Exhibit 10.10
EXECUTION
COPY
REGISTRATION RIGHTS AGREEMENT
dated as of December 9, 2003
between
GLOBAL CROSSING LIMITED,
and
STT CROSSING LTD
TABLE OF
CONTENTS
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Page
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Section 1.
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Definitions
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1
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Section 2.
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Demand
Registration
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3
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Section 3.
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Piggyback
Registration and Form S-3 or F-3 Registration
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5
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Section 4.
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Registration
Procedures
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7
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Section 5.
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Registration
Expenses
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12
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Section 6.
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Indemnification
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13
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Section 7.
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Underwritten
Registrations
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15
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Section 8.
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Rule
144A
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16
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Section 9.
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Miscellaneous
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16
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i
THIS REGISTRATION RIGHTS AGREEMENT
(this “ Agreement ”) is made and entered into as
of December 9, 2003, by and among Global Crossing Limited (formerly
GC Acquisition Ltd.), a company organized under the laws of Bermuda
(the “ Company ”), and STT Crossing Ltd, a
company organized under the laws of Mauritius (“
Purchaser ”), and each other person who becomes a
Holder (as defined below) hereunder.
RECITALS
WHEREAS, the parties hereto have
entered into a Purchase Agreement by and among Global Crossing Ltd.
(“ GX ”), Global Crossing Holdings Ltd., the
Joint Provisional Liquidators, Singapore Technologies Telemedia Pte
Ltd (“ ST Telemedia ”) and Hutchison
Telecommunications Limited, dated August 9, 2002 (as amended,
supplemented or otherwise modified from time to time, the “
Purchase Agreement ”), pursuant to which, among other
things, Purchaser will acquire 6,600,000 shares of the
Company’s Common Stock, par value $.01 per share (the “
Common Shares ”), and 18,000,000 shares of the
Company’s 2.0% Cumulative Senior Convertible Preferred Stock,
par value $.10 per share (the “ Preferred Shares
”);
WHEREAS, to induce ST Telemedia to
execute and deliver the Purchase Agreement and consummate the
transactions contemplated thereby, GX has agreed to cause the
Company to provide to Holder certain registration rights under the
Securities Act (as defined below); and
WHEREAS, the execution and delivery
of this Agreement by the parties hereto is a condition to the
closing of the transactions contemplated by the Purchase
Agreement.
NOW, THEREFORE, in consideration of
the mutual promises and agreements set forth herein and in the
Purchase Agreement, and for other valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
Section 1. Definitions . For
purposes of this Agreement, capitalized terms used but not defined
herein shall have the meanings specified in the Purchase Agreement.
In addition, the following capitalized terms have the following
meanings:
“ Exchange Act ”:
The United States Securities Exchange Act of 1934, as amended, or
any successor federal statute, and the rules and regulations of the
SEC thereunder, all as the same shall be in effect from time to
time. Reference to a particular section of the Exchange Act shall
include reference to a comparable section, if any, of any such
successor federal statute.
“ Holder ”:
Purchaser and its transferees to whom Purchaser agrees to assign
benefits or rights under this Agreement and who agree to be bound
by the provisions of this Agreement in accordance with Section 9(e)
hereof; provided , however , that for purposes of all
provisions of this agreement insofar as they relate to the making
of any decision, determination, approval or consent or the giving
of any notice by Holder (including any such decision or notice
concerning the exercise of any rights of Holder hereunder), Holder
shall mean only Purchaser.
“ Person ”: Any
individual, partnership, limited liability company, joint venture,
corporation, association, trust or any other entity or
organization.
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“ Prospectus ”:
The prospectus included in any Registration Statement (including,
without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the
Securities Act), as amended or supplemented by any prospectus
supplement, with respect to the terms of the offering of any
portion of the Registrable Securities covered by such Registration
Statement and all other amendments and supplements to such
prospectus, including post-effective amendments, and all material
incorporated by reference or deemed to be incorporated by reference
in such prospectus.
