{"id":43058,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/agreement-and-plan-of-merger-global-crossing-ltd-and-frontie2.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"agreement-and-plan-of-merger-global-crossing-ltd-and-frontie2","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/agreement-and-plan-of-merger-global-crossing-ltd-and-frontie2.html","title":{"rendered":"Agreement and Plan of Merger &#8211; Global Crossing Ltd. and Frontier Corp."},"content":{"rendered":"<pre>\n                                AMENDMENT NO. 2\n\n          AMENDMENT NO. 2, dated as of September 2, 1999 (this 'Amendment'),\namong GLOBAL CROSSING LTD., a Bermuda company ('Global'), GCF ACQUISITION\nCORP., a New York corporation and a wholly owned subsidiary of Global\n('Merger Sub'), and  FRONTIER CORPORATION, a New York corporation\n('Frontier'), to the Agreement and Plan of Merger, dated as of March 16, 1999\nand amended as of May 16, 1999 (the 'Original Agreement'), among Global,\nMerger Sub and Frontier.  Capitalized terms used but not defined herein shall\nhave the meanings ascribed to such terms in the Original Agreement.\n\n          WHEREAS, Frontier and Global have agreed to amend the Original\nAgreement on the terms provided herein; \n\n          WHEREAS, the shareholders of Global who are party to the Voting\nAgreement have reaffirmed the Voting Agreement in light of this Amendment and\nhave agreed to certain restrictions on the transfer of their shares, which\nreaffirmation and lock-up agreement is attached hereto as Exhibit A; and \n\n          WHEREAS, certain additional shareholders of Global and certain\nshareholders of Frontier have entered into a Share Transfer Restriction\nAgreement relating to certain restrictions on the transfer of their shares,\nwhich Transfer Restriction Agreement is attached hereto as Exhibit B.\n\n           NOW, THEREFORE, in consideration of the foregoing and other good\nand valuable consideration, receipt of which is hereby acknowledged, the\nparties hereto agree as follows:\n\n          1.   Amendment to Glossary of Defined Terms in the Original\nAgreement.  The Glossary of Defined Terms in the Original Agreement is hereby\namended by (i) deleting the reference to 'Section 1.8(a)' next to the term\n'NASDAQ' and inserting in lieu thereof a reference to 'Section 1.10(g)(ii)\nand (ii) deleting the following terms and related Section references: \nAverage Price, Cash Top-Up, Cash Top-Up Election, Combination Election,\nDetermination Date, Frontier Evaluation  Period, Global Adjustment Election,\nGlobal Election Period, Specified Value and Termination Notice.\n\n          2.   Amendment to Section 1.2 of the Original Agreement.  Section\n1.2 of the Original Agreement is hereby amended by deleting the phrase\nbeginning with the words 'provided, however, that' up to and including the\nwords ', in all cases' in their entirety. \n\n          3.   Amendment to Section 1.8(a) of the Original Agreement. Section\n1.8(a) of the Original Agreement is hereby amended by deleting such Section\nin its entirety and inserting in lieu thereof the following:\n\n          (a)  At the Effective Time by virtue of the Merger and without any\n     action on the part of the holder thereof, each share of Frontier Common\n\n\n\n     Stock issued and outstanding immediately prior to the Effective Time\n     (other than shares of Frontier Common Stock owned or held directly or\n     indirectly by Global or directly by Frontier, all of which shall be\n     canceled as provided in Section 1.8(c)) shall, be converted into the\n     right to receive that number of shares of Global Common Stock equal to\n     the Exchange Ratio (as defined below) (the  'MERGER CONSIDERATION').\n     'EXCHANGE RATIO' means 2.05 shares of Global Common Stock, as increased\n     by 7% per annum, compounded daily, from and after December 31, 1999 to\n     and including the Effective Time.  If prior to the Effective Time,\n     Global should split or combine the shares of Global Common Stock, or pay\n     a stock dividend or other stock distribution in shares of Global Common\n     Stock, or otherwise change the shares of Global Common Stock into any\n     other securities, or make any other dividend or distribution on the\n     shares of Global Common Stock, then the Exchange Ratio will be\n     appropriately adjusted to reflect such split, combination, dividend or\n     other distribution or change.  \n\n          4.   Amendment to Section 1.10(c) of the Original Agreement. \nSection 1.10(c) of the Original Agreement is hereby amended by deleting the\nlast sentence of clause (i) thereof in its entirety.\n\n          5.   Amendment to Section 1.10(g)(ii) of the Original Agreement. \nSection 1.10(g)(ii) of the Original Agreement is hereby amended by deleting\nthe word 'NASDAQ' and inserting in lieu thereof the words 'Nasdaq National\nMarket ('NASDAQ')'.\n\n          6.   Amendment to Article II of the Original Agreement.  Article II\nof the Original Agreement is hereby amended as follows:\n\n          a.   Section 2.1 of the Original Agreement is hereby amended by\n               deleting the words 'and, if applicable, cash to be paid as a\n               result of the Cash Top-Up pursuant to Section 7.1(g)';\n\n          b.   