EX-5 2 dex5.htm OPINION OF APPLEBY SPURLING HUNTER Opinion of Appleby Spurling Hunter

Exhibit 5

 

OPINION OF APPLEBY SPURLING HUNTER

 

3 December 2004

 

Global Crossing Limited

Wessex House

45 Reid Street

Hamilton HM 12

Bermuda

 

Dear Sirs

 

Global Crossing Limited (the “Company”)

 

We have acted as legal counsel in Bermuda to the Company and this opinion is addressed to you in connection with the filing by the Company with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”), of a registration statement on Form S-8 (the “Registration Statement”) in relation to 4,878,261 common shares of the Company of par value US$ 0.01 each (the “Common Stock”) which may be issued in accordance with the 2003 Global Crossing Limited Stock Incentive Plan (the “Plan”).

 

For the purposes of this opinion we have examined and relied upon the documents listed, and in some cases defined, in the Schedule to this opinion (the “Documents”) together with such other documentation as we have considered requisite to this opinion. Unless otherwise defined herein, capitalised terms have the meanings assigned to them in the Plan.

 

Assumptions

 

In stating our opinion we have assumed:

 

(a) the authenticity, accuracy and completeness of all Documents and other documentation examined by us submitted to us as originals and the conformity to authentic original documents of all Documents and other such documentation submitted to us as certified, conformed, notarised, faxed or photostatic copies;

 

(b) that each of the Documents and other such documentation which was received by electronic means is complete, intact and in conformity with the transmission as sent;


(c) the genuineness of all signatures on the Documents;

 

(d) the authority, capacity and power of each of the persons signing the Documents (other than the Company in respect of the Plan);

 

(e) that any representation, warranty or statement of fact or law, other than as to the laws of Bermuda, made in any of the Documents is true, accurate and complete;

 

(f) that the Plan constitutes and any Awards given pursuant to the terms of the Plan will constitute the legal, valid and binding obligations of each of the parties thereto, other than the Company;

 

(g) that the Plan will effect, and will constitute legal, valid and binding obligations of each of the parties thereto, enforceable in accordance with its terms, under the laws of the state of New York by which it is expressed to be governed;

 

(h) that the Plan is in the proper legal form to be admissible in evidence and enforced in the courts of state of New York and in accordance with the laws of the state of New York;

 

(i) that there are no provisions of the laws or regulations of any jurisdiction other than Bermuda which would be contravened by the execution or delivery of the Plan or which would have any implication in relation to the opinion expressed herein and that, in so far as any obligation under, or action to be taken under, the Plan is required to be performed or taken in any jurisdiction outside Bermuda, the performance of such obligation or the taking of such action will constitute a valid and binding obligation of each of the parties thereto under that jurisdiction and will not be illegal by virtue of the laws of that jurisdiction;

 

(j) that the records which were the subject of the Company Search were complete and accurate at the time of such search and disclosed all information which is material for the purposes of this opinion and such information has not since the date of the Company Search been materially altered;

 

(k) that the records which were the subject of the Litigation Search were complete and accurate at the time of such search and disclosed all information which is material for the purposes of this opinion and such information has not since the date of the Litigation Search been materially altered;

 

(l) that the Resolutions are in full force and effect, have not been rescinded, either in whole or in part, and accurately record the resolutions adopted by all the Directors of the


Company as unanimous written resolutions of the Board and that there is no matter affecting the authority of the Directors to effect entry by the Company into the Plan, not disclosed by the Constitutional Documents or the Resolutions, which would have any adverse implication in relation to the opinions expressed herein;

 

(m) that the Company has entered into its obligations under the Plan in good faith for the purpose of carrying on its business and that, at the time it did so, there were reasonable grounds for believing that the transactions contemplated by the Plan would benefit the Company;

 

(n) that the Company has sufficient authorised common stock to satisfy the requirements of the Plan;

 

(o) that when the Common Stock is issued in accordance with the terms of the Plan the issue price (in whatever form) will not be less than the par value of the Common Stock;

 

(p) that at the time of issue of any Awards, or of any Common Stock pursuant to the exercise of any Awards, the Committee remains a duly constituted committee of the board of directors of the Company having the same powers and authorities as it has at the date of this opinion;

 

(q) that the approval of the issue of any Awards and of any Common Stock under the Awards pursuant to the Plan, is made at a duly convened and quorate meeting of the Committee in a manner complying with the terms of its constitution therein in force and the Constitutional Documents and within the authority then given to the Committee by the board of directors of the Company;

 

(r) that, if upon the exercise of an Option the new Common Stock is paid for as envisioned by Sections 6(c)(i) and 6(c)(ii) of the Plan, the provisions of Section 42A of the Companies Act 1981 of Bermuda will have been satisfied; and

 

(s) that the amendments made to the Plan by the Company’s Board of Directors on 7 April 2004 subject to shareholder approval, will be approved by the requisite shareholder vote at the Company’s duly convened and quorate 2004 Annual General Meeting of Shareholders scheduled to take place on 15 December 2004.

 

Opinion

 

Based upon and subject to the foregoing and subject to the reservations set out below and to any matters not disclosed to us, we are of the opinion that when issued and when fully paid for pursuant to and in accordance with the terms of the Plan and the Resolutions and as contemplated by the Registration Statement, the Common Stock will be validly issued, fully paid, non-assessable shares of the Company.


Reservations

 

We have the following reservations:

 

(a) The term “enforceable” as used in this opinion means that there is a way of ensuring that each party performs an agreement or that there are remedies available for breach.

 

(b) Any reference in this opinion to shares being “non-assessable” shall mean, in relation to fully-paid shares of the Company and subject to any contrary provision in any agreement in writing between such company and the holder of shares, that no shareholder shall be obliged to contribute further amounts to the capital of the Company, either in order to complete payment for their shares, to satisfy claims of creditors of the Company, or otherwise; and no shareholder shall be bound by an alteration of the Memorandum of Association or Bye-laws of the Company after the date on which he become a shareholder, if and so far as the alteration requires him to take, or subscribe for additional shares, or in any way increases his liability to contribute to the share capital of, or otherwise to pay money to, the Company.

 

(c) Enforcement of the obligations of the Company may be the subject of a statutory limitation of the time within which such proceedings may be brought.

 

(d) We express no opinion as to any law other than Bermuda law and none of the opinions expressed herein relates to compliance with or matters governed by the laws of any jurisdiction except Bermuda. This opinion is limited to Bermuda law as applied by the Courts of Bermuda at the date hereof.

 

(e) Where an obligation is to be performed in a jurisdiction other than Bermuda, the courts of Bermuda may refuse to enforce it to the extent that such performance would be illegal under the laws of, or contrary to public policy of, such other jurisdiction.

 

(f) We express no opinion as to the validity, binding effect or enforceability of any provision incorporated into any of the Plan by reference to a law other than that of Bermuda, or as to the availability in Bermuda of remedies which are available in other jurisdictions.

 

(g) Where a person is vested with a discretion or may determine a matter in his or its opinion, such discretion may have to be exercised reasonably or such an opinion may have to be based on reasonable grounds.


(h) We express no opinion as to the validity or binding effect of any provision of the Plan which provides for the severance of illegal, invalid or unenforceable provisions.

 

(i) A Bermuda court may refuse to give effect to any provisions of the Plan in respect of costs of unsuccessful litigation brought before the Bermuda court or where that court has itself made an order for costs.

 

(j) Searches of the Register of Companies at the office of the Registrar of Companies and of the Supreme Court Causes Book at the Registry of the Supreme Court are not conclusive and it should be noted that the Register of Companies and the Supreme Court Causes Book do not reveal:

 

  (i) details of matters which have been lodged for filing or registration which as a matter of best practice of the Registrar of Companies or the Registry of the Supreme Court would have or should have been disclosed on the public file, the Causes Book or the Judgment Book, as the case may be, but for whatever reason have not actually been filed or registered or are not disclosed or which, notwithstanding filing or registration, at the date and time the search is concluded are for whatever reason not disclosed or do not appear on the public file, the Causes Book or Judgment Book;

 

  (ii) details of matters which should have been lodged for filing or registration at the Registrar of Companies or the Registry of the Supreme Court but have not been lodged for filing or registration at the date the search is concluded;

 

  (iii) whether an application to the Supreme Court for a winding-up petition or for the appointment of a receiver or manager has been prepared but not yet been presented or has been presented but does not appear in the Causes Book at the date and time the search is concluded;

 

  (iv) whether any arbitration or administrative proceedings are pending or whether any proceedings are threatened, or whether any arbitrator has been appointed; or

 

  (v) whether a receiver or manager has been appointed privately pursuant to the provisions of a debenture or other security, unless notice of the fact has been entered in the Register of Charges in accordance with the provisions of the Act.

 

Furthermore, in the absence of a statutorily defined system for the registration of charges created by companies incorporated outside Bermuda (“overseas companies”) over their assets located in Bermuda, it is not possible to determine definitively from searches of the Register of Charges maintained by the Registrar of Companies in respect of such overseas companies what charges have been registered over any of their assets located in Bermuda or whether any one charge has priority over any other charge over such assets.


(k) In order to issue this opinion we have carried out the Company Search as referred to in the Schedule to this opinion and have not enquired as to whether there has been any change since the date and time of such search.

 

(l) In order to issue this opinion we have carried out the Litigation Search as referred to in the Schedule to this opinion and have not enquired as to whether there has been any change since the date and time of such search.

 

(m) We have relied upon statements and representations made to us in the Certificate provided to us by the Secretary of the Company for the purposes of this opinion. We have made no independent verification of the matters referred to in the Certificate, and we qualify such opinion to the extent that the statements or representations made in the Certificate are not accurate in any respect.

 

Disclosure

 

This opinion is addressed to you solely for your benefit in connection with the Registration Statement and is neither to be transmitted to any other person, nor relied upon by any other person or for any other purpose nor quoted or referred to in any public document nor filed with any governmental agency or person, without our prior written consent, except as may be required by law or regulatory authority. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving such consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules and regulations of the Securities and Exchange Commission Promulgated thereunder.

 

Further, this opinion speaks as of its date and is strictly limited to the matters stated herein and we assume no obligation to review or update this opinion if applicable law or the existing facts or circumstances should change.

 

This opinion is governed by and is to be construed in accordance with Bermuda law. It is given on the basis that it will not give rise to any legal proceedings with respect thereto in any jurisdiction other than Bermuda.

 

Yours faithfully

 

/s/ APPLEBY SPURLING HUNTER


SCHEDULE

 

1. The entries and filings shown in respect of the Company on the file of the Company maintained in the Register of Companies at office of the Registrar of Companies in Hamilton, Bermuda, as revealed by a search on 1 December 2004 at 11:59 a.m. Bermuda Time (the “Company Search”).

 

2. The entries and filings shown in respect of the Company in the Supreme Court Causes Book maintained at the Registry of the Supreme Court in Hamilton, Bermuda, as revealed by a search on 1 December 2004 at 10:45 a.m. Bermuda Time in respect of the Company (the “Litigation Search”).

 

3. Certified copies of the Certificate of Incorporation, Certificate of Incorporation on Change of Name, Certificate of Registration of Altered Memorandum of Association, Certificate of Deposit of Memorandum of Increase of Share Capital and Bye-Laws adopted 8 December 2003 for the Company (collectively referred to as the “Constitutional Documents”).

 

4. Pdf copies of the:

 

  4.1 Unanimous written resolutions of the Board of Directors of the Company effective 8 December 2003 approving the Plan;

 

  4.2 Excerpt from the Minutes of the Meeting of the Board of Directors of the Company held on 7 April 2004 amending the Plan subject to shareholder approval at the Company’s 2004 Annual General Meeting of Shareholders; and

 

  4.3 Written Resolution of the Company’s Sole Shareholder dated 8 December 2003 approving the Plan

 

  (the documents referred to in 4.1, 4.2 and 4.3 above shall be collectively referred to as the “Resolutions”).

 

5. A pdf copy of the Plan adopted by the Board of Directors of the Company on 8 December 2003.

 

6. A pdf copy of a Secretary’s Certificate dated 24 November 2004 issued by Mitchell C. Sussis, attaching the documents referred to in 4.1 and 4.2 above and the Plan referred to in 5 above and received by e-mail on 24 November 2004 at 2:37 p.m. Bermuda Time (the “Certificate”).


7. Certificate of Incumbency in respect of the Company dated 24 November 2004.

 

8. A copy of the Registration Statement on Form S-8 in relation to the Common Stock which may be issued in accordance with the Plan received by e-mail on 2 December at 10:56 p.m. Bermuda Time (excluding the exhibits and excluding the documents incorporated by reference therein).