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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K/A
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): November 23, 1999
CARRIER1 INTERNATIONAL, S.A.
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(Exact name of registrant as specified in its charter)
Luxembourg 333-78713 98-0199626
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(State or other jurisdiction (Commission File Number) (IRS Employer
of incorporation) Identification No.)
L-8009, Strassen, Route d'Arlon 3, Luxembourg
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: 011 41-1 297 2600
N/A
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(Former name or former address, if changed since last report)
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ITEM 5. OTHER EVENTS.
On January 4, 2000, Carrier I International, S.A. (the "Company")
filed a Current Report on Form 8-K. This Amended Current Report on
Form 8-K/A has been filed in order to amend certain of the exhibits
to the Current Report filed on January 4.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION
AND EXHIBITS.
(c) EXHIBITS.
10.1 Amended and Restated Shareholders Agreement, dated
as of January 13, 2000, by and among Carlyle Hubco
International Partners, L.P., iaxis B.V., Carrier1
International S.A., Providence Equity Hubco
(Cayman) L.P. and Hubco S.A.*++
10.2 Registration Rights Agreement, dated as of November
23, 1999, among the Carlyle entities named therein,
iaxis B.V., Carrier1 International S.A., Providence
Equity Partners III, L.P., Providence Equity
Operating Partners III, L.P., and Hubco S.A.
10.3 Strategic Anchor Tenant Agreement, dated as of
November 23, 1999, between Carrier1 International
S.A. and Hubco S.A.*++
10.4 Amendment No. 1 to Registration Rights Agreement,
dated as of January 13, 2000, by and among Hubco
S.A. and the Persons listed on the signature pages
thereto.
* Portions subject to a confidential treatment request
++ Incorporated by reference to the Company's Current Report on Form 8-K,
filed with the Commission on January 4, 2000, as amended by Form 8-K/A filed
with the Commission on February 9, 2000.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
CARRIER1 INTERNATIONAL S.A.
(Registrant)
By: /s/ Terje Nordahl
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Name: Terje Nordahl
Title: Chief Operating Officer
Date: February 17, 2000
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EXHIBIT 10.2
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
By and Among
The Carlyle entities named herein,
iaxis B.V.,
Carrier1 International S.A.,
Providence Equity Partners III L.P.,
Providence Equity Operating Partners III L.P.
and
Hubco S.A.
November 23, 1999
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TABLE OF CONTENTS
PAGE
1. Demand Registrations...............................................1
2. Piggyback Registrations............................................3
3. Holdback Agreements................................................4
4. Other Public Offers; Registration And Public Offer Procedures......5
5. Registration Expenses.............................................10
6. Indemnification...................................................11
7. Participation In Underwritten Registrations.......................14
8. Rule 144 Reporting................................................15
9. Definitions.......................................................15
10. Miscellaneous.....................................................17
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement is made as of November 23,
1999, by and among (i) the entities whose names appear under the heading
"Carlyle" on the signature pages hereof (collectively referred to as "Carlyle"),
(ii) iaxis B.V., a corporation organized under the laws of the Netherlands
("iaxis"), (iii) Carrier1 International S.A., a Luxembourg Societe Anonyme
("Carrier1"), (iv) Providence Equity Partners III L.P., a limited partnership
organized under the laws of Delaware, Providence Equity Operating Partners III
L.P., a limited partnership organized under the laws of Delaware ("collectively
referred to as "Providence"), and (v) Hubco S.A., a Luxembourg Societe Anonyme
(the "Company").
