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EXECUTION COPY
CONFIRMATION FOR EQUITY SWAP
TRANSACTION BETWEEN SALOMON BROTHERS HOLDING COMPANY INC,
VERIO, LLC AND VERIO INC.
The purpose of this confirmation, dated as of March 17, 2000, is to
set forth certain terms and conditions for the equity swap transaction that
Verio, LLC ("Counterparty") and Verio Inc. (Verio") entered into with Salomon
Brothers Holding Company Inc ("Salomon") on March 17, 2000 (the "Trade Date")
(the "Transaction"). This confirmation constitute a "Confirmation" as referred
to in the Agreement specified below.
This Confirmation evidence a complete binding agreement between you
and us as to the terms of the Transaction to which this Confirmation relates. In
the event you and us execute the ISDA Master Agreement (Multicurrency-Cross
Border) (the "ISDA Agreement") in the form published by the International Swaps
and Derivatives Association, Inc. ("ISDA") with such modifications as you and we
shall in good faith agree (as modified, the "Agreement"), this Confirmation will
supplement, form a part of, and be subject to the Agreement. Prior to execution
of the Agreement, this Confirmation, together with all other documents referring
to the ISDA Agreement (each a "Confirmation") confirming transactions (each a
"Transaction") entered into between you and us (notwithstanding anything to the
contrary in a Confirmation), shall supplement, form a part of, and be subject to
an agreement in the form of the ISDA Agreement as if we had executed an
agreement in such form (without any Schedule but modified by the provisions in
Section 12 herein) on the Trade Date.
The ISDA Agreement and this Confirmation will be governed by the laws
of the State of New York.
1. In the event of any inconsistency between this Confirmation, on the
one hand, and the ISDA Agreement, or when executed, the Agreement, on the other
hand, this Confirmation will control for the purpose of the Transaction. With
respect to the Transaction, capitalized terms used herein that are not otherwise
defined herein shall have the meaning assigned to them, in the ISDA Agreement
or, when executed, the Agreement.
2. Each party will make each payment specified in this Confirmation as
being payable by it, not later than the due date for value on that date in the
place of the account specified below or otherwise specified in writing, in
freely transferable funds and in a manner customary for payments in the required
currency. This Confirmation and the Agreement, shall constitute the written
agreement between Counterparty and Salomon with respect to this Transaction.
3. The Transaction to which this Confirmation relates is an equity
swap transaction, the terms of which include:
4. GENERAL DEFINITIONS:
Business Day: Means a day (other than a Saturday or a Sunday) on which
commercial banks generally are open for business in New
York City.
Carrying Rate: Means on any day with respect to the Notional Amount
(i) until but not including the Initial Reset Date LIBOR as
determined as of the first
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day of the initial period plus the Carrying Spread and (ii)
during each period thereafter, LIBOR determined as of the
beginning of such period plus the Carrying Spread.
Common Shares: means shares of Verio Inc.'s common stock.
Designated
Salomon Affiliate: means Salomon or one or more broker-dealer affiliates of
Salomon, wholly-owned, directly or indirectly, by Citigroup
(or any successor thereto) as designated by Salomon (or to
the extent that Salomon does not designate such an
affiliate), the Designated Salomon Affiliate shall mean
Salomon).
LIBOR: means the rate per annum for U.S. dollar LIBOR (determined
on the basis of the actual number of days elapsed over a
360-day year) for the appropriate reference period, as
determined by Salomon, appearing (except as provided in the
following sentence) on Telerate Page 3750 or any
replacement of that page, two London business days prior to
the start of a relevant period, provided that if the rate
cannot be so determined, it shall be determined as if
USD-LIBOR-Reference Banks (as defined in the 1991 ISDA
Definitions) had been specified for purposes of determining
the rate. If the relevant period is one week or less, the
reference period shall be one week, and the rate shall be
as specified on Reuters Screen LIBO Page. LIBOR shall
otherwise be determined by linear interpolation if the
relevant period does not correspond exactly to a period for
which rates appear on Telerate Page 3750 or its
replacement. Except for the period ending on the Maturity
Date or unless the parties otherwise agree, the relevant
period for determining LIBOR shall be one month.
Principal Market: Means NASDAQ or the principal national securities
exchange or quotation system on which the Common Shares may
be listed or otherwise included in the future should they
cease to be quoted on such exchange or quotation system.
All references to closing prices or sales prices for the
Common Shares shall be to such prices on the Principal
Market.
Trading Day: means a day on which the Principal Market is open for
trading.
5. GENERAL TERMS OF THE TRANSACTION; FEES:
(a) General Terms of the Transaction.
Trade Date: March 17, 2000
Number of Common Shares: 640,000
Notional Amount: $33,600,000
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Initial Reset Date: April 17, 2000 (or, if such date
is not a Trading Day, the next
Trading Day).
Optional Unwind Date: April 17, 2000 (or, if such date is
not a Trading Day, the next Trading
Day).
Maturity Date: December 18, 2000 (or, if such date
is not a Trading Day, the next
Trading Day).
Carrying Spread: 2.00% per annum.
Structuring Fee Amount: $500,000
Initial Price Per Share $52.50
(b) Outstanding Aggregate Amount. The term "Outstanding Aggregate Amount"
means, as of any date, a dollar amount equal to the original Notional Amount
minus the sum of the Daily Delivery Amounts for each related Delivery Date (each
as defined in paragraph 6) occurring prior to such date.
(c) Structuring Fees. By the third Trading Day following the Trade Date,
Counterparty shall pay to Salomon Smith Barney Inc. a fee equal to the
Structuring Fee Amount, specified above in Section 5(a).
6. UNWIND PERIOD SETTLEMENT OBLIGATIONS:
(a) Counterparty Unwind Period Settlement Option. Counterparty shall be
entitled to elect by timely written notice to Salomon whether settlement of the
parties' respective obligations for a particular Unwind Period shall be by (i)
"Net Share Settlement" or (ii) "Net Cash Settlement" (or if Counterparty fails
to so elect, it shall be deemed to have elected Net Share Settlement).
Counterparty shall notify Salomon of its election of Net Share Settlement or Net
Cash Settlement not less than twenty Trading Days prior to the commencement of
the relevant Unwind Period. The methods for determining the beginning and length
of the "Unwind Period" for a "Maturity Termination" as well as for a "Trigger
Event," an "Optional Unwind" and a "Partial Termination" are set forth in
paragraph 7.
(b) Net Share Settlement. If Counterparty elects Net Share Settlement with
respect to an Unwind Period, on each Delivery Date in such Unwind Period, (i)
the Designated Salomon Affiliate shall deliver to Counterparty a number of
Common Shares equal to the Salomon Share Amount for such Delivery Date against
payment by Counterparty to the Designated Salomon Affiliate of cash equal to the
Forward Amount for such Delivery Date and (ii) Counterparty shall deliver to the
Designated Salomon Affiliate a number of Common Shares equal to the Forward
Amount for such Delivery Date divided by the Determination Price for such
Delivery Date (the "Counterparty Share Amount") against payment by the
Designated Salomon Affiliate to Counterparty of cash equal to the Forward Amount
for such Delivery Date (the Salomon Share Amount minus the Counterparty Share
Amount is referred to herein as the "Net Share Amount").
(c) Net Cash Settlement. If Counterparty elects Net Cash Settlement with
respect to an Unwind Period, on each Delivery Date in such Unwind Period, (i) if
the Net Share Amount is positive, the Designated Salomon Affiliate shall pay to
Counterparty an amount equal to the Net Share Amount
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multiplied by the Determination Price for such Delivery Date and (ii) if the Net
Share Amount is negative, Counterparty shall pay to the Designated Salomon
Affiliate an amount equal to the absolute value of the Net Share Amount
multiplied by the Determination Price for such Delivery Date.
WHERE:
"Salomon Share Amount" means, for any Delivery Date, the Daily Delivery
Amount for such Delivery Date divided by the Initial Price Per Share.
"Daily Delivery Amount" means, for any Delivery Date, the portion of the
Outstanding Aggregate Amount subject to the related Unwind Period divided
by the number of Unwind Period Days for such Unwind Period (each
determined in accordance with paragraph 7) or such other amount as agreed
to by the parties or by Salomon if an event as described in Paragraph 6(f)
("Salomon Unwind Period Settlement Option") has occurred.
"Forward Amount" means, for any Delivery Date, a dollar amount equal to
(i) the Daily Delivery Amount for such Delivery Date plus (ii) Carrying
Costs for such Delivery Date minus (iii) Actual Dividends for such Daily
Delivery Amount.
"Delivery Date" means, in respect of each Unwind Period Day, the third
Trading Day after such Unwind Period Day.
"Unwind Period Day" means each Trading Day in an Unwind Period.
"Carrying Costs" means, for any Delivery Date and subject to paragraph
9(e) ("Funding Cost Adjustment"), an amount equal to interest on the Daily
Delivery Amount for such Delivery Date at the applicable Carrying Rate,
compounded periodically each time LIBOR is reset on an actual/360 basis,
for the period from and including the third Trading Day after the Trade
Date to but excluding such Delivery Date.
"Actual Dividends" means, for any Delivery Date, the amount of all
dividends (other than dividends resulting in an adjustment pursuant to
paragraph 8(c) ("Adjustment Events") or transferred to Counterparty
pursuant to paragraph 9(f) ("Certain Dividends")) paid before the day on
which the Unwind Period commences to which a holder of a number of Common
Shares equal to the applicable Daily Delivery Amount (or portion thereof)
outstanding on the applicable ex-dividend date divided by the Initial
Price Per Share would be entitled.
"Determination Price" means for any Delivery Date, the weighted average
price at which Salomon or the Designated Salomon Affiliate sells Common
Shares (net of Fees) on the relevant Unwind Period Day for net proceeds
equal to the Forward Amount for such Delivery Date.
"Fees" means the following:
(i) if the Common Shares are sold in an Underwritten Offering, 3% of the
weighted average offering price;
(ii) if Common Shares are sold pursuant to a Block Sale, 1.5% of the
weighted average price at which the Designated Salomon Affiliate
sells the Common Shares; or
(iii) otherwise, $0.03125.
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(e) Final Dividend Amount. In connection with each Unwind Period,
Salomon shall transfer to Counterparty, promptly after the related dividend
payment date and in the same form in which the dividend was made, the amount of
all dividends (other than dividends resulting in an adjustment pursuant to
paragraph 8(c) ("Adjustment Events")) with an ex-dividend date before the last
Trading Day in such Unwind Period and a dividend payment date on or after the
first Trading Day in such Unwind Period to which a holder of a number of Common
Shares equal to the Remaining Share Amount on the applicable ex-dividend date
would be entitled.
WHERE:
"Remaining Share Amount" means, for any ex-dividend date, (i) the portion
of the Outstanding Aggregate Amount that is the subject of the Unwind
Period (determined in accordance with paragraph 7) outstanding on such
ex-dividend date divided by the Initial Price Per Share minus (ii) the
Salomon Share Amount for each Delivery Date with a related Unwind Period
Day occurring on or before such ex-dividend date.
(f) Salomon Unwind Period Settlement Option. If Counterparty fails to
comply with or perform any agreement or obligation contained in paragraph 10(c)
("Securities Laws and Registration--Registration Statement") or paragraph 10(e)
("Securities Laws and Registration--Due Diligence") or Counterparty's
representations contained in paragraph 10(d) ("Securities Laws and
Registration--Representations") are incorrect or misleading in any material
respect, Salomon and its affiliates shall be entitled (in addition to any other
remedies under the Agreement or otherwise) in connection with a Delivery Date to
sell Common Shares used to hedge this Transaction or Common Shares received from
Counterparty hereunder (including pursuant to this clause (f)) on a private
placement basis and, if Common Shares are so sold, Counterparty shall deliver to
the Designated Salomon Affiliate a number of Common Shares such that the
aggregate actual net proceeds of the Common Shares so sold is equal to the
Forward Amount for such Delivery Date. Counterparty shall deliver promptly upon
request the number of Common Shares Salomon reasonably determines is adequate to
realize actual net proceeds in such amount, and Counterparty's obligation to
deliver Common Shares under this clause (f) shall be a continuing one until
Salomon or its affiliates have received actual net proceeds equal to the Forward
Amount for such Delivery Date. Counterparty agrees that each of its filings
under the Securities Act of 1933, as amended (the "Securities Act"), the
Securities Exchange Act of 1934, as amended (the "Exchange Act") or other
applicable securities laws that are required to be filed have been filed, as of
each day on which Salomon or its affiliates sell Common Shares pursuant to this
clause (f) will have been filed and that such filing, as supplemented by any
information provided by Counterparty to Salomon, will contain no misstatement of
material fact or omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading. Salomon and its
affiliates shall be entitled to disclose any material non-public information
regarding Counterparty in their possession to purchasers in such a private
placement.
7. UNWIND PERIODS:
(a) Maturity Termination. By the close of business in New York on the
Maturity Date, Salomon shall give notice of the number of Trading Days in the
Unwind Period commencing on the Maturity Date and of the Manner of Sale. An
Unwind Period will commence on the Maturity Date with respect to the entire
Outstanding Aggregate Amount.
(b) Optional Unwind. Counterparty (i) may notify Salomon of its desire
to effect a settlement with respect to any portion (prior to October 1, 2000) or
all of the Outstanding Aggregate
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Amount (at any time) over a number of Trading Days, from 1 to 45 consecutive
Trading Days inclusive, as Counterparty may propose (an "Optional Unwind"), (ii)
propose the Manner of Sale and (iii) shall include in such notice an irrevocable
indication of its election pursuant to paragraph 6(a) ("Counterparty Unwind
Period Settlement Option"). Salomon shall not unreasonably reject the proposed
portion of such Outstanding Aggregate Amount, Unwind Period length, commencement
date of the Unwind Period relating to such Optional Unwind or Manner of Sale;
provided that, unless otherwise agreed, the Unwind Period shall commence at
least twenty Trading Days after Counterparty gives notice of its desire to
effect an Optional Unwind. If any such term is not reasonably acceptable to
Salomon, the parties shall negotiate in good faith to modify the proposed term,
provided that if the parties cannot agree regarding the Unwind Period length,
the number of Trading Days in the Unwind Period or the Manner of Sale, then each
disputed item shall be determined by Salomon; provided that Salomon shall not
elect an Underwritten Offering unless it reasonably determines that Block Sales
or Gradual Market Distribution is not feasible. If the first Trading Day in the
Unwind Period is before the Optional Unwind Date, Counterparty shall pay Salomon
by the second Business Day following such Trading Day an amount equal to the
present value (calculated by Salomon using a discount rate equal to LIBOR minus
0.125% per annum) of the Carrying Spread that would have been earned on the
portion of the Outstanding Aggregate Amount subject to such Optional Unwind had
it remained outstanding through such date.
WHERE
"Manner of Sale" means:
(i) an underwritten fixed price of "at the market" public offering of
the Common Shares, with respect to which Salomon shall be entitled
to designate Salomon Smith Barney Inc. ("SSB") or one or more
affiliates of Salomon as the sole book running manager (an
"Underwritten Offering");
(ii) one or more privately negotiated sales involving at least a block of
the Common Shares, with respect to which Salomon shall be entitled
to designate SSB or one or more affiliates of Salomon as the sole
agent, executing dealer or other intermediary ("Block Sale"); or
(iii) an offering of the Common Shares into the existing trading market
for outstanding shares of the same class at other than a fixed price
on the Principal Market or to or through a market maker or broker or
dealer, with respect to which Salomon shall be entitled to designate
SSB or one or more affiliates of Salomon as the sole agent,
executing dealer or other intermediary (a "Gradual Market
Distribution").
