exv4w37



 





Exhibit 4.37



AMENDING AGREEMENT — SHARE PURCHASE AGREEMENT




     THIS AMENDING AGREEMENT — SHARE PURCHASE AGREEMENT dated with effect as
of the 11th day of March, 2004.



B E T W E E N:



	 	 	 
	

	 	TELEGLOBE INC., a corporation incorporated pursuant to
the laws of Canada
	

	 	 
	

	 	(hereinafter referred to as “TGO”),







OF THE FIRST PART




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	 	INTELSAT GLOBAL SALES & MARKETING LTD., a company
incorporated pursuant to the laws of England and Wales
	

	 	 
	

	 	(hereinafter referred to as “Global”)







OF THE SECOND PART




WHEREAS:




	A.	 	On May 15, 2002, TGO filed for creditor protection (the “Canadian
Insolvency Proceedings”) under the Companies’ Creditors Arrangement Act
(Canada) with the Ontario Superior Court of Justice.
	 
	B.	 	The parties hereto have entered into a Share Purchase Agreement dated as
of the 21st day of August, 2002 (the “Instrument”).
	 
	C.	 	The share certificate(s) described in the Instrument representing certain
ordinary shares of Intelsat, Ltd. (“Intelsat”), a Bermuda company, have
been deposited with Ernst & Young Inc. (the “Escrow Agent”), a Canadian
federal corporation, pursuant to an Escrow Agreement among TGO, Global and
the Escrow Agent dated as of the 20th day of September, 2002 (the “Escrow
Agreement”).
	 
	D.	 	In certain circumstances, the Instrument requires a determination of the
value of the ordinary shares of Intelsat.
	 
	E.	 	Intelsat did not effect a Distribution (as defined in the Instrument) by
December 31, 2003, and the Instrument provides for the appointment of a
valuator to determine the value of the shares.
	 
	F.	 	Intelsat intends to make a distribution of its ordinary shares to the
public and shall make the Initial Filing (as hereinafter defined) on March
12, 2004 or shortly thereafter.





 









 






	G.	 	The parties hereto wish to change the method of valuation of the said
ordinary shares for certain purposes under the Instrument and,
accordingly, wish to amend the Instrument and the Escrow Agreement to
provide that the value shall not be determined by an independent valuator
but instead shall be an amount which is 10% less than the amount which is
the 75th percentile of the range of the initial public offering price per
share in the Initial Filing.





     NOW THEREFORE, in consideration of the premises and the sum of $1.00 now
paid by each party hereto to the other party hereto (the receipt and
sufficiency whereof is hereby acknowledged), it is hereby agreed and provided
by the parties hereto as follows:




	1.	 	Terms which are defined in the Instrument shall have the same meaning
where used herein.
	 
	2.	 	The Instrument is hereby amended as follows:






	 	(a)	 	by inserting the following at the end of the definition of
“Agreed Value” in Section 1.1 of the Instrument:
	 
	 	 	 	[“; provided that, if on or before March 30, 2004] Intelsat has
made the Initial Filing and the Second Court Approval has been
obtained, then for the purposes of Section 3.3 “Agreed Value” in
respect of the Ordinary Shares means the amount within the range of
the initial public offering price per share set forth in the
prospectus contained within the Initial Filing, determined by the
following formula:





	 	 	 
	

	 	0.90 (0.25A + 0.75B);
	

	 	 
	

	 	where A is the low amount in the range; and
	

	 	 
	

	 	where B is the high amount in the range.








	 	 	 	By way of illustration only, if A = 15 and B = 17, the Agreed Value
would be calculated in the following steps:





	 	 	 	 	 
	

	 	Step One:
	 	Multiply 0.25 by A, which equals 3.75;
	

	 	 	 	 
	

	 	Step Two:
	 	Multiply 0.75 by B, which equals 12.75;
	

	 	 	 	 
	

	 	Step Three:
	 	Add 3.75 and 12.75, which equals 16.50;
	

	 	 	 	 
	

	 	Step Four:
	 	Multiply the result in Step
Three, namely 16.50, by 0.90, which equals 14.85;”








	 	(b)	 	by inserting the following after the definition of
“Documents” in Section 1.1 of the Instrument:




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	 	 	 	""Effective Date” means the first Business Day following the date
upon which (a) all rights of appeal from the Second Court Approval
have expired and (b) all appeals, if any, from the Second Court
Approval have been finally disposed of without modification to the
Second Court Approval, or such earlier or later date as the parties
hereto may agree;”
	 
	 	(c)	 	by replacing the definition of “Escrow Agreement” in Section
1.1 of the Instrument with the following:
	 
	 	 	 	""Escrow Agreement” means the agreement among TGO, Global and the
Escrow Agent with respect to the Escrow Property, in the form
attached hereto as Schedule B, as amended, supplemented, restated
or replaced from time to time;”
	 
	 	(d)	 	by inserting the following after the definition of “Escrow
Agreement” in Section 1.1 of the Instrument:
	 
	 	 	 	""Escrow Amendment” means the agreement among TGO, Global and the
Escrow Agent to be entered into, amending the Escrow Agreement;”
	 
	 	(e)	 	by inserting the following after the definition of “Global
Resale Amount” in Section 1.1 of the Instrument:
	 
	 	 	 	""Initial Filing” means the initial registration statement on Form
F-1 relating to the initial public offering of Ordinary Shares
filed after March 10, 2004 with the Securities and Exchange
Commission of the United States that contains a range of the
initial public offering price per share;”
	 
	 	(f)	 	by inserting the following after the definition of “Satellite
Leases” in Section 1.1 of the Instrument:
	 
	 	 	 	""Second Court Approval” means an order issued by the Ontario
Superior Court of Justice approving the Amending Agreement — Share
Purchase Agreement between TGO and Global dated as of the 10th day
of March, 2004 and the Escrow Amendment, in form and content
satisfactory to TGO and Global (each acting reasonably);”
	 
	 	(g)	 	by inserting the following after the definition of
“Terminated Leases” in Section 1.1 of the Instrument:
	 
	 	 	 	""this Agreement” means this Agreement as amended, supplemented,
restated or replaced from time to time;”
	 
	 	(h)	 	by replacing Section 3.3 of the Instrument with the
following:
	 
	 	 	 	“If on or before March 30, 2004 Intelsat has made the Initial
Filing and the Second Court Approval has been obtained, the Escrow
Agent shall, as promptly as practicable (but not before the
Effective Date), once both the Initial Filing has been made and the
Second Court Approval has been obtained, sell any Escrow




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	 	 	 	Property other than cash or Escrow Shares upon such terms, in such manner
and at such times as the Escrow Agent may determine, and the Escrow
Property shall be distributed and applied in the following
descending order of priority, as promptly as practicable following
such sale of all Escrow Property other than cash or Escrow Shares,
if any, and the determination of the Agreed Value of the Ordinary
Shares:






	 	(1)	 	first, any cash shall be paid to
Global in respect of the Global Resale Amount, but not
to exceed the amount thereof at that time;
	 
	 	(2)	 	second, such number of Escrow Shares
shall be transferred to Global which results from
dividing (A) the Global Resale Amount at that time,
after giving effect to the payment, if any, pursuant to
clause (1) above, by (B) the Agreed Value of the
Ordinary Shares; provided that neither TGO nor the
Escrow Agent shall have any liability to Global for any
portion of the Global Resale Amount which remains
unsatisfied if the aforesaid quotient exceeds the number
of Escrow Shares; and
	 
	 	(3)	 	third, subject to Article 4 hereof,
if there is any remaining cash or if there are any
Escrow Shares remaining after making the distributions
referred to above, any remaining cash and Escrow Shares
shall be transferred to TGO and all right, title and
interest therein shall be deemed to have been released
to TGO and shall be treated as a payment by Global to
TGO as an addition to the Purchase Price.”






	 	(i)	 	by replacing the preamble of Section 3.4 of the Instrument
with the following:
	 
	 	 	 	“If as of March 30, 2004 Intelsat has not made the Initial Filing
or the Second Court Approval has not been obtained, the Escrow
Agent shall promptly (but not before the Effective Date) sell any
Escrow Property other than cash or Escrow Shares upon such terms,
in such manner and at such times as the Escrow Agent may determine,
the Agreed Value of the Ordinary Shares shall be determined in
accordance with Article 5 hereof and the Escrow Property shall be
distributed and applied in the following descending order of
priority, as promptly as practicable following such sale of all
Escrow Property other than cash or Escrow Shares, if any, and the
determination of the Agreed Value of the Ordinary Shares:”
	 
	 	(j)	 	by replacing Section 5.1 of the Instrument with the
following:
	 
	 	 	 	“Global shall promptly make application for and shall diligently
seek the Second Court Approval. If on or before March 30, 2004
Intelsat has made the Initial Filing and the Second Court Approval
has been obtained, the Escrow Agent shall promptly (but not before
the Effective Date) determine the Agreed Value and notify Global
and TGO of the amount of such determination. If the determination
of the Agreed Value is required pursuant to Section 3.4 or Section




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	 	 	 	3.5, Global and TGO shall appoint an independent valuator (the
“Valuator”) to determine the Agreed Value for purposes of Section
3.3. If the determination of the Agreed Value is required pursuant
to Section 3.4 hereof, the Valuator shall be appointed on or before
April 16 2004. If the determination of the Agreed Value is
required pursuant to Section 3.5 hereof, the Valuator shall be
appointed on or before five (5) Business Days after the Liquidity
Event.”
	 
	 	(k)	 	by replacing the first sentence of Section 5.3 with the
following:
	 
	 	 	 	“The Valuator shall determine the Agreed Value as at the 30th day
of November, 2003 if the requirement for such determination arises
under Section 3.4, if applicable, or as at the date specified for
such determination pursuant to Section 3.5 hereof, if applicable,
based on financial information as of the date of determination, by
taking into account all relevant factors (including business
developments since such date).”






	3.	 	The Escrow Agreement shall be amended by the Escrow Amendment to conform
with the amendments herein contained, mutatis mutandis.
	 
	4.	 	TGO represents and warrants to Global as follows and acknowledges and
confirms that Global is relying on such representations and warranties in
entering into this Agreement:






	 	(a)	 	subject to receipt of the Second Court Approval, TGO has full
power, authority and legal right to enter into this Agreement and
the Escrow Amendment and to do all such acts and things as are
required to be done, observed and performed in accordance with the
terms hereof and thereof.






	5.	 	Global represents and warrants to TGO as follows and acknowledges and
confirms that TGO is relying on such representations and warranties in
entering into this Agreement:






	 	(a)	 	Global is a company duly incorporated, organized and
subsisting under the laws of its jurisdiction of incorporation, and
has all necessary corporate power and has all requisite power and
authority to own or lease its assets;
	 
	 	(b)	 	Global has full power, authority and legal right to enter
into this Agreement and the Escrow Amendment and to do all such acts
and things as are required to be done, observed and performed in
accordance with the terms hereof and thereof;
	 
	 	(c)	 	each of this Agreement and the Escrow Amendment has been duly
authorized, executed and delivered by Global, neither this Agreement
nor the Escrow Amendment is not in contravention of or in conflict
with the Memorandum or the Articles of Association of Global or any
applicable law, rule, regulation, order or
decree binding upon Global or to which any of its assets or
properties are subject, neither this Agreement nor the Escrow
Amendment constitutes a default under any agreement by which Global
is bound or to which any of its assets or properties are subject,
and each of this Agreement and the Escrow Agreement is a legal,
valid and binding obligation of Global, enforceable against Global
by TGO (to the extent TGO is a party thereto) in accordance with
its terms, except as





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	 	 	 	enforcement may be limited by bankruptcy,
insolvency and other laws affecting the enforcement of rights of
creditors generally and that equitable remedies may only be granted
in the discretion of a court of competent jurisdiction; and
	 
	 	(d)	 	no action of, approval, authorization, consent or order of,
and no designation, filing, further registration, qualification or
recording with any governmental body is required to authorize or is
otherwise required in connection with or for the execution, delivery
or performance of Global of this Agreement or the Escrow Amendment,
except as already obtained.






	6.	 	The representations and warranties made in Sections 4 and 5 hereof shall
survive the execution and delivery of this Agreement and the Escrow
Amendment and shall continue in full force and effect thereafter.
	 
	7.	 	The Instrument as amended by this Agreement shall continue in full force
and effect and is hereby ratified and confirmed.





[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]




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     IN WITNESS WHEREOF the parties have executed and delivered this Agreement.



	 	 	 	 	 	 	 
	

	 	TELEGLOBE INC.
	 	
	 	 	 	 	 	 	 
	

	 	Per:	 	/s/ John Brunette	 	 
	

	 	 	 	
 	 	 
	

	 	 	 	Name: John Brunette	 	 
	

	 	 	 	Title: CEO	 	 
	

	 	 	 	 	 	 
	 	 	 	 	 	 	 
	

	 	INTELSAT GLOBAL SALES & MARKETING LTD.	 	 
	 	 	 	 	 	 	 
	

	 	Per:
	 	/s/ John Stanton	 	 
	

	 	 	 	
 	 	 
	

	 	 	 	Name: John Stanton	 	 
	

	 	 	 	Title: President	 	 







     Ernst & Young Inc. in its capacity as Monitor under the Canadian
Insolvency Proceedings hereby approves the Agreement set forth above.



     Dated this     11th    day of March, 2004.



	 	 	 	 	 	 	 
	

	 	ERNST & YOUNG INC.
	 	
	

	 	 	 	 	 	 
	

	 	Per:	 	/s/ Brian Denega	 	 
	

	 	 	 	
 	 	 
	

	 	 	 	Name: Brian Denega	 	 
	

	 	 	 	Title: Senior Vice President	 	 








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