12, 1999, between the Company and the Warrant Agent.
"Warrant Registration Statement" has the meaning specified in Section
3 of the Warrant Registration Rights Agreement.
ARTICLE II
ISSUE OF WARRANTS
SECTION 2.1. FORM OF WARRANT CERTIFICATES. Certificates representing
the Warrants (the "WARRANT CERTIFICATES") shall be substantially in the form
attached hereto as Exhibit A, shall be dated the date on which such Warrant
Certificates are countersigned by the Warrant Agent and shall have such
insertions as are appropriate or required or permitted by this Agreement and may
have such letters, numbers or other marks of identification and such
7
legends and endorsements stamped, printed, lithographed or engraved thereon as
the Company may deem appropriate and as are not inconsistent with the provisions
of this Agreement, or as may be required to comply with any law or with any rule
or regulation pursuant thereto or with any rule or regulation of any securities
exchange on which the Warrants may be listed or any depositary, or to conform to
custom or usage.
Warrants offered and sold in reliance on Rule 144A shall be issued
initially in the form of one or more global Warrant Certificates in definitive,
fully registered form, substantially in the form set forth in Exhibit A
(collectively, the "RESTRICTED GLOBAL WARRANTS") deposited with the Warrant
Agent, as custodian for, and registered in the name of the nominee for, the
Depositary, duly executed by the Company and countersigned by the Warrant Agent
as hereinafter provided. The aggregate number of Warrants represented by the
Restricted Global Warrants may from time to time be increased or decreased by
adjustments made on the records of the Warrant Agent, as custodian for the
Depositary, or its nominee, as provided in Section 2.4 and Section 8.3 hereof.
Warrants offered and sold in offshore transactions in reliance on
Regulation S (a) prior to February 19, 2000 shall be in the form of permanent
certificated Warrants in registered form substantially in the form set forth in
Exhibit A (the "OFFSHORE CERTIFICATED WARRANTS") and (b) following February 19,
2000, may be in the form of one or more permanent global Warrant Certificates in
definitive, fully registered form, substantially in the form set forth in
Exhibit A (the "REGULATION S GLOBAL WARRANT" and, together with the Restricted
Global Warrants, the "GLOBAL WARRANTS"), deposited with the Warrant Agent, as
custodian for, and registered in the name of, the Depositary or its nominee,
duly executed by the Company and countersigned by the Warrant Agent as
hereinafter provided. The aggregate number of Warrants represented by the
Regulation S Global Warrants may from time to time be increased or decreased by
adjustments made on the records of the Warrant Agent, as custodian for the
Depositary, or its nominee, in accordance with instructions given by the Holder
thereof.
Warrants transferred to Institutional Accredited Investors who are not
QIBs shall be issued in registered form substantially in the form set forth in
Exhibit A ("IAI CERTIFICATED WARRANTS").
Warrants issued pursuant to Section 2.4 and Section 8.2(b) in exchange
for interests in the Regulation S Global Warrant shall be issued in the form of
Offshore Certificated Warrants.
Warrants issued pursuant to Section 2.4 and Section 8.2(b) in exchange
for interests in the Restricted Global Warrants shall be issued in the form of
permanent Warrant Certificates in registered form, substantially in the form set
forth in Exhibit A (the "RESTRICTED CERTIFICATED WARRANTS" and, together with
the Offshore Certificated Warrants and the IAI Certificated Warrants, the
"CERTIFICATED WARRANTS").
8
The definitive Warrant Certificates shall be typed, printed,
lithographed or engraved or produced by any combination of these methods or may
be produced in any other manner permitted by the rules of any securities
exchange on which the Warrants may be listed, all as determined by the Officer
or Officers executing such Warrant Certificates, as evidenced by the execution
of such Warrant Certificates.
9
SECTION 2.2. RESTRICTIVE LEGENDS. (a) The Warrant Certificates shall
bear the following legend on the face thereof:
THE WARRANTS REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED
STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS
SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE
HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER"
(AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1),
(2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT) (AN
"INSTITUTIONAL ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON
AND IS ACQUIRING THESE WARRANTS IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, (2) AGREES THAT
IT WILL NOT, WITHIN THE TIME PERIOD REFERRED TO UNDER RULE 144(k)
UNDER THE SECURITIES ACT AS IN EFFECT ON THE DATE OF SUCH TRANSFER,
RESELL OR OTHERWISE TRANSFER THESE WARRANTS EXCEPT (A) TO THE COMPANY
OR ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN
COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE THE
UNITED STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO
SUCH TRANSFER, FURNISHES TO THE WARRANT AGENT A SIGNED LETTER
CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THESE WARRANTS (THE FORM OF WHICH LETTER
CAN BE OBTAINED FROM THE WARRANT AGENT) AND AN OPINION OF COUNSEL
ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE
SECURITIES ACT, (D) TO A PERSON OUTSIDE THE UNITED STATES IN AN
OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE
SECURITIES ACT THAT, FOR ANY TRANSFER PRIOR TO FEBRUARY 19, 2000,
FURNISHES TO THE WARRANT AGENT, PRIOR TO SUCH TRANSFER, A SIGNED
LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO
THE RESTRICTIONS ON TRANSFER OF THESE WARRANTS (THE FORM OF WHICH
LETTER CAN BE OBTAINED FROM THE WARRANT AGENT), (E) PURSUANT TO THE
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES
ACT (IF AVAILABLE) OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES
10
ACT AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THESE
WARRANTS ARE TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND. IN CONNECTION WITH ANY TRANSFER OF THESE WARRANTS WITHIN THE
TIME PERIOD REFERRED TO ABOVE, THE HOLDER MUST CHECK THE APPROPRIATE
BOX SET FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH
TRANSFER AND SUBMIT THIS CERTIFICATE TO THE WARRANT AGENT. IF THE
PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR, THE
HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE WARRANT AGENT AND
THE COMPANY SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION
AS EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER
IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS
USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND
"U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER
THE SECURITIES ACT. THE WARRANT AGREEMENT CONTAINS A PROVISION
REQUIRING THE WARRANT AGENT TO REFUSE TO REGISTER ANY TRANSFER OF
THESE WARRANTS IN VIOLATION OF THE FOREGOING RESTRICTIONS.
(b) Each Warrant transferred pursuant to Regulation S prior to
February 19, 2000 shall also bear the following legend on the face thereof:
HEDGING TRANSACTIONS INVOLVING THESE WARRANTS MAY NOT BE CONDUCTED
UNLESS IN COMPLIANCE WITH THE SECURITIES ACT.
THE COMMON SHARES PURCHASABLE UPON EXERCISE OF THESE WARRANTS HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT AND THESE WARRANTS MAY NOT BE
EXERCISED BY OR ON BEHALF OF ANY U.S. PERSON EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
(c) Each Global Warrant shall also bear the following legend on the
face thereof:
11
UNLESS THIS WARRANT CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR THE
WARRANT AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR
TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF
PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN
ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE VIII OF THE
WARRANT AGREEMENT.
(d) Each Warrant Certificate issued prior to the Separation
Date shall bear the following legend on the face thereof:
THE WARRANTS EVIDENCED BY THIS CERTIFICATE ARE INITIALLY ISSUED AS
PART OF AN ISSUANCE OF UNITS, EACH OF WHICH CONSISTS OF ONE 13 1/4%
SENIOR DOLLAR NOTE DUE 2009 OF THE COMPANY (THE "NOTES") AND ONE
WARRANT INITIALLY ENTITLING THE HOLDER THEREOF TO PURCHASE 6.71013
COMMON SHARES, PAR VALUE $2.00, OF THE COMPANY. PRIOR TO THE CLOSE OF
BUSINESS UPON THE EARLIEST TO OCCUR OF (i) AUGUST 19, 1999, (ii) THE
COMMENCEMENT OF AN EXCHANGE OFFER WITH RESPECT TO THE DOLLAR NOTES,
(iii) THE EFFECTIVENESS OF A SHELF REGISTRATION STATEMENT WITH RESPECT
TO THE DOLLAR NOTES AND (vi) SUCH DATE AS DETERMINED BY XXXXXX XXXXXXX
& CO. INCORPORATED IN ITS SOLE DISCRETION. THE WARRANTS EVIDENCED BY
THIS CERTIFICATE MAY NOT BE TRANSFERRED OR EXCHANGED SEPARATELY FROM,
BUT MAY BE TRANSFERRED OR EXCHANGED ONLY TOGETHER WITH, THE DOLLAR
NOTES.
12
THE TRANSFER RESTRICTIONS APPLICABLE TO THIS WARRANT ARE ALSO
APPLICABLE TO THE UNIT OF WHICH THIS WARRANT IS A PART.
SECTION 2.3. EXECUTION AND DELIVERY OF WARRANT CERTIFICATES. Warrant
Certificates evidencing 160,000 Warrants, each Warrant to purchase initially
6.71013 Common Shares, may be executed, on or after the date of this Agreement,
by the Company and delivered to the Warrant Agent for countersignature, and the
Warrant Agent shall thereupon countersign and deliver such Warrant Certificates
upon the order and at the written direction of the Company signed by one or more
Senior Officers to the purchasers thereof on the date of issuance. The Warrant
Agent is hereby authorized to countersign and deliver Warrant Certificates as
required by this Section 2.3 or by Section 3.3, Article VI or Article VIII
hereof.
The Warrant Certificates shall be executed on behalf of the Company by
one or more Senior Officers of the Company either manually or by facsimile
signature printed thereon. The Warrant Certificates shall be countersigned by
manual signature of the Warrant Agent and shall not be valid for any purpose
unless so countersigned. In case any Senior Officer of the Company whose
signature shall have been placed upon any of the Warrant Certificates shall
cease to be such Senior Officer of the Company before countersignature by the
Warrant Agent and the issuance and delivery thereof, such Warrant Certificates
may nevertheless be countersigned by the Warrant Agent and issued and delivered
with the same force and effect as though such person had not ceased to be such
Senior Officer of the Company.
SECTION 2.4. CERTIFICATED WARRANTS. Beneficial owners of interests in
Global Warrants shall receive Certificated Warrants (which, except as set forth
in Section 8.3(d), shall bear the Private Placement Legend) in accordance with
the procedures of the Warrant Agent and the Depositary, as and when permitted by
Article VIII hereof. In connection with the execution and delivery of such
Certificated Warrants, the Warrant Agent shall reflect on its books and records
the date and a decrease in the number of Warrants represented by the Global
Warrant equal to the number of such Certificated Warrants and the Company shall
execute and the Warrant Agent shall countersign and deliver to said beneficial
owners one or more Certificated Warrants in an equal aggregate number.
ARTICLE III
EXERCISE PRICE, EXERCISE AND REPURCHASE OF WARRANTS
SECTION 3.1. EXERCISE PRICE. Each Warrant Certificate shall, when
countersigned by the Warrant Agent, initially entitle the Holder thereof,
subject to the provisions of this Agreement, to purchase the number of Common
Shares indicated thereon at
13
a per share purchase price (the "EXERCISE PRICE") equal to the greater of $2.00
and the minimum par value required by Luxembourg law (excluding any Luxembourg
capital duty which is payable by the Company), subject to adjustment as provided
in Section 4.1 and Article V hereof.
SECTION 3.2. EXERCISE; RESTRICTIONS ON EXERCISE. At any time after one
year after the Closing Date and on or before the Expiration Date (unless
redeemed pursuant to Section 3.5), any outstanding Warrants may be exercised on
any Business Day; PROVIDED that the Warrants will become exercisable in
connection with the initial public offering of equity securities of the Company,
effective upon the consummation of such offering (or, in the case of any
Warrants as to which the Holders thereof have exercised piggyback registration
rights for such offering pursuant to Section 2 of the Warrants Registration
Rights Agreement, effective at such earlier time as may be necessary to permit
such exercise of such rights), and PROVIDED FURTHER that the Warrant
Registration Statement is, at the time of exercise, effective and available for
the exercise of the Warrants or the exercise of such Warrants is exempt from the
registration requirements of the Securities Act, as reasonably determined by the
Company, and such securities are qualified for sale or exempt from qualification
under the applicable securities laws of the states or other jurisdictions in
which the various Holders reside. Any Warrants not exercised by 5:00 p.m., New
York City time, on the Expiration Date shall expire and all rights of the
Holders of such Warrants shall terminate. Additionally, pursuant to Section
4.1(j)(ii) hereof, the Warrants shall expire and all rights of the Holders of
such Warrants shall terminate in the event the Company merges or consolidates
with or sells all or substantially all of its property and assets to a Person
(other than an Affiliate of the Company) if the consideration payable to holders
of Common Stock in exchange for their Common Stock in connection with such
merger, consolidation or sale consists solely of cash or in the event of the
dissolution, liquidation or winding up of the Company.
SECTION 3.3. METHOD OF EXERCISE; PAYMENT OF EXERCISE PRICE. In order
to exercise all or any of the Warrants represented by a Warrant Certificate, the
Holder thereof must surrender for exercise the Warrant Certificate to the
Warrant Agent at its corporate trust office address set forth in Section 12.5
hereof, with the Subscription Form set forth on the reverse of the Warrant
Certificate duly executed, together with payment in full of the Exercise Price
then in effect for each Common Share (or other securities) purchasable upon
exercise of the Warrants as to which a Warrant is exercised; such payment may be
made in cash or by certified or official bank or bank cashier's check payable to
the order of the Company and shall be made to the Warrant Agent at its corporate
trust office address set forth in Section 12.5 hereof prior to the close of
business on the date the Warrant Certificate is surrendered to the Warrant Agent
for exercise. All payments received upon exercise of Warrants shall be delivered
to the Company by the Warrant Agent as instructed in writing by the Company. The
Warrant Agent shall transmit the entire amount that it has received, without any
deduction of any deduction of any wire, cable, service or other charges.
14
In connection with any exercise of Warrants represented by the
Regulation S Global Warrants or Offshore Certificated Warrants, the Holder
thereof shall be required to provide written certification to the Warrant Agent
that (i)(x) it is not a U.S. person and the Warrant is not being exercised on
behalf of a U.S. person or (y) a written opinion of counsel to the effect that
the Warrant and the Common Stock issuable upon exercise thereof have been
registered under the Securities Act or are exempt from registration thereunder
and (ii) if an opinion of counsel is not being furnished, that the Holder
exercising the Warrant is located outside the United States at the time of
exercise thereof.
If less than all the Warrants represented by a Warrant Certificate are
exercised, such Warrant Certificate shall be surrendered and a new Warrant
Certificate of the same tenor and for the number of Warrants which were not
exercised shall be executed by the Company and delivered to the Warrant Agent
and the Warrant Agent shall countersign the new Warrant Certificate, registered
in such name or names as may be directed in writing by the Holder, and shall
deliver the new Warrant Certificate to the Person or Persons entitled to receive
the same; PROVIDED that such Holder (x) shall be responsible for the payment of
any transfer taxes required as a result of any change in ownership of such
Warrants and (y) must comply with Article VIII, and any other provision of this
Agreement relating to transfer, with respect to any such requested registration
or delivery involving such a change in ownership. Upon the exercise of any
Warrants following the surrender of a Warrant Certificate in conformity with the
foregoing provisions, the Warrant Agent shall instruct the Company to transfer
promptly to the Holder or, upon the written order of the Holder of such Warrant
Certificate, appropriate evidence of ownership of any Common Shares or other
security or property to which it is entitled, registered or otherwise placed in
such name or names as may be directed in writing by the Holder, and to deliver
such evidence of ownership to the Person or Persons entitled to receive the same
and fractional shares, if any, or an amount in cash, in lieu of any fractional
shares, as provided in Section 4.5 hereof; PROVIDED that the Holder of such
Warrant (x) shall be responsible for the payment of any transfer taxes required
as the result of any change in ownership of such Warrants or the issuance of
such Common Shares other than to the Holder of such Warrants and (y) must comply
with Article VIII, and any other provision of this Agreement relating to
transfer, with respect to any such requested registration or delivery involving
such a change in ownership.
Upon the exercise of a Warrant or Warrants, the Company shall as
promptly as practicable but not later than 14 Business Days after such exercise
enter, or cause any transfer agent of the Common Shares to enter, the name of
the person entitled to receive the Common Shares upon exercise of such Warrants
into the Company's register of shareholders. Thereupon, the Company or the
applicable transfer agent shall issue certificates (bearing the legend set forth
in Section 12.10 hereof, if applicable, unless a registration statement with the
Commission relating to such Common Shares shall then be in effect or the Company
and the Holder exercising such Warrants otherwise agree) for the necessary
number of Common Shares to which said Holder is entitled and deliver such
certificate to the Warrant Agent who in turn will deliver it to the Person
entitled to receive the Common Shares.
