EXHIBIT 4.4
EXECUTION COPY
================================================================================
Cybernet Internet Services International Inc.
$150,000,000 14% Senior Notes due 2009
REGISTRATION RIGHTS AGREEMENT
-----------------------------
Dated as of July 8, 1999
Among
Cybernet Internet Services International, Inc.,
Xxxxxx Brothers International (Europe)
and
Xxxxxx Xxxxxxx & Co. International Limited
================================================================================
TABLE OF CONTENTS
-----------------
Page
1. Definitions.......................................................... 1
2. Exchange Offer....................................................... 4
3. Shelf Registration Statement......................................... 8
4. Liquidated Damages................................................... 9
5. Registration Procedures.............................................. 10
6. Registration Expenses................................................ 17
7. Indemnification and Contribution..................................... 18
8. Rule 144A............................................................ 22
9. Underwritten Registrations........................................... 22
10. Miscellaneous ....................................................... 22
(a) No Inconsistent Agreements...................................... 22
(b) Adjustments Affecting Transfer Restricted Securities............ 23
(c) Amendments and Waivers.......................................... 23
(d) Notices......................................................... 23
(e) Successors and Assigns.......................................... 24
(f) Counterparts.................................................... 25
(g) Headings........................................................ 25
(h) Governing Law................................................... 25
(i) Submission to Jurisdiction; Appointment of Agent for
Service; Waiver................................................. 25
(j) Currency Indemnity.............................................. 26
(k) Severability.................................................... 26
(l) Securities Held by the Company or Its Affiliates................ 26
(m) Third Party Beneficiaries....................................... 26
(n) Entire Agreement................................................ 26
REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of July 8,
---------
1999, among Cybernet Internet Services International, Inc. a Delaware
Corporation (the "Company"), Xxxxxx Brothers International (Europe) and Xxxxxx
-------
Xxxxxxx & Co. International Limited (the "Initial Purchasers").
------------------
This Agreement is entered into in connection with the Purchase
Agreement, dated as of July 1, 1999, among the Company and the Initial
Purchasers (the "Purchase Agreement") which provides for the sale by the Company
------------------
to the Initial Purchasers of 150,000 Units (the "Units"), each consisting of
-----
$1,000 aggregate principal amount of its 14% Senior Notes due 2009 (the "Notes")
-----
and one warrant (the "Warrants") to purchase 30.2310693 shares of common stock
--------
of the Company, par value $0.001 per share (the "Common Stock"). The Notes are
------------
to be issued under the Indenture, dated the date hereof (the "Indenture"),
---------
between the Company and The Bank of New York, as Trustee thereunder. The
Warrants are to be issued under a Warrant Agreement, dated the date hereof (the
"Warrant Agreement"), between the Company and The Bank of New York, as Warrant
-----------------
Agent thereunder. In order to induce the Initial Purchasers to enter into the
Purchase Agreement, the Company has agreed to provide the registration rights
set forth in this Agreement for the benefit of the Initial Purchasers and their
direct and indirect transferees and assigns.
The parties hereby agree as follows:
1. Definitions
-----------
As used in this Agreement, the following terms shall have the
following meanings:
"Advice": See Section 5 hereof.
------
"Agreement": See the first introductory paragraph hereto.
---------
"Applicable Period": See Section 2(b) hereof.
-----------------
"Authenticating Agent": The Authenticating Agent as defined in the
--------------------
Indenture.
"Business Day": a day other than a Saturday, Sunday or any other day
------------
on which commercial banking institutions are authorized or required by law
to close in New York City or Munich.
"Common Stock": See the second introductory paragraph hereto.
------------
"Company": See the first introductory paragraph hereto.
-------
"DTC": The Depository Trust Company.
---
"Effectiveness Period": See Section 3(a) hereof.
--------------------
"Effectiveness Target Date": The 150th day after the Issue Date.
-------------------------
"Collateral Agreements": The Collateral Agreement, dated the date
---------------------
hereof, among the Company, the Bank of New York, as Collateral Agent, and
the Trustee.
"Event Date": See Section 4(b) hereof.
----------
"Exchange Act": The Securities Exchange Act of 1934, as amended, and
------------
the rules and regulations of the SEC promulgated thereunder.
"Exchange Notes": See Section 2(a) hereof.
--------------
"Exchange Offer": See Section 2(a) hereof.
--------------
"Exchange Offer Registration Statement": See Section 2(a) hereof.
-------------------------------------
"Filing Date": The 90th day after the Issue Date.
-----------
"Holder": Any holder of Transfer Restricted Securities.
------
"Indenture": See the second introductory paragraph hereto.
---------
"Initial Purchasers": See the first introductory paragraph hereto.
------------------
"Inspectors": See Section 5(n) hereof.
----------
"Issue Date": The date of the issuance of the Notes under the
----------
Indenture.
"Liquidated Damages": See Section 4(a) hereof.
------------------
"NASD": See Section 5(s) hereof.
----
"Notes": See the second introductory paragraph hereto.
-----
"Participant": See Section 7(a) hereof.
-----------
"Participating Broker-Dealer": See Section 2(b) hereof.
---------------------------
"Person": An individual, trustee, corporation, partnership, limited
------
liability company, joint stock company, trust, unincorporated association,
union, business association, firm or other legal entity.
"Private Exchange": See Section 2(b) hereof.
----------------
"Private Exchange Notes": See Section 2(b) hereof.
----------------------
2
"Prospectus": The prospectus included in any Registration Statement
----------
(including, without limitation, any prospectus subject to completion and a
prospectus that includes any information previously omitted from a
prospectus filed as part of an effective registration statement in reliance
upon Rule 430A promulgated under the Securities Act), as amended or
supplemented by any prospectus supplement, and all other amendments and
supplements to the Prospectus, including post-effective amendments, and all
material incorporated by reference or deemed to be incorporated by
reference in such Prospectus.
"Purchase Agreement": See the second introductory paragraph hereto.
------------------
"Records": See Section 5(n) hereof.
-------
"Registration Statement": Any registration statement of the Company,
----------------------
including, but not limited to, the Exchange Offer Registration Statement or
the Shelf Registration Statement, filed with the SEC pursuant to the
provisions of this Agreement, including the Prospectus, amendments and
supplements to such registration statement, including post-effective
amendments, all exhibits, and all material incorporated by reference or
deemed to be incorporated by reference in such registration statement.
"Rule 144": Rule 144 promulgated under the Securities Act, as such
--------
Rule may be amended from time to time, or any similar rule (other than Rule
144A) or regulation hereafter adopted by the SEC providing for offers and
sales of securities made in compliance therewith resulting in offers and
sales by subsequent holders that are not affiliates of an issuer of such
securities being free of the registration and prospectus delivery
requirements of the Securities Act.
"Rule 144A": Rule 144A promulgated under the Securities Act, as such
---------
Rule may be amended from time to time, or any similar rule (other than Rule
144) or regulation hereafter adopted by the SEC.
"Rule 415": Rule 415 promulgated under the Securities Act, as such
--------
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC.
"SEC": The U.S. Securities and Exchange Commission.
---
"Securities Act": The U.S. Securities Act of 1933, as amended, and
--------------
the rules and regulations of the SEC promulgated thereunder.
"Shelf Notice": See Section 2(c) hereof.
------------
"Shelf Registration Statement": See Section 3(a) hereof.
----------------------------
"Transfer Restricted Securities": Each Note until the earliest to
------------------------------
occur of (i) the date on which such Note has been exchanged by a Person
(other than a Participating Broker-Dealer) for Exchange Notes in the
Exchange Offer, (ii) following the exchange by
3
a Participating Broker-Dealer in the Exchange Offer of such Note for one or
more Exchange Notes, the date on which such Exchange Notes are sold to a
purchaser who receives from such Participating Broker-Dealer on or prior to
the date of such sale a copy of the prospectus contained in the Exchange
Offer Registration Statement, (iii) the date on which such Note has been
effectively registered under the Securities Act and disposed of in
accordance with the Shelf Registration Statement or (iv) the date on which
such Note is eligible for distribution to the public pursuant to Rule 144
under the Securities Act.
"Trust Indenture Act": The Trust Indenture Act of 1939, as amended.
-------------------
"Trustee": The trustee under the Indenture and, if existent, the
-------
trustee under any indenture governing the Exchange Notes and Private
Exchange Notes (if any).
"Underwritten Registration or Underwritten Offering": A registration
--------------------------------------------------
in which securities of the Company are sold to an underwriter for
reoffering to the public.
"Units": See the second introductory paragraph hereto.
-----
"Warrant Agreements": See the second introductory paragraph hereto.
