SECOND REAFFIRMATION OF VOTING AGREEMENT
AND SHARE TRANSFER RESTRICTION AGREEMENT
SECOND REAFFIRMATION OF VOTING AGREEMENT AND SHARE TRANSFER RESTRICTION
AGREEMENT, dated as of September 2, 1999 (this 'Agreement'), to the Voting
Agreement, dated as of March 16, 1999 (the 'Voting Agreement'), among certain
shareholders (collectively, the 'Shareholders') of Global Crossing Ltd., a
company formed under the laws of Bermuda ('Global'), Frontier Corporation, a
New York corporation (together with its successors and assigns, 'Frontier'),
and Global.
A. Simultaneously with their execution of the Voting Agreement,
Global, Frontier and GCF Acquisition Corp. ('Merger Sub') entered into an
Agreement and Plan of Merger (the 'Merger Agreement'), providing for, among
other things, the merger of Merger Sub with and into Frontier (the 'Merger').
B. Simultaneously with their execution of the Reaffirmation of
Voting Agreement, dated as of May 16, 1999, Global, Frontier and Merger Sub
entered into Consent and Amendment No. 1 to the Merger Agreement ('Amendment
No. 1').
C. The parties intend concurrently with the execution of this
Agreement to execute Amendment No. 2 ('Amendment No. 2') to the Merger
Agreement, as amended by Amendment No. 1, in order to provide for certain
changes to the terms and conditions thereof.
D. The parties to the Voting Agreement now desire to amend
certain provisions of the Voting Agreement in accordance with Section 4(c) of
the Voting Agreement.
E. Each Shareholder beneficially owns shares of Common Stock,
par value $.01 per share, of Global as set forth opposite such Shareholder's
name on Exhibit A. All such shares, together with any shares of capital
stock of Global such Shareholder hereinafter acquires, are referred to herein
as the 'Subject Shares'.
F. The Shareholders and Global desire to enter into this
Agreement to provide for, among other things, certain restrictions on the
sale or other transfer of the record ownership or beneficial ownership, or
both, of the Subject Shares during the term of this Agreement.
G. Capitalized terms not otherwise defined herein shall have
the meanings ascribed to them in the Voting Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, and intending to be legally bound
hereby, the parties hereto hereby agree as follows:
SECTION 1. Second Reaffirmation of Voting Agreement.
1.1 Supplement. Section 1(c) of the Voting Agreement is
hereby supplemented by the following: 'Each Shareholder acknowledges receipt
and review of a copy of Amendment No. 2.'
1.2 Second Reaffirmation. Each Shareholder reaffirms its
obligations under Section 1(a) of the Voting Agreement to be present, in
person or represented by proxy, at each meeting of shareholders of Global or
in connection with any written consent and to vote (or cause to be voted) or
to deliver a written consent (or cause a consent to be delivered) covering
all the Subject Shares held by such Shareholder and all Voting Shares to
approve the Share Issuance and the Global Charter Amendment and any action
required in furtherance thereof and of the Merger and if applicable, the
Alternative Merger, and against any action which would reasonably be expected
to result in a failure of the conditions described in Section 6.3 of the
Merger Agreement to be satisfied, all pursuant to the terms and conditions
set forth in the Merger Agreement, as amended by Amendment No. 1 and
Amendment No. 2.
SECTION 2. Covenants of the Shareholders. As between each
of the Shareholders and Global the following agreements in this Section 2
shall be applicable:
2.1 Transfer of Subject Shares. During the term of this
Agreement, each Shareholder shall not transfer record ownership or beneficial
ownership, or both, of any Subject Shares; provided, that each Shareholder
shall be permitted to transfer ownership of Subject Shares (i) in connection
with donations to charitable organizations, (ii) pledges or similar security
arrangements with third party lenders, (iii) if consented to, prior to the
Effective Time, by Global and Frontier, (iv) if consented to, subsequent to
the Effective Time, by a committee (the 'Committee') of the Board of
Directors of Global consisting of one former representative of Frontier (the
'Frontier Representative') and one Global member (such consent not to be
unreasonably withheld), (v) in connection with a qualified or other domestic
relations order or other judicial order, and (vi) in connection with
transfers made solely for estate planning purposes, so long as the transferee
agrees in writing to be bound by the terms of this Agreement. For the
purpose of this Agreement, the term 'transfer' means a sale, an assignment, a
grant, a transfer, or other disposition of any Subject Shares or any interest
of any nature in any Subject Shares, including, without limitation, the
'beneficial ownership' of such Subject Shares (as determined pursuant to
Regulation 13D-G under the Securities Exchange Act of 1934, as amended).
