EXHIBIT 4.3
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EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
Dated as of December 2, 1998
by and among
Global Crossing Holdings Ltd.
and
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
CIBC Oppenheimer Corp.
Deutsche Bank Securities, Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇▇▇▇, Sachs & Co.
Chase Securities Inc.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation
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This Registration Rights Agreement (this "Agreement") is made and entered
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into as of December 2, 1998, by and among Global Crossing Holdings Ltd., a
Bermuda company (the "Company"), and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., ▇▇▇▇▇▇▇ ▇▇▇▇▇,
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▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, CIBC ▇▇▇▇▇▇▇▇▇▇▇ Corp., Deutsche Bank
Securities, Inc., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, ▇▇▇▇▇▇▇, Sachs & Co., Chase
Securities Inc., and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ Securities Corporation
(each, an "Initial Purchaser" and, collectively, the "Initial Purchasers"), each
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of whom has agreed to purchase, severally and not jointly, an aggregate of
5,000,000 shares of the Company's 10 1/2% Senior Exchangeable Preferred Stock
(Mandatorily Redeemable on December 1, 2008) (the "Preferred Stock") pursuant to
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the Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement, dated as of
November 24, 1998, (the "Purchase Agreement"), by and among the Company and the
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Initial Purchasers. In order to induce the Initial Purchasers to purchase the
Preferred Stock, the Company has agreed to provide the registration rights set
forth in this Agreement. The execution and delivery of this Agreement is a
condition to the obligations of the Initial Purchasers to purchase the Preferred
Stock as set forth in the Purchase Agreement.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have the
following meanings:
Act: The Securities Act of 1933, as amended.
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Affiliate: As defined in Rule 144 of the Act.
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Broker-Dealer: Any broker or dealer registered under the Exchange Act.
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Bye-laws: The Bye-laws of the company to be amended by the Company on or
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prior to the Closing Date, which will contain the terms of the Securities.
Certificated Securities: As defined in the Bye-laws and the Indenture.
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Closing Date: The date hereof.
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Commission: The Securities and Exchange Commission.
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Consummate: An Exchange Offer shall be deemed "Consummated" for purposes
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of this Agreement upon the occurrence of (a) the filing and effectiveness under
the Act of the Exchange Offer Registration Statement relating to the New
Preferred Stock or, if the Preferred Stock has been exchanged for the Exchange
Notes, the New Exchange Notes, in each case to be issued in the Exchange Offer,
(b) the maintenance of such Exchange Offer Registration Statement continuously
effective and the keeping of the Exchange Offer open for a period not less than
the
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period required pursuant to Section 3(b) hereof and (c) the delivery by the
Company to the Transfer Agent of shares of New Preferred Stock having the same
aggregate Liquidation Preference as the Liquidation Preference of Preferred
Stock tendered by Holders thereof pursuant to the Exchange Offer, or, if the
Preferred Stock has been exchanged for the Exchange Notes, the delivery by the
Company to the Trustee of New Exchange Notes in the same aggregate principal
amount as the aggregate principal amount of Exchange Notes tendered by Holders
thereof pursuant to the Exchange Offer.
Dividend Payment Date: As defined in the Memorandum of Increase.
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Effectiveness Deadline: As defined in Sections 3(a) and 4(a) hereof.
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Exchange Act: The Securities Exchange Act of 1934, as amended.
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Exchange Notes: The Company's 10 1/2% Senior Subordinated Notes due
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December 1, 2008 (including, without limitation, all such Exchange Notes, if
any, issued in lieu of payment of cash interest thereon) which may, at the
Company's option, be issued pursuant to the Indenture in exchange for the
Preferred Stock.
Exchange Offer: The registration by the Company under the Act of the New
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Preferred Stock or, if the Preferred Stock has been exchanged for Exchange
Notes, the New Exchange Notes, in each case pursuant to the Exchange Offer
Registration Statement pursuant to which the Company shall offer the Holders of
all outstanding Transfer Restricted Securities held by such Holders the
opportunity to exchange all such outstanding Transfer Restricted Securities for
New Preferred Stock having the same aggregate Liquidation Preference as the
Liquidation Preference of Preferred Stock tendered by Holders thereof pursuant
to such exchange offer, or, if the Preferred Stock has been exchanged for the
Exchange Notes, New Exchange Notes in an aggregate principal amount equal to the
aggregate principal amount of the Exchange Notes tendered by Holders thereof
pursuant to such exchange offer.
Exchange Offer Registration Statement: The Registration Statement relating
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to the Exchange Offer, including the related Prospectus.
Exempt Resales: The transactions in which the Initial Purchasers propose
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to sell the Preferred Stock to certain "qualified institutional buyers," as such
term is defined in Rule 144A under the Act.
Filing Deadline: As defined in Sections 3(a) and 4(a) hereof.
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Global Security Holder: As defined in the Bye-laws and the Indenture.
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Holders: As defined in Section 2 hereof.
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Indemnified Holder: As defined in Section 8(a) hereof.
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Indenture: The Indenture, to be entered into between the Company and the
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Trustee, governing the Notes and pursuant to which the Exchange Notes will be
issued upon the exchange of the Preferred Stock in accordance with the Bye-laws,
as such Indenture is amended, modified or supplemented from time to time in
accordance with the terms thereof.
Interest Payment Date: As defined in the Indenture.
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Liquidation Preference: As defined in the Bye-laws.
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New Preferred Stock: The Company's 10 1/2% Senior Exchangeable Preferred
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Stock (Mandatorily Redeemable on December 1, 2008) (including, without
limitation, all such Preferred Stock issued in lieu of the payment of cash
dividends thereon) to be issued pursuant to the Memorandum of Increase (i) in
the Exchange Offer or (ii) upon the request of any Holder of Preferred Stock
covered by a Shelf Registration Statement, in each case in exchange for such
Preferred Stock.
Notes: Collectively, the Exchange Notes and the New Exchange Notes.
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Preferred Stock: As defined in the preamble hereof.
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Prospectus: The prospectus included in a Registration Statement at the
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time such Registration Statement is declared effective, as amended or
supplemented by any prospectus supplement and by all other amendments thereto,
including post-effective amendments, and all material incorporated by reference
into such Prospectus.
Recommencement Date: As defined in Section 6(d) hereof.
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Registration Default: As defined in Section 5 hereof.
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Registration Statement: Any registration statement of the Company relating
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to (a) an offering of Transfer Restricted Securities pursuant to an Exchange
Offer or (b) the registration for resale of Transfer Restricted Securities
pursuant to the Shelf Registration Statement, in each case, (i) that is filed
pursuant to the provisions of this Agreement and (ii) including the Prospectus
included therein, all amendments and supplements thereto (including post-
effective amendments) and all exhibits and material incorporated by reference
therein.
