Exhibit 3
EXECUTION COPY
CONSENT AND VOTING AGREEMENT, dated as of February 22, 2000
(the "Agreement"), among GLOBAL CROSSING LTD., a company
formed under the laws of Bermuda ("Parent"), CABLE SYSTEMS
HOLDING, LLC, a Delaware limited liability company ("CSH"),
and each of the other signatories hereto (and together with
CSH, the "Stockholders").
WHEREAS, concurrently herewith, Parent, Georgia Merger Sub
Corporation, a Delaware corporation and a wholly owned subsidiary of Parent ("GC
Merger Sub"), IPC Communications, Inc., a Delaware corporation (the "Company"),
IPC Information Systems, Inc., a Delaware corporation and a wholly owned
subsidiary of the Company ("IPC Systems"), Idaho Merger Sub Corporation, a
Delaware corporation and a wholly owned subsidiary of the Company ("IPC Merger
Sub"), and Ixnet, Inc., a Delaware corporation and a subsidiary of the Company
("IXnet"), are entering into an Agreement and Plan of Merger (as such agreement
may be amended from time to time and whether or not such agreement has been
terminated, the "Merger Agreement"; terms used but not defined herein shall have
the meanings set forth in the Merger Agreement) pursuant to which (i) the
Company will be merged with and into IPC Systems (the "Intercompany Merger"),
(ii) GC Merger Sub will be merged with and into IPC Systems (the "IPC Merger")
and (iii) IPC Sub will be merged with and into IXnet (the "IXnet Merger" and
together with the Intercompany Merger and the IPC Merger, the "Mergers");
WHEREAS, as a condition to their willingness to enter into the
Merger Agreement, Parent and Sub have required that CSH and the other
Stockholders enter into this Agreement pursuant to which, among other things,
the Stockholders have agreed to certain consent and voting provisions in
connection with and in favor of the Company Merger; and
NOW, THEREFORE, in consideration of the representations,
warranties, covenants and agreements contained in this Agreement, the parties
agree as follows:
1. Consent and Voting Matters
1.1 Consent and Agreement to Vote. Each Stockholder agrees (for itself
and not as to any other Stockholder) that immediately following the execution
and delivery of this Agreement and the Merger Agreement, it shall execute and
deliver, as the record owner thereof, in accordance with Section 228 of the
DGCL, the Stockholders Consent in the form of Exhibit A hereto (the "Consent"),
which shall be irrevocable, with respect to all Shares that are owned
beneficially or of record by such Stockholder or as to which such Stockholder
has, directly or indirectly, the right to vote or direct the voting.
Each Stockholder hereby further agrees (for itself and not as
to any other Stockholder) that, during the term of this Agreement, it shall,
from time to time, at the request of Parent, at any meeting (whether annual or
special and whether or not an adjourned or postponed meeting) of stockholders of
the Company, however called, or in connection with any written consent of the
holders of Common Stock, par value $.01 per share, of the Company ("Company
Common Stock"), in either case, prior to the earlier of the Effective Time of
the Mergers and the termination of this Agreement, if a meeting is held, appear
at such meeting or otherwise cause
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such Stockholder's Shares to be counted as present thereat for purposes of
establishing a quorum, and it shall vote or consent (or cause to be voted or
consented), in person or by proxy, all such Stockholder's Shares, and any other
voting securities of the Company (whether acquired heretofore or hereafter),
that are beneficially owned by such Stockholder or its subsidiaries or as to
which such Stockholder has, directly or indirectly, the right to vote or direct
the voting, (a) in favor of the Intercompany Merger and the IPC Merger, the
adoption of the Merger Agreement and the approval of the terms thereof and each
of the other transactions and other matters contemplated by the Merger Agreement
and this Agreement and any actions required in furtherance hereof and thereof;
(b) against any action or agreement that would result in a breach in any
material respect of any covenant, representation or warranty or any other
obligation or agreement of the Company or any subsidiary thereof under the
Merger Agreement; (c) except as otherwise agreed to in writing in advance by
Parent, against the following actions (other than the Mergers and the
transactions and other matters contemplated by the Merger Agreement): (1) any
extraordinary corporate transaction, such as a merger, consolidation or other
business combination involving the Company or its subsidiaries; (2) a sale,
lease or transfer of a material amount of assets of the Company or its
subsidiaries or a reorganization, recapitalization, dissolution or liquidation
of the Company or its subsidiaries; (3) (a) any change in the majority of the
board of directors of the Company; (b) any material change in the present
capitalization of the Company or any amendment of the Company's Certificate of
Incorporation or By-laws; or (c) any other material change in the Company's
corporate structure or business or change in any manner of the voting rights of
the Company Common Stock. Such Stockholder shall not enter into any agreement or
understanding with any person or entity prior to the termination of this
Agreement to vote or give instructions in a manner inconsistent with clauses
(a), (b) or (c) of the preceding sentence.
