EXHIBIT 4.3
WARRANT AGREEMENT
Dated as of September 12, 2002
among
COMPLETEL EUROPE N.V.
and
NETHERLANDS MANAGEMENT COMPANY B.V.
as Warrant Registrar,
and
BNP PARIBAS,
as Euroclear Warrant Agent
TABLE OF CONTENTS(1)
Page
SECTION 1. APPOINTMENT OF WARRANT REGISTRAR AND
EUROCLEAR WARRANT AGENT.................................1
SECTION 2. CONDITIONS OF WARRANT AGENTS............................2
SECTION 3. CHANGE OF WARRANT AGENT.................................3
SECTION 4. NOTICES TO THE COMPANY AND WARRANT AGENT................4
SECTION 5. SUPPLEMENTS AND AMENDMENTS..............................5
SECTION 6. SUCCESSORS..............................................5
SECTION 7. TERMINATION.............................................5
SECTION 8. GOVERNING LAW; JURISDICTION.............................5
SECTION 9. BENEFITS OF THIS AGREEMENT..............................5
SECTION 10. COUNTERPARTS............................................5
EXHIBIT A: FORM OF ELECTION TO PURCHASE FOR REGISTERED HOLDERS
OF WARRANTS.............................................1
ANNEX A: TERMS AND CONDITIONS OF WARRANTS......................A-1
--------------
1 This Table of Contents does not constitute a part of this Agreement
or have any bearing upon the interpretation of any of its terms or
provisions.
WARRANT AGREEMENT, dated as of September 12, 2002, among
COMPLETEL EUROPE N.V., a public limited liability company organized under
the laws of The Netherlands (the "Company"), NETHERLANDS MANAGEMENT COMPANY
B.V., a private company with limited liability organized under the laws of
The Netherlands, as Warrant Registrar (the "Warrant Registrar"), and BNP
PARIBAS SECURITIES SERVICES, a French corporation, as Euroclear Warrant
Agent (the "Euroclear Warrant Agent"). The Warrant Registrar and Euroclear
Warrant Agent are collectively referred to herein as "Warrant Agents" and
individually as a "Warrant Agent".
WHEREAS, the Company desires the Warrant Registrar and
Euroclear Warrant Agent to act on behalf of the Company, and each of these
Warrant Agents is willing so to act, in connection with the exercise of
Warrants and other matters as provided herein;
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein set forth, the parties hereto agree as follows:
SECTION 1. Appointment of Warrant Registrar and Euroclear
Warrant Agent. The Company hereby appoints the Warrant Registrar and
Euroclear Warrant Agent to each act as agent for the Company in accordance
with the instructions set forth hereinafter in this Agreement, and each of
the Warrant Registrar and Euroclear Warrant Agent hereby accepts such
appointment. The terms and conditions of the Warrants are set forth in
Annex A (the "Terms").
(a) Duties of the Warrant Registrar. The Warrant
Registrar shall effect:
(i) the initial registration of Warrants as
issued by the Company in the name of registered shareholders and
the transfer of Warrants by registered holders thereof, as
provided in the section of the Terms entitled "Transfer and
Exchange of the Warrants",
(ii) the exercise of Warrants by registered
holders thereof after receipt of a properly completed and executed
form of election to purchase, which form is attached hereto as
Exhibit A, and as provided in the section of the Terms entitled
"Exercise",
(iii) upon notification thereof by the Company,
adjustments to the number of Ordinary shares issuable upon
exercise of a Warrant after the occurrence of certain events
affecting the Ordinary shares, as provided in the section of the
terms entitled "Number of Ordinary shares issuable upon exercise
of the Warrants; Exercise price--Anti-Dilution adjustment
("Anti-Dilution Adjustments")", and
(iv) otherwise act in accordance with the Terms.
(b) Duties of the Euroclear Warrant Agent. The Euroclear
Warrant Agent shall effect:
(i) together with the Warrant Registrar, the
exercise of Warrants by persons holding them through Euroclear
France after receipt of a properly completed and executed form of
election to purchase, which form shall be determined by the
Euroclear Warrant Agent with customary market in France and the
form attached hereto as Exhibit A, and as provided in the section
of the Terms entitled "Exercise", and
(ii) otherwise act in accordance with the Terms.
(c) Duties of the Company. The Company shall:
(i) reserve and keep available for issuance the
number of Ordinary shares underlying the outstanding Warrants, as
provided in the section of the Terms entitled "General,"
(ii) furnish each Warrant Agent written notice
of any Anti-Dilution Adjustments, and
(iii) otherwise act in accordance with the
Terms.
