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ANNEX I
STRATEGIC INVESTMENT 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 Company proposes to offer and sell its Class A common
shares, par value $0.01 per share (the "SHARES"), in a public offering
registered with the U.S. Securities and Exchange Commission (the "OFFERING");
and
WHEREAS, the Company and the Investor wish to cooperate to promote their
mutual interests and build a lasting and mutually beneficial strategic
relationship and, consistent with this, the Investor is now willing to make an
equity investment in the Company on the basis and terms set out in this
Agreement.
NOW, THEREFORE, in consideration of the mutual promises and agreements
set forth herein and for other valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
SECTION 1. Investment. (a) The Investor agrees that, if the Offering of
the Shares occurs as contemplated, the Company will sell to the Investor, and
the Investor will purchase, in an offering (the "TRANSACTION") registered under
the U.S. Securities Act of 1933, as amended (the "SECURITIES ACT") the Investor
Shares (as defined below). All payments made by the Investor under this
Agreement shall be made without any deduction or withholding for or on account
of any Taxes (as defined below) imposed by any taxing or governmental authority.
If the Investor is or was required by law to make any deduction or withholding
from any payment due hereunder to the Company, then, notwithstanding anything to
the contrary contained in this Agreement, (i) the sum payable by such Investor
shall be increased as necessary so that after making all required deductions and
withholdings (including deductions and withholdings applicable to additional
sums payable under this Section 1) the Company receives an amount equal to the
sum it would have received had no such deductions or withholdings been made,
(ii) such Investor shall make such deductions or withholdings, (iii) such
Investor shall pay the full amount deducted or withheld to the relevant taxation
authority or other authority in accordance with applicable law and (iv) such
Investor shall promptly furnish to the Company the original or a certified copy
of a receipt evidencing payment thereof. "TAXES" means any tax (including,
without limitation, withholding tax), duty, levy, change or custom (including,
without limitation, any sales or use tax) imposed or collected by any taxing
authority or agency (domestic or foreign) and any penalty or interest with
respect thereto.
"INVESTOR SHARES" means the number of Shares that can be purchased for
US$50 million (the "PURCHASE PRICE") at the initial public offering price per
Share to be determined by the Company and the lead underwriters for the Offering
(the "UNDERWRITERS"), as adjusted from time to time as a result any stock split,
subdivision, combination, capitalization, rights issue or other form of stock
reorganization.
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(b) The Investor may elect to acquire the Investor Shares through an
Affiliate, in which case the agreements, acknowledgments and confirmations given
in this Agreement shall be deemed to be given by such Investor for itself and on
behalf of such Affiliate. An "AFFILIATE" for these purposes shall mean, with
respect to any individual, corporation, limited liability company, general or
limited partnership, joint venture, association, joint stock company, trust or
unincorporated business or organization (a "PERSON"), any other Person that
directly or indirectly Controls, is under common Control with or is Controlled
by such first person. "CONTROL" for these purposes 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.
(c) The closing of the Transaction (the "CLOSING") shall occur
simultaneously with or, at the Company's request, as soon as practicable after
the closing date of the Offering, but in no event later than 5 business days
after the closing date of the Offering , provided such closing takes place on or
prior to December 31, 2000, unless the parties hereto shall mutually agree
otherwise.
SECTION 2. Strategic Cooperation. The Investor and the Company agree to
cooperate to promote their mutual interests and build a lasting and mutually
beneficial strategic relationship.
SECTION 3. Closing. On the date of the Closing determined pursuant to
Section 1(c) herein (the "CLOSING DATE"), the Investor shall pay to the Company
the Purchase Price in immediately available funds to such bank account as
identified by the Company no later than 2 days prior to such date. The
Investor's ownership interest in the Investor Shares shall be recorded in
book-entry form and reflected in the Company's share registry in accordance with
the laws of Bermuda. Upon the request of the Investor and after the Closing, the
Company shall deliver certificates representing the Investor Shares to the
Investor as soon as practicable after the Company obtains permission from the
Bermuda Monetary Authority to issue such certificates.
