EXHIBIT 4.4
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and
entered into as of [ ], 1998, by and among Global Crossing Ltd., a
company organized under the laws of Bermuda (the "Company"), and the persons
named on the signature pages hereto (each, an "Investor," and collectively, the
"Investors").
WHEREAS, the Investors are shareholders of Global Crossing Ltd, LDC, a
company organized under the laws of the Cayman Islands ("CaymansCo").
WHEREAS, CaymansCo is the owner of all of the issued and outstanding
shares of Common Stock (as defined below) of the Company.
WHEREAS, CaymansCo desires to distribute all of the shares of Common
Stock owned by it to its shareholders, including, without limitation, the
Investors, and to liquidate.
WHEREAS, it is a condition to the willingness of the Investors to
approve such distribution and liquidation that the Company enter into this
Agreement.
WHEREAS, the Company desires that CaymansCo make such distribution in
order to facilitate the Company's initial public offering of shares of Common
Stock (the "IPO").
NOW THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound hereby, agree as follows:
SECTION 1. Definitions.
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As used in this Agreement, the following terms shall have the
following meanings:
Advice: See Section 5 hereof.
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Affiliate means, with respect to any specified person, any other
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person directly or indirectly controlling or controlled by or under direct or
indirect common
control with such specified person. For the purposes of this definition,
"control" when used with respect to any specified person means the power to
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direct the management and policies of such person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
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foregoing.
BCLP means, collectively, Xxxxxx Xxxxx, Xxxxxxxx Xxxx, Xxxxx Xxx,
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Xxxxx Xxxxxx, Galenight Corp., a Delaware corporation, Ridgestone Corp., a
Delaware corporation, San Xxxxxxx Corp., a Delaware corporation, and the Xxxxx
and Xxxxx Xxx Family Trust, a California trust.
BCLP Demand Notice: See Section 2(a)(v) hereof.
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BCLP Demand Registration: See Section 2(a)(v) hereof.
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BCLP Holder means each person included in BCLP and any Transferee of
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BCLP Registrable Securities.
BCLP Registrable Securities means Registrable Securities owned as of
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the date of this Agreement by any person included in BCLP or subsequently
acquired by any person included in BCLP.
Business Day means any day that is not a Saturday, a Sunday or a legal
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holiday on which banking institutions in the State of New York are not required
to be open.
Capital Stock means, with respect to any person, any and all shares,
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interests, participations or other equivalents (however designated) of corporate
stock issued by such person, including each class of common stock and preferred
stock of such person.
CaymansCo: See the first WHEREAS clause hereof.
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CIBC means CIBC Wood Gundy (Capital) SFC, Inc., a _________
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corporation, [and 2 partnerships]
CIBC Demand Notice: See Section 2(a)(ii) hereof.
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CIBC Demand Registration: See Section 2(a)(ii) hereof.
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CIBC Holder means CIBC and any Transferee of CIBC Registrable
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Securities.
CIBC Registrable Securities means Registrable Securities owned as of
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the date of this Agreement by CIBC or subsequently acquired by CIBC.
Common Stock means the Common Stock, par value $.01 per share, of the
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Company or any other shares of Capital Stock or other securities into which such
shares of Common Stock shall be reclassified or changed, including, without
limitation, by reason of a merger, consolidation, exchange, reorganization or
recapitalization. If the Common Stock has been so reclassified or changed, or
if the Company pays a dividend or makes a distribution on the Common Stock in
shares of Capital Stock or other securities, or subdivides (or combines) its
outstanding shares of Common Stock into a greater (or smaller) number of shares
of Common Stock, a share of Common Stock shall be deemed to be such number of
shares of Capital Stock and amount of other securities to which a holder of a
share of Common Stock outstanding immediately prior to such change,
reclassification, exchange, dividend, distribution, subdivision or combination
would be entitled.
Company: See the introductory clauses hereof.
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Continental means Continental Casualty Company, a __________
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corporation.
Continental Demand Notice: See Section 2(a)(iv) hereof.
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Continental Demand Registration: See Section 2(a)(iv) hereof.
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Continental Holder means Continental and any Transferee of Continental
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Registrable Securities.
Continental Registrable Securities means Registrable Securities owned
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as of the date of this Agreement by Continental or subsequently acquired by
Continental.
Delay Period: See Section 2(c) hereof.
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Demand Notice means the BCLP Demand Notice, CIBC Demand Notice, Lender
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Demand Notice, Continental Demand Notice, MRCo Demand Notice, PCG/GKW Demand
Notice or TDC Demand Notice, as the case may be.
Demand Registration means the BCLP Demand Registration, CIBC Demand
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Registration, Lender Demand Registration, Continental Demand Registra tion,
MRCo Demand Registration, PCG/GKW Demand Registration or TDC Demand
Registration, as the case may be.
Demand Registration Statement means a Registration Statement intended
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to effect a Demand Registration.
Effectiveness Period: See Section 2(c) hereof.
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Exchange Act means the Securities Exchange Act of 1934, as amended,
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and the rules and regulations of the SEC promulgated thereunder.
Foreclosure: See Section 2(a)(vii) hereof.
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GKW Unified means GKW Unified Holdings, LLC, a Delaware limited
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liability company.
Hold-Back Period: See Section 4 hereof.
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Holder means a person who owns Registrable Securities and is either
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(i) an Investor or (ii) a Transferee of Registrable Securities owned as of the
date of this Agreement by an Investor or subsequently acquired by an Investor.
Inspector: See Section 5(j) hereof.
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Interruption Period: See the last paragraph of Section 5 hereof.
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Investor(s): See the introductory clauses hereof.
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IPO: See the last WHEREAS clause hereof.
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Lender: See Section 2(a)(vii) hereof.
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Lender Demand Notice: See Section 2(a)(vii) hereof.
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Lender Demand Registration: See Section 2(a)(vii) hereof.
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MRCo means MRCo., Inc., a Delaware corporation.
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MRCo Holder means MRCo and any Transferee of MRCo Registrable
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Securities.
MRCo Demand Notice: See Section 2(a)(iii) hereof.
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MRCo Demand Registration: See Section 2(a)(iii) hereof.
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MRCo Registrable Securities means Registrable Securities owned as of
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the date of this Agreement by MRCo or subsequently acquired by MRCo.
Other Security Holder: See Section 2(f) hereof.
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PCG means Pacific Capital Group, Inc., a California corporation.
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PCG/GKW means, collectively, PCG, GKW and Xxxx Xxxxxxx.
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PCG/GKW Demand Notice: See Section 2(a)(i) hereof.
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PCG/GKW Demand Registration: See Section 2(a)(i) hereof.
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PCG/GKW Holder means any person included in PCG/GKW and any Transferee
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of PCG/GKW Registrable Securities.
PCG/GKW Registrable Securities means Registrable Securities owned as
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of the date of this Agreement by any person included in PCG/GKW or subsequently
acquired by any person included in PCG/GKW.
person means any individual, corporation, partnership, limited
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liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
Piggyback Registration: See Section 3(a) hereof.
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Prospectus means the prospectus included in any Registration Statement
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(including, without limitation, a prospectus that discloses information
previously
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omitted from a prospectus filed as part of an effective registration statement
in reliance upon Rule 430A), 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 the prospectus, including post-effective
amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such prospectus.
Registrable Securities means shares of Common Stock that are owned as
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of the date of this Agreement by an Investor or subsequently acquired by an
Investor. Shares of Common Stock shall cease to be Registrable Securities (and
shall be excluded from the calculation of the number of outstanding Registrable
Securities) when they have been distributed to the public pursuant to an
offering registered under the Securities Act or sold to the public through a
broker, dealer or market maker in compliance with Rule 144 or Rule 145(d) under
the Securities Act or any successor rules. Notwithstanding the foregoing, a
security will not cease to be a Registrable Security until all stop transfer
instructions and notations and restrictive legends with respect to such security
have been lifted or removed. For purposes of this Agreement, a person will be
deemed to be a Holder or owner of Registrable Securities whenever such person
has the right to acquire, directly or indirectly, such securities (upon exercise
of warrants, options or otherwise, so long as such warrants, options or other
rights are then exercisable), regardless of whether such acquisition has
actually been effected.
