Exhibit 6
STOCK PURCHASE AGREEMENT
among
GLOBAL CROSSING LTD.,
IXNET, INC.,
INTERNATIONAL EXCHANGE NETWORKS, LTD.,
and
ASIA GLOBAL CROSSING LTD.
Dated as of July 10, 2001
Table of Contents
Page
ARTICLE I DEFINITIONS.......................................................2
SECTION 1.1. Definitions.........................................2
SECTION 1.2. Other Definitional Provisions.......................5
ARTICLE II PURCHASE AND SALE................................................5
SECTION 2.1. Purchase and Sale of Shares.........................5
SECTION 2.2. Purchase Price......................................6
ARTICLE III CLOSING 6
SECTION 3.1. Closing.............................................6
SECTION 3.2. Deliveries by the Seller Parties....................6
SECTION 3.3. Deliveries by Buyer.................................6
SECTION 3.4. Legend..............................................6
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE SELLER PARTIES.............7
SECTION 4.1. Organization; Subsidiaries..........................7
SECTION 4.2. Authorization; Binding Effect.......................7
SECTION 4.3. No Violations.......................................8
SECTION 4.4. Consents and Approvals..............................8
SECTION 4.5. Litigation and Claims...............................8
SECTION 4.6. Ownership of Shares.................................8
SECTION 4.7. Compliance with Laws................................9
SECTION 4.8. Asian Operations....................................9
SECTION 4.9. Taxes...............................................9
SECTION 4.10. Employee Benefits..................................10
SECTION 4.11. Properties.........................................10
SECTION 4.12. Securities Act Representations.....................10
ARTICLE V REPRESENTATIONS AND WARRANTIES OF BUYER..........................11
SECTION 5.1. Organization.......................................11
SECTION 5.2. Authorization; Binding Effect......................11
SECTION 5.3. No Violations......................................11
SECTION 5.4. Consents and Approval..............................11
SECTION 5.5. Litigation and Claims..............................12
SECTION 5.6. Validity of Purchase Price Shares..................12
SECTION 5.7. Securities Act Representations.....................12
SECTION 5.8. Investigation by Buyer; No Financial Projection
Representations or Warranties....................12
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ARTICLE VI COVENANTS.......................................................12
SECTION 6.1. Reasonable Best Efforts; Further Assurances........12
SECTION 6.2. Access.............................................13
SECTION 6.3. Tax Matters........................................13
SECTION 6.4. Benefit Plans......................................14
SECTION 6.5. Net Debt Provisions................................14
ARTICLE VII CONDITIONS TO CLOSING..........................................16
SECTION 7.1. Conditions to the Obligations of Buyer and the
Seller Parties...................................16
SECTION 7.2. Conditions to the Obligations of Buyer.............16
SECTION 7.3. Conditions to the Obligations of the Seller
Parties..........................................17
ARTICLE VIII INDEMNIFICATION...............................................17
SECTION 8.1. Indemnification by Buyer...........................17
SECTION 8.2. Indemnification by Seller Parties..................18
SECTION 8.3. Indemnification Procedures.........................18
SECTION 8.4. Indemnification Limits.............................18
ARTICLE IX MISCELLANEOUS...................................................19
SECTION 9.1. Non-Survival of Representations, Warranties and
Agreements.......................................19
SECTION 9.2. Notices............................................19
SECTION 9.3. Amendment; Waiver; Invalidity......................20
SECTION 9.4. Assignment.........................................20
SECTION 9.5. Entire Agreement...................................20
SECTION 9.6. Parties in Interest................................21
SECTION 9.7. Public Announcements...............................21
SECTION 9.8. Expenses...........................................21
SECTION 9.9. Schedules..........................................21
SECTION 9.10. Governing Law......................................21
SECTION 9.11. Counterparts.......................................21
SECTION 9.12. Headings...........................................21
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SCHEDULES
SCHEDULE 4.1......Shares Owned by Each Seller
SCHEDULE 4.1(b)...Jurisdiction of Each Transferred Company
SCHEDULE 4.1(c)...Subsidiary Exceptions
SCHEDULE 4.3......Violations
SCHEDULE 4.4......Required Consents and Approvals
SCHEDULE 4.5......Seller Party Litigation
SCHEDULE 4.6......Authorized and Issued Share Capital
SCHEDULE 4.7(a)...Violation of Laws
SCHEDULE 4.7(b)...Permits Not Held
SCHEDULE 4.8......Parts of Asian Business To Be Transferred
SCHEDULE 4.9......Taxes
SCHEDULE 4.10.....Employee Benefits
SCHEDULE 4.11.....Owned Real Property/Leases
SCHEDULE 5.3......Violations
SCHEDULE 5.4......Buyer Consents
SCHEDULE 5.5......Buyer Litigation
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THIS STOCK PURCHASE AGREEMENT, dated as of July 10, 2001 (this
"Agreement"), is entered into by GLOBAL CROSSING LTD., a company organized
under the laws of Bermuda ("Global Crossing"), as Sellers' representative,
IXNET, INC., a company organized under the laws of Delaware and INTERNATIONAL
EXCHANGE NETWORKS, LTD., a company organized under the laws of Delaware (each,
a "Seller" and collectively and together with Global Crossing, the "Seller
Parties"), and ASIA GLOBAL CROSSING LTD., a company organized under the laws
of Bermuda ("Buyer").
W I T N E S S E T H
WHEREAS, on June 14, 2000, Global Crossing acquired each of IPC
Communications, Inc. ("IPC") and IXNet, Inc. (collectively, "IPC/IXNet")
pursuant to separate merger transactions;
WHEREAS, at the time of these merger transactions it was not practicable
for Buyer to acquire the Asian operations of IPC/IXNet as it was not yet a
public company, even though Buyer desired to do so;
WHEREAS, since the time of these merger transactions it has been
contemplated that IPC/IXNet's Asian operations would become part of Buyer's
operations at the earliest convenient time;
WHEREAS, now that it is organizationally feasible to do so, each of
Global Crossing and Buyer desires that all of the Asian operations acquired by
Global Crossing in its acquisition of IPC/IXNet, along with any additions to
such operations acquired or developed by the Seller Parties since such
acquisition, be transferred to Buyer in the manner contemplated herein;
WHEREAS, on the terms and subject to the conditions set forth herein,
Sellers desire to sell to Buyer, and Buyer desires to purchase from the
Sellers, the Shares (as defined below) Owned (as defined below) by the
Sellers, which Shares comprise all of the outstanding capital stock of each
Transferred Company;
WHEREAS, Saturn Global Network Services Holdings Limited ("Saturn") is a
disregarded entity for U.S. federal income tax purposes and the sale of the
Shares of such entity will be treated for such purposes as a sale of the
assets of Saturn which consist of the Shares of certain of the Transferred
Companies; and
WHEREAS, the parties intend that each sale of each Transferred Company
treated as a corporation for U.S. federal income tax purposes for Buyer Class
B Common Stock be treated as a reorganization under Section 368(a) of the
Code;
NOW, THEREFORE, in consideration of the mutual promises contained herein
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. As used in this Agreement, the following
capitalized terms shall have the following meanings, unless the context
requires otherwise:
"Action" is defined in Section 4.5 herein.