SECTION 4. Restrictions on Disposals by the Investor. (a) The Investor
agrees that without the prior written consent of the Company, it will not, at
any time during the period of 12 months following the Closing Date (the "LOCK-UP
PERIOD"), Dispose (as defined below) of any of the Investor Shares.
(b) The provisions of this Section 4 shall not prevent (i) the Investor
from acquiring Investor Shares through any of their respective Affiliates or
(ii) the Investor (or any of its Affiliates) from transferring Investor Shares
to any of their respective Affiliates (or to the Investor) (collectively,
"PERMITTED ARRANGEMENTS"); provided that, in all cases (x) the Investor shall be
responsible for ensuring that any of its Affiliates which holds any Investor
Shares as a result of any Permitted Arrangements shall duly comply with Section
4 as if bound by such obligations itself and (y) if any of its Affiliates which
holds any Investor Shares as a result of any Permitted Arrangements is about to
or will cease to be an Affiliate of an Investor, such entity must (and the
Investor shall procure that such entity shall), before ceasing to be an
Affiliate of
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such Investor, ensure that its entire interest in any such Investor Shares shall
be fully and effectively transferred to such Investor or to an Affiliate of such
Investor.
(c) For the purpose of this Section 4, "DISPOSE" means (i) offering,
pledging, selling, contracting to sell, selling any option or contracting to
purchase any option, purchasing any option or contracting to sell any option,
granting any option, right or warrant to purchase, or otherwise transferring or
disposing of (including, without limitation, pursuant to the creation of a
derivative security such as a hedge), directly or indirectly, any Investor
Shares or (ii) entering into any swap or other arrangement that transfers all or
a portion of the economic consequences associated with the ownership of any
Investor Shares (regardless of whether any of the transactions described in
clause (i) or (ii) is to be settled by the delivery of Investor Shares or such
other securities, in cash or otherwise).
SECTION 5. Voting Agreement. On the Closing Date, each of the Company and
the Investor shall enter into the Voting Agreement set forth as Exhibit A
hereto.
SECTION 6. Acknowledgments, Representations, Warranties and Covenants.
(a) The Investor acknowledges and confirms that:
(i) it is not entitled to nominate or appoint any person to be a director
of the Company;
(ii) it has consulted its own independent advisors to the extent it has
considered necessary or appropriate;
(iii) in purchasing the Investor Shares as contemplated herein, it has not
relied upon any statement, representation or warranty made by any person,
except for the statements, representations and warranties contained in the
prospectus (filed with the Securities and Exchange Commission in an effective
registration statement on Form S-1 (File No. 333-37666)), as amended or
supplemented; and
(iv) at or around the time of entering into this Agreement, the Company
has entered into, or proposes to enter into, agreements with one or more
other strategic investors.
(b) The Company represents and warrants as of the date hereof and as of
the Closing Date that the Shares have been duly authorized and, when issued and
delivered to the Investors against payment therefor in accordance with the terms
hereof, will be validly issued, fully paid and nonassessable and free of any
preemptive or similar rights.
(c) Each of the Investor and the Company represents and warrants as of
the date hereof and as of the Closing Date that:
(i) it is a corporation duly organized and validly existing under the
laws of its jurisdiction of incorporation;
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(ii) the execution, delivery and performance of this Agreement by it has
been duly authorized by all necessary corporate action on its part;
(iii) the execution, delivery and performance of this Agreement by it,
the compliance by it with all the provisions hereof and the consummation of
the transactions contemplated hereby will not (i) require any consent,
approval, authorization or other order of, or qualification with, any court
or governmental body or agency (except such as have been obtained or made
and are in full force and effect), (ii) conflict with or constitute a breach
of any of the terms or provisions of, or a default under, its charter or
by-law documents or those of any of its subsidiaries or any indenture, loan
agreement, mortgage, lease or other agreement or instrument that is material
to it and its subsidiaries, taken as a whole, to which it or any of its
subsidiaries is a party or by which it or any of its subsidiaries or their
respective property is bound, or (iii) violate or conflict with any
applicable law or any rule, regulation, judgment, order or decree of any
court or any governmental body or agency having jurisdiction over it, any of
its subsidiaries or their respective property; and
(iv) this Agreement has been duly authorized, executed and delivered by
it and constitutes its legal, valid and binding obligations and that no
corporate, shareholder or other consents, approvals or authorizations are
required by such party for the performance of its obligations under this
Agreement.