Registration means registration under the Securities Act of the
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offering of Registrable Securities pursuant to a Shelf Registration, a Demand
Registration or a Piggyback Registration.
Registration Statement means any registration statement of the Company
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under the Securities Act that covers any of the Registrable Securities pursuant
to the provisions of this Agreement, including the Prospectus included therein,
amendments and supplements to such registration statement, including pre-and
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 Securities and Exchange Commission or any successor
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thereto.
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Securities Act means the Securities Act of 1933, as amended, and the
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rules and regulations of the SEC promulgated thereunder.
Shelf Registration means the registration under the Securities Act of
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the offering of Registrable Securities on a delayed or continuous basis pursuant
to Rule 415 under the Securities Act (or any similar rule that may be adopted by
the SEC).
Shelf Registration Statement means a Registration Statement intended
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to effect a Shelf Registration.
TDC means, collectively, Xxxxxx International Holdings, Inc., a
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corporation organized under the laws of the British Virgin Islands, and Yao-Hwa
Company Management Commission.
TDC Demand Notice: See Section 2(a)(vi) hereof.
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TDC Demand Registration: See Section 2(a)(vi) hereof.
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TDC Holder means any person included in TDC and any Transferee of TDC
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Registrable Securities.
TDC Registrable Securities means Registrable Securities owned as of
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the date of this Agreement by any person included in TDC or subsequently
acquired by any person included in TDC.
Transferee means a person that has agreed in writing to be bound by
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the terms of this Agreement as if such person were an Investor and is (i) a
transferee or assignee of Registrable Securities, (ii) the executor of the
estate of a deceased Investor or such Investor's heirs, devisees, legatees or
assigns, or (iii) upon the disability of any Investor, any guardian or
conservator of such Investor.
underwritten registration or underwritten offering means a
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registration under the Securities Act in which securities of the Company are
sold to an underwriter for reoffering to the public.
SECTION 2. Demand Registration.
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(a) Number of Registrations. Commencing on the first
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anniversary of the consummation of the IPO,
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(i) PCG/GKW Holders owning a majority of the PCG/GKW Registrable
Securities shall have the right, by written notice (a "PCG/GKW Demand Notice")
given to the Company in accordance with the provisions of Section 9.1 hereof, to
request the Company to register under and in accordance with the provisions of
the Securities Act all or part of the PCG/GKW Registrable Securities designated
by such PCG/GKW Holders (a "PCG/GKW Demand Registration"); provided, however,
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that the aggregate number of PCG/GKW Registrable Securities requested to be
registered pursuant to any such PCG/GKW Demand Notice shall be not less than ten
percent (10%) nor more than twenty-five percent (25%) of the PCG/GKW Registrable
Securities owned as of the date hereof. Upon receipt of any such PCG/GKW Demand
Notice, the Company shall notify all other PCG/GKW Holders of the receipt of
such PCG/GKW Demand Notice within 10 days of the receipt thereof and shall
include in such PCG/GKW Demand Registration all PCG/GKW Registrable Securities
with respect to which the Company has received written requests for inclusion
therein within 10 business days after the date on which such notice is given;
provided, further, that if the total amount of PCG/GKW Registrable Securities
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requested by PCG/GKW Holders to be included in such PCG/GKW Demand Registration
exceeds the maximum number of PCG/GKW Registrable Securities permitted to be
included in such PCG/GKW Demand Registration pursuant to this Section 2(a)(i),
then the amount of PCG/GKW Registrable Securities of each PCG/GKW Holder to be
included in such PCG/GKW Demand Registration shall be reduced pro rata in
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proportion to the respective number of PCG/GKW Registrable Securities owned by
each such PCG/GKW Holder. The PCG/GKW Holders shall be entitled to five PCG/GKW
Demand Registrations pursuant to this Section 2(a)(i); provided, however, that
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if (A) any such PCG/GKW Demand Registration did not become effective or was not
maintained effective for the period (whether or not continuous) set forth in
Section 2(c) hereof, or (B) in connection with the registration of PCG/GKW
Registrable Securities covered by such PCG/GKW Demand Notice, the number of such
securities to be offered by the PCG/GKW Holders is reduced to less than fifty
percent (50%) of the PCG/GKW Registrable Securities requested to be included in
such Demand Registration by the PCG/GKW Holders (after taking into account any
reduction pursuant to the second proviso in the preceding sentence) because of
the inclusion of other shares of Common Stock in accordance with the provisions
of Section 2(e) hereof, then the PCG/GKW Holders shall be entitled, in each such
case, to one additional PCG/GKW Demand Registration pursuant hereto. The
PCG/GKW Holders may not request more than one PCG/GKW Demand Registration during
any 12 month period; provided, however, that such restriction shall not apply if
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any of the events set forth in clauses
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(A) and (B) of the proviso the preceding sentence shall have occurred with
respect to the previous PCG/GKW Demand Registration requested by the PCG/GKW
Holders.
(ii) CIBC Holders owning a majority of the CIBC Registrable
Securities shall have the right, by written notice (a "CIBC Demand Notice")
given to the Company in accordance with the provisions of Section 9.1 hereof, to
request the Company to register under and in accordance with the provisions of
the Securities Act all or part of the CIBC Registrable Securities designated by
such CIBC Holders (a "CIBC Demand Registration"); provided, however, that the
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aggregate number of CIBC Registrable Securities requested to be registered
pursuant to any such CIBC Demand Notice shall be not less than ten percent (10%)
nor more than twenty-five percent (25%) of the CIBC Registrable Securities owned
as of the date hereof. Upon receipt of any such CIBC Demand Notice, the Company
shall notify all other CIBC Holders of the receipt of such CIBC Demand Notice
within 10 days of the receipt thereof and shall include in such CIBC Demand
Registration all CIBC Registrable Securities with respect to which the Company
has received written requests for inclusion therein within 10 business days
after the date on which such notice is given; provided, further, that if the
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total amount of CIBC Registrable Securities requested by CIBC Holders to be
included in such CIBC Demand Registration exceeds the maximum number of CIBC
Registrable Securities permitted to be included in such CIBC Demand Registration
pursuant to this Section 2(a)(ii), then the amount of CIBC Registrable
Securities of each CIBC Holder to be included in such CIBC Demand Registration
shall be reduced pro rata in proportion to the respective number of CIBC
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Registrable Securities owned by each such CIBC Holder. The CIBC Holders shall
be entitled to five CIBC Demand Registrations pursuant to this Section 2(a)(ii);
provided, however, that if (A) any such CIBC Demand Registration did not become
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effective or was not maintained effective for the period (whether or not
continuous) set forth in Section 2(c) hereof, or (B) in connection with the
registration of CIBC Registrable Securities covered by such CIBC Demand Notice,
the number of such securities to be offered by the CIBC Holders is reduced to
less than fifty percent (50%) of the CIBC Registrable Securities requested to be
included in such Demand Registration by the CIBC Holders (after taking into
account any reduction pursuant to the second proviso in the preceding sentence)
because of the inclusion of other shares of Common Stock in accordance with the
provisions of Section 2(e) hereof, then the CIBC Holders shall be entitled, in
each such case, to one additional CIBC Demand Registration pursuant hereto. The
CIBC Holders may not request more than one CIBC Demand Registration during any
12 month period; provided, however, that such restriction shall not apply if any
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of the events set forth in clauses (A) and (B) of
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the proviso the preceding sentence shall have occurred with respect to the
previous CIBC Demand Registration requested by the CIBC Holders.
