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EXHIBIT 10.18
VOTING AGREEMENT (this "AGREEMENT"), dated as of __________ __, 2000,
between ASIA GLOBAL CROSSING LTD., a limited liability company established under
the laws of Bermuda (the "COMPANY"), and [ ], a company incorporated under the
laws of [ ] the "INVESTOR").
WHEREAS, the parties hereto have entered into a Strategic Investment
Agreement, dated as of _________, 2000 (the "STRATEGIC INVESTMENT AGREEMENT"),
pursuant to which the Investor is acquiring ________ shares of Class A Common
Stock, par value $0.01 per share, of the Company (such shares, as adjusted from
time to time as a result of any stock split, subdivision, combination,
capitalization, rights issue or other form of stock reorganization, shall be
referred to herein as the "SHARES");
WHEREAS, in connection with the purchase of the Shares by the Investor,
the parties have agreed to enter into this Agreement; and
WHEREAS, this Agreement is a condition to the consummation of the
purchase of the Shares by the Investors, as contemplated in the Strategic
Investment Agreement.
NOW, THEREFORE, in consideration of the mutual promises and agreements
set forth herein and in the Strategic Investment Agreement and for other
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Definitions. For purposes of this Agreement, the following
capitalized terms have the following meanings:
"AFFILIATE" means, with respect to any Person, any other Person that
directly or indirectly Controls, is under common Control with or is Controlled
by such first person.
"AGREEMENT" is defined in the preamble hereto.
"CLASS A COMMON STOCK" is defined in the preamble hereto.
"COMPANY" is defined in the preamble hereto.
"CONTROL" means, with respect to any Person, the ability, directly or
indirectly, to direct or cause the directions of the management and policies of
such Person, whether through the ownership of securities, by contract or
otherwise. The terms "CONTROLLED" and "CONTROLLING" shall have meanings
correlative to the foregoing.
"GOVERNMENTAL APPROVAL" means any consent, approval, order or
authorization of, or registration, declaration or filing with, any Bermuda,
United States federal, state or municipal, or any other foreign or other
governmental department, commission, board, bureau, agency or instrumentality
required to authorize or permit the execution or delivery by any Person of this
Agreement or the performance by such Person of any transaction contemplated
hereby or thereby.
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"INVESTOR" is defined in the preamble hereto.
"PERSON" means any individual, corporation, limited liability company,
general or limited partnership, joint venture, association, joint stock company,
trust or unincorporated business or organization.
"SHARES" is defined in the recitals hereto.
"STRATEGIC INVESTMENT AGREEMENT" is defined in the recitals hereto.
SECTION 2. Agreement to Vote. For so long as the Investor or any
Affiliate thereof owns beneficially or of record, directly or indirectly, any
Shares or has voting control over any Shares, the Investor hereby agrees, and
agrees to cause such Affiliate, to vote or act by written consent with respect
to (or cause to be voted or acted upon by written consent) (i) all Shares held
of record or owned beneficially, directly or indirectly, by such Investor or its
Affiliates at the time of such vote or action by written consent and (ii) all
Class A Common Stock as to which such Investor or its Affiliates has voting
control at the time of such vote or action by written consent, in each case:
(i)(A) in favor of the election to the Board of Directors of the Persons
whose nomination has been endorsed by the existing Board of Directors of the
Company and
(B) against the election of any other Person nominated to be a director
of the Company; and
(ii)(A) in favor of any other proposal to be voted on by the Company's
shareholders which has been endorsed by the Board of Directors of the Company
and
(B) against any other proposal to be voted on by the Company's
shareholders.
SECTION 3. Representations and Warranties. (a) Each of the Investor and
the Company represents and warrants that, as of the date hereof, such party is
duly organized and validly existing under the laws of the jurisdiction of its
organization and has all requisite power and authority to own, lease and operate
its properties, to carry out its business as it is now being conducted and to
perform its obligations hereunder, and under its constitutive documents, and to
consummate the transactions contemplated hereby and thereby.
(b) Each of the Investor and the Company hereby represents and warrants
that, as of the date hereof, such party has all the necessary corporate or
company, as applicable, power and all legal authority required to enter into,
execute and deliver this Agreement and to perform fully such party's obligations
hereunder. Each of the Investor and the Company hereby represents and warrants
that, as of the date hereof, the execution of this Agreement by such party and
the consummation of the transactions contemplated hereby have been duly
authorized by all requisite corporate or company, as the case may be, action on
the part of such party. Each of the Investor and the Company hereby represents
and warrants that, as of the date hereof, this Agreement has been duly executed
and delivered by such party and constitutes the valid and binding obligation of
such party enforceable against such party in accordance with its terms, subject
to applicable bankruptcy, insolvency, reorganization, fraudulent transfer,
moratorium and other similar laws relating to or affecting creditors' rights
generally from time to time in effect
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and to general principles of equity (including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing), regardless of whether
considered in a proceeding in equity or at law, and that, as of the date hereof,
no Governmental Approval and no approval or consent of any other Person is
required in connection with the execution and delivery by such party of this
Agreement and the consummation and performance by such party of the transactions
contemplated hereby, other than such approvals and consents which failure to
obtain would not have a material adverse effect upon such party acting as a
party hereunder or on any other transaction contemplated hereby. Each of the
Investor and the Company hereby represents and warrants that, as of the date
hereof, the execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby and the performance by such party of its
obligations under this Agreement in accordance with its terms and conditions
will not conflict with or result in a breach or violation of any of the terms or
conditions of, or constitute (or with notice or lapse of time or both would
constitute) a default (or give rise to any right of termination, cancellation or
acceleration) under, as applicable, (i) the Memorandum of Association, charter,
articles of association, Bye-Laws or other constitutive document of such party,
as applicable, (ii) any instrument, contract, bond, note, mortgage, indenture,
license or other agreement to which such party is a party or by or to which such
party or such party's assets or properties are bound or subject or (iii) any
statute or regulation of any applicable law or any order, judgment, injunction
or decree of any court other than, in the case of clauses (ii) and (iii),
conflicts, breaches, violations or defaults which would not in the aggregate
have a material adverse effect upon such party acting as a party hereunder or on
any other transactions contemplated hereby.
