A G R E E M E N T
AGREEMENT, dated as of February 22, 2000 (the "Agreement") among
Global Crossing Ltd., a company formed under the laws of Bermuda ("Global
Crossing"), IPC Communications, Inc., a Delaware Corporation ("IPC"), IXnet,
Inc., a Delaware Corporation ("IXnet") and a subsidiary of IPC, and the
individuals signatory hereto (each, a "Holder").
WHEREAS, Global Crossing, IPC and IXnet propose to enter into an
Agreement and Plan of Merger among Global Crossing Ltd., Georgia Merger Sub
Corporation, IPC Communications, Inc., Idaho Merger Sub Corporation, and IXnet
Inc. (the "Merger Agreement"); and
WHEREAS, IPC sponsors the IPC Communications, Inc. 1999 Stock
Incentive Plan ("IPC Option Plan") pursuant to which options have been granted
to certain Holders to purchase shares of IPC common stock ("IPC Options"); and
WHEREAS, IXnet sponsors the IXnet, Inc. 1999 Stock Option Plan ("IXnet
Option Plan") pursuant to which options have been granted to certain Holders to
purchase shares of IXnet common stock ("IXnet Options") (collectively, IPC
Options and IXnet Options shall be referred to as "Options"); and
WHEREAS, pursuant to Section 2(c) of each of the IPC Option Plan and
the IXnet Option Plan, a "Change of Control" is deemed to occur, inter alia,
upon the approval by the stockholders of the sponsoring corporation of a
transaction of the type contemplated by the Merger Agreement; and
WHEREAS, pursuant to Section 5(c) of the IPC Option Plan, each IPC
Option shall become vested and exercisable in full immediately prior to a Change
in Control; and
WHEREAS, pursuant to Section 5(c) of the IXnet Option Plan and Section
5 of the IXnet Option Plan Grant Certificate for Executive Officers ("IXnet
Option Agreement"), 50% of the then unvested IXnet Options shall become
immediately vested, whether or not such IXnet Options are otherwise exercisable
as of such vesting date; and
WHEREAS, each such Holder wishes to amend such Holder"s Option
Agreements to limit the number of Options that shall become vested in connection
with the Mergers (as such term is defined in the Merger Agreement).
NOW, THEREFORE, it is hereby agreed by and among Global Crossing, IPC,
IXnet, and each of the Holders whose name appears on the signature pages below,
that:
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1. Each Option Agreement of each Holder is hereby amended to provide that,
notwithstanding the provisions of Section 5 of the IPC Option Plan and the
IXnet Option Plan and Section 5 of the IXnet Option Agreement, (a) 50% of
the unvested IPC Options under the IPC Option Agreement (determined in the
order in which such Options otherwise would vest) and (b) 25% of the
unvested IXnet Options under the IXnet Option Agreement (determined in the
order in which such Options otherwise would vest) will become vested on the
Change in Control arising as a result of the Mergers and such Change in
Control shall not constitute an event requiring vesting with respect to the
remaining IPC Options or IXnet Options held by such Holder. Global Crossing
shall pay to the relevant taxing authorities or, at the option of the
Holder, shall reimburse the Holder such amount that, on an after-tax basis
(including federal income, employment and excise taxes, and state and local
income, employment and excise taxes, if any) equals the excise tax, if any,
pursuant to Section 4999 of the Code imposed upon the Holder by reason of
the vesting of such percentage of his or her Options and any subsequent
vesting of his or her remaining Options, provided, that the aggregate for
all Holders of such reimbursement shall not exceed $20,000,000, payable as
follows: with respect to excise taxes imposed upon one or more Holders by
reason of the vesting of Options on the first date on or following the
Mergers, such Holders shall be reimbursed their applicable reimbursement
amounts fully, to the extent the aggregate reimbursements do not exceed
$20,000,000. If the aggregate reimbursements do exceed $20,000,000, then
each Holder shall be reimbursed an amount equal to his applicable full
reimbursement amount, multiplied by a fraction, the numerator of which is
$20,000,000, and the denominator of which is the aggregate reimbursements
payable with respect to such date. To the extent the aggregate
reimbursements on such first date do not exceed $20,000,000, reimbursements
will be payable on subsequent vesting dates in accordance with the foregoing
provisions until aggregate reimbursements have totaled $20,000,000. However,
on each subsequent date, the numerator in the referenced fraction shall be
adjusted to equal $20,000,000, minus the aggregate reimbursements already
payable or paid on preceding vesting dates.
2. Each Holder agrees that, pursuant to the Mergers, all IPC Options and IXnet
Options then held by such Holder shall be converted into options to acquire
shares of common stock of Global Crossing ("Rollover Options"), upon the
terms and conditions set forth in the Merger Agreement.
3. All Rollover Options held by a Holder with respect to IPC Options or IXnet
Options that do not vest pursuant to the amendments set forth in Paragraph 1
will vest over a three (3) year period, as follows: one third on the first
anniversary of the Closing Date (as such term is defined in the Merger
Agreement); one third on the second anniversary of the Closing Date; and one
third on the third anniversary of the Closing Date.
4. Each Holder agrees that 75% of the sum of the number of common shares of
Global Crossing (i) acquired by such Holder in connection with the Mergers
in
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respect of shares of IPC or IXnet issued pursuant to option or benefit plans
of IPC or IXnet, respectively, and (ii) issuable upon the exercise of vested
Rollover Options (regardless of exercisability) as of the date of the
Mergers (after giving effect to the amendments set forth in Paragraph 1
above and Paragraph 6 below (as demonstrated in the attached table))
(collectively, the "Restricted Shares") may not be transferred without the
written consent of Global Crossing, provided that (a) on the first
anniversary of the Mergers, the transfer restriction provided for in this
Paragraph 4 shall apply to only fifty percent (50%) of such Restricted
Shares (without regard to any sales or other transfers by such Holder since
the Mergers), and (b) on the second anniversary of the Mergers, the transfer
restriction provided for in this Paragraph 4 shall cease to apply to any of
the Restricted Shares. A table demonstrating the effect of Paragraph 4(ii)
only is attached, which table is subject to correction for any erroneously
inserted current Option positions.
5. Notwithstanding anything herein or in the IPC Option Plan, the IXnet Option
Plan, or the IXnet Option Certificate to the contrary, in the event of the
death or Disability (as such term is defined in the IPC Option Plan and the
IXnet Option Plan) of the Holder, or in the event of the termination of the
Holder"s employment without Cause (as such term is defined in the IPC Option
Plan) or by the Holder for Good Reason (as such term is defined in the IXnet
Option Certificate, except for such changes as are necessitated by reason of
IPC or IXnet no longer being publicly held companies), or in the event of a
change in control (as such term is defined in the standard option agreement
for executive officers issued under the 1998 Global Crossing Ltd. Stock
Incentive Plan as Amended and Restated as of December 7, 1999), all of such
Holder"s Rollover Options shall immediately vest and become exercisable and
the transfer restriction set forth in Paragraph 4 above shall cease to apply
to such Holder.
6. With respect only to IXnet Options held by David Walsh ("DWalsh"), Global
Crossing, IPC, IXnet and DWalsh agree that (a) pursuant to Paragraphs 1 and
2 hereof, in connection with the Change in Control arising in connection
with the Mergers, DWalsh shall have vested rights in 50% of his IXnet
Options; (b) he hereby relinquishes and forfeits any additional vested
rights to his IXnet Options existing immediately prior to the Change in
Control arising in connection with the Mergers; (c) all of his unexercised
vested and unvested IXnet Options shall be converted into Rollover Options;
and (d) all such unvested Rollover Options shall vest in accordance with
Paragraphs 3 and 5 hereof.
7. This Agreement may be executed by the parties hereto on any number of
separate counterparts, and all such counterparts so executed shall
constitute one agreement binding on all the parties notwithstanding that all
the parties are not signatories to the same counterpart.
8. This Agreement and the rights and obligations of the parties hereunder are
to be governed by and construed and interpreted in accordance with the laws
of the State of Delaware.
9. All provisions of this Agreement are binding upon, inure to the benefit of
and are enforceable by or against the parties and their respective heirs,
executors, administrators or other legal representatives and permitted
successors and assigns.
10. Whenever possible, each provision or portion of any provision of this
Agreement will be interpreted in such manner as to be effective and valid
under applicable law but if any provision or portion of any provision of
this Agreement is held to be invalid, illegal or unenforceable in any
respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other
provision or portion of any provision in such jurisdiction, and this
[The Remainder of this Page is Intentionally Left Blank]
Agreement will be reformed, construed and enforced in such jurisdiction as
if such invalid, illegal or unenforceable provision or portion of any
provision had never been contained herein.
11. No provision of this Agreement may be waived unless in writing signed by
each party to this Agreement adversely affected by such waiver, and the
waiver of any
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one provision of this Agreement shall not be deemed to be a waiver of any
other provision. This Agreement may be amended, supplemented or otherwise
modified only by a written agreement executed by all of the parties to this
Agreement.
12. This Agreement and the other agreements referred to herein constitute the
entire agreement, and supersede all prior agreements and understandings,
both written and oral, among the parties with respect to the subject matter
of this Agreement. This Agreement is not intended to confer upon any person
other than the parties any rights or remedies.
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IN WITNESS WHEREOF, Global Crossing Ltd., IPC Communications, Inc. and
IXnet, Inc. have caused this Agreement to be executed by their respective duly
authorized officers and each of the undersigned Holders has executed this
Agreement as of the date hereof.
GLOBAL CROSSING, LTD.
By: /s/ Thomas J. Casey
-----------------------------
Name: Thomas J. Casey
Title: Vice Chairman
IPC COMMUNICATIONS, INC.
By: /s/ David Walsh
-----------------------------
Name: David Walsh
Title: Chief Executive Officer
IXNET, INC.
By: /s/ David Walsh
-----------------------------
Name: David Walsh
Title: Chief Executive Officer
/s/ William Adiletta
-------------------------
William Adiletta
/s/ James Demitrieus
--------------------------
James Demitrieus
/s/ John Faccibane
--------------------------
John Faccibane
/s/ Richard Farrell
---------------------------
Richard Farrell
/s/ Peter Hase
----------------------------
Peter Hase
/s/ Drew Kelton
----------------------------
Drew Kelton
/s/ John McSherry
-----------------------------
John McSherry
/s/ Paul Pluschell, Jr.
-----------------------------
Paul Pluschell, Jr.
/s/ Alexander Russo
-----------------------------
Alexander Russo
/s/ Anthony Servidio
-----------------------------
Anthony Servidio
/s/ David Walsh
------------------------------
David Walsh
/s/ William Walsh
------------------------------
William Walsh
/s/ Timothy Whelan
-------------------------------
Timothy Whelan
/s/ Robert Woog
-------------------------------
Robert Woog
Agreement - Global Crossing Ltd., IPC Communications Inc., and IXnet Inc.
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