Exhibit 4
REGISTRATION RIGHTS AGREEMENT
dated as of ___________ __, 2000
among
GLOBAL CROSSING LTD.
CABLE SYSTEMS HOLDING, LLC
and
the other parties named herein
TABLE OF CONTENTS
Page
Section 1. Definitions......................................................1
Section 2. Demand Registration..............................................2
(a) Requests for Registration.........................................2
(b) Filing and Effectiveness..........................................3
(c) Priority on Demand Registration...................................4
(d) Postponement of Demand Registration...............................4
Section 3. Piggyback Registration...........................................4
(a) Right to Piggyback................................................4
(b) Priority on Piggyback Registrations...............................5
Section 4. Registration Procedures..........................................6
Section 5. Registration Expenses...........................................11
Section 6. Indemnification.................................................12
(a) Indemnification by the Company...................................12
(b) Indemnification by Holders.......................................12
(c) Conduct of Indemnification Proceedings...........................12
(d) Contribution.....................................................13
Section 7. Underwritten Registrations......................................14
Section 8. Miscellaneous...................................................14
(a) Remedies.........................................................14
(b) Amendments and Waivers...........................................14
(c) Notices..........................................................14
(d) Merger, Amalgamation or Consolidation of the Company.............16
(e) Successors and Assigns...........................................16
(f) Counterparts.....................................................16
(g) Titles and Subtitles.............................................16
(h) Governing Law....................................................16
(i) Separability.....................................................16
(j) Entire Agreement.................................................16
(k) Submission to Jurisdiction.......................................17
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and
entered into as of ___________ __, 2000, among GLOBAL CROSSING LTD., a company
organized under the laws of Bermuda (the "Company"), CABLE SYSTEMS HOLDING, LLC,
a Delaware limited liability company ("CSH") and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
("▇▇▇▇▇▇▇▇▇▇▇", together with CSH, the "Current Holders").
RECITALS
WHEREAS, pursuant to an Agreement and Plan of Merger, dated as of
February 22, 2000 (the "Merger Agreement"), among the Company, and IPC
Communications, Inc, Georgia Merger Sub Corporation, IXnet, Inc., and Idaho
Merger Sub Corporation, each a Delaware corporation, the Current Holders are
acquiring common shares of the Company, par value 0.01 per share ("Common
Shares") in connection with the Mergers (as defined in the Merger Agreement);
WHEREAS, pursuant to a Consent and Voting Agreement, dated as of the
February 22, 2000 (the "Voting Agreement"), the Current Holders have, on their
own behalf and on behalf of their administrators, successors and receivers,
agreed to certain consent and voting provisions in connection with and in favor
of the Mergers;
WHEREAS, to induce the Current Holders to execute and deliver the
Voting Agreement, the Company has agreed to provide to the Holders certain
registration rights under the Securities Act; 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
Merger Agreement.
NOW, THEREFORE, in consideration of the mutual promises and
agreements set forth herein and in the Merger Agreement, and other valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto hereby agree as follows:
Section 1. Definitions. For purposes of this Agreement, the following
capitalized terms have the following meanings:
"Exchange Act": means the United States Securities Exchange Act
of 1934, as amended, and the rules and regulations promulgated thereunder,
all as the same shall be in effect from time to time.
"Holders": means the Current Holders and each of their
respective transferees who agree to be bound by the provisions of this
Agreement in accordance with Section 8(e) hereof.
"Person": means any individual, firm, corporation, partnership,
limited liability company, trust, joint venture, governmental authority or
other entity.
"Prospectus": means 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": means all Common Shares held from time
to time by the Holders and any Conversion Securities as defined in Section
8(d).
"Registration Statement": means 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.
"SEC": means the United States Securities and Exchange
Commission.
"Securities Act": means the United States Securities Act of
1933, as amended, and the rules and regulations promulgated thereunder, all
as the same shall be in effect from time to time.
"Underwritten Offering": means a distribution, registered
pursuant to the Securities Act, in which securities of the Company are sold
to the public through one or more underwriters.
Unless otherwise defined herein, terms defined in the Merger
Agreement are used herein as therein defined.
Section 2. Demand Registration.