------------------
2. Exchange Offer
--------------
(a) The Company agrees to file at its sole cost and expense with the
SEC no later than the Filing Date, unless prohibited by applicable law or SEC
policy, an offer to exchange (the "Exchange Offer") any and all of the Transfer
--------------
Restricted Securities (other than Private Exchange Notes, if any) for a like
aggregate principal amount of the same series of notes of the Company, which are
substantially identical in all material respects to the Notes of such series
(the "Exchange Notes") (and which are entitled to the benefits of the Indenture
--------------
or a trust indenture which is substantially identical in all material respects
to such Indenture (other than such changes to the Indenture or any such
identical trust indenture as are necessary to comply with any requirements of
the SEC to effect or maintain the qualification thereof under the Trust
Indenture Act) and which, in either case, has been qualified under the Trust
Indenture Act), except that the Exchange Notes (other than Private Exchange
Notes, if any) shall have been registered pursuant to an effective Registration
Statement under the Securities Act and shall contain no restrictive legend
thereon. The Exchange Offer shall be registered under the Securities Act on the
appropriate form (the "Exchange Offer Registration Statement") and shall comply
-------------------------------------
with all applicable tender offer rules and regulations under the Exchange Act.
The Company agrees to: (i) use its best efforts to cause the Exchange Offer
Registration Statement to be declared effective under the Securities Act on or
before the Effectiveness Target Date; (ii) keep the Exchange Offer open for at
least 20 business days (or longer if required by applicable law) after the date
that notice of the Exchange Offer is mailed to Holders; (iii) (A) file all pre-
effective amendments to such Registration Statement as may be necessary in order
to cause such Registration Statement to become effective, (B) file, if
applicable, a post-effective amendment to such Registration Statement pursuant
to Rule 430A under the Securities Act and (C) cause all necessary filings in
connection with the registration and qualifications of the Exchange Notes to
4
be made under the blue sky laws of such jurisdictions as are necessary to permit
consummation of the Exchange Offer; and (iv) use its reasonable best efforts to
consummate the Exchange Offer on or prior to 30 days after the date on which the
Exchange Offer Registration Statement is declared effective by the SEC. Upon the
Exchange Offer Registration Statement being declared effective, the Company will
offer the Exchange Notes in exchange for surrender of the Notes. If, after such
Exchange Offer Registration Statement is declared effective by the SEC, the
Exchange Offer or the issuance of the Exchange Notes thereunder is interfered
with by any stop order, injunction or other order or requirement of the SEC or
any other governmental agency or court, such Exchange Offer Registration
Statement shall be deemed not to have become effective for purposes of this
Agreement. Each Holder who participates in the Exchange Offer will be required
to represent that (i) any Exchange Notes received by it will be acquired in the
ordinary course of its business, (ii) it has no arrangement or understanding
with any Person to participate in the distribution (within the meaning of the
Securities Act) of the Exchange Notes, (iii) it is not a broker-dealer that
acquired Notes directly from the Company, (iv) it is not an "affiliate" (as
defined in Rule 405 under the Securities Act) of the Company or, if it is such
an affiliate, it will comply with the registration and prospectus delivery
requirements of the Securities Act to the extent applicable and (v) it is not
acting on behalf of any Person who could not truthfully make the foregoing
representations. If such Holder is not a broker-dealer, such Holder will be
required to represent that it is not engaged in, and does not intend to engage
in, the distribution of the Exchange Notes. If such Holder is a broker-dealer
that will receive Exchange Notes for its own account in exchange for Notes that
were acquired as a result of market-making activities or other trading
activities, it will be required to acknowledge that it will deliver a prospectus
in connection with any resale of such Exchange Notes. Upon consummation of the
Exchange Offer in accordance with this Section 2, the Company shall have no
further obligation to register Transfer Restricted Securities (other than
Private Exchange Notes and other than in respect of any Exchange Notes as to
which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No
securities other than the Exchange Notes shall be included in the Exchange Offer
Registration Statement.
(b) The Company shall include within the Prospectus contained in the
Exchange Offer Registration Statement a section entitled "Plan of Distribution",
reasonably acceptable to the Initial Purchasers, which shall contain a summary
statement of the positions taken or policies made by the Staff of the SEC with
respect to the potential "underwriter" status of any broker-dealer that is the
beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange
Notes received by such broker-dealer in the Exchange Offer (a "Participating
-------------
Broker-Dealer"), whether such positions or policies have been publicly
-------------
disseminated by the Staff of the SEC or such positions or policies, in the
judgment of the Initial Purchasers, represent the prevailing views of the Staff
of the SEC. Such "Plan of Distribution" section shall also expressly permit the
use of the Prospectus by all Persons subject to the prospectus delivery
requirements of the Securities Act, including all Participating Broker-Dealers
(unless such Participating Broker-Dealer will be reselling an unsold allotment
from the original sale of the Notes), and include a statement describing the
means by which Participating Broker-Dealers may resell the Exchange Notes.
5
Upon written request after the consummation of the Exchange Offer, the
Company shall use its best efforts to keep the Exchange Offer Registration
Statement effective and to amend and supplement the Prospectus contained
therein, in order to permit such Prospectus to be lawfully delivered by any
Participating Broker-Dealer subject to the prospectus delivery requirements of
the Securities Act and other Persons, if any, with similar prospectus delivery
requirements for such period of time as is necessary to comply with applicable
law in connection with any resale of the Exchange Notes; provided, however, that
-------- -------
such period shall not exceed 180 days after the consummation of the Exchange
Offer (or such longer period if extended pursuant to the last paragraph of
Section 5 hereof) (the "Applicable Period").
-----------------
If, prior to consummation of the Exchange Offer, the Initial
Purchasers hold any Notes acquired by them and having, or which are reasonably
likely to be determined to have, the status of an unsold allotment in the
initial distribution, the Company, upon the written request of the Initial
Purchasers simultaneously with the delivery of the Exchange Notes in the
Exchange Offer, shall issue and deliver to the Initial Purchasers in exchange
(the "Private Exchange") for such Notes held by the Initial Purchasers a like
----------------
principal amount of notes of the same series of the Company, that are
substantially identical in all material respects to the Exchange Notes of such
series (the "Private Exchange Notes") (and which are issued pursuant to the same
----------------------
indenture as the Exchange Notes of such series) except for the placement of a
restrictive legend on such Private Exchange Notes. The Private Exchange Notes
shall bear the same CUSIP number as the Exchange Notes of the same series to the
extent permitted by the CUSIP Service Bureau of Standard & Poor's.
Interest on the Exchange Notes and the Private Exchange Notes will
accrue from the last interest payment date on which interest was paid on the
Notes surrendered in exchange therefor or if no interest has been paid on such
Notes, from the Issue Date.
In connection with the Exchange Offer, the Company shall:
(1) mail to each Holder a copy of the Prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate letter
of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with
an address in the Borough of Manhattan, The City of New York, which may be
the Trustee or an affiliate of the Trustee;
(3) permit Holders to withdraw tendered Notes at any time prior to the
close of business, New York time, on the last business day on which the
Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable
laws, rules and regulations.
As soon as practicable after the close of the Exchange Offer or the
Private Exchange, as the case may be, the Company shall:
6
(1) accept for exchange all Notes tendered and not validly withdrawn
pursuant to the Exchange Offer or the Private Exchange;
(2) deliver to the Trustee or Authenticating Agent for cancellation
all Notes so accepted for exchange; and
(3) cause the Trustee promptly to authenticate and deliver to each
Holder of the Notes, Exchange Notes or Private Exchange Notes, as the case
may be, in global form equal in principal amount to the Notes so accepted
for exchange, as further set forth in the Indenture.
The Exchange Notes and the Private Exchange Notes may be issued under
(i) the Indenture or (ii) an indenture substantially identical in all material
respects to such Indenture, which in either event shall provide that (1) the
Exchange Notes shall not be subject to the transfer restrictions set forth in
the Indenture and (2) the Private Exchange Notes shall be subject to the
transfer restrictions set forth in the Indenture. The Indenture or such
indenture substantially identical in all material respects to the Indenture
shall provide that the Exchange Notes, Private Exchange Notes and Notes shall
vote and consent together on all matters as one class and that none of the
Exchange Notes, Private Exchange Notes or Notes will have the right to vote or
consent as a separate class on any matter.
(c) If (i) the Company is not permitted to file the Exchange Offer
Registration Statement or to consummate the Exchange Offer because the Exchange
Offer is not permitted by applicable law or SEC policy, (ii) any Holder of
Transfer Restricted Securities that is a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act) notifies the Company at least 20
Business Days prior to the consummation of the Exchange Offer that (a)
applicable law or SEC policy prohibits the Company from participating in the
Exchange Offer, (b) such Holder may not resell the Exchange Notes acquired by it
in the Exchange Offer to the public without delivering a prospectus and the
prospectus contained in the Exchange Offer Registration Statement is not
appropriate or available for such resales by such Holder or (c) such Holder is a
broker-dealer and holds Notes acquired directly from the Company or an affiliate
of the Company, (iii) the Exchange Offer is not for any other reason consummated
within 180 days after the Issue Date, (iv) any Holder (other than a
Participating Broker-Dealer) is not eligible to participate in the Exchange
Offer, or in the case of any Holder that participates in the Exchange Offer,
such Holder does not receive Exchange Notes on the date of the exchange that may
be sold without restriction under federal securities laws (other than due solely
to the status of such Holder as an affiliate of the Company within the meaning
of the Securities Act or due to the requirement that such Holder deliver a
Prospectus in connection with any resale of the Exchange Notes) or (v) the
Exchange Offer has been completed and in the opinion of counsel for the Initial
Purchasers a Registration Statement must be filed and a prospectus must be
delivered by the Initial Purchasers in connection with any offering or sale of
Transfer Restricted Securities, then the Company shall promptly deliver written
notice thereof (the "Shelf Notice") to the Trustee and in the case of clauses
------------
(i) and (iii), all Holders, or in the case of clauses (ii), (iv) and (v) the
affected Holders, and shall at its own cost file a Shelf Registration Statement
pursuant to Section 3 hereof.
7
3. Shelf Registration Statement
----------------------------
If a Shelf Notice is delivered as contemplated by Section 2(c) hereof,
then:
(a) Shelf Registration Statement. The Company will use its best
----------------------------
efforts to: (A) file with the SEC a Registration Statement for an offering to be
made on a continuous basis pursuant to Rule 415 covering all of the Transfer
Restricted Securities (the "Shelf Registration Statement"), within 90 days of
----------------------------
the earliest to occur of clauses (i) through (v) in Section 2(c) above and (B)
cause the Shelf Registration Statement to be declared effective by the SEC on or
prior to the 150th day after such obligation arises; provided, however, that if
-------- -------
the Company files a Shelf Registration Statement pursuant to this Section 3(a),
it need not abandon the attempt to cause the SEC to declare the Exchange Offer
Registration Statement effective, and it may satisfy its obligations to register
the Notes pursuant to this Agreement either by complying with Section 2 and/or
Section 3. If the Company shall not have yet filed an Exchange Offer
Registration Statement, the Company shall use its best efforts to file with the
SEC the Shelf Registration Statement on or prior to the Filing Date. The Shelf
Registration Statement shall be on Form S-1 or another appropriate form
permitting registration of such Transfer Restricted Securities for resale by
Holders in the manner or manners designated by them (including, without
limitation, one or more underwritten offerings), or may be an amendment to the
Exchange Offer Registration Statement. The Company shall not permit any
securities other than the Transfer Restricted Securities to be included in the
Shelf Registration Statement.
The Company shall use its best efforts to keep the Shelf Registration
Statement continuously effective, supplemented and amended to ensure that it is
available for resales of Notes by the holders of Transfer Restricted Securities
entitled to this benefit and to ensure that such Shelf Registration Statement
conforms and continues to conform with the requirements of this Agreement, the
Securities Act and the policies, rules and regulations of the SEC, as announced
from time to time, until the second anniversary of the Issue Date, subject to
extension pursuant to the last paragraph of Section 5 hereof (the "Effectiveness
-------------
Period"), or such shorter period ending when all Transfer Restricted Securities
------
covered by the Shelf Registration Statement have been sold in the manner set
forth and as contemplated in the Shelf Registration Statement or when the
Transfer Restricted Securities become eligible for resale pursuant to Rule 144
under the Securities Act without volume restrictions, if any.
(b) Withdrawal of Stop Orders. If the Shelf Registration Statement
-------------------------
ceases to be effective for any reason at any time during the Effectiveness
Period (other than because of the sale of all of the securities registered
thereunder), the Company shall use its best efforts to obtain the prompt
withdrawal of any order suspending the effectiveness thereof.
(c) Supplements and Amendments. The Company shall promptly supplement
--------------------------
and amend the Shelf Registration Statement if required by the rules, regulations
or instructions applicable to the registration form used for such Shelf
Registration Statement, if required by the Securities Act, or if reasonably
requested by the Holders of a majority in aggregate principal amount of the
Transfer Restricted Securities covered by such Registration Statement or by any
underwriter of such Transfer Restricted Securities based on a reasonable belief
that such supplement or amendment is required by law.
8
4. Liquidated Damages
------------------
(a) The Company and the Initial Purchasers agree that the Holders of
Notes will suffer damages if the Company fails to fulfill its obligations under
Section 2 or Section 3 hereof and that it would not be feasible to ascertain the
extent of such damages with precision. Accordingly, the Company agrees to pay,
as liquidated damages, additional interest on the Notes ("Liquidated Damages")
------------------
under the circumstances and to the extent set forth below (each of which shall
be given independent effect and shall not be duplicative):
(i) if neither the Exchange Offer Registration Statement nor
the Shelf Registration Statement has been filed on or prior to the Filing
Date, then, commencing on the 91st day after the Issue Date, Liquidated
Damages shall accrue on the Notes over and above the stated interest at a
rate of 0.50% per annum for the first 90 days immediately following the
Filing Date, such Liquidated Damages rate increasing by an additional 0.50%
per annum at the beginning of each subsequent 90-day period, or part
thereof; or
(ii) if neither the Exchange Offer Registration Statement nor
the Shelf Registration Statement is declared effective by the SEC on or
prior to the Effectiveness Target Date, then, commencing on the 151st day
after the Issue Date, Liquidated Damages shall accrue on the Notes included
or which should have been included in such Registration Statement over and
above the stated interest at a rate of 0.50% per annum for the first 90
days immediately following the Effectiveness Target Date, such Liquidated
Damages rate increasing by an additional 0.50% per annum at the beginning
of each subsequent 90-day period, or part thereof; or
(iii) if the Exchange Offer has not been consummated within 30
days after the Effectiveness Target Date with respect to the Exchange Offer
Registration Statement, Liquidated Damages shall accrue on the Notes over
and above the stated interest at a rate of 0.50% per annum for the first 90
days commencing on the 31st day after the Effectiveness Target Date, such
Liquidated Damages rate increasing by an additional 0.50% per annum at the
beginning of each subsequent 90-day period, or part thereof; provided, that
no Liquidated Damages shall accrue under this Section 4(a)(iii) if the
Company extends the consummation date of the Exchange Offer with the prior
consent of the Initial Purchasers and the Company is otherwise in full
compliance with this Section 4(a); or
(iv) (A) the Exchange Offer Registration Statement is filed and
declared effective but thereafter ceases to be effective or fails to be
usable for its intended purpose at any time prior to the time that the
Exchange Offer is consummated and is not declared effective within five
Business Days thereafter or (B) the Shelf Registration Statement is filed
and declared effective but thereafter ceases to be effective or fails to be
usable for its intended purpose at any time during the Effectiveness Period
and is not declared effective again within five Business Days thereafter,
Liquidated Damages shall accrue on the Notes over and above the stated
interest rate at a rate of 0.50% per annum for the first 90 days commencing
on the day the applicable Registration Statement ceases to be effective or
usable for its intended purpose without being declared effective again
within five
9
Business Days, such Liquidated Damages rate increasing by an additional
0.50% per annum at the beginning of each such subsequent 90-day period, or
part thereof (it being understood and agreed that, notwithstanding any
provision to the contrary, so long as any Note which is the subject of a
Shelf Notice is then covered by an effective Shelf Registration Statement,
no Liquidated Damages shall accrue on such Note);
provided, however, that Liquidated Damages may accrue at a maximum rate of 1.50%
-------- -------
per annum of the principal amount of Notes; and provided, further, that (1) upon
-------- -------
the filing of the Exchange Offer Registration Statement or a Shelf Registration
Statement as required hereunder (in the case of clause (i) of this Section
4(a)), (2) upon the effectiveness of the Exchange Offer Registration Statement
or the Shelf Registration Statement as required hereunder (in the case of clause
(ii) of this Section 4(a)), (3) upon the consummation of the Exchange Offer (in
the case of clause (iii) of this Section 4(a)), and (4) upon the effectiveness
or usability of the Exchange Offer Registration Statement which had ceased to
remain effective or be usable (in the case of clause (iv)(A) of this Section
4(a)), or upon the effectiveness or usability of the Shelf Registration
Statement which had ceased to remain effective or be usable (in the case of
clause (iv)(B) of this Section 4(a)), Liquidated Damages on the affected Notes
as a result of such clause (or the relevant subclause thereof), as the case may
be, shall cease to accrue.