Restricted Broker-Dealer: Any Broker-Dealer that holds New Preferred Stock
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or, if the Preferred Stock has been exchanged for the Exchange Notes, New
Exchange Notes, in each case that was acquired in the Exchange Offer in exchange
for Preferred Stock or Exchange Notes, as the case may be, that such Broker-
Dealer acquired for its own account as a result of market-making activities or
other trading activities (other than Securities or Notes acquired directly from
the Company or any of its Affiliates).
Rule 144: Rule 144 promulgated under the Act.
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Securities: Collectively, the Preferred Stock and the New Preferred Stock.
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Shelf Registration Statement: As defined in Section 4 hereof.
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Special Dividends: As defined in Section 5 hereof.
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Special Interest: As defined in Section 5 hereof.
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Suspension Notice: As defined in Section 6(d) hereof.
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TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb), as
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in effect on the date of the Indenture.
Transfer Agent: First Chicago Trust Company of New York.
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Transfer Restricted Securities: The Preferred Stock or, if the Preferred
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Stock has been exchanged for the Exchange Notes, the Exchange Notes, in each
case until the earliest to occur of (a) the date on which such Preferred Stock
or Exchange Notes, as the case may be, is exchanged in the Exchange Offer by a
person other than a Broker-Dealer for New Preferred Stock or New Exchange Notes,
as the case may be, (b) the date on which such Preferred Stock or Exchange
Notes, as the case may be, is effectively registered under the Act and disposed
of in accordance with a Shelf Registration Statement, (c) the date, following
the date on which such Preferred Stock or Exchange Notes, as the case may be, is
exchanged for New Preferred Stock or New Exchange Notes, as the case may be, by
a Broker-Dealer in the Exchange Offer, on which such New Preferred Stock or New
Exchange Notes, as the case may be, is sold to a purchaser who receives from
such Broker-Dealer on or prior to the date of such sale a copy of the Prospectus
contained in the Exchange Offer Registration Statement, (d) the date on which
such Preferred Stock or Exchange Notes, as the case may be, is distributed to
the public pursuant to Rule 144 under the Act or (e) the date on which such
Preferred Stock or Exchange Notes, as the case may be, is eligible for resale
pursuant to Rule 144 without volume restrictions.
Trustee: To be designated by the Company upon the issuance of the Exchange
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Notes.
SECTION 2. HOLDERS
A Person is deemed to be a holder of Transfer Restricted Securities (each,
a "Holder") whenever such Person owns Transfer Restricted Securities.
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SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permitted by applicable federal
law or Commission policy (after the procedures set forth in Section 6(a)(i)
below have been complied with), the Company shall (i) cause the Exchange Offer
Registration Statement to be filed with the Commission as soon as practicable
after the Closing Date (the "Exchange Offer Filing Date"), but in no event later
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than 90 days after the Closing Date (such 90th day being referred to herein as
the "Filing Deadline"), (ii) use its best efforts to cause such Exchange Offer
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Registration Statement to become effective at the earliest practicable time, but
in no event later than 180 days
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after the Closing Date (such 180th day being referred to herein as the
"Effectiveness Deadline"), (iii) in connection with the foregoing, (A) file all
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pre-effective amendments to such Exchange Offer Registration Statement as may be
necessary in order to cause it to become effective, (B) file, if applicable, a
post-effective amendment to such Exchange Offer Registration Statement pursuant
to Rule 430A under the Act and (C) cause all necessary filings, if any, in
connection with the registration and qualification of the New Preferred Stock or
the New Exchange Notes, as the case may be, to be made under the Blue Sky laws
of such jurisdictions as are necessary to permit Consummation of the Exchange
Offer, and (iv) upon the effectiveness of such Exchange Offer Registration
Statement, commence and Consummate the Exchange Offer. The Exchange Offer shall
be on the appropriate form permitting registration of the New Preferred Stock or
the New Exchange Notes, as the case may be, to be offered in exchange for the
Preferred Stock or the Exchange Notes, as the case may be, that are Transfer
Restricted Securities and to permit resales of New Preferred Stock and New
Exchange Notes, as the case may be, by Broker-Dealers as contemplated by
Section 3(c) below.
(b) The Company shall use its reasonable best efforts to cause the
Exchange Offer Registration Statement to be effective continuously, and shall
keep the Exchange Offer open for a period of not less than the minimum period
required under applicable federal and state securities laws to Consummate the
Exchange Offer; provided, however, that in no event shall such period be less
than 20 Business Days. The Company shall cause the Exchange Offer to comply
with all applicable federal and state securities laws. No securities other than
the Preferred Stock or the Exchange Notes, as the case may be, shall be included
in the Exchange Offer Registration Statement. The Company shall use its
reasonable best efforts to cause the Exchange Offer to be Consummated on the
earliest practicable date after the Exchange Offer Registration Statement has
become effective, but in no event later than 210 days after the Closing Date.
(c) The Company shall include a "Plan of Distribution" section in the
Prospectus contained in the Exchange Offer Registration Statement and indicate
therein that any Broker-Dealer who holds Transfer Restricted Securities that
were acquired for the account of such Broker-Dealer as a result of market-making
activities or other trading activities (other than Transfer Restricted
Securities acquired directly from the Company or any Affiliate of the Company),
may exchange such Transfer Restricted Securities pursuant to the Exchange Offer;
however, such Broker-Dealer may be deemed to be an "underwriter" within the
meaning of the Act and must, therefore, deliver a prospectus meeting the
requirements of the Act in connection with any resales of any New Preferred
Stock or any New Exchange Notes, as the case may be, received by such Broker-
Dealer in the Exchange Offer and that the Prospectus contained in the Exchange
Offer Registration Statement may be used to satisfy such prospectus delivery
requirement. Such "Plan of Distribution" section shall also contain all other
information with respect to such sales by such Broker-Dealers that the
Commission may require in order to permit such sales pursuant thereto, but such
"Plan of Distribution" shall not name any such Broker-Dealer or disclose the
amount of Transfer Restricted Securities held by any such Broker-Dealer, except
to the extent required by the Commission.
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To the extent necessary to ensure that the Exchange Offer Registration
Statement is available for resales of Transfer Restricted Securities by Broker-
Dealers that were acquired for the account of such Broker-Dealers as a result of
market-making activities or other trading activities (other than Transfer
Restricted Securities acquired directly from the Company or any Affiliate of the
Company), the Company agrees to use its best efforts to keep the Exchange Offer
Registration Statement continuously effective, supplemented and amended as
required by the provisions of Section 6(c) hereof and in conformity with the
requirements of this Agreement, the Act and the policies, rules and regulations
of the Commission as announced from time to time, for a period of one year from
the date on which the Exchange Offer is Consummated, or such shorter period as
will terminate when all Transfer Restricted Securities covered by such
Registration Statement have been sold pursuant thereto. The Company shall
promptly provide sufficient copies of the latest version of such Prospectus to
such Broker-Dealers promptly upon request at any time during such period.
SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Exchange Offer is not permitted by
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applicable law or Commission policy (after the Company has complied with the
procedures set forth in Section 6(a)(i) below) or (ii) if any Holder of Transfer
Restricted Securities shall notify the Company within 20 Business Days following
the Consummation of the Exchange Offer that (A) such Holder was prohibited by
law or Commission policy from participating in the Exchange Offer or (B) such
Holder may not resell the New Preferred Stock or the New Exchange Notes, as the
case may be, acquired by it in the Exchange Offer to the public without
delivering a prospectus and the Prospectus contained in the Exchange Offer
Registration Statement is not appropriate or available for such resales by such
Holder or (C) such Holder is a Broker-Dealer and holds Transfer Restricted
Securities acquired directly from the Company or any of its Affiliates, then the
Company shall:
(x) use its reasonable best efforts to cause to be filed, on or prior to 30
days after the earlier of (i) the date on which the Company determines that the
Exchange Offer Registration Statement cannot be filed as a result of clause
(a)(i) above and (ii) the date on which the Company receives the notice
specified in clause (a) (ii) above (such earlier date being referred to herein
as the "Filing Deadline"), a shelf registration statement pursuant to Rule 415
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under the Act (which may be an amendment to the Exchange Offer Registration
Statement (the "Shelf Registration Statement")), relating to all Transfer
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Restricted Securities, and
(y) use its reasonable best efforts to cause such Shelf Registration
Statement to become effective on or prior to 180 days after the Filing Deadline
(such 180th day being referred to herein the "Effectiveness Deadline").
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If, after the Company has filed an Exchange Offer Registration Statement
that satisfies the requirements of Section 3(a) above, the Company is required
to file and make effective a Shelf Registration Statement solely because the
Exchange Offer is not permitted under applicable federal law, then the filing of
the Exchange Offer Registration Statement shall be deemed to
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satisfy the requirements of clause (x) above; provided that, in such event, the
Company shall remain obligated to meet the Effectiveness Deadline set forth in
clause (y).
The Company shall use its best efforts to keep any Shelf Registration
Statement required by this Section 4(a) continuously effective, supplemented and
amended as required by, and subject to the provisions of, Sections 6(b) and (c)
hereof to the extent necessary to ensure that it is available for sales of
Transfer Restricted Securities by the Holders thereof entitled to the benefit of
this Section 4(a), and to ensure that it conforms with the requirements of this
Agreement, the Act and the policies, rules and regulations of the Commission as
announced from time to time, for a period of at least two years (as extended
pursuant to Section 6(c)(i)) following the date on which such Shelf Registration
Statement first becomes effective under the Act, or such shorter period as will
terminate when all Transfer Restricted Securities covered by such Registration
Statement have been sold pursuant thereto.
(b) Provision by Holders of Certain Information in Connection with the
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Shelf Registration Statement. No Holder of Transfer Restricted Securities may
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include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Company in writing, within 20 days after receipt of a request therefor, the
information specified in Item 507 or 508 of Regulation S-K, as applicable, of
the Act for use in connection with any Shelf Registration Statement or
Prospectus or preliminary Prospectus included therein. Each selling Holder
agrees to promptly furnish additional information required to be disclosed in
order to make the information previously furnished to the Company by such Holder
not materially misleading.
SECTION 5. SPECIAL DIVIDENDS AND SPECIAL INTEREST
If (i) any Registration Statement required by this Agreement is not filed
with the Commission on or prior to the applicable Filing Deadline, (ii) any such
Registration Statement has not been declared effective by the Commission on or
prior to the applicable Effectiveness Deadline, (iii) the Exchange Offer has not
been Consummated within 210 days after the Closing Date or (iv) any Registration
Statement required by this Agreement is filed and declared effective but shall
thereafter cease to be effective or fail to be usable for its intended purpose
without being succeeded immediately by a post-effective amendment to such
Registration Statement that cures such failure and that is itself declared
effective immediately (each such event referred to in clauses (i) through (iv),
a "Registration Default"), then the Company hereby agrees to pay to each Holder
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of Transfer Restricted Securities affected thereby special dividends ("Special
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Dividends") or special interest ("Special Interest"), as the case may be, which
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will accrue and be payable semi-annually on the Securities or the Notes (in
addition to the stated dividends on the Securities or the stated interest on the
Notes, as the case may be), as the case may be, from and including the date such
Registration Default occurs to, but excluding, the date on which (1) the
Exchange Offer Registration Statement (and/or, if applicable, the Shelf
Registration Statement) is filed, in the case of (i) above, (2) the Exchange
Offer Registration Statement (and/or, if applicable, the Shelf Registration
Statement) is declared effective, in the case of (ii) above, (3) the Exchange
Offer is Consummated, in the case of (iii) above, or (4) a post-effective
amendment to the
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Registration Statement or an additional Registration Statement is filed that
causes the Exchange Offer Registration Statement (and/or, if applicable, the
Shelf Registration Statement) to again be declared effective or made usable, in
the case of (iv) above. During the time that Special Dividends or Special
Interest, as the case may be, are accruing continuously, the rate of such
Special Dividends or Special Interest, as the case may be, shall be 0.50% per
annum during the first 90-day period and shall increase by 0.25% per annum for
each subsequent 90-day period, but in no event shall such rate exceed 1.00% per
annum in the aggregate regardless of the number of Registration Defaults. If,
after the cure of all Registration Defaults then in effect, there is a
subsequent Registration Default, the Special Dividend rate or Special Interest
rate, as the case may be, for such subsequent Registration Default shall
initially be 0.25%, regardless of the Special Dividend rate or Special Interest
rate, as the case may be, in effect with respect to any prior Registration
Default at the time of the cure of such Registration Default. All accrued
Special Dividends or Special Interest, as the case may be, shall be paid to the
Holders entitled thereto, in the manner provided for the payment of dividends as
set forth in the Memorandum of Increase or in the manner provided for the
payment of interest as set forth in the Indenture, as the case may be. All
obligations of the Company set forth in this paragraph that are outstanding with
respect to any Transfer Restricted Security at the time such security ceases to
be a Transfer Restricted Security shall survive until such time as all such
obligations with respect to such Transfer Restricted Security shall have been
satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection with the
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Exchange Offer, the Company shall comply with all applicable provisions of
Section 6(c) below, shall use its best efforts to effect such exchange and to
permit the resale of New Preferred Stock or New Exchange Notes, as the case may
be, by Broker-Dealers that tendered in the Exchange Offer Preferred Stock or
Exchange Notes, as the case may be, that such Broker-Dealer acquired for its own
account as a result of its market-making activities or other trading activities
(other than Preferred Stock or Exchange Notes acquired directly from the Company
of any of its Affiliates) being sold in accordance with the intended method or
methods of distribution thereof, and shall comply with all of the following
provisions:
(i) If, following the date hereof there has been announced a change in
Commission policy with respect to exchange offers such as the Exchange
Offer, that in the reasonable opinion of counsel to the Company raises a
substantial question as to whether the Exchange Offer is permitted by
applicable federal law, the Company hereby agrees to seek a no-action
letter or other favorable decision from the Commission, including oral
advice from the staff of the Commission, allowing the Company to Consummate
an Exchange Offer for such Transfer Restricted Securities. The Company
hereby agrees to pursue the issuance of such a decision to the Commission
staff level but shall not be required to take commercially unreasonable
action to effect a change of Commission policy. In connection with the
foregoing, the Company hereby agrees to take all such other actions as may
be requested by the Commission or otherwise required in connection with the
issuance of such decision, including, without limitation, (A)
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participating in telephonic conferences with the Commission, (B) delivering
to the Commission staff an analysis prepared by counsel to the Company
setting forth the legal bases, if any, upon which such counsel has
concluded that such an Exchange Offer should be permitted and (C)
diligently pursuing a resolution (which need not be favorable) by the
Commission staff.
(ii) As a condition to its participation in the Exchange Offer, each
Holder of Transfer Restricted Securities (including, without limitation,
any Holder who is a Broker-Dealer) shall furnish, upon the request of the
Company, prior to the Consummation of the Exchange Offer, a written
representation to the Company (which may be contained in the letter of
transmittal contemplated by the Exchange Offer Registration Statement) to
the effect that (A) it is not an Affiliate of the Company, (B) it is not
engaged in, and does not intend to engage in, and has no arrangement or
understanding with any person to participate in, a distribution of the New
Preferred Stock or New Exchange Notes, as the case may be, to be issued in
the Exchange Offer and (C) it is acquiring the New Preferred Stock or the
New Exchange Notes, as the case may be, in its ordinary course of business.
Each Holder using the Exchange Offer to participate in a distribution of
the New Preferred Stock or New Exchange Notes, as the case may be, hereby
acknowledges and agrees that, if the resales thereof are of securities
obtained by such Holder in exchange for securities acquired directly from
the Company or an Affiliate thereof, it (1) could not, under Commission
policy as in effect on the date of this Agreement, rely on the position of
the Commission enunciated in ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Co., Inc. (available
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June 5, 1991) and Exxon Capital Holdings Corporation (available May 13,
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1988), as interpreted in the Commission's letter to Shearman & Sterling
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dated July 2, 1993, and similar no-action letters (including, if
applicable, any no-action letter obtained pursuant to clause (i) above),
and (2) must comply with the registration and prospectus delivery
requirements of the Act in connection with a secondary resale transaction
and that such a secondary resale transaction must be covered by an
effective registration statement containing the selling security holder
information required by Item 507 or 508, as applicable, of Regulation S-K.
(iii) Prior to effectiveness of the Exchange Offer Registration
Statement, the Company shall provide a supplemental letter to the
Commission (A) stating that the Company is registering the Exchange Offer
in reliance on the position of the Commission enunciated in Exxon Capital
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Holdings Corporation (available May 13, 1988), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Co., Inc.
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(available June 5, 1991) as interpreted in the Commission's letter to
Shearman & Sterling dated July 2, 1993, and, if applicable, any no-action
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letter obtained pursuant to clause (i) above, (B) including a
representation that the Company has not entered into any arrangement or
understanding with any Person to distribute the New Preferred Stock or New
Exchange Notes, as the case may be, to be received in the Exchange Offer
and that, to the best of the Company's information and belief, each Holder
participating in the Exchange Offer is acquiring the New Preferred Stock or
the New Exchange Notes, as the case may be, in its ordinary course of
business and has no arrangement or understanding with any Person to
participate in the distribution of the
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New Preferred Stock or the New Exchange Notes, as the case may be, received
in the Exchange Offer and (C) any other undertaking or representation
required by the Commission as set forth in any no-action letter obtained
pursuant to clause (i) above, if applicable.
(b) Shelf Registration Statement. In connection with the Shelf
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Registration Statement, the Company shall comply with all the provisions of
Section 6(c) below and shall use its best efforts to effect such registration to
permit the sale of the Transfer Restricted Securities being sold in accordance
with the intended method or methods of distribution thereof (as indicated in the
information furnished to the Company pursuant to Section 4(b) hereof), and
pursuant thereto the Company will prepare and file with the Commission a
Registration Statement relating to the registration on any appropriate form
under the Act, which form shall be available for the sale of the Transfer
Restricted Securities in accordance with the intended method or methods of
distribution thereof within the time periods and otherwise in accordance with
the provisions hereof.
(c) General Provisions. In connection with any Registration Statement
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and any related Prospectus required by this Agreement, the Company shall:
(i) use its best efforts to keep such Registration Statement
continuously effective and provide all requisite financial statements for
the period specified in Section 3 or 4 of this Agreement, as applicable.
Upon the occurrence of any event that would cause any such Registration
Statement or the Prospectus contained therein (A) to contain a material
misstatement or omission or (B) not to be effective and usable for resale
of Transfer Restricted Securities during the period required by this
Agreement, the Company shall file promptly an appropriate amendment to such
Registration Statement curing such defect, and, if Commission review is
required, use its best efforts to cause such amendment to be declared
effective as soon as reasonably practicable thereafter.