SECTION 2. Conditions of Warrant Agents. Each Warrant
Agent undertakes the duties and obligations imposed by this Agreement under
the following terms and conditions:
(a) Each Warrant Agent may consult at any time with
counsel satisfactory to it (who may be counsel for the Company) and such
Warrant Agent shall incur no liability or responsibility to the Company or
to any holder of any Warrant in respect of any action taken, suffered or
omitted by it hereunder in good faith and in accordance with the opinion or
the advice of such counsel.
(b) Neither Warrant Agent shall incur any liability or
responsibility to the Company or to any holder of any Warrant for any
action taken in reliance on any notice, resolution, waiver, consent, order,
certificate, or other paper, document or instrument believed by it to be
genuine and to have been signed, sent or presented by the proper party or
parties.
(c) The Company agrees to pay to each Warrant Agent
reasonable compensation for all services rendered by such Warrant Agent in
the execution of this Agreement and to indemnify each Warrant Agent and
save it harmless against any and all liabilities, including judgments,
costs and reasonable counsel fees, for anything done or omitted by such
Warrant Agent in the execution, delivery and performance of its
responsibilities under this Agreement except as a result of its negligence
or bad faith.
(d) Neither Warrant Agent shall be under any obligation
to institute any action, suit or legal proceeding or to take any other
action likely to involve expense unless the Company or one or more
registered holders of Warrants shall furnish the Warrant Agent with
reasonable security and indemnity for any costs and expenses which may be
incurred, but this provision shall not affect the power of each Warrant
Agent to take such action as it may consider proper, whether with or
without any such security or indemnity. All rights of action under this
Agreement or under any of the Warrants may be enforced by the Warrant
Registrar without the possession of any of the Warrants, and any action,
suit or proceeding instituted by the Warrant Registrar shall be brought in
its name as Warrant Registrar and any recovery of judgment shall be for the
ratable benefit of the registered holders of the Warrants, as their
respective rights or interests may appear.
(e) Except as required by law, the Warrant Agent, and any
of its stockholders, directors, officers or employees, may buy, sell or
deal in any of the Warrants or other securities of the Company or become
pecuniarily interested in any transaction in which the Company may be
interested, or contract with or lend money to the Company or otherwise act
as fully and freely as though it were not Warrant Agent under this
Agreement. Nothing herein shall preclude the Warrant Agent from acting in
any other capacity for the Company or for any other legal entity.
(f) Each Warrant Agent shall act hereunder solely as
agent for the Company, and its duties shall be determined solely by the
express provisions hereof. Neither Warrant Agent shall be liable for
anything which it may do or refrain from doing in connection with this
Agreement, except for its own negligence or bad faith.
(g) The Warrant Agents shall not at any time be under any
duty or responsibility to any holder of any Warrant to make or cause to be
made any Anti-Dilution Adjustments, or to determine whether any facts exist
which may require any of such adjustments, or with respect to the nature or
extent of any such adjustments, when made, or with respect to the method
employed in making the same. The Warrant Agents shall not be accountable
with respect to the validity or value or the kind of any Ordinary shares or
with respect to whether any such Ordinary shares will, when issued, be
validly issued and fully paid and nonassessable, and make no
representations with respect thereto.
SECTION 3. Change of Warrant Agent. If either the Warrant
Registrar or the Euroclear Warrant Agent shall become incapable of acting
as a Warrant Agent or shall resign as provided below, the Company shall
appoint a successor to such Warrant Agent. If the Company shall fails to
make such appointment within a period of 30 days after it has been notified
in writing of such incapacity by such Warrant Agent or by the registered
holders of a majority of Warrants, then the registered holder of any
Warrant may apply to any court of competent jurisdiction for the
appointment of a successor to such Warrant Agent. Pending appointment of a
successor to such Warrant Agent, either by the Company or by such a court,
the duties of the Warrant Agent shall be carried out by the Company. After
appointment, the successor to such Warrant Agent shall be vested with the
same powers, rights, duties and responsibilities as if it had been
originally named as Warrant Agent without further act or deed; but the
former Warrant Agent shall deliver and transfer to the successor to the
Warrant Agent any property at the time held by it hereunder and execute and
deliver any further assurance, conveyance, act or deed necessary for the
purpose. Failure to give any notice provided for in this section, however,
or any defect therein, shall not affect the legality or validity of the
appointment of a successor to the Warrant Agent.