(b) The Company shall notify the Trustee within five Business Days
after each and every date on which an event occurs in respect of which
Liquidated Damages is required to be paid (an "Event Date"). Any amounts of
----------
Liquidated Damages due pursuant to (a)(i), (a)(ii), (a)(iii) or (a)(iv) of this
Section 4 will be payable to DTC (or, if applicable, a participant in DTC) or
its nominee in its capacity as the registered holder of affected Notes in cash
semi-annually on each June 15 and December 15 (to the holders of record on the
June 1 and December 1 preceding such dates), commencing with the first such date
occurring after any such Liquidated Damages commences to accrue. The amount of
Liquidated Damages will be determined by multiplying the applicable Liquidated
Damages rate by the principal amount of the affected Notes of such Holders,
multiplied by a fraction, the numerator of which is the number of days such
Liquidated Damages rate was applicable during such period (determined on the
basis of a 360-day year comprised of twelve 30-day months and, in the case of a
partial month, the actual number of days elapsed), and the denominator of which
is 360. The Company shall notify the Trustee within five Business Days of the
cessation of any requirement to pay Liquidated Damages hereunder.
5. Registration Procedures
-----------------------
In connection with the filing of any Registration Statement pursuant
to Sections 2 or 3 hereof, the Company shall effect such registration(s) to
permit the sale of the securities covered thereby in accordance with the
intended method or methods of disposition thereof, and pursuant thereto and in
connection with any Registration Statement filed by the Company hereunder the
Company shall:
(a) Prepare and file with the SEC prior to the Filing Date, a
Registration Statement or Registration Statements as prescribed by Sections 2 or
3 hereof, and use its best efforts to cause each such Registration Statement to
become effective and remain effective as provided herein; provided, however,
-------- -------
that, if (1) such filing is pursuant to Section 3 hereof, or (2)
10
a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2 hereof is required to be delivered under the Securities
Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during
the Applicable Period, before filing any Registration Statement or Prospectus or
any amendments or supplements thereto, the Company shall furnish to and afford
the Holders of the Transfer Restricted Securities covered by such Registration
Statement or each such Participating Broker-Dealer, as the case may be, their
counsel and the managing underwriters, if any, a reasonable opportunity to
review copies of all such documents (including copies of any documents to be
incorporated by reference therein and all exhibits thereto) proposed to be filed
(in each case at least five Business Days prior to such filing).
(b) Prepare and file with the SEC such amendments and post-effective
amendments to each Shelf Registration Statement or Exchange Offer Registration
Statement, as the case may be, as may be necessary to keep such Registration
Statement continuously effective for the Effectiveness Period or the Applicable
Period or until consummation of the Exchange Offer, as the case may be; cause
the related Prospectus to be supplemented by any Prospectus supplement required
by applicable law, and as so supplemented to be filed pursuant to Rule 424 (or
any similar provisions then in force) promulgated under the Securities Act; and
comply with the provisions of the Securities Act and the Exchange Act applicable
to it with respect to the disposition of all securities covered by such
Registration Statement as so amended or in such Prospectus as so supplemented
and with respect to the subsequent resale of any securities being sold by a
Participating Broker-Dealer covered by any such Prospectus. Notwithstanding the
foregoing, if the Board of Directors of the Company determines in good faith
that it is in the best interests of the Company not to disclose the existence of
or facts surrounding any proposed or pending material event or transaction
involving the Company or its subsidiaries, the Company may (i) in the event a
Shelf Registration Statement has been filed, allow the Shelf Registration
Statement to fail to be effective or usable as a result of such nondisclosure
for up to 60 days during the Effectiveness Period, but in no event for any
period in excess of 30 consecutive days, and (ii) in the event the Exchange
Offer is consummated, allow the Exchange Offer Registration Statement to fail to
be effective or usable as a result of such non-disclosure for up to 15 days
during the Applicable Period. The Company shall be deemed not to have used its
best efforts to keep a Registration Statement effective during the Applicable
Period if it voluntarily takes any action that would result in selling Holders
of the Transfer Restricted Securities covered thereby or Participating Broker-
Dealers seeking to sell Exchange Notes not being able to sell such Transfer
Restricted Securities or such Exchange Notes during that period unless such
action is required by applicable law or unless the Company complies with this
Agreement, including without limitation, the provisions of paragraph 5(j) hereof
and the last paragraph of this Section 5.
(c) If (1) a Shelf Registration Statement is filed pursuant to Section
3 hereof, or (2) a Prospectus contained in an Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered under
the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, notify the Holders of Transfer Restricted
Securities, or each such Participating Broker-Dealer, as the case may be, their
counsel and the managing underwriters, if any, promptly (but in any event within
five Business Days), and, if requested by such Persons, confirm such notice in
writing, (i) when a Prospectus or any Prospectus supplement or post-effective
amendment has been filed, and, with
11
respect to a Registration Statement or any post-effective amendment, when the
same has become effective under the Securities Act (including in such notice a
written statement that any Holder may, upon request, obtain, at the sole expense
of the Company, one conformed copy of such Registration Statement or post-
effective amendment including financial statements and schedules, documents
incorporated or deemed to be incorporated by reference and exhibits), (ii) of
the issuance by the SEC of any stop order suspending the effectiveness of a
Registration Statement or of any order preventing or suspending the use of any
preliminary prospectus or the initiation of any proceedings for that purpose,
(iii) if at any time when a prospectus is required by the Securities Act to be
delivered in connection with sales of the Transfer Restricted Securities or
resales of Exchange Notes by Participating Broker-Dealers the representations
and warranties of the Company contained in any agreement (including any
underwriting agreement) contemplated by Section 5(m) hereof cease to be true and
correct, (iv) of the receipt by the Company of any notification with respect to
the suspension of the qualification or exemption from qualification of a
Registration Statement or any of the Transfer Restricted Securities or the
Exchange Notes to be sold by any Participating Broker-Dealer for offer or sale
in any jurisdiction, or the initiation or threatening of any proceeding for such
purpose, (v) of the happening of any event, the existence of any condition or
any information becoming known that makes any statement made in such
Registration Statement or related Prospectus or any document incorporated or
deemed to be incorporated therein by reference untrue in any material respect or
that requires the making of any changes in or amendments or supplements to such
Registration Statement, Prospectus or documents so that, in the case of the
Registration Statement, it will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and that in the case of
the Prospectus, it will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading, and (vi) of the determination by the Company that a post-
effective amendment to a Registration Statement would be appropriate.
(d) Use its best efforts to prevent the issuance of any order
suspending the effectiveness of a Registration Statement or of any order
preventing or suspending the use of a Prospectus or suspending the qualification
(or exemption from qualification) of any of the Transfer Restricted Securities
or the Exchange Notes for sale in any jurisdiction, and, if any such order is
issued, to use its best efforts to obtain the withdrawal of any such order at
the earliest possible moment.
(e) If a Shelf Registration Statement is filed pursuant to Section 3
and if reasonably requested by the managing underwriter or underwriters (if
any), or the Holders of a majority in aggregate principal amount of the Transfer
Restricted Securities being sold in connection with an underwritten offering or
any Participating Broker-Dealer, (i) promptly incorporate in a prospectus
supplement or post-effective amendment such information as the managing
underwriter or underwriters (if any), such Holders, any Participating Broker-
Dealer or counsel for any of them may reasonably request to be included therein,
(ii) make all required filings of such prospectus supplement or such post-
effective amendment as soon as practicable after the Company has received
notification of the matters to be incorporated in such prospectus supplement or
post-effective amendment, and (iii) supplement or make amendments to such
Registration Statement.
12
(f) If (l) a Shelf Registration Statement is filed pursuant to Section
3 hereof, or (2) a Prospectus contained in an Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered under
the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, furnish to each selling Holder of Transfer
Restricted Securities and to each such Participating Broker-Dealer who so
requests and to counsel and each managing underwriter, if any, at the sole
expense of the Company, one conformed copy of the Registration Statement or
Registration Statements and each post-effective amendment thereto, including
financial statements and schedules, and, if requested, all documents
incorporated or deemed to be incorporated therein by reference and all exhibits.
(g) If (l) a Shelf Registration Statement is filed pursuant to Section
3 hereof, or (2) a Prospectus contained in an Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered under
the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, deliver to each Holder of Transfer
Restricted Securities, or each such Participating Broker-Dealer, as the case may
be, their respective counsel, and the underwriters, if any, at the sole expense
of the Company, as many copies of the Prospectus or Prospectuses (including each
form of preliminary prospectus) and each amendment or supplement thereto and any
documents incorporated by reference therein as such Persons may reasonably
request; and, subject to the last paragraph of this Section 5, the Company
hereby consents to the use of such Prospectus and each amendment or supplement
thereto by each of the Holders of Transfer Restricted Securities or each such
Participating Broker-Dealer, as the case may be, and the underwriters or agents,
if any, and dealers (if any), in connection with the offering and sale of the
Transfer Restricted Securities covered by, or the sale by Participating Broker-
Dealers of the Exchange Notes pursuant to, such Prospectus and any amendment or
supplement thereto.