(iii) MRCo Holders owning a majority of the MRCo Registrable
Securities shall have the right, by written notice (a "MRCo Demand Notice")
given to the Company in accordance with the provisions of Section 9.1 hereof, to
request the Company to register under and in accordance with the provisions of
the Securities Act all or part of the MRCo Registrable Securities designated by
such MRCo Holders (a "MRCo Demand Registration"); provided, however, that the
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aggregate number of MRCo Registrable Securities requested to be registered
pursuant to any such MRCo Demand Notice shall be not less than ten percent (10%)
nor more than (x) twenty-five percent (25%) prior to the second anniversary of
the IPO and (y) fifty percent (50%) commencing on the second anniversary of the
IPO of the MRCo Registrable Securities owned as of the date hereof. Upon
receipt of any such MRCo Demand Notice, the Company shall notify all other MRCo
Holders of the receipt of such MRCo Demand Notice within 10 days of the receipt
thereof and shall include in such MRCo Demand Registration all MRCo Registrable
Securities with respect to which the Company has received written requests for
inclusion therein within 10 business days after the date on which such notice is
given; provided, further, that if the total amount of MRCo Registrable
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Securities requested by MRCo Holders to be included in such MRCo Demand
Registration exceeds the maximum number of MRCo Registrable Securities permitted
to be included in such MRCo Demand Registration pursuant to this Section
2(a)(iii), then the amount of MRCo Registrable Securities of each MRCo Holder to
be included in such MRCo Demand Registration shall be reduced pro rata in
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proportion to the respective number of MRCo Registrable Securities owned by each
such MRCo Holder. The MRCo Holders shall be entitled to two MRCo Demand
Registrations pursuant to this Section 2(a)(iii); provided, however, that if (A)
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any such MRCo Demand Registration did not become effective or was not maintained
effective for the period (whether or not continuous) set forth in Section 2(c)
hereof, or (B) in connection with the registration of MRCo Registrable
Securities covered by such MRCo Demand Notice, the number of such securities to
be offered by the MRCo Holders is reduced to less than fifty percent (50%) of
the MRCo Registrable Securities requested to be included in such Demand
Registration by the MRCo Holders (after taking into account any reduction
pursuant to the second proviso in the preceding sentence) because of the
inclusion of other shares of Common Stock in accordance with the provisions of
Section 2(e) hereof, then the MRCo Holders shall be entitled, in each such case,
to one additional MRCo Demand Registration pursuant hereto. The MRCo Holders
may not request more than one MRCo Demand
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Registration during any 12 month period; provided, however, that such
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restriction shall not apply if any of the events set forth in clauses (A) and
(B) of the proviso the preceding sentence shall have occurred with respect to
the previous MRCo Demand Registration requested by the MRCo Holders.
(iv) Continental Holders owning a majority of the Continental
Registrable Securities shall have the right, by written notice (a "Continental
Demand Notice") given to the Company in accordance with the provisions of
Section 9.1 hereof, to request the Company to register under and in accordance
with the provisions of the Securities Act all or part of the Continental
Registrable Securities designated by such Continental Holders (a "Continental
Demand Registration"); provided, however, that the aggregate number of
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Continental Registrable Securities requested to be registered pursuant to any
such Continental Demand Notice shall be not less than ten percent (10%) nor more
than (x) twenty-five percent (25%) prior to the second anniversary of the IPO
and (y) fifty percent (50%) commencing on the second anniversary of the IPO of
the Continental Registrable Securities owned as of the date hereof. Upon
receipt of any such Continental Demand Notice, the Company shall notify all
other Continental Holders of the receipt of such Continental Demand Notice
within 10 days of the receipt thereof and shall include in such Continental
Demand Registration all Continental Registrable Securities with respect to which
the Company has received written requests for inclusion therein within 10
business days after the date on which such notice is given; provided, further,
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that if the total amount of Continental Registrable Securities requested by
Continental Holders to be included in such Continental Demand Registration
exceeds the maximum number of Continental Registrable Securities permitted to be
included in such Continental Demand Registration pursuant to this Section
2(a)(iv), then the amount of Continental Registrable Securities of each
Continental Holder to be included in such Continental Demand Registration shall
be reduced pro rata in proportion to the respective number of Continental
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Registrable Securities owned by each such Continental Holder. The Continental
Holders shall be entitled to two Continental Demand Registrations pursuant to
this Section 2(a)(iv); provided, however, that if (A) any such Continental
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Demand Registration did not become effective or was not maintained effective for
the period (whether or not continuous) set forth in Section 2(c) hereof, or (B)
in connection with the registration of Continental Registrable Securities
covered by such Continental Demand Notice, the number of such securities to be
offered by the Continental Holders is reduced to less than fifty percent (50%)
of the Continental Registrable Securities requested to be included in such
Demand Registration by the Continental Holders (after taking into account any
reduction pursuant to the second proviso in the preceding sentence) because of
the inclusion of other shares of
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Common Stock in accordance with the provisions of Section 2(e) hereof, then the
Continental Holders shall be entitled, in each such case, to one additional
Continental Demand Registration pursuant hereto. The Continental Holders may not
request more than one Continental Demand Registration during any 12 month
period; provided, however, that such restriction shall not apply if any of the
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events set forth in clauses (A) and (B) of the proviso the preceding sentence
shall have occurred with respect to the previous Continental Demand Registration
requested by the Continental Holders.
(v) BCLP Holders owning a majority of the BCLP Registrable Securities
shall have the right, by written notice (a "BCLP Demand Notice") given to the
Company in accordance with the provisions of Section 9.1 hereof, to request the
Company to register under and in accordance with the provisions of the
Securities Act all or part of the BCLP Registrable Securities designated by such
BCLP Holders (a "BCLP Demand Registration"); provided, however, that the
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aggregate number of BCLP Registrable Securities requested to be registered
pursuant to any such BCLP Demand Notice shall be not less than twenty-five
percent (25%) of the BCLP Registrable Securities owned as of the date hereof.
Upon receipt of any such BCLP Demand Notice, the Company shall notify all other
BCLP Holders of the receipt of such BCLP Demand Notice within 10 days of the
receipt thereof and shall include in such BCLP Demand Registration all BCLP
Registrable Securities with respect to which the Company has received written
requests for inclusion therein within 10 business days after the date on which
such notice is given; provided, further, that if the total amount of BCLP
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Registrable Securities requested by BCLP Holders to be included in such BCLP
Demand Registration exceeds the maximum number of BCLP Registrable Securities
permitted to be included in such BCLP Demand Registration pursuant to this
Section 2(a)(v), then the amount of BCLP Registrable Securities of each BCLP
Holder to be included in such BCLP Demand Registration shall be reduced pro rata
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in proportion to the respective number of BCLP Registrable Securities owned by
each such BCLP Holder. The BCLP Holders shall be entitled to one BCLP Demand
Registration pursuant to this Section 2(a)(v); provided, however, that if (A)
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such BCLP Demand Registration did not become effective or was not maintained
effective for the period (whether or not continuous) set forth in Section 2(c)
hereof, or (B) in connection with the registration of BCLP Registrable
Securities covered by such BCLP Demand Notice, the number of such securities to
be offered by the BCLP Holders is reduced to less than fifty percent (50%) of
the BCLP Registrable Securities requested to be included in such Demand
Registration by the BCLP Holders (after taking into account any reduction
pursuant to the second proviso in the preceding sentence) because of the
inclusion of other shares of Common Stock in accordance with the provisions of
Section 2(e) hereof, then the
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BCLP Holders shall be entitled, in each such case, to one additional BCLP Demand
Registration pursuant hereto.