"Affiliate" means, with respect to a Person, any other Person who,
directly or indirectly, Controls, is Controlled by or is under common Control
with such first Person.
"Agreement" is defined in the preamble hereto.
"Business Day" means any day other than a Saturday, a Sunday or a day on
which banks in New York City or Bermuda are authorized or required by law to
remain closed.
"Buyer" is defined in the preamble hereto.
"Buyer Plans" is defined in Section 6.4(a) herein.
"Closing" is defined in Section 3.1 herein.
"Closing Date" is defined in Section 3.1 herein.
"Code" means the U.S. Internal Revenue Code of 1986, as amended.
"Control" means, with respect to any Person, the power to direct or cause
the direction of the management of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise.
The terms "Controlling" and "Controlled" have meanings correlative to the
foregoing.
"Controlled Group" is defined in Section 4.10(b) herein.
"Employee Benefit Plan" is defined in Section 4.10(a).
"ERISA" means the U.S. Employee Retirement Income Security Act of 1974,
as amended.
"Global Crossing" is defined in the preamble hereto.
"Governmental Authority" means any domestic or foreign national, state,
provincial, municipal or other local, multi-national or supra-national
judicial, legislative,
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executive, administrative or regulatory authority or any government or
private body exercising any regulatory or tax authority.
"Governmental Order" means any order, writ, judgment, injunction,
decision, administrative act or decree entered, adopted or taken by or with
any Governmental Authority of competent jurisdiction.
"IPC" is defined in the recitals hereto.
"IPC/IXNet" is defined in the recitals hereto.
"Indemnified Party" is defined in Section 8.3 herein.
"Indemnifying Party" is defined in Section 8.3 herein.
"Law" means any law, statute, ordinance, rule, regulation, order, writ,
judgment, injunction or decree of any Governmental Authority.
"Liens" is defined in Section 2.1 herein.
"Losses" shall mean any and all damages, fines, penalties, deficiencies,
losses, liabilities (including settlements and judgments) and expenses
(including interest, court costs, reasonable fees and expenses of attorneys,
accountants and other experts or other reasonable fees and expenses of
litigation or other proceedings or of any claim, default or assessment).
"Material Adverse Effect" means (i) when used in respect of any of the
Seller Parties, an effect that is materially adverse to the business, assets,
liabilities, results of operations or financial condition of the Transferred
Companies taken as a whole, and (ii) when used in respect of any of the Seller
Parties or Buyer, as the case may be, any material adverse effect on such
party's ability to consummate the transactions contemplated hereby.
"Net Debt Schedule" is defined in Section 6.5(b) herein.
"Organizational Documents" means, to the extent the same exist, with
respect to any corporation, the certificate or articles of incorporation and
by-laws of such corporation; with respect to a partnership, the certificate of
partnership or of limited partnership (as applicable) and partnership
agreement (together with Organizational Documents, as defined herein, with
respect to each general partner of such partnership); with respect to a
limited liability company, the certificate of formation or articles of
organization and operating agreement; and with respect to any other entity,
all such similar organizational and charter documents governing the formation
and conduct of the affairs of such entity.
"Owned" is defined in Section 2.1 herein.
"Permit" is defined in Section 4.7(b) herein.
"Permitted Encumbrances" means (i) Liens for taxes not yet subject to
penalties for non-payment or which are being actively contested in good faith
by appropriate proceedings,
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(ii) Liens arising out of operation of Law with respect to liability incurred
in the ordinary course of business and (iii) minor imperfections in title and
minor encroachments, if any, not material in amount and that, individually or
in the aggregate, do not have a Material Adverse Effect.
"Person" means an individual, a corporation, a limited liability company,
a partnership, an association, a trust or other entity or organization.
"Purchase Price" is defined in Section 2.2 herein.
"Purchase Price Shares" is defined in Section 2.2 herein.
"Saturn" is defined in the recitals hereto.
"Securities Act" means the United States Securities Act of 1933, as
amended.
"Seller" is defined in the preamble hereto.
"Seller Parties" is defined in the preamble hereto.
"Shares" means all of the outstanding shares of capital stock of the
Transferred Companies.
"Subsidiary" means, with respect to any Person, any other Person 50% or
more of the voting equity of which is owned, directly or indirectly, by such
first Person.
"Tax Audit" means a notice of an audit by any Tax Authority, the
initiation of an examination of a Transferred Company or otherwise the
assertion of a claim, an assessment or the dispute of the amount of any Taxes.
"Tax Authority" means any competent Governmental Authority responsible
for the determination, assessment or collection of Taxes.
"Tax Contest" is defined in Section 6.3(b) herein.
"Tax Law" means any Law relating to Taxes.
"Tax Returns" means all reports and returns (including any schedules,
elections or other documents and all supporting records) required to be filed
with a Tax Authority or required to be prepared and retained with respect to
Taxes relating to and including the operations of the Asian business as
currently conducted.
"Taxes" means all national, Federal, state, local or foreign taxes,
including, but not limited to, income, gross receipts, consumption, stamp and
transfer (other than Transfer Taxes), windfall profits, alternative minimum,
value added, severance, property, production, sales, use, license, excise,
franchise, employment, withholding or similar taxes, together with any
interest or penalties with respect thereto and any interest in respect of such
penalties.
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"Transfer Taxes" means all excise, ad valorem, sales, use, transfer
(including real property transfer or gains), stamp, documentary, filing,
recordation and other similar taxes together with any interest, additions or
penalties with respect thereto and any interest in respect of such additions
or penalties directly or indirectly resulting from or arising out of the
transactions contemplated by this Agreement.
"Transferred Company" or "Transferred Companies" means each of the
Subsidiaries of Global Crossing listed on Schedule 4.1.
"Transferred Employee" is defined in Section 6.4(a) herein.
SECTION 1.2. Other Definitional Provisions. (a) The meanings given to
terms defined herein shall be equally applicable to both the singular and
plural forms of such terms. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms.
(b) All references herein to Articles, Sections, Schedules and Exhibits
shall be deemed to be references to Articles and Sections of and Schedules and
Exhibits to this Agreement, unless the context shall require otherwise. All
Schedules and Exhibits attached hereto shall be deemed incorporated herein as
if set forth in full herein.
(c) The words "hereof," "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole
and not to any particular provisions of this Agreement.
(d) The words "include", "includes" and "including" shall be deemed to be
followed by the phrase "without limitation".
ARTICLE II
PURCHASE AND SALE
SECTION 2.1. Purchase and Sale of Shares. On the terms and subject to
the conditions set forth herein, on the Closing Date, each Seller, severally
and not jointly, hereby agrees to sell, convey, transfer and deliver to Buyer
all of the Shares Owned by such Seller, and Buyer hereby agrees to purchase,
acquire and accept from each Seller all of the Shares Owned by such Seller and
in each case free and clear of all liens, pledges, claims, charges, security
interests, restrictions, easements or other encumbrances of any kind or nature
(collectively, "Liens"). For purposes hereof, Shares are "Owned" by any Seller
if (i) such Seller is the holder of record on the books of the relevant
Transferred Company of such Shares or (ii) such Seller is the "beneficial
owner" of such Shares (within the meaning of Rules 13d-3 and 13d-5 of the U.S.
