Exhibit 10.12
REGISTRATION RIGHTS AGREEMENT
dated as of December 8, 2003
between
GLOBAL CROSSING LIMITED,
and
STT CROSSING LTD
TABLE OF CONTENTS
PAGE
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Section 1. Definitions.......................................................1
Section 2. Demand Registration...............................................3
Section 3. Piggyback Registration and Form S-3 or F-3 Registration...........5
Section 4. Registration Procedures...........................................7
Section 5. Registration Expenses............................................12
Section 6. Indemnification..................................................13
Section 7. Underwritten Registrations.......................................15
Section 8. Rule 144A........................................................16
Section 9. Miscellaneous....................................................16
Exhibit 10.12
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made
and entered into as of December [__], 2003, by and among Global Crossing Limited
(formerly GC Acquisition Ltd.), a company organized under the laws of Bermuda
(the "Company"), and STT Crossing Ltd, a company organized under the laws of
Mauritius ("Purchaser"), and each other person who becomes a Holder (as defined
below) hereunder.
RECITALS
WHEREAS, the parties hereto have entered into a Purchase
Agreement by and among Global Crossing Ltd. ("GX"), Global Crossing Holdings
Ltd., the Joint Provisional Liquidators, Singapore Technologies Telemedia Pte
Ltd ("ST Telemedia") and ▇▇▇▇▇▇▇▇▇ Telecommunications Limited, dated August 9,
2002 (as amended, supplemented or otherwise modified from time to time, the
"Purchase Agreement"), pursuant to which, among other things, Purchaser will
acquire 6,600,000 shares of the Company's Common Stock, par value $.01 per share
(the "Common Shares"), and 18,000,000 shares of the Company's 2.0% Cumulative
Senior Convertible Preferred Stock, par value $.10 per share (the "Preferred
Shares");
WHEREAS, to induce ST Telemedia to execute and deliver the
Purchase Agreement and consummate the transactions contemplated thereby, GX has
agreed to cause the Company to provide to Holder certain registration rights
under the Securities Act (as defined below); and
WHEREAS, the execution and delivery of this Agreement by the
parties hereto is a condition to the closing of the transactions contemplated by
the Purchase Agreement.
NOW, THEREFORE, in consideration of the mutual promises and
agreements set forth herein and in the Purchase Agreement, and for other
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
Section 1. Definitions. For purposes of this Agreement, capitalized
terms used but not defined herein shall have the meanings specified in the
Purchase Agreement. In addition, the following capitalized terms have the
following meanings:
"Exchange Act": The United States Securities Exchange Act of
1934, as amended, or any successor federal statute, and the rules and
regulations of the SEC thereunder, all as the same shall be in effect from time
to time. Reference to a particular section of the Exchange Act shall include
reference to a comparable section, if any, of any such successor federal
statute.
"Holder": Purchaser and its transferees to whom Purchaser agrees
to assign benefits or rights under this Agreement and who agree to be bound by
the provisions of this Agreement in accordance with Section 9(e) hereof;
provided, however, that for purposes of all provisions of this agreement insofar
as they relate to the making of any decision, determination, approval or consent
or the giving of any notice by Holder (including any such decision or notice
concerning the exercise of any rights of Holder hereunder), Holder shall mean
only Purchaser.
"Person": Any individual, partnership, limited liability
company, joint venture, corporation, association, trust or any other entity or
organization.
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"Prospectus": The prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Securities Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Registrable Securities covered by such
Registration Statement and all other amendments and supplements to such
prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such prospectus.
"Registrable Securities": Common Shares, Common Shares or other
securities which Holder may acquire upon conversion of the Preferred Shares,
together with (a) any other securities which such Holder may acquire on account
of any such securities, including, without limitation, as the result of any
dividend or other distribution on Common Shares or any subdivision of such
Common Shares or in connection with any combination of shares, recapitalization,
amalgamation, merger, consolidation or reorganization or otherwise, and (b) any
additional Common Shares which such Holder has acquired prior to the date
hereof, or may acquire from time to time within the first three years after the
date hereof, whether or not such Common Shares are acquired from the Company or
any other person or entity (collectively, "Other Acquired Common Shares");
provided that a security ceases to be a Registrable Security (i) when it is no
longer a Transfer Restricted Security, or (ii) if it is an Other Acquired Common
Share which was not acquired from the Company and is transferred to a Person
that is not an affiliate (as defined in Rule 12b-2 of the Exchange Act) of
Holder.
The number of shares of "Registrable Securities" outstanding
shall be determined by the number of Common Shares outstanding that are, and the
number of Common Shares issuable pursuant to then exercisable or convertible
securities that are, Registrable Securities.
"Registration Statement": Any registration statement of the
Company under the Securities Act that covers any of the Registrable Securities
pursuant to the provisions of this Agreement, including the related Prospectus,
any preliminary prospectus, all amendments and supplements to such registration
statement (including post-effective amendments), all exhibits and all material
incorporated by reference or deemed to be incorporated by reference in such
registration statement.
"Rule 144": Rule 144 promulgated under the Securities Act, and
any successor provision thereto.
"Securities Act": The Securities Act of 1933, as amended, or any
successor federal statute, and the rules and regulations of the SEC thereunder,
all as the same shall be in effect at the time. Reference to a particular
section of the Securities Act shall include reference to the comparable section,
if any, of such successor federal statute.
"SEC": The United States Securities and Exchange Commission and
any successor governmental entity.
"Transfer Restricted Securities": The Registrable Securities,
until the date on which (i) such Registrable Securities are effectively
registered under the Securities Act and
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disposed of pursuant to such effective registration statement, (ii) such
Registrable Securities are sold by a Person in a transaction in which the rights
under the provisions of this Agreement are not assigned, (iii) such Registrable
Securities are sold pursuant to Rule 144 (or any similar provision then in
force, but not Rule 144A) under the Securities Act without registration under
the Securities Act, or (iv) the entire amount of the Registrable Securities may,
in the opinion of counsel satisfactory to the Company and Holder, be sold by
Holder pursuant to Rule 144 (or any successor provision then in effect) under
the Securities Act in a single sale without any limitation as to volume.
"Underwritten Offering": A distribution, registered pursuant to
the Securities Act, in which securities of the Company are sold to the public
through one or more underwriters.
Section 2. Demand Registration.