15
A Warrant shall be deemed by the Company to be exercised immediately
prior to the close of business on the date of surrender for exercise, as
provided above, of the Warrant Certificate representing such Warrant and, for
all purposes under this Agreement, the Person entitled to receive any Common
Shares upon such exercise shall receive the Common Shares such person would have
been entitled to had it been the registered holder on such date, except for
purposes of transferring the Common Shares or voting in a general shareholders'
meeting, such Person shall, in its relation with the Company, be deemed to be
the holder thereof only when such Common Shares are entered in the register of
shareholders in the name of such person; PROVIDED, HOWEVER, that, with respect
to Warrants which have been exercised but for which the corresponding Warrant
Shares have not been recorded in the register of shareholders, the provisions of
Article IV shall continue to apply as if the number of Warrants held prior to
exercise remained outstanding on the date of any action or event of the type
giving rise to an adjustment under Article IV.
SECTION 3.4. REPURCHASE OFFERS. (a) NOTICE OF REPURCHASE EVENT. Within
five Business Days following the occurrence of a Repurchase Event, the Company
shall give notice (a "REPURCHASE NOTICE") to the Holders of the Warrants and the
Warrant Agent that such event has occurred.
(b) REPURCHASE OFFERS GENERALLY. Following the occurrence of a
Repurchase Event, the Company shall make (or shall cause an Affiliate to make)
an offer to repurchase for cash all outstanding Warrants pursuant to the
provisions of this Section 3.4 (a "REPURCHASE OFFER"). The Company shall give
notice of a Repurchase Offer in accordance with Section 3.4(f) hereof. Each date
on which the Company gives any such notice is referred to as the "NOTICE DATE."
The Repurchase Offer shall commence on the Notice Date for such Repurchase Offer
and shall expire at 5:00 p.m., New York City time, on a date determined by the
Company (the "FINAL SURRENDER TIME") that is at least 30 but not more than 60
days after the Notice Date. Once a Repurchase Event has occurred, there is no
limit on the number of Repurchase Offers that the Company may make.
(c) REPURCHASE OFFERS. (i) In any Repurchase Offer, the Company (or
such affiliate) shall offer to purchase for cash at the Repurchase Price all
Warrants outstanding on the Notice Date for such Repurchase Offer that are
properly tendered to the Warrant Agent on or prior to the Final Surrender Time
for such Repurchase Offer.
(ii) Each Holder may, but shall not be obligated to, accept such
Repurchase Offer by tendering to the Warrant Agent, on or prior to the Final
Surrender Time for such Repurchase Offer, the Warrant Certificates evidencing
the Warrants such Holder desires to have repurchased in such offer, together
with a completed Certificate for Surrender in substantially the form attached to
the Warrant Certificate. A Holder may withdraw all or a portion of the Warrants
tendered to the Warrant Agent at any time prior to the Final Surrender Time for
such Repurchase Offer. If less than all the Warrants represented by a Warrant
Certificate shall be tendered, such Warrant Certificate shall be surrendered and
a new Warrant
16
Certificate of the same tenor and for the number of Warrants which shall not be
tendered shall be executed by the Company and delivered to the Warrant Agent and
the Warrant Agent shall countersign the new Warrant Certificate, registered in
such name or names as may be directed in writing by the Holder, and shall
deliver the new Warrant Certificate to the Person or Persons entitled to receive
the same; PROVIDED that (x) the Holder of such Warrants shall be responsible for
the payment of any transfer taxes required as the result of any change in
ownership of such Warrants and (y) must comply with Article VIII, and any other
provision of this Agreement relating to transfer, with respect to any such
requested registration or delivery involving such a change in ownership.
(d) REPURCHASE PRICE. (i) The purchase price (the "REPURCHASE PRICE")
for each Warrant properly tendered to the Warrant Agent pursuant to a Repurchase
Offer shall be equal to the value (the "RELEVANT VALUE") on the Valuation Date
of the Common Shares issuable, and other securities or property which would have
been delivered, upon exercise of Warrants had the Warrants then been exercised
(regardless of whether the Warrants are then exercisable), less the Exercise
Price in effect on the Notice Date for such Repurchase Offer.
(ii) The Relevant Value of the Common Shares and other securities or
property purchasable upon exercise of all the Warrants, on any Valuation Date
shall be:
(1) (A) If the Common Shares (or other securities) are
registered under the Exchange Act, deemed to be the average of the
closing sales prices (on the stock exchange that is the primary
trading market for the Common Shares (or other securities)) of the
Common Shares (or other securities) for the 20 consecutive trading
days immediately preceding such Valuation Date or, (B) if the Common
Shares (or other securities) have been registered under the Exchange
Act for less than 20 consecutive trading days before such date, then
the average of the closing sales prices for all of the trading days
before such date for which closing sales prices are available, in the
case of each of (A) and (B), as certified to the Warrant Agent by an
Officer with general responsibility for financial matters (the "VALUE
CERTIFICATE"). The closing sales price for each such trading day shall
be: (A) in the case of a security listed or admitted to trading on any
national securities exchange, the closing sales price on such day, or
if no sale takes place on such day, the average of the closing bid and
asked prices on such day, (B) in the case of a security not then
listed or admitted to trading on any national securities exchange, the
last reported sale price on such day, or if no sale takes place on
such day, the average of the closing bid and asked prices on such day,
as reported by a reputable quotation source designated by the Company,
(C) in the case of a security not then listed or admitted to trading
on any national securities exchange and as to which no such reported
sale price or bid and asked prices are available, the average of the
reported high bid and low asked prices on such day, as reported by a
reputable quotation service, or a newspaper of general circulation in
the Borough of Manhattan, City and State of New York customarily
published on each Business Day, designated by the Company, or, if
there shall be no bid and asked prices on such day,
17
the average of the high bid and low asked prices, as so reported, on
the most recent day (not more than 30 days prior to the date in
question) for which prices have been so reported and (D) if there are
no bid and asked prices reported during the 30 days prior to the date
in question, the Relevant Value shall be determined as if the Common
Shares (or other securities) were not registered under the Exchange
Act; or
(2) If the Common Shares (or other securities) are not
registered under the Exchange Act or if the value cannot be computed
under clause (1) above, deemed to be equal to the value set forth in
the Value Report (as defined below) as determined by an Independent
Financial Expert, which shall be selected by the Board in accordance
with Section 3.4(e) hereof, and retained on customary terms and
conditions, using one or more valuation methods that the Independent
Financial Expert, in its best professional judgment, determines to be
most appropriate but without giving effect to any discount for lack of
liquidity, the fact that the Company has no class of equity securities
registered under the Exchange Act or the fact that the Common Shares
and other securities or property purchasable upon exercise of the
Warrants represent a minority interest in the Company. The Company
shall use its best efforts (including by selecting another Independent
Financial Expert) to cause the Independent Financial Expert to deliver
to the Company, with a copy to the Warrant Agent, within 90 days of the
appointment of the Independent Financial Expert in accordance with
Section 3.4(e) hereof, a value report (the "VALUE REPORT") stating the
Relevant Value of the Common Shares and other securities or property,
if any, being valued as of the Valuation Date and containing a brief
statement as to the nature and scope of the methodologies upon which
the determination of Relevant Value was made. The Warrant Agent shall
have no duty with respect to the Value Report of any Independent
Financial Expert, except to keep it on file and available for
inspection by the Holders. The determination as to Relevant Value in
accordance with the provisions of this Section 3.4(d) shall be
conclusive on all Persons. The Independent Financial Expert shall
consult with management of the Company in order to allow management to
comment on the proposed Relevant Value prior to delivery to the Company
of any Value Report of the Independent Financial Expert.
(e) SELECTION OF INDEPENDENT FINANCIAL EXPERT. If clause
(d)(ii)(2) is applicable, the Board of the Company shall select an Independent
Financial Expert not more than five Business Days following a Repurchase Event.
Within two days after the selection of any Independent Financial Expert, the
Company shall deliver to the Warrant Agent a notice setting forth the name of
such Independent Financial Expert.
(f) NOTICE OF REPURCHASE OFFER. Each notice of a Repurchase Offer (an
"OFFER NOTICE") given by the Company pursuant to Section 3.4(b)(i) shall be
given by the Company directly to all Holders of the Warrants, with a copy to the
Warrant Agent, shall be given simultaneously with the Repurchase Notice (or, in
the event that the Relevant Value of the Common Shares or other securities or
property purchasable upon exercise of all the
18
Warrants cannot be determined pursuant to Section 3.4(d)(ii)(1), then such Offer
Notice shall be given within five Business Days after the Company receives the
Value Report with respect to such offer), but in no event later than 60 days
following the Repurchase Event, and shall specify (A) the Final Surrender Time
for such Repurchase Offer, (B) the manner in which Warrants may be surrendered
to the Warrant Agent for repurchase by the Company, (C) the Repurchase Price at
which the Warrants will be repurchased by the Company, (D) if applicable, the
name of the Independent Financial Expert whose valuation of the Common Shares
and other securities or property was utilized in connection with determining
such Repurchase Price and (E) that payment of the Repurchase Price will be made
by the Warrant Agent. Each such notice shall be accompanied by a Certificate for
Surrender for Repurchase Offer in substantially the form attached to the Warrant
Certificate and a copy of the Value Report, if any.
(g) PAYMENT FOR WARRANTS. Upon surrender for repurchase of any
Warrants in conformity with the provisions of this Section 3.4, the Warrant
Agent shall thereupon promptly notify the Company and any purchasing affiliate
of such surrender. On or before the Final Surrender Time for any Repurchase
Offer, the Company (or such affiliate) shall deposit with the Warrant Agent
funds sufficient to make payment for the Warrants tendered to the Warrant Agent
and not withdrawn. After receipt of such deposit from the Company (or such
affiliate), the Warrant Agent shall make payment, by delivering a check in such
amount as is appropriate, to such Person or Persons as it may be directed in
writing by the Holder surrendering such Warrants, net of any transfer taxes
required to be paid in the event that the check is to be delivered to a Person
other than the Holder.
(h) COMPLIANCE WITH LAWS. Notwithstanding anything contained in this
Section 3.4, if the Company is required to comply with laws or regulations in
connection with making any Repurchase Offer, such laws or regulations shall
govern the making of such Repurchase Offer.
SECTION 3.5. REDEMPTION PRIOR TO THE EXPIRATION DATE. At any time
within ten days of the Expiration Date, the Company may redeem (or cause an
Affiliate of the Company to repurchase) all unexercised Warrants at a redemption
or repurchase price of $0.01 per share. Upon payment of such amount, such
unexercised Warrants shall be deemed to become the property of the Company or
such Affiliate, as the case may be, and may thereafter be exercised by the
Company or such Affiliate as the case may be. At its option, the Company or such
Affiliate may extend the expiration date of any Warrants so purchased.
19
ARTICLE IV
ADJUSTMENTS
SECTION 4.1. ADJUSTMENTS. The Exercise Price and the number of
Common Shares purchasable upon exercise of each Warrant shall be subject to
adjustment from time to time as follows (subject in each case to Section 4.1(l)
hereof):
(a) DIVISIONS; CONSOLIDATIONS; RECLASSIFICATIONS. In case
the Company shall, on or before the Expiration Date, (i) issue any Common Shares
in payment of a dividend or other distribution with respect to its Common
Shares, (ii) subdivide its issued and outstanding Common Shares, (iii)
consolidate its issued and outstanding Common Shares into a smaller number of
shares, or (iv) reclassify or convert the Common Shares (other than a
reclassification in connection with a merger, consolidation or other business
combination which will be governed by Section 4.1(j)), then the number of Common
Shares purchasable upon exercise of each Warrant immediately prior to the record
date for such issue or distribution or the effective date of such subdivision,
consolidation, reclassification or conversion shall be adjusted so that the
Holder of each Warrant shall thereafter be entitled to receive the kind and
number of Common Shares which such Holder would have been entitled to receive
after the happening of any of the events described above had such Warrant been
exercised immediately prior to the happening of such event or any record date
with respect thereto. An adjustment made pursuant to this Section 4.1(a) shall
become effective immediately after the effective date of such event retroactive
to the record date, if any, for such event.
(b) RIGHTS; OPTIONS; WARRANTS. In case the Company shall
issue rights, options, warrants or convertible or exchangeable securities (other
than an issuance of convertible or exchangeable securities subject to Section
4.1(a)) to all holders of its Common Shares, entitling them to subscribe for or
purchase Common Shares at a price per share which is lower (at the record date
for such issuance) than the then Current Market Value per Common Share, then the
Company shall ensure that at the time of such issuance, the same or a like offer
or invitation is made to the Holders of the Warrants as if their Warrants had
been exercised on the day immediately preceding the record date of such offer or
invitation on the terms (subject to any adjustment pursuant to Section 4.1(a)
for a prior event) on which such Warrants could have been exercised on such
date; PROVIDED that if the Board so resolves, the Company shall not be required
to ensure that the same offer or invitation is made to the Holders of the
Warrants, but the number of Common Shares thereafter purchasable upon the
exercise of each Warrant shall instead be adjusted and shall be determined by
multiplying the number of Common Shares theretofore purchasable upon exercise of
each Warrant by a fraction, the numerator of which shall be the sum of (i) the
number of Common Shares outstanding immediately prior to the issuance of such
rights, options, warrants or convertible or exchangeable securities plus (ii)
the number of additional Common Shares which may be purchased or subscribed for
upon exercise, exchange or conversion of such rights, options,
20
warrants or convertible or exchangeable securities and the denominator of which
shall be the sum of (x) the number of Common Shares outstanding immediately
prior to the issuance of such rights, options, warrants or convertible or
exchangeable securities plus (y) the number of shares which the total
consideration received by the Company for such rights, options, warrants or
convertible or exchangeable securities so offered would purchase at the then
Current Market Value per Common Share.
Except as otherwise provided above, such adjustment shall be
made whenever such rights, options, warrants or convertible or exchangeable
securities are issued and shall become effective retroactively immediately after
the record date for the determination of shareholders entitled to receive such
rights, options, warrants or convertible or exchangeable securities.
(c) ISSUANCE OF COMMON SHARES AT LOWER VALUES. In case the
Company shall sell and issue any Common Share or Right (as defined below)
(excluding (i) any Right issued in any of the transactions described in Section
4.1(a) or (b) above, (ii) Common Shares issued pursuant to (x) the Warrants or
any Rights outstanding on the date of this Agreement or any Right issued in any
transaction described in Section 4.1(a) or (b) above and (y) a Right, if on the
date such Right was issued, the exercise, conversion or exchange price per
Common Share with respect thereto was at least equal to the then Current Market
Value per Common Share and (iii) any Common Shares or Right issued as
consideration (A) when any corporation or business is acquired, merged into or
becomes part of the Company or a subsidiary of the Company or (B) in good faith
in connection with any other business collaboration, in each case under this
clause (iii) in an arm's-length transaction between the Company and a Person
other than an Affiliate of the Company) at a price per Common Share (determined
in the case of any such Right, by dividing (x) the total consideration
receivable by the Company in consideration of the sale and issuance of such
Right, plus the total consideration payable to the Company upon exercise,
conversion or exchange thereof, by (y) the total number of Common Shares covered
by such Right) that is lower than the Current Market Value per Common Share in
effect immediately prior to such sale or issuance, then the number of Common
Shares thereafter purchasable upon the exercise of each Warrant shall be
determined by multiplying the number of Common Shares theretofore purchasable
upon exercise of such Warrant by a fraction, the numerator of which shall be the
number of Common Shares outstanding immediately after such sale or issuance and
the denominator of which shall be the number of Common Shares outstanding
immediately prior to such sale or issuance plus the number of Common Shares
which the aggregate consideration received (determined as provided below) for
such sale or issuance would purchase at such Current Market Value per Common
Share. For purposes of the calculation provided for in this Section 4.1(c), the
Common Shares which the holder of any such Right shall be entitled to subscribe
for or purchase shall be deemed to be issued and outstanding as of the date of
such sale and issuance of such Right and the consideration received by the
Company therefor shall be deemed to be the consideration received by the Company
for such Right, plus the consideration or premiums stated in such Right to be
paid for the Common Shares covered thereby. In case the Company shall sell and
21
issue any Right together with one or more other securities as part of a unit at
a price per unit, then in determining the "price per Common Share" and the
"consideration received by the Company" for purposes of this Section 4.1(c), the
Board shall determine, in good faith, the fair value of the Right then being
sold as part of such unit. For purposes of this paragraph, a "RIGHT" shall mean
any right, option, warrant or convertible or exchangeable security containing
the Right to subscribe for or acquire one or more Common Shares, excluding the
Warrants.
(d) DISTRIBUTIONS OF DEBT, ASSETS, SUBSCRIPTION RIGHTS OR
CONVERTIBLE SECURITIES. In case the Company shall make a distribution to all
holders of its Common Shares of evidences of its indebtedness, or assets, or
other distributions (excluding any issuance of Common Shares referred to in
Section 4.1(a) above and excluding distributions in connection with the
dissolution, liquidation or winding-up of the Company which shall be governed by
Section 4.1(j) and distributions of securities referred to in Section 4.1(a),
Section 4.1(b) or Section 4.1(c)), then, in each case, the number of Common
Shares purchasable after the record date for such distribution upon the exercise
of each Warrant shall be determined by multiplying the number of Common Shares
purchasable upon the exercise of such Warrant immediately prior to such record
date by a fraction, the numerator of which shall be the Current Market Value per
Common Share immediately prior to the record date for such distribution and the
denominator of which shall be the Current Market Value per Common Share
immediately prior to the record date for such distribution less the then fair
value (as determined in good faith by the Board) of the evidences of its
indebtedness, or assets or other distributions so distributed attributable to
one Common Share; PROVIDED, HOWEVER, that in lieu of making the foregoing
adjustment the Company may make the same or a like distribution to the Holders
of the Warrants as if their Warrants had been exercised on the day immediately
preceding the record date of such distribution on the terms (subject to any
adjustment pursuant to Section 4.1(a) for a prior event) on which such Warrants
could have been exercised on such date.