(vi) TDC Holders owning a majority of the TDC Registrable Securities
shall have the right, by written notice (a "TDC Demand Notice") given to the
Company in accordance with the provisions of Section 9.1 hereof, to request the
Company to register under and in accordance with the provisions of the
Securities Act all or part of the TDC Registrable Securities designated by such
TDC Holders (a "TDC Demand Registration"); provided, however, that the aggregate
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number of TDC Registrable Securities requested to be registered pursuant to any
such TDC Demand Notice shall be not less than twenty-five percent (25%) of the
TDC Registrable Securities owned as of the date hereof. Upon receipt of any
such TDC Demand Notice, the Company shall notify all other TDC Holders of the
receipt of such TDC Demand Notice within 10 days of the receipt thereof and
shall include in such TDC Demand Registration all TDC Registrable Securities
with respect to which the Company has received written requests for inclusion
therein within 10 business days after the date on which such notice is given;
provided, further, that if the total amount of TDC Registrable Securities
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requested by TDC Holders to be included in such TDC Demand Registration exceeds
the maximum number of TDC Registrable Securities permitted to be included in
such TDC Demand Registration pursuant to this Section 2(a)(vi), then the amount
of TDC Registrable Securities of each TDC Holder to be included in such TDC
Demand Registration shall be reduced pro rata in proportion to the respective
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number of TDC Registrable Securities owned by each such TDC Holder. The TDC
Holders shall be entitled to one TDC Demand Registration pursuant to this
Section 2(a)(vi); provided, however, that if (A) such TDC Demand Registration
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did not become effective or was not maintained effective for the period (whether
or not continuous) set forth in Section 2(c) hereof, or (B) in connection with
the registration of TDC Registrable Securities covered by such TDC Demand
Notice, the number of such securities to be offered by the TDC Holders is
reduced to less than fifty percent (50%) of the TDC Registrable Securities
requested to be included in such Demand Registration by the TDC Holders (after
taking into account any reduction pursuant to the second proviso in the
preceding sentence) because of the inclusion of other shares of Common Stock in
accordance with the provisions of Section 2(e) hereof, then the TDC Holders
shall be entitled, in each such case, to one additional TDC Demand Registration
pursuant hereto.
(vii) Any bona fide third party lender (a "Lender"), upon each
foreclosure (a "Foreclosure") of a pledge of, or security interest granted in,
any Continental Registrable Securities, MRCo Registrable Securities, TDC
Registrable
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Securities or BCLP Registrable Securities to secure the indebtedness of
Continental, MRCo, any person included in TDC or any person included in BCLP,
respectively, shall have the right, by written notice (a "Lender Demand Notice")
given to the Company in accordance with the provisions of Section 9.1 hereof, to
request the Company to register under and in accordance with the provisions of
the Securities Act all but not less than all Registrable Securities subject to
such Foreclosure (a "Lender Demand Registration").
(b) Registration. As soon as practicable after each date on which
------------
the Company first receives a Demand Notice pursuant to Section 2(a) hereof, the
Company shall use its best efforts to file with the SEC a Registration Statement
on the appropriate form for the registration and sale of the total number of
Registrable Securities specified in such Demand Notice in accordance with the
intended method or methods of distribution specified by the Holders in such
Demand Notice. The Company shall use its best efforts to cause such
Registration Statement to be declared effective by the SEC as soon as
practicable after the date of the Company's earliest receipt of a Demand Notice.
(c) Effectiveness. The Company agrees to use its commercially
-------------
reasonable efforts to keep any Registration Statement filed pursuant to this
Section 2 continuously effective and usable for the sale of Registrable
Securities (i)(A) in the case of a Shelf Registration, until 180 days from the
date on which the SEC declares such Shelf Registration Statement effective, and
(B) in the case of a Registration which is not a Shelf Registration, until 60
days from the date on which the SEC declares such Registration Statement
effective, or (ii) until all the Registrable Securities covered by such
Registration Statement have been disposed of pursuant to such Registration
Statement, if earlier, in either case as such period may be extended by this
Section 2. Notwithstanding any other provision of this Agreement, the Company
shall have the right to delay the filing of any Registration Statement otherwise
required to be prepared and filed by the Company pursuant to this Section 2, or
to suspend the use of any Registration Statement, (i) for a period not in excess
of 90 days (a "Section 2(c)(i) Delay Period") if any executive officer of the
Company determines that in such executive officer's reasonable judgment and good
faith the registration and distribution of the Registrable Securities covered or
to be covered by such Registration Statement would materially interfere with any
pending financing, acquisition or corporate reorganization or other material
transaction involving the Company or any of its subsidiaries or would require
disclosure of any other material corporate development that the Company is not
otherwise required to disclose, or (ii) for a period not in excess of 180 days
if the Company intends to file within 60 days
14
a registration statement under the Securities Act with respect to a public
offering of Common Stock for its own account or on Form S-4 or any successor
form thereto (a "Section 2(c)(ii) Delay Period," and, together with Section
2(c)(i) Delay Periods, "Delay Period"). The Company will promptly give the
Holders written notice of such determination and an approximation of the period
of the anticipated delay; provided, however, that the aggregate number of days
-------- -------
included in all Section 2(c)(i) Delay Periods during any consecutive 12 months
shall not exceed the aggregate of (x) 180 days minus (y) the number of days
occurring during the Hold-Back Periods and Interruption Periods during such
consecutive 12 months. Each Holder agrees to cease all disposition efforts under
such Registration Statement with respect to Registrable Securities held by such
Holder immediately upon receipt of notice of the beginning of any Delay Period.
The Company shall provide written notice to the Holders of the end of each Delay
Period. The Company shall not be entitled to initiate a Delay Period unless it
shall concurrently prohibit sales by such other security holders under
registration statements covering securities held by such other security holders
and have in place a policy that prohibits sales of securities of the Company by
senior executive officers during such period. The time period for which the
Company is required to maintain the effectiveness of a Registration Statement
referred to above shall be extended by the aggregate number of days of all Hold-
Back Periods and Interruption Periods affecting such Registration, and such
period and any extension thereof is hereinafter referred to as the
"Effectiveness Period."
(d) Inclusion of Registrable Securities. Within 15 days after
-----------------------------------
receipt of any Demand Notice, the Company shall given written notice of such
registration request to all Holders of Registrable Securities, and the Company
shall include in such registration all Registrable Securities with respect to
which the Company has received written requests for inclusion therein with 20
business days after the date on which notice is given. Each such request shall
specify the number of Registrable Securities to be registered and the intended
method of disposition thereof. Notwithstanding that one or more of the Holders
may elect to participate in the Demand Registration, the Demand Notice will only
count toward the number of Demand Notices permitted to the particular Holders
(e.g., the BCLP Holders) that initiated the Demand Registration. The Company
may also include in such Demand Registration shares of Common Stock for the
account of the Company and any other persons owning Common Stock.
(e) Priority on Demand Registrations. If a Demand Registration is an
--------------------------------
underwritten registration and the managing underwriters participating in such
offering conclude that the total amount of Common Stock requested by the
15
Holders, the Company and any other persons owning Common Stock desiring to
participate in such Demand Registration to be included in such Demand
Registration exceeds the amount which can be sold in (or during the time of)
such offering without delaying or jeopardizing the success of the offering
(including the price per share of the securities to be sold), then the amount of
Common Stock to be offered for the account of the Company shall be reduced to
zero, if necessary, and if, after such cut back, such managing underwriters
conclude that the total amount of securities to be included in such Demand
Registration still could so delay or jeopardize the success of such offering,
then the amount of Common Stock to be offered for the account of any other
persons (other than Holders) desiring to participate in such Demand Registration
shall be reduced or limited (pro rata in proportion to the respective number of
---- ----
shares of Common Stock owned by each such person or in any other manner) to
zero, if necessary, and if, after such cut back, such managing underwriters
conclude that the total amount of securities to be included in such Demand
Registration still could so delay or jeopardize the success of such offering,
then the amount of Registrable Securities to be offered for the account of the
Holders shall be reduced or limited pro rata in proportion to the respective
--- ----
number of Registrable Securities owned by each such Holder (except in the case
of a Lender Demand Registration, in which case all Holders other than Lender
shall be so reduced or limited).
(f) Other Registration Agreements. The Company shall not enter into
-----------------------------
any agreement granting any person (an "Other Security Holder") demand or
piggyback registration rights with respect to such Other Security Holder's
securities of the Company in any registration on a basis more favorable to such
Other Security Holder than is provided to the Holders pursuant to this
Agreement.
(g) Effective Registration Statement. Notwithstanding any other
--------------------------------
provision of Sections 2 and 6 of this Agreement, a Demand Registration requested
pursuant to Section 2(a) hereof shall not be deemed to have been effected (i)
unless a Registration Statement with respect thereto has become effective;
provided, however, that if such Registration Statement does not become effective
-------- -------
after the Company has filed it solely by reason of the refusal to proceed by the
Holders who initiated such Demand Registration (other than a refusal to proceed
based upon the advice of counsel relating to a matter with respect to the
Company), then such registration shall be deemed to have been effected unless
the Holders who initiated such Demand Registration shall have elected to pay all
Registration Expenses referred to in Section 6 hereof in connection with such
Demand Registration, (ii) if, after the Registration Statement that relates to
such Demand Registration has become effective, such Registration Statement
becomes subject to any stop order, injunction or any
16
order or requirement of the Commission or other governmental agency or court for
any reason and such order, injunction or requirement is not promptly withdrawn
or lifted, or (iii) the conditions to closing specified in the purchase
agreement or underwriting agreement entered into in connection with such Demand
Registration are not satisfied, other than by reason of some act or omission by
Holders who initiated such Demand Registration.
SECTION 3. Piggyback Registration.
----------------------
(a) Right to Piggyback. If at any time the Company proposes to file
------------------
a registration statement under the Securities Act with respect to a public
offering of Common Stock pursuant to a firm commitment underwritten offering (i)
for the account of any persons holding Common Stock (other than Holders) or (ii)
solely for cash for its own account (other than a registration statement (x) on
Form S-8 or any successor forms thereto, or (y) filed solely in connection with
a dividend reinvestment plan or employee benefit plan covering officers or
directors of the Company or its Affiliates), then the Company shall give written
notice of such proposed filing to the Holders at least 15 business days before
the anticipated filing date. Such notice shall offer the Holders the
opportunity to register such amount of Registrable Securities as they may
request (a "Piggyback Registration"). Subject to Section 3(b) hereof, the
Company shall include in each such Piggyback Registration all Registrable
Securities with respect to which the Company has received written requests for
inclusion therein within ten days after notice has been given to the Holder.
The Holder shall be permitted to withdraw all or part of the Registrable
Securities from a Piggyback Registration at any time prior to the effective date
of such Piggyback Registration; provided, however, that if such withdrawal
-------- -------
occurs after the filing of the Registration Statement with respect to such
Piggyback Registration, the withdrawing Holders shall reimburse the Company for
the portion of the registration expenses payable with respect to the Registrable
Securities so withdrawn.
(b) Priority on Piggyback Registrations. The Company shall permit
-----------------------------------
the Holders to include all such Registrable Securities on the same terms and
conditions as any similar securities, if any, of the Company or any other
persons holding Common Stock included therein. Notwithstanding the foregoing,
if the Company or the managing underwriters participating in such offering
advise the Holders in writing that the total amount of securities requested to
be included in such Piggyback Registration exceeds the amount which can be sold
in (or during the time of) such offering without delaying or jeopardizing the
success of the offering (including the price per share of the securities to be
sold), then the amount of
17
Common Stock to be offered for the account of any other persons (other than
Holders) who have piggyback registration rights with respect to such Piggyback
Registration shall be reduced or limited (pro rata in proportion to the
--- ----
respective number of shares of Common Stock owned by each such person or in any
other manner) to zero, if necessary, and if, after such cut back, such managing
underwriters conclude that the total amount of securities to be included in such
Piggyback Registration still could so delay or jeopardize the success of such
offering, then the amount of Registrable Securities to be offered for the
account of the Holders shall be reduced or limited pro rata in proportion to the
--- ----
respective number of Registrable Securities owned by each such Holder.
(c) Right to Abandon. Nothing in this Section 3 shall create any
----------------
liability on the part of the Company to the Holders if the Company in its sole
discretion should decide not to file a registration statement proposed to be
filed pursuant to Section 3(a) or to withdraw such registration statement
subsequent to its filing, regardless of any action whatsoever that a Holder may
have taken, whether as a result of the issuance by the Company of any notice
hereunder or otherwise.
SECTION 4. Hold-Back Agreements. Each of the PCG/GKW Holders, the
--------------------
CIBC Holders, the Continental Holders and the MRCo Holders, so long as it is a
beneficial owner (as defined in Section 13(d) of the Securities Act) of at least
five percent of the outstanding shares of the Common Stock, agrees, if requested
by the managing underwriters in any underwritten offering by the Company
(whether for the account of the Company or otherwise), not to effect any public
sale or distribution of any of the Company's equity securities (except as part
of such underwritten registration) during a period of up to 90 days following
the effective date of the applicable Registration Statement (each such period, a
"Hold-Back Period").
SECTION 5. Registration Procedures.
-----------------------
In connection with the registration obligations of the Company
pursuant to and in accordance with Sections 2 and 3 hereof (and subject to the
Company's rights under Sections 2 and 3), the Company will use its best efforts
to effect such registration to permit the sale of such Registrable Securities in
accordance with the Holders' intended method or methods of disposition thereof,
and pursuant thereto the Company shall as expeditiously as possible:
(a) prepare and file with the SEC a Registration Statement for the
sale of the Registrable Securities on any form for which the Company then
18
qualifies and which counsel for the Company shall deem appropriate in accordance
with such Holders' intended method or methods of distribution thereof and,
subject to Section 2(c) and the Company's right to terminate or abandon a
registration pursuant to Section 3(c), use its best efforts to cause such
Registration Statement to become effective and remain effective as provided
herein;
(b) prepare and file with the SEC such amendments (including post-
effective amendments) to the Registration Statement, and such supplements to the
Prospectus, as may be required by the Securities Act during the applicable
period in accordance with the intended methods of disposition specified by the
Holders owning any Registrable Securities covered by such Registration
Statement, make generally available earnings statements satisfying the
provisions of Section 11(a) of the Securities Act (provided that the Company
shall be deemed to have complied with this clause if it has complied with Rule
158 under the Securities Act), and cause the Prospectus as so supplemented to be
filed pursuant to Rule 424 under the Securities Act; provided, however, that
-------- -------
before filing a Registration Statement or Prospectus, or any amendments or
supplements thereto (other than reports required to be filed by it under the
Exchange Act), the Company will furnish to the Holders owning Registrable
Securities covered by such Registration Statement, and their counsel, for review
and comment, copies of all documents required to be filed;
(c) notify the Holders owning any Registrable Securities covered by
such Registration Statement promptly and (if requested) 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 for amendments or supplements to a Registration Statement or
related Prospectus or for additional information regarding such Holders, (iii)
of the issuance by the SEC of any stop order suspending the effectiveness of a
Registration Statement or the initiation or threatening of any proceedings for
that purpose, (iv) 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, and (v) of the
happening of any event that requires the making of any changes in such
Registration Statement, Prospectus or documents incorporated or deemed to be
incorporated therein by reference so that they 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;
19
(d) use its 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 in the United States;
(e) furnish to the Holders disposing of Registrable Securities
covered by such Registration Statement, counsel for such Holders and each
managing underwriter, if any, without charge, one conformed copy of the
Registration Statement, as declared effective by the SEC, and of each post-
effective amendment thereto, in each case including financial statements and
schedules and all exhibits and reports incorporated or deemed to be incorporated
therein by reference; and deliver, without charge, such number of copies of the
preliminary prospectus, any amended preliminary prospectus, each final
Prospectus and any post-effective amendment or supplement thereto, as such
Holder may reasonably request in order to facilitate the disposition of the
Registrable Securities covered by the Registration Statement in conformity with
the requirements of the Securities Act;
(f) prior to any public offering of Registrable Securities, use its
best efforts to register or qualify such Registrable Securities for offer and
sale under the securities or Blue Sky laws of such jurisdictions in the United
States as the Holders disposing of Registrable Securities covered by the
Registration Statement shall reasonably request in writing; provided, however,
-------- -------
that the Company shall in no event be required to qualify generally to do
business as a foreign corporation or as a dealer in any jurisdiction where it is