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Nothing herein shall affect the obligations of each Shareholder under Section
2 of the Voting Agreement.
2.2 Post Termination Sales. Each Shareholder shall in good
faith work toward implementing a program with the purpose that, if and when
any such Shareholder determines to sell or otherwise transfer the Subject
Shares subsequent to the Termination Date, such sales or transfers would be
effected in such a manner as to provide for an orderly trading market for
shares of Global Common Stock.
2.3 Further Assurances. Each Shareholder shall execute and
deliver during the term of this Agreement, such further certificates,
agreements and other documents as Global determines in its sole discretion
are necessary or appropriate to implement the restrictions on transfer of the
Subject Shares contained in Section 2.1 hereof.
SECTION 3. Representations and Warranties of the
Shareholders. Each Shareholder severally represents and warrants to each of
Frontier and Global as follows:
3.1 Power and Authority. Each Shareholder has all
requisite power and authority to execute and deliver and perform its
obligations under this Agreement.
3.2 Authorization; Contravention. The execution and
delivery by each Shareholder of this Agreement and the performance by it of
its obligations under this Agreement have, (1) in the case of each
Shareholder that is a corporation, been duly authorized by all necessary
corporate action and (2) do not and will not conflict with or result in a
violation pursuant to, (A) in the case of each Shareholder that is a
corporation, any provision of its certificate of incorporation or bylaws, or
similar organizational document, or (B) 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
Shareholder, the Subject Shares or any of such Shareholder's other properties
or assets.
3.3 Binding Effect. This Agreement, when executed and
delivered by each Shareholder will constitute a valid and binding obligation
of such Shareholder, enforceable against such Shareholder, 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' rights 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.
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3.4 Ownership. Each Shareholder is the record owner or
beneficial owner of the Subject Shares listed beside its name in Exhibit A,
free and clear of liens except with respect to pledges or other liens that
such Shareholder would be entitled to effect or create as of the date of this
Agreement pursuant to the second sentence of Section 2 of the Voting
Agreement and in accordance with the terms thereof. As of the date of this
Agreement, each Shareholder does not own beneficially or of record any equity
securities of Global other than the Subject Shares. No Shareholder has
appointed or granted any proxy which is still effective with respect to its
Subject Shares. Each Shareholder has sole voting power or power to direct
the vote of the Global Common Stock set forth beside its name on Exhibit A
and on the record date and the date of the Global Shareholders Meeting at
which the Share Issuance and the Global Charter Amendment and, if applicable,
the Alternative Merger, shall be presented for approval, each Shareholder
will have sole voting power or power to direct the vote of all such
Shareholder's Subject Shares.
3.5 Litigation. There is no action, suit, investigation,
complaint or other proceeding pending against any Shareholder or, to the
knowledge of any Shareholder, threatened against any Shareholder or any other
entity or person that restricts in any material respect or prohibits (or, if
successful, would restrict or prohibit) performance by any party of its
obligations under this Agreement.
SECTION 4. Miscellaneous Provisions.
4.1 No Waivers; Remedies; Specific Performance.
4.1.1 No failure or delay by Frontier or Global, as
the case may be, in exercising any right, power or privilege
under this Agreement shall operate as a waiver of the right,
power or privilege. A single or partial exercise of any
right, power or privilege shall not preclude any other or
further exercise of the right, power or privilege or the
exercise of any other right, power or privilege. The rights
and remedies provided in this Agreement shall be cumulative
and not exclusive of any rights or remedies provided by law.
4.1.2 In view of the uniqueness of the obligations
contained in this Agreement and the fact that Frontier or
Global, as the case may be, would not have an adequate
remedy at law for money damages in the event that any
obligation under this Agreement is not performed in
accordance with its terms, each of the Shareholders
therefore agrees that Frontier or Global, as the case may
be, shall be entitled to specific enforcement of the terms
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of this Agreement in addition to any other remedy to which
Global or Frontier may be entitled, at law or in equity.
4.2 Amendments, etc. No amendment, modification,
termination, or waiver of any provision of this Agreement, shall be effective
unless it shall be in writing and signed and delivered by the Shareholder
thereby affected and, with respect to matters relating to Section 1 hereof,
by Frontier and Global, and, with respect to matters relating to Section 2
hereof, by Global and Frontier if prior to the Effective Time, and by the
Committee if subsequent to the Effective Time, and then it shall be effective
only in the specific instance and for the specific purpose for which it is
given.
4.3 Successors and Assigns; Third Party Beneficiaries.
4.3.1 No party shall assign any of its rights or
delegate any of its obligations under this Agreement. Any
assignment or delegation in contravention of this Section
4.3.1 shall be void ab initio and shall not relieve the
assigning or delegating party of any obligation under this
Agreement.
4.3.2 The provisions of this Agreement shall be
binding upon and inure solely to the benefit of the parties
hereto, the express beneficiaries thereof (to the extent
provided therein) and their respective permitted heirs,
executors, legal representatives, successors and assigns,
and no other person.
4.4 Governing Law. This Agreement and all rights,
remedies, liabilities, powers and duties of the parties hereto, shall be
governed in accordance with the laws of the State of New York without regard
to principles of conflicts of laws.
4.5 Severability of Provision. If any term or other
provision of this Agreement is invalid, illegal or incapable of being
enforced by any law or public policy, all other terms and provisions of this
Agreement shall nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions contemplated hereby is not
affected in any manner materially adverse to any party. Upon such
determination that any term or other provision is invalid, illegal or
incapable of being enforced, the parties shall negotiate in good faith to
modify this Agreement so as to effect the original intent of the parties as
closely as possible in an acceptable manner in order that the transactions
contemplated hereby are consummated as originally contemplated to the
greatest extent possible.
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4.6 Term. This Agreement shall be effective as of the date
specified in the first paragraph of this Agreement, and shall terminate upon
the first to occur of (i) that date which is six months after the Effective
Time of the Merger and (ii) the termination of the Merger Agreement pursuant
to Section 7.1 thereof (the 'Termination Date').
4.7 Survival. Each representation, warranty or covenant
shall remain in full force and effect until the Termination Date.
4.8 Submission to Jurisdiction; Waiver. Each Shareholder
and Global irrevocably agrees that any legal action or proceeding with
respect to this Agreement may be brought and determined in the courts of the
State of New York, and each Shareholder, Frontier and Global hereby
irrevocably submit with regard to any such action or proceeding for itself
and in respect to its property, generally and unconditionally, to the non-
exclusive jurisdiction of the aforesaid courts. Each Shareholder, Frontier
and Global hereby irrevocably waives, and agrees not to assert, by way of
motion, as a defense, counterclaim or otherwise, in any action or proceeding
with respect to this Agreement, (a) any claim that it is not personally
subject to the jurisdiction of the above-named courts for any reason other
than the failure to serve process in accordance with this Section 4.8, (b)
that it or its property is exempt or immune from jurisdiction of any such
court or from any legal process commenced in such courts (whether through
service of notice, attachment prior to judgment, attachment in aid of
execution of judgment, execution of judgment or otherwise), and (c) to the
fullest extent permitted by applicable law, that (i) the suit, action or
proceeding in any such court is brought in an inconvenient forum, (ii) the
venue of such suit, action or proceeding is improper and (iii) this
Agreement, or the subject matter hereof, may not be enforced in or by such
courts. This Agreement does not involve less than $250,000 and the parties
intend that Section 5-1401 of the New York General Obligations will apply to
this Agreement.