WITNESSETH:
WHEREAS, the Investors hold securities issued by the Company,
subject to the provisions of the Shareholders Agreement, dated as of the date
hereof, among the Company and the Investors;
WHEREAS, the Company and the 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 and the 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) IPO: DEMAND REGISTRATIONS. (i) Prior to November 23, 2001, the
Company shall not register for sale to the public any of its Equity Securities
without the prior consent of Investors holding at least 55% of the Equity
Securities of the Company on a fully-diluted basis. (ii) At any time after
November 23, 2001, Investors holding at least 10% of the Equity Securities of
the Company on a fully-diluted basis ("Initiating Holders") may request that the
Company make an IPO. In the event that the Initiating Investors make such
request, then the Company agrees that it will undertake and effect such IPO as
soon as is reasonably practicable. (iii) At any time after the closing of an
IPO, any Investor may request registration under the Securities Act of 1933, as
amended (the "Securities Act"), of (A) all or any portion of such Investor'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 such Investor'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, in each case, as provided in Section 1(b) or 1(c)
hereof. (iv) 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
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Securities requested to be registered for such offering. Within ten (10) days
after receipt of the request for a Demand Registration, the Company will send
written notice (the "Notice") of such request and its intention to comply
therewith to all Investors and, subject to Section 1(d) the Company will include
in such Demand Registration all Registrable Securities of such Investors as to
which the Company received written requests within twenty (20) days of the date
of the Notice.
(b) LONG-FORM REGISTRATIONS. Initiating Holders shall be entitled to
request two (2) 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 $25 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 Investors are able to register and sell at
least 90% of the Registrable Securities requested to be included in such
registration by such Investors, provided that in any event the Company shall pay
all Registration Expenses in connection with any registration initiated as a
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), Initiating Holders 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 $10 million or if Investors have 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 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 such
Investors and included in such Required Registration have been sold pursuant to
the Required Registration (the "Effective Period"). Upon the request of a
majority of the Initiating Holders, the Company shall include in the prospectus
with respect to a Short-Form Registration such additional information as
reasonably requested by a majority of the Initiating Holders or the underwriter
for any such offering.
(d) PRIORITY ON DEMAND REGISTRATIONS. If the managing underwriters
advise the Company and each of the Investors in writing that in their opinion
the number of Registrable Securities to be included in an underwritten offering
exceeds the number of Registrable
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Securities which can be sold in an orderly manner in such offering within a
price range acceptable to the Company 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 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 the
Investors, pro rata among the Investors requesting to participate in such Demand
Registration on the basis of the number of Registrable Securities each Investor
has requested to be included in the Demand Registration; and second the Equity
Securities proposed to be sold by the Company for its own account or any other
holder of Equity Securities. If as a result of a Demand Registration Cutback the
Investor initially requesting the Demand Registration is not allowed to include
at least 90% of its Registrable Securities requested to be registered, then such
registration shall not count as one of such Investor's Demand Registrations.
(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 of Directors determines, in its reasonable business
judgment, that such registration and offering would be reasonably expected to
have a material 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 each of the
Investors 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,
any Investor shall have the right to withdraw its request for such registration
by giving notice to the Company. In the event that any Investor withdraws its
request in the foregoing manner, such request shall not be counted for purposes
of determining the number of registrations to which such Investor is entitled
pursuant to Section 1.
(f) SELECTION OF UNDERWRITERS. The Company will have the right to
select the investment banker(s) and manager(s) to administer any offering
including Registrable Securities held by the Investors (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
approval of the Investors holding a majority of the Registrable Securities
included in such offering, 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
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pursuant to a registration on Form S-4 or S-8 or any successor or similar forms)
and the registration form to be used may be used for the registration of
Registrable Securities held by any Investor (a "Piggyback Registration"), the
Company shall give prompt written notice to the 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 the 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.
(b) PIGGYBACK EXPENSES. The Registration Expenses of the Investors
shall be paid by the Company in all Piggyback Registrations.
(c) PRIORITY ON PRIMARY REGISTRATIONS. If the managing underwriters
advise the Company and each Investor requesting registration in writing that in
their opinion the number of Equity Securities that holders of Equity Securities
propose to sell therein, (the "Other Equity Securities"), 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 the Investors pro rata among the Investors requesting to
participate in the Piggyback Registration on the basis of the number of
Registrable Securities each Investor has requested to be included in the
Piggyback Registration, and third the Equity Securities requested to be included
in such registration by any other holder of Equity Securities.
(d) 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 the
Investors holding a majority of the Registrable Securities included in the
offering.
(e) 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.
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, each Investor shall
agree not to effect any sale or transfer (including sales pursuant to Rule 144
or Regulation S) of Equity Securities during a period of not more than 180 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 (except, in each case, pursuant to such offering); provided,
however, that all Persons entitled to
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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 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 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.
(a) Prior to, concurrently with or following a US Public Offer,
Initiating Holders may determine to proceed with a Public Offer, 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 Initiating
Holders so request, the Company and the Investors shall co-operate with each
other and take such measures as may be necessary in the reasonable judgment of
Initiating Holders (including, in the case of the 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 and the
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 Initiating Holders, the parties shall negotiate in good
faith such amendments to this Agreement as Initiating Holders may reasonably
request to better define such rights and obligations in such connection.
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(b) Whenever Initiating Holders 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, and in the case of a
US Public Offer, the Company shall:
(i) 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 as
would permit or facilitate the sale and distribution of all
or such portion of such Registrable Securities as are
specified by the Initiating Holders, together with all or
such portion of the Registrable Securities of any
Investor(s) joining the request of the Initiating Holders as
are specified in a written request received by the Company
within twenty (20) days after the written Notice from the
Company set forth in Section 1(a) is mailed or delivered;
(B) 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 the 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);
(C) notify in writing each 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
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
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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;
(D) furnish to each 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 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 as would permit or facilitate the
sale and distribution of all or such portion of such
Registrable Securities as are specified by the Initiating
Holders, together with all or such portion of the
Registrable Securities of any Investor(s) joining the
request of the Initiating Holders as are specified in a
written request received by the Company within twenty (20)
days after written notice from the company set forth above
is mailed or delivered under such other securities or blue
sky laws of such jurisdictions as such Investor reasonably
requests and do any and all other acts and things which may
be reasonably necessary or advisable to enable any Investor
to consummate the disposition in such jurisdictions of the
Registrable Securities owned by such 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 each 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, offering circular or memorandum or such other
document contains an untrue statement of a material fact or
omits to state a material 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 any Investor, the Company shall promptly furnish
to such 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
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of such Registrable Securities, such prospectus or other
document shall not contain an untrue statement of a material
fact or omit to state a material fact necessary to make the
statements therein not misleading in the light of the
circumstances under which they were made;
(C) (i) cause all such Registrable Securities to be listed
on each securities exchange on which similar securities
issued by the Company are then listed; if such listing is
then permitted under the rules of such exchange, or (ii) if
such listing is not practicable, secure designation of such
securities as a NASDAQ "national market system security"
within the meaning of Rule 11Aa2-1 under the Exchange Act
or, failing that, to secure NASDAQ authorization for such
Registrable Securities, and, without limiting the foregoing,
to arrange for at least two market makers to register as
such with respect to such Registrable Securities with the
NASD;
(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, including without limitation, participating in road
shows, analyst teleconferences and other marketing efforts
as any 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 any 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 such
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 such 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;
and to undertake all such other customary selling efforts as
any participating underwriter reasonably requests in order
to expedite or facilitate such disposition
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(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 Shareholders, 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 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;
(I) make every reasonable effort to prevent 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, and, in the event of any such order,
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 the 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
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such matters of the type customarily covered by comfort
letters as any Investor reasonably requests;
(L) obtain an opinion of counsel for the Company experienced
in securities law matters, dated the effective date of the
registration statement (and, if such registration includes
an underwritten public offering, the date of closing under
the underwriting agreement) satisfactory in form and
substance to each Investor and, in the case of an
underwritten public offering, the managing underwriter; and
(M) 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.
(N) cooperate and assist in any filings to be made with the
National Association of Securities Dealers, Inc. (the
"NASD").
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, registrars' and transfer agents' fees, and
expenses of compliance with securities or blue sky laws (including, without
limitation, legal expenses of underwriters' counsel in connection therewith),
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, or the 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 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 the reasonable fees and disbursements of
one special counsel for all of the Investors participating in such registration
which counsel shall be selected by the Investors holding a majority of the
Registrable Securities included in the offering.
