<PAGE>
As filed with the Securities and Exchange Commission on December 3, 1999
Registration No. 333-88799
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
AMENDMENT NO. 2
To
FORM S-1
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
---------------
Infonet Services Corporation
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Delaware 7374 95-4148675
(State or Other Jurisdiction
of (Primary Standard Industrial (I.R.S. Employer
Incorporation or
Organization) Classification Code Number) Identification Number)
</TABLE>
2160 East Grand Avenue
El Segundo, California 90245-1022
(310) 335-2600
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
---------------
Ernest U. Gambaro, Esq.
Senior Vice President, General Counsel and Secretary
Infonet Services Corporation
2160 East Grand Avenue
El Segundo, California 90245-1022
(310) 335-2600
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
<TABLE>
<S> <C>
William J. Cernius, Esq. Rise B. Norman, Esq.
Paul A. Galleberg, Esq. Simpson Thacher & Bartlett
Latham & Watkins 425 Lexington Avenue
650 Town Center Drive, 20th Floor New York, New York 10017-3954
Costa Mesa, California 92626-1925 (212) 455-2000
(714) 540-1235
</TABLE>
---------------
Approximate date of commencement of proposed sale to the public: As soon as
practicable after this Registration Statement is declared effective.
[If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [_]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
check the following box. [_]
The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution
The following table sets forth the costs and expenses, other than the
underwriting discount, payable by the Registrant in connection with the sale of
the Class B common stock being registered. All amounts are estimates except the
SEC registration fee, the NASD filing fee and The New York Stock Exchange
listing fee.
<TABLE>
<CAPTION>
Amount to
Be Paid
----------
<S> <C>
SEC Registration Fee........................................... $ 319,700
NASD Filing Fee................................................ 30,500
New York Stock Exchange Listing Fee............................ 500,000
Frankfurt Stock Exchange Listing Fee........................... 300,000
Legal Fees and Expenses........................................ 600,000
Accounting Fees and Expenses................................... 1,400,000
Printing and Engraving......................................... 350,000
Blue Sky Fees and Expenses (including Legal Fees).............. 5,000
Transfer Agent Fees............................................ 25,000
Miscellaneous.................................................. 47,300
----------
Total........................................................ $3,577,500
==========
</TABLE>
Item 14. Indemnification of Directors and Officers
The Registrant's Restated Certificate of Incorporation in effect as of
the date hereof, and the Registrant's Second Amended and Restated Certificate
of Incorporation to be in effect upon the closing of this offering
(collectively, the "Certificate") provides that, except to the extent
prohibited by the Delaware General Corporation Law, as amended (the "DGCL"),
the Registrant's directors shall not be personally liable to the Registrant or
its stockholders for monetary damages for any breach of fiduciary duty as
directors of the Registrant. Under the DGCL, the directors have a fiduciary
duty to the Registrant which is not eliminated by this provision of the
Certificate and, in appropriate circumstances, equitable remedies such as
injunctive or other forms of nonmonetary relief will remain available. In
addition, each director will continue to be subject to liability under the DGCL
for breach of the director's duty of loyalty to the Registrant, for acts or
omissions which are found by a court of competent jurisdiction to be not in
good faith or involving intentional misconduct, for knowing violations of law,
for actions leading to improper personal benefit to the director, and for
payment of dividends or approval of stock repurchases or redemptions that are
prohibited by the DGCL. This provision also does not affect the directors'
responsibilities under any other laws, such as the Federal securities laws or
state or Federal environmental laws. The Registrant has applied for liability
insurance for its officers and directors.
Section 145 of the DGCL empowers a corporation to indemnify its directors
and officers and to purchase insurance with respect to liability arising out of
their capacity or status as directors and officers, provided that this
provision shall not eliminate or limit the liability of a director: (i) for any
breach of the director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) arising under
Section 174 of the DGCL, or (iv) for any transaction from which the director
derived an improper personal benefit. The DGCL provides further that the
indemnification permitted thereunder shall not be deemed exclusive of any other
rights to which the directors and officers may be entitled under the
corporation's bylaws, any agreement, a vote of stockholders or otherwise. The
Certificate eliminates the personal liability of directors to the fullest
extent permitted by Section 102(b)(7) of the DGCL and provides that the
Registrant may fully indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding (whether civil, criminal, administrative or investigative)
by reason of the fact that such person is
II-1
<PAGE>
or was a director or officer of the Registrant, or is or was serving at the
request of the Registrant as a director or officer of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by such person in connection
with such action, suit or proceeding.
At present, there is no pending litigation or proceeding involving any
director, officer, employee or agent as to which indemnification will be
required or permitted under the Certificate. The Registrant is not aware of any
threatened litigation or proceeding that may result in a claim for such
indemnification.
Item 15. Recent Sales of Unregistered Securities
Pursuant to Rule 701 of the Act, in April 1999, we sold 9,444,513 shares
of our Class C common stock to our key employees pursuant to our 1998 Stock
Purchase Plan. In accordance with the provisions of the Stock Purchase Plan,
some employees purchased their shares for cash and other employees received
their shares in exchange for a secured, recourse promissory note held by us.
Part of the security for the promissory notes are the shares sold to each
purchaser. Each share was sold for $0.84, which price was set by the pricing
formula at the time of the sales. Immediately prior to the closing of this
offering, our Class C common stock will be converted to Class B common stock.
During the three months ended September 30, 1999, in exchange for the
right to market our services to their clients and $40.0 million in cash, we
issued an aggregate of 47.84 million shares of our Class B common stock to KPN,
Swisscom and Telia in reliance on Rule 506 of Regulation D under the Act.
In reliance on Rule 506 of Regulation D of the Act, in November 1996, we
sold an aggregate of 28,918,383 shares of our Class B common stock to KDD, KPN,
Swisscom, Telefonica and Telia for approximately $19.0 million. Part of the
proceeds of the sale were used to repurchase our Class A common stock from
Belgacom S.A. As a result of this transaction, Belgacom was no longer one of
our stockholders.
Item 16. Exhibits and Financial Statement Schedules
(a) Exhibits.
<TABLE>
<CAPTION>
Number Description
------ -----------
<C> <S>
1.1 Form of Purchase Agreement*
3.1 Form of Restated Certificate of Incorporation to be in effect upon the
closing of this offering**
3.2 Form of Amended and Restated Bylaws to be in effect upon the closing of
this offering**
4.1 Specimen Common Stock certificate*
5.1 Opinion of Latham & Watkins
9.1 Form of Amended and Restated Stockholders Agreement to be in effect
upon the closing of this offering
10.1 1998 Stock Option Plan#
10.2 1998 Stock Purchase Plan#
10.3 1999 Stock Option Plan*
10.4 Infonet Deferred Income Plan#
10.5 1998 Stock Appreciation Rights Plan#
10.6 Supplemental Executive Retirement Plan
10.7 Senior Secured Credit Agreement, dated as of August 17, 1999#
10.8 Employment Agreement of Jose A. Collazo
10.9 Employment Agreement of Dr. Ernest U. Gambaro
10.10 Standard Infonet Services Agreement#
10.11 Capacity Right of Use Agreement with FLAG Limited dated as of June 25,
1999#
10.12 AUCS Services Agreement, dated as of September 30, 1999#
10.13 AUCS Call Option Deed, dated as of September 30, 1999#
</TABLE>
II-2
<PAGE>
<TABLE>
<C> <S>
10.14 AUCS Management Agreement, dated as of September 30, 1999#
10.15 AUCS Assignment Agreement, dated as of September 30, 1999#
10.16 Lease for Grand Avenue Corporate Center at 2160 Grand Avenue, El Segundo
California
10.17 Employment Agreement of Mr. Akbar Firdosy
21.1 List of Subsidiaries
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Latham & Watkins (included in Exhibit 5.1)
24.1 Powers of Attorney#
27.1 Financial Data Schedule#
99.1 Schedule II--Valuation and Qualifying Accounts
</TABLE>
- --------
* To be supplied by amendment.
+ Confidential treatment was requested with respect to certain portions of
this exhibit. Omitted portions were filed separately with the SEC.
# Previously filed.
** Amends previously filed exhibit.
(b) Financial Statement Schedules.
Schedule II--Valuation and Qualifying Accounts, filed as Exhibit 99.1.
All other schedules are omitted because they are not required, are not
applicable or the information is included in our financial statements or the
related notes to those financial statements.
Item 17. Undertakings
The undersigned Registrant hereby undertakes to provide to the
Underwriter at the closing specified in the Purchase Agreement, certificates in
such denominations and registered in such names as required by the Underwriter
to permit prompt delivery to each purchaser.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended (the "Act") may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the SEC such
indemnification is against public policy as expressed in the Act, and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication
of such issue.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Act, the
information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained
in a form of prospectus filed by the registrant pursuant to Rule 424
(b)(1) or (4), or 497(h) under the Act, shall be deemed to be part
of this registration statement as of the time it was declared
effective.
(2) For the purpose of determining any liability under the Act, each
post-effective amendment that contains a form of prospectus shall be
deemed to be a new registration statement relating to the securities
offered therein, and this offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Act, the Registrant has duly caused
this Amendment No. 1 to the Registration Statement to be signed on its behalf
by the undersigned, thereunto duly authorized in the City of El Segundo, State
of California, on this 3rd day of December, 1999.
INFONET SERVICES CORPORATION
/s/ Jose A. Collazo
By: _________________________________
Jose A. Collazo
President and Chairman of the
Board of Directors
Pursuant to the requirements of the Act, this Amendment No. 1 to the
Registration Statement has been signed by the following persons on December 3,
1999, in the capacities indicated:
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
* /s/ Jose A. Collazo
__________________________________________ President and Chairman of the Board of
Jose A. Collazo Directors (Principal Executive Officer)
* /s/ Akbar H. Firdosy
__________________________________________ Chief Financial Officer (Principal
Akbar H. Firdosy Financial and Accounting Officer)
* /s/ Douglas Campbell
__________________________________________
Douglas Campbell Director
* /s/ Eric M. de Jong
__________________________________________
Eric M. de Jong Director
* /s/ Morgan Ekberg
__________________________________________
Morgan Ekberg Director
* /s/ Masao Kojima
__________________________________________
Masao Kojima Director
* /s/ Joseph Nancoz
__________________________________________
Joseph Nancoz Director
* /s/ Rafael Sagrario
__________________________________________
</TABLE> Rafael Sagrario Director
/s/ Jose A. Collazo
*By: __________________________
Jose A. Collazo
Attorney-in-Fact
S-1
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Number Description
------ -----------
<C> <S>
1.1 Form of Purchase Agreement*
3.1 Form of Restated Certificate of Incorporation to be in effect upon the
closing of this offering**
3.2 Form of Amended and Restated Bylaws to be in effect upon the closing of
this offering**
4.1 Specimen Common Stock certificate*
5.1 Opinion of Latham & Watkins
9.1 Form of Amended and Restated Stockholders Agreement to be in effect
upon the closing of this offering
10.1 1998 Stock Option Plan#
10.2 1998 Stock Purchase Plan#
10.3 1999 Stock Option Plan*
10.4 Infonet Deferred Income Plan#
10.5 1998 Stock Appreciation Rights Plan#
10.6 Supplemental Executive Retirement Plan
10.7 Senior Secured Credit Agreement, dated as of August 17, 1999#
10.8 Employment Agreement of Jose A. Collazo
10.9 Employment Agreement of Dr. Ernest U. Gambaro
10.10 Standard Infonet Services Agreement#
10.11 Capacity Right of Use Agreement with FLAG Limited dated as of June 25,
1999+#
10.12 AUCS Services Agreement, dated as of September 30, 1999#
10.13 AUCS Call Option Deed, dated as of September 30, 1999#
10.14 AUCS Management Agreement, dated as of September 30, 1999#
10.15 AUCS Assignment Agreement, dated as of September 30, 1999#
10.16 Lease for Grand Avenue Corporate Center at 2160 Grand Avenue, El
Segundo California
10.17 Employment Agreement of Mr. Akbar Firdosy
21.1 List of Subsidiaries
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Latham & Watkins (included in Exhibit 5.1)
24.1 Powers of Attorney#
27.1 Financial Data Schedule#
99.1 Schedule II--Valuation and Qualifying Accounts
</TABLE>
- --------
* To be supplied by amendment.
+ Confidential treatment was requested with respect to certain portions of
this exhibit. Omitted portions were filed separately with the SEC.
# Previously filed.
** Amends previously filed exhibit.
<PAGE>
EXHIBIT 3.1
RESTATED CERTIFICATE OF INCORPORATION
OF
INFONET SERVICES CORPORATION
(originally incorporated as:
INTERNATIONAL INFORMATION NETWORK SERVICES, INC.
on March 8, 1988)
Article I
---------
The name of the Corporation is:
INFONET SERVICES CORPORATION
(hereinafter the "Corporation").
Article II
----------
The address of its registered office in the State of Delaware is 1013 Centre
Road, in the City of Wilmington, County of New Castle. The name of its
registered agent at such address is United States Corporation Company.
Article III
-----------
The nature of the business or purposes to be conducted or promoted is to
engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of the State of Delaware.
Article IV
----------
(i) The total number of shares of stock which the Corporation shall have
authority to
1
<PAGE>
issue is one billion thirty million (1,030,000,000), consisting of:
(A) Four Hundred Million (400,000,000) shares of Class A Stock, par
value $.01 per share;
(B) Six Hundred Million (600,000,000) shares of Class B Stock, par
value $.01 per share; and
(C) Thirty Million (30,000,000) shares of Class C Stock, par value
$.01 per share.
(ii) Upon the effectiveness of this Restated Certificate of Incorporation:
each one (1) share of Class A Stock issued and outstanding immediately prior
thereto shall be subdivided and changed, without any action on the part of the
holder thereof, into 29,900 shares of Class A Stock with a par value of $.01 per
share; each one (1) share of Class B Stock issued and outstanding immediately
prior thereto shall be subdivided and changed, without any action on the part of
the holder thereof, into 29,900 shares of Class B Stock with a par value of $.01
per share; and each one (1) share of Class C Stock issued and outstanding
immediately prior thereto shall be subdivided and changed, without any action on
the part of the holder thereof, into 29,900 shares of Class C Stock with a par
value of $.01 per share.
(iii) Subject to the terms hereof, the capital stock of the Corporation
may be issued by the Corporation from time to time for such consideration as may
be fixed from time to time by the Board of Directors. The Corporation shall
have the power to issue fractions of shares of its capital stock.
(iv) The powers, preferences and rights of each class of stock and the
qualifications, limitations and restrictions thereof are as follows:
2
<PAGE>
(A) Each share of Class A Stock, Class B Stock and Class C Stock shall be
identical in all respects and shall have equal powers, preferences,
rights and privileges except as otherwise provided in this Restated
Certificate of Incorporation.
(B) Except as otherwise required by law or pursuant to this Restated
Certificate of Incorporation, the holders of Class A Stock and the
holders of Class B Stock shall vote together as a single class on all
matters to be voted on by the stockholders of the Corporation, with
the holders of Class A Stock entitled to ten (10) votes, in person or
by proxy, for each share of Class A Stock standing in such holder's
name on the books of the Corporation, and the holders of Class B Stock
entitled to one (1) vote, in person or by proxy, for each share of
Class B Stock standing in such holder's name on the books of the
Corporation.
(C) The holders of Class A Stock, Class B Stock and Class C Stock shall be
entitled to receive, on an equal, pro rata basis any dividend, other
than a dividend of capital stock of the Corporation, to be declared
and paid on the shares of Class A Stock, Class B Stock and Class C
Stock.
(D) The holders of Class C Stock shall not be entitled to any notice of
stockholders' meetings or to vote upon the election of directors or
upon any other matter.
(v) Upon the closing of an underwritten initial public offering by the
Corporation or its successor in interest after which a class of stock of the
Corporation (or any successor security) is admitted for quotation on the Nasdaq
National Market (or any successor thereto) or listed on a national securities
exchange (a "Qualified IPO"), each outstanding share of Class C Stock shall be
automatically converted into one share of such class of stock of the Corporation
3
<PAGE>
approved for quotation or listing (the "Public Stock") without any action by the
holder thereof. Promptly upon and after the closing of a Qualified IPO, the
Corporation will, upon delivery to the Corporation by a holder of shares of
Class C Stock of the certificate or certificates representing such shares,
deliver a replacement certificate or certificates representing a like number of
shares of Public Stock. Unless and until a Qualified IPO occurs, no holder of
Class C Stock shall have any right to convert such shares into any other class
of the Corporation's stock. The Corporation shall not issue, and the Board of
Directors shall be forever prohibited from reserving for issuance or issuing,
any further shares of Class C Stock at any time following the closing of a
Qualified IPO.
Article V
---------
(i) Conversion of Class A Stock. Any share of Class A Stock may, at
---------------------------
the option of the holder thereof, be converted at any time into a share of Class
B Stock. Any share of Class A Stock transferred in violation of the terms of the
stockholders' agreement dated as of the date of effectiveness of this Restated
Certificate of Incorporation entered into among the holders of Class A Stock
(the "Stockholders' Agreement") shall automatically convert, without any action
on the part of the holder thereof or the purported transferee, into a share of
Class B Stock at a ratio of one share of Class A Stock for each share of Class B
Stock received.
(ii) No Public Market for Class A Stock. The Corporation shall have no
----------------------------------
power or authority to authorize or permit any share of Class A Stock to be (a)
admitted for quotation on the Nasdaq National Market (or any successor thereto)
or any similar body in any jurisdiction, (b) listed on a securities exchange in
any jurisdiction or (c) registered under the United States Securities Act of
1933, as amended, or any similar legislation in any jurisdiction.
4
<PAGE>
(iii) Stock Splits and Dividends. The Corporation shall not in any manner
--------------------------
subdivide or combine the outstanding shares of the Class A Stock or the Class B
Stock, without proportionately subdividing or combining the outstanding shares
of such other class of stock. No dividend consisting of capital stock of the
Corporation shall be declared and paid on the Class A Stock unless such dividend
is first approved by the holders of at least a majority of the outstanding
shares of the Class B Stock, voting separately as a class. No dividend
consisting of capital stock of the Corporation other than Class B Stock shall be
declared and paid on the Class B Stock unless such dividend is first approved by
the holders of at least a majority of the outstanding shares of the Class A
Stock, voting separately as a class.
(iv) New Class A Stock. The Corporation shall not issue any further
-----------------
Class A Stock unless such issuance is first approved by the holders of at least
a majority of the outstanding shares of Class B Stock, voting separately as a
class.
Article VI
----------
The following provisions are inserted for the management of the business and
the conduct of the affairs of the Corporation, and for further definition,
limitation and regulation of the powers of the Corporation and of its directors
and stockholders:
(i) The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors. In addition to the powers and
authority expressly conferred upon them by statute or this Restated Certificate
of Incorporation or the bylaws of the Corporation, the directors are hereby
empowered to exercise all such powers and do all such acts and things as may be
exercised or done by the Corporation that are not otherwise required to be
exercised by the Corporation's stockholders.
5
<PAGE>
(ii) The directors of the Corporation need not be elected by written
ballot unless the bylaws of the Corporation so provide.
(iii) Special meetings of the stockholders of the Corporation may be called
only by (a) the Chairman of the Board of Directors, (b) the holders of at least
fifty-one percent (51%) of the outstanding shares of the Class A Stock, acting
separately as a class, or (c) the President of the Corporation, acting pursuant
to resolution adopted by a majority of the Whole Board. For the purposes of
this Restated Certificate of Incorporation, the term "Whole Board" shall mean
the total number of directors as fixed from time to time by the Board of
Directors pursuant to Article VII(i) of this Restated Certificate of
Incorporation whether or not there exist any vacancies in previously fixed
directorships.
(iv) Notwithstanding any other provision of this Restated Certificate of
Incorporation, the Board of Directors shall have the power to make, repeal,
amend, alter, modify and rescind any or all of the bylaws of the Corporation.
(v) Pursuant to Section 141(a) of the General Corporation Law of the
State of Delaware (and any successor statutory provision), any decision by the
Board in relation to a contract or transaction between the Corporation and any
holder of Class A Stock (or an affiliate of such holder) which contract or
transaction is not in the ordinary course of business for the Corporation or is
material for the Corporation must be approved by resolution adopted by a
majority of the directors who have not been designated under the Stockholders'
Agreement by the relevant Class A stockholder or stockholders.
Article VII
-----------
(i) The number of directors shall be fixed from time to time exclusively
by the Board
6
<PAGE>
of Directors pursuant to a resolution adopted by a majority of the Whole Board,
but in no event shall be less than seven (7) or more than twelve (12).
(ii) Except as otherwise provided herein, by law or by resolution of
the Board of Directors, newly created directorships resulting from any increase
in the number of directors or any vacancies on the Board of Directors resulting
from death, resignation, retirement, disqualification, removal from office or
other cause shall be filled only by a majority vote of the directors then in
office, though less than a quorum, or by the sole remaining director. The
directors so chosen shall hold office for a term expiring at the next annual
meeting of stockholders. No decrease in the number of directors shall shorten
the term of any incumbent director.
(iii) Advance notice of stockholder nominations for the election of
directors and of business to be brought by stockholders before any meeting of
the stockholders of the Corporation shall be given in the manner provided in the
bylaws of the Corporation.
(iv) Except as otherwise required by the General Corporation Law of the
State of Delaware, any directors, or the entire Board of Directors, may be
removed from office at any time, with or without cause only by the affirmative
vote of the holders of at least two-thirds of the voting power of all the then-
outstanding shares of the Class A Stock and the Class B Stock, voting together
as a single class.
(v) The holders of Class B Stock, voting separately as a class, shall
have the exclusive right to elect two (2) directors of the Corporation. If any
securities of the Corporation are admitted for quotation on the Nasdaq National
Market (or any successor thereto) or any similar body in any jurisdiction or
listed on a securities exchange in any jurisdiction, then, to be eligible
7
<PAGE>
for election by the holders of Class B Stock, these two (2) directors must
qualify as "independent" under the rules of any exchange or quotation system on
which securities of the Corporation are listed and under any applicable rules or
regulations of the Securities and Exchange Commission; if and at such time as
any such director elected by the holders of Class B Stock ceases to be so
qualified, his term shall expire and the vacancy created thereby shall be filled
by a director appointed by the remaining director elected by holders of Class B
Stock or by a director elected by the holders of Class B Stock voting separately
as a class.
Article VIII
------------
(i) The Corporation shall provide indemnification and advancement of
expenses for its directors, officers, employees and agents to the fullest extent
provided in the bylaws of the Corporation or in any contract or agreement with
any such director, officer, employee or agent.
(ii) No director shall be personally liable to the Corporation or any
stockholder for any monetary damages for breach of fiduciary duty as a director,
except for any matter in respect of which such director (a) shall be liable
under Section 174 of the General Corporation Law of the State of Delaware or any
amendment or successor provision thereto, or (b) shall be liable by reason that,
in addition to any and all other requirements for liability, he: (I) shall have
breached his duty of loyalty to the Corporation and its stockholders; (II) shall
not have acted in good faith, or in failing to act, shall have not acted in good
faith; (III) shall have acted in a manner involving intentional misconduct or a
knowing violation of law or, in failing to act, shall have acted in a manner
involving intentional misconduct or a knowing violation of law; or (IV) shall
have derived an improper personal benefit. If the General Corporation Law of the
State of Delaware is hereafter amended to authorize corporate action further
eliminating or limiting the personal
8
<PAGE>
liability of directors, then the liability of a director of the Corporation
shall be eliminated or limited to the fullest extent permitted by the General
Corporation Law of the State of Delaware, as so amended.
Article IX
----------
The affirmative vote of the holders of both (i) at least ninety-five percent
(95%) of the voting power of the Class A Stock, voting separately as a class,
and (ii) at least two-thirds of the voting power of the Class A Stock and the
Class B Stock, voting together as a single class, shall be required to approve
the dissolution of the Corporation, to approve any merger or consolidation of
the Corporation, or to approve any plan to sell, lease or exchange all or
substantially all of the Corporation's assets.
Article X
---------
This Restated Certificate of Incorporation and the bylaws of the Corporation
(subject to Article VI(iv) hereof) may only be amended by the affirmative vote
of the holders of at least two-thirds of the voting power of the Class A Stock
and the Class B Stock, voting together as a single class; provided, however,
that, notwithstanding the foregoing, the affirmative vote of the holders of both
(i) at least ninety-five percent (95%) of the voting power of the Class A Stock,
voting separately as a class, and (ii) at least two-thirds of the voting power
of the Class A Stock and the Class B Stock, voting together as a single class,
shall be required to alter, amend, repeal or replace Article IV, Article IX,
Article XI or this Article X of this Restated Certificate of Incorporation.
Notwithstanding the preceding sentence, if any provision of this Restated
Certificate of Incorporation or the bylaws of the Corporation requires the vote
of a greater number or proportion than two-thirds, then such provision shall not
be altered, amended or
9
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repealed except by such greater vote. Further, no new measure which would in any
way diminish the operation of this Article X shall be introduced without it
being approved by both (i) at least ninety-five percent (95%) of the voting
power of the Class A Stock, voting separately as a class, and (ii) at least two-
thirds of the voting power of the Class A Stock and the Class B Stock, voting
together as a single class.
Article XI
----------
In the event of an issuance or sale by the Corporation of any shares of Class
A Stock, or securities convertible into or exercisable for Class A Stock,
whether such issuance or sale be of newly issued or treasury shares or
securities, each holder of shares of Class A Stock shall be entitled to purchase
or subscribe for, at a price determined by the Board of Directors of the
Corporation to be the fair market value of such shares or securities on the date
of such purchase or subscription, such number and proportion of such shares or
securities issued or sold as may be required to prevent such stockholder's
proportionate ownership of the then-outstanding shares of Class A Stock from
decreasing.
Article XII
-----------
The Corporation elects not to be, and shall not be, governed by Section 203 of
the General Corporation Law of the State of Delaware.
10
<PAGE>
IN WITNESS WHEREOF, Infonet Services Corporation has caused this Restated
Certificate of Incorporation, which restates, integrates and further amends the
Restated Certificate of Incorporation of the Corporation, and which has been
duly adopted in accordance with the provisions of Sections 242 and 245 of the
General Corporation Law of the State of Delaware, to be signed by Jose A.
Collazo, its duly authorized officer, this ____ day of December, 1999.
----------------------------------------
Jose A. Collazo
President
Attest:
_____________________
Ernest U. Gambaro
Senior Vice President and Secretary
11
<PAGE>
EXHIBIT 3.2
AMENDED AND RESTATED BYLAWS
OF
INFONET SERVICES CORPORATION
AS OF
December __, 1999
ARTICLE I
OFFICES
-------
Section I (1). The registered office shall be in the City of Dover, County of
Kent, State of Delaware.
Section I (2). The corporation may also have offices at such other places
both within and without the State of Delaware as the Board of Directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
------------------------
Section II (1). Meetings of the stockholders shall be held at any place
within or outside the State of Delaware designated by the Board of Directors.
In the absence of any such designation, stockholders' meetings shall be held at
the principal executive office of the corporation.
Section II (2). The annual meeting of stockholders shall be held each year on
a
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date and a time designated by the Board of Directors. At each annual meeting
directors shall be elected and any other proper business may be transacted.
Section II (3). The holders of a majority of the voting power of the stock
issued and outstanding and entitled to vote at any meeting of stockholders,
present in person or represented by proxy, shall constitute a quorum for the
transaction of business except as otherwise provided by the statutes of the
State of Delaware, by the Restated Certificate of Incorporation, or by these
Bylaws. A quorum, once established, shall not be broken by the withdrawal of
enough votes to leave less than a quorum and the votes present may continue to
transact business until adjournment. If, however, such quorum shall not be
present or represented at any meeting of the stockholders, the holders of a
majority of the voting power represented in person or by proxy may adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote thereat.
Section II (4). When a quorum is present at any meeting, the vote of the
holders of stock representing a majority of the voting power present in person
or represented by proxy thereat shall decide any question brought before such
meeting, unless the question is one upon which by express provision of the
statutes of the State of Delaware, or the Restated Certificate of Incorporation,
or these Bylaws, a different vote is required, in which case such express
provision
2
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shall govern and control the decision of such question.
Section II (5). At each meeting of the stockholders, each stockholder having
the right to vote may vote in person or may authorize another person or persons
to act for him by proxy appointed by an instrument in writing executed by such
stockholder and bearing a date not more than three years prior to said meeting,
unless said instrument provides for a longer period. All proxies must be filed
with the Secretary of the corporation at the beginning of each meeting in order
to be counted in any vote at the meeting.
Section II (6). Special meetings of the stockholders, for any purpose or
purposes, may be called only as permitted by the Restated Certificate of
Incorporation. Business transacted at any special meeting of stockholders shall
be limited to the purposes stated in the notice.
Section II (7). Whenever stockholders are required or permitted to take any
action at a meeting, a written notice of the meeting shall be given. Such
notice shall state the place, date and hour of the meeting, and, in the case of
a special meeting, the purpose or purposes for which the meeting is called.
Except as otherwise required by law, the written notice of any meeting shall,
pursuant to Section VI (6) of these Bylaws, be given to each stockholder
entitled to vote at such meeting not less than ten nor more than sixty days
before the date of the meeting.
Section II (8). The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting,
3
<PAGE>
either at a place within the city where the meeting is to be held, which place
shall be specified in the notice of the meeting, or, if not so specified, at the
place where the meeting is to be held. The list shall also be produced and kept
at the time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present.
Section II (9). Unless otherwise provided in the Restated Certificate of
Incorporation and subject to the rules and regulations of any exchange or
quotation system on which the corporation's securities are traded, any action
required to be taken at any meeting of stockholders, or any action which may be
taken at any meeting of such stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing and who, if the action had been
taken at a meeting, would have been entitled to notice of the meeting if the
record date for such meeting had been the date that written consents signed by a
sufficient number of holders to take the action were delivered to the
corporation in accordance with applicable law.
ARTICLE III
DIRECTORS
---------
Section III (1). The authorized number of directors shall be such number as
is specified in or pursuant to the Restated Certificate of Incorporation. The
directors need not be stockholders. The directors shall be elected at the
annual meeting of the stockholders, except as
4
<PAGE>
provided in Section III (2) of this Article. Each director elected shall hold
office until his successor is duly elected and qualified or until his or her
earlier resignation or removal.
Section III (2). Except as otherwise provided in the Restated Certificate of
Incorporation, by the statutes of the State of Delaware or by resolution of the
Board of Directors, newly created directorships resulting from any increase in
the authorized number of directors or any vacancies on the Board of Directors
resulting from death, resignation, retirement, disqualification, removal from
office or other cause shall be filled only by a majority vote of the directors
then in office, though less than a quorum, and directors so chosen shall hold
office for a term expiring at the next annual meeting of stockholders. No
decrease in the authorized number of directors shall shorten the term of any
incumbent director.
Section III (3). The business and affairs of the corporation shall be managed
by or under the direction of its Board of Directors.
MEETINGS OF THE BOARD OF DIRECTORS
----------------------------------
Section III (4). The directors may hold their meetings and have one or more
offices, and keep the books of the corporation outside of the State of Delaware.
Section III (5). Regular meetings of the Board of Directors may be held
without notice at such time and place as shall from time to time be determined
by the Board; provided, however, a meeting of the Board of Directors shall be
-----------------
held at least twice each fiscal year.
Section III (6). Special meetings of the Board of Directors may be called by
the President or by the Secretary at the request of the President or two
directors on not less than five days' notice to each director, which notice
shall be given pursuant to Section VI (6) of these Bylaws.
5
<PAGE>
Section III (7). Except as may be otherwise specifically provided by the
statutes of the State of Delaware, by the Restated Certificate of Incorporation
or by these Bylaws, at all meetings of the Board of Directors a majority of the
directors then in office shall be necessary and sufficient to constitute a
quorum for the transaction of business, and the vote of a majority of the
directors present at any meeting at which there is a quorum, shall be the act of
the Board of Directors. If a quorum shall not be present at any meeting of the
Board of Directors, the directors present thereat may adjourn the meeting from
time to time, without notice other than announcement at the meeting, until a
quorum shall be present.
Section III (8). Unless otherwise restricted by the Restated Certificate of
Incorporation or these Bylaws, any action required or permitted to be taken at
any meeting of the Board of Directors or of any committee thereof may be taken
without a meeting, if all members of the Board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the Board or committee.
Section III (9). Unless otherwise restricted by the Restated Certificate of
Incorporation or these Bylaws, members of the Board of Directors, or any
committee designated by the Board of Directors, may participate in a meeting of
the Board of Directors, or of any committee, by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at such meeting.
COMMITTEES OF DIRECTORS
-----------------------
Section III (10). The Board of Directors may, by resolution passed by a
majority of the Whole Board (as defined below), designate one or more
committees, each such committee
6
<PAGE>
to consist of one or more of the directors of the corporation. The Board may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee. In
the absence or disqualification of a member of a committee, the member or
members thereof present at any meeting and not disqualified from voting, whether
or not he or they constitute a quorum, may unanimously appoint another member of
the Board of Directors to act at the meeting in the place of any such absent or
disqualified member. To the fullest extent permitted by applicable law, any such
committee, to the extent provided in the resolution of the Board of Directors
authorizing such committees, shall have and may exercise all the powers and
authority of the Board of Directors in the management of the business and
affairs of the corporation, and may authorize the seal of the corporation to be
affixed to all papers which may require it. For the purposes of these Bylaws,
the term "Whole Board" shall mean the total number of directors as fixed from
time to time by the Board of Directors pursuant to Article VII(i) of the
Restated Certificate of Incorporation, whether or not there exist any vacancies
in previously fixed directorships.
Section III (11). Each committee shall keep regular minutes of its meetings
and report the same to the Board of Directors when required.
COMPENSATION OF DIRECTORS
-------------------------
Section III (12). Unless otherwise restricted by the Restated Certificate of
Incorporation or these Bylaws, the Board of Directors shall have the authority
to fix the compensation of directors.
INDEMNIFICATION
---------------
Section III (13). (a) Right to Indemnification. Each person who was or is
-------------------------
made
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<PAGE>
a party or is threatened to be made a party to or is otherwise involved in any
action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), by reason of the fact that he or she
is or was a director, officer, employee or agent of the corporation or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to an employee benefit plan
(hereinafter an "indemnitee"), whether the basis of such proceeding is alleged
action in an official capacity as a director, officer, employee or agent or in
any other capacity while serving as a director, officer, employee or agent,
shall be indemnified and held harmless by the corporation to the fullest extent
authorized by the Delaware General Corporation Law, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent
that such amendment permits the corporation to provide broader indemnification
rights than permitted prior thereto), against all expense, liability and loss
(including attorneys' fees, judgments, fines, ERISA excise taxes or penalties
and amounts paid in settlement) reasonably incurred or suffered by such
indemnitee in connection therewith and such indemnification shall continue as to
an indemnitee who has ceased to be a director, officer, employee or agent and
shall inure to the benefit of the indemnitee's heirs, executors and
administrators; provided, however, that, except as provided in paragraph (c)
-------- -------
hereof with respect to proceedings to enforce rights to indemnification, the
corporation shall indemnify any such indemnitee in connection with a proceeding
(or part thereof) initiated by such indemnitee only if such proceeding (or part
thereof) was authorized by the Board of Directors of the corporation.
(b) Right to Advancement of Expenses. The right to indemnification
--------------------------------
conferred in
8
<PAGE>
paragraph (a) of this Section shall include the right to be paid by the
corporation the expenses incurred in defending any proceeding for which such
right to indemnification is applicable in advance of its final disposition
(hereinafter an "advancement of expenses"); provided, however, that, if the
-------- -------
Delaware General Corporation Law requires, an advancement of expenses incurred
by an indemnitee in his or her capacity as a director or officer (and not in any
other capacity in which service was or is rendered by such indemnitee,
including, without limitation, service to an employee benefit plan) shall be
made only upon delivery to the corporation of an undertaking (hereinafter an
"undertaking"), by or on behalf of such indemnitee, to repay all amounts so
advanced if it shall ultimately be determined by final judicial decision from
which there is no further right to appeal (hereinafter a "final adjudication")
that such indemnitee is not entitled to be indemnified for such expenses under
this Section or otherwise.
(c) Right of Indemnitee to Bring Suit. The rights to indemnification and
---------------------------------
to the advancement of expenses conferred in paragraphs (a) and (b) of this
Section shall be contract rights. If a claim under paragraph (a) or (b) of this
Section is not paid in full by the corporation within sixty days after a written
claim has been received by the corporation, except in the case of a claim for an
advancement of expenses, in which case the applicable period shall be twenty
(20) days, the indemnitee may at any time thereafter bring suit against the
corporation to recover the unpaid amount of the claim. If successful in whole
or in part in any such suit, or in a suit brought by the corporation to recover
an advancement of expenses pursuant to the terms of an undertaking, the
indemnitee shall be entitled to be paid also the expense of prosecuting or
defending such suit. In (i) any suit brought by the indemnitee to enforce a
right to indemnification hereunder (but not in a suit brought by the indemnitee
to enforce a right to an
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<PAGE>
advancement of expenses) it shall be a defense that, and (ii) in any suit by the
corporation to recover an advancement of expenses pursuant to the terms of an
undertaking the corporation shall be entitled to recover such expenses upon a
final adjudication that, the indemnitee has not met any applicable standard for
indemnification set forth in the Delaware General Corporation Law. Neither the
failure of the corporation (including its Board of Directors, independent legal
counsel, or its stockholders) to have made a determination prior to the
commencement of such suit that indemnification of the indemnitee is proper in
the circumstances because the indemnitee has met the applicable standard of
conduct set forth in the Delaware General Corporation Law, nor an actual
determination by the corporation (including its board of directors, independent
legal counsel, or its stockholders) that the indemnitee has not met such
applicable standard of conduct, shall create a presumption that the indemnitee
has not met the applicable standard of conduct or, in the case of such a suit
brought by the indemnitee, be a defense to such suit. In any suit brought by the
indemnitee to enforce a right to indemnification or to an advancement of
expenses hereunder, or by the corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the burden of proving that the
indemnitee is not entitled to be indemnified, or to such advancement of
expenses, under this Section or otherwise shall be on the corporation.
(d) Non-Exclusivity of Rights. The rights to indemnification and to the
-------------------------
advancement of expenses conferred in this Section shall not be exclusive of any
other right which any person may have or hereafter acquire under any statute,
the corporation's Restated Certificate of Incorporation, these Bylaws,
agreement, vote of stockholders or disinterested directors or otherwise.
(e) Insurance. The corporation may maintain insurance, at its expense, to
---------
protect
10
<PAGE>
itself and any director, officer, employee or agent of the corporation or
another corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not the corporation would
have the power to indemnify such person against such expense, liability or loss
under the Delaware General Corporation Law.
ARTICLE IV
OFFICERS
--------
Section IV (1). The officers of this corporation shall be elected by the
Board of Directors and shall include a President, a Secretary and a Treasurer.
The Board of Directors shall also elect on an annual basis one of its members as
Chairman and another member as Deputy Chairman of the Board. The corporation
may also have at the discretion of the Board of Directors such other officers as
are elected, including one or more Vice Presidents and one or more Assistant
Secretaries and Assistant Treasurers, and such other officers as may be
appointed in accordance with the provisions of Section IV(3) hereof. The
Chairman of the Board and the Deputy Chairman of the Board shall be elected by
the affirmative vote of at least two-thirds of the directors then in office. In
the event there are two or more Vice Presidents, then one or more may be
designed as Executive Vice President, Senior Vice President, or other similar or
dissimilar title. At the time of election of officers, the directors may by
resolution determine the order of their rank. Any number of offices may be held
by the same person, unless the statutes of the State of Delaware, the Restated
Certificate of Incorporation or these Bylaws otherwise provide.
Section IV (2). The Board of Directors, at its first meeting after each
annual meeting of stockholders, shall elect the officers of the corporation.
The President, when elected,
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<PAGE>
shall advise the Board of Directors on the selection of subordinate officers.
Section IV (3). The Board of Directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the Board.
Section IV (4). The salaries of all officers of the corporation shall be fixed
by the Board of Directors.
Section IV (5). The officers of the corporation shall hold office until their
successors are elected and qualify in their stead. The Chairman and the Deputy
Chairman of the Board may be removed at any time by the affirmative vote of at
least two-thirds of the directors then in office.
CHAIRMAN OF THE BOARD
---------------------
Section IV (6). The Chairman of the Board shall, if present, preside at all
meetings of the Board of Directors and exercise and perform such other powers
and duties as may be from time to time assigned to him by the Board of Directors
or prescribed by these Bylaws.
DEPUTY CHAIRMAN OF THE BOARD
----------------------------
Section IV (7). The Deputy Chairman of the Board shall, if present, preside
at all meetings of the Board of Directors at which the Chairman of the Board is
not present or at which the Chairman of the Board requests that the Deputy
Chairman preside. The Deputy Chairman shall exercise and perform such other
powers and duties as may be from time to time assigned to him by the Board of
Directors or prescribed by these Bylaws.
PRESIDENT
---------
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<PAGE>
Section IV (8). Subject to such supervisory powers, if any, as may be given
by the Board of Directors to the Chairman of the Board, the President shall be
the Chief Executive Officer of the corporation and shall, subject to the control
of the Board of Directors, have general supervision, direction and control of
the business affairs and officers of the corporation. He shall preside at all
meetings of the stockholders and, in the absence of the Chairman of the Board
and the Deputy Chairman of the Board, or if there be none, at all meetings of
the Board of Directors. He shall be an ex-officio member of all committees and
shall have the general powers and duties of management usually vested in the
office of President and Chief Executive Officer of corporations, and shall have
such other powers and duties as may be prescribed by the Board of Directors or
these Bylaws.
VICE PRESIDENTS
---------------
Section IV (9). In the absence or disability of the President, the Vice
Presidents in order of their rank as fixed by the Board of Directors, or if not
ranked, the Vice President designated by the Board of Directors, shall perform
all of the duties of the President, and when so acting shall have all the powers
of and be subject to all the restrictions upon the President. The Vice
Presidents shall have such other duties as from time to time may be prescribed
for them, respectively, by the Board of Directors.
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<PAGE>
SECRETARY AND ASSISTANT SECRETARY
---------------------------------
Section IV (10). The Secretary shall attend all meetings of the Board of
Directors and all meetings of the stockholders and record all votes and the
minutes of all proceedings in a book to be kept for that purpose, and shall
perform like duties for the standing committees when required by the Board of
Directors. He shall give, or cause to be given, notice of all meetings of the
stockholders and of the Board of Directors, and shall perform such other duties
as may be prescribed by the Board of Directors or these Bylaws. He shall keep
in safe custody the seal of the corporation, and when authorized by the Board,
affix the same to any instrument requiring it, and when so affixed it shall be
attested by his signature or by the signature of an Assistant Secretary. The
Board of Directors may give general authority to any other officer to affix the
seal of the corporation and to attest the affixing by his signature.
Section IV (11). The Assistant Secretary, or if there be more than one, the
Assistant Secretaries in the order determined by the Board of Directors, or if
there be no such determination, the Assistant Secretary designated by the Board
of Directors, shall, in the absence or disability of the Secretary, perform the
duties and exercise the powers of the Secretary and shall perform such other
duties and have such other powers as the Board of Directors may from time to
time prescribe.
TREASURER AND ASSISTANT TREASURER
---------------------------------
Section IV (12). The Treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all
moneys, and other valuable effects in the name and to the credit of the
corporation, in such depositories as may be designated by the Board of
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<PAGE>
Directors. He shall disburse the funds of the corporation as may be ordered by
the Board of Directors, taking proper vouchers for such disbursements, and shall
render to the Board of Directors, at its regular meetings, or when the Board of
Directors so requires, an account of all his transactions as Treasurer and of
the financial condition of the corporation. If required by the Board of
Directors, he shall give the corporation a bond, in such sum and with such
surety or sureties as shall be satisfactory to the Board of Directors for the
faithful performance of the duties of his office and for the restoration to the
corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the corporation.
Section IV (13). The Assistant Treasurer, of if there shall be more than one,
the Assistant Treasurers in the order determined by the Board of Directors, or
if there be no such determination, the Assistant Treasurer designated by the
Board of Directors, shall, in the absence or disability of the Treasurer,
perform the duties and exercise the powers of the Treasurer and shall perform
such other duties and have such other powers as the Board of Directors may from
time to time prescribe.
ARTICLE V
CERTIFICATES OF STOCK
---------------------
Section V (1). Every holder of stock of the corporation shall be entitled to
have a certificate signed by, or in the name of the corporation by, the Chairman
of the Board, or the President or a Vice President, and by the Secretary or an
Assistant Secretary, or the Treasurer or an Assistant Treasurer of the
corporation, certifying the number of shares represented by the certificate
owned by such stockholder in the corporation.
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<PAGE>
Section V (2). Any or all of the signatures on the certificate may be a
facsimile. In case any officer, transfer agent, or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent, or registrar before such certificate is
issued, it may be issued by the corporation with the same effect as if he were
such officer, transfer agent, or registrar at the date of issue.
Section V (3). If the corporation shall be so authorized to issue more than
one class of stock or more than one series of any class, the powers,
designations, preferences and relative, participating, optional or other special
rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights shall be set forth
in full or summarized on the face or back of the certificate which the
corporation shall issue to represent such class or series of stock, provided
--------
that, except as otherwise provided in section 202 of the General Corporation Law
of the State of Delaware, in lieu of the foregoing requirements, there may be
set forth on the face or back of the certificate which the corporation shall
issue to represent such class or series of stock, a statement that the
corporation will furnish without charge to each stockholder who so requests the
powers, designations, preferences or relative, participating, optional or other
special rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights.
LOST, STOLEN OR DESTROYED CERTIFICATES
--------------------------------------
Section V (4). The Board of Directors, or its designee, may direct a new
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the corporation alleged to have been lost,
stolen or destroyed, upon the taking of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
16
<PAGE>
authorizing such issue of a new certificate or certificates, the Board of
Directors, or its designee, may in its discretion and as a condition precedent
to the issuance thereof, require the owner of such lost, stolen or destroyed
certificate or certificates, or its legal representative, or to give the
corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the corporation with respect to the certificate alleged
to have been lost, stolen or destroyed.
TRANSFER OF STOCK
-----------------
Section V (5). Upon surrender to the corporation, or the transfer agent of
the corporation, of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignation or authority to transfer, it shall be
the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
The Board of Directors may make other and further rules and regulations
concerning the transfer and registration of shares of the corporation.
FIXING RECORD DATE
------------------
Section V (6). In order that the corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board of Directors may fix a record date, which record
date shall not precede the date upon which the resolution fixing the record date
is adopted by the Board of Directors and, subject to the rules and regulations
of any exchange or quotation system on
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<PAGE>
which the corporation's securities are traded, which record date: (1) in the
case of determination of stockholders entitled to vote at any meeting of
stockholders or adjournment thereof, shall, unless otherwise required by law,
not be more than sixty nor less than ten days before the date of such meeting;
(2) in the case of determination of stockholders entitled to express consent to
corporate action in writing without a meeting, shall not be more than ten days
from the date upon which the resolution fixing the record date is adopted by the
Board of Directors; and (3) in the case of any other action, shall not be more
than sixty days prior to such other action. If no record date is fixed: (1) the
record date for determining stockholders entitled to notice of or to vote at a
meeting of stockholders shall be at the close of business on the day next
preceding the day on which notice is given, or, if notice is waived, at the
close of business on the day next preceding the day on which the meeting is
held; (2) the record date for determining stockholders entitled to express
consent to corporate action in writing without a meeting when no prior action of
the Board of Directors is required by law, shall be the first day on which a
signed written consent setting forth the action taken or proposed to be taken is
delivered to the corporation in accordance with applicable law, or, if prior
action by the Board of Directors is required by law, shall be at the close of
business on the day on which the Board of Directors adopts the resolution taking
such prior action; and (3) the record date for determining stockholders for any
other purpose shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors may fix a new record date for the adjourned meeting.
18
<PAGE>
REGISTERED STOCKHOLDERS
-----------------------
Section V (7). The corporation shall be entitled to treat the holder of
record of any share or shares of stock as the holder in fact thereof and
accordingly shall not be bound to recognize any equitable or other claim or
interest in such share on the part of any other person, whether or not it shall
have express or other notice thereof, save as expressly provided by the laws of
the State of Delaware.
ARTICLE VI
GENERAL PROVISIONS
------------------
DIVIDENDS
---------
Section VI (1). Dividends upon the capital stock of the corporation, subject
to the provisions of the Restated Certificate of Incorporation, if any, may be
declared by the Board of Directors at any regular or special meeting, pursuant
to law. Dividends may be paid in cash, in property, or in shares of the capital
stock of the corporation, subject to the provisions of the Restated Certificate
of Incorporation.
19
<PAGE>
Section VI (2). Before payment of any dividend there may be set aside out of
any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve fund to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interests of the
corporation, and the directors may abolish any such reserve.
CHECKS
------
Section VI (3). All checks or demands for money and notes of the corporation
shall be signed by such officer or officers as the Board of Directors may from
time to time designate.
FISCAL YEAR
-----------
Section VI (4). The fiscal year of the corporation shall be fixed by
resolution of the Board of Directors.
SEAL
----
Section VI (5). The corporate seal shall have inscribed thereon the name of
the corporation, the year of its organization and the words "Corporate Seal,
Delaware." Said seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
NOTICES
-------
Section VI (6). Whenever, under the provisions of the statutes of the State
of Delaware or of the Restated Certificate of Incorporation or of these Bylaws,
notice is required to be given to any director or stockholder, said notice shall
be in writing and shall be deemed to be
20
<PAGE>
given and effective upon delivery if delivered in person or by courier, or when
sent if by electronic transmission (telex, telecopy or facsimile) or, if mailed,
said notice shall be deemed to be given and effective five days after it is
deposited in the United States airmail postage prepaid, directed to such
stockholder or director, at his address as it appears on the records of the
corporation.
Section VI (7). Whenever any notice is required to be given under the
provisions of the statutes of the State of Delaware or of the Restated
Certificate of Incorporation or of these Bylaws, a waiver thereof in writing,
signed by the person or persons entitled to said notice, whether before or after
the time stated therein, shall be deemed equivalent thereto
PRONOUNS AND PLURALS
--------------------
Section VI (8). Whenever the context may require, any pronoun used in these
Bylaws shall include the corresponding masculine, feminine or neuter forms, and
the singular form of nouns, pronouns and verbs shall include the plural and vice
versa.
ARTICLE VII
AMENDMENTS
----------
Section VII (1). Subject to the provisions of the Restated Certificate of
Incorporation, these Bylaws may be altered, amended or repealed or new Bylaws
may be adopted by the stockholders only by the affirmative vote of the holders
of at least two-thirds of the voting power of all issued and outstanding voting
shares, at any regular meeting of the stockholders or at any special meeting of
the stockholders if notice of such alteration, amendment, repeal or adoption of
new Bylaws be contained in the notice of such special meeting.
21
<PAGE>
EXHIBIT 5.1
[LETTERHEAD OF LATHAM & WATKINS]
December 3, 1999
Infonet Services Corporation
2160 East Grand Avenue
El Segundo, CA 90245-1022
Ladies and Gentlemen:
This opinion is rendered in connection with the filing by Infonet
Services Corporation, a Delaware corporation (the "Company"), of its
Registration Statement on Form S-1 (the "Registration Statement") with the
Securities and Exchange Commission under the Securities Act of 1933, as amended
(the "Act"), with respect to the offer and sale by the Company (the "Offering")
of up to 51,282,300 shares of the Company's Class B Common Stock, par value
$0.01 per share (the "Registered Common Stock"), and any subsequent registration
statement the Company may hereafter file with the Commission pursuant to Rule
462(b) under the Act to register additional shares of the Company's common
stock, par value $0.01 per share, in connection with the Offering (such
additional shares, together with the Registered Common Stock, the "Shares"). We
have acted as special counsel to the Company in connection with the preparation
of the Registration Statement.
In our capacity as such counsel, we are familiar with the proceedings
taken and to be taken by the Company in connection with the authorization,
issuance, and sale of the Common Stock. In addition, we have made such legal
and factual examinations and inquiries, including an examination of originals
(or copies certified or otherwise identified to our satisfaction as being true
reproductions of originals) of such documents, corporate records and other
instruments, and have obtained from officers of the Company and agents thereof
such certificates and other representations and assurances, as we have deemed
necessary or appropriate for the purposes of this opinion.
<PAGE>
LATHAM & WATKINS
December 3, 1999
Page 2
In such examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals, the
legal capacity of natural persons executing such documents and the authenticity
and conformity to original documents of documents submitted to us as certified
or photostatic copies.
We are opining herein as to the effect on the subject transaction only
of the General Corporation Law of the State of Delaware, including statutory and
reported decisional law thereunder, and we express no opinion with respect to
the applicability thereto, or the effect thereon, of the laws of any other
jurisdiction or, in the case of Delaware, any other laws, or as to any matters
of municipal law or the laws of any local agencies within any state.
Subject to the foregoing and the other qualifications set forth
herein, it is our opinion that, as of the date hereof, based on the foregoing
and the assumption that the proceedings to be taken by the Company referred to
above are duly completed, we are of the opinion that the Shares have been duly
authorized, and upon issuance, delivery and payment therefor in the manner
described in the Registration Statement, such Shares will be validly issued,
fully paid and nonassessable.
We consent to your filing this opinion as an exhibit to the
Registration Statement and to the reference to our firm contained under the
heading "Legal Matters" of the prospectus included therein, and to the
incorporation by reference of this opinion and consent into a registration
statement filed with the Commission pursuant to Rule 462(b) under the Act
relating to the Offering.
Very truly yours,
/s/ Latham & Watkins
<PAGE>
EXHIBIT 9.1
STOCKHOLDERS' AGREEMENT
-----------------------
This Stockholders' Agreement (this "Agreement") is entered into as of
---------
December __, 1999 (the "Effective Date"), by and among Infonet Services
Corporation, a Delaware corporation ("INFONET"), each of the stockholders listed
-------
on the signature pages hereto, and each other entity which subsequent to the
date hereof becomes a holder of Class A Stock of INFONET and a party to this
Agreement (each stockholder and each entity which subsequent to the date hereof
becomes a holder of Class A Stock of INFONET are individually referred to as a
"Class A Stockholder" and collectively referred to as the "Class A
------------------- -------
Stockholders").
- ------------
RECITALS
--------
WHEREAS, the Stockholders own all of the outstanding Class A Stock of
INFONET;
WHEREAS, it is intended that the Class A Stockholders will, directly or
through their affiliates, be distributors or sales agents of INFONET's services;
WHEREAS, it is intended that the Class A Stockholders will utilize, on a
non-exclusive basis, the INFONET data communications network in providing
end-to-end supported international data communications services to their
respective customers;
WHEREAS, it is desirable to set forth certain understandings among the
parties with respect to their relative rights and obligations in connection with
the management of INFONET and the purchase and sale of shares of its Class A
stock; and
WHEREAS, the parties hereto intend that their activities as stockholders of
INFONET shall constitute commercial activities carried on in the United States.
AGREEMENT
---------
NOW THEREFORE, the parties agree as follows:
1. Directors. During the term of this Agreement, each of the Class A
---------
Stockholders shall vote all of the Class A Stock of INFONET held by it, and take
any and all other actions necessary, to ensure that the Board of Directors of
INFONET (the "Board of Directors") shall consist of a number of directors equal
------------------
to the number of Class A Stockholders that hold at least 14,950,000 shares of
Class A Stock (appropriately adjusted for stock splits, consolidations and
similar changes in capital structure each, a "Recapitalization") plus three, but
in no event more than twelve. During the term of this Agreement, at any
election of directors (other than an election to fill a vacancy on the Board of
Directors due to removal or otherwise) each of the Class A Stockholders shall
vote all of the Class A Stock of INFONET held by it for the election of a slate
of directors which shall consist of the President of INFONET and one person
designated by each Class A Stockholder that holds at least 14,950,000 shares of
Class A Stock of INFONET (appropriately adjusted for any Recapitalization). The
maximum number of
1
<PAGE>
directors which may be designated by such Class A Stockholders (that is, the
directors other than the director which is the President of INFONET and other
than the two directors to be elected by the holders of Class B Stock) shall be
nine, with the right to designate such directors allocated to Class A
Stockholders on the basis of when each such Class A Stockholder first acquires
the requisite number of shares of Class A Stock of INFONET, unless otherwise
agreed in writing by all of the Class A Stockholders. For purposes of
determining the number of shares of Class A Stock of INFONET owned or held by
any Class A Stockholder, the holdings of all entities which are under "common
control" shall be aggregated and all such entities shall constitute a single
Class A Stockholder for purposes of this Agreement. For purposes of this
Agreement, one entity shall be under "common control" with another entity if
either entity owns, directly or indirectly, 90% of the capital stock (or other
equivalent interests) of the other entity or if 90% of the capital stock (or
other equivalent interests) of each such entity is owned, directly or
indirectly, by a third entity.
Upon written request by any Class A Stockholder, each of the Class A
Stockholders shall vote all of the Class A Stock of INFONET held by it in favor
of the removal from the Board of Directors of any person or persons designated
to the Board of Directors by the party making such request, and shall cause all
persons designated by it as directors to elect to the unexpired term of each
director so removed another person designated by the party making such request
as the replacement for the director so removed. No Class A Stockholder shall
vote any of the Class A Stock of INFONET held by it for the removal of any
director not designated by it unless so requested by the person designating such
director. Vacancies on the Board of Directors which occur other than by removal
shall be filled in a manner consistent with that set forth in the first sentence
of this paragraph.
2. Marketing and Support. Except as otherwise agreed by Infonet in its
---------------------
sole discretion, each Class A Stockholder shall establish, within six months of
the date upon which it becomes a Class A Stockholder, a local organization
suitable in structure and staffing (based upon the area and customer base to be
served) for the marketing and support of INFONET data communication services in
its respective home country. Each such marketing and support organization shall,
to the extent necessary to accomplish the objectives of this Section 2, contract
---------
directly with INFONET. Thereafter, each Class A Stockholder will utilize
INFONET on a non-exclusive basis in order to support, on an end-to-end basis,
users of its data communications services and will further utilize INFONET on a
non-exclusive basis in providing end-to-end supported international data
communications services to its customers.
3. Right of First Refusal.
----------------------
(a) Any sale, pledge, transfer or assignment or conversion of any of
the outstanding Class A Stock of INFONET (including, without limitation, any
proposed conversion into Class B Stock of Infonet pursuant to the registration
provisions of Section 4 of this Agreement or otherwise) (each, a "Transfer")
shall be subject to a right of first refusal of all then existing Class A
Stockholders in accordance with the terms of, and subject to the exceptions
set forth in, this Section 3. In the event any Class A Stockholder proposes to
---------
Transfer any of its Class A Stock of INFONET, any Class A Stock of INFONET
held by entities under "common control" or any interest therein to any entity
2
<PAGE>
not under "common control" with the transferring holder, such transferring
holder shall give advance written notice of such intention to all other Class
A Stockholders (such notice, a "Transfer Notice"). Each Transfer Notice in
respect of a proposed sale for cash shall set out, in detail all material
terms of the proposed transaction including, without limitation, the identity
of the proposed transferee, the proposed purchase price and the payment terms.
Any Transfer Notice in respect of a proposed Transfer other than a sale for
cash shall set forth: (a) the terms of the proposed Transfer (solely for
reference by the Class A Stockholders); and (b) the terms of an offer to sell
the Class A Stockholders for cash the Class A Stock proposed to be transferred
in the Transfer Notice (such offer, the "Equivalent Offer"). The per share
purchase price for any Equivalent Offer shall be equal to: (a) the average of
the per share closing prices of INFONET's listed Class B Stock on the New York
Stock Exchange (or on the Nasdaq National Market, if appropriate) for each day
in the 20 day trading period ending the day prior to the date the Transfer
Notice is delivered; or (b) if INFONET's Class B Stock is not listed on the
New York Stock Exchange or on the Nasdaq National Market for the 20 trading
day period prior to delivery of the Transfer Notice, a price to be negotiated
in good faith by the proposed transferor and the Class A Stockholders. In the
event any Holder intends to offer any options, rights, warrants or other
securities issued by it or any other person that are offered with, convertible
or exchangeable into, or exercisable for, Stock (as defined in Section 4) such
Holder shall deliver a Transfer Notice including an Equivalent Offer.
Each Transfer Notice shall constitute an irrevocable offer by the proposed
transferor to sell to each Class A Stockholder the shares of Class A Stock
proposed to be transferred on the terms of such proposed Transfer or, if
applicable, on the terms of the Equivalent Offer. The ability of the Class A
Stockholders to accept the offer set forth in any Transfer Notice shall expire
thirty (30) days after the date of delivery of such Transfer Notice, provided
that, in the case of a proposed conversion of Class A Stock into Class B Stock
in connection with the exercise of any Class A Stockholder's registration
rights as set forth in Section 4 or a proposed unilateral conversion of Class
A Stock into Class B Stock with or without a subsequent sale, the thirty-day
period shall be ten days. Any stockholder purchasing shares pursuant to its
exercise of a right of first refusal shall receive shares of Class A Stock.
The Class A Stockholders shall have the right to purchase all, but not less
than all, of the Class A Stock subject to the Transfer on the terms set forth
in the Transfer Notice. Each Class A Stockholder may exercise such right by
giving notice to the Seller, within thirty (30) days after the date of receipt
of the Transfer Notice (or ten days in the case of a proposed conversion of
Class A Stock into Class B Stock as described in the preceding paragraph), of:
(a) its intention to purchase all of the shares of Class A Stock offered for
sale in the Transfer Notice; and (b) the number of shares of Class A Stock
that such Class A Stockholder is electing to purchase on the terms set forth
in the Transfer Notice (the "Response Notice"). The Response Notice shall
constitute an irrevocable commitment by the Class A Stockholder to purchase
from the
3
<PAGE>
proposed transferor on the terms set forth in the Transfer Notice the number
of shares of Class A Stock specified in the Transfer Notice.
In the event more than one other Class A Stockholder indicates by a
Response Notice to the transferring holder its acceptance of the offer to sell
the shares of Class A Stock described in and on the terms of the Transfer
Notice, each such other Class A Stockholder shall purchase, unless otherwise
agreed between or among them, the portions of Class A Stock of INFONET to be
transferred in the same relative amounts as their existing holdings of Class A
Stock bear to each other. If no Class A Stockholder indicates by a Response
Notice its intention to exercise the right of first refusal provided herein
prior to the expiration of the offer set forth in the Transfer Notice as set
forth above or if the other Class A Stockholders waive their right of first
refusal hereunder prior to the expiration of such period, the transferring
Class A Stockholder shall be free to transfer its Class A Stock of INFONET to
the proposed transferee identified in the Transfer Notice or to convert its
Class A Shares, in each case in the amounts and on the terms specified in such
notice; provided, however, that in the case of any Transfer (i) such proposed
-------- -------
transferee shall first be approved in writing by the holders of not less than
two-thirds of the outstanding shares of Class A Stock (including the
transferring Class A Stockholder), which approval shall not be unreasonably
withheld, and (ii) such Transfer shall be made within the next sixty days and
on the same terms as described in the Transfer Notice. For the avoidance of
doubt, (i) no Transfer of Class B Stock shall give rise to a right of first
refusal, (ii) no approval by the Class A Stockholders shall be required for
Transfers of Class B Stock and (iii) the right of first refusal set forth in
this Section 3 shall apply only to the number of shares of Class A Stock which
such transferring holder or entities under "common control" with it propose to
Transfer from time to time as accurately set forth in the written notice of
intention referred to above. An appropriate legend shall be placed on the
Class A Stock share certificates informing transferees of all of these
restrictions on transfer and no purported transfer in violation of this
Section 3 shall be valid or recorded on the books of INFONET.
---------
Notwithstanding anything herein to the contrary, the provisions of this
Section 3 shall not apply to any actual conversion of Class A Stock into Class
B Stock following a notice of proposed conversion of such Class A Stock
pursuant to the terms of this Agreement.
(b) For purposes of this Section 3, "Transfer" shall also include and
---------
apply to a Change of Control of any Class A Stockholder. "Change of Control"
shall mean (i) the sale of 50% or more of the then-outstanding common stock of
such Class A Stockholder to another corporation or entity, or a sale of
substantially all of the assets of such Class A Stockholder or any
reorganization, merger or consolidation of such Class A Stockholder with one
or more corporations, whether or not such Class A Stockholder is the surviving
corporation, if the shareholders of the Class A Stockholder immediately prior
to such sale or transaction do not own immediately after such sale or
transaction at least 50% of the Class A Stockholder's or surviving entity's
common stock, or (ii) where voting rights over more than 25% of a Class A
Stockholder's Class A Stock are acquired by another corporation or person by
contract (other than pursuant hereto) or by operation
4
<PAGE>
of law. Any Class A Stockholder which has undergone or is undergoing a Change
of Control shall deliver written notice of such Change of Control to INFONET
and each other Class A Stockholder as soon as practicable, but in no event
later than 30 days next following the effective date of such Change of
Control. Such notice shall give rise to the right of each other Class A
Stockholder to purchase the Class A Stock of INFONET held by the Class A
Stockholder giving such notice in accordance with the provisions of Section
3(a) (which provisions shall as nearly as may be possible apply to any Class A
Stockholder's exercise of its right to purchase the capital stock of INFONET).
In such case, the per share purchase price shall be equal to the average of
the per share closing prices of INFONET's listed Class B securities on the New
York Stock Exchange for the 20-trading-day period ending the day prior to the
effective date of such Change of Control. If INFONET's Class B Stock is not
listed on the New York Stock Exchange at such time, then the per share
purchase price shall be negotiated by the parties in good faith. For purposes
of this Section 3(b), a "Change of Control" shall not be deemed to have
------------
occurred solely due to the sale by a controlling shareholder ("original
controlling shareholder") of some or all of the equity securities in a Class A
Stockholder, whether in one or more installments or at one time or over
successive periods of time, by way of a broadly distributed offer or offers to
the public and where the Class A Stockholder becomes or remains a publicly-
listed company on a recognized stock exchange with its own board which is
independent or has a majority of directors appointed by the original
controlling shareholder.
4. Registration Rights. The parties hereto shall have the following
-------------------
rights with respect to the registration of Class B Stock:
(a) Piggyback Registrations. If INFONET at any time proposes to file
-----------------------
a registration statement under the United States Securities Act of 1933, as
amended (the "Securities Act"), with respect to any of its capital stock,
--------------
whether or not for sale for its own account, on a form and in a manner which
would permit registration of Class B Stock held by any Class A Stockholder,
including, without limitation, Class B Stock which any Class A Stockholder may
obtain by converting its Class A Stock as permitted by INFONET's restated
certificate of incorporation (such shares of capital stock are herein referred
to as the "Stock" and each of the Class A Stockholders are referred to as a
-----
"Holder" and collectively the "Holders") for sale to the public under the
------ -------
Securities Act, INFONET shall give written notice of the proposed registration
to each Holder not later than 30 days prior to the filing of any such
registration statement, it being understood that notice to the other Holders
of the exercise of any demand registration right pursuant to Section 4(b) will
constitute notice hereunder. Each Holder shall have the right to request that
all or any part of its Stock be included in such registration statement by
giving written notice to INFONET within 20 days after the giving of notice by
INFONET (any Holder giving INFONET such notice requesting that shares of Stock
owned by it be included in such proposed registration is hereinafter referred
to as a "Piggybacking Holder"); provided, however, that (i) if the
------------------- -------- -------
registration statement relates to an underwritten primary offering on behalf
of INFONET and the prospective underwriters of such offering determine in good
faith that the aggregate number of shares of capital stock of INFONET which
all Piggybacking Holders and INFONET propose to include in such registration
5
<PAGE>
statement exceeds the number of shares of capital stock of INFONET that should
be included therein, INFONET will include in such registration, first, the
capital stock which INFONET proposes to sell and, second, the Stock of such
Piggybacking Holders, pro rata among all such Piggybacking Holders, on the
basis of the relative amounts of Stock owned by all Piggybacking Holders (it
being agreed and understood, however, that such underwriters shall have the
right to eliminate entirely the participation in such registration of all
Piggybacking Holders), and (ii) if the registration statement relates to an
underwritten secondary offering on behalf of any other holder of capital stock
of INFONET and the prospective underwriters determine in good faith that the
aggregate amount of securities which all Piggybacking Holders and all such
other holders propose to include in such registration exceeds the maximum
amount of securities that should be included therein, INFONET will include in
such registration the shares of Stock to be sold for the account of such other
holders demanding registration and the shares of Stock of such Piggybacking
Holders, pro rata among all such holders and Piggybacking Holders, on the
basis of the relative amount of capital stock owned by all such holders and
Piggybacking Holders. Shares of Stock proposed to be registered and sold
pursuant to an underwritten offering for the account of any Piggybacking
Holder pursuant to this Section 4(a) shall be sold to prospective underwriters
selected or approved by INFONET and on the terms and subject to the conditions
of one or more underwriting agreements negotiated among INFONET, the
Piggybacking Holders and the prospective underwriters. INFONET may withdraw
any registration statement at any time before it becomes effective, or
postpone the offering of securities, without obligation or liability to any
Holder, provided that it shall give written notice of any such determination
to the Piggybacking Holders. Any such withdrawal or postponing shall be
without prejudice to the rights of the Holders immediately to request that
such registration be effected as a registration under Section 4(b) to the
extent permitted thereunder.
No registration of securities effected under this Section 4(a) shall relieve
INFONET of its obligation to effect a registration of securities pursuant to
Section 4(b).
(b) Demand Registration. Subject to the limitations set forth in this
-------------------
Section 4(b), each Class A Stockholder (including all entities under "common
control," an "Initiating Holder" and together with the Piggyback Holders, a
"Registering Holder") shall have the right, which shall be exercisable twice,
subject to the last sentence of this paragraph, to cause INFONET to use its
commercially reasonable efforts to file and cause to be declared effective as
soon as practicable a registration statement on any appropriate form under the
Securities Act for the Stock which form shall be available for the sale or
distribution referred to in such notice in accordance with the intended method
or methods of distribution thereof. INFONET shall use its commercially
reasonable efforts to (i) file such registration statement as soon as
practicable after the receipt of such request and in any event within 35 days,
which time period may be extended for up to 60 days at the option of INFONET,
but not more than once in any 12 month period, if INFONET's management
determines based upon the advice of counsel that it would be advisable to
disclose in the registration statement a financing, acquisition or other
corporate transaction or event, and a majority of the members of the Board of
Directors other than the directors appointed by the Initiating Holders shall
have determined in good faith that
6
<PAGE>
such disclosure would not be in the best interests of INFONET
and its stockholders and (ii) use its commercially reasonable efforts to
have the registration statement declared effective as soon as practicable
thereafter. As promptly as practicable after receiving such request and in
any event no later than 5 days thereafter, INFONET shall give written
notice thereof to all Holders other than the Initiating Holder and each
such other Holder shall, by notice to INFONET given within 20 days after
the giving of notice by INFONET, be entitled to have any Stock which it
then proposes to sell or distribute included under such registration
statement as if it were an Initiating Holder. The Initiating Holder shall
have the right to cause INFONET to file additional registration statements
at any time (if otherwise permitted hereunder) with respect to Stock owned
by such Initiating Holder in the event (i) the first (or any subsequent)
registration statement filed at the request of such Initiating Holder is
not declared effective by the Securities and Exchange Commission (the
"Commission") within 60 days of its initial filing therewith and such
registration statement is withdrawn after such 60th day, or (ii) all Stock
owned by such Initiating Holder which it requests be included in such
registration statement is not included due to the restrictions set forth in
this Section 4, (iii) any stop order, injunction or other order or
requirement of the Commission or other governmental agency or court
prevents the complete distribution of the Stock of the Initiating Holder
included in such registration statement in accordance with the plan of
distribution set forth therein, or (iv) the conditions to closing specified
in the purchase agreement or underwriting agreement entered into in
connection with such registration are not satisfied or waived other than by
reason of some act or omission by such Initiating Holder.
INFONET shall not be obligated pursuant to this Section 4(b) to file
and have declared effective (i) more than one registration statement during
the period between the Effective Date and the first anniversary of the
Effective Date, inclusive, (ii) more than two registration statements
during any consecutive 12-month period after the first anniversary of the
Effective Date and (iii) any registration statement which does not cover at
least five percent (5%) of the total shares of capital stock outstanding as
of the closing of INFONET's initial public offering.
Shares of Stock proposed to be registered and sold pursuant to an
underwritten offering for the account of the Initiating Holders pursuant to
this Section 4 (b) shall be sold to prospective underwriters designated by
the Initiating Holders and reasonably satisfactory to Infonet and any
Piggybacking Holders and on the terms and subject to the conditions of one
or more underwriting agreements negotiated among INFONET, the Registering
Holders and the prospective underwriters.
INFONET may include in any such registration statement other shares of
capital stock of INFONET; provided, however, that (i) if such registration
-------- -------
statement relates to an underwritten offering and the prospective
underwriters of such offering determine in good faith that the aggregate
number of shares of capital stock of INFONET which all Holders and INFONET
propose to include in such registration statement exceeds the maximum
number of shares of capital stock that should be included therein, INFONET
will include in such registration, first, the Stock of the Initiating
Holders participating in the offering pro rata among such Initiating
Holders on the basis of the
7
<PAGE>
relative amount of Stock owned by all such Initiating Holders, second the
Stock of any Piggybacking Holders participating in the offering pursuant to
Section 4(a) pro rata among such Holders on the basis of the relative
amount of Stock owned by all such Piggybacking Holders, and, third, the
shares of capital stock which INFONET proposes to include in such
registration statement, and (ii) if such offering is not underwritten, then
no other shares of capital stock of INFONET shall be included in such
registration statement unless the holders of a majority of the shares of
Stock held by the Holders participating in the offering consent to the
inclusion of such shares therein (which consent shall not be unreasonably
withheld).
INFONET shall not be required to effect a registration pursuant to
this Section 4(b) (other than on Form S-3 or a similar short form, if then
------------
permitted) until a period of 90 days has elapsed from the effective date of
the most recent previous registration which was not effected on Form S-3 or
similar short form, except in the case of a registration in which any
Holders shall have been prevented from including in such previous
registration more than 25% of the amount of Stock which such Holders
requested to have included because of a reduction required hereunder, in
which case such period shall be 45 days. The right of the Initiating
Holders to request a registration of Stock pursuant to this Section 4(b)
------------
shall not apply to any Holder to whom INFONET shall deliver an opinion of
its counsel, which opinion shall be reasonably satisfactory to such Holder,
that all of the Stock which such Holder proposes to sell may lawfully be
sold or distributed publicly without registration within a period of 90
days commencing on the date which is 45 days after the date of such
Holder's registration request.
Each Registering Holder agrees that, upon receipt of any notice from
INFONET of the happening of any event requiring the preparation of a
supplement or amendment to a prospectus prepared pursuant to this Section 4
so that, as thereafter delivered to the purchasers of such Stock, such
prospectus will not contain an untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to
make the statements therein not misleading, such Registering Holder will
forthwith discontinue disposition of Stock pursuant to the registration
statement covering such Stock until such Registering Holder's receipt of
the copies of the supplemented or amended prospectus contemplated hereby.
If so directed by INFONET, such Registering Holder will deliver to INFONET
all copies, other than permanent file copies then in such Registering
Holder's possession, of the most recent prospectus covering such Stock at
the time of receipt of such notice. Each Registering Holder of Stock agrees
that it will immediately notify INFONET at any time when a prospectus
relating to the registration of such Stock is required to be delivered
under the Securities Act of the happening of any event as a result of which
information previously furnished by such Registering Holder to INFONET in
writing for inclusion in such prospectus contains an untrue statement of a
material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein not misleading in light
of the circumstances in which they were made. In the event INFONET shall
give such notice, INFONET shall extend the period during which such
registration statement shall be maintained effective by the number of days
during the period from and including the date of the giving of notice
pursuant to this paragraph to
8
<PAGE>
the date when INFONET shall make available to the Registering Holders of
Stock covered by such registration statement a prospectus supplement
amended to conform with the requirements hereof.
(c) Holdback Agreements. Notwithstanding any other provision of
-------------------
this Section 4, each Registering Holder agrees that it will not (and it
---------
shall be a condition to the rights of each such Holder under this Section 4
---------
that such Holder does not) offer for public sale any Stock for such period
following the effective date of the registration statement as INFONET and
the Registering Holders may agree with the underwriters in a written
agreement in connection with an underwritten public offering, unless such
Stock is covered by such registration statement or a separate effective
registration statement.
Notwithstanding any other provision of this Section 4, INFONET agrees
---------
that it will not and it will cause its affiliates (other than the Class A
Holders) not to effect any public or private sale or distribution of its
capital stock including a sale pursuant to Regulation D or Rule 144 or Rule
144A under the Securities Act during the ten days prior to and the 90 days
after the effective date of any such registration statement (or the
commencement of the public offering in the case of Rule 415 offerings) in
connection with an underwritten offering, to the extent timely requested by
the prospective underwriters (except as part of such underwritten
registration or pursuant to registrations on Form S-4 or S-8 or any
successor form to such forms).
(d) Exchangeable Securities, etc. In the event any Registering
----------------------------
Holder offers any options, rights, warrants or other securities issued by
it or any other person that are offered with, convertible or exchangeable
into or exercisable for any Stock, the Stock underlying such options,
rights warrants or other securities shall continue to be eligible for
registration pursuant to Sections 4(a) and 4(b) hereof; provided that, at
any time during which INFONET is eligible to use a Form S-3 or a similar
short form, if then permitted), INFONET shall file a shelf registration
statement in respect of such Stock which it shall keep continuously
effective, so as to permit, subject to such exceptions as are customary and
reasonably agreed to by such Holders, the sale on a registered basis of the
Class B Stock at the time the options, rights, warrants or other securities
are converted into or exercised for Class B Stock.
(e) Expenses. All Registration Expenses (as defined below) in
--------
connection with any registration under this Section 4 shall be borne by
---------
INFONET. Registration Expenses shall include all expenses, disbursements
and fees incident to INFONET's performance of, or compliance with this
Agreement, including, without limitation:
(1) all expenses in connection with the preparation of the
registration statement, any preliminary prospectus or final prospectus, any
other offering document and amendments and supplements thereto;
(2) all registration and filing fees (including with respect to
filings required to be made with the National Association of Securities
Dealers) and all fees and expenses incurred in connection with the listing
of the Stock on each securities exchange
9
<PAGE>
on which similar securities issued by INFONET are then listed;
(3) fees and expenses of compliance with securities or blue sky
laws of or within the United States of American (including reasonable fees
and disbursements of counsel for the underwriters or Registering Holders in
connection with blue sky qualifications of the Stock and determination of
their eligibility for investment under the laws of such jurisdictions as
the managing underwriters or the Registering Holders may reasonably
designate);
(4) printing, messenger, telephone and delivery expenses,
including the cost of mailing and delivery of copies of any documents
mentioned in (i) above to the underwriters or dealers;
(5) fees and disbursements of counsel for INFONET and reasonable
fees and disbursements for one common counsel for the Registering Holders;
(6) fees and disbursements of all independent certified public
accountants of INFONET (including the expenses of any special audit and
"cold comfort" letters required by or incident to such performance);
(7) fees and disbursements of underwriters (excluding discounts,
commissions or fees of underwriters, selling brokers, dealer managers or
similar securities industry professional relating to the distribution of
the Stock) to the extent set forth in the underwriting agreement (into
which underwriting agreement INFONET agrees to enter upon customary terms
and conditions); and
(8) out-of-pocket expenses incurred by INFONET's offering
participants and INFONET's advisors in connection with any "road show".
INFONET shall also pay all transfer taxes with respect to the Stock sold by
each such Holder.
(f) Registration Procedures. In connection with any
-----------------------
registration of shares of Stock under the Securities Act pursuant to this
Agreement, (i) any shares of Stock which are to be sold must be converted
by the Holder thereof prior to such sale into shares of Class B Stock, and,
notwithstanding anything else contained herein, no Holder shall have any
right to have any Class A Stock registered, and (ii) INFONET will furnish
each Holder whose Stock is registered thereunder and each prospective
underwriter, if any, with a copy of the registration statement and all
amendments thereto and will supply each such Holder and each such
underwriter, if any, with copies of any prospectus included therein
(including any preliminary prospectus and all amendments and supplements
thereto) in such quantities as may be reasonably necessary for the purposes
of the proposed sale or distribution covered by such registration. INFONET
shall not, however, subject to Section 4(b) above, be required to maintain
the registration statement and to supply copies of a prospectus for a
period beyond 90 days after the effective date of such registration
statement and, at the end of such period, INFONET may deregister
10
<PAGE>
any Stock covered by such registration statement not then sold or
distributed.
In connection with INFONET's registration obligations pursuant to
this Section 4, INFONET will use its best efforts to effect such
---------
registrations to permit the sale of such Stock in accordance with the
intended method or methods of disposition thereof, and pursuant thereto
INFONET will as expeditiously as possible:
(i) prepare and file with the Commission, as soon as
practicable a registration statement or registration statements on any
appropriate form under the Securities Act (a "Registration
------------
Statement"), which form shall be available for the sale of the Stock
---------
in accordance with the intended method or methods of distribution
thereof, and use its best efforts to cause such Registration Statement
to become effective; provided that before filing a Registration
--------
Statement or any prospectus related thereto (a "Prospectus") or any
----------
amendments or supplements thereto, including documents incorporated by
reference after the initial filing of any Registration Statement,
INFONET will furnish to the Holders of the Stock covered by such
Registration Statement and the prospective underwriters, if any,
copies of all such documents proposed to be filed, which documents
will be subject to the review of such Holders and such underwriters.
If the Holders of a majority in interest of the Stock covered by such
Registration Statement shall reasonably object to any disclosure in
any Registration Statement or any amendment thereto or any Prospectus
or any supplement thereto (including documents incorporated by
reference) which INFONET in good faith on the advice of counsel
believes is necessary or appropriate to be included therein, and prior
to the effectiveness of such Registration Statement advises INFONET
that they choose not to participate in such offering, the Holders may
choose not to participate in such offering. For the purposes of this
paragraph (i) such Holders and such underwriters shall be deemed to
-------------
have no objections if INFONET has not received notice from any such
Holder or underwriter within five business days after delivery of such
documents to such Holders and underwriters. For the purposes of this
paragraph (i), objections to information specifically required to be
-------------
included in the Registration Statement by the Commission or pursuant
to statute or rules shall not be deemed to be reasonable;
(ii) prepare and file with the Commission such amendments and
post-effective amendments to a Registration Statement as may be
necessary to keep such Registration Statement continuously effective
and to comply with the provisions of the Securities Act with respect
to the disposition of all capital stock of INFONET covered by such
Registration Statement by such legislation statement for 90 days
(subject to Section 4(b) above), or until such earlier time as all of
the Stock registered thereon has been sold; cause the related
Prospectus to be supplemented by any required Prospectus supplement,
and as so supplemented to be filed pursuant to Rule 424 under the
Securities Act with respect to the disposition of all capital stock of
INFONET covered by such Registration Statement during the applicable
period in accordance with the intended methods of disposition by the
sellers thereof set forth in such Registration Statement;
11
<PAGE>
(iii) notify the selling Holders and the prospective
underwriters, if any, promptly, and (if requested by any such person)
confirm such advice in writing, (1) when a Prospectus or any
Prospectus supplement or post-effective amendment has been filed, and,
with respect to a Registration Statement or any post-effective
amendment, when the same has become effective, (2) of any request by
the Commission for amendments or supplements to a Registration
Statement or related Prospectus or for additional information, (3) of
the issuance by the Commission of any stop order suspending the
effectiveness of a Registration Statement or the initiation of any
proceedings for that purpose, (4) if at any time the representations
and warranties of INFONET contemplated by paragraph (xiv) below cease
---------------
to be true and correct, (5) of the receipt by INFONET of any
notification with respect to the suspension of the qualification of
any of the Stock for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, and (6) of the
existence of any fact which results in a Registration Statement, a
Prospectus or Prospectus supplement or any document incorporated
therein by reference containing an untrue statement of a material fact
or omitting to state a material fact required to be stated therein or
necessary to make the statements therein not misleading;
(iv) make every reasonable effort to obtain the withdrawal
of any order suspending the effectiveness of a Registration Statement
at the earliest possible moment;
(v) if requested by the prospective underwriters or a
selling Holder, immediately incorporate in a Prospectus supplement or
post-effective amendment such information as the prospective
underwriters or the holders of a majority of the Stock being sold by
Holders agree should be included therein relating to the sale of such
Stock, including without limitation, information with respect to the
amount of Stock being sold to such underwriters, the purchase price
being paid therefor by such underwriters and with respect to any other
terms of the underwritten (or best efforts underwritten) offering of
the Stock to be sold in such offering; and make all required filings
of such Prospectus supplement or post-effective amendment as soon as
notified of the matters to be incorporated in such Prospectus
supplement or post-effective amendment;
(vi) furnish to such selling Holder and each prospective
underwriter, without charge, at least one signed copy of the
Registration Statement and any post-effective amendment thereto,
including financial statements and schedules, all documents
incorporated therein by reference and all exhibits (including those
incorporated by reference);
(vii) deliver to such selling Holder and the prospective
underwriters, if any, without charge, as many copies of the Prospectus
(including each preliminary Prospectus) and any amendment or
supplement thereto as such persons may reasonably request; INFONET
hereby consents to the use of the
12
<PAGE>
Prospectus or any amendment or supplement thereto by each of the
selling Holders and the prospective underwriters, if any, in
connection with the offering and sale of the Stock covered by such
Prospectus or any amendment or supplement thereto;
(viii) prior to any public offering of Stock, register or
qualify or cooperate with the selling Holders, the prospective
underwriters, if any, and their respective counsel in connection with
the registration or qualification of such Stock for offer and sale
under the securities or "blue sky" laws or such jurisdictions within
the United States as any Holder or prospective underwriter reasonably
requests in writing and do any and all other acts or things necessary
or advisable to enable the disposition in such jurisdictions of the
Stock covered by the Registration Statement; provided that INFONET
--------
will not be required to qualify generally to do business in any
jurisdiction where it is not then so qualified or to take any action
which would subject it to general service of process in any such
jurisdiction where it is not then so subject;
(ix) cooperate with the selling Holders and the prospective
underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing shares of Stock to be sold and
not bearing any restrictive legends; and enable such shares of Stock
to be in such denominations and registered in such names as the
prospective underwriters may request at least two business days prior
to any sale of Stock to the prospective underwriters;
(x) use its best efforts to cause the Stock covered by the
Registration Statement to be registered with or approved by such other
governmental agencies or authorities within the United States as may
be necessary to enable the Holders or the prospective underwriters, if
any, to consummate the disposition of such Stock;
(xi) if any fact contemplated by paragraph (iii)(6) above
------------------
shall exist, prepare a supplement or post-effective amendment to the
Registration Statement or the related Prospectus or any document
incorporated therein by reference or file any other required document
so that, as thereafter delivered to the purchasers of the Stock being
sold thereunder, such Prospectus will not contain an untrue statement
of a material fact or omit to state any material fact necessary to
make the statements therein not misleading;
(xii) cause all Stock covered by any Registration Statement
to be listed on each securities exchange on which similar securities
issued by INFONET are then listed if requested by the Holders of a
majority of the shares of Stock or the prospective underwriters, if
any;
(xiii) provide a CUSIP number for all shares of Stock, not
later than the effective date of the Registration Statement;
13
<PAGE>
(xiv) enter into such agreements (including an underwriting
agreement) and take all such other actions in connection therewith in
order to expedite or facilitate the disposition of such Stock and in
such connection, whether or not an underwriting agreement is entered
into and whether or not the registration is an underwritten
registration: (1) make such representations and warranties to the
Holders and the prospective underwriters, if any, in form, substance
and scope as are customarily made by issuers to underwriters in
primary underwritten offerings; (2) obtain opinions of counsel to
INFONET and updates thereof (which counsel and opinions (in form,
scope and substance) shall be reasonably satisfactory to the
prospective underwriters, if any, and the Holders holding a majority
of the Stock being sold) addressed to each selling Holder and the
prospective underwriters, if any, covering the matters customarily
covered in opinions requested in underwritten offerings and such other
matters as may be reasonably requested by such Holders and
underwriters; (3) obtain "cold comfort" letters and updates thereof
from INFONET's independent certified public accountants, addressed to
the selling Holders and the prospective underwriters, if any, such
letters to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters to underwriters in
connection with primary underwritten offerings; (4) if an underwriting
agreement is entered into, the same shall set forth in full the
indemnification provisions and procedures of Section 4(g) hereof with
------------
respect to all parties to be indemnified pursuant to said section; and
(5) INFONET shall deliver such documents and certificates as may be
requested by the Holders holding a majority of the Stock being sold
and the prospective underwriters, if any, to evidence compliance with
clause (1) above and with any customary conditions contained in the
----------
underwriting agreement or other agreement entered into by INFONET.