Such adjustment shall be made whenever any such distribution
is made, and shall become effective on the date of distribution retroactive to
the record date for the determination of shareholders entitled to receive such
distribution.
(e) EXPIRATION OF RIGHTS, OPTIONS AND CONVERSION PRIVILEGES.
Upon the expiration of any rights, options, warrants or conversion or exchange
privileges (including, without limitation, any Rights) that have previously
resulted in an adjustment hereunder, if any thereof shall not have been
exercised, exchanged or converted, the Exercise Price and the number of Common
Shares purchasable upon the exercise of each Warrant shall, upon such
expiration, be readjusted and shall thereafter, upon any future exercise, be
such as they would have been had they been originally adjusted (or had the
original adjustment not been required, as the case may be) as if (i) the only
Common Shares so issued were the Common Shares, if any, actually issued or sold
upon the exercise, exchange or conversion of such rights, options, warrants or
conversion or exchange rights (including, without limitation, any Rights) and
22
(ii) such Common Shares, if any, were issued or sold for the consideration
actually received by the Company upon such exercise, exchange or conversion plus
the consideration, if any, actually received by the Company for issuance, sale
or grant of all such rights, options, warrants or conversion or exchange rights
(including, without limitation, any Rights) whether or not exercised.
(f) CURRENT MARKET VALUE. For the purposes of any
computation under this Article IV, the "CURRENT MARKET VALUE" per Common Share
or of any other security (herein collectively referred to as a "security") at
any date herein specified shall be:
(i) if the security is not registered under the Exchange
Act, the value of the security (1) most recently determined as of a
date within the six months preceding such date by an Independent
Financial Expert selected by the Company in accordance with the
criteria for such valuation set out in Section 4.1(k), or (2) if no
such determination shall have been made within such six-month period or
if the Company so chooses, determined as of such date by an Independent
Financial Expert selected by the Company in accordance with the
criteria for such valuation set out in Section 4.1(k); (PROVIDED that
no Financial Expert shall be deemed not to be an Independent Financial
Expert solely by reason of having made one or more such valuations), or
(ii) if the security is registered under the Exchange Act,
the average of the closing sales prices of the security for the 20
consecutive trading days immediately preceding such date or, if the
security has been registered under the Exchange Act for less than 20
consecutive trading days before such date, then the average of the
closing sales prices for all of the trading days before such date for
which closing sales prices are available. The closing sales price for
each such trading day shall be: (A) in the case of a security listed or
admitted to trading on any national securities exchange, the closing
sales price, regular way, on such day, or if no sale takes place on
such day, the average of the closing bid and asked prices on such day
on the principal national securities exchange on which such security is
listed or admitted, as determined by the Board in good faith, (B) in
the case of a security not then listed or admitted to trading on any
national securities exchange, the last reported sale price on such day,
or if no sale takes place on such day, the average of the closing bid
and asked prices on such day, as reported by a reputable quotation
source designated by the Company, (C) in the case of a security not
then listed or admitted to trading on any national securities exchange
and as to which no such reported sale price or bid and asked prices are
available, the average of the reported high bid and low asked prices on
such day, as reported by a reputable quotation service, or a newspaper
of general circulation in the Borough of Manhattan, City and State of
New York customarily published on each Business Day, designated by the
Company, or, if there shall be no bid and asked prices on such day, the
average of the high bid and low asked prices, as so reported, on the
most recent day (not more than 30 days prior to the date in question)
for which prices have been so reported and (D) if there are no bid and
asked prices reported during the
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30 days prior to the date in question, the Current Market Value of the
security shall be determined as if the security were not registered
under the Exchange Act.
(g) CONSIDERATION RECEIVED. For purposes of any computation
respecting consideration received pursuant to this Section 4.1, the following
shall apply:
(i) in the case of the issuance of Common Shares for cash,
the consideration shall be the amount of such cash;
(ii) in the case of the issuance of Common Shares for a
consideration in whole or in part other than cash, the consideration
other than cash shall be deemed to be the fair market value thereof as
determined in good faith by the Board (irrespective of the accounting
treatment thereof), whose determination shall be conclusive and
described in reasonable detail in a board resolution which shall be
provided as soon as practicable thereafter to the Warrant Agent; and
(iii) in the case of the issuance of rights, options, warrants
or securities convertible into or exchangeable for Common Shares
(including, without limitation, any Rights), the aggregate
consideration received therefor shall be deemed to be the consideration
received by the Company for the issuance of such rights, options,
warrants or securities convertible into or exchangeable for Common
Shares, plus the additional minimum consideration, if any, to be
received by the Company upon the exercise, conversion or exchange
thereof (the consideration in each case to be determined in the same
manner as provided in clauses (i) and (ii) of this Section 4.1(g));
PROVIDED that in no case shall any deduction be made for any commissions,
discounts or other expenses incurred by the Company for any underwriting of the
issue or otherwise in connection therewith.
(h) DE MINIMIS ADJUSTMENTS. No adjustment in the number of
Common Shares purchasable hereunder shall be required unless such adjustment
would require an increase or decrease of at least one percent (1%) in the number
of Common Shares purchasable upon the exercise of each Warrant; PROVIDED,
HOWEVER, that any adjustments which by reason of this Section 4.1(h) are not
required to be made shall be carried forward and taken into account in any
subsequent adjustment. All calculations shall be made to the nearest
one-thousandth of a share.
(i) ADJUSTMENT OF EXERCISE PRICE. (i) Whenever the number of
Common Shares purchasable upon the exercise of each Warrant is adjusted, as
herein provided, the Exercise Price per Common Share payable upon exercise of
such Warrant shall be adjusted (calculated to the nearest $.01) so that it shall
equal the price determined by multiplying such Exercise Price immediately prior
to such adjustment by a fraction the numerator of which
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shall be the number of Common Shares purchasable upon the exercise of each
Warrant immediately prior to such adjustment and the denominator of which shall
be the number of Common Shares so purchasable immediately thereafter.
(ii) Following any adjustment to the Exercise Price pursuant
to this Article IV, the Adjusted Exercise Price shall never be less
than an amount (such amount per Common Share, the "Minimum Price")
equal to the greater of the par value per Common Share and the minimum
par value required by Luxembourg law at the time of such adjustment,
except to the extent permitted by applicable law. "Adjusted Exercise
Price" means the Exercise Price payable per Common Share, when adjusted
pursuant to this Article IV.
(iii) If, following any adjustment to the Exercise Price
pursuant to this Article IV, the Minimum Price is payable at the time
of exercise by Holders, and but for the provisions of the preceding
clause (ii), the Adjusted Exercise Price would (except to the extent
permitted by applicable law) equal an amount that is less than the
Minimum Price at the time of such adjustment (such lesser amount, the
"Sub-Par Price"), the Company will take such action that the Board of
Directors may in good faith determine is fair and appropriate to
protect the rights of the Holders against dilution or other impairment
as contemplated by this Article IV; PROVIDED, HOWEVER, that no such
action shall cause the aggregate amount payable per Warrant, after
giving effect to this clause (iii) (and taking into account any
payments to be received hereunder) to be greater than the aggregate
amount payable per Warrant which would have been payable but for the
preceding clause (ii). Such action may include, without limitation:
(A) payment to the Holder of each Warrant of
liquidated damages per Common Share purchasable upon Exercise
equal to the Minimum Price less the Sub-Par Price; or
(B) reduction, if permitted by applicable law, of
the par value per Common Share.
Any such payment shall be made or any other such action shall
be consummated not later than the earlier of (a) 180 days following the
consummation of the transaction giving rise to such adjustment and (b)
with respect to each Warrant, on the date such Warrant is exercised. If
such transaction is annulled, rescinded, revoked, or reversed or
otherwise canceled, or any subsequent adjustment is made pursuant to
this Article IV such that the adjusted Exercise Price is greater than
or equal to the Minimum Price (without applying the preceding clause
(ii) to that or any preceding adjustment pursuant to this Article IV),
then (x) in the case of such a payment, if such payment has not yet
been made to a Holder by the Company (or by any agent of the Company,
including for this purpose the Warrant Agent), such payment may be
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annulled, rescinded, revoked or otherwise canceled and any deposit made
in respect thereof returned to the Company and (y) in the case of any
such other action, such other action may be annulled, rescinded,
revoked, reversed or otherwise canceled.
(iv) If after an adjustment, a Holder of a Warrant upon
exercise of it may receive shares of two or more classes in the capital
of the Company, the Company shall determine the allocation of the
adjusted Exercise Price between such classes of shares in a manner that
the Board deems fair and equitable to the Holders. After such
allocation, the exercise privilege and the Exercise Price of each class
of shares shall thereafter be subject to adjustment on terms comparable
to those applicable to Common Shares in this Article IV.
(v) Such adjustment shall be made successively whenever any
event listed above shall occur.
(j) CONSOLIDATION, MERGER, ETC. (i) Subject to the
provisions of Subsection (ii) below of this Section 4.1(j), in case of the
consolidation of the Company with, or merger of the Company with or into, or of
the sale of all or substantially all of the properties and assets of the Company
to, any Person, and in connection therewith consideration is payable to holders
of Common Shares (or other securities or property purchasable upon exercise of
Warrants) in exchange therefor, the Warrants shall remain subject to the terms
and conditions set forth in this Agreement and each Warrant shall, after such
consolidation, merger or sale, entitle the Holder to receive upon exercise the
number of shares in the capital or other securities or property (including cash)
of or from the Person resulting from such consolidation or surviving such merger
or to which such sale shall be made or of the parent of such Person, as the case
may be, that would have been distributable or payable on account of the Common
Shares if such Holder's Warrants had been exercised immediately prior to such
merger, consolidation or sale (or, if applicable, the record date therefor); and
in any such case the provisions of this Agreement with respect to the rights and
interests thereafter of the Holders of Warrants shall be appropriately adjusted
by the Board in good faith so as to be applicable, as nearly as may reasonably
be, to any shares, other securities or any property thereafter deliverable on
the exercise of the Warrants.
(ii) Notwithstanding the foregoing, (x) if the Company merges
or consolidates with, or sells all or substantially all of its property
and assets to, another Person (other than an Affiliate of the Company)
and consideration is payable to holders of Common Shares in exchange
for their Common Shares in connection with such merger, consolidation
or sale which consists solely of cash, or (y) in the event of the
dissolution, liquidation or winding up of the Company, then the Holders
of Warrants shall be entitled to receive payments or distributions as
of the date of such event on an equal basis with, and on the same day
as, holders of Common Shares (or other securities purchasable upon
exercise of the Warrants) as if the Warrants had been exercised
immediately prior to such event, less an amount equal to the Exercise
Price.
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Upon receipt of such payment, if any, the rights of a Holder shall
terminate and cease and such Holder's Warrants shall expire. If the
Company has made a Repurchase Offer that has not expired at the time of
such transaction, the holders of the Warrants will be entitled to
receive the higher of (i) the amount payable to the holders of the
Warrants described above and (ii) the Repurchase Price payable to the
holders of the Warrants pursuant to such Repurchase Offer. In case of
any such merger, consolidation or sale of assets, the surviving or
acquiring Person or, in the event of any dissolution, liquidation or
winding up of the Company, the Company shall deposit promptly with the
Warrant Agent the funds or other consideration, if any, necessary to
pay the Holders of the Warrants. After receipt of such deposit from
such Person or the Company and after receipt of surrendered Warrant
Certificates, the Warrant Agent shall make payment by delivering a
check in such amount as is appropriate (or, in the case of
consideration other than cash, such other consideration as is
appropriate) to such Person or Persons as it may be directed in writing
by the Holder surrendering such Warrants.
(k) If required pursuant to Section 4.1(f)(i), the Current
Market Value shall be deemed to be equal to the value set forth in the Value
Report (as defined below) as determined by an Independent Financial Expert,
which shall be selected by the Board in its sole discretion, and retained on
customary terms and conditions, using one or more valuation methods that the
Independent Financial Expert, in its best professional judgment, determines to
be most appropriate. The Company shall cause the Independent Financial Expert to
deliver to the Company, with a copy to the Warrant Agent, within 90 days of the
appointment of the Independent Financial Expert, a value report (the "VALUE
REPORT") stating the value of the Common Shares and other securities or
property, if any, being valued as of the Valuation Date and containing a brief
statement as to the nature and scope of the examination or investigation upon
which the determination of value was made. The Warrant Agent shall have no duty
with respect to the Value Report of any Independent Financial Expert, except to
keep it on file and available for inspection by the Holders. The determination
as to Current Market Value in accordance with the provisions of this Section
4.1(k) shall be conclusive on all Persons. The Independent Financial Expert
shall consult with management of the Company in order to allow management to
comment on the proposed value prior to delivery to the Company of any Value
Report.
(l) WHEN NO ADJUSTMENT REQUIRED. Without limiting any other
exception contained in this Section 4.1, and in addition thereto, no adjustment
need be made for:
(i) grants or exercises of Rights granted, directly or
indirectly (including but not limited to through the LLC or any
subsidiary of the Company), to or for the benefit of Management
Investors or Beneficial Investors or Common Shares issued or granted,
directly or indirectly (including but not limited to through the LLC or
any Subsidiary of the Company), to or for the benefit of Management
Investors or Beneficial Investors, whether or not upon the exercise,
exchange or conversion of any
27
such Rights (to the extent that (I) all such securities (other than
securities described in clause (ii) and (vi)) directly or indirectly
issued or granted to Management Investors and Beneficial Investors do
not have an aggregate value in excess of 15% and (II) all such
securities, directly or indirectly, issued or granted to Beneficial
Investors do not exceed 2%, in either case of the Common Shares of the
Company on a fully diluted basis, as determined in good faith by the
Board);
(ii) options, warrants or other agreements or rights to
purchase capital stock of the Company entered into prior to the date of
the issuance of the Warrants;
(iii) rights to purchase Common Shares pursuant to a Company
plan for reinvestment of dividends or interest;
(iv) a decrease in the par value of the Common Shares
(including a change from par value to no par value);
(v) a transaction referred to in this Section 4.1 if Holders
representing a majority of the aggregate Common Shares purchasable upon
exercise of the Warrants at such time agree to participate in any such
transaction on the same basis on which holders of Common Shares
participate in such transaction; and
(vi) Common Shares or Rights issued or granted in connection
with the Existing Equity Agreements (including any Common Shares
acquired by the LLC with the proceeds of any issuance of LLC interests
to Management Investors).
(vii) bona fide public offerings or private placements in
compliance with Section 4(2) of the Securities Act (including
transactions pursuant to Rule 144A thereunder), Regulation D or
Regulation S under the Securities Act (or any successor rule or
exemption in effect from time to time), involving at least one
investment bank of national reputation, if (i) in the case of any
security trading on any national securities exchange or in the over the
counter market, or of a security directly or indirectly convertible or
exchangeable for any such security (the latter security being a
"REFERENCE SECURITY"), such security (or the Reference Security as
applicable) is sold to investors at a price at least equal to the
closing sale, bid or ask price (whichever is customary) of such
security (or the Reference Security as applicable) on the date of the
public offering or private placement, or (ii) either (x) the security
or Reference Security is issued as part of a public offering or a
private placement of debt securities or (y) any security is issued as
part of a bona fide private placement or public offering, in each case
on a firm commitment basis; PROVIDED that any such private placement,
directly or indirectly, is to 10 or more beneficial holders.
To the extent the Warrants become convertible into cash, no
adjustment need be made thereafter as to the cash. Interest will not accrue on
the cash.
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SECTION 4.2. NOTICE OF ADJUSTMENT. Whenever the number of
Common Shares purchasable upon the exercise of each Warrant or the Exercise
Price is adjusted, as herein provided, the Company shall cause, so far as it is
able, the Warrant Agent promptly to mail, at the expense of the Company, to each
Holder notice of such adjustment or adjustments and shall deliver to the Warrant
Agent a certificate of the Auditors setting forth the number of Common Shares
purchasable upon the exercise of each Warrant and the Exercise Price after such
adjustment, setting forth a brief statement of the facts requiring such
adjustment and setting forth the computation by which such adjustment was made.
