SHAREHOLDERS AGREEMENT
dated as of
November 23, 1999 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.================================================================================
[*]: THE CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT AND THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE COMMISSION.
TABLE OF CONTENTS Page ARTICLE I.DEFINITIONS.............................................................................................1
Section 1.1 Definitions............................................................................1
Section 1.2 Other Definitional Provisions..........................................................9
ARTICLE II.ORGANIZATION AND CAPITALIZATION.......................................................................10
Section 2.1 Formation of the Company..............................................................10
Section 2.2 Name..................................................................................10
Section 2.3 Purpose...............................................................................10
Section 2.4 Registered Office.....................................................................10
Section 2.5 Share Capital.........................................................................11
Section 2.6 Share Register........................................................................11
Section 2.7 Additional Capital Contributions......................................................12
Section 2.8 New Capital...........................................................................12
Section 2.9 Formation of Local Operating Companies................................................14
Section 2.10 Use of Capital........................................................................14
Section 2.11 Payment to iaxis carrier services ltd.................................................15
Section 2.12 Payments to Shareholders..............................................................15
Section 2.13 Conditions to the Effectiveness of this Agreement.....................................15
Section 2.14 Conditions to the Initial Capital Contributions.......................................15
Section 2.15 Conditions to Additional Capital Contributions........................................16
ARTICLE III.MANAGEMENT AND ADMINISTRATION........................................................................17
Section 3.1 Board of Directors of the Company.....................................................17
Section 3.2 Requirements for Board Action.........................................................19
Section 3.3 Officers..............................................................................21
Section 3.4 Shareholders'Meetings.................................................................22
Section 3.5 Accounting, Record Keeping and Reporting..............................................24
Section 3.6 Business Plan.........................................................................26
Section 3.7 Deposits and Withdrawals of Funds.....................................................26
Section 3.8 Voting................................................................................26
ARTICLE IV.TRANSFER AND ASSIGNMENT...............................................................................26
Section 4.1 Transfer of Securities................................................................26
Section 4.2 Right of First Refusal................................................................28
Section 4.3 Tag-Along Rights......................................................................30
Section 4.4 Drag-Along Rights.....................................................................32
Section 4.5 Liquidity Rights......................................................................34
Section 4.6 Involuntary Transfers.................................................................36
Section 4.7 Liability of Transferor...............................................................36
Section 4.8 Transfers to a Competitor of the Company..............................................36
Section 4.9 Prohibited Transfers..................................................................37
Section 4.10 Expenses in Connection with Transfers.................................................37
ARTICLE V.REPRESENTATIONS AND WARRANTIES.........................................................................37
Section 5.1 Representations and Warranties........................................................37 i
ARTICLE VI.CONFIDENTIALITY; SATISFACTION OF CONDITIONS...........................................................38
Section 6.1 Confidentiality.......................................................................38
Section 6.2 Satisfaction of Conditions............................................................39
ARTICLE VII.DEFAULTS, TRIGGER EVENTS AND REMEDIES................................................................39
Section 7.1 Defaults..............................................................................39
Section 7.2 Trigger Events........................................................................40
Section 7.3 Actions Upon Default..................................................................40
Section 7.4 Option of Non-Defaulting Shareholders to Purchase
Common Shares.......................41 ARTICLE VIII.DEADLOCK............................................................................................43
Section 8.1 Deadlock..............................................................................43
ARTICLE IX.TERMINATION AND DISSOLUTION...........................................................................43
Section 9.1 Termination...........................................................................43
Section 9.2 Winding-up............................................................................43 ARTICLE X.MISCELLANEOUS..........................................................................................44
Section 10.1 After-Acquired Common Shares..........................................................44
Section 10.2 Rights of Transferees and Transferors; Requirement to
Become a Party..................44
Section 10.3 Termination on Qualified Public Offering..............................................44
Section 10.4 Owner of Common Shares................................................................44
Section 10.5 Tax Elections.........................................................................44
Section 10.6 Conflict of Terms.....................................................................44
Section 10.7 Legend................................................................................44
Section 10.8 Notices...............................................................................45
Section 10.9 Applicable Law........................................................................45
Section 10.10 Arbitration...........................................................................45
Section 10.11 Amendment.............................................................................46
Section 10.12 Assignment............................................................................46
Section 10.13 Expenses..............................................................................46
Section 10.14 Specific Enforcement..................................................................46
Section 10.15 Headings..............................................................................46
Section 10.16 Entire Agreement......................................................................46
Section 10.17 Waivers...............................................................................46
Section 10.18 Severability..........................................................................47
Section 10.19 No Third Party Beneficiaries..........................................................47
Section 10.20 Public Statements.....................................................................47
Section 10.21 Execution in Counterparts.............................................................47 ii SCHEDULES:
Schedule 1 Subscription of Common Shares
Schedule 2 Capital Commitments
Schedule 3 Addresses for Notices EXHIBITS:
Exhibit A Articles of Incorporation
Exhibit B Employment Term Sheet
Exhibit C Reserved
Exhibit D iaxis Assignment Agreement iii
SHAREHOLDERS AGREEMENT
THIS SHAREHOLDERS AGREEMENT, dated as of November 23, 1999,
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, and 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").
W I T N E S S E T H:
WHEREAS, in connection with the establishment of the Company
and the parties' desire to develop, own and operate the Company Business, the
parties hereto desire to set forth certain understandings regarding the
relationship (a) between the Company and the Shareholders and (b) among theShareholders;
WHEREAS, the operation of the Company is dependent on the
network and technical expertise of the Shareholders;
NOW, THEREFORE, in consideration of the foregoing premises and
the mutual covenants and agreements hereinafter set forth, which the parties
hereto agree is good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto, intending to be legally bound,
do hereby agree as follows: ARTICLE I. DEFINITIONS
Section 1.1 DEFINITIONS. As used herein, the following terms shall have the
following meanings:
"ACQUIROR" shall have the meaning set forth in Section 4.5(a).
"ADDITIONAL CAPITAL CONTRIBUTION" shall mean, with respect to
any Shareholder, any contribution by such Shareholder to the Company in
accordance with the terms of Section .7.