(a) Requests for Registration. At any time commencing on or
after the date that is 180 days following the Closing Date, Holder will have the
right, by written notice delivered to the Company (a "Demand Notice"), to
require the Company to register Registrable Securities under and in accordance
with the provisions of the Securities Act (a "Demand Registration"); provided,
that, (i) Holder may not make more than four Demand Registrations, (ii) the
aggregate offering price (net of underwriters' discounts and commissions) of the
Registrable Securities requested by Holder to be so registered must exceed
$25,000,000, and (iii) Holder must provide to the Company a certificate (the
"Authorizing Certificate") signed by Holder; and provided, further, that no
Demand Notice may be given by Holder prior to six months after the effective
date of the immediately preceding Demand Registration. For purposes of the
preceding sentence, the filing of two or more Registration Statements in
response to one demand shall be counted as one Demand Registration. Each request
for a Demand Registration by Holder shall state the amount of the Registrable
Securities proposed to be sold and the intended method of disposition thereof.
The Authorizing Certificate shall set forth (A) the name of Holder signing such
Authorizing Certificate, (B) the number of Registrable Securities held by such
Holder and the number of Registrable Securities such Holder has elected to have
registered, and (C) the intended methods of disposition of the Registrable
Securities. Holder may at its option withdraw Registrable Securities from a
registration and, in such event (1) any continuing registration of Registrable
Securities shall constitute the Demand Registration to which Holder is entitled
and (2) the withdrawing Holder shall reimburse the Company for any registration
and filing fees (including any fees payable to the SEC, the National Association
of Securities Dealers, Inc. or any successor organization) it has incurred with
respect to the withdrawn Registrable Securities (unless all Registrable
Securities are withdrawn, in which case the withdrawing Holder shall reimburse
the Company for all costs and expenses incurred by it in connection with the
registration of such Registrable Securities). Subject to compliance with clause
(2) of the preceding sentence, a registration that is terminated in its entirety
prior to the effective date of the applicable Registration Statement will not
constitute a Demand Registration. Notwithstanding the foregoing, if at the time
of withdrawal, Holder has learned of a material adverse change in the condition,
business or prospects of the Company and has withdrawn the request with
reasonable promptness following disclosure by the Company, Holder shall not be
subject to clause (2) above.
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If a Demand Registration is not declared and maintained
effective for the period required by Section 2(b) or if the consummation of the
offering of Registrable Securities pursuant to such Demand Registration (A) is
interfered with by any stop order, injunction or other order or requirement of
the SEC or other governmental agency or court for any Person which is not
directly caused by the act or omission of any Holder and such act or omission is
not thereafter eliminated or (B) the conditions specified in the underwriting
agreement with respect to an Underwritten Offering, if any, entered into in
connection with such Demand Registration are not satisfied or waived, other than
by reason of a failure by Holder, then Holder shall be entitled to an additional
Demand Registration in lieu thereof.
(b) Filing and Effectiveness. (i) The Company will file or,
if permitted, submit confidentially, a Registration Statement relating to any
Demand Registration as promptly as practicable (but in any event within 45 days
in the case of a registration made on Form S-1 or F-1, or a comparable successor
form, as applicable, or 30 days in the case of any registration eligible to be
made on Form S-3 or F-3 or a comparable successor form, as applicable) following
the date on which the Demand Notice is given and will use its reasonable best
efforts to cause the same to be declared effective by the SEC as soon as
practicable thereafter (the "Effectiveness Date").
(ii) The Company agrees to use its reasonable best
efforts to comply with all necessary provisions of the federal securities laws
in order to keep each Registration Statement relating to a Demand Registration
effective for a period of (A) in the case of an Underwritten Offering, 120 days
from its Effectiveness Date, and (B) subject to the last proviso of this clause
(ii), in the case of any registration made pursuant to Rule 415 under the
Securities Act, twenty-four (24) months from its Effectiveness Date, or such
shorter period that will terminate when all Registrable Securities covered by
such Registration Statement have been sold pursuant to such Registration
Statement (in each case, such period being the "Effectiveness Period");
provided, however, that if any Black-Out (as hereinafter defined) occurs during
an Effectiveness Period, then such Effectiveness Period will be tolled for the
duration of the Black-Out.
Holder will be permitted, subject to its compliance with the
provisions of Section 2(a) relating to reimbursement of the Company's expenses,
to withdraw in good faith all or part of the Registrable Securities from a
Demand Registration at any time prior to the effective date of such Demand
Registration, in which event the Company will promptly amend or, if applicable,
withdraw the related Registration Statement.
(c) Priority on Demand Registration. Notwithstanding the
foregoing, if the managing underwriter or underwriters of an Underwritten
Offering to which such Demand Registration relates advises the Company and
Holder in writing that the total amount of Registrable Securities that Holder,
the Company and any other Person intend to include in such Demand Registration
is in the aggregate such as to materially and adversely affect the success of
such offering, then there will be included in such Demand Registration, (i)
first, the number of securities that Holder proposes to sell pursuant to such
Demand Registration, (ii) second, to the extent that the number of securities in
clause (i) above is less than the number of securities which the Company and
Holder have been advised can be sold in such offering without having the adverse
effect referred to above, the number of securities, if any, requested to be
included in such
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offering by any other Persons pursuant to similar registration rights,
determined pro rata on the basis of the number of shares of the class being sold
owned by such other Persons requesting registration, collectively, and (iii)
third, to the extent that the number of securities in clauses (i) and (ii) above
is less than the number of securities which the Company and Holder have been
advised can be sold in such offering without having the adverse effect referred
to above, the securities, if any, sought to be included by the Company in the
offering.
(d) Postponement of Demand Registration. Notwithstanding
anything to the contrary in any other provision of this Agreement, the Company
will be entitled, on no more than one occasion in any 12-month period, to
postpone the filing period of any Demand Registration for a reasonable period of
time not in excess of 120 calendar days if the Board of Directors of the Company
determines, in the good faith exercise of its business judgment, and has
delivered to Holder written certification to the effect, that such registration
and offering would materially and adversely interfere with a bona fide financing
transaction of the Company, including without limitation a primary offering of
securities, or any other material business transaction of the Company, or would
require disclosure of information, the premature disclosure of which would
materially and adversely affect the Company. If the Company postpones the filing
of a Registration Statement, it will promptly notify Holder in writing when the
events or circumstances permitting such postponement have ended.