(h) Prior to any public offering of Transfer Restricted Securities or
Exchange Notes or any delivery of a Prospectus contained in the Exchange Offer
Registration Statement by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, use its reasonable best efforts to
register or qualify (and to cooperate with selling Holders of Transfer
Restricted Securities or each such Participating Broker-Dealer, as the case may
be, the managing underwriter or underwriters, if any, and their respective
counsel in connection with the registration or qualification (or exemption from
such registration or qualification) of such Transfer Restricted Securities) for
offer and sale under the securities or Blue Sky laws of such jurisdictions
within the United States as any selling Holder, Participating Broker-Dealer, or
the managing underwriter or underwriters reasonably request; provided, however,
-------- -------
that where Exchange Notes held by Participating Broker-Dealers or Transfer
Restricted Securities are offered other than through an underwritten offering,
the Company agrees to cause its counsel to perform Blue Sky investigations and
file registrations and qualifications required to be filed pursuant to this
Section 5(h); keep each such registration or qualification (or exemption
therefrom) effective during the period such Registration Statement is required
to be kept effective and do any and all other acts or things reasonably
necessary or advisable to enable the disposition in such jurisdictions of the
Exchange Notes held by Participating Broker-Dealers or the Transfer Restricted
Securities covered by the applicable Registration Statement; provided, however,
-------- -------
that the Company shall not be required to (A) qualify generally to do business
in any jurisdiction
13
where it is not then so qualified, (B) take any action that would subject it to
general service of process in any such jurisdiction where it is not then so
subject or (C) subject itself to taxation in any such jurisdiction where it is
not then so subject.
(i) If a Shelf Registration Statement is filed pursuant to Section 3
hereof, cooperate with the selling Holders of Transfer Restricted Securities and
the managing underwriter or underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing Transfer Restricted
Securities to be sold, which certificates shall not bear any restrictive legends
and shall be in a form eligible for deposit with DTC; and enable such Transfer
Restricted Securities to be in such denominations and registered in such names
as the managing underwriter or underwriters, if any, or Holders may request.
(j) Use its best efforts to cause the Transfer Restricted Securities
covered by the Registration Statement and the Exchange Notes to be registered
with or approved by such other governmental agencies or authorities as may be
necessary to enable the selling Holders thereof or the underwriter or
underwriters, if any, to dispose of such Transfer Restricted Securities or
Exchange Notes, except as may be required solely as a consequence of the nature
of a selling Holder's business, in which case the Company will cooperate in all
reasonable respects with the filing of such Registration Statement and the
granting of such approvals.
(k) If (l) a Shelf Registration Statement is filed pursuant to Section
3 hereof, or (2) a Prospectus contained in an Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered under
the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, upon the occurrence of any event
contemplated by paragraph 5(c)(v) or 5(c)(vi) hereof, as promptly as practicable
prepare and (subject to Section 5(b) hereof) file with the SEC, at the sole
expense of the Company, a supplement or post-effective amendment to the
Registration Statement or a supplement to the related Prospectus or any document
incorporated or deemed to be incorporated therein by reference, or file any
other required document so that, as thereafter delivered to the purchasers of
the Transfer Restricted Securities being sold thereunder or to the purchasers of
the Exchange Notes to whom such Prospectus will be delivered by a Participating
Broker-Dealer, any such Prospectus will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
(l) Prior to the effective date of the first Registration Statement
relating to the Transfer Restricted Securities, provide a CUSIP number, ISIN
Code and Common Code for the Transfer Restricted Securities or Exchange Notes,
as the case may be.
(m) In connection with any underwritten offering of Transfer
Restricted Securities pursuant to a Shelf Registration Statement, enter into an
underwriting agreement as is customary in underwritten offerings of debt
securities similar to the Notes and take all such other actions as are
reasonably requested by the managing underwriter or underwriters in order to
facilitate the registration or the disposition of such Transfer Restricted
Securities and, in such connection, (i) make such representations and warranties
to, and covenants with, the underwriters with respect to the business of the
Company and its subsidiaries (including any acquired
14
business, properties or entity, if applicable) and the Registration Statement,
Prospectus and documents, if any, incorporated or deemed to be incorporated by
reference therein, in each case, as are customarily made by issuers to
underwriters in underwritten offerings of debt securities similar to the Notes,
and confirm the same in writing if and when requested; (ii) obtain the written
opinion of counsel to the Company and written updates thereof in form, scope and
substance reasonably satisfactory to the managing underwriter or underwriters,
addressed to the underwriters covering the matters customarily covered in
opinions requested in underwritten offerings of debt similar to the Notes and
such other matters as may be reasonably requested by the managing underwriter or
underwriters; (iii) obtain "cold comfort" letters and updates thereof in form,
scope and substance reasonably satisfactory to the managing underwriter or
underwriters from the independent certified public accountants of the Company
(and, if necessary, any other independent certified public accountants of any
subsidiary of the Company or of any business acquired by the Company for which
financial statements and financial data are, or are required to be, included or
incorporated by reference in the Registration Statement), addressed to each of
the underwriters, such letters to be in customary form and covering matters of
the type customarily covered in "cold comfort" letters in connection with
underwritten offerings of debt similar to the Notes and such other matters as
reasonably requested by the managing underwriter or underwriters; and (iv) if an
underwriting agreement is entered into, the same shall contain indemnification
provisions and procedures substantially similar to those set forth in Section 7
hereof (or such other provisions and procedures acceptable to Holders of a
majority in aggregate principal amount of Transfer Restricted Securities covered
by such Registration Statement and the managing underwriter or underwriters or
agents) with respect to all parties to be indemnified pursuant to said Section,
including, without limitation, the Holders of Transfer Restricted Securities and
the underwriters. The above shall be done at each closing under such
underwriting agreement, or as and to the extent required thereunder.
(n) If (1) a Shelf Registration Statement is filed pursuant to Section
3 hereof, or (2) a Prospectus contained in an Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered under
the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, make available for inspection by a
representative of the selling Holders of such Transfer Restricted Securities
being sold, or a representative of the Participating Broker-Dealers, as the case
may be, a representative of the managing underwriter participating in any such
disposition of Transfer Restricted Securities, if any, and one firm each of
attorneys, accountants or other agents retained by any such selling Holders or
the Participating Broker-Dealers, as the case may be, the managing underwriter
(collectively, the "Inspectors"), at the offices where normally kept, during
----------
reasonable business hours, all financial and other records, pertinent corporate
documents and instruments of the Company and its subsidiaries (collectively, the
"Records") as shall be reasonably necessary to enable them to exercise any
-------
applicable due diligence responsibilities, and cause the officers, directors and
employees of the Company and its subsidiaries to supply all information
reasonably requested by any such Inspector in connection with such Registration
Statement. Records which the Company determines, in good faith, to be
confidential and any Records which it notifies the Inspectors are confidential
shall not be disclosed by the Inspectors unless (i) the disclosure of such
Records is necessary to avoid or correct a misstatement or omission in such
Registration Statement, (ii) the release of such Records is ordered pursuant to
a subpoena or other order from a court of competent jurisdiction, (iii)
disclosure of such
15
information is, in the opinion of counsel for any Inspector and after
consultation with the Company, necessary in connection with any action,
claim, suit or proceeding, directly or indirectly, involving or potentially
involving such Inspector and arising out of, based upon, relating to,
or involving this Agreement, or any transactions contemplated hereby or
arising hereunder, or (iv) the information in such Records has been made
generally available to the public. Each selling Holder of such Transfer
Restricted Securities and each such Participating Broker-Dealer will be required
to agree that information obtained by it as a result of such inspections shall
be deemed confidential and shall not be used by it as the basis for any market
transactions in the securities of the Company unless and until such information
is generally available to the public. Each selling Holder of such Transfer
Restricted Securities and each such Participating Broker-Dealer or underwriter,
as the case may be, will be required further to agree that it will, upon
learning that disclosure of such Records is sought in a court of competent
jurisdiction, give notice to the Company and allow the Company at its sole
expense to undertake appropriate action to prevent disclosure of the Records
deemed confidential.
(o) Provide an indenture trustee for the Transfer Restricted
Securities or the Exchange Notes, as the case may be, and cause the Indenture or
the trust indenture provided for in Section 2(a) hereof, as the case may be, to
be qualified under the Trust Indenture Act not later than the effective date of
the first Registration Statement relating to the Transfer Restricted Securities;
and in connection therewith, cooperate with the trustee under any such indenture
and the Holders of the Transfer Restricted Securities, to effect such changes to
such indenture as may be required for such indenture to be so qualified in
accordance with the terms of the Trust Indenture Act; furnish the trustee with
an officer's certificate certifying that such indenture has been so qualified
under the Trust Indenture Act and that the Transfer Restricted Securities are
the subject of a Registration Statement; and execute, and use its reasonable
best efforts to cause such trustee to execute, all documents as may be required
to effect such changes, and all other forms and documents required to be filed
with the SEC to enable such indenture to be so qualified in a timely manner.