Securities Exchange Act of 1934, as amended, except that a Person will be
deemed to own all Shares that such Person has the right to acquire, regardless
of whether such right is exercisable within 60 days after the date as of which
such determination is being made).
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SECTION 2.2. Purchase Price. In consideration for the sale,
conveyance, transfer, assignment and delivery, to Buyer of the Shares on the
Closing Date, Buyer shall issue, convey and deliver to Global Crossing, as
representative of the Sellers (and each Seller hereby designates Global
Crossing as its representative for purposes of this Agreement) (or its
designated direct or indirect wholly owned subsidiary or subsidiaries)
20,000,000 shares of Buyer's Class B Common Stock, par value $0.01 per share
(the "Purchase Price," and the shares comprising the Purchase Price being the
"Purchase Price Shares"). Each of the parties agrees and acknowledges that all
Purchase Price Shares shall be subject to, and entitled to the benefits of,
each of the existing agreements between or among Global Crossing and Buyer or
their respective Affiliates regarding Global Crossing's ownership, voting and
other rights and obligations in respect of Buyer's Class B Common Stock.
ARTICLE III
CLOSING
SECTION 3.1. Closing. The closing of the transactions contemplated
hereby (the "Closing") shall take place at the offices of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ at 10:00 a.m.
New York City time on July 10, 2001 (the "Closing Date"), or at such other
place, time or date as may be agreed upon by Global Crossing and Buyer. The
Closing shall be effective as of the close of business, New York City time, on
the Closing Date.
SECTION 3.2. Deliveries by the Seller Parties. At the Closing, each
Seller shall deliver to Buyer (or its designated direct or indirect wholly
owned subsidiary or subsidiaries) (i) duly executed share transfers or
certificates, or a legally applicable instrument showing ownership, in each
case in a form suitable for transfer, representing the Shares Owned by such
Seller free and clear of any Liens, with all necessary stock transfer tax
stamps attached thereto, and (ii) all documents required to be delivered by
such Seller pursuant to Article VII.
SECTION 3.3. Deliveries by Buyer. At the Closing, Buyer shall deliver
to Sellers (i) the Purchase Price Shares in the form of duly executed stock
certificates, in a form suitable for transfer, free and clear of any Liens,
except as otherwise provided in Section 3.4, and (ii) all documents required
to be delivered by Buyer to Global Crossing pursuant to Article VII.
SECTION 3.4. Legend. Each certificate representing the Purchase Price
Shares shall be stamped or otherwise imprinted with a legend in the following
form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"),
OR UNDER THE SECURITIES LAWS OF ANY STATE. SUCH SECURITIES MAY NOT BE
SOLD OR OFFERED FOR SALE OR OTHERWISE HYPOTHECATED OR DISTRIBUTED
EXCEPT (A) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH
SECURITIES UNDER THE ACT, OR (B) PURSUANT TO A VALID EXEMPTION FROM
SUCH
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REGISTRATION UNDER THE ACT AND UNDER THE SECURITIES LAW OF ANY
STATE."
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE SELLER PARTIES
Each Seller Party hereby represents and warrants to Buyer as follows:
SECTION 4.1. Organization; Subsidiaries. (a) Each Seller Party is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization and has the requisite corporate, partnership,
limited liability company or other power and authority to carry on its
business as conducted and, in the case of each Seller to Own the Shares listed
opposite such Seller's name on Schedule 4.1 hereto, except where the failure
to do so or be so would not, individually or in the aggregate, have a Seller
Material Adverse Effect. Each Seller has delivered to Buyer complete and
correct copies of the Organizational Documents of the Transferred Companies.
(b) Each Transferred Company is duly organized, validly existing and in
good standing under the laws of its jurisdiction of organization, with the
requisite power and authority to own, operate or lease the properties and
assets owned, operated or leased by such Transferred Company and to carry on
its business as currently conducted and is duly licensed and qualified to do
business in each jurisdiction in which the properties owned or leased by it or
the operation of its business makes such licensure or qualification necessary,
except where the failure to be so licensed or qualified would not,
individually or in the aggregate, have a Seller Material Adverse Effect.
Schedule 4.1(b) lists for each of the Transferred Companies the jurisdiction
of its organization.
(c) The outstanding shares of capital stock of each Subsidiary of a
Transferred Company, except as set forth on Schedule 4.1(c), have been validly
issued and are fully paid and, where applicable, nonassessable and are
directly or indirectly Owned beneficially and of record by such Transferred
Company free and clear of any Liens, other than any Permitted Encumbrances,
except where the failure to be so issued or held would not, individually or in
the aggregate, have a Seller Material Adverse Effect.
SECTION 4.2. Authorization; Binding Effect. Each Seller Party has the
requisite corporate, partnership, limited liability company or other power and
authority to execute and deliver this Agreement and to perform its obligations
hereunder. The execution and delivery by each Seller Party of this Agreement
and the performance by such Seller Party of its obligations hereunder and the
consummation by such Seller Party of the transactions contemplated hereby have
been duly authorized by all requisite corporate action on its part. This
Agreement has been duly executed and delivered by each Seller Party and,
assuming due authorization, execution and delivery of this Agreement by Buyer
and each other Seller Party, this Agreement constitutes a valid and legally
binding obligation of such Seller Party enforceable against such Seller Party
in accordance with its terms, except to the extent enforceability may be
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limited by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or similar laws relating to creditors' rights generally and subject
to equitable principles.
SECTION 4.3. No Violations. Except as set forth in Schedule 4.3, the
execution, delivery and performance of this Agreement by each Seller Party and
the consummation by such Seller Party of the transactions contemplated hereby
does not and will not (i) violate any (A) Law applicable to such Seller Party,
any Transferred Company or any of their respective assets or (B) provision of
the Organizational Documents of such Seller Party or any Transferred Company,
as applicable, or (ii) result in the breach, violation, suspension or
termination of, give rise to any right of termination, purchase or amendment
under, require the consent or notification under, result in the loss of any
benefit, right or license under, increase or accelerate any liability of any
party under, result in the creation of a Lien, or constitute a default under
(in each case, with or without the giving of notice or the lapse of time or
both) any provision of any agreement, contract, indenture, instrument,
commitment, lease, note, license, franchise or Permit to which any Seller
Party or Transferred Company is a party or is subject or by which any assets
of any of them are bound, except, in the case of clause (i)(A) or (ii), as
would not, individually or in the aggregate, result in a Seller Material
Adverse Effect.
SECTION 4.4. Consents and Approvals. Except as set forth in Schedule 4.4,
the execution, delivery and performance of this Agreement by each Seller Party
and the consummation by such Seller Party of the transactions contemplated
hereby does not and will not require any consent, approval, filing or notice
under any Law applicable to such Seller Party, any Transferred Company or any
of their respective assets or require any consent, approval, license, Permit,
order or authorization of, or declaration, filing or registration with, any
Governmental Authority or other Person, except where the failure to obtain
such consent, approval, license, Permit, order or authorization or make such
declaration, filing or registration would not result, individually or in the
aggregate, in a Seller Material Adverse Effect.
SECTION 4.5. Litigation and Claims. Except as set forth in Schedule 4.5,
there is no action, suit, dispute, claim or proceeding (including arbitration,
governmental or administrative proceedings) (each, an "Action") pending before
any court or arbitration tribunal or before any Governmental Authority or, to
the knowledge of each Seller Party, threatened against such Seller Party or
any Transferred Company which would, if adversely determined, have a Seller
Material Adverse Effect. Except as set forth in Schedule 4.5, there is not
outstanding against any Seller or any Transferred Company or any of their
respective assets any material decision, judgment, decree, injunction, rule or
order of any court, arbitrator or Governmental Authority.
SECTION 4.6. Ownership of Shares. All of the Shares (i) have been
duly authorized and validly issued and (ii) are fully paid and nonassessable.
Each Share is Owned solely by the Seller indicated on Schedule 4.1 as the
Owner of such Share and each such Seller has the right to transfer legal and
beneficial title to the Shares Owned by it, free and clear of all Liens. The
authorized and issued share capital of each of the Transferred Companies and
its Subsidiaries is set forth on Schedule 4.6 and the Shares constitute all of
the authorized and issued share capital of the Transferred Companies. There
are no outstanding options, warrants, rights, calls, preemptive rights,
agreements, convertible or exchangeable securities or other commitments (other
than this Agreement) pursuant to which any Seller or any of its Affiliates is
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or may become obligated to issue, sell, purchase, return, transfer, otherwise
dispose of, redeem, repurchase or have registered any shares in the capital of
or other securities or interests Owned by any Seller or any of its Affiliates
or which provides for any stock appreciation or similar right with respect to
any Transferred Company and there are no voting trusts to which the Shares are
subject or any agreements or understandings affecting the voting rights, right
to transfer or other incidents of record or beneficial ownership pertaining to
the Shares, except where such agreement or arrangement would not, individually
or in the aggregate, result in a Seller Material Adverse Effect. Upon the
delivery of the Shares in the manner contemplated by Section 3.2, Buyer (or
its designated direct or indirect wholly owned subsidiary or subsidiaries),
will acquire beneficial ownership of any legal and valid title to all Shares,
free and clear of all Liens (other than Liens created by Buyer). The
representations and warranties included in this Section 4.6 shall not apply to
any entity set forth in Schedule 4.1(c).
SECTION 4.7. Compliance with Laws. (a) Except as set forth in Schedule
4.7(a) and except for compliance with Tax Laws (which is the subject of
Section 4.9) and Laws relating to employee benefits (which is the subject of
Section 4.10), the respective businesses of the Transferred Companies are
conducted in compliance with all applicable Laws and Governmental Orders,
except where such non-compliance would not, individually or in the aggregate,
result in a Seller Material Adverse Effect.
(b) Except as set forth in Schedule 4.7(b), each Transferred Company
holds all permits, licenses, rights, consents, authorizations, certificates,
exemptions and approvals of Governmental Authorities (collectively, "Permits")
necessary for the ownership and conduct of its business as it is currently
conducted and such Permits are in full force and effect, except where the
failure to hold any such Permit in full force and effect would not,
individually or in the aggregate, result in a Seller Material Adverse Effect.
Neither the Seller Parties nor the Transferred Companies have knowledge of
revocation of or default under any Permits or of any non-compliance with any
applicable Law or Governmental Order, which revocation, default or
non-compliance would, if adversely determined, have a Seller Material Adverse
Effect.
SECTION 4.8. Asian Operations. Except as set forth on Schedule 4.8,
the assets, properties, interests and rights of the Transferred Companies
constitute all of the material assets, properties, interests and rights of
every type and description, whether real, personal or mixed, tangible or
intangible, that are solely used in the Asian business as currently conducted
by IPC/IXNet.
SECTION 4.9. Taxes. Except as set forth in Schedule 4.9: (a) All
material Tax Returns that are required to have been filed or prepared and
retained (taking into account applicable extensions) by or on behalf of any
Transferred Company have been timely filed or prepared and retained in good
faith in the manner prescribed by the appropriate Tax Law.
(b) All material Taxes shown to be due on the Tax Returns referred to in
clause (a) of this Section 4.9 or, to the knowledge of the Seller Parties,
finally determined by the applicable Tax Authority have been timely paid (to
the extent required to be paid) or recorded as reserves or liabilities on the
appropriate books and records of the Seller Parties or the Transferred
Companies.
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SECTION 4.10. Employee Benefits. (a) Each material "employee benefit
plan" (within the meaning of Section 3(3) of ERISA, including, without
limitation, multiemployer plans within the meaning of Section 3(37) of ERISA),
and each stock purchase, stock option, severance, employment,
change-in-control, fringe benefit, collective bargaining, bonus, incentive,
deferred compensation, and other employee benefit plan, agreement, program,
policy or other arrangement, whether or not subject to ERISA, that is
maintained or otherwise contributed to by the Transferred Companies or any of
their Affiliates for the benefit of the current or former employees or
directors of the Transferred Companies ("Employee Benefit Plan") that is
intended to be qualified within the meaning of Section 401(a) of the Code has
received a favorable determination letter as to its qualification. Except as
would not have a Seller Material Adverse Effect, each Employee Benefit Plan
has been maintained and administered at all times substantially in compliance
with its terms and with all applicable laws, rules and regulations, including,
without limitation, ERISA and the Code.
(b) Except as set forth on Schedule 4.10, no Employee Benefit Plan is a
"multiemployer plan" (as defined in Section 4001(a)(3) of ERISA). No event or
condition has occurred in connection with which the Transferred Companies or
any of its subsidiaries or any member of their "Controlled Group" (defined as
any organization which is a member of a controlled group of organizations
within the meaning of Code Sections 414(b), (c), (m) and (o)) would be
reasonably likely to incur liability that would have a Seller Material Adverse
Effect.
(c) To the knowledge of the Seller Parties, none of the Transferred
Companies sponsor, contribute to or maintain any Employee Benefit Plans
subject to ERISA.
SECTION 4.11. Properties. Except as set forth in Schedule 4.11, to the
knowledge of the Seller Parties, each Transferred Company (i) has good and
marketable title to all the properties and assets owned by the Transferred
Company which are, individually or in the aggregate, material to the
Transferred Companies' businesses free and clear of (A) all Liens other than
Permitted Encumbrances, and (B) all real property mortgages and deeds of trust
and (ii) is the lessee of all leasehold estates which are material to the
Transferred Companies' businesses taken as a whole and is in possession of the
properties purported to be leased thereunder, and each such lease is in full
force and effect and is valid without material default thereunder by the
lessee or, to Seller's knowledge, the lessor.
SECTION 4.12. Securities Act Representations. Each Seller is acquiring
the Purchase Price Shares to be acquired by it hereunder solely for the
purpose of investment and not with a view to, or for sale in connection with,
any distribution thereof in violation of the Securities Act. Each Seller
acknowledges that the Purchase Price Shares to be acquired by it hereunder are
not registered under any securities laws and that such Purchase Price Shares
may not be transferred or sold except pursuant to the registration and other
provisions of applicable securities laws or pursuant to an applicable
exemption therefrom.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to each Seller Party as follows:
SECTION 5.1. Organization. Buyer is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation and has the requisite corporate or other power and authority to
carry on its business as conducted and to acquire the Shares to be purchased
by it hereunder.
