Exhibit 10.13
REGISTRATION RIGHTS AGREEMENT
By and Among
CARRIER ONE, LLC
STIG JOHANSSON,
▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
KEES VAN OPHEM,
▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
and
CARRIER1 INTERNATIONAL S.A.
Dated as of March 1,
1999
Table of Contents
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1. Demand Registrations.....................................................1
2. Piggyback Registrations..................................................3
3. Holdback Agreements......................................................6
4. Other Public Offers; Registration and Public Offer Procedures............6
5. Registration Expenses...................................................10
6. Indemnification.........................................................11
7. Participation in Underwritten Registrations.............................15
8. Rule 144 Reporting......................................................15
9. Definitions.............................................................16
10. Miscellaneous...........................................................18
This Registration Rights Agreement is made as of March 1, 1999, by
and among Carrier1 International S.A., a Luxembourg SOCIETE ANONYME (the
"Company"), Carrier One, LLC, a Delaware limited liability company ("Carrier
One"), and Stig Johansson ("Johansson"), ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("▇▇▇▇▇"), ▇▇▇▇▇▇ ▇.
▇▇▇▇▇ ("▇▇▇▇▇"), ▇▇▇▇ Van Ophem ("Van Ophem"), ▇▇▇▇ ▇▇▇▇▇▇ ("▇▇▇▇▇▇"), ▇▇▇▇▇
▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇"), ▇▇▇▇▇▇ ▇▇▇▇▇ ("▇▇▇▇▇") and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇"), and
together with Johansson, Bauer, Rizzo, Van Ophem, Craven, Nordahl, Gross and
Poulter the "Management Investors"). Capitalized terms used herein but not
otherwise defined herein or in Section 9 hereof shall have the meanings ascribed
thereto in the "Securities Purchase Agreement" (as defined below).
WITNESSETH:
WHEREAS, LLC and the Management Investors hold securities issued by
the Company, subject to the provisions of the Securityholders Agreement, dated
as of the date hereof, among the Company, the Management Investors and LLC;
WHEREAS, the Company, Carrier One and the Management Investors
anticipate that equity securities of the Company (or American depositary
receipts or shares representing interests in such securities) will eventually be
offered by means of an underwritten public offering within the United States
possibly in connection with a listing on the New York Stock Exchange or another
exchange in the United States, as well as by public or private offerings outside
the United States;
WHEREAS, the Company, Carrier One and the Management Investors wish
to provide for certain registration and other rights with respect to the
securities of the Company;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties to this Agreement,
intending to be legally bound, hereby agree as follows:
1. DEMAND REGISTRATIONS. (a) REQUEST FOR REGISTRATION. (i) At any
time after the earlier to occur of (x) March 1, 1999 and (y) six (6) months
after the closing of an IPO, Carrier One may request registration under the
Securities Act of 1933, as amended (the "Securities Act"), of (A) all or any
portion of Carrier One's Registrable Securities on Form S-1 or any similar
long-form registration (each a "Long-Form Registration"), and (B) all or any
portion of Carrier One's Registrable Securities on Form S-3 (including pursuant
to Rule 415 under the Securities Act) or any similar short-form registration
(each a "Short-Form Registration") if available as provided hereinafter. All
registrations requested pursuant to this SECTION 1(A) are referred to herein as
"Demand Registrations". Each request for a Demand Registration shall specify the
number of Registrable Securities requested to be registered for such offering.
(b) LONG-FORM REGISTRATIONS. Carrier One shall be entitled to request
four (4) Long-Form Registrations; PROVIDED, HOWEVER, that the Company shall not
be obligated to effect a Long-Form Registration pursuant to this Section 1(b) if
the anticipated aggregate offering price of the Registrable Securities to be
sold is less than $10 million. The Company shall pay all Registration Expenses
with respect to each Long-Form Registration. A registration shall not count as
one of the permitted Long-Form Registrations until it has become effective and
Carrier One is able to register and sell at least 90% of the Registrable
Securities requested to be included in such registration by Carrier One;
PROVIDED THAT in any event the Company shall pay all Registration Expenses in
connection with any registration initiated as Long-Form Registration regardless
of whether it has become effective. All Long-Form Registrations shall be
underwritten registrations.
(c) SHORT-FORM REGISTRATIONS. In addition to the Long-Form
Registrations provided pursuant to SECTION 1(B), Carrier One shall be entitled
to request up to three (3) Short-Form Registrations per year in which the
Company shall pay all Registration Expenses; PROVIDED, HOWEVER, that the Company
shall not be obligated to effect a Short-Form Registration pursuant to this
SECTION 1(C) if the anticipated aggregate offering price of the Registrable
Securities to be sold is less than $5.0 million or if Carrier One has made a
request for a Short-Form Registration which has become effective within the
prior 180 days. Notwithstanding anything contained herein to the contrary,
Demand Registrations shall be Short-Form Registrations whenever the Company is
permitted to use any applicable short form. The Company shall use its best
efforts to make Short-Form Registrations on Form S-3 available for the sale of
Registrable Securities after the Company has become subject to the reporting
requirement of the Securities Exchange Act of 1934, as amended (the "Securities
Exchange Act"). If the Company is qualified to and, pursuant to the request of
an Institutional Investor, has filed with the Securities and Exchange Commission
(the "Commission") a registration statement under the Securities Act on Form S-3
pursuant to Rule 415 under the Securities Act (the "Required Registration"), the
Company shall use its best efforts to cause the Required Registration to be
declared effective under the Securities Act as soon as practicable after filing,
and once effective, the Company shall cause such Required Registration to remain
effective for a period ending on the earlier of (i) 180 days after the effective
date, or (ii) the date on which all Registrable Securities held by Carrier One
and included in such Required Registration have been sold pursuant to the
Required Registration (the "Effective Period").