Such certificate shall be conclusive evidence of the correctness of such
adjustment except in the case of manifest error. The Warrant Agent shall be
entitled to rely on such certificate and shall be under no duty or
responsibility with respect to any such certificate, except to exhibit the same,
from time to time, to any Holder desiring an inspection thereof during
reasonable business hours upon reasonable notice. The Warrant Agent shall not at
any time be under any duty or responsibility to any Holders to determine whether
any facts exist which may require any adjustment of the Exercise Price or the
number of Common Shares purchasable on exercise of the Warrants or any of the
other adjustments set forth in Section 4.1, or with respect to the nature or
extent of any such adjustment when made, or with respect to the method employed
in making such adjustment, or the validity or value (or the kind or amount) of
any Common Shares which may be purchasable on exercise of the Warrants. The
Warrant Agent shall not be responsible for any failure of the Company to make
any cash payment or to issue, transfer or deliver any Common Shares or share
certificates upon the exercise of any Warrant.
SECTION 4.3. STATEMENT ON WARRANTS. Irrespective of any
adjustment in the Exercise Price or the number or kind of shares purchasable
upon the exercise of the Warrants, Warrants theretofore or thereafter issued may
continue to express the same price and number and kind of shares as are stated
in the Warrants initially purchasable pursuant to this Agreement.
SECTION 4.4. NOTICE OF CONSOLIDATION, MERGER, ETC. In case at
any time after the date hereof and prior to 5:00 p.m., New York City time, on
the Expiration Date, there shall be any (i) consolidation or merger involving
the Company or sale, transfer or other disposition of all or substantially all
of the Company's property, assets or business (except a merger or other
reorganization in which the Company shall be the surviving corporation and
holders of Common Shares receive no consideration in respect of their shares) or
(ii) any other transaction contemplated by Section 4.1(j)(ii) above, then, in
any one or more of such cases, the Company shall cause to be mailed to the
Warrant Agent and shall cause the Warrant Agent to mail, at Company's expense,
to each Holder of a Warrant, at the earliest practicable time (and, in any
event, not less than 20 days before any date set for definitive action), notice
of the date on which such reorganization, sale, consolidation, merger,
dissolution, liquidation or winding up shall take place, as the case may be.
Such notice shall also set forth such facts as shall indicate the effect of such
action (to the extent such effect may be known at the date of such notice) on
the Exercise Price and the kind and amount of the Common Shares and other
securities, money and other property deliverable upon exercise of the Warrants.
Such notice
29
shall also specify the date as of which the holders of record of the Common
Shares or other securities or property purchasable upon exercise of the Warrants
shall be entitled to exchange their shares for securities, money or other
property deliverable upon such reorganization, sale, consolidation, merger,
dissolution, liquidation or winding up, as the case may be.
SECTION 4.5. FRACTIONAL INTERESTS. If more than one Warrant
shall be presented for exercise in full at the same time by the same Holder, the
number of full Common Shares which shall be purchasable upon such exercise
thereof shall be computed on the basis of the aggregate number of Common Shares
purchasable on exercise of the Warrants so presented. The Company shall not be
required to issue fractional Common Shares upon the exercise of Warrants. If any
fraction of a Common Share would, except for the provisions of this Section 4.5,
be purchasable on the exercise of any Warrant (or specified portion thereof),
the Company may pay an amount in cash calculated by it to be equal to the then
Current Market Value per Common Share multiplied by such fraction computed to
the nearest whole cent.
SECTION 4.6. WHEN ISSUANCE OR PAYMENT MAY BE DEFERRED. In any
case in which this Article IV shall require that an adjustment in the Exercise
Price be made effective as of a record date for a specified event, the Company
may elect to defer until the occurrence of such event (i) issuing to the holder
of any Warrant exercised after such record date the Common Shares and other
shares in the capital of the Company, if any, purchasable upon such exercise
over and above the Common Shares and other shares in the capital of the Company,
if any, purchasable upon such exercise and (ii) paying such holder any amount in
cash in lieu of a fractional share; PROVIDED, HOWEVER, that the Company shall
deliver to such Holder a due xxxx or other appropriate instrument evidencing
such Holder's right to receive such additional Common Shares, other shares and
cash upon the occurrence of the event requiring such adjustment.
Section 4.7. PAR VALUE; VALID ISSUANCE. The Company will not
increase the par value of the Common Shares above the Exercise Price (as
adjusted hereunder from time to time), except to the extent required by
applicable law. The Company will take all such corporate action, to the extent
permitted by applicable law (including, without limitation, reducing the par
value thereof), as may be necessary or appropriate in order that the Company may
validly and legally issue stock upon the exercise of Warrants.
Section 4.8. INITIAL PUBLIC OFFERING. Notwithstanding anything
to the contrary herein contained, if the Company conducts an initial public
offering of equity securities (other than the Common Shares and
non-particpatory, nonconvertible preferred shares and Excepted Shares) or a
Parent Entity or a subsidiary of the Company conducts an initial public offering
of equity securities (other than non-participatory, nonconvertible preferred
shares and Excepted Shares), the Company will give the Holders the opportunity
to convert such Warrants into warrants to purchase such equity securities and
such Common Shares or such other securities that have been received by the
Holders upon the exercise of Warrants into such equity securities. Such
conversion opportunity will be on terms and conditions
30
determined to be fair and reasonable by the Company's Board. "Excepted Shares"
means securities issued in connection with an a business combination that could
be registered on Form S-4 or F-4 under the Securities Act (or any equivalent
successor form).
ARTICLE V
DECREASE IN EXERCISE PRICE
The Board, in its sole discretion, shall have the right at any
time, or from time to time, to decrease the Exercise Price of the Warrants
and/or increase the number of shares issuable upon the exercise of the Warrants
to the extent permitted by Luxembourg law.
ARTICLE VI
LOSS OR MUTILATION
Upon receipt by the Company and the Warrant Agent of evidence
satisfactory to them of the ownership and the loss, theft, destruction or
mutilation of any Warrant Certificate and of indemnity or bond satisfactory to
them and (in the case of mutilation) upon surrender and cancellation thereof,
then, in the absence of notice to the Company or the Warrant Agent that the
Warrants represented thereby have been acquired by a bona fide purchaser, the
Company shall execute and the Warrant Agent shall countersign and deliver to the
registered Holder of the lost, stolen, destroyed or mutilated Warrant
Certificate, in exchange for or in lieu thereof, a new Warrant Certificate of
the same tenor and for a like aggregate number of Warrants. Upon the issuance of
any new Warrant Certificate under this Article VI, the Company may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and other expenses (including the fees and
expenses of the Warrant Agent) in connection therewith. Every new Warrant
Certificate executed and delivered pursuant to this Article VI in lieu of any
lost, stolen or destroyed Warrant Certificate shall constitute a contractual
obligation of the Company whether or not the allegedly lost, stolen or destroyed
Warrant Certificates shall be at any time enforceable by anyone and shall be
entitled to the benefits of this Agreement equally and proportionately with any
and all other Warrant Certificates duly executed and delivered hereunder. The
provisions of this Article VI are exclusive and shall preclude (to the extent
lawful) all other rights or remedies with respect to the replacement of
mutilated, lost, stolen, or destroyed Warrant Certificates.
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ARTICLE VII
RESERVATION AND AUTHORIZATION
OF COMMON SHARES
The Company shall, subject to the following paragraph, at all
times reserve and keep available such number of its authorized but unissued
Common Shares deliverable upon exercise of the Warrants as will be sufficient to
permit the exercise in full of all outstanding Warrants and will cause
appropriate evidence of ownership of such Common Shares to be delivered to the
Warrant Agent upon its request for delivery thereof upon the exercise of the
Warrants. The Company covenants that all Common Shares that may be issued upon
the exercise of the Warrants will, upon issuance, be duly and validly issued,
fully paid and nonassessable, free of pre-emptive rights and free from all
taxes, liens, charges and security interests created by or through the Company.
The shareholders of the Company may be required to reauthorize
and reserve the Common Stock purchasable upon exercise of all outstanding
Warrants. To the extent such reauthorization or reservation is required by
applicable law, the Company hereby agrees (to the extent permitted by applicable
law) take any and all actions required, and Carrier One, L.L.C. will (to the
extent permitted by applicable law) to vote any shares of the Company's Common
Stock held by it, to reauthorize and reserve the Common Stock for issuance upon
exercise of the Warrants at least 31 days prior to the date such reauthorization
would be required under Luxembourg law (a "Reauthorization Date"). In connection
with any transfer by Carrier One, L.L.C. of the Company's Common Stock held by
it (other than to any Management Investor or pursuant to any public offering),
Carrier One, L.L.C. agrees to cause the transferee of such shares of Common
Stock to be bound by this paragraph. The Company will notify each Holder of
Warrants, on the date that is 30 days prior to any Reauthorization Date, if the
Common Stock has not been so reauthorized and reserved by such date.
ARTICLE VIII
WARRANT TRANSFER BOOKS; RESTRICTIONS ON TRANSFER
Section 8.1. TRANSFER AND EXCHANGE. The Warrant Certificates
shall be issued in registered form only. The Warrant Agent shall keep at its
office a register for the registration of Warrant Certificates and transfers or
exchanges of Warrant Certificates as herein provided and other appropriate data
as determined by the Warrant Agent. The Company shall, upon reasonable notice to
the Warrant Agent, have access to such register during the Warrant Agent's
regular business hours. All Warrant Certificates issued upon any registration of
transfer or exchange of Warrant Certificates shall be the valid obligations of
the Company, evidencing the same obligations, and entitled to the same benefits
under this
32
Agreement, as the Warrant Certificates surrendered for such registration of
transfer or exchange.
The Warrants shall initially be issued as part of the issuance
of the Dollar Units. Prior to the Separation Date, the Warrants may not be
transferred or exchanged separately from, but may be transferred or exchanged
only together with, the Dollar Notes issued as part of such Dollar Units.
A Holder may transfer its Warrants only by written application
to the Warrant Agent stating the name of the proposed transferee and otherwise
complying with the terms of this Agreement. No such transfer shall be effected
until, and such transferee shall succeed to the rights of a Holder only upon,
final acceptance and registration of the transfer by the Warrant Agent in the
register. Prior to the registration of any transfer of Warrants by a Holder as
provided herein, the Company, the Warrant Agent, and any agent of the Company
may treat the person in whose name the Warrants are registered as the owner
thereof for all purposes and as the person entitled to exercise the rights
represented thereby, any notice to the contrary notwithstanding. Owners of a
beneficial interest in a Global Warrant will not be entitled to have Warrants
registered in their names, and will not receive or be entitled to receive
Certificated Warrants except pursuant to Section 2.4. Furthermore, any holder of
a Global Warrant shall, by acceptance of such Global Warrant, agree that
transfers of beneficial interests in such Global Warrant may be effected only
through a book-entry system maintained by the holder of such Global Warrant (or
its agent), and that ownership of a beneficial interest in the Warrants
represented thereby shall be required to be reflected in a book-entry. When
Warrant Certificates are presented to the Warrant Agent with a request to
register the transfer or to exchange them for an equal amount of Warrants of
other authorized denominations, the Warrant Agent shall register such transfer
or make such exchange as requested if its requirements for such transactions are
met. To permit registrations of transfers and exchanges, the Company shall
execute Warrant Certificates at the Warrant Agent's request. No service charge
shall be made for any registration of transfer or exchange of Warrants, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration of
transfer of Warrants.
SECTION 8.2. BOOK-ENTRY PROVISIONS FOR THE GLOBAL WARRANTS.
(a) The Global Warrants initially shall (i) be registered in the name of the
Depositary for such Global Warrant or the nominee of such Depositary, (ii) be
delivered to the Warrant Agent as custodian for such Depositary and (iii) bear
legends as set forth in Section 2.2 hereof.
Members of, or participants in, the Depositary ("AGENT
MEMBERS") shall have no rights under this Agreement with respect to the Global
Warrants held on their behalf by the Depositary or the Warrant Agent as its
custodian, and the Depositary may be treated by the Company, the Warrant Agent
and any agent of the Company or the Warrant Agent as the absolute owner of such
Global Warrant for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Company, the Warrant Agent or any agent of the
33
Company or the Warrant Agent, from giving effect to any written certification,
proxy or other authorization furnished by the Depositary or impair, as between
the Depositary and its Agent Members, the operation of customary practices
governing the exercise of the rights of a Holder of any Warrants.
(b) Transfers of a Global Warrant shall be limited to
transfers of such Global Warrant in whole, but not in part, to the Depositary,
its successors or their respective nominees. Interests of beneficial owners in
the Global Warrants may be transferred in accordance with the rules and
procedures of the Depositary and the provisions of Section 8.3 hereof.
Certificated Warrants shall be transferred to beneficial owners in exchange for
their beneficial interests in the Restricted Global Warrant, (i) if the
Depositary notifies the Company that it is unwilling or unable to continue as
Depositary for such Global Warrant and a successor depositary is not appointed
by the Company within 90 days of such notice or (ii) if there is a Default.
(c) In connection with the transfer of the entire Restricted
Global Warrant or Regulation S Global Warrant to beneficial owners pursuant to
paragraph (b) of this Section 8.2, the Global Warrants shall be surrendered to
the Warrant Agent for cancellation, and the Company shall execute, and the
Warrant Agent shall countersign and deliver, to each beneficial owner identified
by the Depositary in exchange for its beneficial interest in the Global
Warrants, Certificated Warrants of authorized denominations representing, in the
aggregate, the number of Warrants theretofore represented by the Global
Warrants, as the case may be.
(d) Any Certificated Warrant delivered in exchange for an
interest in a Global Warrant pursuant to paragraph (b) or (c) of this Section
shall, except as otherwise provided by paragraph (d) of Section 8.3 hereof bear
the legend regarding transfer restrictions applicable to the Certificated
Warrant set forth in Section 2.2.
(e) The registered holder of a Global Warrant may grant
proxies and otherwise authorize any person, including Agent Members and persons
that may hold interests through Agent Members, to take any action which a Holder
is entitled to take under this Agreement or the Warrants.
(f) Any beneficial interest in one of the Global Warrants
that is transferred to a person who takes delivery in the form of an interest in
any other Global Warrant will, upon transfer, cease to be an interest in such
Global Warrant and become an interest in such other Global Warrant and,
accordingly, will thereafter be subject to all transfer restrictions, if any,
and other procedures applicable to beneficial interests in such other Global
Warrant for as long as it remains such an interest.
34
SECTION 8.3. SPECIAL TRANSFER PROVISIONS. The following
provisions shall apply:
(a) TRANSFERS TO QIBS. The following provisions shall apply
with respect to the registration of any proposed transfer of Warrants to a QIB:
(i) If the Warrants to be transferred are represented by (x)
IAI Certificated Warrants, the Warrant Agent shall register the
transfer if such transfer is being made by a proposed transferor who
has checked the box provided for on the form of Warrant Certificate
stating, or has otherwise advised the Company and the Warrant Agent in
writing, that the sale has been made in compliance with the provisions
of Rule 144A to a transferee who has signed the certification provided
for on the form of Warrant Certificate stating, or has otherwise
advised the Company and the Warrant Agent in writing, that it is
purchasing the Warrants for its own account or an account with respect
to which it exercises sole investment discretion and that it and any
such account is a QIB within the meaning of Rule 144A, and is aware
that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the
Company as it has requested pursuant to Rule 144A or has determined not
to request such information and that it is aware that the transferor is
relying upon its foregoing representations in order to claim the
exemption from registration provided by Rule 144A or (y) an interest in
the Global Warrants, the transfer of such interest may be effected only
through the book entry system maintained by the Depositary.
(ii) If the proposed transferee is an Agent Member, and the
Warrants to be transferred are represented by IAI Certificated
Warrants, upon receipt by the Warrant Agent of the documents referred
to in clause (i) above and instructions given in accordance with the
Depositary's and the Warrant Agent's procedures, the Warrant Agent
shall reflect on its books and records the date and an increase in the
amount of Warrants represented by the Restricted Global Warrant in an
amount equal to the amount of Warrants represented by the IAI
Certificated Warrants to be transferred, and the Warrant Agent shall
cancel the IAI Certificated Warrants.
(b) TRANSFERS TO NON-U.S. PERSON AT ANY TIME. The following
provisions shall apply with respect to the registration of any proposed transfer
of Warrants to a Non-U.S. Person (excluding QIBs):
(i) The Warrant Agent shall register any proposed transfer of
Warrants to a Non-U.S. Person only (x) upon receipt of a certificate
substantially in the form of Exhibit B-1 from the proposed transferor
and (y) prior to February 19, 2000, if the proposed transferee has
delivered to the Warrant Agent and the Company a certificate
substantially in the form of Exhibit B-2 hereto.
35
(ii) If the proposed transferor is an Agent Member holding a
beneficial interest in the Restricted Global Warrant, upon receipt by
the Warrant Agent and the Company of the documents referred to in
clause (i) above and instructions given in accordance with the
Depositary's and the Warrant Agent's procedures, the Company shall
execute and the Warrant Agent shall countersign Certificated Warrants
in an amount equal to the number of Warrants represented by the
Restricted Global Warrant to be transferred and the Warrant Agent shall
decrease the number of Warrants represented by the Restricted Global
Warrant so transferred.
