Exhibit 4.11
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GLOBAL CROSSING LTD.
and
_______________________________
Stock Warrant Agent
STOCK WARRANT AGREEMENT*
Dated as of ______________, ____
FOR
UP TO ___ STOCK WARRANTS
EXPIRING ___________, _____
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* OPTIONS REPRESENTED BY BRACKETED OR BLANK SECTIONS HEREIN SHALL BE DETERMINED
IN CONFORMITY WITH THE APPLICABLE PROSPECTUS SUPPLEMENT OR SUPPLEMENTS.
TABLE OF CONTENTS
Page
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ARTICLE I..........................................
Section 1.01 Issuance of Stock Warrants................................... 1
Section 1.02 Form and Execution of Warrant Certificates................... 2
Section 1.03 Issuance and Delivery of Warrant Certificates................ 3
Section 1.04 Temporary Warrant Certificates............................... 3
Section 1.05 Payment of Certain Taxes..................................... 3
Section 1.06 "Holder"..................................................... 3
ARTICLE II.........................................
Section 2.01 Duration of Stock Warrants................................... 4
Section 2.02 Exercise of Stock Warrants................................... 4
Section 2.03 Stock Warrant Adjustments.................................... 5
ARTICLE III........................................
Section 3.01 No Rights as Holder of Underlying [Preferred/Common] Shares
Conferred by Stock Warrants or Warrant Certificates.......... 5
Section 3.02 Lost, Stolen, Destroyed or Mutilated Warrant Certificates.... 6
Section 3.03 Holders of Stock Warrants May Enforce Rights................. 6
Section 3.04 Merger, Consolidation, Sale, Transfer or Conveyance.......... 6
ARTICLE IV.......................................
Section 4.01 Stock Warrant Register; Exchange and Transfer of Stock
Warrants..................................................... 7
Section 4.02 Treatment of Holders of Warrant Certificates................. 8
Section 4.03 Cancellation of Warrant Certificates......................... 8
ARTICLE V........................................
Section 5.01. Warrant Agent................................................ 8
Section 5.02 Conditions of Warrant Agent's Obligations.................... 8
Section 5.03 Resignation and Removal; Appointment of Successor........... 10
Section 5.04 Compliance With Applicable Laws............................. 11
Section 5.05 Office...................................................... 12
ARTICLE VI........................................
Section 6.01 Supplements and Amendments.................................. 12
Section 6.02 Notices and Demands to the Company and Warrant Agent........ 12
Section 6.03 Addresses for Notices....................................... 12
Section 6.04 Governing Law............................................... 13
Section 6.05 Governmental Approvals...................................... 13
Section 6.06 Persons Having Rights Under Stock Warrant Agreement......... 13
Section 6.07 Delivery of Prospectus...................................... 13
Section 6.08 Headings.................................................... 13
Section 6.09 Counterparts................................................ 13
Section 6.10 Inspection of Agreement..................................... 13
Section 6.11 Consolidation, Merger or Amalgamation of the Company and
Conveyance or Transfer Permitted Subject to Certain
Conditions.................................................. 13
Section 6.12 Rights and Duties of Successor Corporation.................. 14
Section 6.13 Consent to Jurisdiction and Service......................... 15
This STOCK WARRANT AGREEMENT, dated as of __________________, between
Global Crossing Ltd., a Bermuda Corporation (the "Company"), and
_______________, a ________________ organized and existing under the laws of
________________ (the "Warrant Agent").
WHEREAS, the Company proposes to sell certificates evidencing one or more
warrants (the " Stock Warrants" or, individually, a " Stock Warrant")
representing the right to purchase [common stock, par value $0.01 per share, of
the Company (the "Common Shares")] [shares of a series of preferred stock, par
value $0.01 per share, of the Company (the "Preferred Shares")], such warrant
certificates and other warrant certificates issued pursuant to this Agreement
being herein called the "Warrant Certificates";
WHEREAS, the Company has duly authorized the execution and delivery of
this Stock Warrant Agreement to provide for the issuance of Stock Warrants to be
exercisable at such times and for such prices, and to have such other
provisions, as shall be fixed as hereinafter provided; and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing so to act in connection with the
issuance of the Warrant Certificates and other matters as provided herein.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
ISSUANCE OF STOCK WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES
Section I.1 Issuance of Stock Warrants. Stock Warrants may be issued
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from time to time. Prior to the issuance of any Stock Warrants, there shall be
established by or pursuant to a resolution or resolutions duly adopted by the
Company's Board of Directors or by any committee thereof duly authorized to act
with respect thereto (a "Board Resolution"):
(a) the title and aggregate number of such Stock Warrants;
(b) the offering price of such Stock Warrants, if any;
[(c) the designation, number and terms (including any subordination and
conversion provisions) of any Preferred Shares that are purchasable upon
exercise of such Stock Warrants;]
(d) the time or times at which, or period or periods during which, such
Stock Warrants may be exercised and the final date on which such Stock
Warrants may be exercised (the "Expiration Date");
(e) the number of [Preferred/Common] Shares that may be purchased upon
exercise of such Stock Warrants; the price, or the manner of determining the
price (the "Warrant Price"), at which such [Preferred/Common] Shares may be
purchased upon exercise of the Stock Warrants; and any minimum or maximum
number of such Stock Warrants that are exercisable at any one time;
(f) if applicable, any anti-dilution provisions of such Stock Warrants;
(g) the terms of any right to redeem or call such Stock Warrants;
(h) the terms of any right of the Company to accelerate the Expiration
Date of the Stock Warrants upon the occurrence of certain events; and
(i) any other terms of such Stock Warrants not inconsistent with the
provisions of this Agreement.