(c) Each of the Investor and the Company hereby represents and warrants
that, as of the date hereof, such party is in compliance with all applicable
requirements of law, other than where the failure to be in compliance would not
have a material adverse effect upon the ability of such party to perform its
obligations hereunder or any transaction contemplated hereby.
(d) Each of the Investor and the Company hereby represents and warrants
that, as of the date hereof, such party is not a party to or, to the knowledge
of such party, is not threatened with any litigation or judicial, administrative
or arbitration proceedings that in the aggregate are likely to have a material
adverse effect upon such party acting as a party hereunder or on any other
transaction contemplated hereby.
SECTION 4. Miscellaneous.
(a) Remedies. In the event of a breach by a party hereto of its
obligations under this Agreement, each other party hereto, in addition to being
entitled to exercise all rights granted by law, including recovery of damages,
will be entitled to specific performance of its rights under this Agreement.
Each party hereto agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of any provision
of this Agreement and hereby further agrees that, in the event of any action for
specific performance in respect of such breach, it will waive the defense that a
remedy at law would be adequate.
(b) Amendments and Waivers. This Agreement may be amended only by a
written instrument signed by each party hereto.
(c) Notices. All notices required or permitted hereunder shall be in
writing and shall be deemed effectively given: (i) upon personal delivery to the
party to be notified; (ii) when
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sent by confirmed telex or facsimile if sent during normal business hours of the
recipient, if not, then on the next business day; (iii) upon delivery if sent by
registered or certified mail, return receipt requested, postage prepaid; or (iv)
upon delivery if deposited with a nationally recognized overnight courier,
specifying next day delivery, with written verification of receipt. All
communications shall be sent to the parties at the following addresses (or at
such other address for a party as shall be specified by like notice):
If to the Company:
Asia Global Crossing Ltd.
Xxxxxx Xxxxx
00 Xxxx Xxxxxx
Xxxxxxxx XX00
Xxxxxxx
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
If to the Investor:
[ ]
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or to such other address or addresses as shall be designated in writing. All
notices shall be effective when received.
(d) Assignments. This Agreement may not be assigned by any party without
the prior written consent of the other party. Any purported assignment in
violation of this paragraph (d) shall be null and void.
(e) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
(f) Titles and Subtitles. The titles of the sections and subsections of
this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
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(g) Governing Law. This Agreement shall be governed by, and construed in
accordance with, the law of the State of New York.
(h) Separability. In case any provision of this Agreement shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
(i) Entire Agreement. This Agreement and the other documents delivered
pursuant hereto and the Strategic Investment Agreement constitute the full and
entire understanding and agreement between the parties with regard to the
subjects thereto and no party shall be liable or bound to any other in any
manner by any representations, warranties, covenants and agreements except as
specifically set forth herein and therein.
(j) Submission to Jurisdiction. Each party hereto irrevocably consents to
the exclusive jurisdiction and venue of the courts of the State of New York and
the courts of the United States for the Northern or Southern Districts of New
York, and in the courts hearing appeals therefrom, for the resolution of any
dispute, action, suit or proceeding arising out of or relating to this
Agreement. Each party hereby irrevocably waives, and agrees not to assert, by
way of motion, as a defense, counterclaim or otherwise, in any action or
proceeding with respect to this Agreement, the defense of sovereign immunity,
any claim that it is not personally subject to the jurisdiction of the
above-named courts for any reason other than the failure to serve process in
accordance with this Section 8, that it or its property is exempt or immune from
jurisdiction of any such court or from any legal process commenced in such
courts (whether through service of notice, attachment prior to judgment,
attachment in aid of execution of judgment, execution of judgment or otherwise),
and to the fullest extent permitted by applicable law, that the suit, action or
proceeding in any such court is brought in an inconvenient forum, that the venue
of such suit, action or proceeding is improper, or that this Agreement, or the
subject matter hereof or thereof, may not be enforced in or by such courts and
further irrevocably waives, to the fullest extent permitted by applicable law,
the benefit of any defense that would hinder, xxxxxx or delay the levy,
execution or collection of any amount to which the party is entitled pursuant to
the final judgment of any court having jurisdiction.
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
ASIA GLOBAL CROSSING LTD.
By:
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Name:
Title:
[ ]
By:
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Name:
Title:
