Exhibit 1.1
Global Crossing Ltd.
[ ] Shares
[COMMON STOCK][PREFERRED STOCK]
UNDERWRITING AGREEMENT
New York, New York
__________________
[Addressees]
Ladies and Gentlemen:
Global Crossing Ltd., a Bermuda company (the "Company"), proposes to
issue and sell [ ] shares of its [Common Stock][Preferred
Stock], and the persons named on Schedule I hereto (the "Selling Shareholders")
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propose to sell an aggregate of [ ] shares of [Common
Stock][Preferred Stock] of the Company (together with the [ ] shares of
[Common Stock][Preferred Stock] to be issued and sold by the Company, the "Firm
Shares") to you (the "Underwriters), in the amounts set forth in Schedule II
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hereto. In addition, solely for the purpose of covering over-allotments, if
any, in connection with the sale of the Firm Shares, at the option of the
Underwriters, the Company will sell up to an additional [ ] shares
(the "Additional Shares") of its [Common Stock][Preferred Stock]. The Firm
Shares and the Additional Shares are collectively referred to herein as the
"Securities". [The Preferred Stock will be issued pursuant to a certificate of
designations (the "Certificate of Designations"), which will be in form and
substance reasonably satisfactory to the Underwriters, and the terms thereof
will be contained in the Company's Bye-Laws (the "Bye-laws"). Under certain
circumstances set forth in the Certificate of Designations and Bye-Laws, the
Preferred Stock may be convertible into Common Stock, par value $0.01 per share
(the "Common Stock"), of the Company.] The Transfer Agent for the Securities
will be EquiServe. The Securities are more fully described in the Prospectuses
referred to below. Capitalized terms used but not defined herein shall have the
meanings given to such terms in the Prospectuses (as defined below).
In connection with the sale of the Securities, the Company has
prepared and filed with the Securities and Exchange Commission (the
"Commission") in accordance with the provisions of the Securities Act of 1933,
as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Act"), a Registration Statement on Form S-3, including
Prospectuses subject to completion, relating to the Securities. The term
"Registration Statement"
as used in this Agreement means the registration statement (including all
financial schedules and exhibits and all documents incorporated therein by
reference), as amended at the time it becomes effective, and as thereafter
amended by post-effective amendment. The term "Prospectuses" as used in this
Agreement means the prospectuses in the forms included in the Registration
Statement or, if the prospectuses included in the Registration Statement omit
the information in reliance on Rule 430A under the Act and such information is
included in prospectuses filed with the Commission pursuant to Rule 424(b) under
the Act, the term "Prospectuses" as used in this Agreement means the
prospectuses in the forms included in the Registration Statement as supplemented
by the addition of the Rule 430A information contained in the prospectuses filed
with the Commission pursuant to Rule 424(b). The term "Prepricing Prospectuses"
as used in this Agreement means the prospectuses subject to completion in the
forms included in the Registration Statement at the time of the initial filing
of the Registration Statement with the Commission, as such prospectuses shall
have been amended from time to time prior to the date of the Prospectuses.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
Certificates in transferable form for the Securities that each Selling
Shareholder agrees to sell pursuant to this Agreement have been placed in
custody with [ ] (the "Custodian") for delivery under
this Agreement pursuant to a Custody Agreement and Power of Attorney (the
"Custody Agreement") executed by each of the Selling Shareholders appointing [
] and [ ] as agents and attorneys-in-fact (the "Attorneys-
in-Fact"). Each Selling Shareholder agrees that (i) the Securities represented
by the certificates held in custody pursuant to the Custody Agreement are
subject to the interests of the Underwriters, the Company and each other Selling
Shareholder, (ii) the arrangements made by the Selling Shareholders for such
custody are, except as specifically provided in the Custody Agreement,
irrevocable and (iii) the obligations of any Selling Shareholder hereunder and
under the Custody Agreement shall not be terminated by any act of such Selling
Shareholder or by operation of law, whether by the death or incapacity of such
Selling Shareholder or the occurrence of any other event or, if such Selling
Shareholder is not a natural person, upon any dissolution, winding up,
distribution of assets or other event affecting the legal existence of such
Selling Shareholder. If any Selling Shareholder shall die or be incapacitated
or if any other event shall occur before the delivery of the Securities
hereunder, or if such Selling Shareholder is not a natural person, if such
Selling Shareholder shall dissolve, wind up, distribute assets or if any other
event affecting the legal existence of such Selling Shareholder shall occur
before the delivery of the Securities hereunder, certificates for the Securities
of such Selling Shareholder shall be delivered to the Underwriters by the
Attorneys-in-Fact in accordance with the terms and conditions of this Agreement
and the Custody Agreement as if such death or incapacity, dissolution, winding
up or distribution of assets or other event had not occurred, regardless of
whether or not the Attorneys-in-Fact or any Underwriter shall have received
notice of such death, incapacity, dissolution, winding up or distribution of
assets or other event. Each Attorney-in-Fact is authorized, on behalf of each
of the Selling Shareholders, to execute this Agreement and any other documents
necessary or desirable in connection with the sale of the Securities to be sold
hereunder by such Selling Shareholder, to make delivery of the certificates for
such Securities, to receive the proceeds of the sale of such Shares, to give
receipts for such proceeds, to pay therefrom any expenses to be borne by such
Selling Shareholder in connection with the sale
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and public offering of such Securities, to distribute the balance thereof to
such Selling Shareholder and to take such other action as may be necessary or
desirable in connection with the transactions contemplated by this Agreement.
Each Attorney-in-Fact agrees to perform his duties under the Custody Agreement.
This Agreement, the Securities, the Certificate of Designations and
the Bye-Laws are hereinafter referred to collectively as the "Operative
Documents".
1. Representations and Warranties. (A) The Company hereby
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represents and warrants to each Underwriter as set forth below in this Section
1(A).
(a) The Registration Statement and the Prospectuses and any supplement
or amendment thereto when filed with the Commission under Rule 424(b) under
the Act complied or will comply in all material respects with the
provisions of the Act and will not at any such times contain any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that the Company
does not make any representation or warranty as to the information
contained in or omitted from the Registration Statement or any Prospectus,
or any amendment or supplement thereto, in reliance upon and in conformity
with information furnished in writing to the Company by any Underwriter
specifically for inclusion therein.
(b) The statements made in the Prospectuses under the caption
"Description of the [Common Stock][Preferred Stock]", insofar as they
purport to constitute summaries of certain terms of documents referred to
therein, constitute or will constitute accurate summaries of the terms of
such documents in all material respects.
(c) The execution and delivery of, and the performance by the Company
of its obligations under, this Agreement have been duly and validly
authorized by the Company; this Agreement has been duly executed and
delivered by the Company and, assuming due authorization, execution and
delivery by the other parties hereto, constitutes the valid and binding
agreement of the Company, enforceable against the Company in accordance
with its terms, subject to the qualification that the enforceability of the
Company's obligations hereunder may be limited by bankruptcy, fraudulent
conveyance, insolvency, reorganization, moratorium or other similar laws
relating to or affecting creditors' rights generally and by general
principles of equity, and except as rights to indemnity and contribution
hereunder may be limited by Federal or state securities laws or principles
of public policy.
(d) [The amendment of the Bye-laws to incorporate the terms of the
Preferred Stock has been duly authorized by all necessary corporate and
shareholder action and, on the Closing Date, the Certificate of Designation
will have been duly executed by the Company, and the Bye-laws will have
been amended to incorporate the terms of the Preferred Stock, which terms
will conform in all material respects to the description thereof in the
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Prospectuses;] the Company has duly authorized the Securities and, when
issued and authenticated in accordance with the Bye-laws and delivered to
and paid for by the Underwriters in accordance with the terms hereof, the
Securities will represent a legally valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms,
subject to the qualification that the enforceability of the Company's
obligations with respect thereto may be limited by bankruptcy, fraudulent
conveyance, insolvency, reorganization, moratorium or other similar laws
relating to or affecting creditors' rights generally and by general
principles of equity.