(d) PRIORITY ON DEMAND REGISTRATIONS. The Company shall not include
in any Demand Registration any Equity Securities which are not Registrable
Securities without the prior written consent of Carrier One. If the managing
underwriters advise the Company and Carrier One in writing that in their opinion
the number of Registrable Securities to be included in an underwritten offering
exceeds the number of Registrable Securities which can be sold in an orderly
manner in such offering within a price range
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acceptable to Carrier One or marketing factors require a limitation on the
number of Registrable Securities to be underwritten on behalf of the Company,
then the Company shall include in such registration prior to the inclusion of
any Equity Securities which are not Registrable Securities, the number of
Registrable Securities requested to be included which in the opinion of such
underwriters can be sold in (or during the time of such offering without such
interference or affect on the price (the "Demand Registration Cutback") as
follows: FIRST the Registrable Securities requested to be included by Carrier
One; and SECOND the Equity Securities proposed to be sold by the Company for its
own account or any other holder of Equity Securities.
(e) RESTRICTIONS ON DEMAND REGISTRATIONS. The Company shall not be
obligated to effect any Demand Registration within 180 days after the effective
date of a previous Demand Registration. The Company shall be entitled to
postpone, for a reasonable period of time not in excess of 90 days after its
receipt of an initial request for a Demand Registration pursuant to this
Agreement, the filing of any registration statement if at the time it received
such request, the Board determines, in its reasonable business judgment, that
such registration and offering would be reasonably expected to have an adverse
effect on any financing, acquisition, corporate reorganization or other material
transaction or development involving the Company PROVIDED THAT the Company shall
only be entitled to one such postponement in any 12-month period. The Company
shall give Carrier One prompt written notice of such postponement. In the event
of such postponement, the Company shall comply with such request for Demand
Registration as soon as practicable (and in any event within 90 days after its
receipt of the initial request for such Demand Registration) after it shall
determine, in its reasonable business judgment, that such registration and
offering will not interfere with the matters described in the second sentence of
this SECTION 1(E). If the Company shall postpone the filing of any registration
statement, Carrier One shall have the right to withdraw its request for such
registration by giving notice to the Company. In the event that Carrier One
withdraws its request in the foregoing manner, such request shall not be counted
for purposes of determining the number of registrations to which Carrier One is
entitled pursuant to SECTION 1.
(f) SELECTION OF UNDERWRITERS. Carrier One will have the right to
select the investment banker(s) and manager(s) to administer any offering
including Registrable Securities held by Carrier One (which, if necessary will
include a "qualified independent underwriter" within the meaning of the rules of
the National Association of Securities Dealers, Inc. (a "QIU")), subject to the
Company's approval which will not be unreasonably withheld.
2. PIGGYBACK REGISTRATIONS. (a) RIGHT TO PIGGYBACK. Whenever the
Company proposes to register any of its Equity Securities (including any
proposed registration of the Company's Equity Securities by any third party)
under the Securities Act whether or not for sale for its own account (other than
pursuant to a Demand Registration or a registration on Form S-4 or S-8 or any
successor or similar forms, but including an IPO)
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and the registration form to be used may be used for the registration of
Registrable Securities held by Carrier One or any Management Investor (a
"Piggyback Registration"), the Company shall give prompt written notice to
Carrier One and the Management Investors of its intention to effect such a
registration and shall include in such registration, subject TO SECTIONS 2(C)
and (D), all Registrable Securities held by Carrier One and, subject to the
provisions of the Securityholders Agreement, all Registrable Securities of the
Management Investors with respect to which the Company has received written
requests for inclusion therein within ten (10) business days after the receipt
of the Company's notice; provided in no event shall any Management Investor have
the right of Piggyback Registration in connection with an IPO.
(b) PIGGYBACK EXPENSES. The Registration Expenses of Carrier One and
the Management Investors shall be paid by the Company in all Piggyback
Registrations.
(c) PRIORITY ON PRIMARY REGISTRATIONS. If a Piggyback Registration is
an underwritten primary registration on behalf of the Company, and the managing
underwriters advise the Company, Carrier one and each Management Investor
requesting registration in writing that in their opinion the number of Equity
Securities that holders of Equities Securities propose to sell therein, whether
or not such selling holders have the right to include Equity Securities therein
(the "Other Equity Securities"), plus the number of Warrant Shares that holders
thereof have requested to be sold therein, plus the number of Equity Securities
to be underwritten on behalf of the Company (the "Company Equity Securities"),
exceeds the maximum number of Equity Securities specified by the managing
underwriters that may be distributed without adversely affecting the price,
timing or distribution of the Company Equity Securities, then the Company shall
include in such registration such maximum number of Equity Securities requested
to be included as follows: FIRST the Company Equity Securities, SECOND the
Registrable Securities requested to be included in such registration by Carrier
One, THIRD the Equity Securities requested to be included in such registration
by the Management Investors and, if applicable, the Other Management Investors,
pro rata among the Management Investors and, if applicable, the Other Management
Investors on the basis of the Registrable Securities owned by each such holder,
and FOURTH the Equity Securities requested to be included in such registration
by any other holder.
(d) PRIORITY ON SECONDARY REGISTRATIONS. If a Piggyback Registration
is entirely an underwritten secondary registration on behalf of holders of the
Company's securities, and the managing underwriters advise the Company, Carrier
One and each Management Investor or other Management Investor requesting
registration in writing that in their opinion the number of Warrant Shares and
Other Equity Securities to be included in such offering exceeds the maximum
number of Equity Securities (the "Includible Secondary Securities") specified by
the managing underwriter that may be distributed without adversely affecting the
price, timing or distribution of the Equity Securities being distributed, then:
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(i) in the case of a demand registration pursuant to this Agreement,
FIRST each party exercising such demand registration rights and Carrier
One, SECOND each other Permitted Holder, Management Investor, Other
Management Investor or Beneficial Investor from time to time party to or
beneficiary of this Agreement, and THIRD each requesting holder of Warrant
Shares, together with each other party exercising its registration rights
under this Agreement, shall, in that order of priority, be entitled to
include up to its pro rata portion of the Includible Secondary Securities
remaining after inclusion of the Includible Secondary Securities of any
holder having priority and in priority to the inclusion of any Other
Equity Securities, other than as specified above, that are proposed to be
sold in such public offering;
(ii) in the case of any other demand registration, FIRST each party
exercising such demand registration rights shall be entitled to include
all of its Includible Secondary Shares, then each requesting holder of
Warrant Shares, together with Carrier One and each Permitted Holder,
Management Investor, Other Management Investor or Beneficial Investor from
time to time party to or beneficiary of this Agreement, shall be entitled
to include up to its pro rata portion of the remaining Includible
Secondary Securities and in priority to the inclusion of any Other Equity
Securities other than as specified above, that are proposed to be sold in
such public offering.
(e) SELECTION OF UNDERWRITERS. If any Piggyback Registration is an
underwritten offering, the selection of investment banker(s) and manager(s) for
the offering (which, if necessary, will include a QIU) must be approved by
Carrier One.
(f) OTHER REGISTRATIONS. If the Company has previously filed a
registration statement with respect to Registrable Securities pursuant to
SECTION 1 or pursuant to this SECTION 2, and if such previous registration has
not been withdrawn or abandoned, the Company shall not file or cause to be
effected any other registration of any of its Equity Securities under the
Securities Act (except on Form S-8 or any successor form), whether on its own
behalf or at the request of any holder or holders of such securities, until a
period of at least 180 days has elapsed from the effective date of such previous
registration.
(g) OTHER EMPLOYEES. Upon request of any Management Investor who is
also a member of the Board of Directors or the Chief Executive Officer of the
Company, the Company shall make available to each other director or employee of
the Company or any of its Affiliates (the "Other Management Investors") holding
Equity Securities of the Company who is also a party to the Securityholders'
Agreement the rights afforded to the Management Investors under Sections 2 and 4
of this Agreement, subject to such Other Management Investor agreeing in writing
to abide by all of the terms and conditions of this Agreement applicable to
Management Investors as if such employee were a Management Investor, MUTATIS
MULANDIS, including without limitation the obligations of Management Investors
under Section 3 of this Agreement. For the avoidance of doubt,
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no consent of any such Other Management Investor shall be required to amend or
waive any provision of, or to terminate, this Agreement.
3. HOLDBACK AGREEMENTS. (a) If requested in writing by the
underwriters for the IPO or any other Public Offer of Equity Securities of the
Company, Carrier One and each Management Investor shall agree not to effect any
public sale or public transfer (including sales pursuant to Rule 144 or
Regulation S) of Equity Securities during a period of not more than 190 days
beginning on the effective date of the registration statement relating to such
IPO, in the case of a public offering in the United States, or beginning on the
date the offering is closed, in the case of any other Public Offer outside the
United States; PROVIDED, HOWEVER, that all Persons entitled to registration
rights with respect to Equity Securities of the Company who are not parties to
this Agreement, all Persons holding in excess of five percent (5%) of the
capital stock of the Company on a fully diluted basis and all executive officers
and directors of the Company shall have also agreed not to sell publicly or
transfer their Equity Securities under the terms set forth in this Section 3
(a).
(b) The Company (i) agrees not to effect any public sale or
distribution of its Equity Securities during the 10 days prior to and during the
180-day period beginning on the effective date of any (u) underwritten Demand
Registration, (v) underwritten Piggyback Registration (except as part of such
underwritten registration or pursuant to a registration on Form S-8 or any
successor form), (w) post-effective amendment of a Required Registration
pursuant to which an underwritten offering is to be effected so long as at least
180 days have elapsed since the end of the previous lock-up period pursuant to
this clause (w) unless (in any such case) the underwriter managing the
registered public offering otherwise agrees, or (x) preliminary or final
prospectus, offering memorandum or circular or other offering document in
respect of any other Public Offer of Equity Securities and (ii) agrees to cause
each holder of its Equity Securities purchased from the Company at any time
after the date of this Agreement (other than in a registered public offering) to
agree not to effect any public sale or distribution (including sales pursuant to
Rule 144 or Regulation S) of any such securities during such period (except as
part of such underwritten registration, if otherwise permitted, and, in the case
of an underwritten Piggyback Registration, as part of such underwritten
registration or pursuant to a registration on Form S-8 or any successor form),
unless the underwriters managing the registered public offering otherwise agree.
4. OTHER PUBLIC OFFERS; REGISTRATION AND PUBLIC OFFER PROCEDURES.
Prior to, concurrently with or following a US Public Offer, Carrier One may
determine to proceed United States and possibly concurrent private offerings of
Equity Securities within and outside the United States, to the extent permitted
by applicable law, accompanied by listings on one or more exchanges or
over-the-counter markets and applications for qualification of Equity Securities
to be traded on SEAQ International, PORTAL or a similar system. If at any time
after March 1, 1999 Carrier One so requests, the Company
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and the Management Investors shall co-operate with Carrier One and take such
measures as may be necessary in the reasonable judgment of Carrier One
(including, in the case of the Management Investors, voting their Equity
Securities) in order to permit such offerings to be completed and such related
actions to be taken in compliance with all applicable laws and regulations and
the rules of any exchange in which the Equity Securities are or are to be
listed, including any of the measures listed in Section 4 or any comparable
measures applicable to such offerings and related actions. It is the parties'
intention that the respective rights and obligations of the Company, Carrier One
and the Management Investors with respect to such offerings shall be equivalent,
insofar as legally permitted and reasonably practicable in light of the
customary market practice applicable to such offerings, to those set forth in
this Agreement with respect to registration of Registrable Securities in the
U.S., and that, if any such offering is proposed by Carrier One, the parties
shall negotiate in good faith such amendments to this Agreement as Carrier One
may reasonably request to better define such rights and obligations in such
connection. Whenever Carrier One or a Management Investor shall have requested
that any Registrable Securities be registered in accordance with Section 1 or 2
of this Agreement or otherwise offered by means of a Public Offer, the Company
shall,
(I) in the case of a US Public Offer use its best efforts to effect
the registration and the sale of such Registrable Securities in accordance with
the intended method of disposition thereof, and pursuant thereto the Company
shall as expeditiously as possible:
(a) prepare and file with the Commission a registration statement
with respect to such Registrable Securities and use its best efforts to cause
such registration statement to become effective (provided that within a
reasonable time before filing a registration statement or prospectus or any
amendments or supplements thereto, the Company shall furnish to counsel selected
by Carrier One and the Management Investors participating in such registration
copies of all such documents proposed to be filed, which documents shall be
subject to the review and comment of such counsel);
(b) notify in writing Carrier One and each Management Investor
requesting registration of its Registrable Securities of the effectiveness of
each registration statement filed hereunder and prepare and file with the
Commission such amendments and supplements to such registration statement and
the prospectus used in connection therewith as may be necessary to keep such
registration statement effective for a period of either (i) not less than 180
days or such longer period specified in SECTION 1(C) (subject to extension
pursuant to SECTION 7(B)), or, if such registration statement relates to an
