AMENDMENT NO. 2
AMENDMENT NO. 2, dated as of September 2, 1999 (this 'Amendment'),
among GLOBAL CROSSING LTD., a Bermuda company ('Global'), GCF ACQUISITION
CORP., a New York corporation and a wholly owned subsidiary of Global
('Merger Sub'), and FRONTIER CORPORATION, a New York corporation
('Frontier'), to the Agreement and Plan of Merger, dated as of March 16, 1999
and amended as of May 16, 1999 (the 'Original Agreement'), among Global,
Merger Sub and Frontier. Capitalized terms used but not defined herein shall
have the meanings ascribed to such terms in the Original Agreement.
WHEREAS, Frontier and Global have agreed to amend the Original
Agreement on the terms provided herein;
WHEREAS, the shareholders of Global who are party to the Voting
Agreement have reaffirmed the Voting Agreement in light of this Amendment and
have agreed to certain restrictions on the transfer of their shares, which
reaffirmation and lock-up agreement is attached hereto as Exhibit A; and
WHEREAS, certain additional shareholders of Global and certain
shareholders of Frontier have entered into a Share Transfer Restriction
Agreement relating to certain restrictions on the transfer of their shares,
which Transfer Restriction Agreement is attached hereto as Exhibit B.
NOW, THEREFORE, in consideration of the foregoing and other good
and valuable consideration, receipt of which is hereby acknowledged, the
parties hereto agree as follows:
1. Amendment to Glossary of Defined Terms in the Original
Agreement. The Glossary of Defined Terms in the Original Agreement is hereby
amended by (i) deleting the reference to 'Section 1.8(a)' next to the term
'NASDAQ' and inserting in lieu thereof a reference to 'Section 1.10(g)(ii)
and (ii) deleting the following terms and related Section references:
Average Price, Cash Top-Up, Cash Top-Up Election, Combination Election,
Determination Date, Frontier Evaluation Period, Global Adjustment Election,
Global Election Period, Specified Value and Termination Notice.
2. Amendment to Section 1.2 of the Original Agreement. Section
1.2 of the Original Agreement is hereby amended by deleting the phrase
beginning with the words 'provided, however, that' up to and including the
words ', in all cases' in their entirety.
3. Amendment to Section 1.8(a) of the Original Agreement. Section
1.8(a) of the Original Agreement is hereby amended by deleting such Section
in its entirety and inserting in lieu thereof the following:
(a) At the Effective Time by virtue of the Merger and without any
action on the part of the holder thereof, each share of Frontier Common
Stock issued and outstanding immediately prior to the Effective Time
(other than shares of Frontier Common Stock owned or held directly or
indirectly by Global or directly by Frontier, all of which shall be
canceled as provided in Section 1.8(c)) shall, be converted into the
right to receive that number of shares of Global Common Stock equal to
the Exchange Ratio (as defined below) (the 'MERGER CONSIDERATION').
'EXCHANGE RATIO' means 2.05 shares of Global Common Stock, as increased
by 7% per annum, compounded daily, from and after December 31, 1999 to
and including the Effective Time. If prior to the Effective Time,
Global should split or combine the shares of Global Common Stock, or pay
a stock dividend or other stock distribution in shares of Global Common
Stock, or otherwise change the shares of Global Common Stock into any
other securities, or make any other dividend or distribution on the
shares of Global Common Stock, then the Exchange Ratio will be
appropriately adjusted to reflect such split, combination, dividend or
other distribution or change.
4. Amendment to Section 1.10(c) of the Original Agreement.
Section 1.10(c) of the Original Agreement is hereby amended by deleting the
last sentence of clause (i) thereof in its entirety.
5. Amendment to Section 1.10(g)(ii) of the Original Agreement.
Section 1.10(g)(ii) of the Original Agreement is hereby amended by deleting
the word 'NASDAQ' and inserting in lieu thereof the words 'Nasdaq National
Market ('NASDAQ')'.
6. Amendment to Article II of the Original Agreement. Article II
of the Original Agreement is hereby amended as follows:
a. Section 2.1 of the Original Agreement is hereby amended by
deleting the words 'and, if applicable, cash to be paid as a
result of the Cash Top-Up pursuant to Section 7.1(g)';
b. Section 2.2 of the Original Agreement is hereby amended by (i)
deleting the words 'and any cash to be paid as a result of the
Cash Top-Up pursuant to Section 7.1(g)' in clause (B) of the
second sentence thereof and inserting the word 'and' after the
words 'Section 2.5,' in such clause, (ii) deleting the words
'or as a result of a Cash Top-Up pursuant to Section 7.1(g)'
in the third sentence thereof and inserting the word 'and'
after the words 'Section 2.3,' in such sentence and (iii)
deleting the words 'and as a result of a Cash Top-Up pursuant
to Section 7.1(g)' in the last sentence thereof and inserting
the word 'and' after the words 'Section 2.5,' in such
sentence;
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c. Section 2.3 of the Original Agreement is hereby amended by (i)
deleting the words 'and no cash payment as a result of a Cash
Top-Up pursuant to Section 7.1(g)' in the first sentence
thereof and (ii) deleting the words 'and any cash payment as a
result of a Cash Top-Up pursuant to Section 7.1(g)' in the
second sentence thereof and inserting the word 'and' after the
words 'Section 2.5,' in such sentence;
d. Section 2.4 of the Original Agreement is hereby amended by
deleting the words 'or as a result of a Cash Top-Up pursuant
to Section 7.1(g)' and inserting the word 'and' after the
words 'Section 2.3';
e. Section 2.6 of the Original Agreement is hereby amended by
deleting the words 'and any cash payment as a result of a Cash
Top-Up pursuant to Section 7.1(g)' and inserting the word
'and' after the words 'Section 2.5,';
f. Section 2.8 of the Original Agreement is hereby amended by
deleting the second sentence thereof in its entirety; and
g. Section 2.12 of the Original Agreement is hereby amended by
deleting the words 'and any cash payment as a result of a Cash
Top-Up pursuant to Section 7.1(g)' in the last sentence
thereof and inserting the word 'and' after the words 'Section
2.5,' in such sentence.
7. Amendment to Section 3.1(j) of the Original Agreement.
Section 3.1(j) of the Original Agreement is hereby amended by inserting the
following sentence at the end thereof: 'Frontier has received the opinion of
the Frontier Financial Advisor, dated September 2, 1999, to the effect that,
as of such date, the Exchange Ratio is fair, from a financial point of view,
to the holders of Frontier Common Stock, a copy of which opinion will be made
available to Global.'
8. Amendment to Section 3.2(i) of the Original Agreement.
Section 3.2(i) of the Original Agreement is hereby amended by inserting the
following sentence at the end thereof: 'Global has received the opinion of
the Global Financial Advisor, dated September 1, 1999, to the effect that, as
of such date, the Exchange Ratio is fair, from a financial point of view, to
Global, a copy of which opinion will be made available to Frontier.'
9. Amendment to Section 4.2(h) of the Original Agreement.
Section 4.2(h) of the Original Agreement is hereby amended by inserting the
words ', and shall take such actions as may be necessary to cause the Merger
to qualify (unless such actions would have a Material Adverse Effect on
Global after giving effect to the Merger),' after the word 'qualifying' in
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the first sentence thereof and inserting the words 'in which the exchange of
Frontier Common Stock is not subject to Section 367(a)(1) of the Code by
reason of Treas. Reg. Sec. 1.367(a)-3(c)' after the word 'Code' in such
sentence.
10. Amendment to Section 4.2(k) of the Original Agreement.
Section 4.2(k) of the Original Agreement is hereby amended by deleting the
second paragraph thereof in its entirety.
11. Amendment to Add a New Section 5.15 to the Original Agreement.
The Original Agreement shall be amended by inserting the following new
Section 5.15 immediately following Section 5.14 thereof:
5.15 SHARE REPURCHASE PROGRAM. Global shall promptly following the
Effective Time institute a six-month open-market stock repurchase
program relating to the repurchase of up to $500 million in the
aggregate of Global Common Stock from time to time, as determined by
Global, based on market conditions, in compliance with the rules and
regulations of the SEC, including Rule 10b-18, and consistent with
Global's obligations under Section 4.2(h) of the Agreement.
12. Amendment to Section 7.1(g) of the Original Agreement.
Section 7.1(g) of the Original Agreement is hereby amended by deleting such
Section in its entirety.
13. Amendment to Section 7.3 of the Original Agreement. Section
7.3 of the Original Agreement is hereby amended by inserting the following
sentence at the end thereof: 'For purposes of this Agreement, the words,
'this Agreement' shall mean this Agreement, as amended from time to time,
except to the extent such words refer to the date of this Agreement or the
date of the execution of this Agreement.'
14. Authorization, Execution and Delivery; No Conflicts.
(a) This Amendment has been duly authorized, executed and delivered by each
party hereto and constitutes a valid and binding agreement of each such
party, enforceable against such party in accordance with its terms, except as
such enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium and similar laws relating to or affecting creditors generally, by
general equity principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law) or by an implied covenant of
good faith and fair dealing.
(b) The execution and delivery of this Amendment does not or will
not, as the case may be, and the consummation of the transactions
contemplated hereby will not, conflict with, or result in a Violation
pursuant to: (A) any provision of the constituent documents of each party
hereto, or (B) except as would not have a Material Adverse Effect on such
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party and, subject to obtaining or making the consents, approvals orders,
authorizations, registrations, declarations and filings referred to in
paragraph (c) below, any loan or credit agreement, note, mortgage, bond,
indenture, lease, benefit plan or other agreement, obligation, instrument,
permit, concession, franchise, license, judgment, order, decree, statute,
law, ordinance, rule or regulation applicable to such party or any Subsidiary
of such party or their respective properties or assets.
(c) No consent, approval, order or authorization of, or
registration, declaration or filing with, any Governmental Entity is required
by or with respect to any party hereto or any Subsidiary of such party in
connection with the execution and delivery of this Amendment by such party or
the consummation of the transactions contemplated hereby, except for the
Required Consents and such consents, approvals, orders, authorizations,
registrations, declarations and filings the failure of which to make or
obtain would not have a Material Adverse Effect on such party.
15. Voting Agreement. Global represents and warrants to Frontier
that as of the date of this Amendment, after giving effect to this Amendment
and the reaffirmation of the Voting Agreement referred to in the second
recital of this Amendment, the shares subject to the Voting Agreement
constitute more than the Required Global Vote.
16. Effective Date; No Other Consents or Amendments. Each of the
parties hereto agrees that the amendments to the Original Agreement contained
herein shall be effective upon execution of this Amendment by each party
hereto. Except as expressly amended hereby, the provisions of the Original
Agreement are and shall remain in full force and effect. This Amendment
shall not be deemed to constitute a waiver of, or consent to, or a
modification or amendment of, any other provision of the Original Agreement
except as expressly provided herein or to prejudice any other right or rights
which any party may now have or may have in the future under or in connection
with the Original Agreement. This Amendment shall not constitute an agreement
or obligation of any party to consent to, waive, modify or amend any other
term, condition, subsection or section of the Original Agreement.
17. Governing Law. This Amendment shall be governed and
construed in accordance with the laws of the State of New York.
18. Counterparts. This Amendment may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts,
each of which when executed shall be deemed to be an original but all of
which taken together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, Global, Merger Sub and Frontier have caused
this Amendment to be executed as of the date first written above by their
respective officers thereunto duly authorized.
GLOBAL CROSSING LTD.
By: /s/ THOMAS J. CASEY
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Name: Thomas J. Casey
Title: Vice Chairman
GCF ACQUISITION CORP.
By: /s/ THOMAS J. CASEY
---------------------------------------
Name: Thomas J. Casey
Title: Vice Chairman
FRONTIER CORPORATION
By: /s/ JOSEPH P. CLAYTON
--------------------------------------
Name: Joseph P. Clayton
Title: Chief Executive Officer
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Agreement and Plan of Merger - Global Crossing Ltd. and Frontier Corp.
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