Section I.2 Form and Execution of Warrant Certificates.
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(a) The Stock Warrants shall be evidenced by the Warrant Certificates,
which shall be in registered form and substantially in such form or forms as
shall be established by or pursuant to a Board Resolution. Each Warrant
Certificate, whenever issued, shall be dated the date it is countersigned by the
Warrant Agent and may have such letters, numbers or other marks of
identification and such legends or endorsements printed, lithographed or
engraved thereon as are not inconsistent with the provisions of this Agreement,
or as may be required to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any securities exchange on
which the Stock Warrants may be listed, or to conform to usage, as the officer
of the Company executing the same may approve (such officer's execution thereof
to be conclusive evidence of such approval). Each Warrant Certificate shall
evidence one or more Stock Warrants.
(b) The Warrant Certificates shall be signed in the name and on behalf of
the Company by its Chairman of the Board of Directors, its President, an
Executive Vice President, any Vice President, the Treasurer or any Assistant
Treasurer and by its Secretary or any Assistant Secretary. Such signatures may
be manual or facsimile signatures of the present or any future holder of any
such office and may be imprinted or otherwise reproduced on the Warrant
Certificates, subject to the Company's Bye-Laws as in effect from time to time.
The seal of the Company may be in the form of a facsimile thereof and may be
impressed, affixed, imprinted or otherwise reproduced on the Warrant
Certificates.
(c) No Warrant Certificate shall be valid for any purpose, and no Stock
Warrant evidenced thereby shall be deemed issued or exercisable, until such
Warrant Certificate has been countersigned by the manual or facsimile signature
of the Warrant Agent. Such signature by the Warrant Agent upon any Warrant
Certificate executed by the Company shall be conclusive evidence that the
Warrant Certificate so countersigned has been duly issued hereunder.
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(d) In case any officer of the Company who shall have signed any Warrant
Certificate either manually or by facsimile signature shall cease to be such
officer before the Warrant Certificate so signed shall have been countersigned
and delivered by the Warrant Agent, such Warrant Certificate nevertheless may be
countersigned and delivered as though the person who signed such Warrant
Certificate had not ceased to be such officer of the Company; and any Warrant
Certificate may be signed on behalf of the Company by such person as, at the
actual date of the execution of such Warrant Certificate, shall be the proper
officer of the Company, although at the date of the execution of this Agreement
such person was not such an officer.
Section I.3 Issuance and Delivery of Warrant Certificates. At any time
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and from time to time after the execution and delivery of this Agreement, the
Company may deliver Warrant Certificates executed by the Company to the Warrant
Agent for countersignature. Subject to the provisions of this Section 1.03, the
Warrant Agent shall thereupon countersign and deliver such Warrant Certificates
to or upon the written request of the Company. Subsequent to the original
issuance of a Stock Warrant Certificate evidencing Stock Warrants, the Warrant
Agent shall countersign a new Warrant Certificate evidencing such Stock Warrants
only if such Warrant Certificate is issued in exchange or substitution for one
or more previously countersigned Warrant Certificates evidencing such Stock
Warrants or in connection with their transfer, as hereinafter provided.
Section I.4 Temporary Warrant Certificates. Pending the preparation of
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definitive Warrant Certificates, the Company may execute, and upon the order of
the Company the Warrant Agent shall countersign and deliver, temporary Warrant
Certificates that are printed, lithographed, typewritten, mimeographed or
otherwise produced, substantially of the tenor of the definitive Warrant
Certificates in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officer
executing such Warrant Certificates may determine, as evidenced by his execution
of such Warrant Certificates.
If temporary Warrant Certificates are issued, the Company will cause
definitive Warrant Certificates to be prepared without unreasonable delay.
After the preparation of definitive Warrant Certificates, the temporary Warrant
Certificates shall be exchangeable for definitive Warrant Certificates upon
surrender of the temporary Warrant Certificates at the corporate trust office of
the Warrant Agent or ______________, without charge to the Holder, as defined in
Section 1.06 hereof. Upon surrender for cancellation of any one or more
temporary Warrant Certificates, the Company shall execute and the Warrant Agent
shall countersign and deliver in exchange therefor definitive Warrant
Certificates representing the same aggregate number of Stock Warrants. Until so
exchanged, the temporary Warrant Certificates shall in all respects be entitled
to the same benefits under this Agreement as definitive Warrant Certificates.
Section I.5 Payment of Certain Taxes. The Company will pay all stamp and
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other duties, if any, to which this Agreement or the original issuance of the
Stock Warrants or Warrant Certificates may be subject under the laws of the
United States of America or any state or locality.
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Section I.6 "Holder". The term "Holder" or "Holders" as used herein with
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reference to a Warrant Certificate shall mean the person or persons in whose
name such Warrant Certificate shall then be registered as set forth in the
Warrant Register to be maintained by the Warrant Agent pursuant to Section 4.01
for that purpose.
ARTICLE II
DURATION AND EXERCISE OF STOCK WARRANTS
Section II.1 Duration of Stock Warrants. Each Stock Warrant may be
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exercised at the time or times, or during the period or periods, provided by or
pursuant to the Board Resolution relating thereto and specified in the Warrant
Certificate evidencing such Stock Warrant. Each Stock Warrant not exercised at
or before 5:00 P.M., New York City time, on its Expiration Date shall become
void, and all rights of the Holder of such Stock Warrant thereunder and under
this Agreement shall cease, provided that the Company reserves the right to, and
may, in its sole discretion, at any time and from time to time, at such time or
times as the Company so determines, extend the Expiration Date of the Stock
Warrants for such periods of time as it chooses. Whenever the Expiration Date
of the Stock Warrants is so extended, the Company shall at least [20] days prior
to the then Expiration Date cause to be mailed to the Warrant Agent and the
registered Holders of the Stock Warrants in accordance with the provisions of
Section 6.03 hereof a notice stating that the Expiration Date has been extended
and setting forth the new Expiration Date. No adjustment shall be made for any
dividends on any [Preferred/Common] Shares issuable upon exercise of any Stock
Warrant.
Section II.2 Exercise of Stock Warrants. (a) The Holder of a Stock
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Warrant shall have the right, at its option, to exercise such Stock Warrant and,
subject to subsection (f) of this Section 2.02, purchase the number of
[Preferred/Common] Shares provided for therein at the time or times or during
the period or periods referred to in Section 2.01 and specified in the Warrant
Certificate evidencing such Stock Warrant. No fewer than the minimum number of
Stock Warrants as set forth in the Warrant Certificate may be exercised by or on
behalf of any one Holder at any one time. Except as may be provided in a
Warrant Certificate, a Stock Warrant may be exercised by completing the form of
election to purchase set forth on the reverse side of the Warrant Certificate,
by duly executing the same, and by delivering the same, together with payment in
full of the Warrant Price, in lawful money of the United States of America, in
cash or by certified or official bank check or by bank wire transfer, to the
Warrant Agent. Except as may be provided in a Warrant Certificate, the date on
which such Warrant Certificate and payment are received by the Warrant Agent as
aforesaid shall be deemed to be the date on which the Stock Warrant is exercised
and the relevant [Preferred/Common] Shares are issued.
(b) Upon the exercise of a Stock Warrant, the Company shall issue to or
upon the order of the Holder of such Warrant, the [Preferred/Common] Shares to
which such Holder is entitled, registered, in the case of [Preferred/Common]
Shares in registered form, in such name or names as may be directed by such
Holder.
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(c) If fewer than all of the Stock Warrants evidenced by a Warrant
Certificate are exercised, the Company shall execute, and an authorized officer
of the Warrant Agent shall countersign and deliver, a new Warrant Certificate
evidencing the number of Stock Warrants remaining unexercised.
(d) The Warrant Agent shall deposit all funds received by it in payment
of the Warrant Price for Stock Warrants in the account of the Company maintained
with it for such purpose and shall advise the Company by telephone by 5:00 P.M.,
New York City time, of each day on which a payment of the Warrant Price for
Warrants is received of the amount so deposited in its account. The Warrant
Agent shall promptly confirm such telephone advice in writing to the Company.
(e) The Warrant Agent shall, from time to time, as promptly as
practicable, advise the Company of (i) the number of Stock Warrants of each
title exercised as provided herein, (ii) the instructions of each Holder of such
Stock Warrants with respect to delivery of the [Preferred/Common] Shares issued
upon exercise of such Stock Warrants to which such Holder is entitled upon such
exercise, and (iii) such other information as the Company shall reasonably
require. Such notice may be given by telephone to be promptly confirmed in
writing.
(f) The Company will pay all documentary stamp taxes attributable to the
initial issuance of Stock Warrants or to the issuance of [Preferred/Common]
Shares to the registered Holder of such Stock Warrants upon exercise thereof;
provided, however, that the Holder, and not the Company, shall be required to
pay any stamp or other tax or other governmental charge that may be imposed in
connection with any transfer involved in the issuance of the [Preferred/Common]
Shares; and in the event that any such transfer is involved, the Company shall
not be required to issue any [Preferred/Common] Shares (and the Holder's
purchase of the [Preferred/Common] Shares issued upon the exercise of such
Holder's Stock Warrant shall not be deemed to have been consummated) until such
tax or other charge shall have been paid or it has been established to the
Company's satisfaction that no such tax or other charge is due.
Section II.3 Stock Warrant Adjustments. The terms and conditions, if
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any, on which the exercise price of and/or the number of [Preferred/Common]
Shares covered by a Stock Warrant are subject to adjustments will be set forth
in the Warrant Certificate and in the Prospectus Supplement relating thereto.
Such terms may include the adjustment mechanism for the exercise price of, and
the number of [Preferred/Common] Shares covered by, a Stock Warrant, the events
requiring such adjustments, the events upon which the Company may, in lieu of
making such adjustments, make proper provisions so that the Holder, upon
exercise of such Holder's Stock Warrant, would be treated as if such Holder had
been a holder of the [Preferred/Common] Shares received upon such exercise,
prior to the occurrence of such events, and provisions affecting exercise of the
Stock Warrants in the event of certain events affecting the [Preferred/Common]
Shares.
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ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS
OF STOCK WARRANTS
Section III.1 No Rights as Holder of Underlying [Preferred/Common] Shares
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Conferred by Stock Warrants or Warrant Certificates. No Stock Warrants or
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Warrant Certificates shall entitle the Holder to any of the rights, preferences
and privileges of a holder of the underlying [Preferred/Common] Shares,
including without limitation, any dividend, voting, redemption, conversion,
exchange and liquidation rights.
Section III.2 Lost, Stolen, Destroyed or Mutilated Warrant Certificates.
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Upon receipt by the Company and the Warrant Agent of evidence reasonably
satisfactory to them of the ownership of and the loss, theft, destruction or
mutilation of any Warrant Certificate and of indemnity (other than in connection
with any mutilated Warrant Certificates surrendered to the Warrant Agent for
cancellation) reasonably satisfactory to them, the Company shall execute, and
Warrant Agent shall countersign and deliver, in exchange for or in lieu of each
lost, stolen, destroyed or mutilated Warrant Certificate, a new Warrant
Certificate evidencing a like number of Stock Warrants of the same title. Upon
the issuance of a new Warrant Certificate under this Section, the Company may
require the payment of a sum sufficient to cover any stamp or other tax or other
governmental charge that may be imposed in connection therewith and any other
expenses (including the fees and expenses of the Warrant Agent) in connection
therewith. Every substitute Warrant Certificate executed and delivered pursuant
to this Section in lieu of any lost, stolen or destroyed Warrant Certificate
shall represent a contractual obligation of the Company, whether or not such
lost, stolen or destroyed Warrant Certificate shall be at any time enforceable
by anyone, and shall be entitled to the benefits of this Agreement equally and
proportionately with any and all other Warrant Certificates, duly executed and
delivered hereunder, evidencing Stock Warrants of the same title. The
provisions of this Section are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement of lost,
stolen, destroyed or mutilated Warrant Certificates.
Section III.3 Holders of Stock Warrants May Enforce Rights.
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Notwithstanding any of the provisions of this Agreement, any Holder may, without
the consent of the Warrant Agent, enforce and may institute and maintain any
suit, action or proceeding against the Company suitable to enforce, or otherwise
in respect of, its right to exercise his Stock Warrants as provided in the Stock
Warrants and in this Agreement.
Section III.4 Merger, Consolidation, Sale, Transfer or Conveyance. (a)
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In case any of the following shall occur while any Stock Warrants are
outstanding: (i) any reclassification or change of the outstanding
[Preferred/Common] Shares; or (ii) any consolidation or merger to which the
Company is party (other than a consolidation or a merger in which the Company is
the continuing corporation and which does not result in any reclassification of,
or change in, the
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outstanding [Preferred/Common] Shares issuable upon exercise of the Stock
Warrants); or (iii) any sale, conveyance or lease to another corporation of the
property of the Company as an entirety or substantially as an entirety; then the
Company, or such successor or purchasing corporation, as the case may be, shall
make appropriate provision by amendment of this Agreement or otherwise so that
the Holders of the Stock Warrants then outstanding shall have the right at any
time thereafter, upon exercise of such Stock Warrants, to purchase the kind and
amount of capital shares and other securities and property receivable upon such
a reclassification, change, consolidation, merger, sale, conveyance or lease as
would be received by a holder of the number of [Preferred/Common] Shares
issuable upon exercise of such Stock Warrant immediately prior to such
reclassification, change, consolidation, merger, sale, conveyance or lease, and,
in the case of a consolidation, merger, sale, conveyance or lease, the Company
shall thereupon be relieved of any further obligation hereunder or under the
Stock Warrants, and the Company as the predecessor corporation may thereupon or
at any time thereafter be dissolved, wound up or liquidated. Such successor or
assuming corporation thereupon may cause to be signed, and may issue either in
its own name or in the name of the Company, any of all of the Stock Warrants
issuable hereunder which theretofore shall not have been signed by the Company,
and may execute and deliver [Preferred/Common] Shares in its own name, in
fulfillment of its obligations to deliver Shares upon exercise of the Stock
Warrants. All the Stock Warrants so issued shall in all respects have the same
legal rank and benefit under this Agreement as the Stock Warrants theretofore or
thereafter issued in accordance with the terms of this Agreement as though all
of such Stock Warrants had been issued at the date of the execution hereof. In
any case of any such reclassification, change, consolidation, merger,
conveyance, transfer or lease, such changes in phraseology and form (but not in
substance) may be made in the Stock Warrants thereafter to be issued as may be
appropriate.
(b) The Stock Warrant Agent may receive a written opinion of legal
counsel as conclusive evidence that any such merger, consolidation, sale,
transfer, conveyance or other disposition of substantially all of the assets of
the Company complies with the provisions of this Section 3.04.
ARTICLE IV
EXCHANGE AND TRANSFER OF STOCK WARRANTS
Section IV.1 Stock Warrant Register; Exchange and Transfer of Stock
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Warrants. The Warrant Agent shall maintain, at its corporate trust office or at
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__________ ________, a register (the "Warrant Register") in which, upon the
issuance of Stock Warrants and, subject to such reasonable regulations as the
Warrant Agent may prescribe, it shall register Warrant Certificates and
exchanges and transfers thereof. The Warrant Register shall be in written form
or in any other form capable of being converted into written form within a
reasonable time.
Except as provided in the following sentence, upon surrender at the
corporate trust office of the Warrant Agent or at _________ __________, Warrant
Certificates may be exchanged for one or more other Warrant Certificates
evidencing the same aggregate number of Stock Warrants of the same title, or may
be transferred in whole or in part. A transfer shall be
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registered upon surrender of a Warrant Certificate to the Warrant Agent at its
corporate trust office or at __________ __________ for transfer, properly
endorsed or accompanied by appropriate instruments of transfer and written
instructions for transfer, all in form satisfactory to the Company and the
Warrant Agent, duly signed by the registered holder or holders thereof or by the
duly appointed legal representative thereof or by a duly authorized attorney,
such signature to be guaranteed by (a) a bank or trust company, (b) a broker or
dealer that is a member of the National Association of Securities Dealers, Inc.
(the "NASD") or (c) a member of a national securities exchange. Upon any such
registration of transfer, a new Warrant Certificate shall be issued to the
transferee. Whenever a Warrant Certificate is surrendered for exchange or
transfer, the Warrant Agent shall countersign and deliver to the person or
persons entitled thereto one or more Warrant Certificates duly executed by the
Company, as so requested. The Stock Warrant Agent shall not be required to
effect any exchange or transfer which will result in the issuance of a Warrant
Certificate evidencing a fraction of a Stock Warrant. All Warrant Certificates
issued upon any exchange or transfer of a Warrant Certificate shall be the valid
obligations of the Company, evidencing the same obligations, and entitled to the
same benefits under this Agreement, as the Warrant Certificate surrendered for
such exchange or transfer.
No service charge shall be made for any exchange or transfer of Stock
Warrants, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any such
exchange or transfer, in accordance with Section 2.02(f) hereof.
Section IV.2 Treatment of Holders of Warrant Certificates.
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The Company and the Warrant Agent may treat the registered Holder of a
Warrant Certificate as the absolute Holder thereof for any purpose and as the
person entitled to exercise the rights represented by the Stock Warrants
evidenced thereby, any notice to the contrary notwithstanding.
Section IV.3 Cancellation of Warrant Certificates. In the event that the
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Company shall purchase, redeem or otherwise acquire any Stock Warrants after the
issuance thereof, the Warrant Certificate or Warrant Certificates evidencing
such Stock Warrants shall thereupon be delivered to the Warrant Agent and be
cancelled by it. The Warrant Agent shall also cancel any Warrant Certificate
(including any Warrant Certificate) delivered to it for exercise, in whole or in
part, or for exchange or transfer. Warrant Certificates so cancelled shall be
delivered by the Warrant Agent to the Company from time to time, or disposed of
in accordance with the instructions of the Company.
ARTICLE V
CONCERNING THE WARRANT AGENT
Section V.1. Warrant Agent. The Company hereby appoints
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__________________ as Warrant Agent of the Company in respect of the Stock
Warrants upon the terms and subject to
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the conditions set forth herein, and __________________ hereby accepts such
appointment. The Warrant Agent shall have the powers and authority granted to
and conferred upon it in the Warrant Certificates and hereby, and such further
powers and authority acceptable to it to act on behalf of the Company as the
Company may hereafter grant to or confer upon it. All of the terms and
provisions with respect to such powers and authority contained in the Warrant
Certificates are subject to and governed by the terms and provisions hereof.
Section V.2 Conditions of Warrant Agent's Obligations. The Warrant Agent
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accepts its obligations set forth herein upon the terms and conditions hereof,
including the following, to all of which the Company agrees and to all of which
the rights hereunder of the Holders shall be subject:
(a) Compensation and Indemnification. The Company agrees to promptly pay
the Warrant Agent the compensation set forth in Exhibit A hereto and to
reimburse the Warrant Agent for reasonable out-of-pocket expenses (including
counsel fees) incurred by the Warrant Agent in connection with the services
rendered hereunder by the Warrant Agent. The Company also agrees to
indemnify the Warrant Agent for, and to hold it harmless against, any loss,
liability or expense (including the reasonable costs and expenses of
defending against any claim of liability) incurred without negligence or bad
faith on the part of the Warrant Agent arising out of or in connection with
its appointment, status or service as Warrant Agent hereunder.
(b) Agent for the Company. In acting under this Agreement and in
connection with any Warrant Certificate, the Warrant Agent is acting solely
as agent of the Company and does not assume any obligation or relationship of
agency or trust for or with any Holder.
(c) Counsel. The Warrant Agent may consult with counsel satisfactory to
it, and the advice of such counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in accordance with the advice of such counsel.
(d) Documents. The Warrant Agent shall be protected and shall incur no
liability for or in respect of any action taken, suffered or omitted by it in
reliance upon any notice, direction, consent, certificate, affidavit,
statement or other paper or document reasonably believed by it to be genuine
and to have been presented or signed by the proper parties.
(e) Officer's Certificate. Whenever in the performance of its duties
hereunder the Warrant Agent shall reasonably deem it necessary that any fact
or matter be proved or established by the Company prior to taking, suffering
or omitting any action hereunder, the Warrant Agent may (unless other
evidence in respect thereof be herein specifically prescribed), in the
absence of bad faith on its part, rely upon a certificate signed by the
Chairman of the Board of Directors, the Vice Chairman of the Board of
Directors, the President, an Executive Vice President, the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary of the Company
(an "Officer's Certificate") delivered by the Company to the Warrant Agent.
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(f) Actions Through Agents. The Warrant Agent may execute and exercise
any of the rights or powers hereby vested in it or perform any duty hereunder
either itself or by or through its attorneys or agents, and the Warrant Agent
shall not be answerable or accountable for any act, default, neglect or
misconduct of any such attorney or agent or for any loss to the Company
resulting from such neglect or misconduct; provided, however, that reasonable
care shall have been exercised in the selection and continued employment of
such attorneys and agents.
(g) Certain Transactions. The Warrant Agent, and any officer, director
or employee thereof, may become the owner of, or acquire any interest in, any
Stock Warrant, with the same rights that he, she or it would have if it were
not the Warrant Agent, and, to the extent permitted by applicable law, he,
she or it may engage or be interested in any financial or other transaction
with the Company and may serve on, or as depository, trustee or agent for,
any committee or body of holders of [Preferred/Common] Shares or other
obligations of the Company as if it were not the Warrant Agent.
(h) No Liability For Interest. The Warrant Agent shall not be liable for
interest on any monies at any time received by it pursuant to any of the
provisions of this Agreement or of the Warrant Certificates, except as
otherwise agreed with the Company.
(i) No Liability For Invalidity. The Warrant Agent shall incur no
liability with respect to the validity of this Agreement (except as to the
due execution hereof by the Warrant Agent) or any Warrant Certificate (except
as to the countersignature thereof by the Warrant Agent).
(j) No Responsibility For Company Representations. The Warrant Agent
shall not be responsible for any of the recitals or representations contained
herein (except as to such statements or recitals as describe the Warrant
Agent or action taken or to be taken by it) or in any Warrant Certificate
(except as to the Warrant Agent's countersignature on such Warrant
Certificate), all of which recitals and representations are made solely by
the Company.
(k) No Implied Obligations. The Warrant Agent shall be obligated to
perform only such duties as are specifically set forth herein, and no other
duties or obligations shall be implied. The Warrant Agent shall not be under
any obligation to take any action hereunder that may subject it to any
expense or liability, the payment of which within a reasonable time is not,
in its reasonable opinion, assured to it. The Warrant Agent shall not be
accountable or under any duty or responsibility for the use by the Company of
any Warrant Certificate countersigned by the Warrant Agent and delivered by
it to the Company pursuant to this Agreement or for the application by the
Company of the proceeds of the issuance or exercise of Stock Warrants. The
Warrant Agent shall have no duty or responsibility in case of any default by
the Company in the performance of its covenants or agreements contained
herein or in any Warrant Certificate or in case of the receipt of any written
demand from a Holder with respect to such default, including, without
limiting the generality of the foregoing, any duty or responsibility to
initiate or attempt to initiate any proceedings at law or otherwise or,
except as provided in Section 6.02 hereof, to make any demand upon the
Company.
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Section V.3 Resignation and Removal; Appointment of Successor. (a) The
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Company agrees, for the benefit of the Holders of the Stock Warrants, that there
shall at all times be a Warrant Agent hereunder until all the Stock Warrants are
no longer exercisable.
(b) The Warrant Agent may at any time resign as such by giving written
notice to the Company, specifying the date on which its desired resignation
shall become effective; provided that such date shall not be less than [90] days
after the date on which such notice if given unless the Company agrees to accept
a shorter notice. The Warrant Agent hereunder may be removed at any time by the
filing with it of an instrument in writing signed by or on behalf of the Company
and specifying such removal and the date when it shall become effective.
Notwithstanding the provisions of this Section 5.03(b), such resignation or
removal shall take effect upon the appointment by the Company, as hereinafter
provided, of a successor Warrant Agent (which shall be a banking institution
organized and doing business under the laws of the United States of America, any
State thereof or the District of Columbia, authorized under the laws of such
jurisdiction to exercise corporate trust powers and having at the time of its
appointment as Warrant Agent a combined capital and surplus (as set forth in its
most recent published report of financial condition) of at least
[$50,000,000])and the acceptance of such appointment by such successor Warrant
Agent. In the event a successor Warrant Agent has not been appointed and has
not accepted its duties within [90] days of the Warrant Agent's notice of
resignation, the Warrant Agent may apply to any court of competent jurisdiction
for the designation of a successor Warrant Agent. The obligations of the
Company under Section 5.02(a) shall continue to the extent set forth therein
notwithstanding the resignation or removal of the Warrant Agent.
