<PAGE> 1
EXHIBIT 5.1
[LETTERHEAD OF APPLEBY, SPURLING & KEMPE]
[ ], 2000
Goldman, Sachs & Co.
Salomon Smith Barney Inc.
Merrill Lynch, Pierce, Fenner & Smith (Incorporated)
(As representatives of the several Underwriters)
c/o Goldman, Sachs & Co.
85 Broad Street
New York, N.Y. 10004
USA
Dear Sirs
ASIA GLOBAL CROSSING LIMITED (THE "COMPANY")
We have acted as legal counsel in Bermuda to the Company and this
opinion as to Bermuda law is addressed to you in connection with the
proposed offer by the Company of an aggregate [ ] Class 'A' Common
Shares of par value US$0.01 each (the "Common Shares") (including the
[ ] additional shares which are subject, to an over-allotment option)
pursuant to a prospectus ("the Prospectus"), forming part of the
Registration Statement on Form S-1 (No. 333-#####) ("the Registration
Statement") filed with the Securities and Exchange Commission under the
Securities Act of 1933, as amended (the "Securities Act").
Unless otherwise defined in this opinion or the Schedules to it,
capitalised terms have the meanings assigned to them in the
Underwriting Agreement.
For the purposes of this opinion we have examined and relied upon the
documents listed (which, in some cases, are also defined) in Schedule 1
to this opinion (the "Documents").
ASSUMPTIONS
In stating our opinion we have assumed:-
<PAGE> 2
2
(a) the authenticity, accuracy and completeness of all Documents
(including, without limitation, public records) submitted to
us as originals and the conformity to authentic original
Documents of all Documents submitted to us as certified,
conformed, notarised or photostatic copies;
(b) the genuineness of all signatures on the Documents;
(c) the authority, capacity and power of each of the persons
signing the Documents (other than the Company);
(d) that any factual statements made in any of the Documents are
true, accurate and complete;
(e) that the Underwriting Agreement constitutes the legal, valid
and binding obligations of each of the parties thereto, other
than the Company, under the laws of its jurisdiction of
incorporation or its jurisdiction of formation;
(f) that the Underwriting Agreement has been validly authorised,
executed and delivered by each of the parties thereto, other
than the Company, and the performance thereof is within the
capacity and powers of each such party thereto, and that each
such party to which the Company purportedly delivered the
Underwriting Agreement has actually received and accepted
delivery of the Underwriting Agreement;
(g) that the Underwriting Agreement will effect, and will
constitute legal, valid and binding obligations of each of the
parties thereto, enforceable in accordance with its terms,
under the laws of the State of New York by which it is
expressed to be governed;
(h) that the Underwriting Agreement is in the proper legal form to
be admissible in evidence and enforced in the courts of the
State of New York and in accordance with the laws of the State
of New York;
(i) that there are no provisions of the laws or regulations of any
jurisdiction other than Bermuda which would be contravened by
the execution or delivery of the Underwriting Agreement or
which would have any implication in relation to the opinion
expressed herein and that, in so far as any obligation under,
or action to be taken under, the Underwriting Agreement and
the Bye-laws of the Company is required to be performed or
taken in any jurisdiction outside Bermuda, the performance of
such obligation or the taking of such action will constitute a
valid and binding obligation of each of the parties thereto
under the laws of that jurisdiction and will not be illegal by
virtue of the laws of that jurisdiction;
(j) that the Searches were complete and accurate at the time that
they were made and disclosed all information which is material
for the purposes of this opinion and such
<PAGE> 3
3
information has not since such date been materially altered;
(k) that the Resolutions are in full force and effect and have not
been rescinded, either in whole or in part and accurately
record the resolutions passed by the Board of Directors of the
Company or the Shareholders, as the case may be, at meetings
which were duly convened and at which duly constituted quorums
were present and voting throughout and accurately record the
resolutions adopted by the Directors and Shareholders of the
Company;
(l) the Company has entered into its obligations under the
Underwriting Agreement in good faith for the purpose of
carrying on its business and that, at the time it did so,
there were reasonable grounds for believing that the
transactions contemplated by the Underwriting Agreement would
benefit the Company;
(m) that none of the Underwriters is carrying on (whether
generally or in connection with the Underwriting Agreement)
investment business in or from within Bermuda in breach of
(and within the meanings of) The Investment Business Act 1998
of Bermuda; and
(n) that when executed any document presented to us in draft will
not differ in any material way from the draft which we have
examined.