(a) Requests for Registration. At any time after the one year
anniversary of this Agreement, subsequent to the relevant Holder becoming a
direct Holder of Common Shares and subject to the conditions set forth in this
Agreement: (i) the Holders owning in excess of 50% of the Common Shares 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 the Holders may not make more than one (1) Demand Registration and the
Holders must provide to the Company a certificate (the "Authorizing
Certificate") signed by the Holders of more than 50% of the Registrable
Securities held by them and their transferees on the date of such Demand Notice;
and provided, further, that the Company's obligations under this Section 2 shall
terminate from and after the date that the Registrable Securities held by CSH
and its Permitted Transferees (as
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defined in the Voting Agreement) and ▇▇▇▇▇▇▇▇▇▇▇ represent less than 1% of all
outstanding Common Shares (the "Termination Date"). The Authorizing Certificate
shall set forth (A) the name of the Holder or Holders signing such Authorizing
Certificate, (B) the number of Registrable Securities held by such Holder or
Holders, and, if different, the number of Registrable Securities such Holder or
Holders have elected to have registered, and (C) the intended methods of
disposition of the Registrable Securities. A Holder may at its option withdraw
Registrable Securities from a registration. In such event (1) any continuing
registration of Registrable Securities shall constitute the Demand Registration
to which such 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(s) 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.
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 is interfered
with by any stop order, injunction or other order or requirement of the SEC or
other governmental agency or court which is not due to the act or omission of
any Holder, then the Holders shall be entitled to an additional Demand
Registration in lieu thereof.
(b) Filing and Effectiveness. (i) The Company will file a
Registration Statement relating to any Demand Registration as promptly as
practicable (but in any event within 45 days in the case of any registration
eligible to be made on Form S-3 of 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, but in any event within 180 days
thereafter (the "Effectiveness Date").
(ii) The Company agrees to use its 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 six (6) 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.
Within ten (10) business days after receipt of such Demand Notice,
the Company will serve written notice thereof (the "Notice") to all other
Holders and will, subject to the provisions of Section 2(c), include in any
registration required under this Section 2 all Registrable Securities with
respect to which the Company receives written requests for inclusion therein
within fifteen (15) business days after such Notice to given to the applicable
Holder. The 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
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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 Holders that the total amount of
Registrable Securities that such Holders intend to include in such Demand
Registration is in the aggregate such as to materially and adversely affect the
success of such offering, then the number of Registrable Securities to be
included in such Demand Registration will, if necessary, be reduced and there
will be included in such Underwritten Offering the largest number of Registrable
Securities that, in the opinion of such managing underwriter or underwriters,
can be sold without materially and adversely affecting the success of such
Underwritten Offering. The Registrable Securities of the Holder or Holders
initiating the Demand Registration shall receive priority in such Underwritten
Offering to the full extent of the Registrable Securities such Holder or Holders
desire to sell (unless these securities would materially and adversely affect
the success of such offering, in which case the number of such Holder's
Registrable Securities included in the offering shall be reduced to the extent
necessary) and the remaining allocation available for sale, if any, shall be
allocated pro rata among the other Holders on the basis of the number of
Registrable Securities requested to be included therein by each such Holder.
(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 360 day period, to postpone the
filing period of any Demand Registration for a reasonable period of time not in
excess of 90 calendar days if the Board of Directors of the Company determines,
in the good faith exercise of its business judgment, and has delivered to the
Holders written certification to the effect, that such registration and offering
could materially 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 could materially and adversely
affect the Company. If the Company postpones the filing of a Registration
Statement, it will promptly notify the Holders in writing when the events or
circumstances permitting such postponement have ended.
Section 3. Piggyback Registration.
(a) Right to Piggyback. If at any time after the one year
anniversary of this Agreement the Company proposes to file a Registration
Statement, whether or not for sale for the Company's own account, on a form and
in a manner that would also permit registration of Registrable Securities (other
than in connection with a registration statement on Forms S-4 or S-8 or any
similar or successor form), the Company shall give to Holders holding
Registrable Securities written notice of such proposed filing at least thirty
(30) calendar days before the anticipated filing. The notice referred to in the
preceding sentence shall offer Holders the opportunity to register such amount
of Registrable Securities as each 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
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respect to which the Company has received written requests for inclusion therein
within fifteen (15) calendar days after the written notice from the Company is
given; provided, that the Company's obligations under this Section 3 shall
terminate from and after the Termination Date. Each 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.
Notwithstanding the foregoing, the Company will not be obligated to
effect any registration of Registrable Securities under this Section 3 as a
result of the registration of any of its securities solely as direct
consideration for mergers or acquisitions or offered solely in connection with
exchange offers, dividend reinvestment and share purchase plans, rights
offerings or option or other employee benefit plans.
(b) Priority on Piggyback Registrations. The Company will cause the
managing underwriter or underwriters of a proposed Underwritten Offering to
permit Holders 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 conditions as any securities of the Company included therein
(other than the indemnification by the Holders, which will be limited as set
forth in Section 6(b) hereof and provided, that the Holders give customary
representations and warranties). Notwithstanding the foregoing, if the managing
underwriter or underwriters of such Underwritten Offering advises the Holders to
the effect that the total amount of securities that such Holders, 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, and (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 each Holder and 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 each
Holder requesting registration and 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 (the
"Initiating Party"), other than a Demand Registration, (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 each Holder and the number of
Piggyback Shares requested to be
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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 each Holder requesting
registration and 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
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.
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 Registrable 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 (it being understood that the obligations of the
Company in clauses (a), (b), (d), (h), (j), (k), (l) and (n) of this Section 4
will be subject to the first sentence of Section 3(b) and, except as provided in
Section 3(b), the Holders will not have any right to effect an underwritten
public offering under Section 3):
(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 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 the Holders holding Registrable Securities covered by such Registration
Statement, not more than one counsel chosen by Holders holding a majority
of the Registrable Securities being registered ("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 of such Holders, 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
the Holders holding a majority of the Registrable Securities covered by
such Registration Statement or the managing underwriter, if any, shall
reasonably object.
(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.
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(c) Notify the selling Holders 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, (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
Holders holding a majority of the Registrable Securities being registered,
(i) promptly incorporate in a Prospectus supplement or post-effective
amendment such information as the managing underwriters, if any, and such
Holders agree 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 each selling 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
7
deemed incorporated therein by reference and all exhibits, unless
requested in writing by such Holder or underwriter).
(g) Deliver to each selling 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 each of the selling Holders 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 the selling Holders, 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 the selling Holders 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 any selling 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.
(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
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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) If requested by Holders holding a majority of the
Registrable Securities covered by such Registration Statement or the
managing underwriters, if any, use its best efforts to cause all
Registrable Securities covered by such Registration Statement to be (i)
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 or (ii) authorized to be quoted on the National Association of
Securities Dealers Automated Quotation System ("NASDAQ") or the National
Market System of NASDAQ, if the securities qualify to be so quoted.
(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 the Holders holding a
majority of the Registrable Securities being sold 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
9
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 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 the Holders holding Registrable
Securities being sold, any underwriter participating in any disposition of
Registrable Securities, and any attorney or accountant retained by such
selling Holders or underwriter, 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
representative, underwriter, attorney or accountant in connection with
such Registration Statement; provided, however, that any records,
information or documents that are designated 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
such 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.
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 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.
10
Each 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"), such
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
such 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 the
Holders are 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) and
Section 9, all fees and expenses incident to the performance of or compliance
with 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), (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 the
Holders holding a majority of the Registrable Securities included in any
Registration Statement), (iii) messenger, telephone and delivery expenses
incurred by the Company, (iv) fees and disbursements of counsel for the Company
incurred by the Company, and (v) fees and disbursements 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. 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
Registrable Securities pursuant to this Agreement, and the Holders shall be
responsible on a pro rata basis 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 them and not otherwise reimbursable as provided above.
Section 6. Indemnification.
(a) Indemnification by the Company. The Company will indemnify and
hold harmless, to the fullest extent permitted by law, each Holder holding
Registrable Securities
11
registered pursuant to this Agreement, the officers, directors, members and
agents and employees of each of them, each Person who controls such a Holder
(within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act) and the officers, directors, members, 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 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 the same are (i) based upon information
furnished in writing to the Company by such Holder specifically for use therein
or (ii) made in any preliminary prospectus, if such untrue statement or omission
or alleged omission made in such preliminary prospectus is eliminated or
remedied in the Prospectus relating to it (as amended or supplemented, as
applicable) and a copy of such Prospectus shall not have been furnished to the
person alleging such Loss as required under applicable law.