(iii) After February 19, 2000, if the proposed transferee is
an Agent Member, and the Warrants to be transferred are represented by
Certificated Warrants, upon receipt by the Warrant Agent of the
documents referred to in clause (i) above and instructions given in
accordance with the Depositary's and the Warrant Agent's procedures,
the Warrant Agent shall reflect on its books and records the date and
an increase in the amount of Warrants represented by the Regulation S
Global Warrant in an amount equal to the amount of Warrants represented
by the Certificated Warrants to be transferred, and the Warrant Agent
shall cancel the Certificated Warrants.
(c) TRANSFERS TO ANY OTHER PERSON. The following provisions
shall apply with respect to the registration of any proposed transfer of
Warrants to any Person not specified in paragraphs (a) and (b) above (including
any Institutional Accredited Investor which is not a QIB):
(i) The Warrant Agent shall register any proposed transfer
of Warrants to any such Person if (x) the transferor has delivered to
the Warrant Agent and the Company a certificate substantially in the
form of Exhibit C-1 hereto and, if required by paragraph (d) thereof,
an opinion of counsel to the effect set forth therein and (y) the
proposed transferee has delivered to the Warrant Agent and the Company
a certificate substantially in the form of Exhibit C-2 hereto and an
opinion of counsel acceptable to the Company that such transfer is in
compliance with the Securities Act.
(ii) If the proposed transferor is an Agent Member holding a
beneficial interest in the Restricted Global Warrant, upon receipt by
the Warrant Agent and the Company of the documents referred to in
clause (i) above and instructions given in accordance with the
Depositary's and the Warrant Agent's procedures, the Company shall
execute and the Warrant Agent shall countersign Certificated Warrants
in an amount equal to the number of Warrants represented by the
Restricted Global Warrant to be transferred and the Warrant Agent shall
decrease the number of Warrants represented by the Restricted Global
Warrant so transferred.
(d) PRIVATE PLACEMENT LEGEND. Upon the transfer, exchange or
replacement of Warrant Certificates not bearing the Private Placement Legend,
the Warrant Agent shall deliver Warrant Certificates that do not bear the
Private Placement Legend. Upon the
36
transfer, exchange or replacement of Warrant Certificates bearing the Private
Placement Legend, the Warrant Agent shall deliver only Warrant Certificates that
bear the Private Placement Legend unless there is delivered to the Warrant Agent
an opinion of counsel reasonably satisfactory to the Company and its Counsel and
the Warrant Agent to the effect that neither such legend nor the related
restrictions on transfer are required in order to maintain compliance with the
provisions of the Securities Act.
(e) TRANSFERS OF INTERESTS IN THE LEGENDED OFFSHORE
CERTIFICATED WARRANT AND THE LEGENDED REGULATION S GLOBAL WARRANT. The following
provisions shall apply with respect to registration of any proposed transfer of
interests in the Offshore Certificated Warrants and the Regulation S Global
Warrant, each bearing the Private Placement Legend:
(i) The Registrar shall register the transfer of any Warrant
(x) if the proposed transferee is a Non-U.S. Person and the proposed
transferor has delivered to the Registrar a certificate substantially
in the form of Exhibit B-1 hereto or (y) if the proposed transferee is
a QIB and the proposed transferor has checked the box provided for on
the form of Warrant stating, or has otherwise advised the Company and
the Warrant Agent in writing, that the sale has been made in compliance
with the provisions of Rule 144A to a transferee who has signed the
certification provided for on the form of Warrant stating, or has
otherwise advised the Company and the Warrant Agent in writing, that it
is purchasing the Warrant for its own account or an account with
respect to which it exercises sole investment discretion and that it
and any such account is a QIB within the meaning of Rule 144A, and is
aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the
Company as it has requested pursuant to Rule 144A or has determined not
to request such information and that it is aware that the transferor is
relying upon its foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
(ii) If the proposed transferee is an Agent Member, upon
receipt by the Warrant Agent of the documents referred to in clause
(i)(y) above and instructions given in accordance with the Depositary's
and the Warrant Agent's procedures, the Warrant Agent shall reflect on
its books and records the date and an increase in the number of
Warrants represented by the Restricted Global Warrant, in an amount
equal to the number of Warrants represented by the such Regulation S
Global Warrant or Offshore Certificated Warrant or to be transferred,
and the Warrant Agent shall decrease the number of Warrants represented
by the such Regulation S Global Warrant or cancel the legended Offshore
Certificated Warrant, as the case may be.
(f) TRANSFERS OF INTERESTS IN THE UNLEGENDED REGULATION S
GLOBAL WARRANT OR UNLEGENDED OFFSHORE CERTIFICATED WARRANTS. The Warrant Agent
shall register any transfer of interests in the unlegended Regulation S Global
Warrant or unlegended Offshore Certificated Warrants, without requiring any
additional certification.
37
(g) GENERAL. (i) By its acceptance of any Warrants
represented by a Warrant Certificate bearing the Private Placement Legend, each
Holder of such Warrants acknowledges the restrictions on transfer of such
Warrants set forth in this Agreement and in the Private Placement Legend and
agrees that it will transfer such Warrants only as provided in this Agreement.
The Warrant Agent shall not register a transfer of any Warrants unless such
transfer complies with the restrictions on transfer of such Warrants set forth
in this Agreement. In connection with any transfer of Warrants, each Holder
agrees by its acceptance of Warrants to furnish the Warrant Agent or the Company
such certifications, legal opinions or other information as either of them may
reasonably require to confirm that such transfer is being made pursuant to an
exemption from, or a transaction not subject to, the registration requirements
of the Securities Act; PROVIDED that the Warrant Agent shall not be required to
determine (but may rely on a determination made by the Company with respect to)
the sufficiency of any such certifications, legal opinions or other information.
(ii) The Warrant Agent shall retain copies of all letters,
notices and other written communications received pursuant to Section 8.2 hereof
or this Section 8.3. The Company shall have the right to inspect and make copies
of all such letters, notices or other written communications at any reasonable
time upon the giving of reasonable written notice to the Warrant Agent.
SECTION 8.4. SURRENDER OF WARRANT CERTIFICATES. Any Warrant
Certificate surrendered for registration of transfer, exchange or exercise of
the Warrants represented thereby shall, if surrendered to the Company, be
delivered to the Warrant Agent, and all Warrant Certificates surrendered or so
delivered to the Warrant Agent shall be promptly cancelled by the Warrant Agent
and shall not be reissued by the Company and, except as provided in this Article
VIII in case of an exchange, Article III hereof in case of the exercise of less
than all the Warrants represented thereby or Article VI in case of a mutilated
Warrant Certificate, no Warrant Certificate shall be issued hereunder in lieu
thereof. The Warrant Agent shall deliver to the Company from time to time or
otherwise dispose of such cancelled Warrant Certificates as the Company may
direct in writing.
ARTICLE IX
WARRANT HOLDERS
SECTION 9.1. WARRANT HOLDER DEEMED NOT A SHAREHOLDER. The
Company and the Warrant Agent may deem and treat the registered Holder(s) of the
Warrant Certificates as the absolute owner(s) thereof (notwithstanding any
notation of ownership or other writing thereon made by anyone), for the purpose
of any exercise thereof and for all other purposes, and neither the Company nor
the Warrant Agent shall be affected by any notice to the contrary. Accordingly,
the Company and/or the Warrant Agent shall not, except as ordered by a court of
competent jurisdiction as required by law, be bound to recognize any equitable
38
or other claim to or interest in the Warrants on the part of any person other
than such registered Holder, whether or not it shall have express or other
notice thereof. Prior to the exercise of the Warrants, no Holder of a Warrant
Certificate, as such, shall be entitled to any rights of a shareholder of the
Company, including, without limitation, the right to vote or to consent to any
action of the shareholders, to receive dividends or other distributions, to
exercise any preemptive right or to receive any notice of meetings of
shareholders and, except as otherwise provided in this Agreement, shall not be
entitled to receive any notice of any proceedings of the Company.
SECTION 9.2. RIGHT OF ACTION. All rights of action with
respect to this Agreement are vested in the Holders of the Warrants, and any
Holder of any Warrant, without the consent of the Warrant Agent or the Holders
of any other Warrant, may, on such Holder's own behalf and for such Holder's own
benefit, enforce, and may institute and maintain any suit, action or proceeding
against the Company suitable to enforce, or otherwise in respect of, such
Holder's right to exercise such Warrants in the manner provided in the Warrant
Certificate representing such Warrants and in this Agreement.
ARTICLE X
REMEDIES
SECTION 10.1. DEFAULTS. It shall be deemed to be a "DEFAULT"
with respect to the Company's (or its successor's) obligations under this
Agreement if:
(a) a Repurchase Event occurs and the Company (or its
successor or an affiliate) shall fail to make a Repurchase Offer
pursuant to Section 3.4 hereof; or
(b) the Company (or its successor or an affiliate) shall
fail to purchase the Warrants pursuant to the Repurchase Offer in
accordance with the provisions of Section 3.4 hereof.
SECTION 10.2. Omitted.
SECTION 10.3. REMEDIES; NO WAIVER. Notwithstanding any other
provision of this Agreement, if a Default occurs and is continuing, the Holders
of the Warrants may pursue any available remedy to collect the Repurchase
Obligation or to enforce the performance of any provision of this Agreement. A
delay or omission by any Holder of a Warrant in exercising, or a failure to
exercise, any right or remedy arising out of a Default shall not impair the
right or remedy or constitute a waiver of or acquiescence in the Default. All
remedies are cumulative to the extent permitted by law.
39
ARTICLE XI
THE WARRANT AGENT
SECTION 11.1. DUTIES AND LIABILITIES. The Warrant Agent hereby
accepts the agency established by this Agreement and agrees to perform the same
upon the terms and conditions herein set forth, by all of which the Company and
the Holders of Warrants, by their acceptance thereof, shall be bound. The
Warrant Agent shall not, by countersigning Warrant Certificates or by any other
act hereunder, be deemed to make any representations as to the validity or
authorization of the Warrants or the Warrant Certificates (except as to its
countersignature thereon) or of any Common Shares issued upon exercise of any
Warrant, or as to the accuracy of the computation of the Exercise Price or the
number or kind or amount of Common Shares deliverable upon exercise of any
Warrant or the correctness of the representations of the Company made in the
certificates that the Warrant Agent receives. The Warrant Agent shall not be
accountable for the use or application by the Company of the proceeds of the
exercise of any Warrant. The Warrant Agent shall not have any duty to calculate
or determine any adjustments with respect to either the Exercise Price or the
kind and amount of Common Shares receivable by Holders upon the exercise of
Warrants required from time to time and the Warrant Agent shall have no duty or
responsibility in determining the accuracy or correctness of such calculation.
The Warrant Agent shall not be (a) liable for any recital or statement of fact
contained herein or in the Warrant Certificates or for any action taken,
suffered or omitted by it in good faith in the belief that any Warrant
Certificate or any other documents or any signatures are genuine or properly
authorized, (b) responsible for any failure on the part of the Company to comply
with any of its covenants and obligations contained in this Agreement or in the
Warrant Certificates or (c) liable for any act or omission in connection with
this Agreement except for its own gross negligence, bad faith or willful
misconduct. The Warrant Agent is hereby authorized to accept instructions with
respect to the performance of its duties hereunder from a Senior Officer of the
Company and to apply to any such Senior Officer for instructions (which
instructions will be promptly given in writing when requested) and the Warrant
Agent shall not be liable for any action taken or suffered to be taken by it in
good faith in accordance with the instructions of any such Senior Officer;
PROVIDED, HOWEVER, that, in its discretion, the Warrant Agent may, in lieu
thereof, accept other evidence of such or may require such further or additional
evidence as it may deem reasonable. The Warrant Agent shall not be liable for
any action taken with respect to any matter in the event it requests
instructions from the Company as to that matter and does not receive such
instructions within a reasonable period of time after the request therefor.
The Warrant Agent may execute and exercise any of the rights
and powers hereby vested in it or perform any duty hereunder either itself or by
or through its attorneys, agents or employees, and the Warrant Agent shall not
be answerable or accountable for any act, default, neglect or misconduct of any
such attorneys, agents or employees; PROVIDED that reasonable care has been
exercised with respect to the retention of any such attorney, agent or employee.
The Warrant Agent shall not be under any obligation or duty to institute, appear
in
40
or defend any action, suit or legal proceeding in respect hereof, unless first
indemnified to its reasonable satisfaction. The Warrant Agent shall promptly
notify the Company in writing of any claim made or action, suit or proceeding
instituted against it arising out of or in connection with this Agreement.
The Company will perform, execute, acknowledge and deliver or
cause to be delivered all such further acts, instruments and assurances as are
consistent with this Agreement and as may reasonably be required by the Warrant
Agent in order to enable it to carry out or perform its duties under this
Agreement.
The Warrant Agent shall act solely as agent of the Company
hereunder. The Warrant Agent shall not be liable except for the failure to
perform such duties as are specifically set forth herein, and no implied
covenants or obligations shall be read into this Agreement against the Warrant
Agent, whose duties and obligations shall be determined solely by the express
provisions hereof.
SECTION 11.2. RIGHT TO CONSULT COUNSEL. The Warrant Agent may
at any time consult with legal counsel (who may be legal counsel for the
Company), and the opinion or advice of such counsel shall be full and complete
authorization and protection to the Warrant Agent and the Warrant Agent shall
incur no liability or responsibility to the Company or to any Holder for any
action taken, suffered or omitted by it in good faith in accordance with the
opinion or advice of such counsel.
SECTION 11.3. COMPENSATION; INDEMNIFICATION. The Company
agrees promptly to pay the Warrant Agent from time to time and in any case
within 30 days of receipt of an invoice, compensation for its services hereunder
as the Company and the Warrant Agent may agree from time to time, and to
reimburse it upon its request for reasonable fees or expenses and reasonable
counsel fees and expenses incurred in connection with the execution and
administration of this Agreement, and further agrees to indemnify the Warrant
Agent which shall include for purposes of this Section 11.3 its directors,
officers, agents or employees and save it harmless against any losses,
liabilities or expenses (including the fees and expenses of its counsel) arising
out of or in connection with the acceptance and administration of this Agreement
and under the Warrant Registration Rights Agreement, including, without
limitation, the reasonable costs and expenses of investigating or defending any
claim of such liability, except that the Company shall have no liability
hereunder to the extent that any such loss, liability or expense results from
the Warrant Agent's own gross negligence, bad faith or willful misconduct. The
obligations of the Company under this Section 11.3 shall survive the exercise
and the expiration of the Warrants, the termination of this Agreement and the
resignation or removal of the Warrant Agent in respect of services or expenses
incurred in connection with the Warrants or this Agreement.
SECTION 11.4. NO RESTRICTIONS ON ACTIONS. Nothing in this
Agreement shall be deemed to prevent the Warrant Agent and any shareholder,
director, officer or employee of
41
the Warrant Agent from buying, selling or dealing in any of the Warrants or
other securities of the Company or becoming pecuniarily interested in
transactions in which the Company may be interested, or contracting with or
lending money to the Company or otherwise acting as fully and freely as though
it were not the Warrant Agent under this Agreement. Nothing herein shall
preclude the Warrant Agent from acting in any other capacity for the Company or
for any other legal entity.
SECTION 11.5. DISCHARGE OR REMOVAL; REPLACEMENT WARRANT AGENT.
The Warrant Agent may resign from its position as such and be discharged from
all further duties and liabilities hereunder (except liability arising as a
result of the Warrant Agent's own gross negligence, bad faith or willful
misconduct), after giving one month's prior written notice to the Company. The
Company may at any time remove the Warrant Agent upon one month's written notice
specifying the date when such discharge shall take effect, and the Warrant Agent
shall thereupon in like manner be discharged from all further duties and
liabilities hereunder, except as aforesaid. The Warrant Agent shall mail to each
Holder of a Warrant, at the Company's expense, a copy of said notice of
resignation or notice of removal, as the case may be. Upon such resignation or
removal the Company shall appoint in writing a new warrant agent. If the Company
shall fail to make such appointment within a period of 30 days after it has been
notified in writing of such resignation by the resigning Warrant Agent or after
such removal, then the resigning or removed Warrant Agent or the Holder of any
Warrant may apply to any court of competent jurisdiction for the appointment of
a new warrant agent. After 30 days from receipt of, or giving, notice, as the
case may be, and pending appointment of a successor to the original Warrant
Agent, either by the Company or by such a court, the duties of the Warrant Agent
shall be carried out by the Company. Any new warrant agent, whether appointed by
the Company or by such a court, shall be a bank or trust company doing business
under the laws of the United States or any state thereof, in good standing and
having a combined capital and surplus of not less than $25,000,000. The combined
capital and surplus of any such new warrant agent shall be deemed to be the
combined capital and surplus as set forth in the most recent annual report of
its condition published by such warrant agent prior to its appointment, PROVIDED
that such reports are published at least annually pursuant to law or to the
requirements of a federal or state supervising or examining authority. After
acceptance in writing of such appointment by the new warrant agent, it shall be
vested with the same powers, rights, duties and responsibilities as if it had
been originally named herein as the Warrant Agent, without any further
assurance, conveyance, act or deed; however, the original Warrant Agent shall in
all events deliver and transfer to the successor Warrant Agent all property
(including, without limitation, documents and recorded information), if any, at
the time held hereunder by the original Warrant Agent and if for any reason it
shall be necessary or expedient to execute and deliver any further assurance,
conveyance, act or deed, the same shall be done at the expense of the Company
and shall be legally and validly executed and delivered by the resigning or
removed Warrant Agent. Not later than the effective date of any such
appointment, the Company shall file notice thereof with the resigning or removed
Warrant Agent and shall forthwith cause a copy of such notice to be mailed by
the successor Warrant Agent to each Holder of a Warrant. Failure to give any
notice provided for in this
42
Section 11.5, however, or any defect therein, shall not affect the legality or
validity of the resignation of the Warrant Agent or the appointment of a new
warrant agent, as the case may be. No Warrant Agent hereunder shall be liable
for any acts or omissions of any successor Warrant Agent.