1.2 Proxy. Each Stockholder hereby grants to, and appoints,
Parent and Xxxxxx Xxxxxxxxxx, Chief Executive Officer of Parent, Xxx X. Xxxxx,
Chief Financial Officer of Parent, and Xxxxx X. Xxxxxx, Senior Vice President
and General Counsel of Parent, in their respective capacities as officers of
Parent, and any individual who shall hereafter succeed to any such office of
Parent, and any other designee of Parent, each of them individually, its proxy
and attorney-in-fact (with full power of substitution) to execute and deliver a
written consent and to vote such Stockholder's Shares as indicated in Section
1.1. Subject to Section 10.5, such Stockholder intends this proxy to be
irrevocable and coupled with an interest and will take such further action and
execute such other instruments as may be necessary to effectuate the intent of
this proxy and hereby revokes any proxy previously granted by it with respect to
its Shares.
Each Stockholder hereby revokes any and all previous proxies
with respect to such Stockholder's Shares or any other voting securities of the
Company that relate to the approval of the Merger Agreement.
2. Representations and Warranties of the Stockholders. Each
Stockholder, severally but not jointly, makes the following representations and
warranties to the Parent:
2.1 Power; Binding Agreement. Such Stockholder has the power
and authority to enter into and perform all of its obligations under this
Agreement (including the
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power and authority without further action on the part of any shareholders,
members or partners thereof or any other juridical or nonjuridical person to
comply with the consent and voting requirements of Section 1). The execution,
delivery and performance of this Agreement by such Stockholder will not violate
any other agreement to which such Stockholder is a party (including any trust
agreement, voting agreement, stockholders agreement or voting trust), except to
the extent any such violations, individually or in the aggregate, would not
reasonably be expected to have a material adverse effect on Parent or to prevent
or materially delay the consummation of the transactions contemplated by the
Merger Agreement. This Agreement has been duly and validly authorized, executed
and delivered by such Stockholder and constitutes a valid and binding agreement
of such Stockholder, enforceable against it in accordance with its terms, except
as limited by (a) bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to creditor's rights generally, (b) general principles of
equity, whether such enforceability is considered in a proceeding in equity or
law, and to the discretion of the court before which any proceeding therefor may
be brought, or (c) public policy considerations or court decisions which may
limit the rights of the parties hereto for indemnification.
2.2 No Conflict. Other than filings required under the HSR
Act, and the filing of Forms 4 and Schedules 13D under the Securities and
Exchange Act of 1934, as amended, and the rules and regulations thereunder (the
"Exchange Act"), no filing with, and no permit, authorization, consent or
approval of, any state or federal public body or authority is required to be
made or obtained by such Stockholder for the execution of this Agreement by such
Stockholder, except for any such filings the failure of which to be made,
individually or in the aggregate, would not reasonably be expected to have a
material adverse effect on Parent or to prevent or materially delay the
consummation of the transactions contemplated hereby and filings required in
connection with the consummation of the Mergers. Neither the execution and
delivery of this Agreement by such Stockholder nor the consummation by such
Stockholder of the transactions contemplated hereby nor compliance by such
Stockholder with any of the provisions hereof shall (a) conflict with or result
in any breach of such Stockholder's certificate of incorporation, bylaws,
operating agreement, partnership agreement or other organizational or governing
document or agreement, as the case may be, (b) result in a violation or breach
of, or constitute (with or without notice or lapse of time or both) a default
(or give rise to any third party right of termination, cancellation, material
modification or acceleration) under any of the terms, conditions or provisions
of any note, bond, mortgage, indenture, license, contract, commitment,
arrangement, understanding, agreement or other instrument or obligation of any
kind to which such Stockholder is a party or by which such Stockholder or any of
the Stockholder's properties or assets may be bound or (z) violate any order,
writ, injunction, decree, judgment, order, statute, rule or regulation
applicable to such Stockholder or any of the Stockholder's members, properties
or assets, except to the extent any of the foregoing, individually or in the
aggregate, would not reasonably be expected to have a material adverse effect on
Parent or to prevent or materially delay the consummation of the transactions
contemplated by the Merger Agreement or to prevent such Stockholder from
complying with its obligations hereunder.
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2.3 Reliance. Such Stockholder understands and acknowledges
that Parent is entering into, and causing Sub to enter into, the Merger
Agreement in reliance upon such Stockholder's execution and delivery of this
Agreement.
2.4 Ownership of Shares. Such Stockholder is the record owner
of the number shares of Company Common Stock set forth opposite its name on
Schedule 2.4 (with respect to each Stockholder and together with any shares of
Company Common Stock with respect to which such Stockholder shall have or
receive record ownership, its "Shares"), free and clear of any Liens other than
restrictions contained in the Amended and Restated Investors Agreement, dated as
of April 9, 1998 (the "Investors Agreement"). Except as otherwise provided in
the Investors Agreement, such Stockholder has sole voting power, and sole power
of disposition, with respect to all of such Stockholder's Shares.
2.5 No Broker. Such Stockholder has not employed any
investment banker, broker, finder, consultant or intermediary in connection with
the transactions contemplated by this Agreement or the Merger Agreement which
would be entitled to any investment banking, brokerage, finder's or similar fee
or commission in connection with this Agreement or the transactions contemplated
by the Merger Agreement.
3. Representations and Warranties of Parent. Parent hereby
represents and warrants to each Stockholder as follows:
3.1 Power; Binding Agreement. Parent has the power and
authority to enter into and perform all of its obligations under this Agreement.
The execution, delivery and performance of this Agreement by Parent will not
violate any other agreement to which Parent is a party (including any trust
agreement, voting agreement, stockholders agreement or voting trust), except to
the extent that any such violations, individually or in the aggregate, would not
reasonably be expected to have a material adverse effect on Parent or to prevent
or materially delay the consummation of the transactions contemplated by the
Merger Agreement. This Agreement has been duly and validly executed and
delivered by Parent and constitutes a valid and binding agreement of Parent,
enforceable against Parent in accordance with its terms.
3.2 No Conflict. Other than filings required under the HSR
Act, the filing of a Form 3 and Schedule 13D under the Exchange Act and the
filing of a registration statement under the Securities Act, no filing with, and
no permit, authorization, consent or approval of, any state or federal public
body or authority is necessary for the execution of this Agreement by Parent and
the consummation by Parent of the transactions contemplated hereby, except in
each case for such filings the failure of which to be made, individually or in
the aggregate, would not reasonably be expected to have a material adverse
effect on Parent or to prevent or materially delay the consummation of the
transactions contemplated by the Merger Agreement and filings required in
connection with the consummation of the Mergers. Neither the execution and
delivery of this Agreement by Parent nor the consummation by Parent of the
transactions contemplated hereby nor compliance by Parent with any of the
provisions hereof shall (x) conflict with or result in any breach of any
applicable organizational documents applicable to Parent, (y) result in a
violation or breach of, or constitute (with or without notice or lapse of time
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or both) a default (or give rise to any third party right of termination,
cancellation, material modification or acceleration) under any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, license,
contract, commitment, arrangement, understanding, agreement or other instrument
or obligation of any kind to which Parent is a party or by which Parent or any
of Parent's properties or assets may be bound or (z) violate any order, writ,
injunction, decree, judgment, order, statute, rule or regulation applicable to
Parent or any of Parent's properties or assets, except to the extent that any of
the foregoing, individually or in the aggregate, would not reasonably be
expected to have a material adverse effect on Parent or to prevent or materially
delay the consummation of the transactions contemplated by the Merger Agreement.
4. Covenants of the Stockholders. The Stockholders, jointly
but not severally, hereby covenant and agree as follows:
4.1 Cooperation in Filing Notification under
Xxxx-Xxxxx-Xxxxxx. Each of the Stockholders agrees to use reasonable best
efforts to cooperate with Parent and each other to promptly effectuate the
filing of any notification required under the HSR Act.