(e) All the outstanding shares of Common Stock of the Company have
been duly authorized and validly issued, are fully paid and nonassessable
and are free of any preemptive or similar rights; [the shares of Common
Stock into which the shares of Preferred Stock may be converted will be
duly authorized and, when issued and delivered to the holders of Securities
against payment therefor in accordance with the terms of the Preferred
Stock, validly issued, fully paid and nonassessable and free of any
preemptive rights]; and the capital stock of the Company conforms to the
description thereof in the Prospectuses.
(f) The Company is a company duly organized and validly existing and
in good standing under the laws of Bermuda and has the requisite corporate
power and authority to own, lease and operate its properties and to conduct
its business as described in the Registration Statement or the Prospectuses
and to execute, deliver and perform its obligations under the Operative
Documents (including, without limitation, the requisite corporate power and
authority to issue, sell and deliver the Securities), and is duly
registered and qualified to conduct its business and is in good standing in
each jurisdiction or place where the nature of its properties or the
conduct of its business requires such registration or qualification, except
where the failure so to register or qualify or to be in good standing would
not have a material adverse effect on the business, assets, condition
(financial or otherwise) or results of operations of the Company and the
direct or indirect subsidiaries of the Company (the "Subsidiaries"), taken
as a whole (a "Material Adverse Effect").
(g) Each of the Subsidiaries is duly organized and validly existing
and in good standing under the laws of the jurisdiction of its organization
and has the requisite power (corporate and other) and authority to own,
lease and operate its properties and to conduct its business as described
in the Registration Statement or the Prospectuses and is duly registered
and qualified to conduct its business and is in good standing in each
jurisdiction or place where the nature of its properties or the conduct of
its business requires such registration or qualification, except where the
failure so to register or qualify or be in good standing would not have a
Material Adverse Effect. All of the outstanding shares of capital stock of
each of the Subsidiaries have been duly authorized and validly issued, are
fully paid and nonassessable, and, with respect to capital stock of the
Subsidiaries, are wholly owned by the Company, directly or indirectly
through one of the other Subsidiaries, free and clear of any lien, adverse
claim, security interest, equity or other encumbrance, except [ ].
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(h) Except as disclosed in the Registration Statement or the
Prospectuses, there are no legal or governmental proceedings pending or, to
the knowledge of the Company, threatened, against the Company or any of the
Subsidiaries or to which any of their respective properties is subject
that, if determined adversely to the Company or any of the Subsidiaries,
would have a Material Adverse Effect or that are required to be described
or summarized in the Registration Statement or the Prospectuses but are not
described as required by the Act. The Registration Statement and
Prospectuses contain accurate summaries of all material agreements,
contracts, indentures, leases or other instruments that are required to be
described or summarized under the Act.
(i) Neither the Company nor any of the Subsidiaries is (i) in
violation of its organizational documents, or of any law, ordinance,
administrative or governmental rule or regulation applicable to it or of
any decree of any court or governmental agency or body having jurisdiction
over it, except where any such violation or violations would not have a
Material Adverse Effect or (ii) except as may be disclosed in the
Registration Statement or the Prospectuses, in default in the performance
of any obligation, agreement or condition contained in any bond, debenture,
note or any other evidence of indebtedness or in any material agreement,
indenture, lease or other instrument to which it is a party or by which it
or any of its properties may be bound, which either individually or in the
aggregate would have a Material Adverse Effect.
(j) None of the issuance, offer or sale of the Securities, the
execution, delivery or performance by the Company of this Agreement or the
other Operative Documents (including, without limitation, the amendment of
the Bye-Laws to incorporate the terms of the Preferred Stock), compliance
by the Company with the provisions hereof nor consummation by the Company
of the transactions contemplated hereby or thereby (i) requires any
consent, approval, authorization or other order of, or registration or
filing with, any court or governmental agency or body having jurisdiction
over it (except such as may be required in connection with any consent,
approval, authorization or other order of the Bermuda Minister of Finance
or the Bermuda Monetary Authority and compliance with the securities or
Blue Sky laws of various jurisdictions), (ii) conflicts or will conflict
with or constitutes or will constitute a breach of, or a default under, the
organizational documents of the Company or any of the Subsidiaries or any
material agreement, indenture, lease or other instrument to which the
Company or any of the Subsidiaries is a party or by which any of them or
any of their respective properties may be bound, (iii) violates or will
violate any statute, law, regulation or filing or judgment, injunction,
order or decree applicable to the Company or any of the Subsidiaries or any
of their respective properties, or (iv) will result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets
of the Company or any of the Subsidiaries pursuant to the terms of any
agreement or instrument to which any of them is a party or by which any of
them may be bound or to which any of the property or assets of any of them
is subject.
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(k) [ ], who have certified the financial statements of
the Company included as part of or incorporated by reference in the
Registration Statement and the Prospectuses are independent public
accountants within the meaning of the Securities Act and the applicable
rules and regulations thereunder.
(l) The financial statements, together with the related notes thereto,
included as part of the Registration Statement and the Prospectuses or
incorporated by reference therein, present fairly in all material respects
the consolidated financial position, results of operations, shareholders'
equity and cash flows of the Company together with its consolidated
subsidiaries [and [ ] and their consolidated subsidiaries] on
the basis stated in the Registration Statement and the Prospectuses at the
respective dates or for the respective periods to which they apply (to the
extent such entities were in existence at such dates or for such periods);
such statements and related notes have been prepared in accordance with
generally accepted accounting principles consistently applied throughout
the periods involved, except as disclosed therein, and meet the
requirements of Regulation S-X under the Securities Act for registration
statements on Form S-3; and the other financial information and data set
forth or incorporated by reference in the Registration Statement and the
Prospectuses is accurately presented and, to the extent such information
and data is derived from the financial books and records of the Company, is
prepared on a basis consistent with such financial statements and the books
and records of the Company. The selected financial data set forth under
the caption "Selected historical financial information" in the Registration
Statement and the Prospectuses or the selected financial data incorporated
by reference in the Registration Statement and the Prospectuses fairly
present the information included or incorporated by reference therein.
(m) The pro forma financial statements included in the Registration
Statement and the Prospectuses have been prepared on a basis consistent
with the historical financial statements of the Company and its
consolidated subsidiaries, except for the pro forma adjustments specified
therein, and give effect to assumptions made on a reasonable basis and
present fairly in all material respects the historical transactions
contemplated in the Registration Statement and the Prospectuses and comply
as to form in all material respects with the requirements of Regulation S-X
under the Act.
(n) Except as disclosed in, or specifically contemplated by, the
Registration Statement or the Prospectuses, subsequent to the date as of
which such information is given in the Registration Statement or the
Prospectuses (as amended or supplemented, if applicable), neither the
Company nor any of the Subsidiaries has incurred any liability or
obligation, direct or contingent, or entered into any transaction, in each
case not in the ordinary course of business, that is material to the
Company and the Subsidiaries taken as a whole, and there has not been any
material change in the capital stock, or material increase in the short-
term or long-term debt, of the Company or any of the Subsidiaries or any
material adverse change, or any development involving or which would be
expected to
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involve a prospective material adverse change, in the business, assets,
condition (financial or otherwise) or results of operations of the Company
and the Subsidiaries taken as a whole.
(o) Each of the Company and the Subsidiaries has good and indefeasible
title to all property (real and personal) described in the Registration
Statement and the Prospectuses as being owned by it, free and clear of all
liens, claims, security interests or other encumbrances, except such as are
described in the Registration Statement or the Prospectuses or would not
have a Material Adverse Effect, and all the material property described in
the Registration Statement or the Prospectuses as being held under lease by
each of the Company and the Subsidiaries is held by them under valid,
subsisting and enforceable leases, with only such exceptions as would not
have a Material Adverse Effect.
(p) Each of the Company and the Subsidiaries has such permits,
licenses, franchises, certificates of need and other approvals or
authorizations of governmental or regulatory authorities ("Permits") as are
necessary under applicable law to own their respective properties and to
conduct their respective businesses in the manner described in the
Registration Statement or Prospectuses, except to the extent that the
failure to have such Permits would not have a Material Adverse Effect; the
Company and each of the Subsidiaries have fulfilled and performed in all
material respects all their respective material obligations with respect to
the Permits, and no event has occurred which allows, or after notice or
lapse of time would allow, revocation or termination thereof or results in
any other material impairment of the rights of the holder of any such
Permit, subject in each case to such qualification as may be set forth in
the Registration Statement or the Prospectuses and except to the extent
that any such revocation or termination would not have a Material Adverse
Effect.
(q) The Company and the Subsidiaries, taken as a whole, are insured by
insurers of recognized financial responsibility against such losses and
risks and in such amounts as are prudent.
(r) Neither the Company nor the Subsidiaries have violated any
applicable foreign, federal, state or local law or regulation relating to
the protection of human health and safety, the environment or hazardous or
toxic substances or wastes, pollutants or contaminants ("Environmental
Laws"), except for such violations which, singly or in the aggregate, would
not have a Material Adverse Effect.
(s) There are no costs or liabilities associated with any applicable
Environmental Laws (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance
with Environmental Laws or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to third
parties) which would, singly or in the aggregate, have a Material Adverse
Effect.
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(t) No holder of any security of the Company or any of the
Subsidiaries has any right to request or demand registration of shares of
common stock or any other security of the Company because of the
consummation of the transactions contemplated by this Agreement. Except as
described in the Registration Statement or the Prospectuses, there are no
outstanding options, warrants or other rights calling for the issuance of,
and there are no commitments, agreements or arrangements to issue, any
shares of capital stock of the Company or any of the Subsidiaries or any
security convertible into or exchangeable or exercisable for capital stock
of the Company or any of the Subsidiaries.
(u) The Company and each of the Subsidiaries own or possess all
patents, trademarks, trademark registration, service marks, service xxxx
registrations, trade names, copyrights, licenses, inventions, trade secrets
and rights described in the Registration Statement or the Prospectuses as
being owned by any of them or necessary for the conduct of their respective
businesses, and, except as may be disclosed in the Registration Statement
or the Prospectuses, the Company is not aware of any claim to the contrary
or any challenge by any other person to the rights of the Company and the
Subsidiaries with respect to the foregoing which, if determined adversely
to the Company or the Subsidiaries, would have a Material Adverse Effect.
(v) The Company is not an "investment company" within the meaning of
the Investment Company Act of 1940, as amended (the "Investment Company
Act").
(w) Prior to the date hereof, the Company, has not taken any action
which is designed to or which has constituted or which might have been
expected to cause or result in stabilization or manipulation of the price
of any security of the Company in connection with the offering of the
Securities.
(B) Each Selling Shareholder represents and warrants to each
Underwriter as set forth in this Section 1(B).
(a) Such Selling Shareholder now has, and on the Closing Date, will
have, valid and marketable title to the Securities to be sold by such
Selling Shareholder hereunder, free and clear of any lien, claim, security
interest or other encumbrance, including, without limitation, any
restriction on transfer, except as otherwise described in the Registration
Statement or the Prospectuses.
(b) Such Selling Shareholder now has, and on the Closing Date will
have, full legal right, power and authorization required by law to sell,
assign, transfer and deliver such Securities in the manner provided in this
Agreement, free and clear of any lien, claim, security interest or other
encumbrance.
(c) Each of this Agreement and the Custody Agreement has been duly
executed and delivered by or on behalf of such Selling Shareholder and,
assuming due authorization,
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execution and delivery by the other parties hereto and thereto, constitutes
the valid and legally binding agreement of such Selling Shareholder,
enforceable against such Selling Shareholder in accordance with its terms,
except that the enforceability of such Selling Shareholder's obligations
hereunder or thereunder may be limited by bankruptcy, insolvency or other
similar laws affecting the enforcement of creditors' rights generally and
subject to the applicability of general principles of equity.
(d) Neither the sale of the Securities to be sold by such Selling
Shareholder hereunder, the execution, delivery or performance of this
Agreement or the Custody Agreement by or on behalf of such Selling
Shareholder nor the consummation by such Selling Shareholder of the
transactions contemplated hereby and thereby (i) requires any consent,
approval, authorization or other order of or registration or filing with,
any court or governmental agency or body having jurisdiction over it
(except such as may be required for the registration of the Securities
under the Act and compliance with the securities or Blue Sky laws of
various jurisdictions, all of which have been or will be effected in
accordance with this Agreement), (ii) conflicts or will conflict with or
constitutes or will constitute a breach of, or a default under any material
agreement, indenture, lease or other instrument to which such Selling
Shareholder is party or by which such Selling Shareholder may be bound,
(iii) violates or will violate any statute, law, regulation or filing or
judgment, injunction, order or decree applicable to such Selling
Shareholder or (iv) will result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of such Selling
Shareholder pursuant to the terms of any agreement or instrument to which
such Selling Shareholder is party or by which such Selling Shareholder may
be bound or to which any of the property or assets of such Selling
Shareholder is subject.
(e) The information pertaining to such Selling Shareholder provided to
the Company for inclusion under the caption "Selling Shareholders" in the
Prospectuses does not and will not on the Closing Date 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.
(f) The representations and warranties of such Selling Shareholder in
the Custody Agreement are, and on the Closing Date will be, true and
correct.
(g) Such Selling Shareholder has not taken, directly or indirectly,
any action designed to or that might reasonably be expected to cause or
result in stabilization or manipulation of the price of the [Common Stock]
to facilitate the sale or resale of the Securities.
2. Purchase and Sale. (a) Subject to the terms and conditions and
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in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at a purchase price of
[ ]% of the principal amount thereof, [plus accrued dividends from [
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], if settlement occurs after that date,] [ ] Firm Shares in the
amount set forth opposite such Underwriter's name on Schedule I hereto.
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(b) The Company also agrees, subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth, that the
Underwriters shall have the right to purchase from the Company, solely for the
purpose of covering over-allotments in connection with sales of the Firm Shares,
pursuant to an option (the "over-allotment option") which may be exercised at
any time and from time to time prior to 10:00 p.m., New York City time, on the
30th day after the date of the Prospectus (or, if such 30th day shall be a
Saturday or Sunday or a holiday, on the next business day thereafter when the
New York Stock Exchange is open for trading), up to an aggregate of [
] Additional Shares. Upon any exercise of the over-allotment option, each
Underwriter, severally and not jointly, agrees to purchase from the Company the
number of Additional Shares that bears the same proportion to the aggregate
number of Additional Shares to be purchased by the Underwriters as the number of
Firm Shares set forth opposite the name of such Underwriter on Schedule I hereto
bears to the aggregate number of Firm Shares.
3. Delivery and Payment. Delivery of and payment for the Firm Shares
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shall be made at 10:00 AM, New York City time, on [
], or such later date (not later than [ ]) as the
Underwriters shall designate, which date and time may be postponed by agreement
between the Underwriters and the Company or as provided in Section 8 hereof
(such date and time of delivery and payment for the Firm Shares being herein
called the "Closing Date"). Delivery of the Firm Shares shall be made to the
Underwriters for the respective accounts of the Underwriters against payment
thereby of the purchase price thereof to or upon the order of the Company by
wire transfer of immediately available funds or such other manner of payment as
may be agreed by the Company and the Underwriters. Delivery of the Firm Shares
shall be made at such location as the Underwriters shall reasonably designate at
least one business day in advance of the Closing Date and payment for the Firm
Shares shall be made at the office of Xxxxxx & Xxxxxxx ("Counsel for the
Underwriters"), 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx. Certificates for the Firm
Shares shall be registered in such names and in such denominations as the
Underwriters may request not less than three full business days in advance of
the Closing Date.
The Company agrees to have the Firm Shares available for inspection by
the Underwriters in New York, New York, not later than 1:00 PM, New York City
time, on the business day immediately prior to the Closing Date.