SECTION 11.6. SUCCESSOR WARRANT AGENT. Any corporation into
which the Warrant Agent or any new warrant agent may be merged or converted, or
any corporation resulting from any consolidation to which the Warrant Agent or
any new warrant agent shall be a party or any corporation succeeding to all or
substantially all the corporate agency business of the Warrant Agent, shall be a
successor Warrant Agent under this Agreement without any further act, PROVIDED
that such corporation would be eligible for appointment as successor to the
Warrant Agent under the provisions of Section 11.5 hereof. Any such successor
Warrant Agent shall promptly cause notice of its succession as Warrant Agent to
be mailed to each Holder of a Warrant.
ARTICLE XII
MISCELLANEOUS
SECTION 12.1. MONIES DEPOSITED WITH THE WARRANT AGENT. The
Warrant Agent shall not be required to pay interest on any monies deposited
pursuant to the provisions of this Agreement except such as it shall agree in
writing with the Company to pay thereon. Any monies, securities or other
property which at any time shall be deposited by the Company or on its behalf
with the Warrant Agent pursuant to this Agreement shall be and are hereby
assigned, transferred and set over to the Warrant Agent in trust for the purpose
for which such monies, securities or other property shall have been deposited;
but such monies, securities or other property need not be segregated from other
funds, securities or other property except to the extent required by law. Any
monies, securities or other property deposited with the Warrant Agent for
payment or distribution to the Holders that remains unclaimed for one year after
the date the monies, securities or other property was deposited with the Warrant
Agent shall be delivered to the Company upon its request therefor.
SECTION 12.2. PAYMENT OF TAXES. Subject to Article VI hereof,
all Common Shares purchasable upon the exercise of Warrants shall be validly
issued, fully paid and not subject to any calls for funds, and the Company shall
pay any taxes and other governmental charges that may be imposed under the laws
of Luxembourg and the United States of America or any political subdivision or
taxing authority thereof or therein in respect of the issue or delivery thereof
upon exercise of Warrants (other than taxes on or measured by income imposed on
any Holder). The Company shall not be required, however, to pay any tax or other
charge imposed in connection with any transfer involved in the issue of any
certificate for Common Shares (including other securities or property
purchasable upon the exercise of the Warrants) or payment of cash to any Person
other than the Holder of a Warrant Certificate
43
surrendered upon the exercise of a Warrant and in case of such transfer or
payment, the Warrant Agent and the Company shall not be required to issue any
share certificate or pay any cash until such tax or charge has been paid or it
has been established to the Warrant Agent's and the Company's satisfaction that
no such tax or charge is due.
SECTION 12.3. NO MERGER, CONSOLIDATION OR SALE OF ASSETS OF
THE COMPANY. Except as otherwise provided herein, the Company will not merge
into or consolidate with any other Person, or sell or otherwise transfer all or
substantially all of its property and assets to a successor of the Company,
unless the Person resulting from such merger or consolidation, or such successor
of the Company, shall expressly assume, by supplemental agreement reasonably
satisfactory in form to the Warrant Agent and executed and delivered to the
Warrant Agent, the due and punctual performance and observance of each and every
covenant and condition of this Agreement or contained in the Warrants to be
performed and observed by the Company.
SECTION 12.4. REPORTS TO HOLDERS. At all times from and after
the earlier of (i) the Registration with respect to the Notes and (ii) the date
that is six months after the Closing Date, in either case, whether or not the
Company is then required to file reports with the Commission, the Company shall
file with the Commission to the extent then permitted by the Exchange Act and by
the Commission, all such information on an appropriate available form as it
would be required to file with the Commission by Section 13(a) or 15(d) under
the Exchange Act if it were a U.S. company and subject thereto, including
information required by annual, quarterly or current reports whether or not
required to be so filed. The Company shall supply the Warrant Agent and each
Holder or shall supply to the Warrant Agent for forwarding to all such Holders,
without cost to such Holders, copies of such reports and other information. The
Warrant Agent's receipt of such reports and other information shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Warrant Agent is
entitled to rely exclusively on Officers' Certificates). In addition, at all
times prior to the earlier of the date of the Registration and the date that is
six months after the Closing Date, the Company shall, at its cost, supply to the
Warrant Agent, for forwarding to all Holders, without cost to such Holders,
quarterly and annual reports substantially equivalent to those described above
or which would otherwise be required by the Exchange Act, commencing with the
report for the fiscal quarter ending immediately after the Closing Date;
PROVIDED that the Company may deliver copies of the registration statement
(including pre-effective amendments thereto) with respect to the exchange offer
for the Notes to the extent it contains the information that would have been
required in such reports. In addition, at all times prior to the Registration,
upon the request of any such holder or any prospective purchaser of the Warrants
designated by a Holder, the Company shall supply to such Holder or such
prospective purchaser the information required under Rule 144A.
44
SECTION 12.5. NOTICES; PAYMENT. (a) Except as otherwise provided in
Section 12.5(b) hereof, any notice, demand or delivery authorized by this
Agreement shall be sufficiently given or made when mailed, if sent by first
class mail, postage prepaid, addressed to any Holder of a Warrant at such
Holder's last known address appearing on the register of the Company maintained
by the Warrant Agent and to the Company or the Warrant Agent as follows:
To the Company:
Carrier1 International S.A.
X-0000, Xxxxxxxx
Xxxxx X'Xxxxx 0
Xxxxxxxxxx
Telecopier No.: 011-352-451-452-408
With a copy to:
Carrier 1 International GmbH
Xxxxxxxxxxxxxx 00
XX-0000 Xxxxxx
Xxxxxxxxxxx
Telecopier No.: 011-41-1-297-2601
Attention: General Counsel
To the Warrant Agent:
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx, 00xx xxxxx
Xxx Xxxx, XX 00000-0000
Telecopier No.: (000) 000-0000 or 8178
Attention: Corporate Trust Department
or such other address as shall have been furnished to the party giving or making
such notice, demand or delivery. Any notice that is mailed in the manner herein
provided shall be conclusively presumed to have been duly given when mailed,
whether or not the Holder receives the notice.
(b) Payment of the Exercise Price shall be made in accordance with the
provisions of this Agreement at the office of the Warrant Agent set forth above.
(c) Any notice required to be given by the Company to the Holders
shall be made by mailing by registered mail, return receipt requested, to the
Holders at their last
45
known addresses appearing on the register maintained by the Warrant Agent. The
Company hereby irrevocably authorizes the Warrant Agent, in the name and at the
expense of the Company, to mail any such notice upon receipt thereof from the
Company. Any notice that is mailed in the manner herein provided shall be
conclusively presumed to have been duly given when mailed, whether or not the
Holder receives the notice.
SECTION 12.6. BINDING EFFECT. This Agreement shall be binding upon and
inure to the benefit of the Company and the Warrant Agent and their respective
successors and assigns, and the Holders from time to time of the Warrants.
Nothing in this Agreement is intended or shall be construed to confer upon any
Person, other than the Company, the Warrant Agent and the Holders of the
Warrants, any right, remedy or claim under or by reason of this Agreement or any
part hereof.
SECTION 12.7. COUNTERPARTS. This Agreement may be executed manually or
by facsimile in any number of counterparts, each of which shall be deemed an
original, but all of which together constitute one and the same instrument.
SECTION 12.8. AMENDMENTS. The Warrant Agent may, without the consent
or concurrence of the Holders of the Warrants, by supplemental agreement or
otherwise, join with the Company in making any changes or corrections in this
Agreement that (a) are required to cure any ambiguity or to correct any
defective or inconsistent provision or clerical omission or mistake or manifest
error herein contained or (b) add to the covenants and agreements of the Company
in this Agreement further covenants and agreements of the Company thereafter to
be observed, or surrender any rights or power reserved to or conferred upon the
Company in this Agreement; PROVIDED that in either case the Company determines
in good faith that such changes or corrections do not and will not adversely
affect, alter or change the rights, privileges or immunities of the Holders of
Warrants. Any other amendment or supplement to this Agreement may be effected
with the written consent of the Holders of a majority of the then outstanding
Warrants. In determining whether the Holders of the required number of Warrants
have concurred in any direction, waiver or consent, Warrants owned by the
Company or any Affiliate of the Company shall be disregarded and deemed not to
be outstanding. Upon the Warrant Agent's request, the Company shall promptly
provide an Officer's Certificate and Opinion of Counsel which provide all
conditions precedent to adoption of an amendment that have been satisfied, which
Opinion of Counsel may be subject to customary or otherwise appropriate
assumptions and qualifications and may rely on such Officer's Certificate as to
any matters of fact.
SECTION 12.9. HEADINGS. The descriptive headings of the several
Sections of this Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
SECTION 12.10. COMMON SHARES LEGEND. Unless and until the Common
Shares purchasable upon the exercise of the Warrants are registered under the
Securities Act, or
46
unless otherwise agreed by the Company and the Holder thereof, (a) such Common
Shares will bear a legend to the following effect:
THE COMMON SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN
THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS
EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION
HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT)
OR (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT)
(AN "INSTITUTIONAL ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON
AND IS ACQUIRING THE COMMON SHARES REPRESENTED BY THIS CERTIFICATE IN
AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE
SECURITIES ACT, (2) AGREES THAT IT WILL NOT, WITHIN THE TIME PERIOD
REFERRED TO UNDER RULE 144(k) UNDER THE SECURITIES ACT AS IN EFFECT ON
THE DATE OF SUCH TRANSFER, RESELL OR OTHERWISE TRANSFER THE COMMON
SHARES REPRESENTED BY THIS CERTIFICATE EXCEPT (A) TO THE COMPANY OR ANY
SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN
COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE THE
UNITED STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO
SUCH TRANSFER, FURNISHES TO THE TRANSFER AGENT AND REGISTRAR A SIGNED
LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO
THE RESTRICTIONS ON TRANSFER OF THE COMMON SHARES REPRESENTED BY THIS
CERTIFICATE (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRANSFER
AGENT AND REGISTRAR) AND AN OPINION OF COUNSEL ACCEPTABLE TO THE
COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT,
(D) TO A PERSON OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT THAT, FOR ANY
TRANSFER PRIOR TO FEBRUARY 19, 2000, FURNISHES TO THE TRANSFER AGENT
AND REGISTRAR, PRIOR TO SUCH TRANSFER, A SIGNED LETTER CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON
TRANSFER OF THE COMMON SHARES REPRESENTED BY THIS CERTIFICATE (THE FORM
OF WHICH LETTER CAN BE OBTAINED FROM THE TRANSFER
47
AGENT AND REGISTRAR), (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (F)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE
COMMON SHARES REPRESENTED BY THIS CERTIFICATE ARE TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY
TRANSFER OF THE COMMON SHARES REPRESENTED BY THIS CERTIFICATE WITHIN
THE TIME PERIOD REFERRED TO ABOVE, THE HOLDER MUST CHECK THE
APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER
OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRANSFER AGENT AND
REGISTRAR. IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED
INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO EACH OF
THE TRANSFER AGENT AND REGISTRAR AND THE COMPANY SUCH CERTIFICATIONS,
LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY
REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN
TO THEM BY REGULATION S UNDER THE SECURITIES ACT. THE WARRANT AGREEMENT
CONTAINS A PROVISION REQUIRING THE TRANSFER AGENT AND REGISTRAR TO
REFUSE TO REGISTER ANY TRANSFER OF THE COMMON SHARES REPRESENTED BY
THIS CERTIFICATE IN VIOLATION OF THE FOREGOING RESTRICTIONS.
(b) Each Common Share transferred pursuant to Regulation S prior to
February 19, 2000 will bear a legend to the following effect:
HEDGING TRANSACTIONS INVOLVING THE COMMON SHARES
REPRESENTED BY THIS CERTIFICATE MAY NOT BE CONDUCTED UNLESS
IN COMPLIANCE WITH THE SECURITIES ACT.
SECTION 12.11. THIRD PARTY BENEFICIARIES. The Holders shall be third
party beneficiaries to the agreements made hereunder between the Company, on the
one hand, and the Warrant Agent, on the other hand, and each Holder shall have
the right to enforce such agreements directly to the extent it deems such
enforcement necessary or advisable to protect its rights or the rights of
Holders hereunder. By acquiring Warrants, each Holder agrees to be
48
bound by the obligations of Holders generally as set forth herein and as such
obligations may be applicable to such Holder.
SECTION 12.12. TERMINATION. Except as otherwise specified herein, this
Agreement shall terminate at 5:00 p.m. (New York City time) on the tenth
anniversary of the Closing Date. Notwithstanding the foregoing, this Agreement
shall terminate on any earlier date as of which all Warrants have been
exercised.
SECTION 12.13. METHOD OF PAYMENT. The U.S. dollar is the sole currency
of account and payment for all sums payable by the Company or the Holders under
or in connection with the Warrants, including damages.
SECTION 12.13. AGENT FOR SERVICE; SUBMISSION TO JURISDICTION; WAIVER
OF IMMUNITIES; GOVERNING LAW. The Company (i) irrevocably designates and
appoints CT Corporation System, 0000 Xxxxxxxx, Xxx Xxxx, XX 00000 (together with
any successor, the "Authorized Agent") as its authorized agent upon which
process may be served in any suit, action or proceeding arising out of or
relating to the Warrants or this Agreement that may be instituted in any federal
or state court in the State of New York, Borough of Manhattan, or brought under
federal or state securities laws or brought by the Warrant Agent, and represents
and warrants that the Authorized Agent has accepted such designation and (ii)
agrees that service of process upon the Authorized Agent and written notice of
said service to the Company (mailed or delivered to its General Counsel at its
executive office at Xxxxxxxxxxxxxx 00, XX-0000 Xxxxxx, Xxxxxxxxxxx) shall be
deemed in every respect effective service of process upon the Company in any
such suit or proceeding. The Company further agrees to take any and all action,
including the execution and filing of any and all such documents and
instruments, as may be necessary to continue such designation and appointment of
the Authorized Agent in full force and effect so long as this Agreement shall be
in full force and effect or any of the Warrants shall be outstanding.
The Company irrevocably agrees that any legal suit, action or
proceeding arising out of or relating to this Agreement and the transactions
contemplated hereby may be instituted in any federal or state court in the
Borough of Manhattan, The City of New York, the State of New York and
irrevocably waives, to the fullest extent permitted by law, any objection which
it may now or hereafter have to the laying of the venue of any such suit, action
or proceeding and any claim of inconvenient forum, and irrevocably submits to
the non-exclusive jurisdiction of any such court in any such suit, action or
proceeding.
To the extent that the Company has or hereafter may acquire any
immunity from jurisdiction of any court or from any legal process (whether
through service of notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to itself or its property, the
Company hereby irrevocably waives such immunity in respect of its obligations
under this Agreement and the Warrants, to the extent permitted by law.
49
This Agreement shall be governed by the laws of the State of New York.
50
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed, as of the day and year first above written.
CARRIER1 INTERNATIONAL S.A.
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Director
By: /s/ Xxxxxx Xxxxxx
----------------------------------------
Name: Xxxxxx Xxxxxx
Title: Authorized Officer
CARRIER ONE, L.L.C.
(solely with respect to the second paragraph
of Article VII)
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Chairman
THE CHASE MANHATTAN BANK
By: /s/ Xxxxxxx Xxxxx
----------------------------------------
Name: Xxxxxxx Xxxxx
Title: Assistant Treasurer
51
EXHIBIT A
FORM OF DOLLAR WARRANT CERTIFICATE
CARRIER1 INTERNATIONAL S.A.