Each Warrant Agent may resign at any time and be
discharged from the obligations hereby created by so notifying the Company
in writing at least 30 days in advance of the proposed effective date of
its resignation. If no successor Warrant Agent accepts the engagement
hereunder by such time, the Company shall act as Warrant Agent. SECTION 4.
Notices to the Company and Warrant Agent. Subject to notice provisions
expressly specified elsewhere in this Agreement, any notices or other
communications required or permitted hereunder shall be sufficiently given
to a person if in writing and shall become effective when delivered by
hand, by an overnight courier service which requires a delivery receipt
therefor (such as DHL), by registered or certified mail, return receipt
requested, postage prepaid, or by telefacsimile transmission with
confirmation of receipt at such person's address set forth below or such
other address as such person may designate by notice in accordance with the
foregoing provisions:
if to the Company, to:
CompleTel Europe X.X.
Xxxxx 00,
0000 XX Xxxxxxxxx
The Netherlands 2132 NA
Attention: Xxxxxx Xxxxxxx
with a copy to:
CompleTel Europe N.V.
0-00 xxxxx xx x'Xxxxx
00000 XXXXXXXXXX XXXXX
Xxxxxx
Attention: General Counsel
Telecopy: x00.0.00.00.00.00
if to the Warrant Registrar, to:
Netherlands Management Company X.X.
Xxxxxxxxxxxxx 0
0000 XX XXXXXXXXX
Xxx Xxxxxxxxxxx
Attention: Managing Director
Telecopy: x00.00.0000000
if to the Euroclear Warrant Agent, to:
BNP Paribas
Metier Titres - G.I.S. Emetteurs
PDC NP 00
Xxx Xxxxxxxx xx x'Xxxxx
00000 XXXXX LA DEFENSE
France
Telecopy: x00.0.00.00.00.00
SECTION 5. Supplements and Amendments. The Company and
the Warrant Agents may from time to time supplement or amend this Agreement
without the approval of any holders of Warrants in order to cure any
ambiguity or to correct or supplement any provision contained herein which
may be defective or inconsistent with any other provision herein, or to
make any other provisions in regard to matters or questions arising
hereunder which the Company and the Warrant Agents may deem necessary or
desirable and which shall not in any way adversely affect the interests of
the holders of Warrant. Any amendment or supplement to this Agreement that
has a adverse effect on the interests of holders shall require the written
consent of registered holders of a majority of the then outstanding
Warrants (excluding Warrants held by the Company or any of its affiliates).
The consent of each holder of a Warrant affected shall be required for any
amendment pursuant to which the Exercise Price would be increased or the
number of Ordinary shares issuable upon exercise of a Warrant would be
decreased (other than in accordance with the Anti-Dilution Adjustments).
SECTION 6. Successors. All the covenants and provisions
of this Agreement by or for the benefit of the Company or the Warrant
Agents shall bind and inure to the benefit of their respective successors
and assigns hereunder.
SECTION 7. Termination. This Agreement shall terminate at
5:00 p.m., Paris time, on the expiration date of the Warrants.
Notwithstanding the foregoing, this Agreement will terminate on such
earlier date on which all outstanding Warrants have been exercised. The
provisions of Section 2 shall survive such termination.
SECTION 8. Governing Law; Jurisdiction. This Agreement
and each Warrant shall be governed by and construed in accordance with the
laws of The Netherlands without giving effect to the principles of
conflicts of law thereof. The parties hereto irrevocably consent to the
non-exclusive jurisdiction of the courts of The Netherlands in connection
with any action, suit or proceeding arising out of or relating to this
Agreement.
SECTION 9. Benefits of This Agreement. Nothing in this
Agreement shall be construed to give to any person or corporation other
than the Company, the Warrant Agents and the registered holders of the
Warrants any legal or equitable right, remedy or claim under this
Agreement; but this Agreement shall be for the sole and exclusive benefit
of the Company, the Warrant Agents and the registered holders of the
Warrants.
SECTION 10. Counterparts. This Agreement may be executed
in any number of counterparts and each of such counterparts shall for all
purposes be deemed to be an original, and all such counterparts shall
together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed, as of the day and year first above written.
COMPLETEL EUROPE N.V.