Delivery of, and payment of the purchase price for any Additional
Shares to be purchased by the Underwriters shall be made at the offices of
Xxxxxx & Xxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, or such other location
as may be mutually acceptable, at such time and on such date (the "Option
Closing Date"), which may be the same as the Closing Date but shall in no event
be earlier than the Closing Date nor later than ten business days after the
giving of the notice hereinafter referred to, as shall be specified in a written
notice from [ ], on behalf of the Underwriters to
purchase a number, specified in such notice, of Additional Shares.
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4. Agreements. (A) The Company hereby agrees with each Underwriter
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that:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or a post-effective amendment
thereto to be declared effective before the offering of the Securities may
commence, the Company will use its reasonable best efforts to cause the
Registration Statement or such post-effective amendment to become effective
as soon as possible and will advise you promptly and, if requested by you,
will confirm such advice in writing, when the Registration Statement or
such post-effective amendment has become effective.
(b) The Company will advise you promptly and, if requested by you,
will confirm such advice in writing: (i) of any request by the Commission
for amendment of or supplement to the Registration Statement, any
Prepricing Prospectuses or the Prospectuses or for additional information;
and (ii) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or of the suspension of
qualification of the Securities for offering or sale in any jurisdiction or
the initiation of any proceeding for such purpose. If at any time the
Commission shall issue any stop order suspending the effectiveness of the
Registration Statement, the Company will make every reasonable effort to
obtain the withdrawal of such order at the earliest possible time.
(c) The Company will furnish to you, without charge, one signed copy
of the Registration Statement as originally filed with the Commission and
of each amendment thereto, including financial statements and all exhibits
to the Registration Statement and will also furnish to you, without charge,
such number of conformed copies of the Registration Statement as originally
filed and of each amendment thereto, but without exhibits, as you may
reasonably request.
(d) The Company will not file any amendment to the Registration
Statement (other than any Exchange Act Documents incorporated therein) or
make any amendment or supplement to the Prospectuses (other than any
Exchange Act Documents incorporated therein) of which you shall not
previously have been advised or to which you shall reasonably object in
writing after being so advised. "Exchange Act Documents" means any
documents filed by the Company or any Subsidiary thereof with the
Commission under the Exchange Act and any rules and regulations promulgated
thereunder, and any amendment or supplement thereto.
(e) Prior to the execution and delivery of this Agreement, the Company
has delivered or will deliver to you, without charge, in such quantities as
you have reasonably requested or may hereafter reasonably request, copies
of each form of the Prepricing Prospectus. The Company consents to the
use, in accordance with the provisions of the Act and with the securities
or Blue Sky laws of the jurisdictions in which the Securities are offered
by the Underwriters and by dealers, prior to the date of the Prospectus, of
each Prepricing Prospectus so furnished by the Company.
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(f) As soon as practicable after the execution and delivery of this
Agreement and thereafter from time to time for such period as in the
written opinion of counsel for the Underwriters a Prospectus is required by
the Act to be delivered in connection with sales by any Underwriter or
dealer, the Company will expeditiously deliver to each Underwriter and each
dealer, without charge, as many copies of the Prospectus (and any amendment
or supplement thereto) as you may reasonably request. The Company consents
to the use of the Prospectus (and any amendment or supplement thereto) in
accordance with the provisions of the Act and with the securities or Blue
Sky laws of the jurisdiction in which the Securities are offered by the
Underwriters and by all dealers to whom Securities may be sold, both in
connection with the offering and sale of the Securities and for such period
of time thereafter as the Prospectus is required by the Act to be delivered
in connection with sales by any Underwriter or dealer. If during such
period of time any event shall occur that in the judgment of the Company or
in the written opinion of counsel for the Underwriters is required to be
set forth in the Prospectus (as then amended or supplemented) or should be
set forth therein in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, or it is
necessary to supplement or amend the Prospectus to comply with the Act of
any other law, the Company will forthwith prepare and, subject to the
provisions of paragraph (d) above, file with the Commission an appropriate
supplement or amendment thereto and will expeditiously furnish to the
Underwriters and dealers a reasonable number of copies thereof.
(g) The Company will cooperate with you and with counsel for the
Underwriters in connection with the registration or qualification of the
Securities for offering and sale by the Underwriters in connection with the
registration or qualification of the Securities for offering and sale by
the Underwriters and by dealers under the securities or Blue Sky laws of
such jurisdictions as you may reasonably designate and will file such
consents to service of process or other documents necessary or appropriate
in order to effect such registration or qualification; provided that in no
event shall the Company be obligated to qualify to do business in any
jurisdiction where it is now so qualified or to take any action that would
subject it to service of process in suits, other than those arising out of
the offering or sale of the Securities, in any jurisdiction where it is not
now so subject.
(h) The Company will make generally available to its security holders
a consolidated earnings statement, which need not be audited, covering a
twelve-month period commencing after the effective date of the Registration
Statement and ending not later than 15 months thereafter, as soon as
reasonably practicable after the end of such period, which consolidated
earnings statement shall satisfy the provisions of Section 11(a) of the
Act; provided that such requirement shall be deemed satisfied if the
Company complies with the provisions of Rule 158 of the Act.
(i) The Company will apply the net proceeds from the sale of the
Securities to be sold by it hereunder in the manner set forth in the
Prospectuses under the caption "Use of Proceeds."
12
(j) If Rule 430(a) of the Act is employed, the Company will timely
file the Prospectuses pursuant to Rule 424(b) under the Act and will advise
you of the time and manner of such filing.
(k) Except as stated in this Agreement and in the Prepricing
Prospectuses and Prospectuses, the Company has not taken, nor will it take,
directly or indirectly, any action designed to or that might reasonable be
expected to cause or result in stabilization or manipulation of the price
of the Common Stock to facilitate the sale or resale of the Securities.
(l) The Company will use its reasonable best efforts to have the
[Common Stock] listed, subject to notice of issuance, on the Nasdaq
National Market concurrently with the effectiveness of the Registration
Statement.
(B) Each Selling Shareholder agrees with the Underwriters as follows:
(a) Such Selling Shareholder will cooperate to the extent necessary
to cause the Registration Statement or any post-effective amendment thereto
to become effective at the earliest possible time.
(b) Such Selling Shareholder will pay all Federal and other taxes, if
any on the transfer or sale of such Securities that are sold by such
Selling Shareholder to the Underwriters.
(c) Such Selling Shareholder will do or perform all things required to
be done or performed by such Selling Shareholder prior to the Closing Date
to satisfy all conditions precedent to the delivery of the Securities that
are sold by such Selling Shareholder pursuant to this Agreement.
(d) Except as stated in this Agreement and the Prepricing Prospectuses
and the Prospectuses, such Selling Shareholder has not taken, nor will it
take, directly or indirectly, any action designed to or that might
reasonably be expected to cause or result in stabilization or manipulation
of the price of the Common Stock to facilitate the sale or resale of the
Securities.
5. Conditions to the Obligations of the Underwriters. The several
-------------------------------------------------
obligations of the Underwriters to purchase the Firm Shares and the Additional
Shares, as provided herein, shall be subject to the accuracy of the
representations and warranties on the part of the Company and the Selling
Shareholders contained herein at the date and time that this Agreement is
executed and delivered by the parties hereto (the "Execution Time") and the
--------------
Closing Date, except that with respect to the Additional Shares, references to
the Closing Date shall mean the Option Closing Date, to the accuracy of the
statements of the Company made in any certificates pursuant to the provisions
13
hereof, to the performance by the Company of its obligations hereunder and to
the following additional conditions:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or a post-effective amendment
thereto to be declared effective before the offering of the Securities may
commence, the Registration Statement or such post-effective amendment shall
have become effective not later than 5:30 P.M. New York City time, on the
date hereof, or at such later date and time as shall be consented to in
writing by you, and all filings, if any, required by Rules 424 and 430A
under the Act shall have been timely made; no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceeding for that purpose shall have been instituted or, to the knowledge
of the Company or any Underwriter, threatened by the Commission, and any
request of the Commission for additional information (to be included in the
Registration Statement or the Prospectuses or otherwise) shall have been
complied with to your satisfaction.
(b) The Underwriters shall have received the opinion of Xxxxxxx
Xxxxxxx & Xxxxxxxx, counsel for the Company, dated the Closing Date, to the
effect that:
(i) The Registration Statement has become effective under the Act
and the Prospectuses were filed on the date specified in such opinion
pursuant to the subsection set forth in such opinion of Rule 424(b) of
the rules and regulations of the Commission under the Act and, to the
knowledge of such counsel, no stop order suspending the effectiveness
of the Registration Statement has been issued or proceeding for that
purpose has been instituted or threatened by the Commission.
(ii) Assuming that this Agreement has been duly authorized,
executed and delivered by each party hereto (other than the Company),
this Agreement constitutes a valid and legally binding obligation of
such party, enforceable against such party in accordance with its
terms;
(iii) The statements made in the Prospectuses under the captions
"Description of the [Common Stock][Preferred Stock]" and "Plan of
Distribution," insofar as they purport to constitute summaries of
certain terms of documents referred to therein, constitute accurate
summaries of the terms of such documents in all material respects;
(iv) The issue and sale of the Securities by the Company and the
compliance by the Company with all of the provisions of the Operative
Documents will not breach or result in a default under any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument identified on an annexed schedule furnished to such counsel
by the Company, nor will such action violate any Federal or New York
statute or any rule or
14
regulation that has been issued pursuant to any Federal or New York
statute or any order known to such counsel issued pursuant to any
Federal or New York statute by any court or governmental agency or
body or court having jurisdiction over the Company or any of its
respective properties;
(v) No consent, approval, authorization, order, registration or
qualification of or with any Federal or New York governmental agency
or body or, to our knowledge, any Federal or New York court is
required for the issue and sale of the Securities by the Company and
the compliance by the Company with all of the provisions of the
Operative Documents, except for such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by the Underwriters;
(vi) The statements made in the Prospectuses under the caption
"Certain Income Tax Consequences - Taxation of Holders of [Common
Stock][Preferred Stock]-United States Federal Income Tax
Considerations" insofar as they purport to constitute summaries of
matters of United States federal tax law and regulations or legal
conclusions with respect thereto, constitute accurate summaries of the
matters described therein in all material respects;
(vii) The Company is not an "investment company" within the
meaning of and subject to regulation under the Investment Company Act
of 1940, as amended;
(viii) Assuming that each of this Agreement and the Custody
Agreement has been duly authorized, executed and delivered by each
party hereto (other than such Selling Shareholder), each of this
Agreement and the Custody Agreement constitutes a valid and legally
binding obligation of each Selling Shareholder, enforceable against
such Shareholder in accordance with its terms;
(ix) The sale of the Securities by the Selling Shareholders and
the compliance by the Selling Shareholders with all of the provisions
of this Agreement and the Custody Agreement will not breach or result
in a default under any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument identified on an annexed
schedule furnished to such counsel by the Company, nor will such
action violate any Federal or New York statute or any rule or
regulation that has been issued pursuant to any Federal or New York
statute or any order known to such counsel issued pursuant to any
Federal or New York statute by any court or governmental agency or
body or court having jurisdiction over the Company or any of its
respective properties; and
15
(x) Assuming that each Selling Shareholder has full power, right
and authority to sell the Securities to be sold by such Selling
Shareholder, and upon payment for and delivery of the Securities in
accordance with this Agreement, the Underwriters will acquire a
security entitlement with respect to such Securities and no action
based on an adverse claim may be asserted against the Underwriters.
Such counsel shall state that the opinions set forth in paragraphs
(ii), (iv), (viii) and (ix) above are subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
Such counsel shall also state that such counsel has not independently
verified the accuracy, completeness or fairness of the statements made or
included in the Registration Statement or Prospectuses, and takes no
responsibility therefor, except as and to the extent set forth in paragraphs
(iii) and (vi) above. Such counsel shall state that in the course of the
preparation by the Company of the Registration Statement and the Prospectuses,
such counsel participated in conferences with certain officers and employees of
the Company, with representatives of [ ] and with counsel to the
Company. Such counsel shall state that based upon such counsel's examination of
the Registration Statement and the Prospectuses, such counsel's investigations
made in connection with the preparation of the Registration Statement and the
Prospectuses and such counsel's participation in the conferences referred to
above, such counsel has no reason to believe that the Registration Statement as
of its effective date and the Prospectuses as of their respective dates or the
Closing Date, contain any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, except
that in each case such counsel expresses no belief with respect to the financial
statements or other financial data contained or incorporated by reference in the
Registration Statement or any Prospectus.
Such counsel may also state that such counsel is a member of the Bar
of the State of New York and such counsel does not express any opinion therein
concerning any law other than the law of the State of New York, the Federal law
of the United States and the Delaware General Corporation Law. Such counsel may
also state that, in addition, such counsel does not express any opinion with
regard to any New York or Federal law regulating telecommunications activities
or any rules or regulations promulgated by any New York or Federal agency
(including, without limitation, the Federal Communications Commission)
thereunder.
In rendering such opinion, such counsel may rely as to matters of
fact, to the extent they deem proper, on certificates of responsible officers of
the Company and public officials. Such counsel may also make such assumptions
and qualifications as they deem proper.
16
(c) The Underwriters shall have received on the Closing Date an
opinion of Xxxxxxx, Xxxxxxxx & Xxxxx, Bermuda counsel to the Company, dated
the Closing Date and addressed to the Underwriters to the effect that:
(i) Each of the Company and each Subsidiary organized under the
laws of Bermuda as listed on a schedule to the opinion (each, a
"Bermuda Subsidiary" and together the "Bermuda Subsidiaries") is a
company duly organized, validly existing and in good standing under
the laws of Bermuda and has the requisite power to conduct its
business and authority to own its properties as described in the
Registration Statement or the Prospectuses and to enter into and
perform the respective terms and conditions of this Agreement and, in
the case of the Company, to constitute and issue the Securities;
(ii) Based solely on an Officer's Certificate of the Company,
each of the Company and each Bermuda Subsidiary is duly registered and
qualified to conduct its business and is in good standing in each
jurisdiction or place where the nature of its properties or the
conduct of its business requires such registration or qualification,
except where the failure so to register or qualify or to be in good
standing would not have a Material Adverse Effect;
(iii) The Company has taken all necessary action to authorize
the execution and delivery of the Operative Documents and the
performance by it of the transactions contemplated therein;
(iv) The Company has taken all necessary action to authorize the
issuance and delivery of the Securities and the performance by it of
the transactions contemplated therein;
(v) The issuance by the Company of the Securities and the
execution and delivery by the Company of, and the performance of its
obligations under and compliance with the provisions of, the Operative
Documents (including, without limitation, the amendment of the Bye-
Laws to incorporate the terms of the Preferred Stock and the filing of
the Certificate of Designations with the Bermuda Monetary Authority)
will not:
(a) violate any provision of any applicable law of Bermuda,
nor, as far as can be ascertained from public records, any
regulation of any governmental, judicial or public body or
authority of or in Bermuda;
(b) violate the Memorandum of Association or Bye-laws of the
Company; or
17
(c) result in the creation or imposition of any lien, charge
or encumbrance upon any property or assets of the Company or the
Bermuda Subsidiaries;
(vi) The Operative Documents constitute legal, valid and binding
obligations of the Company, enforceable against the Company in
accordance with its terms;
(vii) All the outstanding shares of Common Stock of the Company
have been duly authorized and validly issued, are fully paid and
nonassessable and are free of any preemptive or similar rights; the
Common Stock to be converted from the Preferred Stock shall have been
duly authorized and, when issued and delivered to the holders of
Securities against payment therefor in accordance with the terms of
the Preferred Stock, will be validly issued, fully paid and
nonassessable and free of any preemptive or similar rights; and the
capital stock of the Company conforms to the description thereof in
the Prospectuses;
(viii) Other than as specified in such opinion, there is no
registration or filing with, or consent, license, approval,
declaration, permission, authorization, exemption or similar
instrument of, or the taking of any other action by, any person in
Bermuda which is required in connection with the issuance of the
Securities or the execution, delivery or performance of this
Agreement, or to ensure the legality, validity, enforceability or
admissibility in evidence of this Agreement in Bermuda;
(ix) Neither the Company nor any of its respective properties or
assets enjoys any rights of immunity from legal proceedings in
Bermuda, or from the execution of judgment upon or attachment of such
property or assets or otherwise;
(x) The choice of the laws of the State of New York to govern
this Agreement is a proper, valid and binding choice of law and will
be recognized and applied by the Courts of Bermuda, assuming that such
choice of law is a valid and binding choice of law under the laws of
the State of New York and provided that (i) the point is specifically
pleaded; and (ii) recognition would not be contrary to public policy
as that term is understood under Bermuda law;
(xi) The irrevocable submission by the Company to the
jurisdiction of the New York State and Federal courts sitting in New
York for the purposes of all legal actions and proceedings instituted
in connection with
18
the Securities and as provided for in this Agreement and the
appointment of the Process Agent contained in this Agreement
constitutes the legal, valid and binding obligation of the Company,
provided that such submission and appointment is accepted by such
courts and, with respect to the appointment of the Process Agent,
provided that no other procedural requirements are necessary in order
to validate such appointment;
(xii) A final and conclusive judgment of the United States
Federal or New York State courts under which a sum of money is payable
(not being a sum payable in respect of taxes or other charges of a
like nature in respect of a fine or other penalty, or in respect of
multiple damages as defined in the Protection of Trading Interests Act
1981), may be the subject of enforcement proceedings in the Supreme
Court of Bermuda without re-examination of the merits of the case
under the common law doctrine of obligation by action on the debt
evidenced by the foreign court's judgment. On general principles, we
would expect such proceedings to be successful provided that the court
which gave the judgment was competent to hear the action in accordance
with private international law principles as applied in Bermuda and
the judgment is not contrary to public policy in Bermuda, has not been
obtained by fraud or in proceedings contrary to natural justice and is
not based on an error in Bermuda law. Enforcement of such a judgment
against assets in Bermuda may involve the conversion of the judgment
debt into Bermuda dollars but the Bermuda Monetary Authority has
indicated that its present policy is to give the consents necessary to
enable recovery in the currency of the obligation;
(xiii) The statements in the Prospectuses under the captions
"Service of Process and Enforcement of Liabilities," "Certain Income
Tax Consequences-Bermuda Tax Considerations," and "-Taxation of
Holders of [Common Stock][Preferred Stock]-Bermuda Tax Considerations"
insofar as they purport to describe the provisions of the laws of
Bermuda referred to therein, are accurate and correct in all material
respects; and
(xiv) No stamp or other issuance or transfer taxes or duties and
no capital gains, income, withholding or other taxes are payable by or
on behalf of the Underwriters to the Bermuda Government or to any
political subdivision or taxing authority thereof or therein in
connection with the execution of this Agreement or the issuance of the
Securities.
In rendering such opinion, such counsel may rely as to matters of
fact, to the extent they deem proper, on certificates of responsible officers of
the Company and public officials. Such counsel may also make such assumptions
and qualifications as they deem proper. Such opinion shall
19
also state that it may be relied upon by Xxxxxx & Xxxxxxx, as if it were
addressed to them, for the purposes of any legal opinion that such firm may be
asked to deliver pursuant to this Agreement.
(d) The Underwriters shall have received on the Closing Date an
opinion of [ ], special U.S. regulatory counsel to the
Company, dated the Closing Date and addressed to the Underwriters to the
effect that:
(i) Except for such FCC consents, approvals, authorizations, or
orders that have already been obtained, no material consent, approval,
authorization, or order of the FCC is required to be obtained by the
Company under the Communications Laws for the consummation of the
transactions contemplated under this Agreement, except that, from time
to time, the Company, may be required to obtain certain FCC
authorizations that would be required in the ordinary course of
business.
(ii) The execution and delivery of, and the consummation of the
transactions contemplated under, this Agreement by the Company do not
and will not materially violate any provision of the Communications
Laws.
(iii) The statements made under the captions "Business--
Regulation" and "Risk Factors and Forward-Looking Statements--Our
operations are subject to regulation int he United States and abroad
and require us to obtain and maintain a number of governmental
licenses and permits. If we fail to comply with those regulatory
requirements or obtain and maintain those licenses and permits, we may
not be able to conduct our business" in the Company's annual report on
Form 10-K for the year ended December 31, 1999, incorporated by
reference in the Registration Statement, insofar as such statements
purport to constitute a summary of the material regulatory matters
covered therein under the Communications Laws, fairly present the
information contained therein in light of the subject matter of such
Statements and the circumstances in which such Statements were made.
In rendering such opinion, such counsel may rely as to matters of
fact, to the extent they deem proper, on certificates of responsible officers of
the Company, other Subsidiaries and public officials. Such counsel may also
make such assumptions and qualifications as they deem proper.
All references in these Sections 5(b), (c) and (d) to the Prospectuses
shall be deemed to include any amendment or supplement thereto at the
Closing Date.
(e) The Underwriters shall have received from Xxxxxx & Xxxxxxx,
Counsel for the Underwriters an opinion, dated the Closing Date, with
respect to the issuance and sale of the Securities, the Registration
Statement and the Prospectuses (as amended or supplemented at the Closing
Date) and other related matters as the Underwriters may
20
reasonably require, and the Company shall have furnished to such counsel
such documents as they request for the purpose of enabling them to pass
upon such matters.
(f) The Company shall have furnished to the Underwriters a
certificate of the Company, signed by either the Co-Chairman of the
Board or the Chief Executive Officer and the principal acting
financial or accounting officer of such entity, dated the Closing
Date, to the effect that the signers of such certificate have
carefully examined the Registration Statement, the Prospectuses, any
amendment or supplement thereto and this Agreement and that:
(i) the representations and warranties of the Company set forth
in this Agreement are true and correct on and as of the Closing Date
with the same effect as if made on the Closing Date, and the Company
have complied with all the agreements and satisfied all the conditions
on its part to be performed or satisfied hereunder at or prior to the
Closing Date; and since the date of the most recent financial
statements included in the Registration Statement and the
Prospectuses, there has been no material adverse change in the
business, assets, condition (financial or otherwise) or results of
operations of the Company or the Subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated by the Registration
Statement or the Prospectuses (exclusive of any amendment or
supplement thereto).
(g) On the Pricing Date, [ ] shall have furnished
to the Underwriters a "comfort" letter, dated as of the Pricing Date, in
form and substance satisfactory to the Underwriters, and on the Closing
Date [ ] shall have furnished to the Underwriters a "bring-
down comfort" letter, dated the Closing Date, in form and substance
satisfactory to the Underwriters.
(h) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Prospectuses, there shall not have been
any change, or any development involving a prospective change, in or
affecting the business or properties of the Company or the Subsidiaries,
taken as a whole, the effect of which is, in the reasonable judgment of the
Underwriters, so material and adverse as to make it impractical or
inadvisable to market the Securities as contemplated by the Prospectuses.
(i) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall
have been taken or, to the knowledge of the Company, shall have been
contemplated by the Commission at or prior to the Closing Date;
(j) Prior to the Closing Date, the Company shall have furnished to the
Underwriters such further information, certificates and documents as the
Underwriters may reasonably request.
21
(k) The Securities shall have been approved for listing, subject to
notice of issuance, on the [ ].
(l) The Company shall have (i) authorized and executed the Certificate
of Designations in form and substance reasonably satisfactory to the
Underwriters and (ii) authorized the amendment of, and amended, the Bye-
laws to incorporate the terms of the Preferred Stock, in each case in
accordance with Bermuda law, and the Underwriters shall have received
original copies thereof, duly executed by the Company.
If any of the conditions specified in this Section 5 shall not have
been fulfilled when and as provided in this Agreement, or if any of the opinions
and certificates mentioned above or elsewhere in this Agreement shall not be
reasonably satisfactory in form and substance to the Underwriters and Counsel
for the Underwriters, this Agreement and all obligations of the Underwriters
hereunder may be canceled at, or at any time prior to, the Closing Date by the
Underwriters. Notice of such cancellation shall be given to the Company in
writing or by telephone or telegraph confirmed in writing.
The documents required to be delivered by this Section 5 will be
delivered at the office of Counsel for the Underwriters at 000 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx, xx the Closing Date.
6. Reimbursement of Expenses. If the sale of the Securities provided
-------------------------
for herein is not consummated because any condition to the obligations of the
Underwriters set forth in Section 6 hereof is not satisfied or because of any
refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters in payment for the Securities on the Closing
Date, the Company agrees to reimburse the Underwriters severally upon demand for
all out-of-pocket expenses (including reasonable fees and disbursements of
counsel) that shall have been incurred by them in connection with the proposed
purchase and sale of the Securities.
7. Indemnification and Contribution.
--------------------------------
(a) The Company hereby agrees to indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of each
Underwriter and each person who controls any Underwriter within the meaning
of either the Securities Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or
any of them may become subject under the Securities Act, the Exchange Act
or other Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or any Prospectus or Prepricing Prospectus or in any
amendment thereof or supplement thereto, or arise out of or are based upon
the omission or alleged
22
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, and agree to reimburse each
such indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or defending
any such loss, claim, damage, liability or action; provided, however, that
-------- -------
the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged
omission (i) made in the Registration Statement or any Prospectus or
Prepricing Prospectus, or in any amendment or supplement thereto, in
reliance upon and in conformity with written information furnished to the
Company by the Underwriters or any Selling Shareholder specifically for
inclusion therein or (ii) made in the Prepricing Prospectus if such untrue
statement or alleged untrue statement or omission or alleged omission made
in the Prepricing Prospectus is eliminated or remedied in the Prospectus
(as amended or supplemented, if applicable) and a copy of the Prospectus
shall not have been furnished to the person asserting such loss, claim,
damage or liability at or prior to the written confirmation of the sale of
Securities to such person. This indemnity agreement will be in addition to
any liability which the Company may otherwise have.
(b) Each Selling Shareholder severally agrees to indemnify and hold
harmless each Underwriter, the directors, officers, employees and agents of
each Underwriter and each person who controls any Underwriter within the
meaning of either the Securities Act or the Exchange Act to the same extent
as the foregoing indemnity from the Company to each Underwriter, but only
with reference to written information relating to such Selling Shareholder
furnished to the Company by or on behalf of such Selling Shareholder
specifically for inclusion in the Registration Statement, Prospectus or
Prepricing Prospectus (or in any amendment or supplement thereto).
Notwithstanding the foregoing, the aggregate liability of any Selling
Shareholder pursuant to the provisions of this paragraph shall be limited
to an amount equal to the sum of the products, with respect to each type of
Security sold by such Selling Shareholder, of the initial public offering
price of such Security and the number of such Securities sold by such
Selling Shareholder. This indemnity agreement will be in addition to any
liability which any Selling Shareholder may otherwise have, including as a
controlling stockholder of the Company.
(c) Each Underwriter severally agrees to indemnify and hold harmless
the Company, its directors, officers, employees and agents, each person who
controls the Company within the meaning of either the Securities Act or the
Exchange Act, the Selling Shareholders and each person, if any, who
controls any of the Selling Shareholders within the meaning of Section 15
of the Securities Act or Section 20(a) of the Exchange Act, to the same
extent as the foregoing indemnity from the Company and the Selling
Shareholders to each Underwriter, but only with reference to written
information relating to such Underwriter furnished to the Company by or on
behalf of such Underwriter specifically for inclusion in the Prepricing
Prospectus, the Prospectus or the Registration Statement (or in any
amendment or supplement thereto). This indemnity agreement will be in
addition to any
23
liability which any Underwriter may otherwise have. The Company and the
Selling Shareholders acknowledge for all purposes under this Section 7
(including Section 7(a) and (b) above) that the statements set forth in [ ]
in the Prospectus, constitute the only information furnished in writing by
the Underwriters for inclusion in the Preliminary Prospectus or the
Prospectus (or in any amendment or supplement thereto).
(d) Promptly after receipt by an indemnified party under this Section
7 of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party
under this Section 7, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party
(i) will not relieve it from liability under paragraph (a), (b) or (c)
above unless and to the extent it did not otherwise learn of such action
and such failure results in the forfeiture by the indemnifying party of
substantial rights and defenses and (ii) will not, in any event, relieve
the indemnifying party from any obligations to any indemnified party other
than the indemnification obligation provided in paragraph (a), (b) or (c)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to
represent the indemnified party in any action for which indemnification is
sought (in which case the indemnifying party shall not thereafter be
responsible for the fees and expenses of any separate counsel retained by
the indemnified party or parties except as set forth below); provided,
however, that such counsel shall be satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall
have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses
of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such
counsel with a conflict of interest, (ii) the actual or potential
defendants in, or targets of, any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have
reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to
those available to the indemnifying party, (iii) the indemnifying party
shall not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
the institution of such action or (iv) the indemnifying party shall
authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. It is understood that the indemnifying party
shall not, in connection with any proceeding or related proceeding in the
same jurisdiction, be liable for the fees and expenses of more than one
separate firm (in addition to any local counsel) for all indemnified
parties, and that all such fees and expenses shall be reimbursed as they
are incurred. Any such separate firm for the Underwriters and such control
persons shall be designated in writing by the first of the named
Underwriters on Schedule II hereto and any such separate firm of the
-----------
Company, its directors, its officers, any such control persons of the
Company and the Selling Shareholders shall be designated in writing by the
Company and the Selling Shareholders. An indemnifying party will not,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with
24
respect to any pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified parties are actual or potential parties to
such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding.
(e) In the event that the indemnity provided in paragraph (a), (b) or
(c) of this Section 7 is unavailable to hold harmless an indemnified party
for any reason, the Company, the Selling Shareholders and the Underwriters
agree to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending same) (collectively, "Losses")
------
to which the Company, the Selling Shareholders and one or more of the
Underwriters may be subject in such proportion as is appropriate to reflect
the relative benefits received by the Company and the Selling Shareholders,
on the one hand, and by the Underwriters, on the other hand, from the
offering of the Securities; provided, however, that in no case shall any
Underwriter (except as may be provided in any agreement among the
Underwriters relating to the offering of the Securities) be responsible for
any amount in excess of the purchase discount or commission applicable to
the Securities purchased by such Underwriter hereunder. If the allocation
provided by the immediately preceding sentence is unavailable for any
reason, the Company, the Selling Shareholders and the Underwriters shall
contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company and the
Selling Shareholders, on the one hand, and of the Underwriters, on the
other hand, in connection with the statements or omissions which resulted
in such Losses as well as any other relevant equitable considerations.
Benefits received by the Company and the Selling Shareholders shall be
deemed to be equal to the total net proceeds from the offering (before
deducting expenses), and benefits received by the Underwriters shall be
deemed to be equal to the total purchase discounts and commissions received
by the Underwriters from the Company in connection with the purchase of the
Securities hereunder. Relative fault shall be determined by reference to
whether any alleged untrue statement or omission relates to information
provided by the Company or the Selling Shareholders, on the one hand, or by
the Underwriters, on the other hand, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Underwriters agree that it
would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take account of
the equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. For purposes of this Section 7, (i)
each person who controls an Underwriter within the meaning of either the
Securities Act or the Exchange Act and each director, officer, employee and
agent of an Underwriter shall have the same rights to contribution as such
Underwriter, (ii) each person who controls the Company within the meaning
of either the Securities Act or the Exchange Act and each officer and
director of the Company shall have
25
the same rights to contribution as the Company and (iii) each person, if
any, who controls any of the Selling Shareholders within the meaning of
either the Securities Act or the Exchange Act shall have the same rights to
contribution as such Selling Shareholder, subject in each case to the
applicable terms and conditions of this paragraph (e). The remedies
provided in this Section 7 are not exclusive and shall not limit any rights
or remedies which may otherwise be available to any indemnified party at
law or in equity.