(c) In connection with each Demand Registration and each Piggyback
Registration (or comparable proceeding with respect to a Public Offer outside
the U.S.), the Investors participating in such registration shall bear and pay
all underwriting discounts and
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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, each Investor and its affiliates, its and their
respective officers, directors, agents and employees and each Person who
controls any Investor or any of its affiliates (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 (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 each Investor, each such director, officer and controlling Person 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 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 such Investor
expressly for use therein or by the Investor's failure 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 such 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 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 any Investor is participating,
such Investor 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 other Investors holding
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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 Investors, expressly for use
therein (The Company and the Investors hereby acknowledge and agree that, unless
otherwise expressly agreed to in writing by such Investors, the only information
furnished or to be furnished to the Company for use in any registration
statement or prospectus relating to the Registrable Securities or in any
amendment, supplement or preliminary materials associated therewith are
restatements specifically relating to (a) transactions between such Investor and
its Affiliates, on the one hand, and the Company, on the other hand, (b) the
beneficial ownership of shares of Common Stock by such Investor and its
affiliates and (c) the name and address if such Investor. If any additional
information about such Investor or the plan of distribution (other than for an
underwritten offering) is required by law to be disclosed in any such document,
then such Investor shall not unreasonably withhold its agreement referred to in
the immediately preceding sentence of this Section 6(b).) Such Investors 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 proceeding; provided, however, that
the obligation to indemnify will be individual to such Investor, and will be
limited to the net amount of proceeds received by each 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
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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 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 and the 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 and the Investors 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 and each 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 and each 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
or an Investor participating in the
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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 and the 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 or claim.
Notwithstanding the provisions of this Section 6, no 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 such 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 any Investor to its partners, stockholders, or members, the
amount of such Investor's contribution hereunder shall be limited to the net
proceeds which it actually recovers from its partners, stockholders, or members
based upon their relative fault and that to the extent that such Investor has
not distributed such net proceeds, the amount of such Investor's contribution
hereunder shall be limited by the percentage of such net proceeds which
corresponds to the percentage equity interests in such Investor held by those of
its partners, stockholders, or 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 no
Investor shall be required in their respective capacities as stockholders and/or
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<PAGE>
controlling persons to make any representations or warranties to the Company or
the underwriters (other than representations and warranties regarding such
Investor and such 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.
(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(b), 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(b). In the event the Company shall give any such notice, the
applicable time period mentioned in Section 4(b)(i)(C) 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 any Investor
participating in the offering 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(b).
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 any Investor owns any
Registrable Securities, furnish to such 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 such 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.
"AGREEMENT" shall mean this Registration Rights Agreement, as further
amended, supplemented or otherwise modified from time to time in accordance with
the terms hereof.
"BOARD" means the Board of Directors of the Company.
"COMMISSION" has the meaning set forth in Section 1(c).
"COMMON SHARES" means the common shares, par value $2.00 per share, of
the Company.
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"COMPANY" means Hubco S.A., a Luxembourg Societe Anonyme, or any
company or other entity into which Hubco S.A. is converted or merged into or
which becomes the direct or indirect owner of all the Equity Securities of Hubco
S.A.
"COMPANY EQUITY SECURITIES" has the meaning set forth in Section 2(c).
"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 Common Shares, (ii) any warrants,
options or other rights to subscribe for or to acquire, directly or indirectly
(whether pursuant to any division or split of Common 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 Common Shares
or other equity interests in the Company, (iii) any Common 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 Common Share split or Common 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 Common Shares or other equity interests of the
Company, 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.
"INITIATING HOLDERS" shall mean any Investor or Investors who in the
aggregate hold not less than twenty-five percent (25%) of the outstanding
Registrable Securities.
"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).
"NOTICE" has the meaning set forth in Section 1(a).
"OTHER EQUITY SECURITIES" has the meaning set forth in Section 2(c).
"PERSON" shall mean any individual, partnership, joint venture,
corporation, limited liability company, limited duration company, limited life
company, association, trust or other enterprise or a government, including any
agency thereof.
"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 in Europe or any underwritten private offering or
series of private offerings in
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one or more jurisdictions of Equity Securities in Europe which is accompanied by
a listing of the Equity Securities on the London Stock Exchange or the Frankfurt
Stock Exchange.
"QIU" has the meaning set forth in Section 1(f).
"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.
"REGISTRATION EXPENSES" has the meaning set forth in Section 5.
"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).
"SHAREHOLDERS AGREEMENT" means that certain Shareholders Agreement
dated as of the date hereof among the Company and the Investors, as amended,
modified or supplemented from time to time.
"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.
10. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENT. The Company shall not grant
registration rights to any other Person without the consent of Investor holding
at least 55% of the Registrable Securities outstanding at such time. 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 the
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 any of the Investors to include
their Registrable Securities in a registration or other Public Offer undertaken
pursuant to this 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
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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 or any
Investor unless such modification or amendment is approved in writing by the
Company and Investors holding 90% of the Registrable Securities then
outstanding. 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 each Investor. 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 respective successors and assigns of the parties hereto. 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 Luxembourg shall govern all
issues and questions concerning the relative rights of the Company and the
Investors. All other issues and questions concerning the construction, validity,
interpretation and enforcement of this
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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.
(j) SUBMISSION TO JURISDICTION. Each of the parties hereby (A) submits
to the jurisdiction of any state or federal court sitting in the State and
County of New York, Borough of Manhattan, in any action arising out of or
relating to this Agreement, and (B) agrees that it will not initiate any action
arising out of or relating to this Agreement in any court other than any state
or federal court sitting in the State and County of New York, Borough of
Manhattan.
(k) ARBITRATION. The Investors agree that any dispute arising out of
or in connection with this Agreement or the transactions contemplated hereby
shall be submitted to arbitration. The Investors shall negotiate in good faith
and use all reasonable efforts to agree upon a resolution of any dispute after
receipt of written notice of such dispute from a Shareholder. If the Investors
cannot agree on an amicable settlement within sixty (60) days from written
submission of the matter by one Investor to another, the matter shall be
submitted to arbitration. The Investor invoking the arbitration shall select one
arbitrator, the other Investor shall appoint one arbitrator, and the two
arbitrators so appointed shall select a third arbitrator. In the event such
arbitrators cannot agree upon a third arbitrator, a third arbitrator shall be
selected in accordance with the rules as then in effect of the American
Arbitration Association. The decision of two of the three arbitrators so
appointed as to the validity of any claim shall be conclusive and binding upon
the parties to this Agreement. Any such arbitration shall be held in New York,
New York under the international rules as then in effect of the American
Arbitration Association; provided that the arbitrators shall not have the powers
of AMIABLE COMPFITEUR or EX AEQUO ET BONO. The parties hereto intend that this
Agreement and any interpretation, construction or enforcement hereof by the
arbitrators will be governed by the specific terms of this Agreement. The
official language of any such arbitration will be English. Each party to any
such arbitration shall pay its own expenses; provided that the fees costs and
expenses of the third arbitrator shall be borne equally by the Investor invoking
arbitration, on the one hand, and the other Investors, on the other hand.
(l) 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:
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(A) If to the Company, to it at:
Hubco S.A.
3 Bd Prince Henri
L-1724 Luxembourg
Luxembourg
Attn: Geir Ramleth
(B) If to Carlyle, to it at:
The Carlyle Group
520 Madison Avenue
New York, NY 10022
USA
Attn: Brooke Coburn
Tel: (212) 381-4900
Fax: (212) 381-4901
(C) If to iaxis, to it at:
iaxis B.V.
iaxis limited
7th Floor
200 Grays Inn Road
London, WC1X 8NP
United Kingdom
Attn: Abteen Sai
Tel: (44) 0207-422-3000
Fax: (44) 0207-422-3001
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(D) If to Carrier1, to it at:
Carrier1 International S.A.
Militarstrasse 36
CH-8004 Zurich
Switzerland
Attn: Terje Nordahl
Tel: (411) 297-2600
Fax: (411) 297-2600
(E) If to Providence, to it at:
Providence Equity Partners III L.P.
Kennedy Center Plaza
900 Fleet Center
Providence, RI 02903
USA
Attn: Alexander Evans
Tel: (401) 751-1700
Fax: (401) 751-1790
Any party may change its address for receiving notice by written
notice given to the other names above in the manner provided above.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
HUBCO S.A.
By: /s/ Thor Geir Ramleth
-------------------------------
Name: Thor Geir Ramleth
Title: CEO
PROVIDENCE EQUITY PARTNERS III L.P.
By: Providence Equity Partners
III L.L.C., its general partner
By: /s/Glenn M. Creamer
--------------------------
Name: Glenn M. Creamer
Title: Managing Director
PROVIDENCE EQUITY OPERATING PARTNERS
III L.P.
By: Providence Equity Partners
III L.L.C, its general partner
By: /s/Glenn M. Creamer
---------------------------
Name: Glenn M. Creamer
Title: Managing Director
S-1
<PAGE>
CARRIER1 INTERNATIONAL S.A.
By: /s/ Stig Johansson
-------------------------------
Name: Stig Johansson
Title: Chairman of the Board
By: /s/ Thomas J. Wynne
-------------------------------
Name: Thomas J. Wynne
Title: Director
iaxis B.V.
By: /s/ Abteen Sai
-------------------------------
Name: Abteen Sai
Title: Director
S-2
<PAGE>
"CARLYLE"
CARLYLE EUROPE PARTNERS, L.P.
By: CEP General Partner, L.P.,
its General Partner
By: CEP Investment Administration Limited,
its Managing Member
By: /s/ [illegible]
--------------------------------------
Name:
Title:
C/M EUROPE PARTNERS, L.P.
By: CEP General Partner, L.P.,
its General Partner
By: CEP Investment Administration Limited,
its Managing Member
By: /s/ [illegible]
--------------------------------------
Name:
Title:
C/D EUROPE PARTNERS, L.P.
By: CEP General Partner, L.P.,
its General Partner
By: CEP Investment Administration Limited,
its Managing Member
By: /s/ [illegible]
--------------------------------------
Name:
Title:
S-3
<PAGE>
CARLYLE EUROPE CO-INVESTMENT, L.P.
By: CEP General Partner, L.P.,
its General Partner
By: CEP Investment Administration Limited,
its Managing Member
By: /s/ [illegible]
--------------------------------------
Name:
Title:
CARLYLE REALTY PARTNERS II, L.P.
By: Carlyle Realty, L.P.,
its General Partner
By: DBD Investors III, L.L.C.,
its Managing Member
By: /s/ [illegible]
--------------------------------------
Name:
Title:
CARLYLE REALTY QUALIFIED PARTNERS II, L.P.
By: Carlyle Realty, L.P.,
its General Partner
By: DBD Investors III, L.L.C.,
its Managing Member
By: /s/ [illegible]
--------------------------------------
Name:
Title:
S-4
<PAGE>
CARLYLE REALTY QUALIFIED PARTNERS II (A), L.P.
By: Carlyle Realty, L.P.,
its General Partner
By: DBD Investors III, L.L.C.,
its Managing Member
By: /s/ [illegible]
--------------------------------------
Name:
Title:
CARLYLE REALTY FOREIGN INVESTORS II, L.P.
By: Carlyle Realty, L.P.,
its General Partner
By: DBD Investors III, L.L.C.,
its Managing Member
By: /s/ [illegible]
--------------------------------------
Name:
Title:
CARLYLE PARTNERS II, L.P.
By: TC Group, L.L.C.,
its General Partner
By: TCG Holdings, L.L.C.,
its Managing Member
By: /s/ [illegible]
--------------------------------------
Name:
Title:
S-5
<PAGE>
CARLYLE SBC PARTNERS II, L.P.
By: TC Group, L.L.C.,
its General Partner
By: TCG Holdings, L.L.C.,
its Managing Member
By: /s/ [illegible]
--------------------------------------
Name:
Title:
CARLYLE INTERNATIONAL PARTNERS II, L.P.
By: TC Group, L.L.C.,
its General Partner
By: TCG Holdings, L.L.C.,
its Managing Member
By: /s/ [illegible]
--------------------------------------
Name:
Title:
CARLYLE INTERNATIONAL PARTNERS III, L.P.
By: TC Group, L.L.C.,
its General Partner
By: TCG Holdings, L.L.C.,
its Managing Member
By: /s/ [illegible]
--------------------------------------
Name:
Title:
S-6
<PAGE>
C/S INTERNATIONAL PARTNERS
By: TC Group, L.L.C.,
its General Partner
By: TCG Holdings, L.L.C.,
its Managing Member
By: /s/ [illegible]
--------------------------------------
Name:
Title:
CARLYLE INVESTMENT GROUP, L.P.
By: TC Group, L.L.C.,
its General Partner
By: TCG Holdings, L.L.C.,
its Managing Member
By: /s/ [illegible]
--------------------------------------
Name:
Title:
CARLYLE HUBCO PARTNERS, L.P.
By: TC Group, L.L.C.,
its General Partner
By: TCG Holdings, L.L.C.,
its Managing Member
By: /s/ [illegible]
--------------------------------------
Name:
Title:
S-7
<PAGE>
CARLYLE HUBCO INTERNATIONAL PARTNERS, L.P.
By: TC Group, L.L.C.,
its General Partner
By: TCG Holdings, L.L.C.,
its Managing Member
By: /s/ [illegible]
--------------------------------------
Name:
Title:
STATE BOARD OF ADMINISTRATION OF FLORIDA,
SEPARATE ACCOUNT MAINTAINED PURSUANT TO AN
INVESTMENT MANAGEMENT AGREEMENT DATED AS OF
SEPTEMBER 6, 1996 BETWEEN THE STATE BOARD OF
ADMINISTRATION OF FLORIDA, CARLYLE INVESTMENT
GROUP, L.P. AND CARLYLE INVESTMENT MANAGEMENT,
L.L.C.
By: Carlyle Investment Management, L.L.C.,
as investment manager
By: /s/ [illegible]
--------------------------------------
Name:
Title:
S-8
<PAGE>
Exhibit 10.4
AMENDMENT NUMBER ONE
TO
REGISTRATION RIGHTS AGREEMENT
This Amendment Number One, dated as of January 13, 2000, is entered
into by and among Hubco S.A., a Luxembourg societe anonyme (the "COMPANY"), and
the Persons listed on the signature pages hereto. Capitalized terms used and not
otherwise defined herein shall have the meanings ascribed thereto in the
"Registration Rights Agreement" (as defined below), as amended hereby.
W I T N E S S E T H :
WHEREAS, the Company, the Carlyle entities named therein, iaxis,
Carrier1, Providence Equity Partners III L.P. ("PEP III") and Providence Equity
Operating Partners III L.P. ("PEOP III") are parties to that certain
Registration Rights Agreement, dated as of November 23, 1999 (the "REGISTRATION
RIGHTS AGREEMENT");
WHEREAS, PEP III and PEOP III have ceased to be parties to the
Shareholders Agreement and have transferred all of their rights and obligations
thereunder to Providence Equity Hubco (Cayman) L.P.;
WHEREAS, the Carlyle entities except for Carlyle Hubco International
Partners, L.P. ("CARLYLE CAYMAN") have ceased to be parties to the Shareholders
Agreement and have transferred all of their rights and obligations thereunder to
Carlyle Cayman;
WHEREAS, the Company and the parties have agreed to amend the
Registration Rights Agreement as provided herein;
NOW, THEREFORE, in consideration of the terms and conditions set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, the parties
to this Amendment, intending to be legally bound, hereby agree as follows:
1. ADDITION OF PROVIDENCE EQUITY HUBCO (CAYMAN) L.P.; DELETION OF PEP
III AND PEOP III AND CERTAIN CARLYLE ENTITIES. (a) Providence Equity Hubco
(Cayman) L.P. is hereby added as an Investor (as defined below) and agrees to be
bound by all of the terms and conditions of the Registration Rights Agreement
and this Amendment, and the Company and the other Investors hereby consent to
the addition of such party as an Investor.
(b) PEP III and PEOP III and each Carlyle entity other than Carlyle
Cayman are hereby deleted as parties to the Registration Rights Agreement and
shall have no
<PAGE>
further rights or obligations under the Registration Rights Agreement and
accordingly the Company shall have no further liabilities or obligations to PEP
III or PEOP III or any of the Carlyle entities other than Carlyle Cayman and
none of PEP III, PEOP III or any of the Carlyle entities other than Carlyle
Cayman shall have any further liabilities to the Company in respect thereof.
(c) "Providence" as used in the Registration Rights Agreement and
this Amendment shall refer to Providence Equity Hubco (Cayman) L.P.
(d) "Carlyle" as used in the Registration Rights Agreement and this
Amendment shall refer to Carlyle Hubco International Partners, L.P.
2. AMENDMENT TO SECTION 1(a). Section 1(a) is hereby amended to
delete the references to "Investors" in the last sentence thereof and to replace
such references with "holders of Registrable Securities."
3. AMENDMENT TO SECTION 1(d). Section 1(d) is hereby amended to
delete all references to "Investors" and to replace such references with
"holders of Registrable Securities."
4. AMENDMENT TO SECTION 2(a). Section 2(a) is hereby amended (i) to
delete the phrase "including any proposed registration of the Company's Equity
Securities by any third party" and to replace such phrase with "other than any
proposed registration requested pursuant to Section 1 hereof," (ii) to delete
all references to "Investor" and replace such references with "holder of
Registrable Securities" and (iii) to delete all references to "Investors" and
replace such references with "holders of Registrable Securities."
5. AMENDMENT TO SECTIONS 2(b) AND 2(c). Sections 2(b) and 2(c) are
hereby amended (i) to delete all references to "Investor" and to replace such
references with "holder of Registrable Securities" and (ii) to delete all
references to "Investors" and to replace such references with "holders of
Registrable Securities."
6. AMENDMENT TO SECTION 3(a). Section 3(a) is hereby amended to
delete the reference to "Investor" in the second line thereof and to replace
such reference with "holder of Registrable Securities."
7. AMENDMENT TO SECTION 4. Section 4 is hereby amended (i) to delete
all references to "Investor" and to replace such references with "holder of
Registrable Securities" and (ii) to delete all references to "Investors" and to
replace such references with "holders of Registrable Securities."
8. AMENDMENT TO SECTION 5. Section 5 is hereby amended to delete all
references to " "Investors" and to replace such references with "holders of
Registrable Securities."
9. AMENDMENT TO SECTION 6. Section 6 is hereby amended (i) to delete
all references to "Investor" and to replace such references with "holder of
Registrable
2
<PAGE>
Securities," (ii) to delete all references to "Investors" and to replace such
references with "holders of Registrable Securities" and (iii) to delete all
references to "Investor's" and to replace such references with "holder's."
10. AMENDMENT TO SECTION 9. Section 9 is hereby amended by adding the
following defined terms:
"Investor" means each of Carlyle, iaxis, Carrier1 and Providence
and any transferee thereof who is an Affiliate (as defined in the
Shareholders Agreement) of the transferor and who has become party to
this Agreement."
"Shares" means the Common Shares beneficially owned by the
Investors or any transferees of the Investors who become parties to this
Agreement.
11. AMENDMENT TO SECTION 10(e). Section 10(e) is hereby amended to
add after the phrase "successors and assigns of the parties hereto" in the first
sentence thereof the phrase "PROVIDED that such transferee acquires Registrable
Securities in accordance with the terms of the Shareholders Agreement."
12. FULL FORCE AND EFFECT. Except as provided in this Amendment
Number One, the Registration Rights Agreement shall continue in full force and
effect in accordance with the provisions thereof.
13. GOVERNING LAW. The corporate law of Luxembourg shall govern all
issues and questions concerning the relative rights of the Company and the
Investors. All other issues and questions concerning the construction, validity,
interpretation and enforcement of this Amendment 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 or 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 Amendment, even though under
the jurisdiction's choice of law or conflict of law analysis, the substantive
law of some other jurisdiction would ordinarily apply.
14. COUNTERPARTS. This Amendment Number One may be executed in two or
more counterparts, each counterpart being deemed to constitute one and the same
instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
3
<PAGE>
IN WITNESS WHEREOF, the undersigned have entered into this
Amendment Number One to the Registration Rights Amendment as of the day and
year first written above.
HUBCO S.A.
By: /s/ Thor Geir Ramleth
-------------------------------
Name: Thor Geir Ramleth
Title:
PROVIDENCE EQUITY HUBCO (CAYMAN) L.P.
By: Providence Equity Hubco (Cayman) G.P.
Co., its general partner
By: /s/ Glenn M. Creamer
--------------------------
Name: Glenn M. Creamer
Title: Director
S-1
<PAGE>
CARRIER1 INTERNATIONAL S.A.
By: /s/ Terje Nordahl
-------------------------------
Name: Terje Nordahl
Title: V.P. and C.O.O.
iaxis B.V.
By: /s/ Abteen Sai
-------------------------------
Name: Abteen Sai
Title: Director
S-2