not at the time so qualified or to execute or file a general consent to service
of process in any such jurisdiction where it has not theretofore done so or to
take any action that would subject it to general service of process or taxation
in any such jurisdiction where it is not then subject;
(g) except during any Delay Period, upon the occurrence of any event
contemplated by paragraph 5(c)(v) above, prepare a supplement or post-effective
amendment to the Registration Statement or related Prospectus or any document
incorporated or deemed to be incorporated therein by reference or file any other
required document so that, as thereafter delivered to the purchasers of the
Registrable Securities being sold thereunder, such Prospectus will not contain
an untrue statement of a material fact or omit to state any 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;
20
(h) use its best efforts to cause all Registrable Securities covered
by the Registration Statement to be listed on each securities exchange or
automated interdealer quotation system, if any, on which similar securities
issued by the Company are then listed or quoted;
(i) on or before the effective date of the Registration Statement,
provide the transfer agent of the Company for the Registrable Securities with
printed certificates for the Registrable Securities in a form eligible for
deposit with The Depositary Trust Company;
(j) if such offering is an underwritten offering, make available for
inspection by any Holder disposing of Registrable Securities included in such
Registration Statement, any underwriter of such offering, and any attorney,
accountant or other agent retained by any such Holder or underwriter
(collectively, the "Inspectors"), all financial and other records and other
information, pertinent corporate documents and properties of any of the Company
and its subsidiaries (collectively, the "Records"), as shall be reasonably
necessary to enable them to exercise their due diligence responsibility;
provided, however, that the Records that the Company determines, in good faith,
-------- -------
to be confidential shall not be disclosed to any Inspector unless (i) such
Inspector signs a confidentiality agreement reasonably satisfactory to the
Company or (ii) the release of such Records is ordered pursuant to a subpoena or
other order from a court of competent jurisdiction; provided, further, that each
-------- -------
Holder shall, promptly after learning that disclosure of such Records is sought
in a court having jurisdiction, give notice to the Company and allow the
Company, at the Company's expense, to undertake appropriate action to prevent
disclosure of such Records;
(k) if such offering is an underwritten offering, enter into such
agreements (including an underwriting agreement in form, scope and substance as
is customary in underwritten offerings) and take all such other appropriate and
reasonable actions requested by the Holders owning a majority of the Registrable
Securities being sold in connection therewith (including those reasonably
requested by the managing underwriters) in order to expedite or facilitate the
disposition of such Registrable Securities, and in such connection, (i) use its
best efforts to 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 and counsel to the Holders disposing
of Registrable Securities), addressed to each Holder selling Registrable
Securities covered by such Registration Statement and each of the underwriters
as to the matters customarily covered in
21
opinions requested in underwritten offerings and such other matters as may be
reasonably requested by such counsel and underwriters, (ii) use its best efforts
to obtain "cold comfort" letters and updates thereof from the independent
certified public accountants of the Company (and, if necessary, any other
independent certified public accountants of any subsidiary of the Company or of
any business or assets acquired by the Company for which financial statements
and financial data are, or are required to be, included in the Registration
Statement), addressed to each Holder selling Registrable Securities covered by
the Registration Statement (unless such accountants shall be prohibited from so
addressing such letters by applicable standards of the accounting profession)
and each of the underwriters, such letters to be in customary form and covering
matters of the type customarily covered in "cold comfort" letters in connection
with underwritten offerings, and (iii) if requested and if an underwriting
agreement is entered into, provide indemnification provisions and procedures
substantially to the effect set forth in Section 8 hereof with respect to all
parties to be indemnified pursuant to said Section. The above shall be done at
each closing under such underwriting or similar agreement, or as and to the
extent required thereunder;
(l) permit any Holder which, in its sole and exclusive judgment,
might be deemed to be an underwriter or a controlling person of the Company, to
participate in the preparation of such registration or comparable statement and
to require the insertion therein of material, furnished to the Company in
writing, which in the reasonable judgment of such Holder and its counsel should
be included; and
(m) make appropriate representatives of management available, upon
reasonable notice and to the extent reasonably requested by the managing
underwriter for any underwritten offering, to participate in customary efforts
to sell the Registrable Securities covered by such Registration Statement,
including, without limitation, participating in "road shows;" provided, however,
-------- -------
that Company shall not be obligated to so participate in connection with more
than two PCG/GKW Demand Registrations, two CIBC Demand Registrations, one
Continental Demand Registration and one MRCo Demand Registration.
With respect to any Registration under Section 2 or Section 3 hereof,
the Company may require each Holder disposing of Registrable Securities covered
by such Registration to furnish such information regarding the Holder and such
Holder's intended disposition of Registrable Securities as the Company may from
time to time reasonably request in writing. If any such information with
respect to the Holder is
22
not furnished within a reasonable period of time after receipt of such request,
the Company may exclude such Holder's Registrable Securities from such
Registration.
Upon receipt of any notice from the Company of the happening of any
event of the kind described in Section 5(c)(ii), 5(c)(iii), 5(c)(iv) or 5(c)(v)
hereof, each Holder shall (i) forthwith discontinue disposition of any
Registrable Securities covered by such Registration Statement or Prospectus
until receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 5(g) hereof, or until such Holder is advised in writing
(the "Advice") by the Company that the use of the applicable Prospectus may be
resumed, and has received copies of any amended or supplemented Prospectus or
any additional or supplemental filings which are incorporated, or deemed to be
incorporated, by reference in such Prospectus (such period during which
disposition is discontinued being an "Interruption Period") and (ii) if
requested by the Company, deliver to the Company (at the expense of the Company)
all copies then in its possession, other than permanent file copies then in its
possession, of the Prospectus covering such Registrable Securities at the time
of receipt of such request. No Holder shall utilize any material other than the
applicable current preliminary prospectus or Prospectus in connection with the
offering of Registrable Securities pursuant to Section 2 or Section 3 hereunder.
SECTION 6. Registration Expenses.
---------------------
The Company will pay all costs, fees and expenses incident to the
Company's performance of or compliance with this Agreement including, without
limitation, (i) all registration and filing fees, including NASD filing fees,
(ii) fees and expenses of compliance with securities or Blue Sky laws, including
reasonable fees and disbursements of counsel in connection therewith, (iii)
printing expenses (including, without limitation, expenses of printing
certificates for Registrable Securities and of printing prospectuses if the
printing of prospectuses is requested by the Holders or the managing
underwriter, if any), (iv) messenger, telephone and delivery expenses, (v) fees
and disbursements of counsel for the Company, (vi) fees and disbursements of all
independent certified public accountants of the Company (including, without
limitation, expenses of any "cold comfort" letters required in connection with
this Agreement) and all other persons retained by the Company in connection with
the Registration Statement, (vii) reasonable fees and disbursements of one
counsel, other than the Company's counsel, selected to represent all such
Holders by Holders owning a majority of the Registrable Securities being
registered and (ix) all other costs, fees and expenses incident to the Company's
performance or compliance with this Agreement (collectively, the "Registration
Expenses") (v) with
23
respect to the first three PCG/GKW Demand Registrations, (w) with respect to the
first three CIBC Demand Registrations, (x) with respect to the first Continental
Demand Registration, (y) with respect to the first MRCo Demand Registration and
(z) with respect to any Piggyback Registration; provided, however, that if any
-------- -------
of the PCG/GKW Holders, CIBC Holders, MRCo Holders or Continental Holders is
entitled to an additional Demand Registration pursuant to the penultimate
sentence of Section 2(a)(i), (ii), (iii) or (iv) hereof, respectively, with
respect to a Demand Registration for which the Company was required to pay
Registration Expenses pursuant to this Section 6, then such group of Holders
shall be entitled to have the Company pay the Registration Expenses for each
such additional Demand Registration pursuant to this Section 6. Notwithstanding
the foregoing, the fees and expenses of any persons (other than as contemplated
by clause (vii) above) retained by a Holder, and any discounts, commissions or
brokers' fees or fees of similar securities industry professionals and any
transfer taxes relating to the disposition of Registrable Securities by a
Holder, will be payable by such Holder, and the Company will not have any
obligation to pay any such amounts. Except as provided in the first sentence of
this Section 6, all costs, fees and expenses, including, without limitation,
Registration Expenses, in connection with each registration requested under
Section 2 hereof shall be allocated pro rata among the persons on whose behalf
--- ----
securities of the Company are included in such registration, on the basis of the
respective amounts of the securities then being registered on their behalf.
