AMENDMENT TO RIGHTS AGREEMENT
This AMENDMENT, dated as of February 1, 2000, is between VIATEL, INC., a
Delaware corporation (the "Company"), and THE BANK OF NEW YORK, a New York
banking corporation (the "Rights Agent").
RECITALS
A. The Company and the Rights Agent are parties to a Rights Agreement
dated December 6, 1999 (the "Rights Agreement").
B. HMTF Europe Acquisition Corp., a Delaware corporation ("HMTF Europe"),
Chase Equity Associates, LLC, a Delaware limited liability company ("Chase
Equity") and the Company have entered into that certain Securities Purchase
Agreement, dated February 1, 2000 (the "Securities Purchase Agreement"). It is
contemplated that HMTF Europe will assign its rights under the Securities
Purchase Agreement to HMTF Bridge Viatel, LLC, HMEU Viatel I-EQ Coinvestors,
LLC, HMEU Viatel I-SBS Coinvestors, LLC, HM Viatel PG Europe, LLC, HMEU Viatel
Qualified Fund, LLC and HMEU Viatel Private Fund, LLC (each, a "HMTF
Purchaser").
C. Pursuant to the Securities Purchase Agreement, the Company has agreed
to issue and sell, and HMTF Europe and Chase Equity have agreed to purchase,
shares of Series B Preferred Stock and Series C Preferred Stock and Warrants to
purchase shares of Common Stock.
D. 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 herein, is necessary and desirable to reflect the Transactions and the
Company and the Rights Agent desire to evidence such amendment in writing.
E. Terms used but not defined herein have the meaning ascribed to such
terms in the Rights Agreement 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) of the Rights Agreement is hereby
amended to add the following clause immediately after the end of clause
(iii) of Section 1(a) and immediately prior to the penultimate sentence of
Section 1(a):
"; (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
thereof, and no Chase Purchaser nor any Affiliate 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 (including, without limitation, the Series B
Preferred Stock, the Series C Stock, the Conversion Shares, the
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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 thereof shall be deemed to be an "ACQUIRING PERSON" unless
and until the Common Shares Beneficially Owned by all HMTF
Purchasers and their Affiliates 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 by a Chase Purchaser or an Affiliate) 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 (other than the Excluded Shares) exceeds 7.5% of
the Common Shares then outstanding, at which time all Excluded
Shares shall be deemed Beneficially Owned by such HMTF Purchaser and
each of its Affiliates) and (B) no Chase Purchaser nor any Affiliate
thereof shall be deemed to be an "ACQUIRING PERSON" unless and until
the Common Shares Beneficially Owned by all Chase Purchasers and
their Affiliates 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 by a Chase Purchaser or an Affiliate) 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 (other than the Excluded Shares) exceed 7.5% of the
Common Shares then outstanding, at which time all Excluded Shares
shall be deemed Beneficially Owned by such Chase Purchaser and each
of its Affiliates); or (vi) notwithstanding anything contained in
the Rights Agreement to the contrary, no Purchaser nor any of its
Affiliates shall be deemed to be an "ACQUIRING PERSON" if it or its
Affiliates or both shall acquire more than 7.5% of the Common Shares
(other than the Excluded Shares) and it 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 (other than the Excluded 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). Section 1(c) of the Rights Agreement is hereby
amended by inserting the following sentence at the end thereof.
"Notwithstanding anything contained in this Rights Agreement
to the contrary, the HMTF Purchasers and their Affiliates, on the
one hand, and the Chase Purchasers and their Affiliates, 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
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related thereto only, and the Common Shares "BENEFICIALLY OWNED" by
the HMTF Purchasers and their Affiliates, on the one hand, and the
Chase Purchasers and their Affiliates, 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 vote together as a class on any matter or otherwise
cooperate in carrying out the Transactions)."
3. ADDITION OF SECTION 1 (AA)(1). Section 1(aa)(1) shall be inserted into the
Rights Agreement as follows:
"Securities Purchase Agreement" shall mean the Securities
Purchase Agreement, dated as of February 1, 2000, by and among the
Company and each of the purchasers listed on Schedule I thereto."
4. AMENDMENT OF SECTION 27. Section 27 of the Rights Agreement is hereby
amended by inserting the following sentence at the end thereof.
"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 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, as the case may be."
5. ADDITION OF SECTION 35. Section 35 shall be inserted into the Rights
Agreement as follows:
"Section 35. CERTAIN CAPITALIZED TERMS. All terms which are
capitalized and used herein (which are not otherwise specifically
defined herein) and which are defined in the Securities Purchase
Agreement shall be used in the Rights Agreement as defined in the
Securities Purchase Agreement."
6. No Distribution Date or Share Acquisition Date shall occur as a result of
the Equity Documents and the Transactions.
7. 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.
8. 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.
9. THIRD-PARTY BENEFICIARIES. Each HMTF Purchaser, each Chase Purchaser and
each of their respective Affiliates shall be third party beneficiaries of
this Amendment to the extent specifically set forth herein.
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10. TERMINATION. This Amendment shall automatically terminate and be null and
void upon termination of the Securities Purchase Agreement pursuant to
Section 8.4(a) thereof.
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IN WITNESS WHEREOF, the parties have executed this Amendment as of
the date first set forth above.
VIATEL, INC.
BY: /s/ James P. Prenetta
--------------------------------------------
Name: James P. Prenetta, Jr.
Title: Vice President and General Counsel
THE BANK OF NEW YORK
BY: /s/ Diane Ajjan
--------------------------------------------
Name: Diane Ajjan
Title: Vice President
[SIGNATURE PAGE FOR AMENDMENT TO RIGHTS AGREEMENT]
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