[CUSIP] [CINS] [ISIN] [COMMON CODE] No. _____
No. _____
DOLLAR WARRANTS TO PURCHASE COMMON SHARES
This certifies that ______________, or its registered assigns, is the
owner of ___________ Dollar Warrants, each of which represents the right to
purchase from CARRIER1 INTERNATIONAL S.A., a societe anonyme organized under
the laws of the Grand Duchy of Luxembourg (the "COMPANY"), after February 19,
2000 (or in connection with an initial public offering of equity securities of
the Company), 6.71013 shares of the Common Stock, par value $2.00, of the
Company (the "COMMON SHARES") at a per share exercise price (the "EXERCISE
PRICE") equal to the greater of $2.00 and the minimum par value required by
Luxembourg law (excluding any Luxembourg capital duty which is payable by the
Company) (subject to adjustment as provided in the Warrant Agreement hereinafter
referred to below), upon surrender hereof at the office of The Chase Manhattan
Bank, or to its successor, as the warrant agent under the Warrant Agreement (any
such warrant agent being herein called the "WARRANT AGENT"), with the
Subscription Form on the reverse hereof duly executed, with signature guaranteed
as therein specified and simultaneous payment in full by wire transfer or by
certified or official bank or bank cashier's check payable to the order of the
Company. At any time after one year after the Closing Date and on or before the
Expiration Date (unless redeemed as described below), any outstanding Warrants
may be exercised on any Business Day; PROVIDED that the Warrants will become
exercisable in connection with the initial public offering of equity securities
of the Company and PROVIDED FURTHER that the Warrant Registration Statement is,
at the time of exercise, effective and available for the exercise of Warrants or
the exercise of such Warrants is exempt from the registration requirements of
the Securities Act. At any time within ten days of the Expiration Date, the
Company may redeem (or cause an Affiliate of the Company to repurchase) all
unexercised Warrants at a redemption or repurchase price of $0.01 per share.
This Warrant Certificate is issued under and in accordance with a
Dollar Warrant Agreement dated as of February 19, 1999 (the "WARRANT
AGREEMENT"), between the Company and The Chase Manhattan Bank, as Warrant Agent,
and a Registration Rights Agreement dated as of February 12, 1999 (the "WARRANT
REGISTRATION RIGHTS AGREEMENT"), between the Company and The Chase Manhattan
Bank, as Warrant Agent, and is subject to the Articles of Incorporation of the
Company and to the terms and provisions contained therein, to all of which terms
and provisions the holder of this Warrant Certificate consents by
A-1
acceptance hereof. The terms of the Warrant Agreement and the Warrant
Registration Rights Agreement are hereby incorporated herein by reference and
made a part hereof. Reference is hereby made to the Warrant Agreement and the
Warrant Registration Rights Agreement for a full description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Company and the Holders of the Warrants. The summary of the terms of the Warrant
Agreement and the Warrant Registration Rights Agreement contained in this
Warrant Certificate is subject to and qualified in its entirety by express
reference to the Warrant Agreement and the Warrant Registration Rights
Agreement. To the extent permitted by applicable law, in the event of any
inconsistency between the terms of this Warrant and the terms of the Warrant
Agreement or the Warrant Registration Rights Agreement, the terms of the Warrant
Agreement or the Warrant Registration Rights Agreement, as applicable, shall
govern. All terms used in this Warrant Certificate that are defined in the
Warrant Agreement and the Warrant Registration Rights Agreement shall have the
meanings assigned to them in such agreements.
Copies of the Warrant Agreement and the Warrant Registration Rights
Agreement are on file at the office of the Warrant Agent and may be obtained by
writing to the Warrant Agent at the following address:
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx, 00xx xxxxx
Xxx Xxxx, XX 00000-0000
Telecopier No.: (000) 000-0000 or 8178
Attention: Corporate Trust Department
A "REPURCHASE EVENT," as defined in the Warrant Agreement, shall be
deemed to occur on, any date when the Company (i) consolidates with or merges
into or with another person (but only where the holders of Common Stock receive
consideration in exchange for all or part of such Common Stock), if the Common
Stock (or other securities) thereafter purchasable upon exercise of the Warrants
is not registered under the Exchange Act or (ii) sells all or substantially all
of its assets to another person, if the Common Stock (or other securities)
thereafter purchasable upon exercise of the Warrants is not registered under the
Exchange Act; PROVIDED that in each case a "Repurchase Event" shall not be
deemed to have occurred if the consideration for such transaction consists
solely of cash.
Following a Repurchase Event, the Company must make (or must cause an
affiliate to make) an offer to repurchase for cash all outstanding Warrants (a
"REPURCHASE OFFER") and Holders may, until the expiration date of such offer,
surrender all or part of their Warrants for repurchase by the Company (or such
affiliate).
Warrants received by the Warrant Agent in proper form during a
Repurchase Offer will, except as otherwise provided in the Warrant Agreement, be
repurchased by the Company (or such affiliate) at a price in cash (the
"REPURCHASE PRICE") equal to the value on
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the Valuation Date relating thereto of the Common Shares and other securities or
property which would have been delivered upon exercise of the Warrants had the
Warrants been exercised, less the Exercise Price (regardless of whether the
Warrants are then exercisable). The value of such Common Shares and other
securities will be (i) if the Common Shares (or other securities) are registered
under the Exchange Act, determined based upon the average of the closing sales
prices (as determined pursuant to Section 3.4(d)(ii)(1) of the Warrant
Agreement) of the Common Shares (or other securities) for the 20 consecutive
trading days (or fewer in certain cases) immediately preceding such Valuation
Date or (ii) if the Common Shares (or other securities) are not registered under
the Exchange Act or if the value cannot be computed under clause (i) above,
determined by the Independent Financial Expert (as defined in the Warrant
Agreement), in each case as set forth in the Warrant Agreement.
The "VALUATION DATE," as defined in the Warrant Agreement, shall be
deemed to occur on the date five Business Days prior to the date notice of the
Repurchase Offer is first given.
If the Company merges or consolidates with or into, or sells all or
substantially all of its property and assets to, another Person and the
consideration received by holders of Common Shares consists solely of cash, the
Holders of Warrants shall be entitled to receive payments or distributions as of
the date of such event on an equal basis with, and on the same day as, holders
of Common Shares (or other securities purchasable upon exercise of the Warrants)
as if the Warrants had been exercised immediately prior to such event (less an
amount equal to the Exercise Price). Upon receipt of such payment, if any, the
rights of a Holder shall terminate and cease and such Holder's Warrants shall
expire.
The number of Common Shares purchasable upon the exercise of each
Warrant and the price per share are subject to adjustment as provided in the
Warrant Agreement. Except as stated in the immediately preceding paragraph, in
the event the Company merges or consolidates with, or sells all or substantially
all of its assets to, another Person, each Warrant will, upon exercise, entitle
the Holder thereof to receive the number of shares of capital stock or other
securities or the amount of money and other property which the holder of a
Common Share (or other securities or property purchasable upon exercise of a
Warrant) is entitled to receive upon completion of such merger, consolidation or
sale.
As to any final fraction of a share which the same Holder of one or
more Warrant Certificates would otherwise be entitled to purchase upon exercise
thereof in the same transaction, the Company may pay the cash value thereof
determined as provided in the Warrant Agreement.
Subject to Article VI and VII of the Warrant Agreement, all Common
Shares purchasable by the Company upon the exercise of Warrants shall be validly
issued, fully paid and not subject to any calls for funds, and the Company shall
pay any taxes and other governmental charges that may be imposed under the laws
of Luxembourg and the United
A-3
States of America or any political subdivision or taxing authority thereof or
therein in respect of the issue or delivery thereof upon exercise of Warrants
(other than taxes on or measured by income imposed on any Holder). The Company
shall not be required, however, to pay any tax or other charge imposed in
connection with any transfer involved in the issue of any certificate for Common
Shares (including other securities or property purchasable upon the exercise of
the Warrants) or payment of cash to any Person other than the Holder of a
Warrant Certificate surrendered upon the exercise of a Warrant and in case of
such transfer or payment, the Warrant Agent and the Company shall not be
required to issue any share certificate or pay any cash until such tax or charge
has been paid or it has been established to the Warrant Agent's and the
Company's satisfaction that no such tax or charge is due.
Subject to the restrictions on and conditions to transfer set forth in
Article II and Article VIII of the Warrant Agreement, this Warrant Certificate
and all rights hereunder are transferable by the registered Holder hereof, in
whole or in part, on the register of the Company maintained by the Warrant Agent
for such purpose at the Warrant Agent's office in New York, New York, upon
surrender of this Warrant Certificate duly endorsed, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Warrant Agent
duly executed, with signatures guaranteed as specified in the attached Form of
Assignment, by the registered Holder hereof or his attorney duly authorized in
writing and by such other documentation required pursuant to the Warrant
Agreement and upon payment of any necessary transfer tax or other governmental
charge imposed upon such transfer. Upon any partial transfer, the Company will
sign and issue and the Warrant Agent will countersign and deliver to such Holder
a new Warrant Certificate or Certificates with respect to any portion not so
transferred. Each taker and Holder of this Warrant Certificate, by taking and
holding the same, consents and agrees that prior to the registration of transfer
as provided in the Warrant Agreement, the Company and the Warrant Agent may
treat the person in whose name the Warrants are registered as the absolute owner
hereof for any purpose and as the Person entitled to exercise the rights
represented hereby, any notice to the contrary notwithstanding. Accordingly, the
Company and/or the Warrant Agent shall not, except as ordered by a court of
competent jurisdiction as required by law, be bound to recognize any equitable
or other claim to or interest in the Warrants on the part of any person other
than such Registered Holder, whether or not it shall have express or other
notice thereof.
This Warrant Certificate may be exchanged at the office of the Warrant
Agent maintained for such purpose in New York, New York, for Warrant
Certificates representing the same aggregate number of Warrants, each new
Warrant Certificate to represent such number of Warrants as the Holder hereof
shall designate at the time of such exchange.
Prior to the exercise of the Warrants represented hereby, the Holder
of this Warrant Certificate, as such, shall not be entitled to any rights of a
shareholder of the Company, including, without limitation, the right to vote or
to consent to any action of the shareholders, to receive any distributions, to
exercise any pre-emptive right or to receive any
A-4
notice of meetings of shareholders, and shall not be entitled to receive any
notice of any proceedings of the Company except as provided in the Warrant
Agreement.
This Warrant Certificate shall be void and all rights evidenced hereby
shall cease on February 19, 2009, unless sooner terminated by the liquidation,
dissolution or winding-up of the Company or as otherwise provided in the Warrant
Agreement upon the consolidation or merger of the Company with, or sale of the
Company to, another Person or unless such date is extended as provided in the
Warrant Agreement (including Section 3.5 thereof).
The Company (i) irrevocably designates and appoints CT Corporation
System, 0000 Xxxxxxxx, Xxx Xxxx, XX 00000 (together with any successor, the
"AUTHORIZED AGENT") as its authorized agent upon which process may be served in
any suit, action or proceeding arising out of or relating to the Warrants or the
Warrant Agreement that may be instituted in any federal or state court in the
State of New York, Borough of Manhattan, or brought under federal or state
securities laws and (ii) agrees that service of process upon the Authorized
Agent and written notice of said service to the Company (mailed or delivered to
its General Counsel at its executive office at Xxxxxxxxxxxxxx 00, XX-0000
Xxxxxx, Xxxxxxxxxxx), shall be deemed in every respect effective service of
process upon the Company in any such suit or proceeding.
The Company irrevocably agrees that any legal suit, action or
proceeding arising out of or relating to the Warrant Agreement and the Warrants
and the transactions contemplated thereby may be instituted in any federal or
state court in the Borough of Manhattan, The City of New York, the State of New
York and irrevocably waives, to the fullest extent permitted by law, any
objection which it may now or hereafter have to the laying of the venue of any
such suit, action or proceeding and any claim of inconvenient forum, and
irrevocably submits to the non-exclusive jurisdiction of any such court in any
such suit, action or proceeding.
To the extent that the Company has or hereafter may acquire any
immunity from jurisdiction of any court or from any legal process (whether
through service of notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to itself or its property, the
Company hereby irrevocably waives such immunity in respect of its obligations
under the Warrant Agreement and the Warrants, to the extent permitted by law.
The Warrant Agreement and the Warrants shall be governed by the laws
of the State of New York.
A-5
This Warrant Certificate shall not be valid for any purpose until it
shall have been countersigned by the Warrant Agent.
CARRIER1 INTERNATIONAL S.A.
By:
----------------------------------------
Name:
Title:
[By:
----------------------------------------
Name:
Title:]
Dated:
Countersigned:
THE CHASE MANHATTAN BANK,
as Warrant Agent
By:
------------------------
Authorized Signatory
A-6
FORM OF REVERSE OF DOLLAR WARRANT CERTIFICATE
SUBSCRIPTION FORM
(To be executed only upon exercise of Dollar Warrant)
To: The Chase Manhattan Bank,
as Warrant Agent
000 Xxxx 00xx Xxxxxx, 00xx xxxxx
Xxx Xxxx, XX 00000-0000
Telecopier No.: (000) 000-0000 or 8178
Attention: Corporate Trust Department
The undersigned irrevocably exercises ________ of the Dollar Warrants
represented by this Warrant Certificate and herewith makes payment of $ _______
(such payment being in cash or by certified or official bank or bank cashier's
check payable to the order or at the direction of Carrier1 International S.A. on
the terms and conditions specified in this Warrant Certificate and in the Dollar
Warrant Agreement and the Warrant Registration Rights Agreement referred to
herein and surrenders this Warrant Certificate and all right, title and interest
therein to and directs that the Common Shares, par value $2.00, of Carrier1
International S.A. (the "COMMON SHARES") deliverable upon the exercise of such
Dollar Warrants be registered or placed in the name and at the address specified
below and delivered thereto.
[THE FOLLOWING PROVISION TO BE INCLUDED ONLY
ON CERTIFICATED DOLLAR WARRANTS TRANSFERRED UNDER REGULATION S]
The undersigned certifies that:
CHECK ONE
(a) (i) it is not a U.S. person (as defined in Rule 902 of
Regulation S under the U.S. Securities Act of 1933, as
amended) and the Dollar Warrants are not being exercised on
behalf of a U.S. person.
OR
(ii) it is furnishing to the Warrant Agent a written opinion
of counsel to the effect that the Dollar Warrants and the
Common Shares purchasable upon exercise of the Dollar
Warrants have been registered under the U.S. Securities Act
of 1933, as amended, or are exempt from registration
thereunder.
A-7
and (b) if an opinion is not being furnished, the undersigned is located outside
the United States at the time of the exercise hereof.
Dated:
-------------------------------
(Signature of Owner)
-------------------------------
(Street Address)
-------------------------------
(City) (State) (Zip Code)
Signature Guaranteed By:
-------------------------------
Signatures must be guaranteed by an
"eligible guarantor institution"
meeting the requirements of the
Warrant Agent, which requirements
include membership or participation
in the Security Transfer Agent
Medallion Program ("STAMP") or such
other "signature guarantee program"
as may be determined by the Warrant
Agent in addition to, or in
substitution for, STAMP, all in
accordance with the Securities
Exchange Act of 1934, as amended.
Securities and/or check or other property to be issued or delivered to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
A-8
FORM OF CERTIFICATE FOR REPURCHASE OFFER
(To be executed only upon repurchase
of Dollar Warrant by Carrier1 International S.A.)
To:
The undersigned, having received prior notice of the consideration for
which CARRIER1 INTERNATIONAL S.A. will repurchase (or cause an affiliate to
repurchase) the Dollar Warrants represented by the within Warrant Certificate,
hereby surrenders this Warrant Certificate for repurchase by CARRIER1
INTERNATIONAL S.A. (or such affiliate) of the number of Dollar Warrants
specified below for the consideration set forth in such notice.
Dated:
-------------------------
(Number of Dollar Warrants)
-------------------------
(Signature of Owner)
-------------------------
(Street Address)
-------------------------
(City) (State) (Zip Code)
Signature Guaranteed By:
---------------------------
Signatures must be guaranteed by an
"eligible guarantor institution" meeting
the requirements of the Warrant Agent,
which requirements include membership or
participation in the Security Transfer
Agent Medallion Program ("STAMP") or
such other "signature guarantee program"
as may be determined by the Warrant
Agent in addition to, or in substitution
for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as
amended.
Securities and/or check to be issued to:
A-9
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
A-10
FORM OF ASSIGNMENT
In consideration of monies or other valuable consideration received
from the Assignee(s) named below, the undersigned registered Holder of this
Warrant Certificate hereby sells, assigns, and transfers unto the Assignee(s)
named below (including the undersigned with respect to any Dollar Warrants
constituting a part of the Dollar Warrants evidenced by this Warrant Certificate
not being assigned hereby) all of the right of the undersigned under this
Warrant Certificate, with respect to the number of Dollar Warrants set forth
below:
Name(s) of Assignee(s):
-------------------------------------
Address:
--------------------------------------------------
No. of Dollar Warrants:
-------------------------------------------
Please insert social security or other identifying number of assignee(s):
and does hereby irrevocably constitute and appoint ________________________ the
undersigned's attorney to make such transfer on the books of __________________
maintained for the purposes, with full power of substitution in the premises.
In connection with any transfer of Dollar Warrants, the
undersigned confirms that without utilizing any general solicitation or general
advertising that:
CHECK ONE
|_| (a) these Dollar Warrants are being transferred in compliance with
the exemption from registration under the U.S. Securities Act of
1933, as amended, provided by Rule 144A thereunder.
OR
|_| (b) these Dollar Warrants are being transferred other than in
accordance with (a) above and documents are being furnished which
comply with the conditions of transfer set forth in this Warrant
Certificate and the Dollar Warrant Agreement.
OR
|_| (c) these Dollar Warrants are being transferred pursuant to an
effective registration statement under the U.S. Securities Act of
1933, as amended.