8. Default by an Underwriter. If any one or more Underwriters shall
-------------------------
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter hereunder, the remaining Underwriters shall be obligated
severally to take up and pay for (in the respective proportions which the
aggregate principal amount of Firm Shares to be purchased set forth opposite
their names on Schedule II hereto bears to the number of Firm Shares set forth
-----------
opposite the names of the remaining Underwriters) the Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase; provided,
however, that in the event that the aggregate principal amount of the Firm
Shares which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate principal amount of the Firm Shares
set forth on Schedule I hereto, the remaining Underwriters shall have the right
to purchase all, but shall not be under any obligation to purchase any, of the
Securities, and if such non-defaulting Underwriters do not purchase all the
Securities, this Agreement will terminate without liability to any non-
defaulting Underwriter or the Company. In the event of a default by an
Underwriter as set forth in this Section 8, the Closing Date shall be postponed
for such period, not exceeding seven days, as the Underwriters shall determine
in order that the required changes in the Registration Statement, Prospectuses
or in any other documents or arrangements may be effected. Nothing contained in
this Agreement shall relieve any defaulting Underwriter of any liability it may
have to the Issuers or the non-defaulting Underwriter for damages occasioned by
its default hereunder.
9. Termination. This Agreement shall be subject to termination in
-----------
the absolute discretion of the Underwriters, by notice given to the Company
prior to delivery of and payment for the Securities, if prior to such time (i)
trading in securities generally on the New York Stock Exchange shall have been
suspended or limited or minimum prices shall have been established on such
exchange, (ii) a banking moratorium shall have been declared either by Federal
or New York State authorities or (iii) there shall have occurred any outbreak or
escalation of hostilities, declaration by the United States or Bermuda of a
national emergency or war or other calamity or crisis the effect of which on
financial markets is such as to make it, in the judgment of the Underwriters,
impracticable or inadvisable to proceed with the offering or delivery of the
Securities as contemplated by the Registration Statement or any Prospectus.
10. Representations and Indemnities to Survive. The respective
------------------------------------------
agreements, representations, warranties and indemnities of the Company and its
officers and of the Underwriters set forth in or made pursuant to this Agreement
will remain in full force and effect, regardless of any investigation made by or
on behalf of the Underwriters or the Company or any of its officers, directors
or controlling persons referred to in Section 7 hereof, and will survive
delivery of and
26
payment for the Securities. The provisions of Sections 6 and 7 hereof shall
survive the termination or cancellation of this Agreement.
11 Notices. All communications hereunder will be in writing and
-------
effective only on receipt, and, if sent to the Underwriters, will be mailed,
delivered or sent via facsimile and confirmed to them, care of [
]; if sent to the Selling Shareholders, to their respective addresses set forth
opposite their respective signatures in this Agreement; or, if sent to the
Company, will be mailed, delivered or sent via facsimile and confirmed to it at
Wessex House, 00 Xxxx Xxxxxx, Xxxxxxxx XX 12 Bermuda, attention: Secretary of
the Company.
12 Successors. This Agreement will inure to the benefit of and be
----------
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7 hereof, and no
other person will have any right or obligation hereunder.
13 Applicable Law. This Agreement will be governed by and construed
--------------
in accordance with the laws of the State of New York.
14 Business Day. For purposes of this Agreement, "business day"
------------
means each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on
which banking institutions in The City of New York, New York are authorized or
obligated by law, executive order or regulation to close.
15 Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which will be deemed to be an original, but all such
counterparts will together constitute one and the same instrument.
16 Submission to Jurisdiction; Appointment of Agents for Service;
--------------------------------------------------------------
Currency Indemnity.
------------------
(a) To the fullest extent permitted by applicable law, the Company and
each Selling Shareholder irrevocably submits to the jurisdiction of any
Federal or State court located in the Borough of Manhattan in The City of
New York, New York in any suit, action or proceeding based on or arising
out of or relating to this Agreement, the Securities and irrevocably agrees
that all claims in respect of such suit or proceeding may be determined in
any such court. The Company and each Selling Shareholder irrevocably
waives, to the fullest extent permitted by law, any objection which it may
have to the laying of the venue of any such suit, action or proceeding
brought in such a court and any claim that any suit, action or proceeding
brought in such a court has been brought in an inconvenient forum. The
Company and each Selling Shareholder agrees that final judgment in any such
suit, action or proceeding brought in such a court shall be conclusive and
binding upon the Company and such Selling Shareholder and may be enforced
in the courts of Bermuda (or any other courts to the jurisdiction of which
the Company is subject) by a suit upon such judgment, provided that service
--------
of process is effected upon the Company and such Selling Shareholder in the
27
manner specified herein or as otherwise permitted by law. The Company and
each Selling Shareholder hereby irrevocably designates and appoints CT
Corporation System, 0000 Xxxxxxxx - 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx (the
"Process Agent") as the authorized agent of the Company and such Selling
--------------
Shareholder upon whom process may be served in any such suit or proceeding,
it being understood that the designation and appointment of the Process
Agent as such authorized agent shall become effective immediately without
any further action on the part of the Company and such Selling Shareholder.
The Company and each Selling Shareholder represents to the Underwriters
that they have notified the Process Agent of such designation and
appointment and that the Process Agent has accepted the same in writing.
The Company and each Selling Shareholder irrevocably authorizes and directs
the Process Agent to accept such service. The Company and each Selling
Shareholder further agrees that service of process upon the Process Agent
and written notice of said service to the Company and such Selling
Shareholder mailed by prepaid registered first class mail or delivered to
the Process Agent at its principal office shall be deemed in every respect
effective service of process upon the Company and such Selling Shareholder
in any such suit or proceeding. Nothing herein shall affect the right of
the Underwriters or any person controlling the Underwriters to serve
process in any other matter permitted by law. The Company and each Selling
Shareholder further agrees to take any and all action, including the
execution and filing of any and all such documents and instruments as may
be necessary to continue such designation and appointment of the Process
Agent in full force and effect so long as the Company and such Selling
Shareholder has any outstanding obligations under this Agreement and the
Securities. To the extent that the Company and any Selling Shareholder has
or hereafter may acquire any immunity from jurisdiction of any court or
from any legal process (whether through service of note, attachment prior
to judgment, attachment in aid of execution, executor or otherwise) with
respect to itself or its property, the Company and such Selling Shareholder
hereby irrevocably waives such immunity in respect of its obligations under
this Agreement, to the extent permitted by law.
(b) The obligation of the parties to make payments hereunder for the
Securities in U.S. dollars (the "Obligation Currency") and such obligation
-------------------
shall not be discharged or satisfied by any tender or recovery pursuant to
any judgment expressed in or converted into any currency other than the
Obligation Currency or any other realization in such other currency,
whether as proceeds of set-off, security, guarantee, distributions, or
otherwise, except to the extent such tender, recovery or realization shall
result in the effective receipt by the party which is to receive such
payment (as an additional, separate and independent obligation) for the
amount (if any) by which such effective receipt is less that the full
amount of the Obligation Currency payable hereunder and such obligation to
indemnify shall not be affected by judgment being obtained for any other
sums due under this Agreement.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this Agreement and your acceptance shall represent a binding agreement between
the Company, the Selling Shareholders and the Underwriters.
28
[Underwriting Agreement Signature Pages Follow]
29
Very truly yours,
Global Crossing Ltd.
By___________________________
Name:
Title:
Each of the Selling Shareholders
named in Scheduled I hereto
By___________________________
Attorney-in-fact
By___________________________
Attorney-in-fact
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
[ ]
By: [ ]
By:____________________________
Name:
Title:
By: [ ]
By:____________________________
Name:
Title:
For themselves and the other Underwriters
30
SCHEDULE I
31
SCHEDULE II
Underwriters Number of Firm
------------ Shares to be Purchased
----------------------