“ Registrable
Securities ”: Common Shares, Common Shares or other
securities which Holder may acquire upon conversion of the
Preferred Shares, together with (a) any other securities which such
Holder may acquire on account of any such securities, including,
without limitation, as the result of any dividend or other
distribution on Common Shares or any subdivision of such Common
Shares or in connection with any combination of shares,
recapitalization, amalgamation, merger, consolidation or
reorganization or otherwise, and (b) any additional Common Shares
which such Holder has acquired prior to the date hereof, or may
acquire from time to time within the first three years after the
date hereof, whether or not such Common Shares are acquired from
the Company or any other person or entity (collectively, “
Other Acquired Common Shares ”); provided that
a security ceases to be a Registrable Security (i) when it is no
longer a Transfer Restricted Security, or (ii) if it is an Other
Acquired Common Share which was not acquired from the Company and
is transferred to a Person that is not an affiliate (as defined in
Rule 12b-2 of the Exchange Act) of Holder.
The number of shares of
“Registrable Securities” outstanding shall be
determined by the number of Common Shares outstanding that are, and
the number of Common Shares issuable pursuant to then exercisable
or convertible securities that are, Registrable
Securities.
“ Registration
Statement ”: Any registration statement of the Company
under the Securities Act that covers any of the Registrable
Securities pursuant to the provisions of this Agreement, including
the related Prospectus, any preliminary prospectus, all amendments
and supplements to such registration statement (including
post-effective amendments), all exhibits and all material
incorporated by reference or deemed to be incorporated by reference
in such registration statement.
“ Rule 144 ”:
Rule 144 promulgated under the Securities Act, and any successor
provision thereto.
“ Securities Act
”: The Securities Act of 1933, as amended, or any successor
federal statute, and the rules and regulations of the SEC
thereunder, all as the same shall be in effect at the time.
Reference to a particular section of the Securities Act shall
include reference to the comparable section, if any, of such
successor federal statute.
“ SEC ”: The
United States Securities and Exchange Commission and any successor
governmental entity.
“ Transfer Restricted
Securities ”: The Registrable Securities, until the date
on which (i) such Registrable Securities are effectively registered
under the Securities Act and
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disposed of pursuant to such effective
registration statement, (ii) such Registrable Securities are sold
by a Person in a transaction in which the rights under the
provisions of this Agreement are not assigned, (iii) such
Registrable Securities are sold pursuant to Rule 144 (or any
similar provision then in force, but not Rule 144A) under the
Securities Act without registration under the Securities Act, or
(iv) the entire amount of the Registrable Securities may, in the
opinion of counsel satisfactory to the Company and Holder, be sold
by Holder pursuant to Rule 144 (or any successor provision then in
effect) under the Securities Act in a single sale without any
limitation as to volume.
“ Underwritten Offering
”: A distribution, registered pursuant to the Securities Act,
in which securities of the Company are sold to the public through
one or more underwriters.
Section 2. Demand
Registration
(a) Requests for Registration
. At any time commencing on or after the date that is 180 days
following the Closing Date, Holder will have the right, by written
notice delivered to the Company (a “ Demand Notice
”), to require the Company to register Registrable Securities
under and in accordance with the provisions of the Securities Act
(a “ Demand Registration ”); provided,
that, (i) Holder may not make more than four Demand
Registrations, (ii) the aggregate offering price (net of
underwriters’ discounts and commissions) of the Registrable
Securities requested by Holder to be so registered must exceed
$25,000,000, and (iii) Holder must provide to the Company a
certificate (the “ Authorizing Certificate ”)
signed by Holder; and provided , further , that no
Demand Notice may be given by Holder prior to six months after the
effective date of the immediately preceding Demand Registration.
For purposes of the preceding sentence, the filing of two or more
Registration Statements in response to one demand shall be counted
as one Demand Registration. Each request for a Demand Registration
by Holder shall state the amount of the Registrable Securities
proposed to be sold and the intended method of disposition thereof.
The Authorizing Certificate shall set forth (A) the name of Holder
signing such Authorizing Certificate, (B) the number of Registrable
Securities held by such Holder and the number of Registrable
Securities such Holder has elected to have registered, and (C) the
intended methods of disposition of the Registrable Securities.
Holder may at its option withdraw Registrable Securities from a
registration and, in such event (1) any continuing registration of
Registrable Securities shall constitute the Demand Registration to
which Holder is entitled and (2) the withdrawing Holder shall
reimburse the Company for any registration and filing fees
(including any fees payable to the SEC, the National Association of
Securities Dealers, Inc. or any successor organization) it has
incurred with respect to the withdrawn Registrable Securities
(unless all Registrable Securities are withdrawn, in which case the
withdrawing Holder shall reimburse the Company for all costs and
expenses incurred by it in connection with the registration of such
Registrable Securities). Subject to compliance with clause (2) of
the preceding sentence, a registration that is terminated in its
entirety prior to the effective date of the applicable Registration
Statement will not constitute a Demand Registration.