(c) Trigger Event. A "Trigger Event" shall occur if Counterparty does
not take one of the actions described in clauses (a) and (b) of Section 5.01 of
the Pledge Agreement dated as of March 17, 2000 between Salomon, Counterparty
and Verio (the "Pledge Agreement") within the required period under Section 5.01
of the Pledge Agreement after the occurrence of an event described in Section
5.01 of the Pledge Agreement or if Counterparty elects pursuant to clause (b) of
Section 5.01 of the Pledge Agreement to effect an Optional Unwind that would
result in the Outstanding Aggregate Amount being 50% or less of the than the
initial Notional Amount. Upon the occurrence and continuation of a Trigger
Event, Salomon shall be entitled to commence an Unwind Period with respect to
the entire Outstanding Aggregate Amount and designate the Manner of Sale;
provided that Salomon shall not elect an Underwritten Offering unless it
reasonably determines that Block Sales or Gradual Market Distribution is not
feasible. Such Unwind Period shall commence on a Trading Day and end on and
include a Trading
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Day, each as designated by Salomon. At the option of Salomon, any Unwind Period
that had commenced prior to the start of the Unwind Period for such Trigger
Event and not terminated shall terminate on the Trading Day prior to the start
of the Unwind Period for such Trigger Event.
(d) Suspension of Unwind Period. Counterparty may, by notice to Salomon
by 8:30 a.m. New York time on any Trading Day, suspend an Unwind Period for up
to 5 days in the aggregate based on the advice of counsel respecting applicable
federal securities laws that such Unwind Period should be suspended. As promptly
as practicable after such suspension, Salomon will adjust any term of this
Transaction relating to an Unwind Period, Maturity Date or other Trading Day or
otherwise to the extent appropriate to effectuate the fundamental economic terms
of this Transaction.
(e) Unwind Periods in Effect. For purposes of "Optional Unwind" and
"Maturity Termination," and unless Salomon (in the case of "Trigger Event")
elects to terminate an Unwind Period in effect in accordance with the last
sentence of such paragraphs, any Daily Delivery Amount for which an Unwind
Period is in effect shall be deemed not outstanding for purposes of determining
the Outstanding Aggregate Amount to be subject to such an Unwind Period.
8. DISRUPTIONS AND ADJUSTMENTS:
(a) Market Disruption Events. If on any day that would otherwise be a
Trading Day Salomon determines that there has been a material suspension or
material limitation of trading in the Common Shares on the Principal Market, or
that trading in securities in general on the Principal Market has been
materially suspended or materially limited (a "Market Disruption Event"), then
that day shall be deemed not to be a Trading Day (in whole or in part), and the
next Trading Day shall be postponed to the first succeeding Trading Day on
which, in Salomon's determination, there is no Market Disruption Event. As
promptly as practicable after the occurrence of a Market Disruption Event,
Salomon will adjust any term of this Transaction relating to an Unwind Period,
Maturity Date or other Trading Day or otherwise to the extent appropriate to
effectuate the fundamental economic terms of this Transaction.
(b) Disruption of Settlement. If on any date there occurs an event
beyond the control of the parties as a result of which The Depository Trust
Company or any successor depository cannot effect a transfer of the Common
Shares pursuant to this Transaction, the party obligated to deliver the Common
Shares shall use its best efforts to cause the Common Shares to be delivered as
promptly as practicable to the other party in any commercially reasonable
manner. Each party agrees that if delivery of the Common Shares on any Delivery
Date is subject to any restriction imposed by a regulatory authority, the
parties will negotiate in good faith a procedure to effect settlement of such
Common Shares in a manner that complies with any relevant rules of such
regulatory authority.
(c) Adjustment Events. In the event of (i) a subdivision, consolidation
or reclassification of the Common Shares into a different number or kind of
shares of stock of Counterparty, (ii) a dividend on the Common Shares paid in
Common Shares, (iii) a merger or other transaction whereby the outstanding
Common Shares are exchanged for another class of securities, or securities of
another issuer, or (iv) any other similar event (an "Adjustment Event"), then in
each case, Salomon shall make appropriate adjustments to the terms of this
Transaction, and/or amend the definition of Common Shares, such that the
fundamental economic terms of this Transaction are equivalent to those in effect
immediately prior to the Adjustment Event.
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9. MISCELLANEOUS:
(a) Early Termination. The parties agree that for purposes of Section
6(e) of the Agreement, Second Method and Loss will apply to this Transaction.
The parties further agree that for purposes of calculating Salomon's Loss in
connection with this Transaction, Salomon and its affiliates shall dispose of
any Common Shares used to hedge this Transaction over a period consisting of (i)
in the case of an Early Termination Date resulting from an Event of Default, any
number of Trading Days as Salomon may determine and (ii) in the case of an Early
Termination Date resulting from a Termination Event, any number of Trading Days
as Salomon may determine and to which Counterparty shall not unreasonably
object.
(b) Netting of Obligations; Rounding. The respective Common Share
delivery and cash payment obligations on any day of Counterparty, on the one
hand, and Salomon and the Designated Salomon Affiliate, on the other hand, shall
be netted. The net Common Shares delivery obligation of either party shall be
rounded down to the nearest number of whole shares, such that neither party
shall be required to deliver any fractional shares.
(c) Agreement regarding Common Shares. Each party agrees with the other
that, in respect of any Common Shares delivered to the other party, (i) in the
case of Salomon, the Designated Salomon Affiliate will, at the time of delivery,
be the legal and beneficial owner thereof, free of liens and other encumbrances,
and (ii) in the case of Counterparty, such shares shall be, upon such delivery,
duly and validly authorized, issued and outstanding, fully paid and
nonassessable, and subject to no adverse claims of any other party.