4.2 Commercially Reasonable Efforts. Subject to the terms and
conditions of this Agreement, the Stockholders each agree to use all
commercially reasonable efforts to take, or cause to be taken, all actions, and
to do, or cause to be done, all things necessary, proper or advisable to
consummate and make effective the transactions provided for by this Agreement.
4.3 No Solicitation. (a) Other than as expressly permitted
under Section 4.4(b), none of the Stockholders, in its capacity as such, shall,
directly or indirectly, through any officer, director, employee, stockholder,
member, partner, financial advisor, agent or other representative (including any
investment banker, attorney or accountant retained by such Stockholder or by any
of such Stockholder's subsidiaries, affiliate or stockholders, members or
partners) (i) solicit, initiate, encourage or facilitate (including by way of
furnishing information) any inquiries or proposals that constitute, or would
reasonably be expected to lead to an Acquisition Proposal or any Transfer (as
defined in Section 4.4) of Shares or (ii) participate or engage in negotiations
or discussions concerning, or provide any non-public information to any person
relating to, or otherwise facilitate any effort or attempt to make or implement,
any Acquisition Proposal or any Transfer of Shares. Other than as expressly
permitted under Section 4.4(b), each Stockholder, in its capacity as such,
agrees that it will immediately cease and cause to be terminated any existing
activities, discussions or negotiations with any persons (other than Parent and
Sub) conducted heretofore with respect to any Acquisition Proposal or any
Transfer of Shares. Each Stockholder agrees that it will take the necessary
steps to inform promptly the individuals or entities referred to in the first
sentence of this Section 4.3 of the obligations undertaken in this Section 4.3.
(b) Other than as expressly permitted under Section 4.4(b),
each Stockholder, in its capacity as such, shall notify Parent immediately after
receipt by such Stockholder (or any of its stockholders, members, partners or
advisors) of any Acquisition Proposal or a proposal or offer for any Transfer of
Shares or any request for nonpublic information in connection with an
Acquisition Proposal or a proposal or offer for any Transfer of Shares or for
access to the
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properties, books or records of the Company by any person or entity that informs
such Stockholder that it is considering making, or has made, an Acquisition
Proposal or a proposal or offer for any Transfer of Shares. Such notice shall be
made orally and in writing and shall indicate in reasonable detail the identity
of the offeror and the terms and conditions of such proposal, inquiry or
contact.
(c) The foregoing provisions of this Section 4.3 shall not
restrict any member of a Stockholder who is also a director of the Company from
taking any actions solely in his capacity as a director.
4.4 Restriction on Transfer of Shares, Proxies and
Non-Interference; Restriction on Withdrawal. (a) No Stockholder shall, directly
or indirectly: (i) except pursuant to or as contemplated hereby by the terms of
this Agreement or the Merger Agreement, offer for sale, sell (including short
sales), transfer, tender, pledge, encumber, assign or otherwise dispose of
(including by gift) or enter into any contract, option, derivative, hedging or
other arrangement or understanding (including any profit-sharing arrangement)
with respect to or consent to the offer for sale, sale, transfer, tender,
pledge, encumbrance, assignment or other disposition of (any of the foregoing, a
"Transfer"), any or all of such Stockholder's Shares or any interest therein;
(ii) except as contemplated hereby, grant any proxies or powers of attorney,
deposit any Shares into a voting trust or enter into any other voting
arrangement with respect to any Shares; (iii) take any action that would make
any representation or warranty of any Stockholder contained herein untrue or
incorrect or have the effect of preventing or disabling any Stockholder from
performing such Stockholder's obligations under this Agreement; or (iv) commit
or agree to take any of the foregoing actions.
(b) Notwithstanding the foregoing, CSH may Transfer up to 20%
of the Shares set forth next to its name on Schedule 2.4 to its members in
accordance with the terms of its governing operating agreement or otherwise on a
pro rata or other widely distributed basis who shall receive such Shares free
and clear of all obligations imposed on CSH hereunder and none of the
obligations hereunder shall attach to such Shares.
4.5 Transfer of Shares of Parent Common Stock. (a) None of
CSH, its Permitted Transferees (as defined below) or Xxxxxxx Xxxxxxxxxxx
(collectively, the "Outside Stockholders") shall directly or indirectly,
Transfer any shares of the Common Stock, par value $.01 per share, of Parent
("Parent Common Stock") until the first anniversary of the Closing, except (i)
in the case of CSH, to Citicorp Venture Capital, Ltd. ("CVC") or another
subsidiary of Citigroup which shall have agreed by reasonably satisfactory
instrument delivered to Parent to be bound by the provisions of Sections 4.5 and
4.6 hereof (collectively, the "Permitted Transferees"), (ii) any Transfer
pursuant to Section 3(a) of the Registration Rights Agreement, or (iii) pursuant
to a tender offer, self tender offer, exchange offer or other transaction
offered generally to stockholders of Parent and approved by Parent's Board of
Directors. Each of Xxxxx Xxxxx and Xxxxxxx Xxxxxxxx, individually and for
himself, agrees that he shall not, directly or indirectly, Transfer during the
period commencing on the Closing Date and (a) ending on the first anniversary of
the Closing Date, shares of Parent Common Stock representing more than 25% of
the sum of the shares of Parent Common Stock received by him in the Merger and
shares of
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Parent Common Stock issuable to him pursuant to options to acquire Parent Common
Stock which have vested and are exercisable as of the Closing ("Vested Shares"),
(b) ending on the second anniversary of the Closing Date, cumulatively, more
than 62.5% of his Vested Shares, and (c) any time after the second anniversary
of the Closing Date, 100% of his Vested Shares.
(b) All certificates representing shares of Parent Common
Stock issued to any Stockholder pursuant to the Merger Agreement shall be
endorsed with a legend reading as follows until such time as the shares
represented thereby are no longer subject to the provisions hereof:
"The shares of Common Stock, par value $.01 per share, of
Global Crossing Ltd. (the "Company") represented by this
certificate are subject to a Consent and Voting Agreement
dated as of February 22, 2000, and may not be sold or
otherwise transferred, except in accordance therewith. Copies
of such Agreement may be obtained at the principal executive
offices of the Company."
(c) In the case of the Outside Stockholders, the legend on the
certificates representing any of the shares of Parent Common Stock shall be
removed on the first anniversary of the Closing and such legend shall be removed
from shares of Parent Common Stock Transferred by an Outside Stockholder
pursuant to the Registration Rights Agreement.
4.6 Standstill. None of CSH or its Permitted Transferees or
subsidiaries shall directly or indirectly (a) acting alone or in concert with
others, seek to effect a change in control of Parent or the business, operations
or policies of Parent; (b) initiate or propose any stockholder proposal or make,
or in any way, participate in, directly or indirectly, any "solicitation" of
"proxies" to vote or intentionally seek in an organized fashion to influence any
person with respect to the voting of, any Parent Voting Securities in a manner
inconsistent with the position of the board of directors of Parent or become
"participant" in a "solicitation" (as such terms are defined in Regulation 14A
under the Exchange Act, as in effect on the date hereof) in opposition to the
recommendation of the majority of the directors of Parent with respect to any
matter; (c) propose or seek to effect a merger, consolidation, recapitalization,
reorganization, sale, lease, exchange or other disposition of substantially all
assets or other business combination involving, or a tender or exchange offer
for securities of, Parent or any of its subsidiaries or any material portion of
its or such subsidiary's business or assets, or any similar transaction that has
not been approved by the Board of Directors of Parent; (d) join a partnership,
limited partnership, syndicate or other group (other than a group consisting of
CSH, its Permitted Transferees and any of their subsidiaries), or otherwise act
in concert with any other person, for the purpose of acquiring, holding, voting
or disposing of Parent Voting Securities, or, otherwise become a "person" within
the meaning of Section 13(d)(3) of the Exchange Act relating to any of the
matters set forth in clauses (a), (b), (c) or (d); or (e) request, or induce or
encourage any other person to request, that Parent amend or waive any of the
provisions of this Section 4.6. The provisions of this Section 4.6 shall cease
to apply at such time after the Merger as CSH and its affiliates collectively
cease to beneficially own at least 25% of the Parent Common Stock acquired by
CSH in the Merger.
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4.7 CSH Affiliates. It is expressly understood that none of
the provisions of this Agreement shall apply to Citigroup or any of its
affiliates, other than CSH and its Permitted Transferees and their respective
subsidiaries.
4.8 Registration Rights. Parent shall enter into the
Registration Rights Agreement, in substantially the form of Exhibit B attached
hereto ("Registration Rights Agreement"), with the Outside Stockholders
immediately prior to the Effective Time of the Mergers.