SECTION 5.2. Authorization; Binding Effect. Buyer has the requisite
corporate or other power and authority to execute and deliver this Agreement
and to perform its obligations hereunder. The execution and delivery by Buyer
of this Agreement and the performance by it of its obligations hereunder and
the consummation by it of the transactions contemplated hereby have been duly
authorized by all requisite corporate action on its part and no other
corporate proceedings on the part of Buyer are required in connection with the
execution, delivery and performance by any of such parties of this Agreement
or the consummation by any of such parties of the transactions contemplated
hereby. This Agreement has been duly executed and delivered by Buyer and,
assuming due authorization, execution and delivery of this Agreement by each
Seller Party, this Agreement constitutes a valid and legally binding
obligation of Buyer enforceable against Buyer in accordance with its terms
except to the extent enforceability may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or similar laws relating to
creditors' rights generally and subject to general equitable principles.
SECTION 5.3. No Violations. Except as set forth in Schedule 5.3, the
execution, delivery and performance by Buyer of this Agreement and the
consummation by Buyer of the transactions contemplated hereby does not and
will not (i) violate any (A) Law applicable to Buyer or any of its assets or
(B) provision of the Organizational Documents of Buyer or (ii) result in the
breach, violation, suspension or termination of, give rise to any right of
termination, purchase or amendment under, require consent or notification
under, result in the loss of any benefit, right or license under, increase or
accelerate the liability of any party under, result in the creation of any
Lien on any assets of Buyer or constitute a default under (in each case, with
or without the giving of notice or the lapse of time or both) any provision of
any agreement, contract, indenture, instrument, commitment, license, franchise
or Permit, to which Buyer is a party or is subject to or by which any assets
of any of them is bound except, in the case of clause (i)(A) or (ii), as would
not, individually or in the aggregate, have a Buyer Material Adverse Effect.
SECTION 5.4. Consents and Approval. Except as set forth in Schedule 5.4,
the execution, delivery and performance of this Agreement by Buyer and the
consummation by Buyer of the transactions contemplated hereby does not and
will not require any consent, approval, license, Permit, order or
authorization of or declaration, filing or registration with, any Governmental
Authority or other Person, except where the failure to obtain such consent,
approval, license, Permit, order or authorization or make such declaration,
filing or registration would not result, individually or in the aggregate, in
a Buyer Material Adverse Effect.
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SECTION 5.5. Litigation and Claims. Except as set forth in Schedule 5.5,
there is no Action pending before any court or arbitration tribunal or before
any Governmental Authority or, to the knowledge of Buyer, threatened against
Buyer which would, if adversely determined, have a Buyer Material Adverse
Effect.
SECTION 5.6. Validity of Purchase Price Shares. All of the Purchase
Price Shares are duly authorized, validly issued and fully paid and are not
subject to, nor were they issued in violation of, any preemptive rights. Buyer
has an adequate number of shares of its Class A Common Stock reserved for
issuance and approved for listing on the New York Stock Exchange, Inc. to
allow for the conversion of all outstanding shares of its Class B Common Stock
(after giving effect to the issuance of the Purchase Price Shares hereunder)
being transferred under this Agreement to Class A Common Stock.
SECTION 5.7. Securities Act Representations. Buyer is acquiring the
Shares solely for the purpose of investment and not with a view to, or for
sale in connection with, any distribution thereof in violation of the
Securities Act. Buyer acknowledges that the Shares are not registered under
any securities laws and that such Shares may not be transferred or sold except
pursuant to the registration and other provisions of applicable securities
laws or pursuant to an applicable exemption therefrom.
SECTION 5.8. Investigation by Buyer; No Financial Projection
Representations or Warranties. As part of its own investigation and evaluation
of the Transferred Companies, Buyer has received or has reviewed operating,
business and financial information including financial statements, forecasts,
projections and other oral or written information and materials with respect
to the Transferred Companies made available by Global Crossing or its
representatives. There are assumptions and uncertainties inherent in
projections and forecasts for the Transferred Companies and Buyer is familiar
with such assumptions and uncertainties. Buyer has made its own evaluation of
such financial information and acknowledges that neither the Seller Parties
nor any other Person is making any representations or warranties with respect
to such operating, business or financial information except for the specific
representations and warranties set forth in Article IV.
ARTICLE VI
COVENANTS
SECTION 6.1. Reasonable Best Efforts; Further Assurances. Upon the
terms and subject to the conditions set forth in this Agreement, each of the
parties agrees to use its reasonable best efforts to take, or cause to be
taken, all actions, and to do, or cause to be done, and to assist and
cooperate with the other parties in doing, all things necessary, proper or
advisable to consummate and make effective, in the most expeditious manner
practicable, the transactions contemplated by this Agreement. Each of the
parties hereto will use its reasonable best efforts and cooperate with one
another (i) in promptly determining whether any filings are required to be
made or consents, approvals, waivers, permits or authorizations are required
to be obtained (or, which if not obtained, would result in an event of
default, termination or acceleration of any agreement or any put right under
any agreement) under any applicable Law
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or from any Governmental Authorities or other Persons, including parties to
loan agreements or other debt instruments and including such consents,
approvals, waivers, permits or authorizations as may be required or necessary
to transfer any assets and related liabilities of the Transferred Companies in
connection with the transactions contemplated by this Agreement and (ii) in
promptly making any such filings, in furnishing information required in
connection therewith and in timely seeking to obtain any such consents,
approvals, permits or authorizations.
SECTION 6.2. Access. Following the Closing, subject to applicable legal
requirements, each party shall permit the other parties and their respective
representatives to have reasonable access, during regular business hours and
upon reasonable advance notice, to the books and records (including, without
limitation, any Tax-related information) of the Transferred Companies and such
other information with respect to the business and properties of the
Transferred Companies as either party may from time to time reasonably require
to complete Tax or other governmental or regulatory filings.
SECTION 6.3. Tax Matters. (a) Unless a final United States Governmental
Order so mandates, Buyer agrees that it shall not and shall not cause or
permit IXNet Australia Pty Limited or IPC Australia Pty Limited to file any
U.S. income Tax Returns for any taxable period (or portion thereof) ending on
or before the Closing Date (or for the portion of a year beginning before and
ending after the Closing Date that ends on the Closing Date).
(b) If a notice of deficiency, proposed adjustment, assessment, audit,
examination or other administrative or court proceeding, suit, dispute or
other claim (a "Tax Contest") shall be delivered, sent, commenced, or
initiated to or against Buyer or IXNet Australia Pty Limited or IPC Australia
Pty Limited by any U.S. Tax Authority with respect to a taxable period (or
portion thereof) of IXNet Australia Pty Limited or IPC Australia Limited
ending on or before the Closing Date, Buyer shall promptly notify the Seller
Parties in writing of such Tax Contest. The Seller Parties shall have the sole
right to represent the Buyer's and the interests of IXNet Australia Pty
Limited or IPC Australia Limited and to employ counsel of its choice at its
expense with respect to any such Tax Contest; and Buyer shall execute and
cause IXNet Australia Pty Limited or IPC Australia Limited to execute any
powers of attorney or other documents or forms necessary in order to allow the
Seller Parties to control such contest and to settle any such Tax Contest.