underwritten offering, such longer period as (in the opinion of counsel for the
underwriters) a prospectus is required by law to be delivered in connection with
sales of Registrable Securities by an underwriter or dealer, or (ii) such
shorter period as will terminate when all of the securities covered by such
registration statement during such period have been disposed of in accordance
with the intended methods of disposition by
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the seller or sellers thereof set forth in such registration statement (but in
any event not before the expiration of any longer period required under the
Securities Act), and to comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such registration
statement until such time as all of such securities have been disposed of in
accordance with the intended methods of disposition by the seller or sellers
thereof set forth in such registration statement subject to the time limits set
forth herein;
(c) furnish to Carrier One and each Management Investor requesting
registration of its Registrable Securities such number of copies of such
registration statement, each amendment and supplement thereto, the prospectus
included in such registration statement (including each preliminary prospectus)
and such other documents as such Institutional Investor or Management Investor
may reasonably request in order to facilitate the disposition of its Registrable
Securities;
(II) in the case of a US Public Offer or any other Public Offer:
(a) use its best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such jurisdictions as
Carrier One or such Management Investor reasonably requests and do any and all
other acts and things which may be reasonably necessary or advisable to enable
Carrier One or any Management Investor to consummate the disposition in such
jurisdictions of the Registrable Securities owned by Carrier One or such
Management Investor (provided that the Company shall not be required to (i)
qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this subparagraph, (ii) subject itself
to taxation in any such jurisdiction, or (iii) consent to general service or
process in any such jurisdiction);
(b) notify Carrier One and each Management Investor requesting
registration of its Registrable Securities or inclusion thereof in a Public
Offer, at any time when a prospectus, offering circular or memorandum or other
offering document relating thereto is required to be delivered under the
Securities Act or other applicable law, upon discovery that, or upon the
discovery of the happening of any event as a result of which the prospectus or
such other document contains an untrue statement of a material fact or omits any
fact necessary to make the statements therein not misleading in the light of the
circumstances under which they were made, and, at the request of Carrier One or
any Management Investor, the Company shall promptly furnish to Carrier One or
such Management Investor, as the case may be, a reasonable number of copies of a
supplement or amendment to such prospectus so that, as thereafter delivered to
the purchasers of such Registrable Securities, such prospectus or other document
shall not contain an untrue statement of a material fact or omit to state any
fact necessary to make the statements therein not misleading in the light of the
circumstances under which they were made;
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(c) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are then
listed;
(d) provide a transfer agent and registrar for all such Registrable
Securities and a CUSIP number for all such Registrable Securities not later then
the effective date of such registration statement;
(e) enter into such customary agreements and depositary or custodial
arrangements (including underwriting and deposit agreements in customary form)
and take all such other actions as Carrier One and any Management Investors
participating in such registration or the underwriters, if any, reasonably
request in order to expedite or facilitate the disposition of the Registrable
Securities being sold;
(f) make available for inspection by Carrier One or any Management
Investor requesting inclusion of its Registrable Securities in such Public Offer
or other Public Offer, any participating underwriter and any attorney,
accountant or other agent retained by Carrier One, such Management Investor or
underwriter, all financial and other records, pertinent corporate documents and
properties of the Company, and cause the Company's officers, directors,
employees and independent accountants to supply all information reasonably
requested by Carrier One, such Management Investor, underwriter, attorney,
accountant or agent in connection with such registration statement and assist
and, at the request of any participating underwriter, cause such officers or
directors to participate in presentations to prospective purchasers;
(g) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission or any comparable authority in any
foreign jurisdiction and any exchange on which Equity Securities are or are to
be listed, . and make available to its Securityholders, as soon as reasonably
practicable, an earnings statement covering the period of at least twelve months
beginning with the first day of the Company's first full calendar quarter after
the effective date of the registration statement, which earnings statement shall
satisfy the provisions of Section 11 (a) of the Securities Act and Rule 158
thereunder or, in the case of a Public Offer which is not a US Public Offer, any
other financial statements or data of the Company which may be required to be
provided by applicable law or the rules and regulations of any such non-U.S.
authority or exchange?
(h) permit any holder of Registrable Securities, which holder might
be deemed to be an underwriter or a controlling person of the Company, to
participate in the preparation of such registration or comparable statement or
prospectus, offering circular or memorandum or other offering document and to
require the insertion therein of material, furnished to the Company in writing,
which in the reasonable judgment of such holder and its counsel should be
included;
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(i) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, of any order suspending or preventing
the use of any prospectus, offering circular or memorandum or other offering
document or suspending the qualification of any securities included in such
registration statement or other document for sale or trading in any
jurisdiction, use its best efforts promptly to obtain the withdrawal of such
order;
(j) use its best efforts to cause any such registration statement,
prospectus, offering circular or memorandum or other offering document and, if
required, Registrable Securities covered by such registration statement or other
document to be registered with, qualified or approved by such other Governmental
Authorities or exchanges on which Equity Securities of the Company are or are to
be listed as may be necessary to enable Carrier One and the Management Investors
to consummate the disposition of their Registrable Securities;
(k) obtain one or more comfort letters, dated the effective date of
such registration statement (and, if such registration includes an underwritten
public offering, dated the date of the closing under the underwriting agreement,
final prospectus, offering circular or memorandum or other offering document),
from the Company's independent public accountants in customary form and covering
such matters of the type customarily covered by comfort letters as Carrier One
reasonably requests; and
(l) use reasonable efforts to cause certificates for the Registrable
Securities covered by such registration statement, final prospectus, offering
circular or memorandum or other offering document to be delivered by the holders
thereof to the underwriters in such denominations and registered in such names
as the underwriters may request.