By:
----------------------------------
Name:
Title:
NETHERLANDS MANAGEMENT COMPANY B.V.
as Warrant Registrar
By:
----------------------------------
Name:
Title: Managing Director
BNP PARIBAS
as Euroclear Warrant Agent
By:
----------------------------------
Name:
Title:
Exhibit A
FORM OF ELECTION TO PURCHASE FOR REGISTERED HOLDERS OF WARRANTS
This form should be sent to the Warrant Registrar at the following address:
Netherlands Management Company X.X.
Xxxxxxxxxxxxx 0
0000 XX XXXXXXXXX
Xxx Xxxxxxxxxxx
Number of Warrants Being Exercised:
The undersigned hereby irrevocably elects to exercise the following number
of Warrants that are registered in its name:
Whole Number of Ordinary Shares Being Subscribed (Number of Warrants above
x 0.005988, with any fractional number being rounded down to the nearest
whole number):
Aggregate Exercise Price (Number of Ordinary shares above x (euro)10.05):
Method of Payment (check box to indicate chosen method of payment):
The undersigned is paying in euro the Aggregate Exercise Price by one of
the following two methods:
|_| wire transfer to the following account of CompleTel Europe N.V.:
CompleTel Europe N.V.
Euro Account number: 00.00.00.000
Swift code: MEESNL 2A
Bank Name and Address: MeesPierson
Xxxxxxxxxx 00
0000 XX Xxxxxxxxx - Xxx Xxxxxxxxxxx
|_| certified or official bank check payable to the order of "CompleTel
Europe N.V." included with this form.
Name of the Holder of the Warrants being Exercised (Last name and first
name of an individual or name of the company or other entity):
Authentication of Signature (check box to indicate form of verification
attached):
The undersigned is:
|_| a legal entity and has included with this form documentation
evidencing that the person(s) signing the form for election to
purchase is/are an authorized signatory (such as an extract from
the applicable chamber of commerce and identification, or an
official authorized signatory list) as well as a copy of a
passport or other official identification to verify signature(s)
|_| is a private individual and has included with this form a copy of
a passport or other official identification to verify signature
Address of the Holder (including e-mail address, if any):
Issuance of the Ordinary Shares Subscribed:
Upon confirmation from the Company that the Aggregate Exercise Price has
been paid, the Warrant Registrar will register the number of Ordinary
shares issuable upon exercise of the Warrants in the name set forth above
and will send notice thereof to such person's address set forth above.
Date:
Signature: ___________________________________
Name:
Title:
Annex A
DESCRIPTION OF THE WARRANTS
General
We are issuing to existing holders of our Ordinary shares as of
record at 9:00 a.m. (Paris time) on September 13, 2002 Warrants to
subscribe to up to an aggregate of 326,778 of our Ordinary shares, after
giving effect to our 670-to-one reverse share split and the reduction of
the nominal value of our Ordinary shares from (euro)0.10 to (euro)0.04 per
share. Our largest shareholders, Madison Dearborn Partners, Meritage and
XxXxxxxx Telcom, as well as the members of our Supervisory and Management
Boards, have agreed to waive any right to be granted or to exercise any
Warrants.
The Warrants are governed by the law of The Netherlands.
The Warrants will be issued, by means of a book entry, in
registered form under a Warrant agreement among us and Netherlands
Management Company B.V., as warrant agent with respect to registered
Warrants and transfer agent and registrar with respect to our Ordinary
shares, and BNP Paribas Securities Services, as warrant agent with respect
to beneficial interests in Warrants held through Euroclear France
(including its successors, the "Euroclear Warrrant Agent"). Netherlands
Management Company is the transfer agent and registrar for the Warrants
(including its successors, the "Warrant Registrar"). The Warrant agents
will act solely as our agents in connection with the Warrants and will not
assume any obligation or relationship of agency or trust for or with any
holders of Warrants or beneficial owners of Warrants.
We have authorized and reserved for issuance, and until the expiry
of the Warrants will reserve and keep available, the number of Ordinary
shares that will be issuable upon the exercise of all outstanding Warrants.
The Ordinary shares underlying the Warrants, when issued upon exercise of
these Warrants, will be fully paid and nonassessable. No service charge
will be payable by registered holders of Warrants for registration of
transfer or exercise of any Warrant. We may require payment of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exercise of the
Warrants.
Number of Ordinary Shares Issuable upon Exercise of the Warrants; Exercise Price
Initial terms. Each of our ordinary shareholders at 9:00 a.m.