5. Further Assurances. From time to time, at the other party's
request and without further consideration, each party hereto shall execute and
deliver such additional documents and take all such further action as may be
reasonably necessary to consummate and make effective, in the most expeditious
manner practicable, the transactions contemplated by this Agreement and the
Merger Agreement.
6. Certain Events. Except as set forth in Section 4.4, each
Stockholder agrees that this Agreement and the obligations hereunder shall
attach to such Stockholder's Shares and shall be binding upon any person or
entity to which legal or beneficial ownership of such Shares shall pass, whether
by operation of law or otherwise, including without limitation the Stockholder's
administrators, successors or receivers.
7. Stop Transfer. Each Stockholder agrees with, and covenants
to, Parent that it shall not request that the Company register the transfer
(book-entry or otherwise) of any certificate or uncertificated interest
representing any of the Shares, unless such transfer is made in compliance with
this Agreement. Such Stockholder agrees, with respect to any Shares in
certificated form, that immediately following the execution hereof, it will
present to the Company, the certificates representing the Shares for inscription
by the Company of the following legend: "The shares of Common Stock, par value
$.01 per share, of IPC Communications, Inc. (the "Company") represented by this
certificate are subject to a Consent and Voting Agreement dated as of February
22, 2000, and may not be sold or otherwise transferred, except in accordance
therewith. Copies of such Agreement may be obtained at the principal executive
offices of the Company." Upon the transfer of any Shares pursuant to Section
4.4(b), such legend shall be removed. Such Stockholder agrees that it will no
longer hold any Shares, whether certificated or uncertificated, in "street name"
or in the name of any nominee. Pursuant to the Merger Agreement, the Company has
agreed to notify the transfer agent for any Shares in uncertificated form of the
provisions set forth in this Section 7 and has agreed to, and such Stockholder
agrees to, provide such documentation and to do such other things as may be
required to give effect to such provisions with respect to such uncertificated
Shares. Parent will not register the transfer (book-entry or otherwise) of any
certificate or uncertificated interest representing any Stockholder's Parent
Common Stock, unless such transfer is made in compliance with this Agreement.
8. Post-Closing Covenants. Each Stockholder agrees to hold in
strict confidence all data and information relating to the business of the
Company and its subsidiaries
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(the "Proprietary Information") obtained in the course of its ownership of
shares or participation in the management of the Company or any of its
subsidiaries or otherwise which is either non-public, confidential or
proprietary in nature. Each Stockholder agrees that subject to any requirement
of law or tribunal order, it will keep such Proprietary Information confidential
and will not, without the prior written consent of Parent, be disclosed by any
Stockholder to any person. This Agreement shall be inoperative as to such
portions of the Proprietary Information which (i) are or become generally
available to the public other than as a result of a disclosure by Parent or any
of its representatives, (ii) become available to any Stockholder or one of its
representatives on a nonconfidential basis from a source other than any of
Parent or any of its representatives, which has not advised such Stockholder
that it is bound by a confidentiality agreement with, or other contractual,
legal or fiduciary obligation of confidentiality to, any of Parent or any of its
subsidiaries or affiliates with respect to such portions of the Proprietary
Information, or (iii) were known by any Stockholder on a nonconfidential basis
prior to its commencement of employment with, or ownership of, the Company or
one of its subsidiaries. Each Stockholder agrees that Parent shall be entitled
to equitable relief, including injunction and specific performance, in the event
of any breach of the provisions of this Section 8. Such remedies shall not be
deemed to be the exclusive remedies for a breach of this Section 8 by any
Stockholder but shall be in addition to all other remedies available at law or
equity. It is further understood and agreed that failure or delay by Parent in
exercising any right, power or privilege under this Section 8 shall not operate
as a waiver thereof nor shall any single or partial exercise thereof preclude
and other or further exercise of any right, power or privilege under this
Agreement.
9. No Survival of Representations and Warranties. Other than
as expressly set forth herein, the representations, warranties and covenants of
the parties contained herein shall not survive the termination of this
Agreement; provided, however, that an uncured breach by a party of a
representation, warranty or covenant hereunder prior to such termination shall
survive such termination.
10. Miscellaneous.
10.1 Successors and Assigns. Except as expressly provided
herein, this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns. Other than as set
forth in the immediately succeeding sentence, and except as contemplated hereby,
neither Parent nor any Stockholder may assign any of its rights, or delegate any
of its duties or obligations, hereunder without the prior written consent of
Parent, and any such purported assignment or delegation shall be void ab initio.
Notwithstanding the foregoing, Parent, its affiliates, and its successors and
assigns, may assign their rights and delegate their duties (a) to any successor
entity resulting from any liquidation, merger, consolidation, reorganization, or
transfer of all or substantially all of the assets or stock of Parent, or (b) to
any affiliate of Parent; provided, that in either case, any such assignee shall
expressly assume all of the obligations of Parent hereunder.
10.2 Notices. All notices, demands and other communications
(collectively, "Notices") given or made pursuant to this Agreement shall be in
writing and shall be deemed to
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have been duly given if sent by registered or certified mail, return receipt
requested, postage and fees prepaid, by overnight service with a nationally
recognized "next day" delivery company such as Federal Express or United Parcel
Service, by facsimile transmission, or otherwise actually delivered to the
following addresses:
(a If to Parent:
Global Crossing Ltd.
000 X. Xxxxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
Facsimile: 000-000-0000
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: D. Xxxxx Xxxxxxx
Fax: 000-000-0000
(b If to CSH:
Cable Systems Holding, LLC
000 Xxxx Xxxxxx Xxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxx
Fax: 000-000-0000
with copies to:
Citicorp Venture Capital, Ltd.
000 Xxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: 000- 000-0000
Attn: Xxxxxxx X. Xxxxxx, Xx.; and
Xxxxxx, Xxxxx & Xxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Fax: 000-000-0000; and
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Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: 000-000-0000
Attention: Xxxxxx X. Coco, Esq.; and
(c If to any other Stockholder:
To such person(s) and address(es) set forth
under such Stockholder's signature
Any Notice shall be deemed duly given when received by the addressee thereof.
Any of the parties to this Agreement may from time to time change its address
for receiving notices by giving written notice thereof in the manner set forth
above.
10.3 Amendment: Waiver. No provision of this Agreement may be
waived unless in writing signed by all of the parties to this Agreement, and the
waiver of any 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.
10.4 Enforcement; Jurisdiction. Any suit, action or proceeding
seeking to enforce any provision of, or based on any matter arising out of or in
connection with, this Agreement or the transactions contemplated by this
Agreement may be brought against any of the parties in any Federal court located
in the State of Delaware or any Delaware state court, and each of the parties
hereto hereby consents to the exclusive jurisdiction of such courts (and of the
appropriate appellate courts therefrom) in any such suit, action or proceeding
and waives any objection to venue laid therein. Process in any such suit, action
or proceeding may be served on any party anywhere in the world, whether within
or without the State of Delaware. Without limiting the generality of the
foregoing, each party hereto agrees that service of process upon such party at
the address referred to in Section 10.2 or upon the agent appointed by the
Company for service of process in Delaware, together with written notice of such
service to such party, shall be deemed effective service of process upon such
party.
10.5 Termination. This Agreement and the irrevocable proxy
granted in Section 1.2 hereof will terminate upon the termination of the Merger
Agreement. Sections 1, 2, 3, 4.1, 4.2, 4.3, 4.4, 6 and 7 shall terminate at the
Effective Time of the Mergers. With respect to the Outside Stockholders only,
this Agreement shall terminate in its entirety and the Outside Stockholders
shall no longer be deemed Stockholders hereunder upon the first anniversary of
the Closing.
10.6 Capacity. No member, stockholder, director, partner,
employee, officer, representative or agent of any Stockholder (in each case, in
their capacity as such) has made any (and shall not be deemed to have made any)
representations, warranties or covenants (express or implied) under or in
connection with this Agreement.
12
10.7 Severability. 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
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.
10.8 Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement
and shall become effective when one or more counterparts have been signed by
each of the parties and delivered to the other parties.
10.9 Entire Agreement; No Third-Party Beneficiaries. 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.
10.10 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware.
10.11 Headings. The section and subsection headings contained
in this Agreement are included for convenience only and form no part of the
agreement between the parties.
10.12 Expenses. Each party shall pay its own costs, expenses,
including without limitation, the fees and expenses of their respective counsel
and financial advisors.
10.13 Publicity. The initial press release relating to this
Agreement shall be a joint press release, and Parent and the Stockholders shall
use reasonable efforts to agree upon the text of any other press release before
issuing any such press release.