Section 3. Piggyback Registration and Form S-3 or F-3 Registration.
(a) Right to Piggyback. If, at any time following the
Closing Date, the Company proposes to file a Registration Statement, whether or
not for sale for the Company's own account or for the account of a shareholder
of the Company, on a form and in a manner that would also permit registration,
offer or sale of Registrable Securities (other than the initial public offering
of the capital stock of the Company and other than in connection with a
registration statement on Forms S-4 or F-4 or S-8 or any similar or successor
form), the Company shall each such time give to Holder holding Registrable
Securities written notice of such proposed filing at least 20 days before the
anticipated filing. The notice referred to in the preceding sentence shall (i)
describe the proposed registration and offering and (ii) offer Holder the
opportunity to register, offer or sell such amount of Registrable Securities as
Holder may request (a "Piggyback Registration"). Subject to Section 3(b), the
Company will include in each such Piggyback Registration (and any related
qualification under state blue sky laws and other compliance filings, and in any
underwriting involved therein) all Registrable Securities with respect to which
the Company has received written requests for inclusion therein within 10 days
after the written notice from the Company is given. Holder will be permitted,
subject to its compliance with the provisions of Section 2(a) relating to
reimbursement of the Company's expenses, to withdraw all or part of its
Registrable Securities from a Piggyback Registration at any time prior to the
effective date of such Piggyback Registration.
(b) Priority on Piggyback Registrations. The Company will
cause the managing underwriter or underwriters of a proposed Underwritten
Offering to permit Holder, if holding Registrable Securities requested to be
included in the registration for such offering, to include therein all such
Registrable Securities requested to be so included (such securities, together
with any other shares of the same class requested to be included in such
registration by any other Person pursuant to similar registration rights, the
"Piggyback Shares") on the same terms and
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conditions as any securities of the Company included therein (other than the
indemnification by Holder, which will be limited as set forth in Section 6(b)
hereof and provided, that Holder gives customary representations and
warranties). The Company shall cooperate with Holder in order to limit any
representations and warranties to, or agreements with, the Company or the
underwriters to be made by Holder only to those representations, warranties or
agreements regarding Holder, Holder's Registrable Securities and Holder's
intended method of distribution and any other representation required by law.
Notwithstanding the foregoing, if the managing underwriter or underwriters of
such Underwritten Offering advises Holder in writing to the effect that the
total amount of securities that Holder, the Company and any other Person propose
to include in such Underwritten Offering is such as to materially and adversely
affect the success of such offering, then the Company will include in such
registration:
(x) in the case of a registration in connection with
a sale of securities for the Company's own account, (i) first, 100% of
the securities that the Company proposes to sell for its own account,
(ii) second, to the extent that the number of securities in clause (i)
above is less than the number of securities which the Company has been
advised can be sold in such offering without having the adverse effect
referred to above, the number of Piggyback Shares of Holder requested to
be included in such offering, and (iii) third, to the extent that the
number of securities in clauses (i) and (ii) above is less than the
number of securities which the Company has been advised can be sold in
such offering without having the adverse effect referred to above, the
number of Piggyback Shares requested to be included in such offering by
any other Persons pursuant to similar registration rights, determined
pro rata on the basis of the number of shares of the class being sold
owned by such other Persons requesting registration, collectively; and
(y) in the case of a registration in connection with
a sale of securities on account of any Person other than the Company or
Purchaser (the "Initiating Party"), (i) first, 100% of the securities,
if any, that the Initiating Party proposes to sell, (ii) second, to the
extent that the number of securities in clause (i) above is less than
the number of securities which the Company has been advised can be sold
in such offering without having the adverse effect referred to above,
the number of Piggyback Shares of Holder requested to be included in
such offering, (iii) third, to the extent that the number of securities
in clauses (i) and (ii) above is less than the number of securities
which the Company has been advised can be sold in such offering without
having the adverse effect referred to above, the number of Piggyback
Shares requested to be included in such offering by any other Persons
pursuant to similar registration rights, determined pro rata on the
basis of the number of shares of the class being sold owned by such
other Persons requesting registration, collectively, and (iv) fourth, to
the extent that the number of securities in clauses (i) through (iii)
above is less than the number of securities which the Company has been
advised can be sold in such offering without having the adverse effect
referred to above, the securities sought to be included by the Company
in the offering.
(c) Form S-3 or F-3 Registration. At any time after the
Company becomes eligible to use Form S-3 or F-3 (or any successor form then in
effect), Holder may make a written request that the Company effect a
registration on Form S-3 or F-3 (or any successor form then in effect) and any
related qualification or compliance with respect to all or a part of the
Registrable Securities owned by Holder, and the Company will use its reasonable
best efforts to
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effect such registration and all such qualifications and compliances as may be
so requested and as would permit or facilitate the sale and distribution of all
or such portion of Holder's Registrable Securities as are specified in such
request; provided, however, that the Company shall not be obligated to effect
any such registration, qualification or compliance, pursuant to this Section
3(c): (i) if Form S-3 or F-3 (or any successor form then in effect), is not
available for such offering by Holder; (ii) if Holder, together with the holders
of any other securities of the Company entitled to inclusion in such
registration, propose to sell Registrable Securities and such other securities
(if any) at an aggregate price to the public (net of any underwriters' discounts
or commissions) of less than $25,000,000; (iii) if the Board of Directors of the
Company determines, in the good faith exercise of its business judgment, and has
delivered to Holder written certification to the effect, that such registration
and offering would materially and adversely interfere with a bona fide financing
transaction of the Company, including any material business transaction of the
Company, or would require disclosure of information, the premature disclosure of
which would materially and adversely affect the Company, in which event the
Company shall have the right to defer the filing of the Form S-3 or F-3
Registration Statement for a period of not more than 120 calendar days after
receipt of the request of Holder under this Section 3(c); provided, however,
that if the Company postpones the filing of a Form S-3 or F-3 Registration
Statement, it will promptly notify Holder in writing when the events or
circumstances permitting such postponement have ended; and provided, further,
that the Company will be entitled to utilize this right on no more than one
occasion in any 12-month period. An underwritten registration on Form S-3 or F-3
effected pursuant to this Section 3(c) shall be counted as a Demand Registration
for purposes of determining the number of Demand Registrations granted under
Section 2. Any other registration under this Section 3 shall not count as a
Demand Registration.