(ii) prepare and file with the Commission such amendments and post-
effective amendments to the applicable Registration Statement as may be
necessary to keep such Registration Statement effective for the applicable
period set forth in Section 3 or 4 hereof, as the case may be, or such
shorter period as will terminate when all Transfer Restricted Securities
covered by such Registration Statement have been exchanged or sold or until
such Transfer Restricted Securities no longer constitute Transfer
Restricted Securities or are no longer outstanding; cause the Prospectus to
be supplemented by any required Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the Act, and to comply
fully with Rules 424, 430A and 462, as applicable, under the Act in a
timely manner; and comply with the provisions of the Act with respect to
the disposition of all securities covered by such Registration Statement
during the applicable period in accordance with the intended method or
methods of distribution by the sellers thereof set forth in such
Registration Statement or supplement to the Prospectus;
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(iii) advise the selling Holders promptly and, if requested by such
Persons, confirm such advice in writing, (A) when the Prospectus or any
Prospectus supplement or post-effective amendment has been filed, and, with
respect to any applicable Registration Statement or any post-effective
amendment thereto, when the same has become effective, (B) of any request
by the Commission for amendments to the Registration Statement or
amendments or supplements to the Prospectus or for additional information
relating thereto, (C) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement under the Act or
of the suspension by any state securities commission of the qualification
of the Transfer Restricted Securities for offering or sale in any
jurisdiction, or the initiation of any proceeding for any of the preceding
purposes, or (D) of the existence of any fact or the happening of any event
that makes any statement of a material fact made in the Registration
Statement, the Prospectus, any amendment or supplement thereto or any
document incorporated by reference therein untrue, or that requires the
making of any additions to or changes in the Registration Statement in
order to make the statements therein not misleading, or that requires the
making of any additions to or changes in the Prospectus in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading. If at any time the Commission shall issue any
stop order suspending the effectiveness of the Registration Statement, or
any state securities commission or other regulatory authority shall issue
an order suspending the qualification or exemption from qualification of
the Transfer Restricted Securities under state securities or Blue Sky laws,
the Company shall use its best efforts to obtain the withdrawal or lifting
of such order at the earliest practicable time;
(iv) subject to Section 6(c)(i), if any fact or event contemplated by
Section 6(c)(iii)(D) above shall exist or have occurred, prepare a
supplement or post-effective amendment to the Registration Statement or
related Prospectus or any document incorporated therein by reference or
file any other required document so that, as thereafter delivered to the
purchasers of Transfer Restricted Securities, the Prospectus will not
contain an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(v) furnish to the Initial Purchasers and each selling Holder named in
any Registration Statement or Prospectus in connection with such sale, if
any, before filing with the Commission, copies of any Registration
Statement or any Prospectus included therein or any amendments or
supplements to any such Registration Statement or Prospectus (including all
documents incorporated by reference, if requested by such person), which
documents will be subject to the review and comment of such Holders in
connection with such sale, if any, for a period of at least five Business
Days, and the Company will not file any such Registration Statement or
Prospectus or any amendment or supplement to any such Registration
Statement or Prospectus (including all such documents incorporated by
reference, if requested by such person) to which the selling Holders of the
Transfer Restricted Securities covered by such Registration Statement in
11
connection with such sale, if any, shall reasonably object within five
Business Days after the receipt thereof. A selling Holder shall be deemed
to have reasonably objected to such filing if such Registration Statement,
amendment, Prospectus or supplement, as applicable, as proposed to be
filed, contains a material misstatement or omission or fails to comply with
the applicable requirements of the Act;
(vi) promptly prior to the filing of any document that is to be
incorporated by reference into a Registration Statement or Prospectus, if
requested by any selling Holders within five Business Days after receipt of
notification thereof from the Company, provide copies of such document to
such selling Holders in connection with such sale, if any, make the
Company's' representatives available for discussion of such document and
other customary due diligence matters, and include such information in such
document prior to the filing thereof as such selling Holders may reasonably
request;
(vii) make available at reasonable times for inspection by the selling
Holders participating in any disposition pursuant to such Registration
Statement and any attorney or accountant retained by such selling Holders,
all financial and other records, pertinent corporate documents of the
Company and cause the Company's officers, directors and employees to supply
all information reasonably requested by any such selling Holder, attorney
or accountant in connection with such Registration Statement or any post-
effective amendment thereto subsequent to the filing thereof and prior to
its effectiveness;
(viii) if requested by any selling Holders in connection with such
sale, if any, promptly include in any Registration Statement or Prospectus,
pursuant to a supplement or post-effective amendment if necessary, such
information as such selling Holders may reasonably request to have included
therein, including, without limitation, information relating to the "Plan
of Distribution" of the Transfer Restricted Securities; and make all
required filings of such Prospectus supplement or post-effective amendment
as soon as practicable after the Company is notified of the matters to be
included in such Prospectus supplement or post-effective amendment;
(ix) furnish to each selling Holder in connection with such sale, if
any, without charge, at least one copy of the Registration Statement, as
first filed with the Commission, and of each amendment thereto, including
all documents incorporated by reference therein and all exhibits (including
exhibits incorporated therein by reference);
(x) deliver to each selling Holder, without charge, as many copies of
the Prospectus (including each preliminary prospectus) and any amendment or
supplement thereto as such Persons reasonably may request; the Company
hereby consents to the use (in accordance with law) of the Prospectus and
any amendment or supplement thereto by each of the selling Holders in
connection with the offering and the sale of the Transfer Restricted
Securities covered by the Prospectus or any amendment or supplement
thereto;
(xi) upon the request of any selling Holder, enter into such
agreements (including underwriting agreements) and make such
representations and warranties and
12
take all such other actions in connection therewith in order to expedite or
facilitate the disposition of the Transfer Restricted Securities pursuant
to any applicable Registration Statement contemplated by this Agreement,
all to such extent as may be reasonably acceptable to the Company and as
may be reasonably requested by any Holder of Transfer Restricted Securities
in connection with any sale or resale pursuant to any applicable
Registration Statement contemplated by this Agreement and in such
connection, the Company shall:
(A) upon request of any selling Holder, furnish (or in the case of
paragraphs (2) and (3), use its best efforts to cause to be furnished) to
each selling Holder, upon the effectiveness of the Shelf Registration
Statement or upon Consummation of the Exchange Offer, as the case may be:
(1) a certificate, dated such date, signed on behalf of the
Company by (x) the Chief Executive Officer, President or any Vice
President and (y) a principal financial or accounting officer of the
Company, confirming, as of the date thereof, the matters set forth in
paragraph (f) of Section 6 of the Purchase Agreement and such other
similar matters as the selling Holders may reasonably request;
(2) opinions, dated such date, of counsel for the Company
covering matters similar to those set forth in paragraphs (a), (b),
(c) and (d) of Section 6 of the Purchase Agreement and such other
matters as the selling Holders may reasonably request, and in any
event including a statement to the effect that certain such counsel
has participated in conferences with officers and other
representatives of the Company and representatives of the independent
public accountants for the Company at which the contents of such
Registration Statement and the related Prospectus were discussed,
although such counsel has not independently verified the accuracy,
completeness or fairness of such statements; and that such counsel
advises that, on the basis of the foregoing, no facts came to such
counsel's attention that caused such counsel to believe that the
applicable Registration Statement, at the time such Registration
Statement or any post-effective amendment thereto became effective
and, in the case of the Exchange Offer Registration Statement, as of
the date of Consummation of the Exchange Offer, contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus contained in such
Registration Statement as of its date and, in the case of the opinion
dated the date of Consummation of the Exchange Offer, as of the date
of Consummation, contained an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading. Without limiting the foregoing, such
counsel may state further that such counsel assumes no responsibility
for, and has not independently verified, the accuracy, completeness or
fairness of the
13
financial statements, notes and schedules and other financial data
included in any Registration Statement contemplated by this Agreement
or the related Prospectus; and
(3) a customary comfort letter, dated such date, from the
Company's independent accountants, in the customary form and covering
matters of the type customarily covered in comfort letters to
underwriters in connection with underwritten offerings, and affirming
the matters set forth in the comfort letters delivered pursuant to
Section 6(g) of the Purchase Agreement; and
(B) deliver such other documents and certificates as may be reasonably
requested by the selling Holders to evidence compliance with clause (A)
above and with any customary conditions contained in the any agreement
entered into by the Company pursuant to this clause (xi);
(xii) prior to any public offering of Transfer Restricted Securities,
cooperate with the selling Holders and their counsel in connection with the
registration and qualification of the Transfer Restricted Securities under
the securities or Blue Sky laws of such jurisdictions as the selling
Holders may reasonably request and do any and all other acts or things
necessary or advisable to enable the disposition in such jurisdictions of
the Transfer Restricted Securities covered by the applicable Registration
Statement; provided, however, that the Company shall not be required to
register or qualify as a foreign corporation where it is not now so
qualified or to take any action that would subject it to the service of
process in suits or to taxation, other than as to matters and transactions
relating to the Registration Statement, in any jurisdiction where it is not
now so subject;
(xiii) issue, upon the request of any Holder of Preferred Stock or
Exchange Notes, as the case may be, covered by any Shelf Registration
Statement contemplated by this Agreement, New Preferred Stock or New
Exchange Notes, as the case may be, having the same aggregate Liquidation
Preference as the aggregate Liquidation Preference of Preferred Stock, or
an aggregate principal amount equal to the aggregate principal amount of
Exchange Notes, as applicable, in each case surrendered to the Company by
such Holder in exchange therefor or being sold by such Holder; such New
Preferred Stock or New Exchange Notes, as the case may be, to be registered
in the name of such Holder or in the name of the purchaser(s) of such New
Preferred Stock or New Exchange Notes, as the case may be; in return, the
Preferred Stock or the Exchange Notes, as the case may be, held by such
Holder shall be surrendered to the Company for cancellation;
(xiv) in connection with any sale of Transfer Restricted Securities
that will result in such securities no longer being Transfer Restricted
Securities, cooperate with the selling Holders to facilitate the timely
preparation and delivery of certificates representing Transfer Restricted
Securities to be sold and not bearing any restrictive legends; and to
14
register such Transfer Restricted Securities in such denominations and such
names as the selling Holders may request at least two Business Days prior
to such sale of Transfer Restricted Securities;
(xv) use its best efforts to cause the disposition of the Transfer
Restricted Securities covered by the Registration Statement to be
registered with or approved by such other governmental agencies or
authorities as may be necessary to enable the seller or sellers thereof to
consummate the disposition of such Transfer Restricted Securities, subject
to the proviso contained in clause (xii) above;
(xvi) provide a CUSIP number for all Transfer Restricted Securities
not later than the effective date of a Registration Statement covering such
Transfer Restricted Securities and provide the Transfer Agent or the
Trustee, as the case may be, with printed certificates for the Transfer
Restricted Securities which are in a form eligible for deposit with the
Depository Trust Company;
(xvii) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make generally available to
Holders with regard to any applicable Registration Statement, as soon as
practicable, a consolidated earnings statement meeting the requirements of
Rule 158 under the Act (which need not be audited) covering a twelve-month
period beginning after the effective date of the Registration Statement (as
such term is defined in paragraph (c) of Rule 158 under the Act);
(xviii) make appropriate officers of the Company available to the
selling Holders for meetings with prospective purchasers of the Transfer
Restricted Securities; and
(xix) if Notes are being included in any Registration Statement,
cause the Indenture to be qualified under the TIA not later than the
effective date of the first Registration Statement required by this
Agreement and, in connection therewith, cooperate with the Trustee and the
Holders to effect such changes to the Indenture as may be required for the
Indenture to be so qualified in accordance with the terms of the TIA; and
execute and use its best efforts to cause the Trustee to execute all
documents that may be required to effect such changes and all other forms
and documents required to be filed with the Commission to enable such
Indenture to be so qualified in a timely manner; and
(xx) provide promptly to each Holder upon request each document filed
with the Commission pursuant to the requirements of Section 13 or Section
15(d) of the Exchange Act.
(d) Restrictions on Holders. Each Holder agrees by acquisition of a
-----------------------
Transfer Restricted Security that, upon receipt of the notice referred to in
Section 6(c)(i) or any notice from the Company of the existence of any fact of
the kind described in Section 6(c)(iii)(D) hereof (in each case, a "Suspension
----------
Notice"), such Holder will forthwith discontinue disposition of Transfer
------
Restricted Securities pursuant to the applicable Registration Statement until
(i) such
15
Holder has received copies of the supplemented or amended Prospectus
contemplated by Section 6(c)(iv) hereof, or (ii) such Holder is advised in
writing by the Company that the use of the Prospectus may be resumed, and has
received copies of any additional or supplemental filings that are incorporated
by reference in the Prospectus (in each case, the "Recommencement Date"). Each
-------------------
Holder receiving a Suspension Notice hereby agrees that it will either (i)
destroy any Prospectuses, other than permanent file copies, then in such
Holder's possession which have been replaced by the Company with more recently
dated Prospectuses or (ii) deliver to the Company (at the Company's expense) all
copies, other than permanent file copies, then in such Holder's possession of
the Prospectus covering such Transfer Restricted Securities that was current at
the time of receipt of the Suspension Notice. In the event the Company shall
deliver a Suspension Notice, the time period regarding the effectiveness of such
Registration Statement set forth in Section 3 or 4 hereof, as applicable, shall
be extended by a number of days equal to the number of days in the period from
and including the date of delivery of the Suspension Notice to the date of
delivery of the Recommencement Date.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Company's performance of or compliance
with this Agreement shall be borne by the Company, regardless of whether a
Registration Statement becomes effective, including without limitation: (i) all
registration and filing fees and expenses; (ii) all fees and expenses of
compliance with federal securities and state securities or Blue Sky laws; (iii)
all expenses of printing (including printing certificates for the New Preferred
Stock or New Exchange Notes, as the case may be, to be issued in the Exchange
Offer and printing of Prospectuses), messenger and delivery services and
telephone; (iv) all fees and disbursements of counsel for the Company and, in
accordance with Section 7(b) below, the Holders of Transfer Restricted
Securities; (v) all fees and disbursements of independent certified public
accountants of the Company (including the expenses of any special audit and
comfort letters required by or incident to such performance); and (vi) fees and
expenses of the Transfer Agent or the Trustee, as the case may be, and any
exchange agent in the Exchange Offer, including the fees and expenses of their
counsel.
The Company will, in any event, bear its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expenses of any annual audit and the
fees and expenses of any Person, including special experts, retained by the
Company.
(b) In connection with any Registration Statement required by this
Agreement (including, without limitation, the Exchange Offer Registration
Statement and the Shelf Registration Statement), the Company will reimburse the
Initial Purchasers and the Holders of Transfer Restricted Securities being
tendered in the Exchange Offer and/or resold pursuant to the "Plan of
Distribution" contained in the Exchange Offer Registration Statement or
registered pursuant to the Shelf Registration Statement, as applicable, for the
reasonable fees and disbursements of not more than one counsel, who shall be
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, unless another
16
firm shall be chosen by the Holders of a majority in principal amount of the
Transfer Restricted Securities for whose benefit such Registration Statement is
being prepared.
SECTION 8. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless (i) each Holder,
(ii) the directors, officers, employees and agents of each Holder and (iii) each
person who controls any Holder within the meaning of either the Act or the
Exchange Act (any person referred to in clause (i), (ii) or (iii) may
hereinafter be referred to as an "Indemnified Holder") against any and all
------------------
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement, preliminary prospectus or
Prospectus or any information provided by the Company to any Holder or
prospective purchaser of New Preferred Stock or New Exchange Notes, as the case
may be, or in any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, and agree to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
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that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission (i) made
in any Registration Statement, preliminary prospectus or Prospectus, or in any
amendment or supplement thereto, in reliance upon and in conformity with written
information furnished to the Company by any Holder specifically for inclusion
therein or (ii) made in any preliminary prospectus, if such untrue statement or
omission or alleged omission made in such preliminary prospectus is eliminated
or remedied in the Prospectus relating to it (as amended or supplemented, as
applicable) and a copy of such Prospectus shall not have been furnished to the
person alleging such loss, claim, damage or liability as required under
applicable law. This indemnity agreement will be in addition to any liability
which the Company may otherwise have.
(b) Each Holder of Transfer Restricted Securities severally agrees to
indemnify and hold harmless the Company, its directors, officers, employees and
agents and each person who controls the Company within the meaning of either the
Act or the Exchange Act, to the same extent as the foregoing indemnity from the
Company to each of the Indemnified Holders, but only with reference to written
information relating to such Indemnified Holder furnished to the Company by such
Indemnified Holder specifically for inclusion in any Registration Statement,
preliminary prospectus or Prospectus (or in any amendment or supplement
thereto). This indemnity agreement will be in addition to any liability which
any Indemnified Holder may otherwise have.
17
(c) Promptly after receipt by an indemnified party under this Section 8 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 this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
satisfactory to the indemnified party. Notwithstanding the indemnifying party's
election to appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel (including
local counsel), and the indemnifying party shall bear the reasonable fees, costs
and expenses of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest, (ii) the actual or potential defendants in, or
targets of, 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, (iii) 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 the institution of such action or (iv) the
indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceeding in the same jurisdiction, be liable for the fees and expenses of more
than one separate firm (in addition to any local counsel) for all indemnified
parties, and that all such fees and expenses shall be reimbursed as they are
incurred. Any such separate firm for the Indemnified Holder and such control
persons shall be designated in writing by a majority of the Indemnified Holders
and any such separate firm of the Company, its directors, its officers and such
control persons of the Company shall be designated in writing by the Company. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section 8 is unavailable to hold harmless an indemnified party for any
reason, the Company, and the Holders agree to contribute to the aggregate
losses, claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending same)
18
(collectively "Losses") to which the Company and one or more of the Holders may
------
be subject in such proportion as is appropriate to reflect the relative benefits
received by the Company, on the one hand, and by the Indemnified Holders, on the
other hand, from the sale of Transfer Restricted Securities; provided, however,
that in no case shall any Holder (except as may be provided in any agreement
among the Holders relating to the sale of its Transfer Restricted Securities) be
responsible for any amount in excess of the amount by which the total received
by such Holder with respect to its sale of Transfer Restricted Securities
pursuant to a Registration Statement exceeds the sum of (A) the amount paid to
such Holder for such Transfer Restricted Securities plus (B) the amount of any
damages which such Holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. If the
allocation provided by the immediately preceding sentence is unavailable for any
reason, the Company and the Indemnified Holder shall contribute in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company, on the one hand, and of the Indemnified
Holder, on the other hand, in connection with the statements or omissions which
resulted in such Losses as well as any other relevant equitable considerations.
Relative fault shall be determined by reference to whether any alleged untrue
statement or omission relates to information provided by either the Company or
the Holders and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Company
and each Holder agree that it would not be just and equitable if contribution
were determined by pro rata allocation or any other method of allocation which
does not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each person who
controls a Holder within the meaning of either the Act or the Exchange Act and
each director, officer, employee and agent of a Holder shall have the same
rights to contribution as such Holder, and each person who controls the Company
within the meaning of either the Act or the Exchange Act and each officer and
director of the Company shall have the same rights to contribution as the
Company, subject in each case to the applicable terms and conditions of this
paragraph (d). The remedies provided in this Section 8 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
SECTION 9. RULE 144A
The Company hereby agrees with each Holder, for so long as any Transfer
Restricted Securities remain outstanding and during any period in which the
Company is not subject to Section 13 or 15(d) of the Exchange Act, to make
available, upon request of any Holder of Transfer Restricted Securities, to any
Holder or beneficial owner of Transfer Restricted Securities in connection with
any sale thereof and any prospective purchaser of such Transfer Restricted
Securities designated by such Holder or beneficial owner, the information
required by Rule 144A(d)(4) under the Act in order to permit resales of such
Transfer Restricted Securities pursuant to Rule 144A.
SECTION 10. MISCELLANEOUS
19
(a) Remedies. The Company acknowledges and agrees that any failure
--------
by the Company to comply with its obligations under Sections 3 and 4 hereof may
result in material irreparable injury to the Initial Purchasers or the Holders
for which there is no adequate remedy at law, that it will not be possible to
measure damages for such injuries precisely and that, in the event of any such
failure, any Initial Purchaser or any Holder may obtain such relief as may be
required to specifically enforce the Company's obligations under Sections 3 and
4 hereof. The Company further agrees to waive the defense in any action for
specific performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company shall not, on or after
--------------------------
the date of this Agreement, enter into any agreement with respect to its
securities that is inconsistent with the rights granted to the Holders in this
Agreement or otherwise conflicts with the provisions hereof. The rights granted
to the Holders hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of the Company's securities
under any agreement in effect on the date hereof.