(d) Default Interest. If a party defaults in the performance of any
obligation required to be settled by delivery, it will indemnify the other party
on demand, in accordance with the practice of the Principal Market for the
Common Shares, for any costs, losses or expenses (including the costs of
borrowing Common Shares, if applicable) resulting from such default. A
certificate signed by the deliveree setting out such costs, losses or expenses
in reasonable detail shall be conclusive evidence that they have been incurred,
absent manifest error.
(e) Funding Cost Adjustment. If for any reason the relevant interest
period does not correspond with the reference period used for purposes of
calculating the Carrying Costs, Salomon shall adjust the terms of this
Transaction appropriately to reflect any additional funding costs incurred, or
any reduction in funding costs received, by Salomon.
(f) Certain Dividends. Salomon shall transfer to Counterparty, promptly
after the related dividend payment date and in the same form in which the
dividend was made, the amount of all dividends (other than cash dividends and
dividends resulting in an adjustment pursuant to paragraph 8(c) ("Adjustment
Events")) to which a holder of a number of Common Shares equal to the Dividend
Share Amount on the applicable ex-dividend date would be entitled.
WHERE:
"Dividend Share Amount" means, for any ex-dividend date, a number of
Common Shares equal to (i) the portion of the Outstanding Aggregate Amount
outstanding on such ex-dividend date that is not, and has not been, the
subject of an Unwind Period (determined in accordance with paragraph 7)
when such dividend is paid divided by (ii) the Initial Price Per Share.
(g) Increased Costs. If Salomon determines that from the Trade Date of
the relevant Transaction (i) due to either (x) the introduction of or any change
in or in the interpretation of any law or
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regulation or (y) the compliance with any guideline or request from any central
bank or other governmental authority (whether or not having the force of law),
there shall be any increase in the cost to Salomon or its affiliates of engaging
in this Transaction or related transactions, or (ii) compliance with any law or
regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) increases or
would increase the amount of any capital required or expected to be maintained
by Salomon or any affiliate of Salomon as a direct or indirect consequence of
this Transaction ("Increased Costs"), then Counterparty shall from time to time
until this Transaction is no longer outstanding (whether through Optional Unwind
or otherwise), promptly upon demand by Salomon, convey to Salomon additional
amounts sufficient to compensate Salomon for such Increased Costs as are
incurred. Such additional amounts may, at Counterparty's option, be paid in U.S.
dollars or be satisfied by delivery of a number of Common Shares having an
equivalent value; provided, however, that Counterparty shall be entitled to
satisfy such obligation by delivery of Common Shares only if it provides twenty
Trading Days' notice and complies with its obligations and makes the
representations set forth in paragraph 10 ("Securities Laws and Registration")
as if such delivery were in connection with a Delivery Date to which Net Share
Settlement applied for purposes of paragraph 6(a) ("Counterparty Unwind Period
Settlement Option"). A certificate as to the amount of Increased Costs,
submitted to Counterparty by Salomon, shall be conclusive and binding for all
purposes absent manifest error.
(h) Consent to Recording. Each party (i) consents to the recording of
the telephone conversations of trading and marketing personnel of the parties
and their affiliates in connection with this Transaction and (ii) agrees to
obtain any necessary consent of, and give notice of such recording to, such
personnel of it and its affiliates.
(i) Severability; Illegality. If compliance by either party with any
provision of this Transaction would be unenforceable or illegal, (i) the parties
shall negotiate in good faith to resolve such unenforceability or illegality in
a manner that preserves the economic benefits of the transactions contemplated
hereby and (ii) the other provisions of this Transaction shall not be
invalidated, but shall remain in full force and effect.
(j) Calculation Agent. Salomon shall make all calculations, adjustments
and determinations required pursuant to this Transaction. Salomon's good faith
calculations, adjustments and determinations shall be made in good faith and in
a commercially reasonable manner.
(k) Cash Payments. All references herein to "dollars" or "$" are to U.S.
dollars. All amounts payable in cash shall be payable in dollars in immediately
available funds.
(l) Waiver of Trial by Jury. Each of Counterparty, VERIO and Salomon
hereby irrevocably waives (on its own behalf and, to the extent permitted by
applicable law, on behalf of its stockholders) all right to trial by jury in any
action, proceeding or counterclaim (whether based on contract, tort or
otherwise) arising out of or relating to this Transaction or the actions of
Salomon or its affiliates in the negotiation, performance or enforcement hereof.
(m) Financial Statements. Each of Counterparty and Verio will provide
to Salomon promptly upon request copies of its most recent annual report
containing audited or certified financial statements.
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(n) Delivery of Opinion. On the date hereof, Counterparty will provide to
Salomon an opinion of counsel regarding this Master Confirmation and the
Transaction contemplated hereby in form and substance reasonably satisfactory to
Salomon.
(o) Piggyback Rights. Without the prior consent of Salomon, neither
Counterparty nor Verio shall in a public offering sell any Common Shares or
securities convertible into or exchangeable for Common Shares (other than
offerings pursuant to a Registration Statement on Form 5-8 or an offering of
convertible preferred stock), unless Counterparty elects an Optional Unwind with
respect to a number of Common Shares equal to the greater of (i) 50% of the
number of Common Shares to be sold in such offering and (ii) 50% of the then
outstanding Number of Common Shares in connection with the Transaction and
Salomon or the Designated Salomon Affiliate participates in such offering as a
selling shareholder.
(p) Limitations on Additional Forward Stock Purchase Agreements. Until
the expiration of the final Unwind Period, Verio and any of its Affiliates shall
not enter into Forward Stock Purchase Agreements other than this Confirmation.
WHERE
"Forward Stock Purchase Agreement" means with respect to Verio and any of
its Affiliates only, any forward stock purchase agreement, swap agreement
or similar agreement entered into by Verio and any of its Affiliates and
one or more parties in the future relating to the delayed sale by such
counterparties of Common Shares.
(q) Limitations. Notwithstanding anything to the contrary contained
herein, each and every representation, warranty and covenant herein is being
made by Counterparty or Verio solely on a several basis and nothing herein shall
be interpreted to impute to either Counterparty of Verio any obligation or
guaranty by either such entity on behalf of the other.
10. SECURITIES LAWS AND REGISTRATION:
(a) Registration Statement. Verio agrees to make available to Salomon
and its affiliates an effective registration statement (the "Registration
Statement") pursuant to Rule 415 under the Securities Act and one or more
prospectuses as necessary to allow Salomon and its affiliates to comply with the
applicable prospectus delivery requirements (the "Prospectus") for the resale by
Salomon and its affiliates of such number of Common Shares as Salomon shall
reasonably specify (or, if greater, the number of shares that Counterparty shall
reasonably specify), such Registration Statement to be effective and Prospectus
to be current for each day in the Unwind Period and for at least twenty Trading
Days after the Unwind Period (excluding, for the avoidance of doubt, days on
which the Unwind Period has been suspended pursuant to paragraph 7(f)
("Suspension of Unwind Period")). It is understood that the Registration
Statement and Prospectus will cover a number of Common Shares equal to all
Common Shares acquired by Salomon or its affiliates for hedging purposes plus
all Common Shares delivered by Counterparty pursuant to this Transaction.
Salomon shall provide, by a reasonable time in advance, such information
regarding Salomon and its affiliates as Verio, upon advice from counsel,
reasonably determines is required to be included in the Prospectuses. Verio
shall pay the applicable registration fee and all costs in connection with the
preparation of the Registration Statement and the Prospectus including, without
limitation, Salomon's legal expenses in connection with the preparation of the
Registration Statement and the Prospectus and the cost of printing the
Prospectus. Verio agrees to take all required action so that all Common Shares
covered by the Registration Statement are eligible for sale
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and otherwise to take such actions reasonably requested by Salomon to facilitate
the disposition of the Common Shares.
(b) Representations. Verio represents (A) on the Trade Date of this
Transaction and (B) on each day described in paragraph (c) above in connection
with an Unwind Period, that each of its filings under the Securities Act, the
Exchange Act or other applicable securities laws that are required to be filed
have been filed and that, as of the respective dates thereof and as of the date
of this representation, there is no misstatement of material fact contained
therein or omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading.
(c) Due Diligence. Verio agrees to provide to Salomon and its affiliates
by the Trading Day before the commencement of the relevant Unwind Period
opinions of counsel, comfort letters, officers' certificates and representations
and such other documents as may be reasonably requested by Salomon. Verio also
agrees that beginning (x) no later than such twentieth Trading Day before the
commencement of the relevant Unwind Period and (y) at any time after 5 days'
notice, Salomon and its affiliates shall be entitled to perform such diligence
as Salomon may reasonably request. In addition, from time to time, Salomon shall
be entitled to attend, with notice, Verio's meetings with equity analysts and
make reasonable inquiries of appropriate officers of Verio.
(d) Additional Termination Event. The failure by Verio to comply with
its obligations under paragraphs (a) and (c) above, if such failure is not
remedied on or before the third Business Day after notice of such failure is
given to Verio, shall constitute an Additional Termination Event with
Counterparty as the sole Affected Party and this Transaction as the sole
Affected Transaction.
11. INDEMNIFICATION AND CONTRIBUTION:
(a) Indemnification by Verio. Verio agrees to indemnify and hold
harmless Salomon, its affiliates, their respective directors, officers,
employees, agents, advisors, brokers and representatives and each person who
controls Salomon or its affiliates within the meaning of either the Securities
Act or the Exchange Act against, and Verio agrees that no indemnified party
shall have any liability to Counterparty or Verio or any of their affiliates,
officers, directors, or employees for, any liability (whether direct or
indirect, in contract, tort or otherwise) for, any losses, claims, damages,
liabilities or expenses, joint or several, to which they or any of them may
become subject under the Securities Act, the Exchange Act or other federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages, liabilities or expenses (or actions, claims,
investigations or proceedings in respect thereof, whether commenced or
threatened) arise out of or relate to (x) any misstatement or alleged
misstatement of a material fact contained in the Registration Statement or the
Prospectus (or in any offering materials or supplemental information, if any,
provided by or on behalf of Counterparty or Verio in connection with any sales
on a private placement basis pursuant to paragraph 6(f) ("Salomon Unwind Period
Settlement Option"), or in any amendment thereof or supplement thereto, or
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading) or
(y) actions or failures to act by an indemnified party with the consent of or in
reliance on Verio, or (z) otherwise arise out of or relate to any breach or
violation by Verio of, or misrepresentation by Verio under, this Confirmation or
allegation by a third party that Verio acted or failed to act in a manner that,
as alleged, would have constituted such a breach, violation or
misrepresentation. Verio agrees, promptly on demand, to reimburse each such
indemnified party for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability, expense or action. Notwithstanding anything to the contrary in the
foregoing, Verio will not be liable in any such case to the extent that any such
loss, claim, damage,
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liability or expense arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made in reliance upon
and in conformity with written information furnished to Verio by or on behalf of
Salomon specifically for use in connection with the preparation of the
Prospectus or any supplement thereto. This indemnity agreement will be in
addition to any liability which Counterparty or Verio may otherwise have.
(b) Indemnification by Salomon. Salomon agrees to indemnify and hold
harmless Verio, its affiliates, their respective directors, officers, employees
and agents, and each person who controls Counterparty within the meaning of
either the Securities Act or the Exchange Act, to the same extent as the
foregoing indemnity from Verio to Salomon, but only with reference to written
information furnished to Counterparty by or on behalf of Salomon specifically
for use in the preparation of the Prospectus or any supplement thereto. This
indemnity agreement will be in addition to any liability which Salomon may
otherwise have.
(c) Legal Proceedings. Promptly after receipt by an indemnified party
under paragraphs (a) or (b) above of notice of the commencement of any action,
such indemnified party will, if a claim in respect thereof is to be made against
the indemnifying party under paragraphs (a) or (b) above, notify the
indemnifying party in writing of the commencement thereof; but the omission so
to notify the indemnifying party will not relieve the indemnifying party from
any liability which it may have to any indemnified party otherwise than under
paragraphs (a) or (b) above or, in respect of paragraphs (a) or (b) above, to
the extent that the indemnifying party was not materially prejudiced by such
failure to notify. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and to the extent
that it may elect by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party to assume the
defense thereof, with counsel satisfactory to such indemnified party; provided
that if the defendants in any such action include both the indemnified party and
the indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to represent such indemnified party or parties. Upon
receipt of notice from the indemnifying party to such indemnified party of its
election so to assume the defense of such action and approval by the indemnified
party of counsel, the indemnifying party will not be liable to such indemnified
party under paragraphs (a) or (b) above for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (A) the indemnified party shall have employed separate counsel in
accordance with the proviso to the next preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel (in addition to local counsel), representing the
indemnified parties who are parties to such action), (B) the indemnifying party
shall not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
commencement of the action or (C) the indemnifying party has authorized the
employment of counsel for the indemnified party at the expense of the
indemnifying party; and except that, if clause (A) or (C) is applicable, such
liability shall be only in respect of the counsel referred to in such clause (A)
or (C). The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there shall be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by
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such indemnified party, unless such settlement includes an unconditional release
of such indemnified party from all liability arising from such proceeding.
(d) Contribution. If the indemnification provided for above is
unavailable to an indemnified party in respect of any losses, claims, damages,
expenses or liabilities referred to herein, then each applicable indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages, expenses or liabilities, in such proportion as is appropriate
to reflect not only the relative fault of Verio on the one hand and of Salomon
on the other in connection with the statements or omissions which resulted in
such losses, claims, damages, expenses or liabilities, but also any other
relevant equitable considerations. The relative fault of Verio on the one hand
and Salomon on the other shall be determined by reference to, among other
things, whether the misstatement or alleged misstatement of a material fact or
the omission or alleged omission to state a material fact relates to information
supplied by Verio or by Salomon and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The amount paid or payable by a party as a result of the losses,
claims, damages and liabilities referred to above shall be deemed to include,
subject to the limitations set forth above, any legal or other fees or expenses
reasonably incurred by such party in connection with investigating or defending
any action or claim. The parties agree that it would not be just and equitable
if contribution pursuant to this paragraph (d) were determined by method of
allocation which does not take account of the equitable considerations referred
to in this paragraph. 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
misrepresentation.
12. MODIFICATIONS TO THE AGREEMENT:
Prior to execution of the Master Agreement and Schedule the
provisions in this Section 12 shall apply. Upon execution of the Master
Agreement and Schedule by the parties the provisions in this Section 12 shall be
deemed deleted.
(a) Termination Provisions:
(i) The "Cross-Default" provisions of Section 5(a)(vi) of the Agreement
will apply to Salomon and Counterparty.
WHERE
"Threshold Amount" means (i) with respect to Salomon three percent (3%) of
Stockholder's Equity of Salomon, and (ii) with respect to Counterparty USD
1,000,000. For purposes of (i) above, Stockholder's Equity shall be determined
by reference to the relevant party's most recent consolidated (quarterly, in the
case of a U.S. incorporated party) balance sheet and shall include, in the case
of a U.S. incorporated party, legal capital, paid-in capital, retained earnings
and cumulative translation adjustments. Such balance sheet shall be prepared in
accordance with accounting principles that are generally accepted in such
party's country of organization.
(ii) The "Credit Event Upon Merger" provisions of Section 5(b)(iv) of the
Agreement will apply to Salomon and Counterparty.
(iii) "Termination Currency" means United States Dollars.
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(b) Set-Off:
Section 6 of the Agreement is amended by adding the following new
subsection 6(f):
(f) In addition to any rights of set-off a party may have as a matter
of law or otherwise, upon the occurrence of an Event of Default with
respect to a party ("X") the other party ("Y") will have the right
(but will not be obliged) without prior notice to X or any other
person to set-off any obligation of X owing to Y (whether or not
arising under this Agreement, whether or not matured, whether or not
contingent and regardless of the currency, place of payment or booking
office of the obligation) against any obligation of Y owing to X
(whether or not arising under this Agreement, whether or not matured,
whether or not contingent and regardless of the currency, place of
payment or booking office of the obligation).