4.9 Waiver of Jury Trial. Each party, as a condition of
its right to enforce or defend any right under or in connection with this
Agreement, waives any right to a trial by jury in any action to enforce or
defend any right under this Agreement and agrees that any action shall be
tried before a court and not before a jury.
4.10 Counterparts. This Agreement may be signed in any
number of counterparts, each of which shall be an originals, with the same
effect as if all signatures were on the same instrument.
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IN WITNESS WHEREOF, the parties have executed and delivered this
agreement as of the date first written above.
FRONTIER CORPORATION
By: /s/ Joseph P. Clayton
Joseph P. Clayton
Chief Executive Officer
GLOBAL CROSSING LTD.
By: /s/ Thomas J. Casey
Thomas J. Casey
Vice Chairman
BROWN LIVING TRUST
RIDGESTONE CORP.
By: /s/ Abbott L. Brown
Abbott L. Brown
GALENIGHT CORP.
By: /s/ Barry Porter
Barry Porter
CONTINENTAL CASUALTY
CORPORATION
CONTINENTAL CASUALTY CORP.
DESIGNATED HIGH YIELD FUND
By: /s/ Hillel Weinberger
Hillel Weinberger
GLOBAL CROSSING TRUST 1998
By: /s/ Hillel Weinberger
Hillel Weinberger, as Trustee
GLOBAL CROSSING PARTNERS
By: /s/ Hillel Weinberger
Hillel Weinberger,
as general partner
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CIBC WG ARGOSY MERCHANT FUND 3, LP
CIBC WOOD GUNDY CAPITAL (SFC) INC.
CO-INVESTMENT MERCHANT FUND, LLC
GLOBAL CROSSING LTD., LDC
CANADIAN IMPERIAL BANK OF
COMMERCE
By: /s/ Jay R. Bloom
Jay R. Bloom
DAVID AND ELLEN LEE FAMILY TRUST
By: /s/ David Lee
David Lee, Trustee
SAN PASQUAL CORP.
By: /s/ David Lee
David Lee
PACIFIC CAPITAL GROUP, INC.
By: /s/ Gary Winnick
Gary Winnick
GKW UNIFIED HOLDINGS, LLC
By: Pacific Capital Group, Inc.
Manager
By: /s/ Gary Winnick
Gary Winnick
MRCo, Inc.
By: /s/ Michael R. Steed
Michael R. Steed
/s/ Abbott L. Brown
Abbott L. Brown
/s/ Barry Porter
Barry Porter
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/s/ David L. Lee
David L. Lee
/s/ Gary Winnick
Gary Winnick
/s/ Lodwrick M. Cook
Lodwrick M. Cook
/s/ Hillel Weinberger
Hillel Weinberger
/s/ Jay R. Bloom
Jay R. Bloom
/s/ Michael R. Steed
Michael R. Steed
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EXHIBIT A
Shares
Beneficially Share Vote
Held Ownership Percentage
Gary Winnick 87,591,172 21.22% 9.50%
CIBC(Including Jay 88,198,248 21.37% 24.59%
R. Bloom and
Michael R. Steed)
MRCo 30,109,522 7.30% 8.40%
Continental 36,442,735 8.83% 9.50%
Barry Porter 17,063,809 4.13% 4.75%
David Lee 18,559,028 4.50% 5.18%
Abbott Brown 10,460,679 2.53% 2.91%
Lod Cook 3,324,169 0.81% 0.93%
Hillel Weinberger 2,245,674 0.54%
Total 293,995,036 71.23% 65.76%*
Total Company: 412,732,100
*Excluding shares beneficially held by Hillel Weinberger
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Voting Agreement and Share Transfer Restriction Agreement - Global Crossing Ltd. and Frontier Corp. Shareholders
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