Section 4. Registration Procedures. In connection with the
Company's registration obligations pursuant to Sections 2 and 3, the Company
will effect such registrations to permit the sale of such Transfer Restricted
Securities in accordance with the intended method or methods of disposition
thereof, and pursuant thereto the Company will as expeditiously as possible, and
in each case to the extent applicable:
(a) Prepare and file with the SEC a Registration Statement
or Registration Statements on any appropriate form under the Securities Act
available for the sale of the Registrable Securities by the holders thereof in
accordance with the intended method or methods of distribution thereof, and
cause each such Registration Statement to become effective and remain effective
as provided herein; provided, however, that (i) before filing a Registration
Statement or Prospectus or any amendments or supplements thereto (including
documents that would be incorporated or deemed to be incorporated therein by
reference) the Company will furnish to Holder holding Registrable Securities
covered by such Registration Statement, not more than one counsel chosen by
Holder ("Special Counsel") and the managing underwriters, if any, copies of all
such documents proposed to be filed, which documents will be subject to the
review and comment of Holder, such Special Counsel and such underwriters, and
the Company will not file any such Registration Statement or amendment thereto
or any Prospectus or any supplement thereto (excluding such documents that, upon
filing, will be incorporated or deemed to be incorporated by reference therein)
to which Holder or the managing underwriter, if any, shall reasonably object,
and (ii) the Company shall notify the Special Counsel and each seller of
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Registrable Securities of any stop order issued or threatened by the SEC and
take all action required to prevent the entry of such stop order or to remove it
if entered.
(b) Prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be necessary to
keep such Registration Statement continuously effective for the applicable
periods specified in Section 2; cause the related Prospectus to be supplemented
by any required Prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 (or any similar provisions then in force) under the
Securities Act; and comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such Registration
Statement during the applicable period in accordance with the intended methods
of disposition by the sellers thereof set forth in such Registration Statement
as so amended or in such Prospectus as so supplemented.
(c) Notify Holder and the managing underwriters, if any,
promptly, and (if requested by any such Person) confirm such notice in writing,
(i) when a Prospectus or any Prospectus supplement or post-effective amendment
has been filed, and, with respect to a Registration Statement or any
post-effective amendment, when the same has become effective, (ii) of any
request by the SEC or any other federal or state governmental authority for
amendments or supplements to a Registration Statement or related Prospectus or
for additional information, (iii) of the issuance by the SEC or any other
federal or state governmental authority of any stop order suspending the
effectiveness of a Registration Statement or the initiation of any proceedings
for that purpose, (iv) if at any time the representations and warranties of the
Company contained in any agreement contemplated by Section 4(n) (including any
underwriting agreement) cease to be true and correct in any material respect, if
and only to the extent that such representations and warranties are continuing
under such agreement or if there is a continuing Prospectus delivery
requirement, (v) of the receipt by the Company of any notification with respect
to the suspension of the qualification or exemption from qualification of any of
the Registrable Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, (vi) of the occurrence of any
event that makes any statement made in such Registration Statement or related
Prospectus or any document incorporated or deemed to be incorporated therein by
reference untrue in any material respect or that requires the making of any
changes in a Registration Statement, Prospectus or any such document so that, in
the case of the Registration Statement, it will not contain any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading and, in the
case of the Prospectus, it will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading, and (vii) of the Company's reasonable determination that a
post-effective amendment to a Registration Statement would be appropriate.
(d) Use its reasonable best efforts to obtain the withdrawal
of any order suspending the effectiveness of a Registration Statement, or the
lifting of any suspension of the qualification (or exemption from qualification)
of any of the Registrable Securities for sale in any jurisdiction, at the
earliest possible moment.
(e) If requested by the managing underwriters, if any, or
Holder, (i) promptly incorporate in a Prospectus supplement or post-effective
amendment such information as the
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managing underwriters, if any, and Holder agrees should be included therein as
may be required by applicable law and (ii) make all required filings of such
Prospectus supplement or such post-effective amendment as soon as practicable
after the Company has received notification of the matters to be incorporated in
such Prospectus supplement or post-effective amendment; provided, however, that
the Company will not be required to take any actions under this Section 4(e)
that are not, in the opinion of counsel for the Company, in compliance with
applicable law.
(f) Furnish to Holder and each managing underwriter, if any,
without charge, at least one conformed copy of the Registration Statement and
any post-effective amendment thereto (but excluding schedules, all documents
incorporated or deemed incorporated therein by reference and all exhibits,
unless requested in writing by Holder or underwriter).
(g) Deliver to Holder and the underwriters, if any, without
charge as many copies of the Prospectus or Prospectuses relating to such
Registrable Securities (including each preliminary prospectus) and any amendment
or supplement thereto as such persons may reasonably request; and, subject to
the last paragraph of this Section 4, the Company hereby consents to the use of
such Prospectus or each amendment or supplement thereto by selling Holder and
the underwriters, if any, in connection with the offering and sale of the
Registrable Securities covered by such Prospectus or any amendment or supplement
thereto.
(h) Prior to any public offering of Registrable Securities,
to register or qualify or cooperate with Holder, the underwriters, if any, and
their respective counsel in connection with the registration or qualification
(or exemption from such registration or qualification) of such Registrable
Securities for offer and sale under the securities or blue sky laws of such
jurisdictions within the United States as any seller or underwriter reasonably
requests in writing; use all reasonable efforts to keep such registration or
qualification (or exemption therefrom) effective during the period the
applicable Registration Statement is required to be kept effective and do any
and all other acts or things necessary or advisable to enable the disposition in
each such jurisdiction of the Registrable Securities covered by the applicable
Registration Statement; provided, however, that the Company will not be required
to (i) qualify to do business in any jurisdiction where it is not then so
qualified or (ii) take any action that would subject it to taxation or service
of process in any such jurisdiction where it is not then so subject.
(i) Cooperate with Holder and the managing underwriters, if
any, to facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold and enable such Registrable
Securities to be in such denominations and registered in such names as the
managing underwriters, if any, shall request at least two business days prior to
any sale of Registrable Securities to the underwriters.
(j) Use its reasonable best efforts to cause the Registrable
Securities covered by the applicable Registration Statement to be registered
with or approved by such other governmental agencies or authorities within the
United States except as may be required solely as a consequence of the nature of
Holder's business, in which case the Company will cooperate in all reasonable
respects with the filing of such Registration Statement and the granting of such
approvals as may be necessary to enable the seller or sellers thereof or the
underwriters, if any, to consummate the disposition of such Registrable
Securities.
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(k) Upon the occurrence of any event contemplated by Section
4(c)(vi) or 4(c)(vii), prepare a supplement or post-effective amendment to each
Registration Statement or a supplement to the related Prospectus or any document
incorporated therein by reference or file any other required document so that,
as thereafter delivered to the purchasers of the Registrable Securities being
sold thereunder, such Prospectus will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
(l) Cause all Registrable Securities covered by such
Registration Statement to be listed on each securities exchange, if any, on
which securities issued by the Company of the same class are then listed or, if
no such securities issued by the Company are then so listed, on the New York
Stock Exchange or another national securities exchange if the securities qualify
to be so listed.
(m) As needed, (i) engage an appropriate transfer agent and
provide the transfer agent with printed certificates for the Registrable
Securities in a form eligible for deposit with The Depository Trust Company and
(ii) provide a CUSIP number for the Registrable Securities.
(n) Enter into such customary agreements (including, in the
event of an Underwritten Offering, an underwriting agreement in form, scope and
substance as is customary in underwritten offerings) and take all such other
commercially reasonable and customary actions in connection therewith (including
those reasonably requested by Holder or, in the event of an Underwritten
Offering, those reasonably requested by the managing underwriters) in order to
facilitate the disposition of such Registrable Securities and in such
connection, but only where an underwriting agreement is entered into in
connection with an Underwritten Offering: (i) make such representations and
warranties to the underwriters with respect to the businesses of the Company and
its subsidiaries, the Registration Statement, Prospectus and documents
incorporated by reference or deemed incorporated by reference therein, if any,
in each case, in form, substance and scope as are customarily made by issuers to
underwriters in underwritten offerings and confirm the same if and when
requested; (ii) obtain opinions of counsel to the Company and updates thereof,
which counsel and opinions (in form, scope and substance) shall be reasonably
satisfactory to the managing underwriters, if any, addressed to each of the
underwriters covering the matters customarily covered in opinions requested in
underwritten offerings and such other matters as may be reasonably requested by
such underwriters; (iii) obtain "comfort" letters and updates thereof from the
independent certified public accountants of the Company (and, if necessary, any
other certified public accountants of any subsidiary of the Company or of any
business acquired by the Company for which financial statements and financial
data is, or is required to be, included in the Registration Statement),
addressed to each of the underwriters, such letters to be in customary form and
covering matters of the type customarily covered in "comfort" letters in
connection with underwritten offerings; (iv) cause the Company's management to
be made available for, and assist in, the marketing and disposition of such
Registrable Securities in the manner and to the extent reasonably requested by
the underwriters including, without limitation, participation by management in
customary road shows, investor conferences and other similar presentations; and
(v) deliver such documents and certificates as may be reasonably requested by
the managing underwriters, if any, to evidence the continued validity of the
representations and warranties of the Company and its subsidiaries made pursuant
to clause (i) above and to evidence compliance with any customary conditions
10
contained in the underwriting agreement entered into by the Company. The
foregoing actions will be taken in connection with each closing under such
underwriting agreement as and to the extent required thereunder.
(o) Make available for reasonable inspection during normal
business hours by a representative of Holder holding Registrable Securities
being sold, any underwriter participating in any disposition of Registrable
Securities, and any attorney, accountant or other agent retained by Holder or
representatives or any underwriter (each, an "Inspector"), all financial and
other records, pertinent corporate documents and properties of the Company and
its subsidiaries, and cause the officers, directors and employees of the Company
and its subsidiaries to supply all information reasonably requested by any such
Inspector in connection with such Registration Statement; provided, however,
that any records, information or documents that are designated in good faith by
the Company in writing as confidential at the time of delivery of such records,
information or documents will be kept confidential by such Persons unless (i)
such records, information or documents are in the public domain or otherwise
publicly available, (ii) disclosure of such records, information or documents is
required by court or administrative order; provided, that Holder notifies the
Company of any such requirement and cooperates with the Company in seeking a
protective or restraining order limiting such disclosure, or (iii) disclosure of
such records, information or documents, in the reasonable opinion of counsel to
such Person, is otherwise required by law (including, without limitation,
pursuant to the requirements of the Securities Act).
(p) Comply with all applicable rules and regulations of the
SEC and make generally available to its security holders earnings statements
satisfying the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder (or any similar rule promulgated under the Securities Act) no later
than 45 calendar days after the end of any 12-month period (or 90 calendar days
after the end of any 12-month period if such period is a fiscal year) (i)
commencing at the end of any fiscal quarter in which Registrable Securities are
sold to underwriters in a firm commitment or best efforts Underwritten Offering,
or (ii) if not sold to underwriters in such an offering, commencing on the first
day of the first fiscal quarter of the Company, after the effective date of a
Registration Statement, which statements shall cover such 12-month period.
(q) The Company shall keep Special Counsel advised as to the
initiation and progress of any registration under Section 2 or Section 3
hereunder.
(r) The Company shall cooperate with each seller of
Registrable Securities and each underwriter participating in the disposition of
such Registrable Securities and their respective counsel in connection with any
filings required to be made with the New York Stock Exchange or such other stock
exchanges or markets in which securities of the Company are listed or quoted.
(s) The Company shall take all other steps reasonably
necessary to effect the registration of the Registrable Securities contemplated
hereby.
The Company may require each seller of Registrable Securities as
to which any registration is being effected to furnish to the Company such
information regarding such seller
11
and the distribution of such Registrable Securities as the Company may, from
time to time, reasonably request in writing, and the Company may exclude from
such registration the Registrable Securities of any seller who unreasonably
fails to furnish such information within a reasonable time after receiving such
request.
Holder will be deemed to have agreed by virtue of its
acquisition of Registrable Securities that, upon receipt of any notice from the
Company of the occurrence of any event of the kind described in Section
4(c)(ii), 4(c)(iii), 4(c)(v), 4(c)(vi) or 4(c)(vii) ("Suspension Notice"),
Holder will forthwith discontinue disposition of such Registrable Securities
covered by such Registration Statement or Prospectus (a "Black-Out") until such
Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 4(k), or until it is advised in writing (the "Advice")
by the Company that the use of the applicable Prospectus may be resumed, and
Holder has received copies of any additional or supplemental filings that are
incorporated or deemed to be incorporated by reference in such Prospectus.
Except as expressly provided herein, there shall be no limitation with regard to
the number of Suspension Notices that the Company is entitled to give hereunder;
provided, however, that in no event shall the aggregate number of days Holder is
subject to Black-Out during any period of 12 consecutive months exceed 180 days.
Section 5. Registration Expenses. Except as provided in Section
2(a), all fees and expenses incurred in connection with registrations, filings
or qualifications pursuant to this Agreement by the Company will be borne by the
Company whether or not any of the Registration Statements become effective. Such
fees and expenses will include, without limitation, (i) all registration and
filing fees (including fees and expenses for compliance with federal or state
securities laws or state "blue sky" laws, and including all registration and
filing fees payable to the Securities and Exchange Commission and any applicable
stock exchanges or markets), (ii) printing expenses (including, without
limitation, expenses of printing certificates for Registrable Securities in a
form eligible for deposit with The Depository Trust Company and of printing a
reasonable number of prospectuses if the printing of such prospectuses is
requested by Holder), (iii) messenger, telephone and delivery expenses incurred
by the Company, (iv) fees and disbursements of counsel for the Company incurred
by the Company, (v) fees and disbursements and other charges and expenses of all
independent certified public accountants referred to in Section 4(n)(iii)
(including the expenses of any special audit and "comfort" letter required by or
incident to such performance) incurred by the Company, and (vi) reasonable fees
and expenses per Registration Statement for Special Counsel of Holder in
connection with the registration and sale of Registrable Securities of up to
$75,000 in the aggregate; and (vii) any liability insurance or other premiums
for insurance obtained in connection with any Demand Registration, Piggy-back
Registration or registration on Form S-3 or F-3 pursuant to the provisions set
forth in this Agreement, regardless of whether the relevant Registration
Statement is declared effective. In addition, the Company will pay internal
expenses (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the expense of
any annual audit, the fees and expenses incurred in connection with the listing
of the securities to be registered on any securities exchange on which
securities of the same class issued by the Company are then listed or for
admission of any securities for quotation or an inter-dealer quotation system,
as applied and the fees and expenses of any Person, including special experts,
retained by the Company. In no event, however, will the Company be responsible
for any underwriting discount or selling commission with respect to any sale of
12
Registrable Securities pursuant to this Agreement, and Holder shall be
responsible for any taxes of any kind (including, without limitation, transfer
taxes) with respect to any disposition, sale or transfer of Registrable
Securities and for any legal, accounting and other expenses incurred by it,
except as provided above with respect to Special Counsel, in connection with any
Registration Statement.
Section 6. Indemnification.
(a) Indemnification by the Company. The Company will
indemnify and hold harmless, to the fullest extent permitted by law, Holder, its
partners, officers, directors, Affiliates and agents and employees, each Person
who controls Holder (within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act) and the officers, directors, agents and
employees of any such controlling person, from and against all losses, claims,
damages, liabilities, costs (including without limitation the costs of
investigation and attorneys' fees) and disbursements and other expenses
(collectively, "Losses"), arising out of or based upon any untrue or alleged
untrue statement of a material fact contained in any Registration Statement,
Prospectus or form of Prospectus or in any amendment or supplement thereto or in
any preliminary prospectus, or arising out of or based upon any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar and
to the extent as (i) the same are based upon information furnished in writing to
the Company by Holder specifically for use therein or any violation or alleged
violation by the Company of the Securities Act, the Exchange Act, or any other
securities or other law of any jurisdiction, common law or otherwise, or any
rule or regulation promulgated under the Securities Act, the Exchange Act or any
such other laws, in connection with any offering of Registrable Securities
pursuant to a Registration Statement or Prospectus, or (ii) any such Losses are
suffered by a person under the circumstance where it shall have been determined
by a court of competent jurisdiction that (w) the Holder had previously been
with furnished copies of a final or amended Prospectus, (x) delivery of a final
or amended Prospectus was required by the Securities Act to be made to such
person, (y) the untrue statement or omission of a material fact was corrected in
the final or amended Prospectus and (z) there was not sent or given to such
person, at or prior to the written confirmation of the sale of such Registrable
Securities to such person, a copy of the final or amended Prospectus.
(b) Indemnification by Holder. In connection with any
Registration Statement in which Holder is participating, Holder will furnish to
the Company in writing such information as the Company reasonably requests for
use in connection with any Registration Statement, Prospectus or preliminary
prospectus and will indemnify and hold harmless, to the fullest extent permitted
by law, the Company, its directors and officers, agents and employees, each
person who controls the Company (within the meaning of Section 15 of the
Securities Act and Section 20 of the Exchange Act), and the directors, officers,
agents or employees of such controlling persons, from and against all Losses
arising out of or based upon any untrue statement of a material fact contained
in any Registration Statement, Prospectus or preliminary prospectus or arising
out of or based upon any omission of a material fact required to be stated
therein or necessary to make the statements therein not misleading, to the
extent, but only to the extent, that such untrue statement or omission is
contained in any information so furnished in writing by Holder to the Company
specifically for use in such Registration Statement, Prospectus or preliminary
prospectus and was relied upon by the Company in the preparation of such
13
Registration Statement, Prospectus or preliminary prospectus. In no event will
the liability of selling Holder hereunder be greater in amount than the dollar
amount of the proceeds received by Holder upon the sale of the Registrable
Securities giving rise to such indemnification obligation.
(c) Conduct of Indemnification Proceedings. If any person
shall become entitled to indemnity hereunder (an "indemnified party"), such
indemnified party shall give prompt notice to the party from which such
indemnity is sought (the "indemnifying party") of any claim or of the
commencement of any action or proceeding with respect to which such indemnified
party seeks indemnification or contribution pursuant hereto; provided, however,
that the failure to so notify the indemnifying party will not relieve the
indemnifying party from any obligation or liability except to the extent that
the indemnifying party has been prejudiced materially by such failure. In case
any such action is brought against an indemnified party, the indemnifying party
shall be entitled to participate in and to assume the defense thereof, jointly
with any other indemnifying party similarly notified to the extent that it may
wish, with counsel reasonably satisfactory to such indemnified party, and after
notice from the indemnifying party to such indemnified party of its election so
to assume the defense thereof, the indemnifying party shall not be liable to
such indemnified party for any legal or other expenses subsequently incurred by
the latter in connection with the defense thereof other than reasonable costs of
investigation; provided that the indemnified party may participate in such
defense at the indemnified party's expense; and provided, further that the
indemnified party or indemnified parties shall have the right to employ one
counsel to represent it or them if, in the reasonable judgment of the legal
counsel of the indemnified party or indemnified parties, it is advisable for it
or them to be represented by separate counsel by reason of having different or
additional legal defenses (which in either case are material) from those
available to the indemnifying party, and in that event the reasonable fees and
expenses of such one counsel shall be paid by the indemnifying party. All
reasonable fees and third party expenses subject to indemnification hereunder
(including any reasonable fees and expenses incurred in connection with
investigating or preparing to defend such action or proceeding) will be paid to
the indemnified party (provided appropriate documentation for such expenses is
also submitted with such notice), as incurred, within five calendar days of
written notice thereof to the indemnifying party (regardless of whether it is
ultimately determined that an indemnified party is not entitled to
indemnification hereunder; provided, however that the indemnified party will be
required to repay to the indemnifying party any amounts paid to it for which it
is determined the indemnified party was not otherwise entitled within five
calendar days of such determination). The indemnifying party will not consent to
entry of any judgment or enter into any settlement or otherwise seek to
terminate any action or proceeding in which any indemnified party is or could be
a party and as to which indemnification or contribution could be sought by such
indemnified party under this Section 6, without the consent of the indemnified
party, unless such judgment, settlement or other termination includes as an
unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release, in form and substance reasonably satisfactory to
the indemnified party, from all liability in respect of such claim or litigation
for which such indemnified party would be entitled to indemnification hereunder.
(d) Contribution. If the indemnification provided for in
this Section 6 is unavailable to an indemnified party under Section 6(a) or 6(b)
in respect of any Losses or is insufficient to hold such indemnified party
harmless, then each applicable indemnifying party, in lieu of indemnifying such
indemnified party, will, severally but not jointly, contribute to the
14
amount paid or payable by such indemnified party as a result of such Losses, in
such proportion as is appropriate to reflect the relative fault of the
indemnifying party or indemnifying parties, on the one hand, and such
indemnified party, on the other hand, in connection with the actions, statements
or omissions that resulted in such Losses as well as any other relevant
equitable considerations. The relative fault of such indemnifying party or
indemnifying parties, on the one hand, and such indemnified party, on the other
hand, will be determined by reference to, among other things, whether any action
in question, including any untrue or alleged untrue statement of a material fact
or omission or alleged omission of a material fact, has been taken or made by,
or related to information supplied by, such indemnifying party or indemnified
party, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such action, statement or omission. The amount
paid or payable by a party as a result of any Losses will be deemed to include
any legal or other fees or expenses incurred by such party in connection with
any action or proceeding.
The parties hereto agree that it would not be just and equitable
if contribution pursuant to this Section 6(d) were determined by pro rata
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 6(d), Holder will not be required
to contribute any amount in excess of the amount by which the total price at
which the Registrable Securities sold by Holder and distributed to the public
were offered to the public exceeds the amount of any damages Holder has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
will be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
The indemnity, contribution and expense reimbursement
obligations of the Company hereunder will be in addition to any liability the
Company may otherwise have hereunder or otherwise. The provisions of this
Section 6 will survive so long as Registrable Securities remain outstanding,
notwithstanding any permitted transfer of the Registrable Securities by Holder
or any termination of this Agreement.
Section 7. Underwritten Registrations. If any of the Registrable
Securities included in any Demand Registration are to be sold in an Underwritten
Offering, Holder may select an investment banking firm or firms of international
reputation to manage the Underwritten Offering, provided that such investment
banker or bankers is (are) reasonably acceptable to the Company. The Company and
Holder agree that, in connection with any Underwritten Offering hereunder, the
relevant registration shall be in a firm commitment underwritten offering and
they shall each undertake to offer customary indemnification, representations
and warranties to the participating underwriters and to agree to any
restrictions required by the underwriters on the sale of Common Shares or other
securities by such party after the completion of the Underwritten Offering;
provided, however, that the restriction so imposed on Holder shall be no more
onerous than the restrictions imposed on any other holder of securities included
in such offering; and provided, further that the Company shall not be required
to agree to (i) restrictions with respect to the issuance of equity incentives
to employees, the issuance of securities on exercise of outstanding warrants or
convertible securities, the issuance of securities in connection with a merger,
amalgamation, acquisition, joint venture or other strategic transaction, or (ii)
any restrictions that extend beyond the restrictions imposed on Holder for a
term of ninety (90) days
15
(one hundred eighty (180) days for an initial public offering) from the
effective date of the applicable Registration Statement.
Section 8. Rule 144A. The Company hereby agrees with 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 Holder of Transfer Restricted
Securities, to Holder or any beneficial owner of Transfer Restricted Securities
in connection with any sale thereof and any prospective purchaser of such
Transfer Restricted Securities designated by Holder or any beneficial owner, the
information required by Rule 144A(d)(4) under the Securities Act in order to
permit resales of such Transfer Restricted Securities pursuant to Rule 144A. In
addition, the Company agrees to: (a) file with the SEC in a timely manner all
reports and other documents required of the Company under the Securities Act and
the Exchange Act, and (b) furnish to Holder forthwith upon request a written
statement by the Company that it has compiled with the Reporting Requirements of
Rule 144, the Securities Act and the Exchange Act, or that it qualified as a
registrant whose securities may be resold pursuant to Form S-3 or F-3 (at any
time after it so qualifies).
Section 9. Miscellaneous.
(a) Remedies. In the event of a breach by a party of its
obligations under this Agreement, each other party, in addition to being
entitled to exercise all rights granted by law, including recovery of damages,
will be entitled to specific performance of its rights under this Agreement.
Each party agrees that monetary damages would not be adequate compensation for
any loss incurred by reason of a breach by it of any provision of this Agreement
and hereby further agrees that, in the event of any action for specific
performance in respect of such breach, it will waive the defense that a remedy
at law would be adequate.