(c) Buyer, the Transferred Companies and the Seller Parties shall
cooperate fully, as and to the extent reasonably requested by the other party,
in connection with any Tax Contest described in Section 6.3(b) hereof or with
respect to any U.S. Tax Audit of the Seller Parties with respect to any
taxable period (or portion thereof) ending on or before the Closing Date. Such
cooperation shall include the retention and (upon the other party's request)
the provision of records and information which are reasonably relevant to any
such audit, litigation or other proceeding and making employees available on a
mutually convenient basis to provide additional information and explanation of
any material provided hereunder. Buyer, the Transferred Companies and the
Seller Parties agree (A) to retain all books and records with respect to Tax
matters pertinent to the Transferred Companies relating to any taxable period
beginning before the Closing Date until the expiration of the applicable U.S.
statute of limitations (and, to the extent notified by Buyer or the Seller
Parties, any extensions thereof) of the respective taxable periods, and to
abide by all record retention agreements entered into with
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any Tax Authority, and (B) to give the other party reasonable written notice
prior to transferring, destroying or discarding any such books and records
and, if the other party so requests, the Transferred Companies or the Seller
Parties, as the case may be, shall allow the other party to take possession of
such books and records.
(d) Tax-Free Reorganization Treatment. (i) The parties agree that
each sale for Buyer Class B Common Stock of a Transferred Company treated as a
corporation for U.S. federal income tax purposes is intended to be treated as
a reorganization under Section 368(a) of the Code. Neither Buyer nor the
Seller Parties shall, nor shall they permit any of their respective Affiliates
to, take or cause to be taken any action that would disqualify each exchange
as a reorganization within the meaning of Section 368(a) of the Code.
(ii) Each of the Buyer and the Seller Parties shall report (to the extent
such reporting is required by applicable law) the exchange of each Transferred
Company treated as a corporation for U.S. federal income tax purposes for
Buyer Class B Common Stock as a reorganization within the meaning of Section
368(a) of the Code, unless otherwise required pursuant to a "determination"
within the meaning of Section 1313(a) of the Code.
(e) U.S. Taxes. The parties hereto agree that any Taxes owing to any U.S.
Tax Authority, with respect to IXNet Australia Pty Limited or IPC Australia
Pty Limited, for any period prior to the date hereof shall be solely the
obligation of the Seller Parties.
SECTION 6.4. Benefit Plans. (a) In the event that any employees of the
Transferred Companies ("Transferred Employee") become a participant in an
employee benefit plan, program or arrangement maintained by or contributed to
by the Buyer, or its Subsidiaries ("Buyer Plans"), Buyer shall cause such
Buyer Plans to treat the prior service of such Transferred Employee with the
Transferred Companies or their Affiliates or IPC, to the extent such prior
service was recognized under the comparable IPC plans, as service rendered to
the Buyer for all purposes, including eligibility, vesting and benefit levels
(other than benefit accruals under defined benefit pension plans), as
applicable in such plans; provided, however, that Buyer may cause a reduction
of benefits under any such plans, programs or arrangements to the extent
necessary to avoid duplication of benefits with respect to the same covered
years of service.
(b) No provision of this Section 6.4 shall create any third party
beneficiary rights in any employee or former employee of the Transferred
Companies (including any beneficiary or dependent thereof) in respect of
continued employment or resumed employment and no provision of this Section
6.4 shall create any rights in any such persons in respect of any benefits
that may be provided, directly or indirectly under any Employee Benefit Plan
or arrangement.
SECTION 6.5. Net Debt Provisions. (a) As of the Closing Date, (i)
Global Crossing or Buyer, as the case may be, shall transfer or cause to be
transferred all of the cash and cash equivalents of the Transferred Companies
and their respective Subsidiaries, outstanding as of such date, into one or
more bank accounts of Global Crossing (or its designees), so that following
such transfers, the aggregate cash and cash equivalents balance of the
Transferred Companies and their respective Subsidiaries shall be equal to zero
and (ii) Global Crossing or
14
Buyer, as the case may be, shall, through repayment, forgiveness or otherwise,
repay or cause to be repaid, in full and in the appropriate currencies, all of
the intercompany and long-term third party liabilities and allocated
intercompany office expenses not to exceed $125,000 (including all accrued and
unpaid interest thereon) of the Transferred Companies and their respective
Subsidiaries, outstanding as of such date, so that following such repayments,
the aggregate intercompany and long-term third party liabilities of the
Transferred Companies and their respective Subsidiaries shall be equal to
zero. For purposes of this Section 6.5, intercompany liabilities shall refer
to obligations between and among the Seller Parties and the Transferred
Companies and their respective Subsidiaries and long-term third party
liabilities shall be defined in accordance with generally accepted accounting
principles.
(b) No more than 10 Business Days after the Closing, Global Crossing
shall deliver or cause to be delivered to Buyer a schedule (the "Net Debt
Schedule") setting forth, in reasonable detail, (i) the cash and cash
equivalents of the Transferred Companies and their respective Subsidiaries and
(ii) the intercompany and long-term third party liabilities and allocated
intercompany office expenses not to exceed $125,000 (including all accrued and
unpaid interest thereon) of the Transferred Companies and their respective
Subsidiaries, in each case that is outstanding as of June 30, 2001. If Buyer
does not raise a material objection to the Net Debt Schedule within 5 Business
Days of its delivery, the Net Debt Schedule shall be deemed accepted by Buyer
and shall be final and conclusive. In the case of any material disagreements
between the parties on the Net Debt Schedule, (A) Global Crossing shall make
the transfers and repayments contemplated pursuant to Section 6.5(a) in
respect of the non-disputed portion of the Net Debt Schedule and (B) if,
following an additional 10 Business Day negotiating period after the end of
the 5 Business Day period referred to above, the parties continue to have a
material disagreement on the Net Debt Schedule, Global Crossing and Buyer
shall each select an independent auditor, which independent auditors shall
select a third independent auditor which shall mediate the dispute and
determine whether any adjustment in the Net Debt Schedule should be made on
the basis of Buyer's challenge. The Net Debt Schedule shall be conclusively
deemed to have been adjusted in accordance with the determination of such
independent auditor, and Global Crossing or Buyer, as the case may be, shall
promptly pay or cause to be paid to the other (or its designee) an amount, in
immediately available funds, equal to the excess of (but not in duplication of
amounts transferred or repaid at the Closing pursuant to clause (A) above) (1)
in the case of Global Crossing, the adjusted intercompany and long-term third
party liabilities over zero, and (2) in the case of Buyer, the adjusted cash
and cash equivalents over zero.
(c) After the Closing, Global Crossing and its Subsidiaries (other than
Buyer and its Subsidiaries) or Buyer and its Subsidiaries, as the case may be,
shall pay to the other any amounts owed by customers to such parties to the
extent that such amounts are (i) received by or (ii) used to offset
liabilities in favor of Global Crossing and its Subsidiaries (other than Buyer
and its Subsidiaries) or Buyer and its Subsidiaries, as the case may be.
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ARTICLE VII
CONDITIONS TO CLOSING
SECTION 7.1. Conditions to the Obligations of Buyer and the Seller
Parties. The obligations of the parties hereto to effect the Closing are
subject to the satisfaction (or waiver (to the extent permitted by Law) by
Buyer and the Seller Parties) prior to the Closing Date of the following
conditions:
(a) No Injunctions. No preliminary or permanent injunction or other
order, ruling or decree issued by a court of competent jurisdiction or by a
Governmental Authority nor any Governmental Order shall be in effect enjoining
or preventing the consummation of the transactions contemplated by this
Agreement.
(b) Subsidiaries of Saturn. Saturn Global Network Services Holdings Ltd.
shall have no Subsidiaries other than those designated on Schedule 4.6.
SECTION 7.2. Conditions to the Obligations of Buyer. The obligation
of Buyer to effect the Closing is subject to the satisfaction (or waiver (to
the extent permitted by Law) by Buyer) prior to the Closing Date of the
following conditions:
(a) Representations and Warranties. The representations and warranties of
the Seller Parties set forth in this Agreement, disregarding all
qualifications and exceptions contained therein relating to materiality or
Seller Material Adverse Effect, shall be true and correct as of the date of
this Agreement and as of the Closing Date as though made on and as of the
Closing Date, except for those representations and warranties which address
matters only as of a particular date (which shall have been true and correct
as of such date), except where the failure of such representations and
warranties to be true and correct would not, individually or in the aggregate,
have a Seller Material Adverse Effect. Buyer shall have received a certificate
signed on behalf of the Seller Parties by an authorized officer of each Seller
Party to the effect set forth in this paragraph.
(b) Performance of Agreements. The Seller Parties shall have performed in
all material respects all obligations and agreements, and complied in all
material respects with all covenants and conditions, contained in this
Agreement to be performed or complied with by them prior to or on the Closing
Date and Buyer shall have received a certificate signed on behalf of the
Seller Parties by an authorized officer of each Seller Party to such effect.
(c) Regulatory Approvals. The Seller Parties and the Transferred
Companies, as applicable, shall have obtained all consents, approvals,
licenses, Permits, orders and authorizations of and shall have made all
declaration, filings or registrations with and given all notices to all
Governmental Authorities to the extent required for the execution, delivery or
performance of this Agreement by the Seller Parties or the consummation of the
transactions with respect to the Transferred Companies contemplated by this
Agreement (except where the failure to obtain such consent, approval, license,
Permit, order or authorization or to make such declaration, filing or
registration or to give such notice would not result, individually or in the
aggregate, in a Seller Material Adverse Effect).
16
SECTION 7.3. Conditions to the Obligations of the Seller Parties. The
obligation of the Seller Parties to effect the Closing is subject to the
satisfaction (or waiver (to the extent permitted by applicable Law) by Global
Crossing, as Sellers' representative) prior to the Closing Date of the
following conditions:
(a) Representations and Warranties. The representations and warranties of
Buyer set forth in this Agreement, disregarding all qualifications and
exceptions contained therein relating to materiality or Buyer Material Adverse
Effect, shall be true and correct as of the date of this Agreement and as of
the Closing Date as though made on and as of the Closing Date, except for
those representations and warranties which address matters only as of a
particular date (which shall have been true and correct as of such date),
except where the failure of such representations and warranties to be true and
correct would not, individually or in the aggregate, reasonably be expected to
have a Buyer Material Adverse Effect. The Seller Parties shall have received a
certificate signed on behalf of Buyer by an authorized officer to the effect
set forth in this paragraph.
(b) Performance of Agreements. Buyer shall have performed in all material
respects all obligations and agreements, and complied in all material respects
with all covenants and conditions, contained in this Agreement to be performed
or complied with by it prior to or on the Closing Date and the Seller Parties
shall have received a certificate signed on behalf of Buyer by an authorized
officer to such effect.
(c) Regulatory Approvals. Buyer shall have obtained all consents,
approvals, licenses, Permits, orders and authorizations of and shall have made
all declaration, filings or registrations with and given all notices to all
Governmental Authorities to the extent required for the execution, delivery or
performance of this Agreement by Buyer or the consummation of the transactions
with respect to the Transferred Companies contemplated by this Agreement
(except where the failure to obtain such consent, approval, license, Permit,
order or authorization or to make such declaration, filing or registration or
to give such notice would not result, individually or in the aggregate, in a
Buyer Material Adverse Effect).
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1. Indemnification by Buyer. (a) Subject to the limitations set
forth below in Section 8.4, Buyer agrees to indemnify, defend and hold the
Seller Parties harmless from and against any and all Losses arising from any
claim relating to any failure of the representations of Buyer set forth in
Sections 5.1 and 5.6 to be true and correct on and as of the Closing Date.
(b) Buyer agrees to indemnify and hold the Seller Parties harmless with
respect to any Losses resulting from the termination by Buyer of any
Transferred Employees on or after the Closing, including, but not limited, to
claims for severance or other termination benefits, if any, under an Employee
Benefit Plan.
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SECTION 8.2. Indemnification by Seller Parties. Subject to the
limitations set forth below in Section 8.4, each Seller Party, severally and
not jointly (except in the case of Global Crossing, which shall be jointly and
severally liable with each of the other Seller Parties), agrees to indemnify,
defend and hold Buyer harmless from and against any and all Losses arising
from any claim relating to any failure of the representations of such Seller
set forth in Sections 4.1, 4.6 and 4.9 to be true and correct on and as of the
Closing Date.
SECTION 8.3. Indemnification Procedures. If any third-party claim is
commenced against a party entitled to indemnification under this Article VIII
(the "Indemnified Party"), notice thereof shall be given to the party that is
obligated to provide indemnification (the "Indemnifying Party") as promptly as
practicable. The Indemnifying Party shall be entitled, if it so elects, in a
notice promptly delivered to the Indemnified Party, but in no event less than
10 Business Days prior to the date on which a response to such claim is due,
to immediately take control of the defense and investigation of such claim and
to employ and engage attorneys reasonably acceptable to the Indemnified Party
to handle and defend the same, at the Indemnifying Party's sole cost and
expense; provided, however, that the Indemnified Party may, at the
Indemnifying Party's sole cost and expense, employ and engage separate
attorneys if the interests of the Indemnified Party are or may be in material
conflict with the interests of the Indemnifying Party. The Indemnified Party
shall cooperate, at the cost of the Indemnifying Party, in all reasonable
respects with the Indemnifying Party and its attorneys in the investigation,
trial and defense of such claim and any appeal arising therefrom; provided,
however, that the Indemnified Party may, at its own cost and expense,
participate, through its attorneys or otherwise, in such investigation, trial
and defense of such claim and any appeal arising therefrom. No settlement of a
claim pursuant to this Section 8.3 that involves a remedy other than the
payment of money by the Indemnifying Party shall be entered into without the
consent of the Indemnified Party, which consent shall not be unreasonably
withheld. After notice by the Indemnifying Party to the Indemnified Party of
its election to assume full control of the defense of any such claim, the
Indemnifying Party shall not be liable to the Indemnified Party for any legal
expenses incurred thereafter by such Indemnified Party in connection with the
defense of that claim, except as expressly provided otherwise herein. If the
Indemnifying Party does not assume full control over the defense of a claim
subject to such defense as provided in this Section 8.3, the Indemnifying
Party may participate in such defense, at its sole cost and expense, and the
Indemnified Party shall have the right to defend the claim in such manner as
it may deem appropriate, at the cost and expense of the Indemnifying Party.