SECTION 7. Underwriting Requirements.
-------------------------
(a) Subject to Section 7(b) hereof, any Holder shall have the right,
by written notice, to specify that it intends to dispose of Registrable
Securities covered by a Registration pursuant to an underwritten offering.
(b) In the case of any underwritten offering pursuant to a Demand
Registration, Holders owning a majority of the Registrable Securities to be sold
pursuant to such underwritten offering shall select the institution or
institutions that shall manage or lead the offering, subject to the reasonable
satisfaction of the Company. In the case of any underwritten offering pursuant
to a Piggyback Registration, the Company, in its sole discretion, shall select
the institution or institutions that shall manage or lead such offering. No
Holder shall be entitled to participate in an underwritten offering unless and
until such Holder has entered into an underwriting or other agreement with such
institution or institutions for such offering in such form as the Company and
such institution or institutions shall determine, subject to the provisions of
Section 5(k) hereof.
24
SECTION 8. Indemnification.
---------------
(a) Indemnification by the Company. The Company shall, without
------------------------------
limitation as to time, indemnify and hold harmless, to the full extent permitted
by law, each Holder whose Registrable Securities are covered by a Registration
Statement or Prospectus, the officers, directors, agents and employees of each
of them, each Person who controls each such Holder (within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act) and the
officers, directors, agents and employees of each such controlling person, to
the fullest extent lawful, from and against any and all losses, claims, damages,
liabilities, judgment, costs (including, without limitation, costs of
preparation and reasonable attorneys' fees) and expenses (collectively,
"Losses"), as incurred, arising out of or based upon any untrue or alleged
untrue statement of a material fact contained in such Registration Statement or
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 of
a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as the same are based upon
information included therein in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of such Holder with respect
to such Holder expressly for use therein; provided, however, that the Company
-------- -------
shall not be liable to any Holder to the extent that any such Losses arise out
of or are based upon an untrue statement or alleged untrue statement or omission
or alleged omission made in any preliminary prospectus if (i) in the case of any
offering other than an underwritten offering, having previously been furnished
by or on behalf of the Company with copies of the Prospectus, such Holder failed
to send or deliver a copy of the Prospectus with or prior to the delivery of
written confirmation of the sale of Registrable Securities by such Holder to the
person asserting the claim from which such Losses arise and (ii) the Prospectus
would have corrected in all material respects such untrue statement or alleged
untrue statement or such omission or alleged omission; and provided, further,
-------- -------
that the Company shall not be liable in any such case to the extent that any
such Losses arise out of or are based upon an untrue statement or alleged untrue
statement or omission or alleged omission in the Prospectus, if (x) such untrue
statement or alleged untrue statement, omission or alleged omission is corrected
in all material respects in an amendment or supplement to the Prospectus and (y)
in the case of any offering other than an underwritten offering, having
previously been furnished by or on behalf of the Company with copies of the
Prospectus as so amended or supplemented, such Holder thereafter fails to
deliver such Prospectus as so amended or supplemented, prior to or concurrently
with the sale of Registrable Securities.
25
(b) Indemnification by Holder of Registrable Securities. In
---------------------------------------------------
connection with any Registration Statement in which a Holder is participating,
and as a condition to such participation, such Holder shall (i) furnish to the
Company in writing such information as the Company reasonably requests for use
in connection with any Registration Statement or Prospectus and (ii) be deemed
to have agreed to indemnify, to the full extent permitted by law, the Company,
its directors, 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 or alleged untrue statement of a material fact contained in any
Registration Statement or Prospectus or any amendment or supplement thereto, or
any preliminary prospectus, or arising out of or based upon any omission or
alleged 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 or alleged untrue statement or omission or alleged
omission is based upon any information included therein in reliance upon and in
conformity with information so furnished in writing by or on behalf of such
Holder with respect to such Holder to the Company expressly for use in such
Registration Statement or Prospectus.
(c) Conduct of Indemnification Proceedings. If any Person shall be
--------------------------------------
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 proceeding with
respect to which such indemnified party seeks indemnification or contribution
pursuant hereto; provided, however, that the delay or failure to so notify the
-------- -------
indemnifying party shall not relieve the indemnifying party from any obligation
or liability except to the extent that the indemnifying party has been
materially prejudiced by such delay or failure. The indemnifying party shall
have the right, exercisable by giving written notice to an indemnified party
promptly after the receipt of written notice from such indemnified party of such
claim or proceeding, to assume, at the indemnifying party's expense, the defense
of any such claim or proceeding, with counsel reasonably satisfactory to such
indemnified party; provided, however, that an indemnified party shall have the
-------- -------
right to employ separate counsel in any such claim or proceeding and to
participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless: (l) the indemnifying
party agrees to pay such fees and expenses; (2) the indemnifying party fails
promptly to assume the defense of such claim or proceeding or fails to employ
counsel reasonably satisfactory to such indemnified party; or (3) the named
parties to
26
any proceeding (including impleaded parties) include both such indemnified party
and the indemnifying party, and such indemnified party shall have been advised
by counsel that there may be one or more legal defenses available to it which
are different from or additional to those available to the indemnifying party;
in which case the indemnified party shall have the right to employ counsel and
to assume the defense of such claim or proceeding; and provided, further, that
-------- -------
the indemnifying party shall not, in connection with any one such claim or
proceeding or separate but substantially similar or related claims or
proceedings in the same jurisdiction, arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more than
one firm of attorneys (together with appropriate local counsel) at any time for
all of the indemnified parties, or for fees and expenses that are not
reasonable. Whether or not such defense is assumed by the indemnifying party, no
indemnified party will be subject to any liability for any settlement made
without its written consent. The indemnifying party shall pay the fees and
expenses of separate counsel for which it is responsible pursuant to this
Section 8(c) as they are incurred, provided that the indemnified party agrees in
--------
writing to promptly reimburse the indemnified party for all such fees and
expenses if it shall be finally judicially determined that the indemnified party
is not entitled to indemnification pursuant to this Section 8. The indemnifying
party shall not consent to entry of any judgment or enter into any settlement
that does not include 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 8 is unavailable to an indemnified party in respect of any Losses (other
than in accordance with its terms) or is insufficient to hold such indemnified
party harmless, then each applicable indemnifying party, in lieu of indemnifying
such indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such Losses, in such proportion as is
appropriate to reflect the relative fault of the indemnifying party, 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, on the one hand, and indemnified party, on the other hand,
shall 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 to state a material fact, has been taken by, or
relates to information supplied by, such indemnifying party or indemnified
party, and the
27
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent any such action, statement or omission. The amount paid or
payable by a party as a result of any Losses shall be deemed to include any
legal or other fees or expenses incurred by such party in connection with any
investigation or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 8(d) were determined by pro rata
--------
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provision of this Section 8(d), an indemnifying party that
is a Holder shall not be required to contribute any amount which is in excess of
the amount by which the total proceeds received by such Holder from the sale of
Registrable Securities (net of all underwriting discounts and commissions and
other expenses) 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)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
SECTION 9. Miscellaneous.