(b) Amendments and Waivers. The provisions of this Agreement
may not be amended, modified or supplemented without the prior written consent
of the Company and Purchaser.
(c) Notices. Except as otherwise expressly provided in this
Agreement, all notices, requests and other communications to Purchaser or the
Company shall be in writing (including a facsimile or similar writing) and shall
be given to such party at the following addresses or facsimile numbers, as
applicable:
If to the Company to:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Legal Department
If to Purchaser to:
c/o Singapore Technologies Telemedia Pte Ltd
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
#▇▇-▇▇/▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇) ▇▇▇▇-▇▇▇▇
Attention: General Counsel/Chief Legal Officer
with a copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
#▇▇-▇▇ ▇▇▇ ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇) ▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Each notice, request or other communication to Purchaser or the Company
shall be effective (i) if given by facsimile, at the time such facsimile is
transmitted and the appropriate confirmation is received (or, if such time is
not during a Business Day, at the beginning of the following Business Day), (ii)
if given by mail, three Business Days or, if to an address outside the United
States, seven calendar days, after such communication is deposited in the mails
with first-class postage prepaid or (iii) if given by any other means, when
delivered at the applicable address specified above. Any party hereto may change
address by reasonable prior written notice to each other party hereto.
(d) Merger, Amalgamation, Consolidation, Etc. of the
Company. If the Company is a party to any merger, amalgamation, consolidation,
recapitalization, reorganization or otherwise pursuant to which the Registrable
Securities are converted into or exchanged for securities or the right to
receive securities of any other person ("Conversion Securities"), the issuer of
such Conversion Securities shall assume (in a writing delivered to all Holders)
all obligations of the Company hereunder. The Company will not effect any
merger, amalgamation, consolidation, recapitalization, reorganization or
otherwise described in the immediately preceding sentence unless the issuer of
the Conversion Securities complies with this Section 9(d).
(e) Successors and Assigns. Subject to the terms and
conditions of the Purchase Agreement and the memorandum of association and
bye-laws of the Company, any lawful transferee of all or a portion of the
Registrable Securities or of the Preferred Shares or any other securities
convertible into or exercisable or exchangeable for the Registrable Securities,
whether or not such acquisition or conversion has actually been effected, who
has been assigned benefits or rights under this Agreement by Purchaser shall
become a Holder hereunder to the extent it agrees in writing to be bound by all
of the provisions applicable hereunder to the transferring Holder (such
acknowledgment being evidenced by execution and delivery to the Company of a
Counterpart and Acknowledgment substantially in the form of Exhibit A). Subject
to the requirements of this Section 9(e), this Agreement shall inure to the
benefit of and be binding upon the successors and permitted assigns of the
parties hereto.
(f) Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an original, but all of which
together shall constitute one instrument.
17
(g) Headings. The headings of the sections and subsections
of this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
(h) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without giving
effect to the principles of conflicts of law, other than the choice of law
principles of such state.
(i) Severability. In case any provision of this Agreement
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
(j) Entire Agreement. This Agreement and the other documents
delivered pursuant hereto and the Purchase Agreement constitute the full and
entire understanding and agreement between the parties with regard to the
subjects thereto and no party shall be liable or bound to any other in any
manner by any representations, warranties, covenants and agreements except as
specifically set forth herein and therein.
(k) Submission to Jurisdiction. With respect to any
proceedings, claim or suit arising under or relating to this Agreement, each
party hereto expressly agrees to submit hereby to the non-exclusive jurisdiction
of the Federal and state courts located in the Borough of Manhattan in New York
City. Each party hereby irrevocably waives, and agrees not to assert, by way of
motion, as a defense, counterclaim or otherwise, in any action or proceeding
with respect to this Agreement, the defense of sovereign immunity, any claim
that it is not personally subject to the jurisdiction of the above-named courts
for any reason other than the failure to serve process in accordance with this
Section 9, that it or its property is exempt or immune from jurisdiction of any
such court or from any legal process commenced in such courts (whether through
service of notice, attachment prior to judgment, attachment in aid of execution
of judgment, execution of judgment or otherwise), and to the fullest extent
permitted by applicable law, that the suit, action or proceeding in any such
court is brought in an inconvenient forum, that the venue of such suit, action
or proceeding is improper, or that this Agreement, or the subject matter hereof
or thereof, may not be enforced in or by such courts and further irrevocably
waives, to the fullest extent permitted by applicable law, the benefit of any
defense that would hinder, ▇▇▇▇▇▇ or delay the levy, execution or collection of
any amount to which the party is entitled pursuant to the final judgment of any
court having jurisdiction. Each party further agrees that service of process
mailed by prepaid registered first class mail at its principal office shall be
deemed in every respect effective service of process upon such party, as
applicable, in any suit or proceeding. Nothing herein shall affect the right of
the Company or Purchaser to serve process in any other matter permitted by law.
(l) No Interpretation Against Drafter. This Agreement is the
product of negotiations among the parties hereto represented by counsel and any
rules of construction relating to interpretation against the drafter of an
agreement shall not apply to this Agreement and are expressly waived.
[Signature Page Follows]
18
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
GLOBAL CROSSING LIMITED
By:
-------------------------------------
Name:
Title:
STT CROSSING LTD
By:
-------------------------------------
Name:
Title:
S-1
EXHIBIT A
REGISTRATION RIGHTS AGREEMENT
COUNTERPART AND ACKNOWLEDGMENT
TO: The Company
RE: The Registration Rights Agreement (the "Agreement") dated as of
_____________, 2003, by and between the Company and Holder (as defined
in the Agreement)
The undersigned hereby agrees to be bound by the terms of the Agreement
as a party to the Agreement, and shall be entitled to all benefits of Holder (as
defined in the Agreement) and shall be subject to all obligations and
restrictions of Holder pursuant to the Agreement, as fully and effectively as
though the undersigned had executed a counterpart of the Agreement together with
the other parties to the Agreement. The undersigned hereby acknowledges having
received and reviewed a copy of the Agreement.
DATED this _____ day of ____________, _____.
By:
-------------------------------------
Title:
----------------------------------
Number of _____________________________
Shares of _____________________________
Registrable Securities:________________
A-1