SECTION 8.4. Indemnification Limits. (a) Notwithstanding the
provisions of this Article VIII, neither Seller Parties, on the one hand, nor
Buyer, on the other hand, shall be liable for any Losses except to the extent
the Losses therefrom exceed U.S.$7,500,000, in which event such Indemnifying
Parties shall be liable only for such Losses above such amount provided that
the aggregate liability of Seller Parties, on the one hand, and Buyer, on the
other hand, shall not exceed U.S.$60,000,000 in the aggregate.
(b) If an Indemnifying Party is obligated to an Indemnified Party
pursuant to this Article VIII with respect to any third-party claim, the
Indemnifying Party shall, upon payment of such indemnity in full, be
subrogated to all rights of the Indemnified Party with respect to the claims
and defenses to which such indemnification relates.
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(c) In no event shall any party have any liability, regardless of the
form of action and on any theory of liability, including contract, strict
liability, negligence or other tort, for any loss of interest, profit or
revenue by any other party or for any consequential, indirect, incidental,
special, punitive or exemplary damages suffered by such other party, arising
from or related to this Agreement, even if such party has been advised of the
possibility of such losses or damages.
(d) No party may bring an action for indemnification or Losses,
regardless of form, arising out of this Agreement more than 1 year after the
cause of action has arisen or 1 year after the date such cause of action was
or should have been discovered.
(e) Notwithstanding anything to the contrary in this Agreement, an
Indemnifying Party shall not be liable for any Losses where the Losses are a
result of or in consequence of any failure by an Indemnified Party to take
reasonable and prudent action to mitigate any Losses.
ARTICLE IX.
MISCELLANEOUS
SECTION 9.1. Non-Survival of Representations, Warranties and
Agreements. None of the representations, warranties and agreements contained
in this Agreement shall survive the Closing Date, except that (i) the
representations contained in Sections 4.1, 4.6, 4.9, 5.1 and 5.6 shall survive
for one year after the Closing and (ii) all of the agreements to covenants
contained herein that contemplate performance following the Closing shall
survive the Closing until the same are fully performed.
SECTION 9.2. Notices. All notices or other communications hereunder shall
be deemed to have been duly given and made if in writing and if served by
personal delivery upon the party for whom it is intended, if delivered by
registered or certified mail, return receipt requested, or by a national
courier service, or if sent by telecopier, provided that the telecopy is
promptly confirmed by telephone confirmation thereof, to the person at the
address set forth below, or such other address as may be designated in writing
hereafter, in the same manner, by such person:
To Global Crossing or any other Seller:
Global Crossing Ltd.
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Attn: General Counsel
With a copy to:
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Attn: D. ▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
To the Buyer:
Asia Global Crossing Ltd.
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Attn: General Counsel
With a copy to:
Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇▇ "▇▇▇" ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
SECTION 9.3. Amendment; Waiver; Invalidity. Any provision of this
Agreement (including any Schedule or Exhibit hereto) may be amended or waived
if, and only if, such amendment or waiver is in writing and signed, in the
case of an amendment, by Buyer and Global Crossing (for itself and as agent
for each other Seller), or in the case of a waiver, by the party against whom
the waiver is to be effective. No failure or delay by any party in exercising
any right, power or privilege hereunder shall operate as a waiver thereof nor
shall any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. In
the event that any one or more of the provisions contained in this Agreement
or in any other instrument referred to herein, shall, for any reason, be held
to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provision of this
Agreement or any other such instrument.
SECTION 9.4. Assignment. Except as otherwise expressly provided for
herein, no party to this Agreement may assign any of its rights or obligations
under this Agreement without the prior written consent of the other parties.
SECTION 9.5. Entire Agreement. This Agreement (including all
Schedules and Exhibits hereto) contains the entire agreement between the
parties hereto with respect to the subject matter hereof and supersedes all
prior agreements and understandings, oral or written, with respect to such
matters.
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SECTION 9.6. Parties in Interest. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and permitted assigns. Nothing in this Agreement, express or
implied, is intended to confer upon any Person other than Buyer, the Seller
Parties or their successors or permitted assigns, any rights or remedies under
or by reason of this Agreement.
SECTION 9.7. Public Announcements. Notwithstanding anything herein to the
contrary, each of the parties to this Agreement hereby agrees with the other
party hereto that, except as may be required to comply with the requirements
of any applicable Laws, and the rules and regulations of each stock exchange
upon which the securities of one of the parties is listed, no press release or
similar public announcement or communication shall be made or caused to be
made concerning the execution or performance of this Agreement unless the
parties shall have agreed in advance with respect thereto.
SECTION 9.8. Expenses. Except as otherwise expressly provided in this
Agreement, whether or not the transactions contemplated by this Agreement are
consummated, all costs and expenses, including attorneys', accountants' and
other advisors fees incurred in connection with this Agreement and the
transactions contemplated hereby shall be borne by the party incurring such
expenses. The Seller Parties shall pay in the aggregate the first $100,000 in
Transfer Taxes and all Transfer Taxes greater than $100,000 shall be the
responsibility of the Buyer.
SECTION 9.9. Schedules. The disclosure of any matter in any Schedule to
this Agreement shall be deemed to be a disclosure for any other Schedule for
which such matter would reasonably be expected to be pertinent in light of the
disclosure made, but shall expressly not be deemed to constitute an admission
by any Seller or Buyer, or to otherwise imply, that any such matter is
material for the purposes of this Agreement.
SECTION 9.10. Governing Law. The Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York. With respect
to any Action arising out of or relating to this Agreement or the transactions
contemplated hereby, the Seller Parties and the Buyer hereby agree and consent
to be subject to the exclusive jurisdiction of the United States District
Court for the Southern District of New York and in the absence of such Federal
jurisdiction, the parties hereto consent to be subject to the exclusive
jurisdiction of the Supreme Court of the State of New York, County of New
York.
SECTION 9.11. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, and all of which
shall constitute one and the same agreement.
SECTION 9.12. Headings. The heading references herein and the table of
contents hereto are for convenience purposes only, do not constitute a part of
this Agreement and shall not be deemed to limit or affect any of the
provisions hereof.
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IN WITNESS WHEREOF, this Agreement has been duly executed by each party
hereto as of the date first written above.
GLOBAL CROSSING LTD.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President &
General Counsel
IXNET, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: CEO
INTERNATIONAL EXCHANGE NETWORKS, LTD.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: CEO
ASIA GLOBAL CROSSING LTD.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: General Counsel and Corporate Secretary