5. REGISTRATION EXPENSES. (a) All expenses incident to the Company's
performance of or compliance with this Agreement, including, without limitation,
all registration and filing fees, listing fees, fees and expenses of compliance
with securities or blue sky laws, printing expenses, travel expenses, filing
expenses, messenger and delivery expenses, fees and disbursements of custodians,
depositories, fees and disbursements of counsel of the Company and fees and
disbursements of all independent certified public accountants, underwriters
including, if necessary, a QIU (excluding discounts and commissions) and other
Persons retained by the Company, Carrier One or the Management Investors (all
such expenses being herein called "Registration Expenses") shall be borne and
paid by the Company. The Company shall, in any event, pay its internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expense of any annual
audit or quarterly review, the expense of any liability insurance and the
expenses and fees for listing the securities to be registered on each securities
exchange on which similar
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securities issued by the Company are then listed or on the NASD automated
quotation system (or any successor or similar system).
(b) In connection with each Demand Registration and each Piggyback
Registration (or comparable proceeding with respect to a Public Offer outside
the U.S.), the Company shall reimburse Carrier One the reasonable fees and
disbursements of (i) one special counsel for Carrier One, and (ii) its local
counsel.
(c) In connection with each Demand Registration and each Piggyback
Registration (or comparable proceeding with respect to a Public Offer outside
the U.S.), Carrier One shall bear and pay all underwriting discounts and
selling commissions applicable to the sale of its Registrable Securities
included in such registration or Public Offer. In connection with each
Piggyback Registration (or comparable proceeding), the Management Investors
shall bear and pay all underwriting discounts and selling commissions
applicable to the sale of their Registrable Securities included in such
registration (or Public Offer).
6. INDEMNIFICATION. (a) The Company agrees to indemnify and hold
harmless, to the fullest extent permitted by law, Carrier One and its
affiliates, its and their respective officers, directors, agents and employees
and each Person who controls Carrier One or any of its affiliates (within the
meaning of the Securities Act) and each Management Investor against any losses,
claims, damages, liabilities, joint or several, together with reasonable costs
and expenses (including reasonable attorney's fees), to which such indemnified
party may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions or proceedings, whether
commenced or threatened, in respect thereof) arise out of or are based upon (i)
any untrue or alleged untrue statement of material fact contained (A) in any
registration statement preliminary or final prospectus, offering circular or
memorandum or other offering document for any Public Offer or any amendment
thereof or supplement thereto, or (B) in any application or other document or
communication (in this SECTION 6 collectively called an "application") executed
by or on behalf of the Company or based upon written information furnished by or
on behalf of the Company filed in any jurisdiction in order to qualify any
securities covered by such registration statement or to obtain approval of any
preliminary or final prospectus, offering circular or memorandum or other
offering document under the "blue sky" or other securities laws or listing
regulations thereof, or (ii) any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and the Company will reimburse Carrier One, each such director,
officer and controlling Person and each Management Investor for any legal or any
other expenses incurred by them in connection with investigating or defending
any such loss, claim, liability, action or proceeding; 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 or proceeding in respect thereof) or
expense arises out of or is based upon an untrue statement or alleged untrue
statement, or omission or alleged omission, made in such registration statement,
any such
11
preliminary or final prospectus or offering circular or memorandum or other
offering document or any amendment or supplement thereto, or in any
application, in reliance upon, and in conformity with, written information
prepared and furnished to the Company by Carrier One or such Management
Investor, as the case may be, expressly for use therein or by Carrier One or
the Management Investor's, failure, as the case may be, to deliver a copy of
the registration statement, prospectus, offering circular or memorandum or
comparable document or any amendments or supplements thereto after the
Company has furnished Carrier One and such Management Investor with a
sufficient number of copies of the same. In connection with an underwritten
offering, the Company will indemnify such underwriters, their officers and
directors and each Person who controls such underwriters (within the meaning
of the Securities Act) to the same extent as provided above with respect to
the indemnification of an Carrier One and a Management Investor.
(b) In connection with any registration statement or the preparation
of any preliminary or final prospectus, offering circular or memorandum or other
offering document for a Public Offer in which Carrier One or a Management
Investor is participating, Carrier One and such Management Investor, as the case
may be, will furnish to the Company in writing such information and affidavits
as the Company reasonably requests (and is customarily provided by selling
stockholders) for use in connection with any such registration statement,
prospectus offering circular or memorandum or other offering document and, to
the fullest extent permitted by law, will indemnify and hold harmless the
Carrier One, its affiliates and the other Management Investors holding
Registrable Securities and the Company, and their respective directors,
officers, agents and employees and each other Person who controls the Company
(within the meaning of the Securities Act) against any losses, claims, damages,
liabilities, joint or several, together with reasonable costs and expenses
(including reasonable attorney's fees), to which such indemnified party may
become subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions or proceedings, whether commenced or
threatened, in respect thereof) arise out of or are based upon (i) any untrue or
alleged untrue statement of material fact contained in the registration
statement, preliminary or final prospectus, offering circular or memorandum or
other offering document or any amendment thereof or supplement thereto or in any
application, or (ii) any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein not
misleading, but only to the extent that such untrue statement or omission is
made in such registration statement, any such prospectus or offering circular or
memorandum or other offering document or any amendment or supplement thereto, or
in any application, or reliance upon and in conformity with written information
prepared and furnished to the Company by the Carrier One, or Management
Investors, expressly for use therein, and Carrier One, or such Management
Investors, as the case may be, will reimburse the Company and each such other
indemnified party for any legal or any other expenses incurred by them in
connection with investigating or defending any such loss, claim, liability,
action or
12
proceeding; PROVIDED, HOWEVER, that the obligation to indemnify will be
individual to Carrier One, or such Management Investor, as the case may be, and
will be limited to the net amount of proceeds received by Carrier One or each
Management Investor from the sale of its Registrable Securities pursuant to such
registration statement or in such Public Offer.
(c) Any Person entitled to indemnification under this Agreement shall
notify promptly the indemnifying party in writing of the commencement of any
action or proceeding with respect to which a claim for indemnification may be
made pursuant to this SECTION 6, but the failure of any indemnified party to
provide such notice shall not relieve the indemnifying party of its obligations
under the preceding subparagraphs of this SECTION 6, except to the extent, but
only to the extent to which, the indemnifying party is materially prejudiced
thereby and shall not relieve the indemnifying party from any liability which it
may have to any indemnified party otherwise than under this SECTION 6. In case
any action or proceeding is brought against an indemnified party and it shall
notify the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate therein and, unless in the reasonable
opinion of outside counsel to the indemnified party a conflict of interest
between such indemnified and indemnifying parties may exist in respect of such
claim, to assume the defense thereof jointly with any other indemnifying party
similarly notified, to the extent that it chooses, with counsel reasonably
satisfactory to such indemnified party, and after notice from the indemnifying
party to such indemnified party that it so chooses, the indemnifying party shall
not be liable to such indemnified party for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation; PROVIDED, HOWEVER, that
(i) if the indemnifying party fails to take reasonable steps necessary to defend
diligently the action or proceeding within 20 days after receiving notice from
such indemnified party that the indemnified party believes it has failed to do
so, or (ii) if such indemnifying party reasonably shall have concluded that
there may be one or more legal defenses available to such indemnified party
which are not available to the indemnifying party; or (iii) if representation of
both parties by the same counsel is otherwise inappropriate under applicable
standards of professional conduct, then, in any such case, the indemnified party
shall have the right to assume or continue its own defense as set forth above
(but with no more than one firm of counsel for all indemnified parties in each
jurisdiction, except to the extent any indemnified party or parties reasonably
shall have concluded that there may be legal defenses available to such party or
parties which are not available to the other indemnified parties or to the
extent representation of all indemnified parties by the same counsel is
otherwise inappropriate under applicable standards of professional conduct) and
the indemnifying party shall be liable for any expenses therefor.
(d) No indemnifying party shall, without the written consent of each
indemnified party (which consent shall not be unreasonably withheld), effect the
settlement or compromise of, or consent to the entry of any judgment with
respect to, any
13
pending or threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified party is an
actual or potential party to such action or claim) unless such settlement,
compromise or judgment (A) includes an unconditional release of the indemnified
party from all liability arising out of such action or claim without any payment
or consideration provided or obligation incurred by any indemnified party, 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 any indemnified party.
(e) If the indemnification provided for in this Section 6 is
unavailable to or is insufficient to hold harmless an indemnified party under
the provisions above in respect to any losses, claims, damages, or liabilities
referred to therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative fault of the Company, the members of Carrier One and Management
Investors participating in the registration statement, 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 fault referred to
in clause (i) above but also the relative benefit of the Company, the members of
Carrier One and each Management Investor participating in the registration
statement or the Public Offer in connection with the statement 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, each member of Carrier One and each Management Investor participating
in the registration statement or the Public Offer shall be deemed to be in the
same proportion as the total net proceeds from the offering (before deducting
expenses) received and retained by each such participating party bear to the
total net proceeds from the offering (before deducting expenses). The relative
fault of the Company, each member of Carrier One and each Management Investor
participating in the registration statement or the Public Offer shall be
determined by reference to, among other things, whether the untrue or alleged
omission to state a material fact relates to information supplied by the
Company, a member of Carrier One or a Management Investor participating in the
registration statement or the Public Offer and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company, Carrier One and the Management Investors agree that it
would not be just and equitable if contribution pursuant to this Section 6 were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by an indemnified
party as a result of the losses, claims, damages and liabilities referred to in
the immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action
14
or claim. Notwithstanding the provisions of this SECTION 6, neither Carrier One
nor any Management Investor shall be required to contribute pursuant to this
SECTION 6 any amount in excess of the sum of (i) any amounts paid pursuant to
SECTION 6(b) and (ii) net proceeds received and retained by Carrier One or the
Management Investor from the sale of its Registrable Securities covered by the
registration statement filed pursuant hereto or otherwise included in a Public
Offer, it being understood that insofar as such net proceeds have been
distributed by Carrier One to its members, the amount of Carrier One's
contribution hereunder shall be limited to the net proceeds which it actually
recovers from its members based upon their relative fault and that to the extent
that Carrier One has not distributed such net proceeds, the amount of Carrier
One's contribution hereunder shall be limited by the percentage of such net
proceeds which corresponds to the percentage equity interests in Carrier One
held by those of its members who have been determined to be at fault. 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 misrepresentations.
(f) The indemnification and contribution by any such party provided
for under this Agreement shall be in addition to any other rights to
indemnification or contribution which any indemnified party may have pursuant to
law or contract and will remain in full force and effect regardless of any
investigation made or omitted by or on behalf of the indemnified party or any
officer, director or controlling Person of such indemnified party and will
survive the transfer of securities.
(g) The indemnification and contribution required by this SECTION 6
shall be made by periodic payments of the amount thereof during the course of
the investigation or defense, as and when bills are received or expense, loss,
damage or liability is incurred.
7. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. (a) No Person may
participate in any registration or other Public Offer hereunder which is
underwritten unless such Person (i) agrees to sell such Person's securities on
the basis provided in any underwriting arrangements approved by the Person or
Persons entitled hereunder to approve such arrangements, (ii) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents required under the terms of such underwriting
arrangements, and (iii) furnishes such information regarding such Person as the
Company may reasonably request and as shall be required in connection with such
registration; PROVIDED THAT neither Carrier One nor any Management Investor
shall be required to make any representations or warranties to the Company or
the underwriters (other than representations and warranties regarding Carrier
One, or such Management Investor, and Carrier One's or such Management
Investor's intended method of distribution) or to undertake any indemnification
obligations to the Company or the underwriters with respect thereto, except as
otherwise provided in SECTION 6.
15
(b) Each Person that is participating in any registration or other
Public Offer hereunder agrees that, upon receipt of any notice from the Company
of the happening of any event of the kind described in SECTION 4(e), such Person
will forthwith discontinue the disposition of its Registrable Securities
pursuant to the registration statement, or such Public Offer until such Person's
receipt of the copies of a supplemented or amended prospectus, offering circular
or memorandum or other offering document, as applicable, as contemplated by such
SECTION 4(e). In the event the Company shall give any such notice, the
applicable time period mentioned in SECTION 4(b) during which a Registration
Statement is to remain effective shall be extended by the number of days during
the period from and including date of the giving of such notice pursuant to this
Section to and including the date when Carrier One shall have received the
copies of the supplemental or amended prospectus, offering circular or
memorandum or other offering document, as applicable, contemplated by SECTION
4(e).
8. RULE 144 REPORTING. With a view to making available the benefits
of certain rules and regulations of the Commission that may permit the sale of
Registrable Securities to the public without registration, the Company agrees at
all times after the Company has filed a registration statement with the
Commission pursuant to the requirements of either the Securities Act or the
Exchange Act to use its best efforts to: (a) make and keep public information
regarding the Company available as those terms are understood and defined in
Rule 144 under the Securities Act; (b) file with the Commission in a timely
manner all reports and other documents required of the Company under the
Securities Act and the Securities Exchange Act at any time after it has become
subject to such reporting requirements; and (c) so long as Carrier One or a
Management Investor owns any Registrable Securities, furnish to Carrier One or
such Management Investor forthwith upon written request a written statement by
the Company as to its compliance with the reporting requirements of Rule 144,
and of the Securities Act and the Exchange Act, a copy of the most recent annual
or quarterly report of the Company, and such other reports and documents so
filed as Carrier One or such Management Investor may reasonably request in
availing itself of any rule or regulation of the Commission allowing a holder to
sell any such securities without registration.
9. DEFINITIONS.
"BENEFICIAL INVESTORS" means industry experts or other individuals
whose affiliation with the Company should, in the good faith judgment of the
Board, provide the Company a with strategic advantage.
"BOARD" means the Board of Directors of the Company.
"COMMISSION" has the meaning set forth in SECTION 1(c).
16
"COMPANY" means Carrierl International S.A., a Luxembourg SOCIETE
ANONYME, or any company or other entity into which Carrierl International S.A.
is converted or merged into or which becomes the direct or indirect owner of all
the Equity Securities of Carrierl International S.A.
"DEMAND REGISTRATION" has the meaning set forth in Section 1(a).
"DEMAND REGISTRATION CUTBACK" has the meaning set forth in
SECTION 1(d).
"EFFECTIVE PERIOD" has the meaning set forth in Section 1(c).
"EQUITY SECURITIES" means (i) the Shares (including, without
limitation, the Purchased Securities), (ii) any warrants, options or other
rights to subscribe for or to acquire, directly or indirectly (whether pursuant
to any division or split of Shares or other interests in the Company or in
connection with a combination, exchange, reorganization, recapitalization,
reclassification, merger, consolidation or other business combination
transaction involving the Company or otherwise), any Shares or other equity
interests in the Company, (iii) any Shares or other equity interests in the
Company or any bonds, notes, debentures or other securities convertible into or
exchangeable for, directly or indirectly (whether pursuant to a Share split or
Share division or in connection with a combination, exchange, reorganization,
recapitalization, reclassification, merger, consolidation or other business
combination transaction involving the Company or otherwise), any Shares or other
equity interests of the Company including pursuant to the transactions
contemplated by Section 4 of the Securityholders Agreement, and (iv) any
interests in any of the foregoing, including any American or Global Depositary
receipts or shares representing any of the Equity Securities referred to in
clauses (i) to (iii) above, in each case outstanding at any time.
"IPO" means the initial underwritten public offering of any Equity
Securities within the United States.
"LONG-FORM REGISTRATION"has the meaning set forth in Section 1(a).
"PIGGYBACK REGISTRATION" has the meaning set forth in Section 2(a).
"PUBLIC OFFER" means any underwritten public offering of any Equity
Securities in any jurisdiction or any underwritten private offering or series of
private offerings in one or more jurisdictions of Equity Securities in Europe
which is accompanied by a listing of the Equity Securities on a recognized
national stock exchange or introduction of the Equity Securities to trading on a
recognized national over-the-counter market in Europe.
"QIU" has the meaning set forth in SECTION 1(f).
17
"PERMITTED HOLDER" means any of the following: any of Providence
Equity Partners L.P., Providence Equity Partners 11 L.P., Providence Equity
Partners III L.P., Primus Capital Fund IV Limited Partnership and Primus
Executive Fund Limited Partnership and any of the respective Affiliates or
successors of the foregoing.
"REGISTRABLE SECURITIES" means, at any time, (i) the Shares issued
and outstanding at such time, (ii) Shares issued upon the conversion of or
exchange of any Equity Securities, (iii) any Equity Securities issued or
issuable, directly or indirectly, with respect to the securities referred to in
clauses (i) or (ii) above by way of a dividend or split or in connection with a
combination, exchange, reorganization, recapitalization, reclassification,
merger, consolidation or other business combination transaction.
"REQUIRED REGISTRATION" has the meaning set forth in Section 1(c).
"SECURITIES ACT" has the meaning set forth in SECTION 1(a).
"SECURITIES EXCHANGE ACT" has the meaning set forth in SECTION 1(c).
"SECURITYHOLDERS AGREEMENT" means that certain Securityholders
Agreement dated as of the date hereof among the Company, Carrier One and the
Management Investors, as amended, modified or supplemented from time to time.
"SHARES" means the ordinary shares of the Company.
"SHORT-FORM REGISTRATION" has the meaning set forth in SECTION 1(a).
"US PUBLIC OFFER" means any underwritten public offering of any
Equity Securities within the United States.
"WARRANT SHARES" means ordinary shares (or other securities) issued
or issuable upon exercise of warrants pursuant to either of the Warrant
Agreements, dated as of February 19, 1999, between the Company and the Chase
Manhattan Bank,
10. MISCELLANEOUS. (a) NO INCONSISTENT AGREEMENT. The Company shall
not hereafter enter into any agreement with respect to its Equity Securities
which is inconsistent with or violates the rights granted to Carrier One and
Management Investors in this Agreement.
(b) ADJUSTMENTS AFFECTING REGISTRABLE SECURITIES. Except as otherwise
permitted herein, after an IPO or other Public Offer the Company shall not take
any action, or permit any change to occur, with respect to its Equity Securities
which would adversely affect the ability of Carrier One and Management Investors
to include their Registrable Securities in a registration or other Public Offer
undertaken pursuant to this
18
Agreement or which would materially and adversely affect the marketability of
such Registrable Securities in any such registration or other Public Offer
(including, without limitation, effecting a split or a combination of its Equity
Securities).
(c) REMEDIES. Any Person having rights under any provision of this
Agreement shall be entitled to enforce such rights specifically to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction (without posting
any bond or other security) for specific performance and for other injunctive
relief in order to enforce or prevent violation of the provisions of this
Agreement.
(d) AMENDMENTS AND WAIVERS. No modification to or amendment of any
provision of this Agreement shall be effective against the Company, Carrier One,
or any Management Investor unless such modification or amendment is approved in
writing by Carrier One and the Company and, if it materially adversely affects
the rights of the holders of the Management Shares hereunder, is approved in
writing by the holders of a majority of the Management Shares, it being
understood that no consent of the holders of the Management Shares shall be
required to add additional employees and directors of the Company and its
Affiliates as direct parties to this Agreement, but any modification to or
amendment of any provision of this Agreement executed and delivered in writing
by the holders of a majority of the Management Shares shall be binding upon all
such holders; provided that no such modification, amendment or waiver of this
Agreement which materially, adversely and disproportionately affects any one
holder of Securityholder Securities, as such, shall be effective against such
holder without the prior written consent of such holder. No waiver of the rights
and obligations hereunder of the parties hereto shall be effective unless such
waiver is in writing and duly executed and delivered by Carrier One and, if it
materially adversely affects the rights of the holders of the Management Shares
hereunder, is approved in writing by the holders of a majority of the Management
Shares, but any waiver of any rights or obligations hereunder executed and
delivered in writing by the holders of a majority of the Management Shares shall
be binding upon all such holders; provided that no such waiver of this Agreement
which materially, adversely and disproportionately affects any one holder of
Securityholder Securities, as such, shall be effective against such holder
without the prior written consent of such holder. The failure of any party
hereto to enforce any of the provisions of this Agreement shall in no way be
construed as a waiver of such provisions and shall not affect the right of such
party thereafter to enforce each and every provision of this Agreement in
accordance with its terms.
(e) SUCCESSORS AND ASSIGNS. All covenants and agreements in this
Agreement by or on behalf of any of the parties hereto shall bind and inure to
the benefit of the
19
respective successors and assigns of the parties hereto, including any member of
Carrier One and such member's assigns, whether so expressed or not. In addition,
whether or not any express assignment has been made, the provisions of this
Agreement which are for the benefit of the purchasers or holders of any type of
Registrable Securities are also for the benefit of, and enforceable by, any
subsequent holder of Registrable Securities. Notwithstanding the foregoing, in
order to obtain the benefit of this Agreement, any subsequent holder of
Registrable Securities must execute a counterpart to this Agreement, thereby
agreeing to be bound by the terms hereof.
(f) SEVERABILITY. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
(g) COUNTERPARTS. This Agreement may be executed simultaneously in
two or more counterparts, any one of which need not contain the signatures of
more than one party, but all such counterparts taken together shall constitute
one and the same Agreement.
(h) DESCRIPTIVE HEADINGS. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a part of this
Agreement. The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement. Unless otherwise specified
herein, the term "or" has the inclusive meaning represented by the term "and/or"
and the term "including" is not limiting. All references as to "Sections",
"Subsections", "Articles", "Schedules" and "Exhibits" shall be to Section,
Subsections, Articles, Schedules and Exhibits, respectively, of this Agreement
unless otherwise specifically provided.
(i) GOVERNING LAW. The corporate law of the State of New York shall
govern all issues and questions concerning the relative rights of the Company,
Carrier One and the Management Investors. All other issues and questions
concerning the construction, validity, interpretation and enforcement of this
Agreement and the exhibits and schedules hereto shall be governed by, and
construed in accordance with, the laws of the State of New York, without giving
effect to any choice of law or conflict of law rules or provisions (whether of
the State of New York of any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of New York. In
furtherance of the foregoing, the internal law of the State of New York shall
control the interpretation and construction of this Agreement (and all schedules
and exhibits hereto), even though under the jurisdiction's choice of law or
conflict of law analysis, the substantive law of some other jurisdiction would
ordinarily apply.
20
(j) SUBMISSION TO JURISDICTION.
The courts of England have jurisdiction to hear and decide any suit,
action or proceedings, and to settle any disputes, which may arise out of or in
connection with this Agreement (respectively, "PROCEEDINGS" and "DISPUTES") and
for this purpose each party irrevocably submits to the jurisdiction of the
Courts of England.
Paragraph (b) above does not prevent any party to this Agreement from
taking proceedings relating to Proceedings or Disputes in any other courts with
jurisdiction.
Each party irrevocably waives any objection which it might at any
time have to the courts of England being nominated as the forum to hear and
decide any Proceedings and to settle any disputes and agrees not to claim that
the courts of England are not a convenient or appropriate forum.
(k) NOTICES. Any notices or other communications required to be given
pursuant to this Agreement shall be in writing and shall be deemed given: (i)
upon delivery, if by hand; (ii) three (3) Business Days after mailing, if sent
by registered or certified mail, postage prepaid, return receipt requested;
(iii) one (1) Business Day after mailing, if sent via overnight courier; or (iv)
upon transmission, if sent by telex or facsimile except that if such notice or
other communication is received by telex or facsimile after 5:00 p.m. on a
Business Day at the place of receipt, it shall be effective as of the following
Business Day. All notices and other communications hereunder shall be given as
follows:
(a) If to the Company, to it at:
c/o Carrierl International GmbH
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇-▇▇▇▇ ▇▇▇▇▇▇
Attention:
Facsimile: 01/ 297 26 01
Telephone: 01/ ▇▇▇ ▇▇ ▇▇
with a copy to:
Providence Equity Partners, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
21
and a copy to:
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Facsimile: 401-276-6611
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
(b) If to a Management Investor, to it at his address set forth in
the Securities Purchase Agreement.
Any party may change its address for receiving notice by written
notice given to the other names above in the manner provided above.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
22
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
on the day and year first above written.
CARRIER ONE, LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chairman
CARRIER ONE INTERNATIONAL S.A.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name:
Title:
[Signature page to Amended and Restated Registration Rights Agreement]
23
/s/ Stig Johansson
Stig Johansson
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ Kees Van Ophem
Kees Van Ophem
/s/ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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[Signature page to Amended and Restated Registration Rights Agreement]
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