OPINION
Based upon and subject to the foregoing and subject to the reservations
set out below and to any matters not disclosed to us, we are of the
opinion that:-
(1) The Company is a company duly organized, validly existing and
in good standing under the laws of Bermuda and has the
requisite power to conduct its business and to own its
properties as described in the Registration Statement and the
Prospectus and to enter into and perform the terms and
conditions of the Underwriting Agreement and to issue, sell
and deliver the Common Shares to the Underwriters as provided
therein.
(2) Based solely on paragraph 1 of the Officer's Certificate, the
Company is duly registered and qualified to conduct its
business and is in good standing in each jurisdiction or place
where the nature of its properties or the conduct of its
business requires such registration or qualification except
where failure so to register or qualify to be in good standing
would not have a Material Adverse Effect.
[NOT YET (3) The Company's authorised share capital is US$25,200,000
INCREASED] divided into 1,200,000,000 Class 'A' Common Shares of par
value US$0.01 each, 1,200,000,000 Class 'B' Common Shares of
par value US$0.01 each and 120,000,000 Preferred Shares of par
value US$0.01 each.
<PAGE> 4
4
(4) All of the authorised and issued shares of the Company based
solely on paragraph 2 of the Officer's Certificates, prior to
the issuance of the Common Shares have been duly and validly
authorised and the share register of each of Pacific Crossing
Holdings Ltd. and GCT Pacific Holdings Ltd. (the "Bermuda
Subsidiaries") discloses that all of the issued shares of each
Bermuda Subsidiary are registered in the name of the Company.
We have searched the Register of Charges maintained by the
Registrar of Companies in Bermuda against the name of the
Company and the Bermuda Subsidiaries this search has disclosed
[no charges [ ] over the shares of the Company and of any of
the Bermuda Subsidiaries]. Registration of charges is not
mandatory and charges may exist over the shares of the Company
and the Bermuda Subsidiaries without having been registered.
Accordingly we cannot opine definitively that there are no
charges over the shares of the Company or the Bermuda
Subsidiaries.
(5) The Common Shares to be issued and sold to the Underwriters
under the Underwriting Agreement have been duly authorised and
when issued to the Underwriters against payment therefore in
accordance with the terms of the Underwriting Agreement will
be validly issued, fully paid and non-assessable.
(6) The Company has taken all necessary corporate action to
authorise the execution and delivery of the Underwriting
Agreement to which it is a party, and the performance by it of
the transactions contemplated therein.
(7) The issue by the Company of the Compmon Shares and the
execution and delivery by the Company of, and the performance
of its obligations under and compliance with the provisions
of, the Underwriting Agreement to which it is a party will
not:
(a) violate any provision of any applicable law of
Bermuda, nor, as far as can be ascertained from
public records, any regulation or order of any
governmental, judicial or public body or authority of
or in Bermuda;
(b) violate the Constitutional Documents; or
(c) result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of
the Company, or the Bermuda Subsidiaries.
(8) The Underwriting Agreement to which the Company is a party,
constitutes legal, valid and binding obligations of the
Company, enforceable against the Company in accordance with
their terms. When issued, paid for and delivered to the
Underwriters pursuant to the Underwriting Agreement, the
Common Shares will be validly issued fully paid and
non-assessable shares of the Company with the rights set out
in the Bye-laws of the Company which will constitute valid,
binding and enforceable rights.
<PAGE> 5
5
(9) Other than obtaining the consent of the Bermuda Monetary
Authority to the issue and transferability of the Common
Shares and the filing of the Prospectus with the Registrar of
Companies, there is no registration or filing with, or
consent, license, approval, declaration, permission,
authorisation, exemption or similar instrument of, or the
taking of any other action by, any person in Bermuda which is
required in connection with the issue or sale of Common Shares
or the execution, delivery or performance by the Company of
the Underwriting Agreement to which it is a party, or to
ensure the legality, validity, enforceability or admissibility
in evidence of the Underwriting Agreement in Bermuda.
(10) Based solely upon our Searches (which are not conclusive), no
litigation, arbitration or administrative proceedings are
presently current or pending in Bermuda with respect to the
Company, or any Bermuda Subsidiary and no notice has been
filed with the Registrar of Companies of the passing of a
resolution to wind up or appoint a liquidator or receiver and
no petition has been presented for the appointment of a
receiver or liquidator to or for the dissolution,
reconstruction or reorganisation of the Company or any of its
respective assets.
(11) Neither the Company nor any of its properties or assets enjoys
under Bermuda law any rights or immunity from legal
proceedings in Bermuda, or from enforcement, execution of
judgment upon or attachment of its property or assets or
otherwise.
(12) The choice of the laws of the State of New York to govern the
Underwriting Agreement is a proper, valid and binding choice
of law and will be recognized and applied by the Courts of
Bermuda, assuming that such choice of law is a valid and
binding choice of law under the laws of the State of New York,
and provided that (i) the point is specifically pleaded; and
(ii) recognition would not be contrary to public policy as
that term is understood under Bermuda law.
(13) The irrevocable submission by the Company to the jurisdiction
of the New York State and Federal courts sitting in New York
and as is provided for in the Underwriting Agreement and the
appointment of the Process Agent also provided for in the
Underwriting Agreement constitutes the legal, valid and
binding submission and appointment of the Company, provided
that such submission and appointment is accepted by the New
York State and Federal Courts sitting in New York and, with
respect to the appointment of Process Agent, provided that no
other procedural requirements are necessary in order to
validate such appointment.
(14) A final and conclusive judgment of the United States Federal
or New York State Courts based upon the Shares, or the
Underwriting Agreement under which a sum of money is payable
(not being a sum payable in respect of taxes or other charges
of a like nature, in respect of a fine or other penalty, or in
respect of multiple damages as defined in The Protection of
Trading Interests Act 1981) may be the subject of enforcement
proceedings in the Supreme Court of Bermuda without
re-examination
<PAGE> 6
6
of the merits of the case under the common law doctrine of
obligation by action on the debt evidenced by the foreign
court's judgment. On general principles, we would expect such
proceedings to be successful provided that the court which
gave the judgment was competent to hear the action in
accordance with private international law principles as
applied in Bermuda and the judgment is not contrary to public
policy in Bermuda, has not been obtained by fraud or in
proceedings contrary to natural justice and is not based on an
error in Bermuda law.
Enforcement of such a judgment against assets in Bermuda may
involve the conversion of the judgment debt into Bermuda
dollars, but the Bermuda Monetary Authority has indicated that
its present policy is to give the consents necessary to enable
recovery in the currency of the obligation.
(15) The statements in the Prospectus under the captions "Service
of Process and Enforcement of Liabilities", "Certain Income
Consequences - Taxation of Asia Global Crossing" - "Bermuda
Tax Considerations", "Taxation of Holders - Bermuda Tax
Considerations" insofar as they purport to describe the
provisions of the laws of Bermuda referred to therein, are
accurate and correct in all material respects.
(16) No stamp or other issuance or transfer taxes or duties and no
capital gains, income, withholding or other taxes are payable
by or on behalf of the Underwriters to the Bermuda Government
or to any political subdivision or taxing authority thereof or
therein in connection with the execution of the Underwriting
Agreements or in connection with the issuance or sale of the
Common Shares.
RESERVATIONS
We have the following reservations:-
(a) The term "enforceable" as used in this opinion means that the
obligations assumed by the relevant party under the Bye-laws
of the Company and the Underwriting Agreement are of a type
which the courts of Bermuda enforce. It does not mean that
those obligations will necessarily be enforced in all
circumstances in accordance with their terms, because of the
matters referred to in reservation (b).
(b) We express no opinion as to the availability of equitable
remedies such as specific performance or injunctive relief, or
as to any matters which are within the discretion of the
courts of Bermuda in respect of any obligations of the Company
as set out in the Underwriting Agreement and in the Bye-laws
of the Company. Further, we express no opinion as to the
validity or binding effect of any waiver of or obligation to
waive either any provision of law (whether substantive or
procedural) or any right or remedy.
(c) Enforcement of the obligations of the Company under
<PAGE> 7
7
the Underwriting Agreement may be limited or affected by
applicable laws from time to time in effect relating to
bankruptcy, insolvency or liquidation or any other laws or
other legal procedures affecting generally the enforcement of
creditors' rights.
(d) Enforcement of the obligations of the Company may be the
subject of a statutory limitation of the time within which
such proceedings may be brought.
(e) We express no opinion as to any law other than Bermuda law and
none of the opinions expressed herein relates to compliance
with or matters governed by the laws of any jurisdiction
except Bermuda. This opinion is limited to Bermuda law as
applied by the Courts of Bermuda at the date hereof.
(f) Where an obligation is to be performed in a jurisdiction other
than Bermuda, the courts of Bermuda may refuse to enforce it
to the extent that such performance would be illegal under the
laws of, or contrary to public policy of, such other
jurisdiction.
(g) We express no opinion as to the validity, binding effect or
enforceability of any provision incorporated into the Bye-laws
of the Company or either of the Underwriting Agreements by
reference to a law other than that of Bermuda, or as to the
availability in Bermuda of remedies which are available in
other jurisdictions.
(h) Where a person is vested with a discretion or may determine a
matter in his or its opinion, such discretion may have to be
exercised reasonably or such an opinion may have to be based
on reasonable grounds.
(i) We express no opinion as to the validity or binding effect of
any provision of the Bye-laws of the Company or of the
Underwriting Agreement which provides for the severance of
illegal, invalid or unenforceable provisions.
(j) A Bermuda court may refuse to give effect to any provisions of
the Underwriting Agreements and the Bye-laws of the Company in
respect of costs of unsuccessful litigation brought before the
Bermuda court or where that court has itself made an order for
costs.
(k) Searches of the Register of Companies at the office of the
Registrar of Companies and of the Supreme Court Causes Book at
the Registry of the Supreme Court are not conclusive and it
should be noted that the Register of Companies and the Supreme
Court Causes Book do not reveal:
(i) whether an application to the Supreme Court for a
winding up petition or for the appointment of a
receiver or manager has been prepared but not yet
been presented or has been presented but does not
appear in the Causes Book at the date and time the
Search is concluded;
<PAGE> 8
8
(ii) whether any arbitration or administrative proceedings
are pending or whether any proceedings are
threatened, or whether any arbitrator has been
appointed;
(iii) details of matters which have been lodged for filing
or registration which as a matter of general practice
of the Registrar of Companies would have or should
have been disclosed on the public file but have not
actually been registered or to the extent that they
have been registered have not been disclosed or
appear in the public records at the date and time the
search is concluded;
(iv) whether a receiver or manager has been appointed
privately pursuant to the provisions of a debenture
or other security, unless notice of the fact has been
entered in the register of charges in accordance with
the provisions of the Act.
Furthermore, in the absence of a statutorily defined system
for the registration of charges created by companies
incorporated outside Bermuda ("overseas companies") over their
assets located in Bermuda, it is not possible to determine
definitively from searches of the register of charges
maintained by the Registrar of Companies in respect of such
overseas companies what charges have been registered over any
of their assets located in Bermuda or whether any one charge
has priority over any other charge over such assets.
(l) In opinion paragraph (1) above, the term "good standing" means
that the Company has received a Certificate of Compliance from
the Registrar of Companies and means that the Bermuda
Subsidiaries have neither failed to make any filing with any
Bermuda governmental authority nor to pay any Bermuda
government fee or tax, which might make it liable to be struck
off the Register of Companies and thereby cease to exist under
the laws of Bermuda. We have relied solely on the Officer's
Certificate for the purposes of stating in paragraph (2) of
this opinion that "the Company, and each of the Bermuda
Subsidiaries is duly registered and qualified to conduct its
business and is in good standing in each jurisdiction or place
where the nature of its properties or the conduct of its
business requires such registration or qualification, except
where failure so to register or qualify to be in good standing
would not have a Material Adverse Effect."
(m) The irrevocable submission by the Company to the jurisdiction
of the courts sitting in New York as referred to in opinion
paragraph (12) above may not prohibit the Company or a holder
of the Common Shares from filing and pursuing proceedings in
the courts of Bermuda in connection with the Common Shares or
the Bye-laws of the Company.
(n) We express no opinion as to the validity or binding effect of
any provision in the Underwriting Agreement for the payment of
interest at a higher rate on overdue amounts than on amounts
which are current, or that liquidated damages or a penalty
<PAGE> 9
9
are or may be payable. Such a provision may not be enforceable
if it could be established that the amount expressed as being
payable was in the nature of a penalty; that is to say a
requirement for a stipulated sum to be paid irrespective of,
or necessarily greater than, the loss likely to be sustained
or if it is expressed as a penalty. If it cannot be
demonstrated to the Bermuda court that the higher payment was
a reasonable pre-estimate of the loss suffered, the court will
determine and award what it considers to be reasonable
damages. Section 9 of The Interest and Credit Charges
(Regulations) Act 1975 provides that the Bermuda courts have
discretion as to the amount of interest, if any, payable on
the amount of a judgment after date of judgment. If the Court
does not exercise that discretion, then interest will accrue
at the statutory rate which is currently 7% per annum.
(o) Any reference in this opinion to shares being "non-assessable"
shall mean, in relation to fully-paid shares of the Company
and subject to any contrary provision in any agreement in
writing between the Company and the holder of shares, that: no
shareholder shall be obliged to contribute further amounts to
the capital of the Company, either in order to complete
payment for their shares, to satisfy claims of creditors of
the Company, or otherwise; and no shareholder shall be bound
by an alteration of the Memorandum of Association or Bye-Laws
of the Company after the date on which he became a
shareholder, if and so far as the alteration requires him to
take, or subscribe for additional shares, or in any way
increases his liability to contribute to the share capital of,
or otherwise to pay money to the Company.
DISCLOSURE
This opinion is addressed to you solely for your benefit and is neither
to be transmitted to any other person, nor relied upon by any other
person or for any other purpose nor quoted or referred to in any public
document nor filed with any governmental agency or person, without our
prior written consent, except as may be required by law or regulatory
authority. Further, this opinion speaks as of its date and is strictly
limited to the matters stated herein.
This opinion is addressed to you in connection with the issue and sale
of the Shares and is not to be made available to, or relied on by any
other person or entity, or for any other purpose, without our prior
written consent.
This opinion is governed by and is to be construed in accordance with
Bermuda law. It is given on the basis that it will not give rise to any
legal proceedings with respect thereto in any jurisdiction other than
Bermuda.
Yours faithfully,
<PAGE> 10
SCHEDULE 1
1. A faxed copy of a [draft] of an original Registration
Statement on Form F-1 with respect to the offer of the Common
Shares excluding Exhibits and the documents incorporated by
reference.
2. A faxed copy of the [draft dated [ ]] Prospectus.
3. A faxed copy of the Underwriting Agreement between the
Company, Goldman Sachs & Co., Salomon Smith Barney Inc.,
Merrill Lynch, Pierce, Fenner & Smith, as Representatives
of the several Underwriters (as therein defined) ("the
Underwriting Agreement").
4. Certified copies dated [ , 2000] of the Minutes of the
Meetings of the Board of Directors of the Company held on
[ , 2000] and the resolutions adopted at the Special General
Meeting of the Shareholders of the Company on [ , 2000] (the
"Resolutions").
5. The entries and filings shown in respect of the Company on the
files of the Company maintained at the office of the Registrar
of Companies in Hamilton, Bermuda, as revealed by a search
completed at [ ]. (Bermuda time) on [DATE] for the Company.
6. The entries and filings shown in the Supreme Court Causes Book
maintained at the Registry of the Supreme Court in Hamilton,
Bermuda, as revealed by a search completed at [ ]. (Bermuda
time) on [ ] in respect of the Company.
(The searches referred to in items 5 and 6 above are together
referred to as the "Searches").
7. Certified copies dated [ , 2000] of the Certificate of
Incorporation, Memorandum of Association and Bye-laws of the
Company (the "Constitutional Documents").
8. A Certificate of Compliance dated [ , 2000] issued by the
Ministry of Finance in respect of the Company.
9. A copy certified on [DATE], of the Register of Directors and
Officers in respect of the Company.
10. A copy of a letter, dated [ , 2000] evidencing the consent
of the Bermuda Monetary Authority to the issue by the Company
of the Common Shares.
<PAGE> 11
11. A copy of the Officer's Certificate dated [DATE] and issued by
[ ] as [ ] of the Company on which we have relied completely
and exclusively, without any further enquiry for the purposes
of our statements in opinion paragraphs 2, 4 and 5 (the
"Officer's Certificate").
