AMENDMENT NO. 2 TO RIGHTS AGREEMENT
This AMENDMENT NO. 2 (this "Amendment") is made by and between VIATEL,
INC., a Delaware corporation (the "Company"), and THE BANK OF NEW YORK, a New
York banking corporation (the "Rights Agent"), and shall be effective as of July
27, 2000.
RECITALS
A. The Company and the Rights Agent are parties to a Rights Agreement
dated December 6, 1999 and the Amendment to Rights Agreement dated February 1,
2000 (collectively, the "Rights Agreement").
B. The Company, HMTF Purchasers and Chase Purchasers have agreed to
modify certain provisions set forth in the Amendment to Rights Agreement, dated
February 1, 2000, to clarify the intent of such parties.
C. Pursuant to Section 27 of the Rights Agreement, the Board of
Directors of the Company has determined that the amendment to the Rights
Agreement, as set forth in this Amendment, is necessary and desirable to reflect
the Transactions and the subsequent transfer of securities contemplated by this
Amendment No. 2, and the Company and the Rights Agent desire to evidence such
amendment in writing, with the effective date of the operation of the terms
hereof to be July 27, 2000.
D. Terms used but not defined herein have the meaning ascribed to such
terms in the Rights Agreement, as amended to date, or, if not defined therein,
in the Securities Purchase Agreement.
NOW, THEREFORE, the parties agree as follows:
1. Amendment of Section 1(a). Section 1(a) (iv), (v) and (vi) of the
Rights Agreement is hereby amended and restated as follows:
"; (iv) notwithstanding anything contained in this
Rights Agreement (other than the following clauses (v) and
(vi) of this Section 1(a)) to the contrary, no HMTF Purchaser
nor any Affiliate or Associate thereof, and no Chase Purchaser
nor any Affiliate or Associate thereof, shall, for purposes of
this Rights Agreement, be deemed to Beneficially Own any
Common Shares by reason of its Beneficial Ownership of any
securities acquired, directly or indirectly, upon consummation
of the Transactions, or upon a subsequent transfer of such
securities to such HMTF Purchaser or Affiliate or Associate
thereof or such Chase Purchaser or Affiliate or Associate
thereof from another HMTF Purchaser or Affiliate or Associate
thereof or Chase Purchaser or Affiliate or Associate thereof,
respectively (including, without limitation, the Series B
Preferred Stock, the Series C Stock, the Conversion Shares,
the Warrants, the Warrant Shares or any Common Shares or other
securities that may be received as a result of dividends or
payments on, or the exercise of preemptive rights with respect
to, the Series B Preferred Stock, the Series C Stock, Warrant
Shares or Conversion Shares; the foregoing securities are
referred to collectively herein as the ["Excluded Shares");(v)
notwithstanding anything contained in the Rights Agreement to
the contrary, (A) no HMTF Purchaser nor any Affiliate or
Associate thereof shall be deemed to be an "ACQUIRING PERSON"
unless and until the Common Shares Beneficially Owned by all
HMTF Purchasers and their Affiliates and Associates of which
any HMTF Purchaser is the Beneficial Owner of 25% or more of
the voting power of such Associate (an "HMTF 25% Associate")
(and, in the case of Associates of an HMTF Purchaser of which
no HMTF Purchaser is the Beneficial Owner of more than 25% of
the voting power of such Associate, Common Shares Beneficially
Owned by such Associates shall be included in any calculation
hereunder only if, and at such time as, any of such Associates
file, or would otherwise be obligated to file, a Schedule 13D
or Schedule 13G under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), as a result of being part of a
"group" (as defined in Rule 13d-5 under the Exchange Act) with
such HMTF Purchaser (an "HMTF Group Associate"; such HMTF
Group Associate's shares, together with Common Shares
Beneficially Owned by all HMTF 25% Associates, the "Included
HMTF Associate Shares")), exceed 7.5% of the Common Shares
then outstanding (and, for purposes of any calculation with
respect thereto, the Excluded Shares (whether owned by an HMTF
Purchaser or an Affiliate or Associate thereof) shall not
otherwise be deemed to be Beneficially Owned for purposes
hereof and thus shall not be included in any such calculation
unless and until the Common Shares Beneficially Owned by all
HMTF Purchasers and their Affiliates and Associates other than
the Excluded Shares (calculated, with respect to any Associate
of an HMTF Purchaser, to include only the Included HMTF
Associate Shares) exceeds 7.5% of the Common Shares then
outstanding, at which time all Excluded Shares owned by all
HMTF Purchasers or any Affiliate or Associate thereof shall be
deemed Beneficially Owned by the HMTF Purchasers and each of
their Affiliates and Associates (calculated, with respect to
any Associate of any HMTF Purchaser, to include only the
Included HMTF Associate Shares)) and (B) no Chase Purchaser
nor any Affiliate or Associate thereof shall be deemed to be
an "ACQUIRING PERSON" unless and until the Common Shares
Beneficially Owned by all Chase Purchasers and their
Affiliates, and Associates of which any Chase Purchaser is the
Beneficial Owner of 25% or more of the voting power of such
Associate (a "Chase 25% Associate") (and, in the case of
Associates of a Chase Purchaser of which no Chase Purchaser is
the Beneficial Owner of more than 25% of the voting power of
such Associate, Common Shares Beneficially Owned by such
Associates shall be included in any calculation hereunder only
if, and at such time as, any of such Associates file, or would
otherwise be obligated to file, a Schedule 13D or Schedule 13G
under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), as a result of being part of a "group" (as
defined in Rule 13d-5 under the Exchange Act) with such Chase
Purchaser (a "Chase Group Associate"; such Chase Group
Associate's shares, together with Common Shares Beneficially
Owned by all Chase 25% Associates, the "Included Chase
Associate Shares")), exceed 7.5% of the Common Shares then
outstanding (and, for purposes of any calculation with respect
thereto, the Excluded Shares (whether owned by a Chase
Purchaser or an Affiliate or Associate thereof) shall not
otherwise be deemed to be Beneficially Owned for purposes
hereof and thus shall not be included in any such calculation
unless and until the Common Shares Beneficially Owned by all
Chase Purchasers and their Affiliates and Associates other
than the Excluded Shares (calculated, with respect to any
Associate of a Chase Purchaser, to include only the Included
Chase Associate Shares) exceed 7.5% of the Common Shares then
outstanding, at which time all Excluded Shares owned by all
Chase Purchasers and any Affiliate or Associate thereof shall
be deemed Beneficially Owned by the Chase Purchasers and each
of their Affiliates and Associates (calculated, with respect
to any Associate of a Chase Purchaser, to include only the
Included Chase Associate Shares); or (vi) notwithstanding
anything contained in the Rights Agreement, as amended, to the
contrary, no Purchaser nor any of its Affiliates or Associates
shall be deemed to be an "ACQUIRING PERSON" if it or its
Affiliates or Associates or any combination thereof shall
acquire Beneficial Ownership of more than 7.5% of the Common
Shares (other than the Excluded Shares) then outstanding and
it or its Affiliates or Associates shall have divested such
number of Common Shares as shall be required so that the
number of Common Shares Beneficially Owned by such Purchaser
and its Affiliates and Associates other than the Excluded
Shares (calculated, with respect to any Associate of a Chase
Purchaser, to include only the Included Chase Associate
Shares, or, with respect to any Associate of an HMTF
Purchaser, to include only the Included HMTF Associate Shares)
after giving effect to such divestiture is less than 7.5% of
the Common Shares then outstanding within ten business days
following delivery of any written notice from the Company
requesting such divestiture."
2. Amendment of Section 1(c). The last sentence of Section 1(c) of the Rights
Agreement is hereby amended and restated as follows.
"Notwithstanding anything contained in this Rights
Agreement to the contrary, the HMTF Purchasers and their
Affiliates and Associates, on the one hand, and the Chase
Purchasers and their Affiliates and Associates, on the other
hand, shall not together be deemed to constitute a single
person or group for any purpose hereunder solely by reason of
the Equity Documents and the Transactions, their ownership of
the Securities (including the Warrants) or any of their
activities related thereto only, and the Common Shares
"BENEFICIALLY OWNED" by the HMTF Purchasers and their
Affiliates and Associates, on the one hand, and the Chase
Purchasers and their Affiliates and Associates, on the other
hand, shall not together be aggregated for any purpose
hereunder solely by reason of the Equity Documents and the
Transactions or their activities related thereto (including,
without limitation, transactions involving the Excluded Shares
and any activities pursuant to which the HMTF Purchasers, the
Chase Purchasers and their respective Affiliates and
Associates vote together as a class on any matter or otherwise
cooperate in carrying out the Transactions)."
3. Amendment of Section 27. The last sentence of Section 27 of the Rights
Agreement is hereby amended and restated as follows.
"The Company shall not amend this Rights Agreement in
a way which would materially adversely affect the rights
granted to any HMTF Purchaser or any Chase Purchaser or any of
their respective Affiliates or Associates under the terms of
the Amendment to Rights Agreement dated as of February 1,
2000, unless such amendment is approved in writing by such
HMTF Purchaser, such Chase Purchaser or such Affiliate or
Associate, as the case may be."
4. Governing Law. This Amendment shall be governed by, interpreted under,
and construed in accordance with the laws of the State of New York,
regardless of the laws that might otherwise govern under applicable
principles of conflicts of law.
5. Counterparts. This Amendment may executed in counterparts, each of
which shall be deemed an original, but all of which taken together
shall constitute one and the same instrument.
6. Third-Party Beneficiaries. Each HMTF Purchaser, each Chase Purchaser
and each of their respective Affiliates and Associates shall be third
party beneficiaries of this Amendment to the extent specifically set
forth herein.
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IN WITNESS WHEREOF, the parties have executed this Amendment No. 2 as
of the date first set forth above.
VIATEL, INC.
By: /s/ James P. Prenetta
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Name: James P. Prenetta, Jr.
Title: Senior Vice President and General Counsel
THE BANK OF NEW YORK
By: /s/ Joe Varca
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Name: Joe Varca
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Title: Vice President
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