(Paris time) on September 13, 2002 will be granted one Warrant for each
Ordinary share (nominal value (euro)0.10 per share) they hold, except for
our ordinary shareholders that have waived their right to Warrants. With
each Warrant entitling its holder to subscribe to 0.005988 of our Ordinary
shares (nominal value (euro)0.04 per share) after giving effect to our
670-to-one reverse share split that will occur on September 16, 2002, 167
Warrants will be required to subscribe to one Ordinary share at a price of
(euro)10.05 (the "Exercise Price"). Warrants will only be exercisable for
the receipt of a whole number of Ordinary shares and any fractional number
of Ordinary shares will be rounded down to the nearest whole number of
Ordinary shares.
Anti-Dilution adjustment. If, after the date hereof, we:
1) pay a dividend or makes a distribution on our Ordinary
shares in shares of our capital stock,
2) subdivide our outstanding Ordinary shares into a greater
number of shares,
3) combine our outstanding Ordinary shares into a smaller
number of shares,
4) make a distribution on our Ordinary shares in shares of our
capital stock other than Ordinary Shares, or
5) issue by reclassification of our Ordinary shares any shares
of our capital stock,
then the Exercise Price and the number and kind of shares of our capital
stock issuable upon the exercise of a Warrant shall be proportionately
adjusted so that the holder of any Warrant thereafter exercised may receive
the aggregate number and kind of shares of our capital stock which he would
have owned immediately following such action if such Warrant had been
exercised immediately prior to such action. The adjustment shall become
effective immediately after the record date in the case of a dividend or
distribution and immediately after the effective date in the case of a
subdivision, combination or reclassification. The adjustment shall be made
successively whenever any event listed above shall occur.
If after an adjustment a holder of a Warrant upon exercise may
receive shares of two or more classes or series of our capital stock, we
shall determine the allocation of the adjusted Exercise Price between the
classes or series of capital stock based on the relative fair market values
of such class or classes of capital stock. After such allocation, the
exercise privilege and the Exercise Price of each class or series of
capital stock shall thereafter again be subject to adjustment on the terms
applicable to our Ordinary shares in this section.
Upon any anti-dilution adjustment pursuant to this section, we
shall within 15 days thereafter cause to be given to each of the registered
holders of the Warrants, at such registered holder's address appearing on
the Warrant register, written notice of such adjustment by first-class
mail, postage prepaid. We shall also publish such notice in a press
release.
Exercise Period
The Warrants are exercisable, at the option of the holders
thereof, during the period (the "Warrant Exercise Period"):
1) commencing at 9:00 a.m. (Paris time) on December 15, 2002
and
2) ending at 5:00 p.m. (Paris time) on the fifteenth day after
the publication of our audited annual financial statements
for 2002. We will announce the precise expiration date of
the Warrants on the day we publish our financial statements.
At the end of the Warrant Exercise Period, the Warrants expire.
Exercise of the Warrants
If you are not a registered holder of Warrants, but you hold
Warrants through Euroclear France, you may exercise all or any of them by:
1) delivering to the Euroclear Warrant Agent a form of election
to purchase properly completed and executed,
2) causing the Warrants to be transferred to the account of the
Euroclear Warrant Agent at Euroclear France, and
3) paying in full the Exercise Price for each multiple of 167
Warrants. The Exercise Price may be paid in cash in euro by
wire transfer to an account designated by us for that
purpose or by certified or official bank check payable in
euro to the order of "CompleTel Europe N.V."
If you are a registered holder of Warrants, you may exercise all
or any of them by:
1) delivering to the Warrant Registrar the form of election to
purchase properly completed and executed (which form is set
forth in the warrant agreement), accompanied
a) in the case of a registered holder of Warrants that
is a legal entity, by documentation evidencing that
the person(s) signing the form for election to
purchase is (are) an authorized signatory (such as an
extract from the applicable chamber of commerce and
identification, or an official authorized signatory
list), as well as a copy of a passport or other
official identification to verify signature(s) or
b) in the case of a registered holder of Warrants that
is a private individual, by a copy of a passport or
other official identification to verify signature,
and
2) paying in full the Exercise Price for each multiple of 167
Warrants. The Exercise Price may be paid in cash in euro by
wire transfer to an account designated by us for that
purpose or by certified or official bank check payable in
euro to the order of "CompleTel Europe N.V."