10.14 Specific Performance. Each of the parties hereto
recognizes and acknowledges that a breach by it of any covenants or agreements
contained in this Agreement will cause the other parties to sustain damages for
which they would not have an adequate remedy at law for money damages, and
therefore each of the parties hereto agrees that in the event of any such breach
the aggrieved party or parties shall be entitled to the remedy of specific
performance of such covenants and agreements and injunctive and other equitable
relief, without the posting of bond or other security, in addition to any other
remedy to which it or they may be entitled, at law or in equity.
13
IN WITNESS WHEREOF, a duly authorized representative of each
of the parties hereto have executed this Agreement as of the date first above
written.
GLOBAL CROSSING LTD.
By: /s/ Xxxxxx X. Xxxxx
------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice Chairman of the Board
CABLE SYSTEMS HOLDING, LLC
By: /s/ Xxxxx X. Xxxx
------------------------
Name: Xxxxx X. Xxxx
Title: Manager
By: /s/ Xxxxxxx Xxxxxxxxxxx
------------------------
Name: Xxxxxxx Xxxxxxxxxxx
Xxxxxxx X. Xxxxxxxxxxx
00 Xxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
with a copy to:
White & Case
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Rover, Esq.
Fax: (000) 000-0000
By: /s/ Xxxxx Xxxxx
------------------------
Name: Xxxxx Xxxxx
IPC Communications, Inc.
Wall Street Plaza
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxx
Fax: (000) 000-0000
By: /s/ Xxxxxxx Xxxxxxxx
------------------------
Name: Xxxxxxx Xxxxxxxx
IPC Communications, Inc.
Wall Street Plaza
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxx
Fax: (000) 000-0000
ALLEGRA CAPITAL PARTNERS III, L.P.
Its General Partner:
Allegra Partners III, L.P.
By: /s/ Xxxxxxx X. Xxxxx
------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Partner
Allegra Capital Partners III, L.P.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxx
Fax: (000) 000-0000
SCHEDULE 2.4
SHARES OF
COMPANY COMMON STOCK
HELD
-------------------
NAME OF RECORD OWNER
--------------------
Cable Systems Holding, LLC........................................... 4,346,033
Xxxxxxx XxxxxXxxxxx.................................................. 761,904
Xxxxx Xxxxx.......................................................... 271,617
Xxxxxxx Xxxxxxxx..................................................... 174,730
Allegra Capital Partners III, L.P. .................................. 381,904
----------
STOCKHOLDER TOTAL:................................................... 5,936,188
EXHIBIT A
STOCKHOLDER CONSENT
Action Taken by the Written
Consent of Stockholders
of
IPC Communications, Inc.
February __, 2000
The undersigned stockholders of IPC Communications, Inc., a Delaware
corporation (the "Corporation"), acting by written consent in lieu of a meeting
pursuant to Section 228 of the General Corporation Law of the State of Delaware,
hereby irrevocably consent to the adoption of and adopt the following resolution
with respect to the shares of the common stock, par value $.01 per share, of the
Corporation owned of record by such stockholders on the date hereof:
RESOLVED, that the Agreement and Plan of Merger, dated as of February
22, 2000 (the "Merger Agreement"), among Global Crossing Ltd., a company formed
under the laws of Bermuda ("GC"), Georgia Merger Sub Corporation, a wholly-owned
subsidiary of GC, the Corporation, IPC Information Systems, Inc., a Delaware
corporation and a wholly owned subsidiary of the Corporation, IXnet, Inc., a
Delaware corporation and a subsidiary of the Corporation, and Idaho Merger Sub
Corporation, a Delaware corporation and a wholly owned subsidiary of the
Corporation, a copy of which has been furnished to the undersigned stockholders,
be, and it hereby is, adopted and approved by the undersigned stockholders.
The action of the stockholders of the Corporation approved pursuant
hereto shall become effective when one or more consents have been (a) signed by
stockholders holding shares having a majority of the voting power of the
outstanding shares of the common stock of the Corporation, being not less than
the minimum number of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote thereon were present
and voted and (b) delivered to the Corporation at its principal place of
business.
---------------------------------
By:
------------------------------
Name:
------------------------
Title:
------------------------
Number of Shares:
Address of the stockholder:
---------------------------------
---------------------------------
Date of Execution: _______