(p) Comply with all applicable rules and regulations of the SEC and
make generally available to its securityholders earnings statements satisfying
the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder
(or any similar rule promulgated under the Securities Act) no later than 45 days
after the end of any 12-month period (or 90 days after the end of any 12-month
period if such period is a fiscal year) (i) commencing at the end of any fiscal
quarter in which Transfer Restricted Securities are sold to underwriters in a
firm commitment or best efforts underwritten offering and (ii) if not sold to
underwriters in such an offering, commencing on the first day of the first
fiscal quarter of the Company after the effective date of a Registration
Statement, which statements shall cover said 12-month periods.
(q) If an Exchange Offer or a Private Exchange is to be consummated,
upon delivery of the Transfer Restricted Securities by Holders to the Company
(or to such other Person as directed by the Company) in exchange for the
Exchange Notes or the Private Exchange Notes, as the case may be, the Company
shall xxxx, or cause to be marked, on such Transfer Restricted Securities that
such Transfer Restricted Securities are being canceled in exchange for the
Exchange Notes or the Private Exchange Notes, as the case may be; in no event
shall such Transfer Restricted Securities be marked as paid or otherwise
satisfied.
16
(r) Cooperate with each seller of Transfer Restricted Securities
covered by any Registration Statement and each underwriter, if any,
participating in the disposition of such Transfer Restricted Securities and
their respective counsel in connection with any filings required to be made with
the National Association of Securities Dealers, Inc. (the "NASD").
----
(s) Use its best efforts to take all other steps necessary or
advisable to effect the registration of the Exchange Notes and/or Transfer
Restricted Securities covered by a Registration Statement contemplated hereby.
(t) Make an application to list the Exchange Notes on the Luxembourg
Stock Exchange and to use its best efforts to have the Exchange Notes admitted
to trading on the Luxembourg Stock Exchange as promptly as practicable.
The Company may require each seller of Transfer Restricted Securities
as to which any Shelf Registration Statement is being effected to (i) furnish to
the Company such information regarding such seller and the distribution of such
Transfer Restricted Securities and (ii) make such representations, in each case
as the Company may, from time to time, reasonably request. The Company may
exclude from such registration the Transfer Restricted Securities of any seller
who unreasonably fails to furnish such information or make such representations
within a reasonable time after receiving such request. Each seller as to which
any Shelf Registration Statement is being effected agrees to furnish promptly to
the Company all information required to be disclosed in order to make the
information previously furnished to the Company by such seller not materially
misleading.
Each Holder of Transfer Restricted Securities and each Participating
Broker-Dealer agrees by acquisition of such Transfer Restricted Securities or
Exchange Notes to be sold by such Participating Broker-Dealer, as the case may
be, that, upon actual receipt of any notice from the Company of the happening of
any event of the kind described in Section 5(c)(ii), 5(c)(iv), 5(c)(v) or
5(c)(vi) hereof, such Holder will forthwith discontinue disposition of such
Transfer Restricted Securities covered by such Registration Statement or
Prospectus or Exchange Notes to be sold by such Holder or Participating Broker-
Dealer, as the case may be, until such Holder's or Participating Broker-Dealer's
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 5(k) hereof, or until it is advised in writing (the "Advice") by the
------
Company that the use of the applicable Prospectus may be resumed, and has
received copies of any amendments or supplements thereto. In the event the
Company shall give any such notice, each of the Effectiveness Period and the
Applicable Period shall be extended by the number of days during such periods
from and including the date of the giving of such notice to and including the
date when each seller of Transfer Restricted Securities covered by such
Registration Statement or Exchange Notes to be sold by such Participating
Broker-Dealer, as the case may be, shall have received (x) the copies of the
supplemented or amended Prospectus contemplated by Section 5(k) hereof or (y)
the Advice.
6. Registration Expenses
---------------------
(a) All fees and expenses incident to the performance of or compliance
with this Agreement by the Company shall be borne by the Company whether or not
the Exchange
17
Offer Registration Statement or a Shelf Registration Statement is filed or
becomes effective, including, without limitation, (i) all registration and
filing fees (including, without limitation, (A) fees with respect to filings
required to be made with the NASD in connection with an underwritten offering,
(B) fees and expenses of compliance with state securities or Blue Sky laws
(including, without limitation, reasonable fees and disbursements of counsel in
connection with Blue Sky qualifications of the Transfer Restricted Securities or
Exchange Notes and determination of the eligibility of the Transfer Restricted
Securities or Exchange Notes for investment under the laws of such jurisdictions
(x) where the holders of Transfer Restricted Securities are located, in the case
of the Exchange Notes, or (y) as provided in Section 5(h) hereof, in the case of
Transfer Restricted Securities or Exchange Notes to be sold by a Participating
Broker-Dealer during the Applicable Period)), and (C) all expenses and fees in
connection with the obtaining of any approval from any relevant authority in
Germany; (ii) printing expenses, including, without limitation, the printing of
prospectuses if the printing of prospectuses is requested by the managing
underwriter or underwriters, if any, by the Holders of a majority in aggregate
principal amount of the Transfer Restricted Securities included in any
Registration Statement or by any Participating Broker-Dealer, as the case may
be, (iii) reasonable fees and disbursements of counsel for the Company and
reasonable fees and disbursements of special counsel for the sellers of Transfer
Restricted Securities (subject to the provisions of Section 6(b) hereof), (iv)
reasonable fees and disbursements of all independent certified public
accountants referred to in Section 5(m)(iii) hereof (including, without
limitation, the expenses of any special audit and "cold comfort" letters
required by or incident to such performance), (v) rating agency fees, if any,
and any fees associated with making the Exchange Notes eligible for trading
through DTC, (vi) Securities Act liability insurance, if the Company desires
such insurance, (vii) reasonable fees and expenses of all other Persons retained
by the Company, (viii) internal expenses of the Company (including, without
limitation, all salaries and expenses of officers and employees of the Company
performing legal or accounting duties), (ix) the expense of any annual audit,
(x) the reasonable fees and expenses incurred in connection with the listing of
the securities to be registered on any securities exchange, if applicable, and
(xi) the expenses relating to printing, word processing and distributing all
Registration Statements, underwriting agreements, securities sales agreements,
indentures and any other documents necessary in order to comply with this
Agreement.
(b) The Company shall reimburse the Holders of the Transfer Restricted
Securities being registered in a Shelf Registration Statement for the reasonable
fees and disbursements of not more than one counsel (in addition to appropriate
local counsel) chosen by the Holders of a majority in aggregate principal amount
of the Transfer Restricted Securities to be included in such Registration
Statement. In the case of a Shelf Registration Statement, the Company shall not
be required to pay any underwriting discounts, brokerage commissions, xxxx-xxxxx
or similar sales charges.
7. Indemnification and Contribution
--------------------------------
(a) The Company shall indemnify and hold harmless each Holder of
Transfer Restricted Securities offered pursuant to a Shelf Registration
Statement, each Participating Broker-Dealer selling Exchange Notes during the
Applicable Period and the Initial Purchasers and the officers and employees and
each Person, if any, who controls any such Person within the meaning
18
of the Securities Act (each a "Participant") from and against any loss, claim,
-----------
damage or liability, joint or several, or any action in respect thereof
(including, but not limited to, any loss, claim, damage, liability or action
relating to the exchange of or sales of the Transfer Restricted Securities), to
which that Participant may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement or Prospectus, (ii) the
omission or alleged omission to state therein any material fact required to be
stated therein or necessary to make the statements therein not misleading or
(iii) any act or failure to act, or any alleged act or failure to act, by any
Participant in connection with, or relating in any manner to, the Transfer
Restricted Securities or the registration contemplated hereby, and which is
included as part of or referred to in any loss, claim, damage, liability or
action arising out of or based upon matters covered by clause (i) or (ii) above
(provided that the Company shall not be liable in the case of any matter covered
--------
by this clause (iii) to the extent that it is determined in a final judgment by
a court of competent jurisdiction that such loss, claim, damage, liability or
action resulted directly from any such act or failure to act undertaken or
omitted to be taken by such Participant through its gross negligence or wilful
misconduct), and shall reimburse each Participant promptly upon demand for any
legal or other expenses reasonably incurred by that Participant in connection
with investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
---------
however, that the Company shall not be liable in any such case to the extent
-------
that any such loss, claim, damage, liability or action arises out of, or is
based upon, any untrue statement or alleged untrue statement or omission or
alleged omission made in the Registration Statement or Prospectus, or in any
such amendment or supplement, in reliance upon and in conformity with the
written information furnished to the Company by or on behalf of any Participant
specifically for inclusion therein; provided, further, that with respect to any
-----------------
such untrue statement in or omission from any preliminary prospectus, the
indemnity agreement contained in this Section 7(a) shall not inure to the
benefit of any such Participant to the extent that the sale to the Person
asserting any such loss, claim, damage, liability or action was an initial
resale by such Participant and any such loss, claim, damage, liability or action
of or with respect to such Participant results from the fact that both (A) a
copy of the Prospectus was not sent or given to such Person at or prior to the
written confirmation of the sale of such securities to such Person and (B) the
untrue statement in or omission from such preliminary prospectus was corrected
in the Prospectus unless, in either case, such failure to deliver the Prospectus
was a result of non-compliance by the Company with Section 5(g) of this
Agreement. The foregoing indemnity agreement is in addition to any liability
which the Company may otherwise have to any Participant.