Notwithstanding the foregoing, if at the time of withdrawal, Holder
has learned of a material adverse change in the condition, business
or prospects of the Company and has withdrawn the request with
reasonable promptness following disclosure by the Company, Holder
shall not be subject to clause (2) above.
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If a Demand Registration is not
declared and maintained effective for the period required by
Section 2(b) or if the consummation of the offering of Registrable
Securities pursuant to such Demand Registration (A) is interfered
with by any stop order, injunction or other order or requirement of
the SEC or other governmental agency or court for any Person which
is not directly caused by the act or omission of any Holder and
such act or omission is not thereafter eliminated or (B) the
conditions specified in the underwriting agreement with respect to
an Underwritten Offering, if any, entered into in connection with
such Demand Registration are not satisfied or waived, other than by
reason of a failure by Holder, then Holder shall be entitled to an
additional Demand Registration in lieu thereof.
(b) Filing and Effectiveness
. (i) The Company will file or, if permitted, submit
confidentially, a Registration Statement relating to any Demand
Registration as promptly as practicable (but in any event within 45
days in the case of a registration made on Form S-1 or F-1, or a
comparable successor form, as applicable, or 30 days in the case of
any registration eligible to be made on Form S-3 or F-3 or a
comparable successor form, as applicable) following the date on
which the Demand Notice is given and will use its reasonable best
efforts to cause the same to be declared effective by the SEC as
soon as practicable thereafter (the “ Effectiveness
Date ”).
(ii) The Company agrees to use its
reasonable best efforts to comply with all necessary provisions of
the federal securities laws in order to keep each Registration
Statement relating to a Demand Registration effective for a period
of (A) in the case of an Underwritten Offering, 120 days from its
Effectiveness Date, and (B) subject to the last proviso of this
clause (ii), in the case of any registration made pursuant to Rule
415 under the Securities Act, twenty-four (24) months from its
Effectiveness Date, or such shorter period that will terminate when
all Registrable Securities covered by such Registration Statement
have been sold pursuant to such Registration Statement (in each
case, such period being the “ Effectiveness Period
”); provided , however , that if any Black-Out
(as hereinafter defined) occurs during an Effectiveness Period,
then such Effectiveness Period will be tolled for the duration of
the Black-Out.
Holder will be permitted, subject to
its compliance with the provisions of Section 2(a) relating to
reimbursement of the Company’s expenses, to withdraw in good
faith all or part of the Registrable Securities from a Demand
Registration at any time prior to the effective date of such Demand
Registration, in which event the Company will promptly amend or, if
applicable, withdraw the related Registration Statement.
(c) Priority on Demand
Registration . Notwithstanding the foregoing, if the managing
underwriter or underwriters of an Underwritten Offering to which
such Demand Registration relates advises the Company and Holder in
writing that the total amount of Registrable Securities that
Holder, the Company and any other Person intend to include in such
Demand Registration is in the aggregate such as to materially and
adversely affect the success of such offering, then there will be
included in such Demand Registration, (i) first, the number of
securities that Holder proposes to sell pursuant to such Demand
Registration, (ii) second, to the extent that the number of
securities in clause (i) above is less than the number of
securities which the Company and Holder have been advised can be
sold in such offering without having the adverse effect referred to
above, the number of securities, if any, requested to be included
in such
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offering by any other Persons pursuant to
similar registration rights, determined pro rata on
the basis of the number of shares of the class being sold owned by
such other Persons requesting registration, collectively, and (iii)
third, to the extent that the number of securities in clauses (i)
and (ii) above is less than the number of securities which the
Company and Holder have been advised can be sold in such offering
without having the adverse effect referred to above, the
securities, if any, sought to be included by the Company in the
offering.
(d) Postponement of Demand
Registration . Notwithstanding anything to the contrary in any
other provision of this Agreement, the Company will be entitled, on
no more than one occasion in any 12-month period, to postpone the
filing period of any Demand Registration for a reasonable period of
time not in excess of 120 calendar days if the Board of Directors
of the Company determines, in the good faith exercise of its
business judgment, and has delivered to Holder written
certification to the effect, that such registration and offering
would materially and adversely interfere with a bona
fide financing transaction of the Company, including without
limitation a primary offering of securities, or any other material
business transaction of the Company, or would require disclosure of
information, the premature disclosure of which would materially and
adversely affect the Company. If the Company postpones the filing
of a Registration Statement, it will promptly notify Holder in
writing when the events or circumstances permitting such
postponement have ended.
Section 3. Piggyback Registration
and Form S-3 or F-3 Registration .
(a) Right to Piggyback . If,
at any time following the Closing Date, the Company proposes to
file a Registration Statement, whether or not for sale for the
Company’s own account or for the account of a shareholder of
the Company, on a form and in a manner that would also permit
registration, offer or sale of Registrable Securities (other than
the initial public offering of the capital stock of the Company and
other than in connection with a registration statement on Forms S-4
or F-4 or S-8 or any similar or successor form), the Company shall
each such time give to Holder holding Registrable Securities
written notice of such proposed filing at least 20 days before the
anticipated filing. The notice referred to in the preceding
sentence shall (i) describe the proposed registration and offering
and (ii) offer Holder the opportunity to register, offer or sell
such amount of Registrable Securities as Holder may request (a
“ Piggyback Registration ”). Subject to Section
3(b), the Company will include in each such Piggyback Registration
(and any related qualification under state blue sky laws and other
compliance filings, and in any underwriting involved therein) all
Registrable Securities with respect to which the Company has
received written requests for inclusion therein within 10 days
after the written notice from the Company is given. Holder will be
permitted, subject to its compliance with the provisions of Section
2(a) relating to reimbursement of the Company’s expenses, to
withdraw all or part of its Registrable Securities from a Piggyback
Registration at any time prior to the effective date of such
Piggyback Registration.
(b) Priority on Piggyback
Registrations . The Company will cause the managing underwriter
or underwriters of a proposed Underwritten Offering to permit
Holder, if holding Registrable Securities requested to be included
in the registration for such offering, to include therein all such
Registrable Securities requested to be so included (such
securities, together with any other shares of the same class
requested to be included in such registration by any other Person
pursuant to similar registration rights, the “ Piggyback
Shares ”) on the same terms and
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conditions as any securities of the Company
included therein (other than the indemnification by Holder, which
will be limited as set forth in Section 6(b) hereof and
provided , that Holder gives customary representations and
warranties). The Company shall cooperate with Holder in order to
limit any representations and warranties to, or agreements with,
the Company or the underwriters to be made by Holder only to those
representations, warranties or agreements regarding Holder,
Holder’s Registrable Securities and Holder’s intended
method of distribution and any other representation required by
law. Notwithstanding the foregoing, if the managing underwriter or
underwriters of such Underwritten Offering advises Holder in
writing to the effect that the total amount of securities that
Holder, the Company and any other Person propose to include in such
Underwritten Offering is such as to materially and adversely affect
the success of such offering, then the Company will include in such
registration:
(x) in the case of a registration in
connection with a sale of securities for the Company’s own
account, (i) first, 100% of the securities that the Company
proposes to sell for its own account, (ii) second, to the extent
that the number of securities in clause (i) above is less than the
number of securities which the Company has been advised can be sold
in such offering without having the adverse effect referred to
above, the number of Piggyback Shares of Holder requested to be
included in such offering, and (iii) third, to the extent that the
number of securities in clauses (i) and (ii) above is less than the
number of securities which the Company has been advised can be sold
in such offering without having the adverse effect referred to
above, the number of Piggyback Shares requested to be included in
such offering by any other Persons pursuant to similar registration
rights, determined pro rata on the basis of the
number of shares of the class being sold owned by such other
Persons requesting registration, collectively; and
(y) in the case of a registration in
connection with a sale of securities on account of any Person other
than the Company or Purchaser (the “ Initiating Party
”), (i) first, 100% of the securities, if any, that the
Initiating Party proposes to sell, (ii) second, to the extent that
the number of securities in clause (i) above is less than the
number of securities which the Company has been advised can be sold
in such offering without having the adverse effect referred to
above, the number of Piggyback Shares of Holder requested to be
included in such offering, (iii) third, to the extent that the
number of securities in clauses (i) and (ii) above is less than the
number of securities which the Company has been advised can be sold
in such offering without having the adverse effect referred to
above, the number of Piggyback Shares requested to be included in
such offering by any other Persons pursuant to similar registration
rights, determined pro rata on the basis of the
number of shares of the class being sold owned by such other
Persons requesting registration, collectively, and (iv) fourth, to
the extent that the number of securities in clauses (i) through
(iii) above is less than the number of securities which the Company
has been advised can be sold in such offering without having the
adverse effect referred to above, the securities sought to be
included by the Company in the offering.
(c) Form S-3 or F-3
Registration . At any time after the Company becomes eligible
to use Form S-3 or F-3 (or any successor form then in effect),
Holder may make a written request that the Company effect a
registration on Form S-3 or F-3 (or any successor form then in
effect) and any related qualification or compliance with respect to
all or a part of the Registrable Securities owned by Holder, and
the Company will use its reasonable best efforts to
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effect such registration and all such
qualifications and compliances as may be so requested and as would
permit or facilitate the sale and distribution of all or such
portion of Holder’s Registrable Securities as are specified
in such request; provided , however , that the
Company shall not be obligated to effect any such registration,
qualification or compliance, pursuant to this Section 3(c): (i) if
Form S-3 or F-3 (or any successor form then in effect), is not
available for such offering by Holder; (ii) if Holder, together
with the holders of any other securities of the Company entitled to
inclusion in such registration, propose to sell Registrable
Securities and such other securities (if any) at an aggregate price
to the public (net of any underwriters’ discounts or
commissions) of less than $25,000,000; (iii) if the Board of
Directors of the Company determines, in the good faith exercise of
its business judgment, and has delivered to Holder written
certification to the effect, that such registration and offering
would materially and adversely interfere with a bona
fide financing transaction of the Company, including any
material business transaction of the Company, or would require
disclosure of information, the premature disclosure of which would
materially and adversely affect the Company, in which event the
Company shall have the right to defer the filing of the Form S-3 or
F-3 Registration Statement for a period of not more than 120
calendar days after receipt of the request of Holder under this
Section 3(c); provided , however , that if the
Company postpones the filing of a Form S-3 or F-3 Registration
Statement, it will promptly notify Holder in writing when the
events or circumstances permitting such postponement have ended;
and provided , further , that the Company will be
entitled to utilize this right on no more than one occasion in any
12-month period. An underwritten registration on Form S-3 or F-3
effected pursuant to this Section 3(c) shall be counted as a Demand
Registration for purposes of determining the number of Demand
Registrations granted under Section 2. Any other registration under
this Section 3 shall not count as a Demand Registration.
Section 4. Registration
Procedures . In connection with the Company’s
registration obligations pursuant to Sections 2 and 3, the Company
will effect such registrations to permit the sale of such Transfer
Restricted Securities in accordance with the intended method or
methods of disposition thereof, and pursuant thereto the Company
will as expeditiously as possible, and in each case to the extent
applicable:
(a) Prepare and file with the SEC a
Registration Statement or Registration Statements on any
appropriate form under the Securities Act available for the sale of
the Registrable Securities by the holders thereof in accordance
with the intended method or methods of distribution thereof, and
cause each such Registration Statement to become effective and
remain effective as provided herein; provided ,
however , that (i) before filing a Registration Statement or
Prospectus or any amendments or supplements thereto (including
documents that would be incorporated or deemed to be incorporated
therein by reference) the Company will furnish to Holder holding
Registrable Securities covered by such Registration Statement, not
more than one counsel chosen by Holder (“ Special
Counsel ”) and the managing underwriters, if any, copies
of all such documents proposed to be filed, which documents will be
subject to the review and comment of Holder, such Special Counsel
and such underwriters, and the Company will not file any such
Registration Statement or amendment thereto or any Prospectus or
any supplement thereto (excluding such documents that, upon filing,
will be incorporated or deemed to be incorporated by reference
therein) to which Holder or the managing underwriter, if any, shall
reasonably object, and (ii) the Company shall notify the Special
Counsel and each seller of Registrable Securities of any stop order
issued or threatened by the SEC and take all action required to
prevent the entry of such stop order or to remove it if
entered.
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(b) Prepare and file with the SEC
such amendments and post-effective amendments to each Registration
Statement as may be necessary to keep such Registration Statement
continuously effective for the applicable periods specified in
Section 2; cause the related Prospectus to be supplemented by any
required Prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 (or any similar