Section 2.2 of the Original Agreement is hereby amended by (i) \n               deleting the words 'and any cash to be paid as a result of the\n               Cash Top-Up pursuant to Section 7.1(g)' in clause (B) of the\n               second sentence thereof and inserting the word 'and' after the\n               words 'Section 2.5,' in such clause, (ii) deleting the words\n               'or as a result of a Cash Top-Up pursuant to Section 7.1(g)'\n               in the third sentence thereof and inserting the word 'and'\n               after the words 'Section 2.3,' in such sentence and (iii)\n               deleting the words 'and as a result of a Cash Top-Up pursuant\n               to Section 7.1(g)' in the last sentence thereof and inserting\n               the word 'and' after the words 'Section 2.5,' in such\n               sentence;\n\n\n\n                                      -2-\n\n\n\n          c.   Section 2.3 of the Original Agreement is hereby amended by (i)\n               deleting the words 'and no cash payment as a result of a Cash\n               Top-Up pursuant to Section 7.1(g)' in the first sentence\n               thereof and (ii) deleting the words 'and any cash payment as a\n               result of a Cash Top-Up pursuant to Section 7.1(g)' in the\n               second sentence thereof and inserting the word 'and' after the\n               words 'Section 2.5,' in such sentence; \n\n          d.   Section 2.4 of the Original Agreement is hereby amended by\n               deleting the words 'or as a result of a Cash Top-Up pursuant\n               to Section 7.1(g)' and inserting the word 'and' after the\n               words 'Section 2.3'; \n\n          e.   Section 2.6 of the Original Agreement is hereby amended by\n               deleting the words 'and any cash payment as a result of a Cash\n               Top-Up pursuant to Section 7.1(g)' and inserting the word\n               'and' after the words 'Section 2.5,'; \n\n          f.   Section 2.8 of the Original Agreement is hereby amended by\n               deleting the second sentence thereof in its entirety; and\n\n          g.   Section 2.12 of the Original Agreement is hereby amended by\n               deleting the words 'and any cash payment as a result of a Cash\n               Top-Up pursuant to Section 7.1(g)' in the last sentence\n               thereof and inserting the word 'and' after the words 'Section\n               2.5,' in such sentence.\n\n          7.   Amendment to Section 3.1(j) of the Original Agreement. \nSection 3.1(j) of the Original Agreement is hereby amended by inserting the\nfollowing sentence at the end thereof: 'Frontier has received the opinion of\nthe Frontier Financial Advisor, dated September 2, 1999, to the effect that,\nas of such date, the Exchange Ratio is fair, from a financial point of view,\nto the holders of Frontier Common Stock, a copy of which opinion will be made\navailable to Global.'\n\n          8.   Amendment to Section 3.2(i) of the Original Agreement. \nSection 3.2(i) of the Original Agreement is hereby amended by inserting the\nfollowing sentence at the end thereof: 'Global has received the opinion of\nthe Global Financial Advisor, dated September 1, 1999, to the effect that, as\nof such date, the Exchange Ratio is fair, from a financial point of view, to\nGlobal, a copy of which opinion will be made available to Frontier.'\n\n          9.   Amendment to Section 4.2(h) of the Original Agreement. \nSection 4.2(h) of the Original Agreement is hereby amended by inserting the\nwords ', and shall take such actions as may be necessary to cause the Merger\nto qualify (unless such actions would have a Material Adverse Effect on\nGlobal after giving effect to the Merger),' after the word 'qualifying' in\n\n                                      -3-\n\n\n\nthe first sentence thereof and inserting the words 'in which the exchange of\nFrontier Common Stock is not subject to Section 367(a)(1) of the Code by\nreason of Treas. Reg. Sec. 1.367(a)-3(c)' after the word 'Code' in such\nsentence.\n\n          10.  Amendment to Section 4.2(k) of the Original Agreement. \nSection 4.2(k) of the Original Agreement is hereby amended by deleting the\nsecond paragraph thereof in its entirety.\n\n          11.  Amendment to Add a New Section 5.15 to the Original Agreement. \nThe Original Agreement shall be amended by inserting the following new\nSection 5.15 immediately following Section 5.14 thereof:\n\n          5.15 SHARE REPURCHASE PROGRAM. Global shall promptly following the\n     Effective Time institute a six-month open-market stock repurchase\n     program relating to the repurchase of up to $500 million in the\n     aggregate of Global Common Stock from time to time, as determined by\n     Global, based on market conditions, in compliance with the rules and\n     regulations of the SEC, including Rule 10b-18, and consistent with\n     Global's obligations under Section 4.2(h) of the Agreement.  \n\n          12.  Amendment to Section 7.1(g) of the Original Agreement. \nSection 7.1(g) of the Original Agreement is hereby amended by deleting such\nSection in its entirety.\n\n          13.  Amendment to Section 7.3 of the Original Agreement.  Section\n7.3 of the Original Agreement is hereby amended by inserting the following\nsentence at the end thereof:  'For purposes of this Agreement, the words,\n'this Agreement' shall mean this Agreement, as amended from time to time,\nexcept to the extent such words refer to the date of this Agreement or the\ndate of the execution of this Agreement.'\n\n          14.  Authorization, Execution and Delivery; No Conflicts. \n(a)  This Amendment has been duly authorized, executed and delivered by each\nparty hereto and constitutes a valid and binding agreement of each such\nparty, enforceable against such party in accordance with its terms, except as\nsuch enforceability may be limited by bankruptcy, insolvency, reorganization,\nmoratorium and similar laws relating to or affecting creditors generally, by\ngeneral equity principles (regardless of whether such enforceability is\nconsidered in a proceeding in equity or at law) or by an implied covenant of\ngood faith and fair dealing.\n\n          (b)  The execution and delivery of this Amendment does not or will\nnot, as the case may be, and the consummation of the transactions\ncontemplated hereby will not, conflict with, or result in a Violation\npursuant to: (A) any provision of the constituent documents of each party\nhereto, or (B) except as would not have a Material Adverse Effect on such\n\n                                      -4-\n\n\n\nparty and, subject to obtaining or making the consents, approvals orders,\nauthorizations, registrations, declarations and filings referred to in\nparagraph (c) below, any loan or credit agreement, note, mortgage, bond,\nindenture, lease, benefit plan or other agreement, obligation, instrument,\npermit, concession, franchise, license, judgment, order, decree, statute,\nlaw, ordinance, rule or regulation applicable to such party or any Subsidiary\nof such party or their respective properties or assets.\n\n          (c)   No consent, approval, order or authorization of, or\nregistration, declaration or filing with, any Governmental Entity is required\nby or with respect to any party hereto or any Subsidiary of such party in\nconnection with the execution and delivery of this Amendment by such party or\nthe consummation of the transactions contemplated hereby, except for the\nRequired Consents and such consents, approvals, orders, authorizations,\nregistrations, declarations and filings the failure of which to make or\nobtain would not have a Material Adverse Effect on such party.\n\n          15.  Voting Agreement.  Global represents and warrants to Frontier\nthat as of the date of this Amendment, after giving effect to this Amendment\nand the reaffirmation of the Voting Agreement referred to in the second\nrecital of this Amendment, the shares subject to the Voting Agreement\nconstitute more than the Required Global Vote. \n \n          16.  Effective Date; No Other Consents or Amendments.  Each of the\nparties hereto agrees that the amendments to the Original Agreement contained\nherein shall be effective upon execution of this Amendment by each party\nhereto.  Except as expressly amended hereby, the provisions of the Original\nAgreement are and shall remain in full force and effect.  This Amendment\nshall not be deemed to constitute a waiver of, or consent to, or a\nmodification or amendment of, any other provision of the Original Agreement\nexcept as expressly provided herein or to prejudice any other right or rights\nwhich any party may now have or may have in the future under or in connection\nwith the Original Agreement. This Amendment shall not constitute an agreement\nor obligation of any party to consent to, waive, modify or amend any other\nterm, condition, subsection or section of the Original Agreement.\n\n          17.   Governing Law.  This Amendment shall be governed and\nconstrued in accordance with the laws of the State of New York.  \n\n          18.  Counterparts.  This Amendment may be executed in one or more\ncounterparts, and by the different parties hereto in separate counterparts,\neach of which when executed shall be deemed to be an original but all of\nwhich taken together shall constitute one and the same agreement.\n\n\n\n\n\n                                      -5-\n\n\n\n          IN WITNESS WHEREOF, Global, Merger Sub and Frontier have caused\nthis Amendment to be executed as of the date first written above by their\nrespective officers thereunto duly authorized.\n\n\n                                    GLOBAL CROSSING LTD.\n\n\n                                    By:  \/s\/ THOMAS J. CASEY\n                                       ---------------------------------------\n                                       Name:  Thomas J. Casey\n                                       Title: Vice Chairman\n\n\n                                    GCF ACQUISITION CORP.\n\n\n                                    By:  \/s\/ THOMAS J. CASEY                   \n                                       ---------------------------------------\n                                       Name:  Thomas J. Casey          \n                                       Title: Vice Chairman    \n\n\n                                    FRONTIER CORPORATION\n\n\n                                    By: \/s\/ JOSEPH P. CLAYTON \n                                        --------------------------------------\n                                        Name:  Joseph P. Clayton\n                                        Title: Chief Executive Officer\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n                                      -6-\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7648],"corporate_contracts_industries":[9519],"corporate_contracts_types":[9622,9626],"class_list":["post-43058","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-global-crossing-ltd","corporate_contracts_industries-telecommunications__telephone","corporate_contracts_types-planning","corporate_contracts_types-planning__merger"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43058","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43058"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43058"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43058"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43058"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}