(c) In case at any time the Warrant Agent shall resign, or shall be
removed, or shall become incapable of acting, or shall file a petition seeking
relief under Title 11 of the United States Code, as now constituted or hereafter
amended or under any other applicable federal or state bankruptcy law or similar
law, or make an assignment for the benefit of its creditors or consent to the
appointment of a receiver or custodian of all or any substantial part of its
property, or shall admit in writing its inability to pay or meet its debts as
they mature, or if a receiver or custodian of it or all or any substantial part
of its property shall be appointed, or if an order of any court shall be entered
for relief against it under the provisions of Title 11 of the United States
Code, as now constituted or hereafter amended, or under any other applicable
federal or state bankruptcy or similar law, or if any public officer shall have
taken charge or control of the Warrant Agent or of its property or affairs, for
the purpose of rehabilitation, conservation or liquidation, a successor Warrant
Agent, qualified as aforesaid, shall be appointed by the Company by an
instrument in writing, filed with the successor Warrant Agent. Upon the
appointment as aforesaid of a successor Warrant Agent and acceptance by the
latter of such appointment, the Warrant Agent so superseded shall cease to be
Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Company an instrument
accepting such appointment hereunder, and thereupon such successor Warrant
Agent, without any further act, deed or conveyance, shall become vested with all
the authority, rights, powers, trusts, immunities, duties and obligations of
such predecessor with like effect as if originally named as Warrant Agent
11
hereunder, and such predecessor, upon payment of its charges and disbursements
then unpaid, shall thereupon become obligated to transfer, deliver and pay over,
and such successor Warrant Agent shall be entitled to receive all moneys,
securities and other property on deposit with or held by such predecessor, as
Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder may be merged
or converted or any corporation with which the Warrant Agent may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a party, or any corporation to
which the Warrant Agent shall sell or otherwise transfer all or substantially
all of the assets and business of the Warrant Agent, provided that such
Corporation shall be qualified as aforesaid, shall be the successor Warrant
Agent under this Agreement without the execution or filing of any paper or any
further act on the part of any of the parties hereto.
Section V.4 Compliance With Applicable Laws. The Warrant Agent agrees to
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comply with all applicable federal and state laws imposing obligations on it in
respect of the services rendered by it under this Warrant Agreement and in
connection with the Stock Warrants, including (but not limited to) the
provisions of United States federal income tax laws regarding information
reporting and backup withholding. The Warrant Agent expressly assumes all
liability for its failure to comply with any such laws imposing obligations on
it, including (but not limited to) any liability for failure to comply with any
applicable provisions of United States federal income tax laws regarding
information reporting and backup withholding.
Section V.5 Office. The Company will maintain an office or agency where
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Warrant Certificates may be presented for exchange, transfer or exercise. The
office initially designated for this purpose shall be the corporate trust office
of the Warrant Agent at ________________.
ARTICLE VI
MISCELLANEOUS
Section VI.1 Supplements and Amendments. (a) The Company and Warrant
--------------------------
Agent may from time to time supplement or amend this Agreement without the
approval or consent of any Holder in order to cure any ambiguity, to correct or
supplement any provision contained herein that may be defective or inconsistent
with any other provisions herein, or to make any other provision in regard to
matters or questions arising hereunder that the Company and the Warrant Agent
may deem necessary or desirable and that shall not adversely affect the
interests of the Holders. Every Holder of Stock Warrants, whether issued before
or after any such supplement or amendment, shall be bound thereby. Promptly
after the effectiveness of any supplement or amendment that affects the interest
of the Holders, the Company shall give notice thereof, as provided in Section
6.03 hereof, to the Holders affected thereby, setting forth in general terms the
substance of such supplement or amendment.
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(b) The Company and the Warrant Agent may modify or amend this Agreement
and the Warrant Certificates with the consent of the Holders of not fewer than a
majority in number of the underlying [Preferred/Common] Shares affected by such
modification or amendment, for any purpose; provided, however, that no such
modification or amendment that shortens the period of time during which the
Stock Warrants may be exercised, or otherwise materially and adversely affects
the exercise rights of the Holders or reduces the percentage of Holders of
outstanding Stock Warrants the consent of which is required for modification or
amendment of this Agreement or the Stock Warrants, may be made without the
consent of each Holder affected thereby.
Section VI.2 Notices and Demands to the Company and Warrant Agent. If
----------------------------------------------------
the Warrant Agent shall receive any notice or demand addressed to the Company by
any Holder pursuant to the provisions of the Warrant Certificates, the Warrant
Agent shall promptly forward such notice or demand to the Company.
Section VI.3 Addresses for Notices. Any communications from the Company
---------------------
to the Warrant Agent with respect to this Agreement shall be addressed to [name
of Warrant Agent, _______________, Attention: Corporate Trust Department;] any
communications from the Warrant Agent to the Company with respect to this
Agreement shall be addressed to Global Crossing Ltd., 00 Xxxx Xxxxxx, Xxxxxxxx
XX00, Xxxxxxx, attention of General Counsel; or such other addresses as shall be
specified in writing by the Warrant Agent or by the Company, as the case may be.
Section VI.4 Governing Law. This Agreement and the Stock Warrants shall
-------------
be governed by the laws of the State of New York applicable to contracts made
and to be performed entirely within such State.
Section VI.5 Governmental Approvals. The Company will from time to time
----------------------
use all reasonable best efforts to obtain and keep effective any and all
permits, consents and approvals of governmental agencies and authorities and the
national securities exchange on which the Stock Warrants may be listed or
authorized for trading from time to time and will make all filings under the
federal and state securities laws (including, without limitation, the
maintenance of the effectiveness of the registration statement in respect of the
[Preferred/Common] Shares under the Securities Act of 1933), as may be or become
requisite in connection with the issuance, sale, trading, transfer or delivery
of the Stock Warrants and Warrant Certificates, the exercise of the Stock
Warrants and the issuance, sale and delivery of the underlying
[Preferred/Common] Shares issued upon the exercise of the Stock Warrants.
Section VI.6 Persons Having Rights Under Stock Warrant Agreement.
---------------------------------------------------
Nothing in this Agreement expressed or implied and nothing that may be inferred
from any of the provisions hereof is intended, or shall be construed, to confer
upon, or give to, any person or corporation other than the Company, the Warrant
Agent and the Holders any right, remedy or claim under or by reason of this
Agreement or of any covenant, condition, stipulation, promise or agreement
hereof; and all covenants, conditions, stipulations, promises and agreements in
this Agreement
13
contained shall be for the sole and exclusive benefit of the Company and the
Warrant Agent and their respective successors and of the Holders of Warrant
Certificates.
Section VI.7 Delivery of Prospectus/Prospectus Supplement. The Company
--------------------------------------------
will furnish to the Warrant Agent sufficient copies of a prospectus, prospectus
supplement or prospectuses relating to the [Preferred/Common] Shares deliverable
upon exercise of any outstanding Stock Warrants (each a "Prospectus"), and prior
to or concurrent with the delivery of the [Preferred/Common] Shares issued upon
the exercise thereof, a copy of the Prospectus/Prospectus supplement relating to
such [Preferred/ Common] Shares.
Section VI.8 Headings. The descriptive headings of the several Articles
--------
and Sections and the Table of Contents of this Agreement are for convenience
only and shall not control or affect the meaning or construction of any of the
provisions hereof.
Section VI.9 Counterparts. This Agreement may be executed by the parties
------------
hereto in any number of counterparts, each of which when so executed and
delivered shall be deemed to be an original; but all such counterparts shall
together constitute but one and the same instrument.
Section VI.10 Inspection of Agreement. A copy of this Agreement shall be
-----------------------
available at all reasonable times at the principal corporate trust office of the
Warrant Agent, for inspection by the Holders of Stock Warrants.
Section VI.11 Consolidation, Merger or Amalgamation of the Company and
--------------------------------------------------------
Conveyance or Transfer Permitted Subject to Certain Conditions. [If Preferred
--------------------------------------------------------------
Shares underlie Stock WarrantsCTo the extent permitted in the Certificate of
Designations, the Company may consolidate with or merge or amalgamate into
another corporation or other entity, or convey or transfer all or substantially
all of its properties and assets to any other corporation or other entity.]
Section VI.12 Rights and Duties of Successor Corporation. In case of any
------------------------------------------
such consolidation, merger, conveyance or transfer and upon any assumption of
the duties and obligations of the Company by the successor corporation, such
successor corporation shall succeed to and be substituted for the Company, with
the same effect as if it had been named herein, and the Company shall be
relieved of any further obligation under this Agreement and the Stock Warrants.
Such successor corporation thereupon may cause to be signed, and may issue
either in its own name or in the name of the Company, any or all of the
Preferred Shares underlying the Stock Warrants and issuable pursuant to the
terms hereof. All such Preferred Shares so issued shall in all respects have
the same legal rank and benefit as the Preferred Shares theretofore or
thereafter issued in accordance with the terms of this Agreement and the
Certificate of Designations.
In case of any such consolidation, merger, conveyance or transfer, such
changes in phraseology and form (but not in substance) may be made in the
Preferred Shares thereafter to be issued as may be appropriate.
14
Section 6.13 Consent to Jurisdiction and Service. To the fullest extent
-----------------------------------
permitted by applicable law, the Company hereby 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 or any Securities and irrevocably
agrees that all claims in respect of such suit or proceeding may be determined
in any such court. The Company 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 an inconvenient forum. The
Company 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 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 in the manner specified herein
or as otherwise permitted by law. The Company hereby irrevocably designates and
appoints CT Corporation System, [ ], New York, New York (the
AProcess Agent@) as the authorized agent of the Company, 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. The Company further agrees that service of process upon the
Process Agent and written notice of said service to the Company 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 in any such suit or proceeding. The Company 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
has any outstanding obligations under this Agreement. To the extent the Company
has or hereafter may acquire any immunity from jurisdiction of any court or from
any legal process (whether through service of notice, attachment prior to
judgment, attachment in aid of execution, executor or otherwise) with respect to
itself or its property, the Company hereby irrevocably waives such immunity in
respect of its obligations under this Agreement, to the extent permitted by law.
* * * * *
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
GLOBAL CROSSING LTD.,
a Bermuda company
Seal
Attest: By: __________________________
Name and Title
______________________________
NAME AND TITLE:
15
STOCK WARRANT AGENT
Seal
By: __________________________
Attest: Name and Title
_____________________________
NAME AND TITLE:
16
Exhibit A
to Stock Warrant Agreement
dated as of ____________, 19__
[Compensation of Warrant Agent]