(c) Amendments and Waivers. The provisions of this Agreement may not
----------------------
be amended, modified or supplemented, and waivers or consents to or departures
from the provisions hereof may not be given unless (i) in the case of Section 5
hereof and this Section10 (c)(i), the Company has obtained the written consent
of the Holders of all outstanding Transfer Restricted Securities and (ii) in the
case of all other provisions hereof, the Company has obtained the written
consent of the Holders of a majority of the outstanding principal amount of
Transfer Restricted Securities (excluding Transfer Restricted Securities held by
the Company of its Affiliates). Notwithstanding the foregoing, a waiver or
consent to departure from the provisions hereof that relates exclusively to the
rights of Holders whose securities are being tendered pursuant to the Exchange
Offer or registered pursuant to the Shelf Registration Statement and that does
not affect, directly or indirectly, the rights of other Holders whose securities
are not being tendered pursuant to such Exchange Offer or registered pursuant to
the Shelf Registration Statement may be given by the Holders of a majority of
the outstanding principal amount of Transfer Restricted Securities subject to
such Exchange Offer or such Shelf Registration Statement, as applicable.
(d) Third Party Beneficiary. The Holders shall be third party
-----------------------
beneficiaries to the agreements made hereunder between the Company, on the one
hand, and the Initial Purchasers, on the other hand, and shall have the right to
enforce such agreements directly to the extent they may deem such enforcement
necessary or advisable to protect their rights or the rights of Holders
hereunder.
(e) Notices. All notices and other communications provided for or
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permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telecopier or air courier
guaranteeing overnight delivery:
20
(i) if to a Holder, at the address set forth on the records of the
Transfer Agent or Registrar under the Indenture (in such case, along with a
copy to the Trustee), as the case may be; and
(ii) if to the Company:
Global Crossing Holdings Ltd.
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Secretary of the Company
With a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: D. ▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged, if telecopied; and on the next Business Day, if timely delivered
to an air courier guaranteeing overnight delivery.
(f) Successors and Assigns. This Agreement shall inure to the
----------------------
benefit of and be binding upon the successors and assigns of each of the parties
hereto, including, without limitation, and without the need for an express
assignment, subsequent Holders of Transfer Restricted Securities; provided, that
nothing herein shall be deemed to permit any assignment, transfer or other
disposition of Transfer Restricted Securities in violation of the terms hereof
or of the Purchase Agreement, the Memorandum of Increase, Bye-laws or the
Indenture. If any transferee of any Holder shall acquire Transfer Restricted
Securities in any manner, whether by operation of law or otherwise, such
Transfer Restricted Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Transfer Restricted Securities, such
Person shall be conclusively deemed to have agreed to be bound by and to perform
all of the terms and provisions of this Agreement, including the restrictions on
resale set forth in this Agreement and, if applicable, the Purchase Agreement,
and such Person shall be entitled to receive the benefits hereof.
(g) Counterparts. This Agreement may be executed in any number of
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counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
21
(h) Headings. The headings in this Agreement are for convenience of
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reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
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IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(j) Severability. In the event that any one or more of the provisions
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contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(k) Entire Agreement. This Agreement is intended by the parties as a
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final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted with respect to the Transfer
Restricted Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
(l) Consent to Jurisdiction and Service. To the fullest extent
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permitted by applicable law, the Company hereby irrevocably submits to the
jurisdiction of any Federal or State court located in the Borough of Manhattan
in The City of New York, New York in any suit, action or proceeding based on or
arising out of or relating to this Agreement or any Securities or Notes, and
irrevocably agrees that all claims in respect of such suit or proceeding may be
determined in any such court. The Company irrevocably waives, to the fullest
extent permitted by law, any objection which it may have to the laying of the
venue of any such suit, action or proceeding brought in such a court and any
claim that any suit, action or proceeding brought in such a court has been
brought in an inconvenient forum. The Company agrees that final judgment in any
such suit, action or proceeding brought in such a court shall be conclusive and
binding upon the Company and may be enforced in the courts of Bermuda (or any
other courts to the jurisdiction of which the Company is subject) by a suit upon
such judgment, provided that service of process is effected upon the Company in
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the manner specified herein or as otherwise permitted by law. The Company hereby
irrevocably designates and appoints CT Corporation System, ▇▇▇▇ ▇▇▇▇▇▇▇▇ - ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ (the "Process Agent"), as the authorized agent of the
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Company upon whom process may be served in any such suit or proceeding, it being
understood that the designation and appointment of the Process Agent as such
authorized agent shall become effective immediately without any further action
on the part of the Company. The Company hereby represents to each Initial
Purchaser that it has notified the Process Agent of such designation and
appointment and that the Process Agent has accepted the same in writing. The
Company hereby irrevocably authorizes and directs the Process Agent to accept
such service. The Company further agrees that service of process upon the
Process Agent and written notice of said service to the Company mailed by
prepaid registered first class mail or delivered to the Process Agent at its
principal office, shall be deemed in every respect effective service of process
upon the Company in any such suit or proceeding. Nothing herein shall affect the
right of any
22
Initial Purchaser or any person controlling any Initial Purchaser to serve
process in any other matter permitted by law. The Company further agrees to take
any and all action, including the execution and filing of any and all such
documents and instruments as may be necessary to continue such designation and
appointment of the Process Agent in full force and effect so long as the Company
has any outstanding obligations under this Agreement, the Securities, the Notes,
the Memorandum of Increase, Bye-laws or the Indenture. To the extent that the
Company has or hereafter may acquire any immunity from jurisdiction of any court
or from any legal process (whether through service of note, attachment prior to
judgment, attachment in aid of execution, executor or otherwise) with respect to
itself or its property, the Company hereby irrevocably waives such immunity in
respect of its obligations under this Agreement, to the extent permitted by law.
[Registration Rights Agreement Signature Pages Follow]
23
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
Global Crossing Holdings Ltd.
By /s/ S. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇.
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Name: S. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇.
Title: Chief Executive Officer
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
CIBC ▇▇▇▇▇▇▇▇▇▇▇ Corp.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
Deutsche Bank Securities, Inc.
▇▇▇▇▇▇▇, Sachs & Co.
Chase Securities Inc.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ Securities Corporation
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Managing Director
For themselves and the other Initial Purchasers