The above shall be done at each closing under such underwriting or
similar agreement or as and to the extent required thereunder;
(xv) make available for inspection by a representative of
the Holders of a majority of the shares of Stock being sold, any
prospective underwriter participating in any disposition pursuant to a
Registration Statement, and any attorney or accountant retained by
such selling Holders or underwriter, all financial and other records,
pertinent corporate documents and properties of INFONET, and cause
INFONET's officers, directors and employees to supply all information
reasonably requested by such representative, underwriter, attorney or
accountant in connection with such Registration Statement; provided
--------
that any records, information or documents that are designated by
INFONET in writing as confidential shall be kept confidential by such
persons unless disclosure of such records, information or documents is
required by court or administrative order; and
(xvi) send appropriate officers, after consultation with
the Registering Holders and, in the case of an underwritten offering,
the managing underwriters, to attend a reasonable number of "road
show" and analyst presentations scheduled in connection with any such
registration, with all out-of-
14
<PAGE>
pocket costs and expenses incurred by INFONET or such officers in
connection with such attendance to be paid by INFONET in accordance
with Section 4(d) above.
(xvii) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make generally
available to the holders of capital stock of INFONET earnings
statements satisfying the provisions of Section 11(a) of the
Securities Act, no later than 45 days after the end of any 12-month
period (or 90 days, if such period is a fiscal year) (1) commencing at
the end of any fiscal quarter in which Stock is sold to underwriters
in an underwritten offering, or, if not sold to underwriters in such
an offering, (2) beginning with the first month of INFONET's first
fiscal quarter commencing after the effective date of a Registration
Statement, which statements shall cover said 12-month periods.
(g) Conditions to Holders' Rights; Indemnification by Holders.
---------------------------------------------------------
It shall be a condition of each Holder's rights hereunder to have Stock
owned by it registered that:
(i) such Holder shall cooperate with INFONET by supplying
information and executing documents relating to such Holder or the
securities of INFONET owned by such Holder in connection with such
registration;
(ii) such Holder shall enter into such undertakings and take
such other action relating to the conduct of the proposed offering
which INFONET or the prospective underwriters may reasonably request
as being necessary to insure compliance with federal and state
securities laws and the rules or other requirements of the National
Association of Securities Dealers, Inc. or otherwise to effectuate the
offering; and
(iii) such Holder shall execute and deliver an agreement to
indemnify and hold harmless INFONET, each of its directors, each of
its officers who has signed the Registration Statement, any
underwriter (as defined in the Securities Act), and each person, if
any, who controls INFONET or such underwriter within the meaning of
the Securities Act, against such losses, claims, damages or
liabilities (including reimbursement for legal and other expenses) to
which INFONET or any such director, officer, underwriter or
controlling person may become subject under the Securities Act or
otherwise, in such manner as is customary for registrations of the
type then proposed and, in any event, at least equivalent in scope to
indemnities given by INFONET in connection with such registration, but
only with respect to information furnished by such Holder in writing
expressly for use in the Registration Statement or prospectus in
connection with such registration.
(h) Indemnification by INFONET. In the event of any registration
--------------------------
under the Securities Act of any Stock either pursuant to this Section 4, or in
---------
connection with the
15
<PAGE>
initial public offering of shares of Class B Stock of INFONET pursuant to the
registration statement on Form S-1 initially filed with the Commission on
October 12, 1999, INFONET hereby agrees to indemnify and hold harmless each
Holder disposing of such Stock in connection with such disposition and any
prospective underwriters in connection with an underwritten offering to the
extent set forth in the underwriting agreement (into which underwriting
agreement INFONET agrees to enter upon customary terms and conditions) against
such losses, claims, damages or liabilities (including reimbursement for legal
and other expenses as they are incurred) to which such Holder or underwriter may
become subject under the Securities Act or otherwise insofar as such losses,
claims, damages or liabilities arise out of or are based upon any untrue
statement or alleged untrue statement of material fact contained in any
registration statement or any amendment thereof, any preliminary prospectus or
prospectus (as amended or supplemented) relating to the Stock, or arise out of
or are based upon any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading; provided, that INFONET shall not be liable to any Holder in any
such case to the extent that any such loss, claim, damage, liability (or action
or proceeding in respect thereof) or expense arises out of or is based upon any
untrue statement or alleged untrue statement or omission or alleged omission
made in such registration statement or amendment or supplement thereto or in any
such preliminary, final or summary prospectus in reliance upon and in conformity
with written information with respect to any Holder furnished to INFONET by such
Holder for use in the preparation thereof. The indemnity agreements contained in
this Section 4(h) shall not apply to amounts paid in settlement of claims if
such settlement is effectuated without the consent of INFONET (which shall not
be unreasonably withheld).
5. Future Class A Stockholders. Each Class A Stockholder agrees that
---------------------------
each person who acquires shares of Class A Stock of INFONET during the term of
this Agreement, whether such shares are acquired from INFONET or a Class A
Stockholder, shall be required to execute a counterpart of this Agreement, and
any such transfer of any Class A Stock of INFONET to any person who does not
execute a counterpart of this Agreement shall not be effective. Upon executing
such counterpart, each such person shall become a "Class A Stockholder"
hereunder.
6. Assignment of Rights. Neither this Agreement nor any rights hereunder
--------------------
may be assigned or transferred, except in conjunction with a transfer of a Class
A Stockholder's interest in its shares of Class A Stock of INFONET in accordance
with the terms of this Agreement.
7. Term; Termination. Each party to this Agreement (including subsequent
-----------------
Class A Stockholders) shall remain bound by this Agreement for so long as it
owns any shares of Class A Stock of INFONET. This Agreement shall remain in
effect for the maximum duration permitted by applicable law and for so long as
there is more than one holder of Class A Stock of INFONET.
8. Entire Agreement; Amendments and Waivers. This Agreement constitutes
----------------------------------------
the entire agreement among the Class A Stockholders pertaining to the subject
matter hereof and supersedes all prior agreements, understandings, negotiations
and discussions, whether oral or
16
<PAGE>
written, of the parties hereto. This Agreement may be amended only in a writing
signed by each of the Class A Stockholders and INFONET. No waiver of this
Agreement shall be binding unless executed in writing by the party to be bound
thereby. No waiver of any of the provisions of this Agreement shall be deemed or
shall constitute a waiver of any other provision hereof (whether or not
similar), nor shall such waiver constitute a continuing waiver unless otherwise
expressly provided.
9. Headings. The headings of the paragraphs and sections herein are
--------
inserted for convenience of reference only and are not intended to be a part of
or to affect the meaning or interpretation of this Agreement.
10. Notices. Unless otherwise provided herein, any notice, request,
-------
instruction or other document to be given hereunder by any party to the others
shall be in writing and shall be deemed to be given and effective (i) upon
delivery if delivered in person or by courier, (ii) when sent by electronic
transmission (telegraph, telex, telecopy or facsimile transmission), receipt
confirmed, (iii) five days after being sent by airmail, postage prepaid or (iv)
when receipt is acknowledged if mailed by certified mail, postage prepaid,
return receipt requested, in each case to the address of record for each Class A
Stockholder as shown in the records of INFONET.
11. Choice of Law. This Agreement shall be construed, interpreted and
-------------
the rights of the parties determined in accordance with the laws of the State of
Delaware.
12. Arbitration. Any controversy or claim arising out of or relating to
-----------
this Agreement, or the breach thereof, shall be resolved by final and binding
arbitration conducted in Los Angeles, California, in accordance with the
Commercial Arbitration Rules of the American Arbitration Association then in
effect (the "AAA Rules"). Any such arbitration shall be conducted by one
---------
neutral arbitrator selected by the parties to such dispute. If such parties
cannot agree on an arbitrator within 30 days after any of such parties notifies
the other such parties of its election to arbitrate, then within 5 days after
such 30-day period, each such party shall select an arbitrator and, within 10
days after such 5-day period, all of such arbitrators shall select one neutral
arbitrator. If such arbitrators are not able to so agree on the selection of a
neutral arbitrator, then one neutral arbitrator shall be selected in accordance
with the AAA Rules. Any award issued as a result of such arbitration shall be
final and binding between the parties thereto, and shall be enforceable by any
court having jurisdiction over the party against whom enforcement is sought.
The fees and expenses of such arbitration shall be shared equally by the parties
thereto, provided, that each party thereto shall bear the costs of its own
--------
lawyers, accountants, experts, etc. Notwithstanding the foregoing, any
preliminary legal proceedings (including attachment) may be brought in any court
of competent jurisdiction in any jurisdiction in which either party has a legal
presence.
13. Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
14. Invalidity. In the event that any one or more of the provisions
----------
contained in
17
<PAGE>
this Agreement or in any other instrument referred to herein, shall, for any
reason, be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provision
of this Agreement or any other such instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, or
have caused this Agreement to be duly executed on their respective behalf by
their respective officers thereunto duly authorized, as of the day and year
first above written.
INFONET SERVICES CORPORATION, a Delaware corporation
By:________________________________________________________
Jose A. Collazo
Chairman of the Board and President
TELEFONICA INTERNATIONAL HOLDING B.V.
By:________________________________________________________
Name:
Title:
TELSTRA CORPORATION LIMITED
By:________________________________________________________
Name:
Title:
SWISSCOM AG
By:________________________________________________________
Name:
Title:
18
<PAGE>
KPN ROYAL DUTCH TELECOM
By:________________________________________________________
Name:
Title:
TELIA AB
By:________________________________________________________
Name:
Title:
KDD CORPORATION
By:________________________________________________________
Name:
Title:
19