"ADDITIONAL SHARES" shall have the meaning set forth in
Section 4.3(d).
"AFFILIATE" shall mean, with respect to any Person, any other
Person which directly or indirectly through one or more intermediaries controls,
is controlled by or is under common control with, such Person; provided that the
Company shall not be treated as an Affiliate of any Shareholder. For purposes of
this Agreement, the term "control" (and the derivative terms "controlling" and
"controlled") shall mean the possession, directly or indirectly, of the power to
elect or cause the election of a majority of the directors or managers of a
Person, whether through
the ownership of voting securities, by contract or otherwise; PROVIDED that (i)
beneficial ownership of [*] or more of the Voting Stock of a Person shall be
deemed to be control and (ii) the general partner of a limited partnership and
the managing member of a limited liability company shall be deemed to control
such limited partnership or limited liability company, as the case may be.
"AFFILIATE AGREEMENT" shall mean any agreement executed by the
Company or a Subsidiary of the Company (a) to which a Shareholder, or any
Affiliate thereof is also a party or (b) in which a Shareholder, or any
Affiliate thereof has a substantial financial interest.
"AGREEMENT" shall mean this Shareholders Agreement, as further
amended, supplemented or otherwise modified from time to time in accordance with
the terms hereof.
"ARTICLES OF INCORPORATION" shall mean the Articles of
Incorporation of the Company substantially in the form of Exhibit A.
"AUCTION" shall have the meaning set forth in Section 4.5(a).
"AUCTIONEER" shall have the meaning set forth in Section 4.5(c).
"BOARD OF DIRECTORS" shall have the meaning set forth in
Section 3.1(a).
"BUSINESS DAY" shall mean any day other than a Saturday,
Sunday or a day on which banking institutions in London or New York City are
authorized or obligated by law or executive order to close.
"BUSINESS PLAN" shall mean the business plan for the Company
adopted pursuant to Section 3.6, as amended, supplemented or otherwise modified
from time to time in accordance with the terms hereof.
"CAPITAL CALL DATE" shall mean each Business Day on which the
Shareholders are requested by the Company to make an Additional Capital
Contribution to the Company, which Business Day (a) shall be specified by the
Company in a Capital Call Notice delivered by the Company to each of the
Shareholders and (b) shall be no less than fifteen (15) Business Days from the
date of delivery of such Capital Call Notice by the Company.
"CAPITAL CALL NOTICE" shall mean a written notice requesting
that Additional Capital Contributions be made by the Shareholders to the
Company, which notice shall (a) be delivered by the Company to each Shareholder,
(b) call for contributions to the Company by the Shareholders of all or a
portion of their Additional Capital Contributions, (c) specify the Capital Call
Date on which such Additional Capital Contributions are to be made and (d)
specify the account of the Company to which the Additional Capital Contributions
should be made available, all in accordance with Section 2.7.
[*]: THE CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT AND THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE COMMISSION. 2
"CAPITAL COMMITMENT" shall mean, with respect to each
Shareholder, the sum of its Initial Capital Contribution and its "Maximum
Additional Capital Commitments" as set forth on Schedule 2.
"CAPITAL CONTRIBUTION" shall mean, with respect to any
Shareholder, any contribution by such Shareholder to the Company in accordance
with the terms of Section 2.7 or Section 2.8.
"CAPITAL EXPENDITURE" shall mean for any period, with respect
to the Company, any expenditure by the Company or any Subsidiary thereof for the
acquisition or leasing (pursuant to a capital lease) of fixed or capital assets
or additions to equipment (including replacements, capitalized repairs and
improvements during such period) which should be capitalized under U.S. GAAP on
a consolidated balance sheet of the Company and any Subsidiaries thereof.
"CAPITAL STOCK" shall mean: (i) in the case of a corporation,
corporate stock; (ii) in the case of an association or business entity, any and
all shares, interests, participations, rights or other equivalents (however
designated) of corporate stock; (iii) in the case of a partnership or limited
liability company, partnership or membership interests (whether general or
limited); and (iv) any other interest or participation that confers on a Person
the right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"CARRIER INVESTORS" shall mean each of iaxis and Carrier1.
"CASH EQUIVALENTS" shall have the meaning set forth in Section 4.2(g).
"CHAIRMAN OF THE BOARD" shall have the meaning set forth in
Section 3.1(d).
"CLOSING DATE" shall mean the date on which the Initial
Capital Contribution is funded.
"COMMISSION" shall mean the Securities and Exchange Commission
or any other federal agency at the time administering the Securities Act.
"COMMON SHARES" shall mean (a) the $2.00 par value common
stock of the Company, (b) any security or other instrument (i) received as a
dividend on, or other payment made to holders of, such stock (or any security or
other instrument referred to in this definition) or (ii) issued in connection
with a split of such stock (or any security or other instrument referred to in
this definition) or as a result of any exchange or reclassification of such
stock (or any security or other instrument referred to in this definition),
reorganization, recapitalization, consolidation or merger, (c) any option,
warrant or right to acquire such stock (or any security or other instrument
referred to in this definition) and (d) any security or other instrument
exchangeable for, or convertible into, such stock (or any security or other
instrument referred to in this definition).
"COMPANY" shall have the meaning set forth in the preamble hereto.
"COMPANY BUSINESS" shall have the meaning set forth in Section 2.3. 3
"COMPETITOR" means any Person, directly or indirectly, engaged
(whether by way of ownership, (other than as a holder of not in excess of [*] of
the outstanding voting shares of any publicly traded company) or, as a provider
of services or otherwise) in a Restricted Business.
"CONFIDENTIAL INFORMATION" shall have the meaning set forth in
Section 6.1.
"DEADLOCK" shall have the meaning set forth in Section 8.1.
"DEADLOCK NOTICE" shall have the meaning set forth in Section 8.1.
"DEFAULT NOTICE" shall have the meaning set forth in Section 7.1.
"DEFAULTED SHARES" shall have the meaning set forth in Section 7.4(a).
"DEFAULTING SHAREHOLDER" shall mean, as of any date of
determination, any Shareholder as to which an Event of Default shall have
occurred and be continuing.
"DIRECTOR" shall have the meaning set forth in Section 3.1(a).
"DIRECTOR DESIGNEES" shall have the meaning set forth in
Section 3.1(a).
"DOLLARS" and "$" shall mean the lawful currency of the United
States of America.
"DRAG-ALONG NOTICE" shall have the meaning set forth in
Section 4.4(b).
"DRAG-ALONG NOTICE DATE" shall have the meaning set forth in
Section 4.4(b).
"DRAG-ALONG SALE" shall have the meaning set forth in Section 4.4(a).
"DRAG-ALONG SALE DATE" shall have the meaning set forth in
Section 4.4(b).
"EMPLOYMENT AGREEMENT" shall have the meaning set forth in
Section 2.14(d).
"EVENT OF DEFAULT" shall have the meaning set forth in Section 7.1.
"FAIR MARKET VALUE" shall mean with respect to any asset or
property other than Common Shares, the price that could be negotiated in an
arms-length free market transaction, for cash, between a willing seller and a
willing buyer, as determined by the Board of Directors of the Company acting in
good faith.
"FAIR MARKET VALUE OF COMMON SHARES" shall have the meaning
set forth in Section 4.5(f).
[*]: THE CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT AND THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE COMMISSION. 4
"FISCAL QUARTER" shall mean each fiscal quarter comprising a
portion of any Fiscal Year.
"FISCAL YEAR" shall mean the accounting year of the Company
commencing each year on January 1 and ending on the following December 31, or
such other accounting year as the Company may from time to time adopt. The
Fiscal Year may differ from the Company's taxable year.
"FULLY SUBSCRIBED SHAREHOLDER" shall have the meaning set
forth in Section 2.8(e).
"FURTHER CAPITAL NOTICE" shall have the meaning set forth in
Section 2.8(e).
"GRANDFATHERED PROPERTY" shall have the meaning given such
term in the Strategic Anchor Tenant Agreements.
"IAXIS ASSIGNMENT AGREEMENT" shall have the meaning set forth
in Section 2.14(e).
"INDEBTEDNESS" shall mean, for any Person, all indebtedness of
such Person (i) for borrowed money or for the deferred purchase price of
property or services, (ii) which is evidenced by any note, bond, debenture or
similar instrument or (iii) which consists of a lease of property by such Person
that, in conformity with U.S. GAAP, should be accounted for as a capital lease
on a balance sheet of such Person, and includes all guarantees or similar
contingent obligations of such Person in respect of Indebtedness of anotherPerson.
"INDEPENDENT ACCOUNTANTS" shall mean such internationally
recognized accounting firm as may be selected from time to time by the Board ofDirectors.
"INDEPENDENT APPRAISER" shall have the meaning set forth in
Section 4.2(d).
"INITIAL CAPITAL CONTRIBUTION" shall have the meaning set
forth in Section 2.5(b).
"INITIATING SHAREHOLDERS" shall have the meaning set forth in
Section 4.4(a).
"INVOLUNTARY TRANSFER NOTICE" shall have the meaning set forth
in Section 4.6.
"MANAGEMENT DIRECTOR" shall have the meaning set forth in
Section 3.1(a).
"MANAGEMENT SHAREHOLDERS AGREEMENT" shall have the meaning set
forth in Section 2.14(d).
"MARKETABLE SECURITIES" shall have the meaning set forth in
Section 4.2(g).
"NEW CAPITAL" shall have the meaning set forth in Section 2.8(a).
"NEW CAPITAL NOTICE" shall have the meaning set forth in
Section 2.8(c).
"NON-DEFAULTING SHAREHOLDER" shall have the meaning set forth
in Section 7.1(c). 5
"NON-VOTING SHARES" shall have the meaning set forth in
Section 2.5(a).
"NOTICE" shall have the meaning set forth in Section 4.2(a).
"NOTICE DATE" shall have the meaning set forth in Section 4.3(c).
"OFFEREE" shall have the meaning set forth in Section 4.2(a).
"OFFEREE ELECTION NOTICE" shall have the meaning set forth in
Section 4.2(b).
"OFFEREE ELECTION NUMBER" shall have the meaning set forth in
Section 4.2(b).
"OFFERED SHARES" shall have the meaning set forth in Section 4.2(a).
"OFFEROR" shall have the meaning set forth in Section 4.2(a).
"OFFICERS" shall have the meaning set forth in Section 3.3(a).
"OTHER HOLDERS" shall have the meaning set forth in Section 4.3(a).
"PERMITTED TRANSFEREE" shall have the meaning set forth in
Section 4.1(b).
"PERSON" shall mean any individual, partnership, joint
venture, corporation, limited liability company, limited duration company,
limited life company, association, trust or other enterprise.
"PRINCIPAL EXECUTIVE OFFICER" shall mean any of the President,
the Chief Executive Officer, the General Counsel, the Chief Financial Officer,
the Chief Operating Officer and each Senior Vice President (or the equivalent
thereof) of the Company.
"PRO RATA SHARE" shall have the meaning set forth in Section 4.2(b).
"PURCHASE NOTICE" shall have the meaning set forth in Section 4.2(b).
"QUALIFIED PUBLIC OFFERING" shall mean a firm commitment
underwritten public offering (underwritten by an underwriter or underwriters of
recognized national or international standing) in which Common Shares are
approved for listing on the New York Stock Exchange, the NASDAQ National Market,
the London Stock Exchange or the Frankfurt Stock Exchange, covering the offer
and sale of Common Shares for the account of the Company in which the aggregate
public offering price (before deduction of underwriters' discounts and
commissions) equals or exceeds $50,000,000 and the public offering price per
share of which equals or exceeds three (3) times the Subscription Price per
share, before deduction of underwriters' discounts and commissions (such price
per share of Common Shares to be appropriately adjusted to reflect adjustments
for stock-splits, stock dividends, recapitalizations or other similar
transactions after the Closing Date).
"REGISTER" shall mean the Register of Shareholders of the Company. 6
"REGISTERED OFFICE" shall have the meaning set forth in
Section 2.4.
"REGISTRATION RIGHTS AGREEMENT" shall mean the Registration
Rights Agreement, dated as of the date hereof, by and among the Shareholders and
the Company, as the same shall be amended from time to time.
"REQUIRED SALE" shall have the meaning set forth in Section 4.5(c).
"REQUIRED SALE CLOSING DATE" shall have the meaning set forth
in Section 4.5(e).
"REQUIRED SALE NOTICE" shall have the meaning set forth in
Section 4.5(e).
"RESTRICTED BUSINESS" shall mean [*]
"SALE NOTICE" shall have the meaning set forth in Section
4.3(c).
"SECTION 4.5 MINIMUM PRICE" shall have the meaning set forth
in Section 4.5(b).
"SECTION 4.5 NOTICE" shall have the meaning set forth in
Section 4.5(b).
"SECTION 4.5 OFFER" shall have the meaning set forth in
Section 4.5(b).
"SECTION 4.5 OFFER PERIOD" shall have the meaning set forth in
Section 4.5(b).
"SECTION 4.5 SELLER" shall have the meaning set forth in
Section 4.5(a).
[*]: THE CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT AND THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE COMMISSION. 7
"SECURITIES ACT" shall mean the Securities Act of 1933, as
amended, or any similar federal statute and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"SELLING SHAREHOLDER" shall have the meaning set forth in
Section 4.3(a).
"SHARE CAPITAL DEPOSIT" shall have the meaning set forth in
Section 2.5(a).
"SHARE PERCENTAGE" shall mean, at any time with respect to any
Shareholder, the percentage which the number of Common Shares owned by such
Shareholder then constitutes of the aggregate number of Common Shares thenoutstanding.
"SHAREHOLDER" shall mean each of Carlyle, iaxis, Providence
and Carrier1, upon the execution by each of this Agreement, and each other
Person, if any, that hereafter becomes a party to this Agreement after becoming
a shareholder of the Company. A Shareholder that transfers all of its Common
Shares in the Company in accordance with the provisions of this Agreement shall
cease to be a Shareholder.
"SHAREHOLDERS' ALLOTMENT" shall have the meaning set forth in
Section 4.3(a).
"SHAREHOLDERS' SHARES" shall have the meaning set forth in
Section 4.3(a).
"SPACE" shall have the meaning given such term in the
Strategic Anchor Tenant Agreements.
"SPECIAL PURPOSE SHAREHOLDER" shall have the meaning set forth
in Section 4.1(e).
"STRATEGIC ANCHOR TENANT AGREEMENTS" shall mean those certain
Strategic Anchor Tenant Agreements by and among the Company, on the one hand,
and iaxis and Carrier1, on the other hand, dated as the date hereof, as the same
shall be amended from time to time.
"SUBSCRIPTION NOTICE" shall have the meaning set forth in
Section 2.8(d).
"SUBSCRIPTION PRICE" shall mean, with respect to the Common
Shares subscribed by each initial Shareholder, the amount listed by such initial
Shareholder for such Common Shares as set forth on Schedule 1 under the heading
"Total Purchase Price."
"SUBSIDIARY" shall mean, as to any person, (a) any corporation
more than [*] of whose stock of any class or classes having by terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such person and/or one or
more Subsidiaries of such person and (b) any partnership, association, joint
venture, limited liability
[*]: THE CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT AND THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE COMMISSION. 8
company or other entity in which such person and/or one or more Subsidiaries of
such person have more than a [*] equity interest therein.
"SUPERMAJORITY BOARD APPROVAL" shall have the meaning set
forth in Section 3.2(b).
"SUPERMAJORITY SHAREHOLDER APPROVAL" shall have the meaning
set forth in Section 3.4(f).
"TAG-ALONG NOTICE" shall have the meaning set forth in Section 4.3(d).
"TAG-ALONG SALE" shall have the meaning set forth in Section 4.3(a).
"TAG-ALONG SALE DATE" shall have the meaning set forth in
Section 4.3(c).
"TERMINATION EVENT" shall have the meaning set forth in
Section 9.1.
"THIRD PARTY" shall have the meaning set forth in Section 4.4(a).
"THIRD PARTY PROPOSAL" shall have the meaning set forth in
Section 4.4(f).
"TRANSACTION DOCUMENTS" shall mean, collectively, this
Agreement, the Strategic Anchor Tenant Agreements, the Registration Rights
Agreement, the Employment Agreements, the Management Shareholders Agreement, the
iaxis Assignment Agreement and each other agreement entered into by any party
hereto or any Affiliate thereof pursuant to or in connection with thisAgreement.
"TRANSFER" shall have the meaning set forth in Section 4.1(a).
"TRIGGERING NOTICE" shall have the meaning set forth in
Section 8.1.
"U.S. GAAP" shall mean generally accepted accounting
principles in the United States of America in effect from time to time as of the
relevant date of determination.
"VOTING STOCK" of any Person as of any date shall mean the
Capital Stock of such Person that is at the time entitled to vote in the
election of the Board of Directors of such Person.
Section 1.2 OTHER DEFINITIONAL PROVISIONS.
(a) Unless otherwise specified therein, all terms defined
in this Agreement shall have the defined meanings when used in any other
document made or delivered pursuant hereto.
(b) The words "hereof," "herein," "hereto" and "hereunder" and
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to
[*]: THE CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT AND THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE COMMISSION. 9
any particular provision of this Agreement, and Article, Section, Schedule and
Exhibit references are to this Agreement unless otherwise specified.
(c) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
(d) Except as otherwise specified herein, each reference in
this Agreement to a Transaction Document shall be deemed (i) to include all
exhibits, annexes, schedules or other attachments thereto and (ii) to refer to
such Transaction Document as the same may be amended, supplemented or otherwise
modified from time to time in accordance with its terms and the terms of thisAgreement.
(e) Each reference in this Agreement to a Person shall be
deemed to include such Person's permitted successors and assigns.
(f) The use of the word "including" in this Agreement means
"including, without limitation."
ARTICLE II.
ORGANIZATION AND CAPITALIZATION
Section 2.1 FORMATION OF THE COMPANY. The Company was
incorporated under the laws of Luxembourg on November 19, 1999. Subject to the
terms and conditions hereof and the Articles of Incorporation, the Shareholders
have established the Company as a Societe Anonyme under the laws of Luxembourg.
The Shareholders have taken, or have caused to be taken, all such actions as may
be required under the laws of Luxembourg in connection with the formation of the
Company on the terms and conditions set forth herein, and the Shareholders agree
to take, or cause to be taken, all such actions as may be required under the
laws of Luxembourg in connection with the continuation of the Company on the
terms and conditions set forth herein. The Company shall have an unlimited
duration unless terminated or dissolved earlier in accordance with the terms of
this Agreement.
Section 2.2 NAME. The name of the Company shall be "Hubco S.A."
Section 2.3 PURPOSE. The Company's business shall be,
directly or through Subsidiaries, the acquisition, leasing, development, active
full-service operation and provision of facilities in Europe for the purpose of
housing telecommunications and/or data equipment and all business related or
reasonably incidental thereto, and the Company may take any and all actions
necessary, appropriate or consistent therewith (collectively, the "Company
Business"). The Company shall not engage in any business other than the Company
Business unless the Board of Directors, by Supermajority Board Approval, and the
Shareholders, by Supermajority Shareholder Approval, grant their approval to
engage in such other business.
Section 2.4 REGISTERED OFFICE. The address of the Company's
registered office in Luxembourg shall be 3 Bd Prince Henri, L-1724 Luxembourg
(the "Registered Office"). The Company's Registered Office may be changed at any
time by a vote of the Board of Directors in accordance with Section 3.2(a). 10
Section 2.5 SHARE CAPITAL.
(a) Each party acknowledges that upon the formation of the
Company, Carrier1 contributed $10,000 to satisfy the minimum share capital
deposit (the "Share Capital Deposit") required by Luxembourg law. Promptly
after the execution of this Agreement, the Shareholders shall cause to be
approved and filed an amendment to the Articles of Incorporation, and shall
take or cause to be taken all other actions necessary to create a class of
stock of the Company, par value $2.00 per share, without any voting rights,
except as may be required by Luxembourg law ("Non-Voting Shares"). To the
extent required by Luxembourg law, Non-Voting Shares shall have the right to
receive preferential dividends at a rate equal to 0.1% of its par value and a
liquidation preference equal to $.01 per share.
(b) Except as set forth in Section 2.5(c) below and subject to
Section 2.14, each Shareholder agrees to pay to the Company the Subscription
Price (as to each Shareholder, its "Initial Capital Contribution") by wire
transfer of immediately available funds to such account or accounts as the
Company shall have designated in writing, less any amounts previously paid by
such Shareholder as part of the Share Capital Deposit, and in consideration
therefor the Company shall issue to each Shareholder the number of Common Shares
set forth opposite such Shareholder's name on Schedule 1.
(c) Upon the request of Carlyle and Providence, the Parties
agree to form a Gibraltar limited liability company or corporation or an entity
organized in such other jurisdiction as Carlyle and Providence may in good faith
determine to be suitable ("Gibraltarco"). Subject to Section 2.14, and in lieu
of Section 2.5(b), each Shareholder agrees to pay to Gibraltarco its Initial
Capital Contribution. At the time selected by Carlyle and Providence, each
Shareholder shall contribute its shares in Gibraltarco to the Company in
exchange for the issuance by the Company to such Shareholder of the same number
of Common Shares. Upon the request of Carlyle and Providence, the parties will
follow the procedures set forth in this Section 2.5(c) for any Additional
Capital Contributions.
(d) All Common Shares shall be identical and shall entitle the
holders thereof to the same rights and privileges. The Shareholders shall have
no personal liability for the debts or liabilities of the Company and shall not
be required to contribute to the assets of the Company on a winding up of the
business of the Company.
Section 2.6 SHARE REGISTER.
(a) All Common Shares will be issued in registered form only.
All issued Common Shares shall be registered in the Register which shall be kept
by the Secretary of the Company or by one or more persons designated for such
purpose by the Secretary of the Company and the Register shall contain the name
of each shareholder of the Company, its address including its country of
residence or elected domicile, the number of Common Shares held by it, 11
the amount paid or agreed to be considered as paid on the Common Shares, the
date on which each Shareholder was entered into the Register and the date at
which any Shareholder ceased to be a member for one year after such Shareholder
was entered into the Register.
(b) Transfer of Common Shares shall be made in accordance with
the terms of this Agreement and the Articles of Incorporation, and shall be
effected by written instrument of transfer to be inscribed in the Register, such
instrument to be dated and signed by the transferor and the transferee or by
persons holding suitable powers of attorney to act therefor. The Board of
Directors shall accept and enter into the Register any Transfer effected in
accordance with the terms of this Agreement and the Articles of Incorporation
and pursuant to an agreement or agreements between the transferor and the
transferee, true and complete copies of which shall have been delivered to the Company.
(c) Every Shareholder must provide the Secretary of the
Company with an address to which all notices and announcements from the Company,
the Board of Directors or other Shareholders may be sent. Such address will also
be entered in the Register. Any Shareholder may, at any time, change its address
as entered in the Register by means of a written notification to the Registered
Office and, for so long as the Registered Office and principal place of business
are not the same address, also by written notification to the principal place of
business or to such other address as may be set by the President from time totime.
Section 2.7 ADDITIONAL CAPITAL CONTRIBUTIONS.
(a) Each Shareholder agrees to make Additional Capital
Contributions in cash from time to time to the Company in an aggregate amount
not to exceed the amount set forth opposite its name under the heading "Maximum
Additional Capital Commitments" on Schedule 2. At any time and from time to time
after the date hereof, on any Capital Call Date, subject to the fulfillment of
the conditions set forth in Section 2.15, each Shareholder shall contribute to
the Company such portion of its unfunded Additional Capital Contributions as
shall be specified by the Company in the Capital Call Notice delivered with
respect to such Capital Call Date; provided, however, that in no event shall any
Shareholder be required to make capital contributions in excess of its CapitalCommitment.
(b) In delivering a Capital Call Notice, the Company (i) will
call for Additional Capital Contributions from all Shareholders simultaneously
and pro rata in accordance with each Shareholder's Share Percentage and (ii)
will call only for such Additional Capital Contributions as are approved
pursuant to Section 3.2(b)(x).
(c) Additional Capital Contributions by the Shareholders shall
be made in Dollars by wire transfer of immediately available funds to the
account of the Company specified in the relevant Capital Call Notice. No
Shareholder shall be entitled to any interest or compensation by reason of its
Additional Capital Contributions or by reason of serving as a Shareholder. No
Shareholder shall be required to lend any funds to the Company.
Section 2.8 NEW CAPITAL. 12
(a) In the event that the Company from time to time requires
capital in addition to the aggregate Capital Commitments and the Board of
Directors approves pursuant to Section 3.2(b)(x) the raising of additional
capital ("New Capital") by the Company, and such issuance satisfies the other
requirements of Luxembourg law, each Shareholder shall have the preferential
right to subscribe to such New Capital in proportion to its Share Percentage as
of the date of the notice described in Section 2.8(c).
(b) The Shareholders acknowledge and agree that upon the
written request of any Shareholder, the Board of Directors shall promptly
determine, in its sole discretion, whether or not to approve the issuance of New
Capital and the terms of such New Capital.
(c) Promptly following a decision of the Board of Directors to
issue New Capital, the Company shall provide to each Shareholder a written
notice (a "New Capital Notice") specifying the total amount of the New Capital
proposed to be issued and the amount and terms of such New Capital for which
each Shareholder is entitled to subscribe.
(d) For a period of thirty (30) days following the date of the
New Capital Notice, each Shareholder may elect by written notice to the Company
(a "Subscription Notice") to subscribe for all or any portion of that amount of
New Capital for which the Shareholder is entitled to subscribe as set forth in
the New Capital Notice.
(e) At the end of such thirty (30) day period, (i) the Company
shall give to each Shareholder written notice of which Shareholders have
subscribed for New Capital and the amount of such New Capital for which each
such Shareholder has subscribed and (ii) in the event that any Shareholder does
not subscribe for the full amount of New Capital for which such Shareholder is
entitled to subscribe, the Company shall give to each Shareholder that had
subscribed for the full amount of New Capital for which it was entitled to
subscribe (a "Fully Subscribed Shareholder") written notice (a "Further Capital
Notice") specifying the amount of such unsubscribed New Capital. For a period of
fifteen (15) days from the date of any Further Capital Notice, each Fully
Subscribed Shareholder may elect, by giving a Further Subscription Notice to the
Company, to subscribe for all or any portion of the additional unsubscribed New
Capital, which shall be allocated in the following order of priority: first,
ratably to the Fully Subscribed Shareholders in accordance with each Fully
Subscribed Shareholder's Share Percentage, to the extent the Fully Subscribed
Shareholders have elected to do so and second, if any Fully Subscribed
Shareholders have subscribed for more unsubscribed New Capital than has been
allocated pursuant to the clause first above, ratably to such Fully Subscribed
Shareholders in accordance with the unfulfilled subscriptions of such Fully
Subscribed Shareholders.
(f) Each Subscription Notice shall constitute a binding
commitment of the Shareholder giving such notice to purchase from the Company
the amount of New Capital set forth therein, at the price, by the date and on
the terms and conditions set forth in the New Capital Notice or the Further
Capital Notice, as the case may be, and shall be enforceable by the Company
against the subscribing Shareholder.
(g) After completion of the procedure set forth in Section
2.8(e), the Company may issue any New Capital not subscribed for by the
Shareholders pursuant to this Section 2.8 to 13
any other Person; provided that such issuance shall have first been approved by
the Shareholders as required by Section 3.4(f)(iv).
(h) Contemporaneously with the delivery to the Company of the
New Capital, the Company shall, and the Shareholders agree to take all actions
necessary to cause the Company to, execute all certificates, instruments,
amendments and other documents and take such other actions as are reasonably
necessary or desirable to issue the New Capital.
(i) The number of Common Shares to be issued in connection
with such New Capital shall be determined by the Board of Directors promptly
following the approval by the Shareholders in accordance with Section 3.4(f)(iv)
of a decision to issue New Capital.
(j) The preferential rights of the Shareholders in this
Section 2.8 shall not apply with respect to issuance of options, warrants or
other rights to purchase Common Shares pursuant to an employee incentive plan
approved by Supermajority Board Approval of the Board of Directors.
Section 2.9 FORMATION OF LOCAL OPERATING COMPANIES. From time
to time, the Board of Directors in accordance with Section 3.2 and the Business
Plan may cause the Company to establish local operating companies to conduct the
Company Business within particular countries. The Shareholders agree to cause
the Company to form such Subsidiaries in a manner that permits such Subsidiaries
to be treated as partnerships or disregarded entities for United States federal
income tax purposes and conduct its business operations through such
Subsidiaries and branches so as to minimize the overall tax burden to the
Shareholders collectively.
Section 2.10 USE OF CAPITAL. Capital will be used for
purposes as the Board of Directors shall determine in accordance with Section3.2. 14
Section 2.11 PAYMENT TO IAXIS CARRIER SERVICES LTD.
Concurrently with the payment of the Subscription Price by iaxis, the Company
shall cause one or more of its Subsidiaries to pay [*] to iaxis carrier services
ltd. and [*] to iaxis for services rendered to such Subsidiaries in connection
with the identification, analysis and selection of facilities, and iaxis shall
enter into, and cause iaxis carrier services ltd. to enter into, and the Company
or its designated Subsidiary shall enter into, the iaxis Assignment Agreement.
Section 2.12 PAYMENTS TO SHAREHOLDERS. Concurrently with the
payment of the Subscription Price by the Shareholders and in recognition of
services performed by the Shareholders or their Affiliates in connection with
the formation of the Company: (a) the Company shall pay to each of the
Shareholders (or their designees) a transaction fee equal to [*] of the
Subscription Price for such Shareholder and (b) each of the Shareholders (or
their designees) shall be reimbursed by the Company for reasonable expenses
(with written documentation showing reasonable detail of such expenses), not to
exceed [*] incurred in drafting and negotiating the Transaction Documents and
forming the Company. At the time a Shareholder makes an Additional Capital
Contribution, the Company shall pay such Shareholder (or its designees) a
transaction fee equal to [*] of such Additional Capital Contribution.
Section 2.13 CONDITIONS TO THE EFFECTIVENESS OF THIS
AGREEMENT. This Agreement shall become effective upon its execution by
Shareholders whose Capital Commitments collectively constitute at least [*] of
the aggregate amount of all Capital Commitments set forth on Schedule 2, even if
not executed by one or more Persons whose names appear on the signature pages
hereof. No Person whose name appears on the signature pages hereof and who does
not execute this Agreement on the date hereof shall have the right to execute
this Agreement at any later date.
Section 2.14 CONDITIONS TO THE INITIAL CAPITAL CONTRIBUTIONS.
The obligations of each of the Shareholders to make its Initial Capital
Contribution are subject to the fulfillment of the following conditions:
(a) Such Shareholder shall have received copies of the
Company's Articles of Incorporation and resolutions of the Board of Directors,
approving the execution and delivery of the Transaction Documents and the
transactions contemplated hereby, including, without limitation, the
authorization and issuance of the Common Shares on the terms set forth herein.
(b) No action shall have been taken and no statute, rule,
regulation or order shall have been enacted or entered by any governmental body,
agency or by any court with jurisdiction over the transactions contemplated
herein with requisite authority, to prohibit or unduly delay consummation of the
acquisition of the Common Shares contemplated by this Agreement.
[*]: THE CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT AND THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE COMMISSION. 15
(c) Such Shareholder shall have received such opinions from
counsel for the Company and from counsel to the other Shareholders as such
Shareholder may reasonably request.
(d) Thor Geir Ramleth shall have executed and delivered an
employment and non-competition agreement and assignments of proprietary
information (the "Employment Agreement") substantially in the form of the term
sheet attached as Exhibit B, and a management shareholders agreement (the
"Management Shareholders Agreement") containing the terms set forth in Exhibit
B, and Ken Davies shall have executed and delivered an employment agreement in a
form reasonably satisfactory to the Shareholders, provided, however, that the
foregoing condition may be waived by Shareholders that would, after giving
effect to the Initial Capital Contributions, hold at least [*] of the
outstanding Common Shares held by all Shareholders.
(e) iaxis shall have executed and delivered an assignment
agreement with respect to the assets described therein (the "iaxis Assignment
Agreement") substantially in the form attached hereto as Exhibit D.
(f) The Company shall have obtained directors' and officers'
insurance in amounts and on terms in form and substance reasonably satisfactory
to the Investors,
(g) Since the date of this Agreement, there shall not have
been any material adverse change, either individually or in the aggregate, with
respect to the business, financial condition, operations, assets, liabilities,
personnel or prospects of the Company and to the knowledge of the Company there
shall not have occurred any event which could reasonably be expected to result
in such a material adverse change.
(h) The Articles of Incorporation shall have been amended to
authorize a class of Non-Voting Shares.
Section 2.15 CONDITIONS TO ADDITIONAL CAPITAL CONTRIBUTIONS.
The obligations of each of the Shareholders to make any Additional Capital
Contribution are subject to the fulfillment of the following conditions:
(a) Each Shareholder shall have fully funded its Initial
Capital Contribution.
(b) The Capital Call Notice for such Additional Capital
Contribution shall have been approved by the Board of Directors in accordance
with Section 3.2(b)(x).
(c) No action shall have been taken and no statute, rule,
regulation or order shall have been enacted or entered into by any governmental
body, agency or by any court with jurisdiction over the transactions
contemplated herein with requisite authority, to prohibit or
[*]: THE CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT AND THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE COMMISSION. 16
unduly delay consummation of the acquisition of the Common Shares contemplated
by this Agreement.
ARTICLE III.
MANAGEMENT AND ADMINISTRATION
Section 3.1 BOARD OF DIRECTORS OF THE COMPANY.
(a) The Company shall be managed by a board of directors (the
"Board of Directors") consisting of eight (8) directors (each, a "Director").
Three (3) of the initial Directors shall be nominated by Carlyle, two (2) of the
initial Directors shall be nominated by Providence, one (1) of the initial
Directors shall be nominated by iaxis, and one (1) of the initial Directors
shall be nominated by Carrier1. One (1) of the initial Directors (the
"Management Director") shall be the Chief Executive Officer or, in his absence,
such other Principal Executive Officer elected by Supermajority Shareholder
Approval. Directors nominated by a Shareholder shall be referred to as such
Shareholder's "Director Designees." In the event that a Shareholder:
(i) ceases to own at least 10% of the Common Shares
outstanding at any time,
(ii) becomes a Defaulting Shareholder, or
(iii) Transfers Common Shares as provided in Section
4.8,
then, in any such case, such Shareholder shall have no right to nominate
Director Designee(s).
(b) Each of the Shareholders hereby agrees to vote in favor of
the Director Designees of each other Shareholder (provided that such Shareholder
has made timely payment of its Initial Capital Contribution) for positions on
the Board of Directors. The Director Designees of Carlyle shall initially be:
Frank Yeary, Gabe Finke and Brooke Coburn. The Director Designees of Providence
shall initially be: Glenn Creamer and Alexander Evans. The Director Designee of
iaxis shall initially be Abteen Sai. The Director Designee of Carrier1 shall be
Terje Nordahl. The Management Director shall be Thor Geir Ramleth. Each
Shareholder agrees not to take any action to remove a Director Designee other
than in accordance with (i) the following sentence, (ii) Section 3.1(a) if a
Shareholder ceases to own at least 10% of the Common Shares outstanding, (iii)
Section 4.8 or (iv) Section 3.1(a) if a Shareholder becomes a Defaulting
Shareholder. As soon as practicable after receipt of a written request from a
Shareholder to remove a Director Designee of such Shareholder, the other
Shareholders agree to take, or cause to be taken by their Director Designees,
all appropriate action to effect the removal of such Director Designee. Upon the
removal of a Director Designee pursuant to the preceding sentence or the
resignation or death of a Director Designee, the Shareholder nominating such
Director Designee shall designate a replacement Director Designee, and the other
Shareholders agree to take, or cause to be taken by their respective Director
Designees, as soon as practicable after receipt of such designation, all
appropriate action to effect the election of such replacement Director Designee.
Directors of Subsidiaries of the Company shall be appointed in a similar manner. 17
(c) Except as necessary to remove a Director in accordance
with Section 3.1(a), each Shareholder shall vote against or withhold consent
from any proposal to amend the Articles of Incorporation in order to change the
composition or character of the Board of Directors as set forth in this Section3.1.
(d) A Chairman of the Board of Directors (the "Chairman of the
Board") shall be elected by Supermajority Board Approval. The Chairman of the
Board shall preside over meetings of the Board of Directors but shall otherwise
have no additional voting or other rights in his capacity as such, including in
connection with any matters submitted to or voted upon by the Board of
Directors. In the absence of the Director then serving as Chairman of the Board
at any meeting of the Board of Directors, (A) the Chairman of the Board for such
meeting shall be the Director nominated by a majority of the Directors present
at such meeting, and (B) the Board of Directors may continue to act in
accordance with the terms of this Agreement.
(e) Each Director shall serve for a term of the duration set
forth in the Articles of Incorporation or, if earlier, until the date of death,
resignation or removal of such Director in accordance with this Agreement or the
date upon which the Shareholder that nominated such Director ceases to be a
Shareholder (or reduces its interest such that it is no longer entitled to
Director Designees and is required to remove such Director Designees as a
result); provided that, in the event that a Director dies, resigns or is removed
prior to the end of the scheduled term of such Director, the initial term for
any Director which replaces such Director on the Board of Directors shall be the
remaining scheduled term of such Director.
(f) Any Director may resign by giving notice in writing to the
Secretary of the Company at the Registered Office. The Secretary of the Company
will give written notice to all the Shareholders.
(g) Directors may participate in a meeting of the Board of
Directors by means of conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear and speak to
each other, and such participation in a meeting will constitute presence in
person at the meeting; provided that all actions approved by the Directors at
any such meeting will be reduced to writing in the form of resolutions by the
Secretary of the Company.
(h) Except as otherwise may be determined by Supermajority
Board Approval or as otherwise provided in this Agreement, the Company shall not
pay compensation to, or reimburse expenses (other than reasonable out-of-pocket
travel expenses) of, the Directors.
(i) The Board of Directors shall hold regular meetings not
less than quarterly at such time and place as shall be determined by the Board
of Directors. Special meetings of the Board of Directors may be called at any
time by any Director. Except as otherwise determined by the Board of Directors,
all special and regular meetings of the Board of Directors shall be held at the
principal office of the Company. No notice shall be required with respect to any
regular meeting of the Board of Directors. Prior notice of any special meeting
shall be given by the Company at least five (5) Business Days before the date of
such meeting. Notice of any meeting need not be given to any Director who shall
submit, either before or after the meeting, a signed 18
waiver of notice. Attendance of a Director at a meeting shall constitute a
waiver of notice of such meeting, except when the Director attends the meeting
for the express purpose of objecting at the beginning thereof to the transaction
of any business because the meeting is not properly called or convened. Notice
of any adjourned meeting, including the place, date and time of the new meeting,
shall be given to all Directors not present at the time of the adjournment, as
well as to the other Directors.
(j) To the extent practicable, a reasonably detailed agenda
shall be supplied to each Director reasonably in advance of each meeting of the
Board of Directors, together with appropriate documentation with respect to
agenda items calling for action by the Board of Directors, to inform adequately
the Directors regarding matters to come before the Board of Directors. Any
Director wishing to place a matter on the agenda for any meeting of the Board of
Directors may do so by communicating with the Chairman of the Board sufficiently
in advance of the meeting so as to permit timely dissemination to all Directors
of information with respect to the agenda items. Each Shareholder (treating
Carlyle for this purpose as a single Shareholder) shall also have the right to
designate up to two (2) persons who shall have observer status (but no vote) at
meetings of the Board of Directors, and such observers shall be permitted to
attend all regular, special or other meeting of the Company's Board of Directors
and of the board of directors of the Subsidiaries of the Company and in this
respect shall, upon prior reasonable request, be given copies of all notices,
minutes, consents and other materials that the Company or such Subsidiary
provides to its directors. Each observer may participate in any and all
discussions of matters brought to the Board of Directors of the Company and its
subsidiaries. The Company shall and shall cause each of its subsidiaries to
allow observers to attend such meetings by means of conference call or other
communications equipment utilized by any other person participating in suchmeetings.
Section 3.2 REQUIREMENTS FOR BOARD ACTION.
(a) Except as provided in Section 3.2(b) or mandatorily
required by the laws of Luxembourg, all actions taken by the Board of Directors
shall require the unanimous written consent of Directors (excluding Directors
appointed by any Shareholder to which the final sentence of Section 3.1(a)
applies) or the approval of a majority of all Directors by action taken at a
meeting which has been duly called and at which a quorum was present.
(b) In addition to such other actions requiring Supermajority
Board Approval as specified elsewhere in this Agreement, the following actions
shall require the unanimous written consent of all Directors or the approval of
a majority of the Directors present and entitled to vote on such actions at a
meeting which has been duly called and at which a quorum was present, which
majority shall include, subject to Section 7.3(d), at least one (1) Director
Designee of each of at least two (2) Shareholders holding Common Shares, in the
aggregate, equal to or greater than 55% of the outstanding Common Shares at such
time held by all Shareholders ("Supermajority Board Approval"), provid