(b) Each Holder of Transfer Restricted Securities offered pursuant to
a Shelf Registration Statement, each Participating Broker-Dealer selling
Exchange Notes during the Applicable Period and the Initial Purchasers (each a
"Participant Indemnifying Party") severally and not jointly, shall indemnify and
-------------------------------
hold harmless the Company, its officers and employees, each of its directors and
each Person, if any, who controls the Company within the meaning of the
Securities Act from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof, to which the Company or any such
director, officer or controlling Person may become subject, under the Securities
Act or otherwise, insofar as such loss, claim, damage, liability or action
arises out of, or is based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus or the
Registration
19
Statement or Prospectus, or in any amendment or supplement thereto or
(ii) the omission or alleged omission to state therein any material fact
required to be stated therein or necessary to make the statements therein not
misleading, but in each case only to the extent that the untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with the written information furnished to the Company by
that Participant Indemnifying Party specifically for inclusion therein, and
shall reimburse the Company and any such director, officer or controlling Person
for any legal or other expenses reasonably incurred by the Company or any such
director, officer or controlling Person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage, liability
or action as such expenses are incurred. The foregoing indemnity agreement is
in addition to any liability which any Participant Indemnifying Party may
otherwise have to the Company or any such director, officer or controlling
Person.
(c) Promptly after receipt by an indemnified party under this Section
7 of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 7, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
-------- -------
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 7 except to the extent it has
been materially prejudiced by such failure; and provided, further, that the
-------- -------
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 7.
If any such claim or action shall be brought against an indemnified party, and
it shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
-------- -------
any indemnified party shall have the right to employ separate counsel in any
such action and to participate in the defense thereof but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless (i) the
employment thereof has been specifically authorized by the indemnifying party in
writing, (ii) such indemnified party shall have been advised by such counsel
that there may be one or more legal defenses available to it which are different
from or additional to those available to the indemnifying party and in the
reasonable judgment of such counsel it is advisable for such indemnified party
to employ separate counsel or (iii) the indemnifying party has failed to assume
the defense of such action and employ counsel reasonably satisfactory to the
indemnified party, in which case, if such indemnified party notifies the
indemnifying party in writing that it elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such action on behalf of such indemnified party,
it being understood, however, that the indemnifying party shall not, in
connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys at any time (in addition to one
separate firm constituting local counsel, if appropriate) for all such
indemnified parties, which firm shall be designated in writing by the Initial
20
Purchasers, if the indemnified parties under this Section 7 consist of any
Participants, or by the Company, if the indemnified parties under this Section
consist of the Company or any of the Company's directors, officers, employees or
controlling Persons. Each indemnified party, as a condition of the indemnity
agreements contained in Sections 7(a) and 7(b), shall use its reasonable efforts
to cooperate with the indemnifying party in the defense of any such action or
claim. No indemnifying party shall (i) without the prior written consent of the
indemnified parties (which consent shall not be unreasonably withheld) settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent (a) includes an unconditional
release of each indemnified party from all liability arising out of such claim,
action, suit or proceeding and (b) does not include a statement as to or an
admission of fault, culpability or a failure to act, by or on behalf of the
indemnified party, or (ii) be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with its written consent or if there be a final
judgment of the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any loss of
liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 7 shall for
any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section 7(a) or 7(b) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Company on the one hand and the Participants on the other from
the offering of the Notes or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also
the relative fault of the Company on the one hand and the Participants on the
other with respect to the statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Participants on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering of the Notes (before deducting
expenses, discounts and commissions) received by the Company bear on the one
hand, and the total discounts and commissions received by the Participants with
respect to the Notes purchased under the Purchase Agreement, on the other hand,
bear to the total gross proceeds from the offering of the Notes under the
Purchase Agreement. The relative fault shall be determined by reference to
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by the
Company or the Participants, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Participants agree that it would not
be just and equitable if contributions pursuant to this Section 7(d) were to be
determined by pro rata allocation (even if the Participants were treated as one
entity for such purpose) or by any other method of allocation which does not
take into account the equitable considerations referred to herein. The amount
paid or payable by an indemnified party as a result of the loss, claim, damage
or liability, or action in respect thereof,
21
referred to above in this Section 7(d) shall be deemed to include, for purposes
of this Section 7(d), any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 7(d), no Participant
shall be required to contribute any amount in excess of the amount by which the
total price at which the Notes purchased by it were resold exceeds the amount of
any damages which such Participant has otherwise paid or become liable to pay by
reason of any untrue or alleged untrue statement or omission or alleged
omission. No Person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation. The
Participant's obligations to contribute as provided in this Section 7(d) are
several in proportion to their respective purchase obligations and not joint.
8. Rule 144A.
---------
Whether or not required by the rules and regulations of the SEC and
until such time as none of the Notes remain outstanding, the Company covenants
to furnish to the holders of the Notes, (i) all annual and quarterly financial
information required to be contained in a filing with the SEC on Forms 10-K and
10-Q (which financial statements shall be prepared in accordance with U.S.
GAAP), including a "Management's Discussion and Analysis of Financial Condition
and Results of Operations" and, with respect to the annual financial
information, a report thereon by the Company's certified independent accountants
and (ii) all current reports required to be filed with the SEC on Form 8-K. Such
quarterly financial information shall be furnished to the holders of the Notes
within 45 days following the end of each fiscal quarter of the Company, and such
annual financial information shall be furnished within 90 days following the end
of each fiscal year of the Company. Such annual financial information shall
include the geographic segment financial information required to be disclosed by
the Company under Item 101(d) of Regulation S-K under the Securities Act. The
Company will also be required (a) to file with the Trustee copies of such
reports and documents within 15 days after the date on which the Company files
such reports and documents with the SEC or the date on which the Company would
be required to file such reports and documents if the Company were so required,
and (b) if filing such reports and documents with the SEC is not accepted by the
SEC or is prohibited under the Exchange Act, to supply at the Company's cost
copies of such reports and documents to any prospective holder promptly upon
request. In addition, the Company covenants to furnish to the holders of the
Notes and to prospective investors, upon the request of such holder, any
information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act so long as the Notes are not freely transferable under the
Securities Act.
9. Underwritten Registrations.
--------------------------
If any of the Transfer Restricted Securities covered by any Shelf
Registration Statement are to be sold in an underwritten offering, the
investment banker or investment bankers and manager or managers that will manage
the offering will be selected by the Holders of a majority in aggregate
principal amount of such Transfer Restricted Securities included in such
offering and shall be reasonably acceptable to the Company.
22
No Holder of Transfer Restricted Securities may participate in any
underwritten registration hereunder unless such Holder (a) agrees to sell such
Holder's Transfer Restricted Securities on the basis provided in any
underwriting arrangements approved by the Persons entitled hereunder to approve
such arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
10. Miscellaneous
-------------
(a) No Inconsistent Agreements. The Company has not entered into, as
--------------------------
of the date hereof, nor will it, after the date of this Agreement, enter into
any agreement with respect to any of its securities that is inconsistent with
the rights granted to the Holders of Transfer Restricted Securities in this
Agreement or otherwise conflicts with the provisions hereof. The Company will
not enter into any agreement with respect to any of its securities which will
grant to any Person piggyback registration rights with respect to the Exchange
Offer Registration Statement or the Shelf Registration Statement, other than in
connection with any issuance of Additional Notes (as defined in the Indenture).
(b) Adjustments Affecting Transfer Restricted Securities. The Company
----------------------------------------------------
shall not, directly or indirectly, take any action with respect to the Transfer
Restricted Securities as a class that would adversely affect the ability of the
Holders of Transfer Restricted Securities to include such Transfer Restricted
Securities in a registration undertaken pursuant to this Agreement.