For the purpose of cross-currency set-off, Y may convert any
obligation to another currency at a market rate determined by Y.
If an obligation is unascertained, Y may in good faith estimate that
obligation and set-off in respect of the estimate, subject to the
relevant party accounting to the other when the obligation is
ascertained.
(c) Credit Support Document. The Credit Support Document is the Pledge
Agreement.
13. REPRESENTATIONS:
(a) Each party represents (which representations will be deemed to be
repeated on each Tranche Date) to the other party that:
(i) It is acting as principal for its own account and not as agent when
entering into this Transaction;
(ii) It has sufficient knowledge and expertise to enter into this
Transaction and it is entering into this Transaction in reliance upon
such tax, accounting, regulatory, legal, and financial advice as its
deems necessary and not upon any view expressed by the other. It has
made its own independent decision to enter into this Transaction, is
acting at arm's length and is not relying on any communication
(written or oral) of the other party as a recommendation or investment
advice regarding this Transaction. It has the capability to evaluate
and understand (on its own behalf or through independent professional
advice), and does understand, the terms, conditions and risks of this
Transaction and is willing to accept those terms and conditions and to
assume (financially and otherwise) those risks. It acknowledges and
agrees that the other party is not acting as a fiduciary or advisor to
it in connection with this Transaction. It is entering into this
Transaction for the purposes of hedging its underlying assets or
liabilities, in connection with a line of business or to lock in the
future cost of its share repurchase program, and not for purposes of
speculation; and
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(iii) It is an "accredited investor" as defined in Section 2(15)(ii) of
the Securities Act and an "eligible swap participant" as such term
is defined in 17 C.F.R. Section 35.1(b)(2).
(b) Counterparty and Verio each represents as of the Trade Date to
Salomon that:
(i) It understands no obligations of Salomon to it hereunder will be
entitled to the benefit of deposit insurance and that such
obligations will not be guaranteed by any affiliate of Salomon or
any governmental agency;
(ii) Its financial condition is such that it has no need for liquidity
with respect to its investment in this Transaction and no need to
dispose of any portion thereof to satisfy any existing or
contemplated undertaking or indebtedness. Its investments in and
liabilities in respect of this Transaction, which it understands is
not readily marketable, is not disproportionate to its net worth,
and it is able to bear any loss in connection with this Transaction,
including the loss of its entire investment in this Transaction;
(iii) It understands that this Transaction and, except as provided in
paragraph 10 ("Securities Laws and Registration"), the transactions
contemplated herein will not be registered under the Securities Act
or any state securities law or other applicable federal securities
law; and
(iv) IT UNDERSTANDS THAT THIS TRANSACTION IS SUBJECT TO COMPLEX RISKS
WHICH MAY ARISE WITHOUT WARNING AND MAY AT TIMES BE VOLATILE AND
THAT LOSSES MAY OCCUR QUICKLY AND IN UNANTICIPATED MAGNITUDE AND IS
WILLING TO ACCEPT SUCH TERMS AND CONDITIONS AND ASSUME (FINANCIALLY
AND OTHERWISE) SUCH RISKS.
(c) Verio represents that the entry by Counterparty into this
Confirmation, the sale of Common Shares to Salomon pursuant to the Purchase
Agreement dated as of the date hereof among the parties hereto and the use of
the proceeds of such sale by Counterparty will not result in a violation of or
contravene any material agreement to which Verio is a party or subject to.
(d) With respect to this Transaction, each representation under the
Agreement made or deemed made on each date on which a Transaction is entered
into shall be deemed made on the Trade Date.
14. ACCOUNTS FOR PAYMENT:
To Salomon: To be advised.
To Counterparty: To be advised.
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15. DELIVERY INSTRUCTIONS:
Unless otherwise directed in writing, any Common Shares to be delivered
hereunder shall be delivered as follows:
To Salomon: Salomon Smith Barney
DTC 418
Attn: Prime Broker Group
For Account 768-00038
To Counterparty: To be advised.
16. ADDRESSES FOR NOTICES:
For purposes of Section 12(a) of the Agreement, unless otherwise directed
in writing, all notices or communications to Counterparty or Salomon shall be
delivered to the following addresses:
To Salomon: Salomon Brothers Holding Company Inc
Attn.: Herman Hirsch
390 Greenwich Street- 3rd Floor
Equity Derivatives
New York, NY 10013
Facsimile: (212) 723-8750
Telephone: (212) 723-7357
with a copy to: Donald A. Bendernagel, Esq.
Salomon Brothers Holding Company Inc
388 Greenwich Street - 20th Floor
New York, New York 10013
Facsimile: (212) 816-4223
Telephone: (212) 816-2747
To Counterparty
And Verio: General Counsel
Verio LLC
8005 South Chester Street, Suite 200
Englewood, CO 80112
Facsimile: (303) 792-3879
Telephone: (303) 645-1900
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Yours sincerely,
SALOMON BROTHERS HOLDING COMPANY INC
By: /s/ Joseph Elmlinger
------------------------------------
Joseph Elmlinger
Managing Director
Authorized Representative
Confirmed as of the date first above written:
VERIO, LLC
By: /s/ Peter B. Fritzinger
-----------------------------------
Name: Peter B. Fritzinger
Title: Manager
VERIO INC.
By: /s/ Peter B. Fritzinger
-----------------------------------
Name: Peter B. Fritzinger
Title: Chief Financial Officer
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