-------------
9.1 Notices. All notices or communications hereunder shall be in
-------
writing (including facsimile or similar writing), addressed as follows:
To the Company:
Global Crossing Ltd.
Wessex House
00 Xxxx Xxxxxx
Xxxxxxxx XX00, Xxxxxxx
Attention: K. Xxxxxx Xxxxxxx
Facsimile No.: (000)-000-0000
28
With a copy (which shall not constitute notice) to:
Global Crossing Ltd.
000 Xx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
Facsimile No.: (000) 000-0000
To the Holders (and the parties designated to receive copies) at their
addresses set forth in Schedule I hereto.
Any such notice or communication shall be deemed given (i) when made,
if made by hand delivery, (ii) upon confirmation of receipt, if sent by
facsimile (iii) one business day after being deposited with a next-day courier,
charges prepaid, or (iv) three business days after being sent United States
certified or registered mail, return receipt requested, postage prepaid, in each
case addressed as above (or to such other address as such party may designate in
writing from time to time).
9.2 Separability. If any provision of this Agreement shall be
------------
declared to be invalid or unenforceable, in whole or in part, such invalidity or
unenforceability shall not affect the remaining provisions hereof which shall
remain in full force and effect.
9.3 Assignment. This Agreement shall be binding upon and inure to
----------
the benefit of the parties hereto and their respective successors and
Transferees.
9.4 Entire Agreement. This Agreement represents the entire agreement
----------------
of the parties and shall supersede any and all previous contracts, arrangements
or understandings between the parties hereto with respect to the subject matter
hereof.
9.5 Amendments and Waivers. Except as otherwise provided herein, the
----------------------
provisions of this Agreement may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given,
without the written consent of (i) the Company and (ii) the Holders of at least
a majority of the Registrable Securities owned by each of BCLP, CIBC,
Continental, MRCo and/or PCG/GKW, to the extent each such class or group is
affected thereby.
29
9.6 Expenses. Whether or not the transactions contemplated hereby
--------
are consummated, except as otherwise provided herein, all costs and expenses
incurred in connection with the execution of this Agreement shall be paid by the
party incurring such costs or expenses, except as otherwise set forth herein.
9.7 Interpretation. The headings contained in this Agreement are for
--------------
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
9.8 Counterparts. This Agreement may be executed in two or more
------------
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when two or more such counterparts have been signed by
each of the parties and delivered to the other party.
9.9 GOVERNING LAW; SUBMISSION TO JURISDICTION. THIS AGREEMENT SHALL
-----------------------------------------
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK INCLUDING, WITHOUT LIMITATION, SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK
GENERAL OBLIGATIONS LAW AND RULE 327(b) OF THE NEW YORK CIVIL PRACTICE LAWS AND
RULES. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN
THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN
THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT
OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE
AFORESAID COURTS. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, AND ANY OBJECTION THAT IT
MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
EACH PARTY AGREES TO ACCEPT, AT THE ADDRESS REFERRED TO IN SECTION 9.1 HEREOF,
SERVICE OF PROCESS IN ANY SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH COURTS WITH
RESPECT TO THIS AGREEMENT.
30
9.10 Calculation of Time Periods. Except as otherwise indicated, all
---------------------------
periods of time referred to herein shall include all Saturdays, Sundays and
holidays; provided, however, that if the date to perform the act or give any
-------- -------
notice with respect to this Agreement shall fall on a day other than a Business
Day, such act or notice may be timely performed or given if performed or given
on the next succeeding Business Day.
31
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first written above.
THE COMPANY:
GLOBAL CROSSING LTD.
By:
-----------------------------------
Name:
Title:
INVESTORS:
CIBC WOOD GUNDY (CAPITAL) SFC, INC.
By:
-----------------------------------
Name:
Title:
[CIBC PARTNERSHIP I]
By:
-----------------------------------
Name:
Title:
[CIBC PARTNERSHIP II]
By:
-----------------------------------
Name:
Title:
S-1
CONTINENTAL CASUALTY COMPANY
By:
-----------------------------------
Name:
Title:
MRCO, INC.
By:
-----------------------------------
Name:
Title:
-----------------------------------
XXXX XXXXXXX
PACIFIC CAPITAL GROUP, INC.
By:
-----------------------------------
Name:
Title:
GKW UNIFIED HOLDINGS, LLC
By:
-----------------------------------
Name:
Title:
S-2
--------------------------------------
XXXXXX X. XXXXX
RIDGESTONE CORP.
By:
-----------------------------------
Name:
Title:
--------------------------------------
XXXXX XXXXXX
GALENIGHT CORP.
By:
-----------------------------------
Name:
Title:
--------------------------------------
XXXXX XXX
SAN XXXXXXX CORP.
By:
-----------------------------------
Name:
Title:
S-3
XXXXX AND XXXXX XXX FAMILY TRUST
By:
-----------------------------------
Name:
Title:
--------------------------------------
XXXXXXXX XXXX
YAO-HWA COMPANY MANAGEMENT COMMISSION
By:
-----------------------------------
Name:
Title:
SASSOON INTERNATIONAL HOLDINGS, INC.
By:
-----------------------------------
Name:
Title:
S-4
SCHEDULE I
HOLDERS
-------
CIBC WOOD GUNDY (CAPITAL) SFC, INC.
[CIBC PARTNERSHIP 1]
[CIBC PARTNERSHIP 2]
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Facsimile No.: (212)
With a copy (which shall not constitute notice) to:
Xxxxxx Xxxxxx & Xxxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Facsimile No.: (000) 000-0000
CONTINENTAL CASUALTY COMPANY
Chicago, Illinois
Attention:
Facsimile No.: (312)
With a copy (which shall not constitute notice) to:
CONTINENTAL CASUALTY COMPANY
Chicago, Illinois
Attention: Xxxxx Xxxxxxxxx
Facsimile No.: (312)
I-1
MRCO, INC.
Washington, D.C.
Attention: Xxxxxxx Xxxxx
Facsimile No.: (202)
With a copy (which shall not constitute notice) to:
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
000 X. Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxx
Facsimile No.:
XXXX XXXXXXX
PACIFIC CAPITAL GROUP, INC.
GKW UNIFIED HOLDINGS, LLC
000 X. Xx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxxx
Facsimile No.: (000) 000-0000
With a copy (which shall not constitute notice) to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Facsimile No.: (000) 000-0000
XXXXXX X. XXXXX
RIDGESTONE CORP.
000 X. Xx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
Facsimile No.: (000) 000-0000
With a copy (which shall not constitute notice) to:
[________________]
I-2
XXXXX XXXXXX
GALENIGHT CORP.
000 X. Xx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxx
Facsimile No.: (000) 000-0000
With a copy (which shall not constitute notice) to:
[__________________________]
XXXXX XXX
SAN XXXXXXX CORP.
XXXXX AND XXXXX XXX FAMILY TRUST
000 X. Xx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxx
Facsimile No.: (000) 000-0000
With a copy (which shall not constitute notice) to:
[______________________]
XXXXXXXX XXXX
000 X. Xx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
With a copy (which shall not constitute notice) to:
[________________________]
I-3
YAO-HWA COMPANY MANAGEMENT COMMISSION
00 Xxx-Xxxx Xxxxxx
Xxxxxx, Xxxxxx, R.O.C.
Attention: Xx. Xxxx-Xxxxx Xxxx
Facsimile No.: (000) 000-0-000-0000
With a copy (which shall not constitute notice) to:
[_____________________]
SASSOON INTERNATIONAL HOLDINGS, INC.
Xx. 0, Xxxxxxxxxx Xxxx
Xxxxxxx Science-Based Industrial Park
Hsinchu 30077, Taiwan, R.O.C.
Attention: Xxxxxxx Xxxx
Facsimile No.: (000) 000-0-000-0000
With a copy (which shall not constitute notice) to:
[_____________________]
I-4