If none of the foregoing boxes is checked, the Warrant Agent shall not be
obligated to register the Dollar Warrants in the name of any Person other than
the Holder hereof unless and until
A-11
the conditions to any such transfer of registration set forth herein and in
Article VIII of the Dollar Warrant Agreement shall have been satisfied.
Dated:
---------------------------------
(Signature of Owner)
---------------------------------
(Street Address)
---------------------------------
(City) (State) (Zip Code)
Signature Guaranteed By:
---------------------------------
Signatures must be guaranteed by an
"eligible guarantor institution" meeting
the requirements of the Warrant Agent,
which requirements include membership or
participation in the Security Transfer
Agent Medallion Program ("STAMP") or
such other "signature guarantee program"
as may be determined by the Warrant
Agent in addition to, or in substitution
for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as
amended.
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing the
Dollar Warrant(s) for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the U.S.
Securities Act of 1933, as amended, and is aware that the sale to it is being
made in reliance on Rule 144A and acknowledges that it has received such
information regarding Carrier1 International S.A. as the undersigned has
requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated:
----------------
A-12
-----------------------------------------------
[NOTE: To be executed by an executive officer]
X-00
XXXXXXX X-0
Form of Certificate to Be Delivered
by Transferors in Connection with
TRANSFERS PURSUANT TO REGULATION S
[Date]
Carrier1 International S.A.
X-0000, Xxxxxxxx
Xxxxx X'Xxxxx 0
Xxxxxxxxxx
Telecopier No.: 011-352-451-452-408
Carrier1 International GmbH
Xxxxxxxxxxxxxx 00
XX-0000 Xxxxxx
Xxxxxxxxxxx
Telecopier No.: 011-41-1-297-2601
Attention: General Counsel
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx, 00xx xxxxx
Xxx Xxxx, XX 00000-0000
Telecopier No.: (000) 000-0000 or 8178
Attention: Corporate Trust Department
Re: Dollar Warrants (the "WARRANTS") to Purchase
Common Shares of Carrier1 International S.A. (the "COMPANY")
Ladies and Gentlemen:
In connection with our proposed sale of _______________ Warrants, we
hereby certify that such sale has been effected pursuant to and in accordance
with Regulation S under the U.S. Securities Act of 1933, as amended (the
"SECURITIES ACT"), and, accordingly, we represent that:
(1) the offer of the Warrants (and any Units of which they may form a
part) was not made to a person in the United States and not to a U.S.
Person (as defined in Regulation S under the Securities Act);
B1-1
(2) at the time the buy order was originated, the transferee was
outside the United States or we and any person acting on our behalf
reasonably believed that the transferee was outside the United States;
(3) no directed selling efforts (as such term is defined in Rule
902(b) of Regulation S under the Securities Act) have been made by us,
any of our affiliates or any persons acting on our behalf in the
United States in contravention of the requirements of Rule 903(b) or
Rule 904(b) of Regulation S under the Securities Act, as applicable;
and
(4) the transfer is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
The Warrant Agent and the Company are entitled to rely upon this
letter and are irrevocably authorized to produce this letter or a copy hereof to
any interested party in any administrative or legal proceedings or official
inquiry with respect to the matters covered hereby. Terms used in this
certificate have the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:
--------------------------------
Authorized Signature
B1-2
B2-1
EXHIBIT B-2
Form of Certificate to Be
Delivered by Transferees in Connection with
TRANSFERS PURSUANT TO REGULATION S
[Date]
Carrier1 International S.A.
X-0000, Xxxxxxxx
Xxxxx X'Xxxxx 0
Xxxxxxxxxx
Telecopier No.: 011-352-451-452-408
Carrier1 International GmbH
Xxxxxxxxxxxxxx 00
XX-0000 Xxxxxx
Xxxxxxxxxxx
Telecopier No.: 011-41-1-297-2601
Attention: General Counsel
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx, 00xx xxxxx
Xxx Xxxx, XX 00000-0000
Telecopier No.: (000) 000-0000 or 8178
Attention: Corporate Trust Department
Re: Dollar Warrants (the "WARRANTS") to Purchase
Common Shares of Carrier1 International S.A. (the "COMPANY")
Dear Sirs:
In connection with our proposed purchase of ___________ aggregate
number of Warrants, we certify that:
1. We understand that any subsequent transfer of the
Warrants, any interest therein or the Common Shares purchasable upon
exercise of any Warrant (the "WARRANT SHARES") is subject to certain
restrictions and conditions set forth in the Dollar Warrant Agreement
dated as of February 19, 1999 relating to the Warrants (the "WARRANT
AGREEMENT") and the undersigned agrees to be bound by, and not to
resell, pledge or
B2-2
otherwise transfer the Warrants or Warrant Shares except in compliance
with, such restrictions and conditions and the U.S. Securities Act of
1933, as amended (the "SECURITIES ACT").
2. We understand that the Warrants represented by this
Warrant Certificate have not been registered under the Securities Act,
and accordingly may not be offered or sold within the United States or
to, or for the account or benefit of, U.S. persons (as defined in
Regulation S) except as set forth in the following sentence. We agree
that if, within the time period referred to under Rule 144(k) of the
Securities Act as in effect on the date of such transfer, we decide
(for our self or for any account for which we are acting) to resell or
otherwise transfer the Warrants or Warrant Shares, we will do so only
(a) to the Company or any subsidiary thereof, (b) to a qualified
institutional buyer in compliance with Rule 144A under the Securities
Act, (c) to an institutional accredited investor as defined in Rule
501(a)(1),(2),(3) or (7) under the Securities Act that furnishes to
the Warrant Agent, with respect to the Warrants, and to the Transfer
Agent and Registrar, with respect to the Warrant Shares, and the
Company, prior to such transfer, a signed letter containing certain
representations and agreements relating to the restrictions on
transfer of the Warrants and the Warrant Shares (the form of which
letter can be obtained from the Warrant Agent or the Transfer Agent
and Registrar, as the case may be) and an opinion of counsel
acceptable to the Company that such transfer is in compliance with the
Securities Act, (d) to a person outside the United States in an
offshore transaction in compliance with Regulation S under the
Securities Act that, for any transfer prior to February 19, 2000,
furnishes to the Warrant Agent, the Transfer Agent and Registrar and
the Company, prior to such transfer, a signed letter containing
certain representations and agreements relating to the restrictions on
transfer of the Warrants and Warrant Shares represented by this
Warrant Certificate (the form of which letter can be obtained from the
Warrant Agent and the Transfer Agent and Registrar), (e) pursuant to
the exemption from registration provided by Rule 144 under the
Securities Act (if available), or (f) pursuant to an effective
registration statement under the Securities Act. We further understand
that the Warrants purchased by us will bear a legend to the foregoing
effect during such period, which legend may be removed after such
period upon receipt of a certificate by Warrant Agent or Transfer
Agent and Registrar (the form of which can be obtained from the
Warrant Agent or Transfer Agent and Registrar, as the case may be);
3. We are purchasing the Warrants for our own account or an
account with respect to which we exercise sole investment discretion
and that we and any such account are each a foreign purchaser that is
outside the United States (or a foreign purchaser that is a dealer or
other fiduciary), and that we and any such account are not a U.S.
person (as defined in Regulation S) and we are not acquiring the
Warrants the account or benefit of any U.S. person;
B2-3
4. We represent and agree that hedging transactions
involving the Warrants and the Warrant Shares may not be conducted
unless in compliance with the Securities Act and that, during the
distribution compliance period (defined as one year after the date of
the closing), the Warrants and the Warrant Shares will bear a legend
to this effect, and that we will not engage in any such hedging
transactions.
5. We understand that, prior to February 19, 2000, Warrants
sold pursuant to Regulation S under the Securities Act will be
represented solely by certificated Warrants in registered form.
6. We understand that the Company, the Warrant Agent or the
Transfer Agent and Registrar, as the case may be, will refuse to
register any transfer of Warrants or Warrant Shares not made in
accordance with Regulation S, pursuant to registration under the
Securities Act or pursuant to an available exemption from
registration.
7. We agree that we will deliver to each person to whom we
transfer any of the Warrants and Warrant Shares notice of any
restrictions on transfer of such securities.
8. We understand that the Warrants and the Warrant Shares
have not been registered under the Securities Act and that the
Warrants may not be exercised unless registered under the Securities
Act or an exemption from such registration is available and that we
will be required to make certain representations to the Warrant Agent,
the Transfer Agent and Registrar and the Company upon exercise of the
Warrants. It further understands that the Warrants will bear a legend
to the foregoing effect.
9. If we are acquiring any Warrants or Warrant Shares as a
fiduciary or agent for one or more investor accounts, we represent
that we have sole investment discretion with respect to each such
account and we have full power to make the foregoing acknowledgments,
representations and agreements on behalf of each such account.
10. The transfer restrictions applicable to the Warrant and
the provisions of this certificate are also applicable to any Unit of
which this Warrant may form a part.
The Warrant Agent and the Company are entitled to rely upon this
letter and are irrevocably authorized to produce this letter or a copy hereof to
any interested party in any administrative or legal proceedings or official
inquiry with respect to the matters covered hereby. We agree to notify the
Warrant Agent promptly if any of our representations herein ceases to be
accurate and complete.
B2-4
Very truly yours,
[Name of Transferee]
By:
-----------------------------
Authorized Signature
C1-1
EXHIBIT C-1
Form of Certificate to Be
Delivered by Transferors in Connection with
TRANSFERS TO INSTITUTIONAL ACCREDITED INVESTORS
[Date]
Carrier1 International S.A.
X-0000, Xxxxxxxx
Xxxxx X'Xxxxx 0
Xxxxxxxxxx
Telecopier No.: 011-352-451-452-408
Carrier1 International GmbH
Xxxxxxxxxxxxxx 00
XX-0000 Xxxxxx
Xxxxxxxxxxx
Telecopier No.: 011-41-1-297-2601
Attention: General Counsel
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx, 00xx xxxxx
Xxx Xxxx, XX 00000-0000
Telecopier No.: (000) 000-0000 or 8178
Attention: Corporate Trust Department
Re: Dollar Warrants (the "WARRANTS") to Purchase
Common Shares of Carrier1 International S.A. (the "COMPANY")
Ladies and Gentlemen:
We hereby certify that such transfer is being effected in compliance
with the transfer restrictions applicable to the Warrants or interests therein
transferred pursuant to and in accordance with the U.S. Securities Act of 1933,
as amended (the "SECURITIES ACT"), and accordingly we hereby further certify
that (check one):
(a) |_| such transfer is being effected pursuant to and in accordance
with Rule 144 under the Securities Act; or
C1-2
(b) |_| such transfer is being effected to the Company or a subsidiary
thereof;
or
(c) |_| such transfer is being effected pursuant to an effective
registration statement under the Securities Act;
or
(d) |_| such transfer is being effected pursuant to an exemption from
the registration requirements of the Securities Act other than Rule 144A, Rule
144 or Rule 904 thereunder, and we hereby further certify that such transfer
complies with the transfer restrictions applicable to the Warrants or interests
therein transferred to institutional accredited investors as defined in Rule
501(a)(1), (2), (3) and (7) under the Securities Act and in accordance with the
requirements of the exemption claimed, which certification is supported by an
opinion of counsel provided by us or the transferee (a copy of which we have
attached to this certification), to the effect that such transfer is in
compliance with the Securities Act. Upon consummation of the proposed transfer
in accordance with the terms of the Dollar Warrant Agreement, the transferred
Warrants or interests therein will be subject to the restrictions on transfer
enumerated in the private placement legend printed on the Certificated Warrant
and in the Dollar Warrant Agreement and the Securities Act.
Very truly yours,
[Name of Transferor]
By:
------------------------------------
Authorized Signatory
EXHIBIT C-2
Form of Certificate to Be
Delivered by Transferees in Connection with
TRANSFERS TO INSTITUTIONAL ACCREDITED INVESTORS
[Date]
Carrier1 International S.A.
X-0000, Xxxxxxxx
Xxxxx X'Xxxxx 0
Xxxxxxxxxx
Telecopier No.: 011-352-451-452-408
Carrier1 International GmbH
Xxxxxxxxxxxxxx 00
XX-0000 Xxxxxx
Xxxxxxxxxxx
Telecopier No.: 011-41-1-297-2601
Attention: General Counsel
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx, 00xx xxxxx
Xxx Xxxx, XX 00000-0000
Telecopier No.: (000) 000-0000 or 8178
Attention: Corporate Trust Department
Re: Dollar Warrants (the "WARRANTS") to Purchase
Common Shares of Carrier1 International S.A. (the "COMPANY")
Dear Sirs:
In connection with our proposed purchase of ___________ aggregate
number of Warrants, we certify that:
1. We understand that any subsequent transfer of the
Warrants, any interest therein or the Common Shares purchasable upon
exercise of any Warrant (the "WARRANT SHARES") is subject to certain
restrictions and conditions set forth in the Dollar Warrant Agreement
dated as of February 19, 1999 relating to the Warrants (the
"AGREEMENT") and the undersigned agrees to be bound by, and not to
resell, pledge or otherwise
C2-2
transfer the Warrants or Warrant Shares except in compliance with,
such restrictions and conditions and the U.S. Securities Act of 1933,
as amended (the "SECURITIES ACT").
2. We understand that the Warrants and the Warrant Shares
have not been registered under the Securities Act, and that the
Warrants and the Warrant Shares may not be offered or sold except as
set forth in the following sentence. We agree that if, within the time
period referred to under Rule 144(k) of the Securities Act as in
effect on the date of such transfer, we decide (for our self or for
any account for which we are acting) to resell or otherwise transfer
the Warrants or Warrant Shares, we will do so only (a) to the Company
or any subsidiary thereof, (b) to a qualified institutional buyer in
compliance with Rule 144A under the Securities Act, (c) to an
institutional accredited investor as defined in Rule 501(a)(1),(2),(3)
or (7) under the Securities Act that furnishes to the Warrant Agent,
with respect to the Warrants, and to the Transfer Agent and Registrar,
with respect to the Warrant Shares, and the Company, prior to such
transfer, a signed letter containing certain representations and
agreements relating to the restrictions on transfer of the Warrants
and the Warrant Shares (the form of which letter can be obtained from
the Warrant Agent or the Transfer Agent and Registrar, as the case may
be) and an opinion of counsel acceptable to the Company that such
transfer is in compliance with the Securities Act, (d) to a person
outside the United States in an offshore transaction in compliance
with Regulation S under the Securities Act that, for any transfer
prior to February 19, 2000, furnishes to the Warrant Agent, the
Transfer Agent and Registrar and the Company, prior to such transfer,
a signed letter containing certain representations and agreements
relating to the restrictions on transfer of the Warrants and Warrant
Shares represented by this Warrant Certificate (the form of which
letter can be obtained from the Warrant Agent and the Transfer Agent
and Registrar), (e) pursuant to the exemption from registration
provided by Rule 144 under the Securities Act (if available), or (f)
pursuant to an effective registration statement under the Securities
Act. We further understand that the Warrants purchased by us will bear
a legend to the foregoing effect during such period, which legend may
be removed after such period upon receipt of a certificate by the
Warrant Agent or Transfer Agent and Registrar (the form of which can
be obtained from the Warrant Agent or Transfer Agent and Registrar, as
the case may be).
3. We understand that, on any proposed resale of any
Warrants, we will be required to furnish to the Warrant Agent and the
Company such certifications, legal opinions and other information as
the Warrant Agent and the Company may reasonably require to confirm
that the proposed sale complies with the foregoing restrictions.
4. We are an institutional accredited investor (as defined
in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the
Securities Act) and have such knowledge and experience in financial
and business matters as to be capable of evaluating the merits and
C2-3
risks of our investment in the Warrants, and we and any accounts for
which we are acting are each able to bear the economic risk of our or
its investment for an indefinite period of time.
5. We are acquiring the Warrants purchased by us for our own
account or for one or more accounts (each of which is an institutional
accredited investor) as to each of which we exercise sole investment
discretion.
6. The transfer restrictions applicable to the Warrant and
the provisions of this certificate are also applicable to any Unit of
which this Warrant may form a part.
The Warrant Agent and the Company are entitled to rely upon this
letter and are irrevocably authorized to produce this letter or a copy hereof to
any interested party in any administrative or legal proceedings or official
inquiry with respect to the matters covered hereby.
Very truly yours,
[Name of Transferee]
By:
------------------------------
Authorized Signature
APPENDIX A
LIST OF FINANCIAL EXPERTS
BT Alex. Xxxxx Incorporated
Bear, Xxxxxxx & Co., Inc.
Warburg Dillon Read LLC
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
Xxxxxxx, Sachs & Co.
Lazard Freres & Co. LLC
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxx Xxxxxxx & Co. Incorporated
PaineWebber Incorporated
Prudential Securities Incorporated
Xxxxxxx Xxxxx Barney Inc.
Xxxxxx Brothers Inc.
Chase Securities Inc.
CIBC Xxxxxxxxxxx Corp.
Credit Suisse First Boston Corporation
X.X. Xxxxxx Securities Inc.