(b) Indemnification by Holders. In connection with any Registration
Statement in which a Holder is participating, such 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 such 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 Registration Statement, Prospectus or preliminary prospectus. In no event
will the liability of any selling Holder hereunder be greater in amount than the
dollar amount of the proceeds received by such 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. All
reasonable fees and expenses (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
12
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). 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, 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 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), an indemnifying party that
is a selling 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
such indemnifying party and distributed to the public were offered to the public
exceeds the amount of any damages that such indemnifying party 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 any Holder thereof or
any termination of this Agreement.
13
Section 7. Underwritten Registrations. If any of the Registrable
Securities included in any Demand Registration are to be sold in an Underwritten
Offering, the Holders holding a majority of the Registrable Securities included
in the Demand Notice may select an investment banker or investment bankers and
manager or managers to manage the Underwritten Offering, provided that such
investment banker or bankers is (are) reasonably acceptable to the Company. If
any Piggyback Registration is an Underwritten Offering, the Company will have
the exclusive right to select the investment banker or investment bankers and
managers to administer the offering. The Company and the Holders agree that, in
connection with any Underwritten Offering hereunder, 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 (i)
the period of such restrictions shall not exceed 90 calendar days and (ii) the
restrictions so imposed on the Holders shall be no more onerous than the
restrictions imposed on the Company.
Section 8. 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 the Holders holding in excess of 50% of the Registrable Securities.
No amendment that materially adversely affects any particular Holder may be
effected to this Agreement without the consent of such Holder.
(c) Notices. All notices required or permitted hereunder shall be in
writing and shall be deemed effectively given: (i) upon personal delivery to the
party to be notified; (ii) when sent by confirmed telex or facsimile if sent
during normal business hours of the recipient, if not, then on the next business
day; (iii) upon delivery if sent by registered or certified mail, return receipt
requested, postage prepaid; or (iv) upon delivery if deposited with a nationally
recognized overnight courier, specifying next day delivery, with written
verification of receipt. All communications shall be sent to the parties at the
following addresses (or at such other address for a party as shall be specified
by like notice):
If to the Company to:
Global Crossing Ltd.
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
14
Attention: Secretary of the Company
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: D. ▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to CSH to:
Cable Systems Holding, LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
If to ▇▇▇▇▇▇▇▇▇▇▇ to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
with a copy to:
White & Case
1155 Avenue of the Americas
New York, New York
Attention: ▇▇▇▇▇▇ ▇. Rover, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address or addresses as shall be designated in writing. All
notices shall be effective when received.
(d) Merger, Amalgamation or Consolidation of the Company. If the
Company is a party to any merger, amalgamation, or consolidation pursuant to
which the Registrable
15
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, or consolidation described in the immediately preceding
sentence unless the issuer of the Conversion Securities complies with this
Section 8(d).
(e) Successors and Assigns. Subject to the terms and conditions of
the Merger Agreement, any lawful transferee of all or a portion of the
Registrable Securities 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 8(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.
(g) Titles and Subtitles. The titles 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 in all
respects by the laws of the State of New York.
(i) Separability. 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, the Merger Agreement and the Voting 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. Each party hereto irrevocably
consents to the jurisdiction and venue of the courts of the State of New York
and the courts of the United States for the Northern or Southern Districts of
New York, and in the courts hearing appeals therefrom, for the resolution of any
dispute, action, suit or proceeding arising out of or relating to this
Agreement. 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 8, 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
16
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.
9. Notwithstanding anything herein to the contrary, the Company
shall not have any financial obligation pursuant to this Agreement unless and
until the Company is able to satisfy (after taking into account such obligation)
the requirements of Section 39A(2A) of the Companies ▇▇▇ ▇▇▇▇. For this
purposes, the Company shall be considered to satisfy such requirements if it
receives a written opinion or certificate from its independent auditors to that
effect.
[Signature page follows]
17
IN WITNESS WHEREOF, a duly authorized representative of each of the
parties hereto have executed this Agreement as of the date first written above.
GLOBAL CROSSING LTD.
By:
-----------------------------------------
Name:
Title:
CABLE SYSTEMS HOLDING, LLC
By:
-----------------------------------------
Name:
Title:
By:
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇
EXHIBIT A
REGISTRATION RIGHTS AGREEMENT
COUNTERPART AND ACKNOWLEDGMENT
TO: The Company
RE: The Registration Rights Agreement (the "Agreement")
dated as of _______, 2000, by and among the Company
and the Holders (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
the Holders (as defined in the Agreement) and shall be subject to all
obligations and restrictions of the Holders 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:
19