Upon surrender of Warrants and payment of the Exercise Price, the
Company shall cause to be delivered with all reasonable dispatch to or upon
the written order of the registered holder of the Warrants and, in such
name(s) as the holder may designate, the number of Ordinary shares
issuable. We or the transfer agent for the Ordinary Shares and every
subsequent transfer agent for any shares of our capital stock issuable upon
the exercise of any of the rights of purchase represented by the Warrants
(the "Transfer Agent") will be irrevocably authorized and directed at all
times to reserve such number of authorized shares as shall be required for
such purpose. We will keep a copy of the warrant agreement on file with the
Transfer Agent for any shares of the Company's capital stock issuable upon
the exercise of the rights of purchase represented by the Warrants. We will
supply such Transfer Agent a copy of all notices of any anti-dilution
adjustments.
Transfer and Exchange of the Warrants
Some of our Ordinary shares are held through the book-entry
facilities of Euroclear France. The Warrants in respect of these shares
will be recorded in our Warrant register in the name of Euroclear France,
and delivered to beneficial owners of these shares through these
facilities. These Warrants will be held by Euroclear France on behalf of
institutions that have accounts with this clearing system. As brokers,
dealers or other types of agents, these participants in Euroclear France
may, in turn, hold interests in these Warrants on behalf of their clients.
If you own interests in the Warrants as, or through, a participant in a
clearing system, you must rely on the procedures of that clearing system
and participant to receive, transfer and exercise the Warrants. We
understand that under existing market practice Euroclear France, as
registered Warrant holder, would act upon the transfer and exercise
instructions of its participants and its participants would act upon the
transfer and exercise instructions of their clients who are beneficial
owners of the Warrants.
Some of our Ordinary shares are recorded in our Ordinary share
register in the name of persons who thereby directly hold our Ordinary
shares in definitive form. The Warrants in respect of these shares will be
registered in the name of these registered shareholders.
The Warrant Registrar shall from time to time register the
transfer of any outstanding Warrant upon the records to be maintained by it
for that purpose, upon surrender thereof accompanied by a written
instrument or instruments of transfer in form satisfactory to the Warrant
Registrar, duly executed by the registered holder(s) thereof or by the duly
appointed legal representative thereof or by a duly authorized attorney.
We anticipate that the Warrants will be listed on the Premier
Marche of Euronext Paris. The Warrants will trade separately from our
Ordinary shares. There may not be an active trading market for the
Warrants.
SEC Registration Statement
For a holder in the United States to exercise the Warrants, there
must be a current registration statement in effect with the SEC and
qualification in effect under applicable state securities laws, or
applicable exemptions from the federal and state securities laws of the
U.S., with respect to the issuance of the Ordinary shares underlying the
Warrants. We are filing such a registration statement and are seeking to
cause it to become and remain effective. We will not be required to honor
the exercise of Warrants if, in our opinion, the sale of Ordinary shares
upon exercise of the Warrants would be unlawful.
No Rights as Shareholders
The holders of Warrants are not entitled, as such, to receive
dividends or other distributions, receive notice of any meeting of our
shareholders, consent to any action of our shareholders, receive notice of
any other shareholder proceedings or to any other rights as shareholders.
The holders of Warrants will not be entitled to share in our assets in the
event of our liquidation, dissolution or winding up. In the event a
bankruptcy or reorganization is commenced by or against us, a bankruptcy
court may hold that unexercised Warrants are executory contracts which may
be subject to our rejection with approval of the bankruptcy court and the
holder of Warrants may, even if sufficient funds are available, receive
nothing or a lesser amount as a result of any such bankruptcy case than
they would be entitled to if they had exercised their Warrants prior to the
commencement of any such case.
Warrant Backstop Right of Holders of Preferred Shares
For a period of 30 days following the end of the Warrant Exercise Period,
holders of our Convertible Preferred A and B shares shall be entitled to
subscribe, at the Exercise Price, to Ordinary shares in respect of Warrants
that were not exercised. This prospectus covers the Ordinary shares
issuable upon exercise of these subscription rights, as well as exercise of
the Warrants, except that we have received a commitment from Deutsche Bank
AG London, an institutional investor that will hold our Preferred shares,
to take up approximately 51% of these subscription rights, if they are
issued. This 51% represents the potential subscription rights in respect of
Preferred shares to be held by Deutsche Bank AG London, as well as
potential subscription rights assigned to Deutsche Bank AG London by two of
our major shareholders, Meritage and XxXxxxxx Telcom. Any ordinary shares
purchased by Deutsche Bank AG London pursuant to its commitment will be
issued on a private placement basis.