(c) Amendments and Waivers. The provisions of this Agreement may not
----------------------
be amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, otherwise than with the prior written
consent of (A) the Holders of not less than a majority in aggregate principal
amount of the then outstanding Transfer Restricted Securities and (B) in
circumstances that would adversely affect the Participating Broker-Dealers, the
Participating Broker-Dealers holding not less than a majority in aggregate
principal amount of the Exchange Notes held by all Participating Broker-Dealers
with respect to the Exchange Notes; provided, however, that Section 7 and this
-------- -------
Section 10(c) may not be amended, modified or supplemented without the prior
written consent of each Holder and each Participating Broker-Dealer (including
any Person who was a Holder or Participating Broker-Dealer of Transfer
Restricted Securities or Exchange Notes, as the case may be, disposed of
pursuant to any Registration Statement). Notwithstanding the foregoing, a
waiver or consent to depart from the provisions hereof with respect to a matter
that relates exclusively to the rights of Holders of Transfer Restricted
Securities whose securities are being sold pursuant to a Registration Statement
and that does not directly or indirectly affect, impair, limit or compromise the
rights of other Holders of Transfer Restricted Securities may be given by
Holders of at least a majority in aggregate principal amount of the Transfer
Restricted Securities being sold by such Holders pursuant to such Registration
Statement; provided, however, that the provisions of this sentence may not be
-------- -------
amended, modified or supplemented except in accordance with the provisions of
the immediately preceding sentence.
23
(d) Notices. All notices and other communications (including, without
-------
limitation, any notices or other communications to the Trustee) provided for or
permitted hereunder shall be made in writing by hand-delivery, registered first-
class mail, next-day air courier or facsimile:
(1) if to a Holder of the Transfer Restricted Securities or any
Participating Broker-Dealer, at the most current address of such Holder or
Participating Broker-Dealer, as the case may be, set forth on the records
of the registrar under the Indenture, with a copy in like manner to the
Initial Purchasers as follows:
Xxxxxx Brothers Inc.
Three World Financial Center
Xxx Xxxx, XX 00000
Facsimile No: 0-000-000-0000
Attention: Syndicate Department
Xxxxxx Xxxxxxx & Co. International Limited
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Facsimile No.: 0-000-000-0000
Attention: Syndicate Department
and a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
00 Xxxxxxxxxxx
00xx Xxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Facsimile No: 00-000-000-0000
Attention: Xxxxxxx X. Xxxxxxxxx, Esq.
(2) if to the Initial Purchasers, to the addresses specified in
Section 10(d)(1), with a copy to Xxxxxxx Xxxxxxx & Xxxxxxxx, at the address
specified in such section;
(3) if to the Company, as follows:
Cybernet Internet Services International Inc.,
Xxxxxx-Xxxxxx-Xxxx 00-00
00000 Xxxxxx
Xxxxxxx
Facsimile No: x00-00-000-00000
Attention: Xxxxxx Xxxxxx, Chief Financial Officer and
Treasurer
24
with a copy to:
Xxxxxx Xxxxxxxxx, Xxxxxx & Xxxxxx LLP
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx X.X. 00000
Facsimile No: x0-000-000-0000
Attention: Xxxxxx X. Xxxx, Esq.
Any such statements, requests, notices or agreements shall take effect
at the time of receipt thereof. The Company shall be entitled to act and rely
upon any request, consent, notice or agreement given or made on behalf of the
Initial Purchasers.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address and in the manner specified in the Indenture.
(e) Successors and Assigns. This Agreement shall inure to the benefit
----------------------
of and be binding upon the successors and assigns of each of the parties hereto
and the Holders; provided, however, that this Agreement shall not inure to the
-------- -------
benefit of or be binding upon a successor or assign of a Holder unless and to
the extent such successor or assign holds Transfer Restricted Securities.
(f) Counterparts. This Agreement may be executed in any number
------------
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. THIS AGREEMENT AND THE RIGHTS AND DUTIES OF THE
-------------
PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK
(i) Submission to Jurisdiction; Appointment of Agent for Service;
-------------------------------------------------------------
Waiver. To the fullest extent permitted by applicable law, the Company
------
irrevocably submits to the non-exclusive jurisdiction of any federal or state
court in the Borough of Manhattan in the City of Xxx Xxxx, Xxxxxx xxx Xxxxx xx
Xxx Xxxx, Xxxxxx Xxxxxx of America, in any suit or proceeding based on or
arising under this Agreement, and irrevocably agrees that all claims in respect
of such suit or proceeding may be determined in any such court. The Company, to
the fullest extent permitted by applicable law, irrevocably and fully waives the
defense of an inconvenient forum to the maintenance of such suit or proceeding
and hereby irrevocably designates and appoints CT Corporation System (the
"Authorized Agent"), for a period of ten years or until such time as no Notes
-----------------
are outstanding, as its authorized agent upon whom process may be served in any
such suit or proceeding. The Company represents that it has notified the
Authorized Agent of such designation and appointment and that the Authorized
Agent has accepted the same in writing.
25
The Company hereby irrevocably authorizes and directs its Authorized Agent to
accept such service. The Company further agrees that service of process upon its
Authorized Agent and written notice of said service to the Company mailed by
first class mail or delivered to its Authorized Agent shall be deemed in every
respect effective service of process upon the Company in any such suit or
proceeding. Nothing herein shall affect the right of any person to serve process
in any other manner permitted by law. The Company agrees that a final action in
any such suit or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other lawful manner.
Notwithstanding the foregoing, any action against the Company arising out of or
based on this Agreement or the transactions contemplated hereby may also be
instituted by any of the Initial Purchasers, their officers and employees or any
person who controls any of the Initial Purchasers within the meaning of the
Securities Act in any competent court in Germany, and the Company expressly
accepts the jurisdiction of any such court in any such action.
The Company hereby irrevocably waives, to the extent permitted by law,
any immunity to jurisdiction to which it may otherwise be entitled (including,
without limitation, immunity to pre-judgment attachment, post-judgment
attachment and execution) in any legal suit, action or proceeding against it
arising out of or based on this Agreement or the transactions contemplated
hereby.
The provisions of this Section 10(i) are intended to be effective upon
the execution of this Agreement without any further action by the Company or the
Initial Purchasers and the introduction of a true copy of this Agreement into
evidence shall be conclusive and final evidence as to such matters.
(j) Currency Indemnity. The Company shall indemnify each Participant
------------------
against any loss incurred by it as a result of any judgment or order being given
or made and expressed and paid in a currency (the "Judgment Currency") other
-----------------
than U.S. dollars and as a result of any variation as between (i) the rate of
exchange at which the U.S. dollar amount is converted into the Judgment Currency
for the purpose of such judgment or order and (ii) the spot rate of exchange in
New York, New York at which such Participant on the date of payment of such
judgment or order is able to purchase U.S. dollars with the amount of the
Judgment Currency actually received by such Participant. If the U.S. dollars so
purchased are greater than the amount originally due to such Participant
hereunder, such Participant agrees to pay to the Company an amount equal to the
excess of the U.S. dollars so purchased over the amount originally due to such
Participant hereunder. The foregoing shall constitute a separate and
independent obligation of the Company and the Participant, as the case may be,
and shall continue in full force and effect notwithstanding any such judgment or
order as aforesaid. The term "spot rate of exchange" shall include any premiums
and costs of exchange payable in connection with the purchase of, or conversion
into, U.S. dollars.
(k) Severability. If any term, provision, covenant or restriction of
------------
this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means to
achieve
26
the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.
(l) Securities Held by the Company or Its Affiliates. Whenever the
------------------------------------------------
consent or approval of Holders of a specified percentage of Transfer Restricted
Securities is required hereunder, Transfer Restricted Securities held by the
Company or its "affiliates" (as such term is defined in Rule 405 under the
Securities Act) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
(m) Third Party Beneficiaries. Holders of Transfer Restricted
-------------------------
Securities and Participating Broker-Dealers are intended third party
beneficiaries of this Agreement, and this Agreement may be enforced by such
Persons.
(n) Entire Agreement. This Agreement, together with the Purchase
----------------
Agreement, the Unit Agreement, the Warrant Agreement, the Collateral Agreement
and the Indenture, is intended by the parties as a final and exclusive statement
of the agreement and understanding of the parties hereto in respect of the
subject matter contained herein and therein and any and all prior oral or
written agreements, representations, or warranties, contracts, understandings,
correspondence, conversations and memoranda between the Initial Purchasers on
the one hand and the Company on the other, or between or among any agents,
representatives, parents, subsidiaries, affiliates, predecessors in interest or
successors in interest with respect to the subject matter hereof and thereof are
merged herein and replaced hereby.
27
IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
CYBERNET INTERNET SERVICES
INTERNATIONAL INC.
By: /s/ Authorized Signatory
----------------------------
By: /s/ Authorized Signatory
----------------------------
28
XXXXXX BROTHERS INTERNATIONAL
(EUROPE)
By: /s/ Authorized Signatory
------------------------------------
29
XXXXXX XXXXXXX & CO. INTERNATIONAL
LIMITED
By: /s/ Authorized Signatory
------------------------------------
30