SECTION 7. Legend. Each certificate evidencing outstanding Investor
Shares shall bear the following legend:
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO AND
TRANSFERABLE ONLY UPON COMPLIANCE WITH THE PROVISIONS OF AN AGREEMENT,
DATED AS OF ______________, 2000, BETWEEN ASIA GLOBAL CROSSING LTD AND
[ ] . A COPY OF SUCH AGREEMENT IS ON FILE AT THE REGISTERED OFFICE OF
ASIA GLOBAL CROSSING LTD."
SECTION 8. Conditions Precedent. The rights and obligations of each party
hereto shall be subject to the conditions precedent that:
(i) the Offering shall occur simultaneously with or prior to the
Transaction;
(ii) the representations of the Investor (with respect to the Company)
and of the Company (with respect to the Investor) set forth in Section 7
herein shall be true and correct as in all respects as of the dates
specified herein;
(iii) simultaneously with the Closing, the Investor (with respect to
the Company) and the Company (with respect to the Investor) shall have
entered into the Voting Agreement as provided in Section 6 herein; and
(iv) a registration statement relating to the Investor Shares shall
have been filed with and declared effective by the U.S. Securities and
Exchange Commission (the
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"SEC") and no stop order suspending the effectiveness of such registration
statement shall have been issued and no proceeding for that purpose shall
have been instituted or, to the knowledge of the Company, threatened by the
SEC.
SECTION 9. Public Statements. The parties hereto shall consult with each
other prior to issuing any public announcement or statement with respect to this
Agreement or the transaction contemplated hereby. Except (i) for any
announcement by the Investor which may be required in order to comply with the
rules of any government authority or agency or stock exchange applicable to such
Investor (but only after prior consultation with the Company with respect to the
form, timing and content of any such announcement) or (ii) as may be agreed by
the Company, the Investor will not make any announcement or other public
statement with respect to this Agreement or the arrangements contemplated by it.
In addition, the Investor acknowledges and agrees (i) that this Agreement and
the relationship and arrangements between the parties contemplated by this
Agreement may be required to be described in public offering documentation and
other marketing materials for the Offering and specifically, this Agreement may
be a material contract required to be filed with regulatory authorities and/or
made available for public inspection in connection with the Offering and (ii) to
permit the Company to identify such Investor as a purchaser of Shares in
offering documentation for the Offering and in any required subsequent filings
with the United States Securities and Exchange Commission.
SECTION 10. 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) No Assignment. This Agreement, or any party hereof, may not be
assigned by any party hereto without the prior written consent of the other
party hereto. Any purported assignment in violation of this paragraph (c) shall
be null and void.
(d) Notices. All notices required or permitted hereunder shall be in
writing and shall be deemed effectively given: (i) upon personal delivery to the
party to be notified; (ii) when sent by confirmed telex or facsimile if sent
during normal business hours of the recipient, if not, then on the next business
day; (iii) upon delivery if sent by registered or certified mail, return receipt
requested, postage prepaid; or (iv) upon delivery if deposited with a nationally
recognized overnight courier, specifying next day delivery, with written
verification of receipt. All communications shall be sent to the parties at the
following addresses (or at such other address for a party as shall be specified
by like notice):
If to the Company:
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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 [ ]:
[ ]
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or to such other address or addresses as shall be designated in writing. All
notices shall be effective when received.
(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.
(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 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
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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 paragraph (j), 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.
(k) Survival. Sections 4, 5, 7, 8, 10 and 11 shall survive any
termination or expiration of this Agreement except such as have been obtained or
made and are in full force and effect.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
[ ]
By:
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Name:
Title:
ASIA GLOBAL CROSSING LTD.
By:
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Name:
Title:
