EXHIBIT (c)(5)
CONFORMED COPY
TENDER AND VOTING AGREEMENT
TENDER AND VOTING AGREEMENT (this "Agreement"), dated as of May 16,
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1999, by and among U S West, Inc., a company organized under the laws of
Delaware ("Purchaser"), Global Crossing Ltd., a company formed under the laws of
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Bermuda ("Global") and each of the parties listed on the signature page hereto
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(individually, a "Shareholder" and collectively, the "Shareholders").
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WHEREAS, Global and Purchaser are parties to that certain Agreement
and Plan of Merger dated as of the date hereof (the "Merger Agreement";
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capitalized terms used and not otherwise defined herein having the meaning set
forth in the Merger Agreement);
WHEREAS, Global, GCF Acquisition Corp. and Frontier Corporation
("Frontier") are parties to that certain Agreement and Plan of Merger, dated
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March 16, 1999 (the "Frontier Merger Agreement"; the transactions contemplated
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by the Frontier Merger Agreement being referred to herein as the "Frontier
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Merger");
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WHEREAS, Frontier and certain shareholders of Global are parties to
that certain Voting Agreement dated as of March 16, 1999 which was entered into
in connection with the Frontier Merger Agreement ( "Frontier Voting Agreement");
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WHEREAS, in connection with the Merger Agreement, Global and Purchaser
have entered into a Tender Offer and Purchase Agreement dated the date hereof
(the "Tender Offer and Purchase Agreement") pursuant to which Purchaser has
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agreed to make a tender offer (the "Offer") to acquire shares of the outstanding
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common stock, par value $0.01 per share, of Global ("Global Common Stock"), upon
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the terms and subject to the conditions set forth in the Tender Offer and
Purchase Agreement; and
WHEREAS, as a condition to its willingness to enter into the Merger
Agreement and make the Offer, Purchaser has required that each of the
Shareholders enter into this Agreement and that Global enter into the Tender
Offer and Purchase 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 hereby agree as follows:
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SECTION 1. COVENANTS OF THE SHAREHOLDERS
(a) AGREEMENT TO TENDER. Until the termination of the Tender Offer
and Purchase Agreement, each Shareholder hereby agrees to validly tender
pursuant to the Offer and not to withdraw at least 12.3045% of the total number
of shares of Global Common Stock owned by each Shareholder as of the date hereof
(the "Subject Shares").
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(b) VOTING. Subject to the receipt of proper notice and the absence
of a preliminary or permanent injunction or other final order by any United
States federal court or state court or Bermuda court barring such action, each
Shareholder shall do the following:
(1) be present, in person or represented by proxy, at each meeting
(whether annual or special, and whether or not an adjourned or postponed
meeting) of the shareholders of Global, however called, or in connection
with any written consent of the shareholders of Global, so that all Subject
Shares then held by such Shareholder and entitled to vote may be counted
for the purposes of determining the presence of a quorum at such meetings;
and
(2) at each such meeting held before the Effective Time and with
respect to each such written consent, vote (or cause to be voted), or
deliver a written consent (or cause a consent to be delivered) covering,
all the Subject Shares then held by such Shareholder to approve the Global
Merger and the Global Merger Agreement and any action required in
furtherance thereof and against any action which would reasonably be
expected to result in a failure of the conditions described in Article VIII
of the Merger Agreement to be satisfied.
(c) NO INCONSISTENT AGREEMENTS. Each Shareholder shall not enter
into any voting agreement or grant a proxy or power of attorney with respect to
the Subject Shares which is inconsistent with this Agreement.
(d) WAIVER OF APPRAISAL RIGHTS. To the extent permitted by
applicable law, each Shareholder hereby agrees to waive any appraisal,
dissenters' or similar rights that such Shareholder may have under Bermuda law
with respect to the Global Merger.
(e) TRANSFER OF SUBJECT SHARES--GLOBAL MERGER. From the date hereof
until the earlier of the termination of the Global Merger Agreement and the
consummation of the Global Merger, the Shareholders shall not transfer record
ownership or beneficial ownership, or both, of any Subject Shares (other than
pursuant to the Offer) representing 15% of the issued and outstanding shares of
Global Common Stock in any one transaction or series of related transactions to
any single person or "group" (as determined pursuant to Rule 13d-5 under the
Exchange Act) (other than transfers to agents for purposes of distribution)
unless such transferee agrees to comply with the voting requirements of this
Section 1(b) with respect to the transferred shares of Global Common Stock.
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SECTION 2. TRANSFER OF SUBJECT SHARES--FRONTIER MERGER. From the
date hereof until the earlier of the termination of the Frontier Merger
Agreement and the consummation of the Frontier Merger, each Shareholder (other
than Excluded Shareholders (as defined below)) shall not transfer record
ownership or beneficial ownership, or both, of any Subject Shares (other than
pursuant to the Offer); provided, that each Shareholder shall be permitted to
transfer ownership of Subject Shares if consented to by Global (such consent not
to be unreasonably withheld). For the purposes of this Agreement, the term
"transfer" means a sale, an assignment, a grant, a transfer, a pledge, the
creation of a lien 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 Exchange Act). "Excluded Shareholders" means the Shareholders
identified as such on Exhibit A.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF SHAREHOLDERS. Each
Shareholder severally represents and warrants to Purchaser as follows:
(a) EXISTENCE AND POWER. Each Shareholder that is a corporation (1)
is a corporation duly incorporated, validly existing and in good standing
under the laws of the State of its incorporation and (2) has all requisite
corporate power and authority to execute and deliver this Agreement.
(b) AUTHORIZATION; CONTRAVENTION. The execution and delivery by each
Shareholder of this Agreement and the performance by it of its obligation
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.
(c) BINDING EFFECT. This Agreement constitutes 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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(d) OWNERSHIP. As of the date hereof, 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
Frontier Voting Agreement and in accordance with the terms thereof and
hereof. 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. Except pursuant to the Frontier Voting Agreement no
Shareholder has appointed or granted any proxy which is still effective
with respect to its Subject Shares. As of the date hereof, 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 Stockholders' Meeting at which the Global Merger
shall be presented for approval, each Shareholder will have sole voting
power or power to direct the vote of such Shareholder's Subject Shares then
held by such Shareholder.
(e) 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 Person
that restricts in any material respect or prohibits (or, if successful,
would restrict or prohibit) the exercise by any party or beneficiary of its
rights under this Agreement or the performance by any party of its
obligations under this Agreement.
SECTION 4. MISCELLANEOUS PROVISIONS.
(a) NOTICES. All notices and other communications hereunder shall be
in writing and shall be deemed duly given (1) on the date of delivery if
delivered personally, or by telecopy or telefacsimile, upon confirmation of
receipt, (2) on the first business day following the date of dispatch if
delivered by a recognized next-day courier service, or (3) on the tenth business
day following the date of mailing if delivered by registered or certified mail,
return receipt requested, postage prepaid. All notices hereunder shall be given
to Global and Purchaser at its address stated in Section 11.2 of the Merger
Agreement and all notices to the Shareholders shall be given at its address in
the records of Global or, in each case, at any other address as the party may
specify for this purpose by notice to the other parties.
(b) NO WAIVERS; REMEDIES; SPECIFIC PERFORMANCE.
(1) No failure or delay by Purchaser 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 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.
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(2) In view of the uniqueness of the agreements contained in this
Agreement and the transactions contemplated hereby and thereby and the fact
that Purchaser 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
Global shall be entitled to specific enforcement of the terms of this
Agreement in addition to any other remedy to which Global may be entitled,
at law or in equity.
(c) AMENDMENTS, ETC. No amendment, modification, termination, or
waiver of any provision of this Agreement, and no consent to any departure by
any of the Shareholders or Purchaser from any provision of this Agreement, shall
be effective unless it shall be in writing and signed and delivered by all the
Shareholders and Purchaser, and then it shall be effective only in the specific
instance and for the specific purpose for which it is given.
(d) SUCCESSORS AND ASSIGNS; THIRD PARTY BENEFICIARIES.
(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(d) shall be void AB INITIO and shall not
relieve the assigning or delegating party of any obligation under this
Agreement.
(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.
(e) GOVERNING LAW. This Agreement and all rights, remedies,
liabilities, powers and duties of the parties hereto and thereto, shall be
governed in accordance with the laws of the State of New York.
(f) 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.
(g) ENTIRE AGREEMENT. This Agreement embodies the entire agreement
and understanding of the Shareholders and Purchaser, and supersedes all prior
agreements or understandings, with respect to the subject matters of this
Agreement.
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(h) SURVIVAL. Except as otherwise specifically provided in this
Agreement, each representation, warranty or covenant of a party contained in
this Agreement shall remain in full force and effect, notwithstanding any
investigation or notice to the contrary or any waiver by any other party or
beneficiary of a related condition precedent to the performance by the other
party or beneficiary of an obligation under this Agreement.
(i) SUBMISSION TO JURISDICTION; WAIVERS. Each Shareholder and
Purchaser irrevocably agrees that any legal action or proceeding with respect to
any voting document or for recognition and enforcement of any judgment in
respect hereto or thereof brought by the other party hereto or its successors or
assigns may be brought and determined in the courts of the State of New York,
and each Shareholder and Purchaser 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 and Purchaser 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(i), (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.
(j) TERMINATION. Unless terminated by mutual agreement of the
parties, the obligations of the Shareholders under Sections 1(b), 1(c), 1(d) and
1(e) of this Agreement shall terminate upon the first to occur of (i)
consummation of the Global Merger, (ii) the termination of the Merger Agreement,
(iii) the full and irrevocable satisfaction of the condition set forth in
Section 8.1(a) of the Merger Agreement with respect to the Global Merger and
(iv) termination of the Tender Offer and Purchase Agreement without the purchase
of shares of Global Common Stock pursuant thereto. This Agreement shall
automatically terminate at such time as all of the obligations of the
Shareholders pursuant to Sections 1 and 2 shall have terminated in accordance
with their terms.
(k) COUNTERPARTS. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if all
signatures were on the same instrument.
(l) FRONTIER VOTING AGREEMENT. Nothing herein is intended to modify
the obligations of the parties set forth in the Frontier Voting Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first written above.
GLOBAL CROSSING LTD.
By: /s/ Xxxxxx Xxxxxxxxxx
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Title: Chief Executive Officer
U S WEST, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Title: President and Chief Executive Officer
CIBC WOOD GUNDY CAPITAL (SFC) INC.
By: /s/ Xxx X. Xxxxxx
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Title: Agent
CIBC WG ARGOSY MERCHANT FUND 3, L.P.
By: /s/ Xxx X. Xxxxxx
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Title: Managing Director
CO-INVESTMENT MERCHANT FUND, LLC
By: /s/ Xxx X. Xxxxxx
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Title: Agent
CONTINENTAL CASUALTY CORPORATION
CONTINENTAL CASUALTY CORP.
DESIGNATED HIGH YIELD FUND
By: /s/ Xxxxxx Xxxxxxxxxx
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Title: Authorized Signatory
MRCO, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Title: President
/s/ Xxxx Xxxxxxx
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XXXX XXXXXXX
PACIFIC CAPITAL GROUP, INC.
By: /s/ Xxxx Xxxxxxx
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Title: Chairman and Chief Executive Officer
GKW UNIFIED HOLDINGS, LLC
By: /s/ Xxxx Xxxxxxx
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Title: Authorized Signatory
/s/ Xxxxxx X. Xxxxx
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XXXXXX X. XXXXX
XXXXX LIVING TRUST
RIDGESTONE CORP.
By: /s/ Xxxxxx X. Xxxxx
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Title: President
/s/ Xxxxx Xxxxxx
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XXXXX XXXXXX
GALENIGHT CORP.
By: /s/ Xxxxx Xxxxxx
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Title: President
/s/ Xxxxx Xxx
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XXXXX XXX
SAN XXXXXXX CORP.
By: /s/ Xxxxx Xxx
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Title: President
XXXXX AND XXXXX XXX FAMILY TRUST
By: /s/ Xxxxx Xxx
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Title: Trustee
/s/ Xxxxxxxx Xxxx
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XXXXXXXX XXXX
GLOBAL CROSSING LTD., LDC
By: /s/ Xxx X. Xxxxxx
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Title: Agent
GLOBAL CROSSING TRUST 1998
By: /s/ Xxxxxx Xxxxxxxxxx
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Title: Settlor
GLOBAL CROSSING PARTNERS
By: /s/ Xxxxxx Xxxxxxxxxx
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Title: General Partner
CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/ Xxx X. Xxxxxx
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Title: Agent
EXHIBIT A
Xxxxx Living Trust 3,435,922
Ridgestone Corp. 7,765,418
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Total Xxxxxx X. Xxxxx 11,201,340
Xxxxx Xxxxxx 6,335,780
Galenight Corp. 11,883,968
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Total Xxxxx Xxxxxx 18,219,748
Continental Casualty Corp. 16,795,500
Continental Casualty Corp. Designated High Yield 23,279,670
Global Crossing Partners (Xxxxxx Xxxxxxxxxx) 486,630
Global Crossing Trust 1998 (Xxxxxx Xxxxxxxxxx) 2,100,000
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Total Continental Casualty 42,661,800
CIBC WG Argosy Merchant Fund 3, LP* 17,223,628
CIBC Wood Gundy Capital (SFC) Inc.* 1,340,000
Co-Investment Merchant Fund, LLC* 9,568,684
Global Crossing Ltd., LDC* 68,894,488
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Total CIBC 97,026,800
Xxxxx and Xxxxx Xxx Family Trust 5,233,234
Xxxxx X. Xxx 4,869,964
San Xxxxxxx Corp. 9,900,822
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Total Xxxxx Xxx 20,004,020
GKW Unified Holdings, LLC 77,195,744
Pacific Capital Group, Inc. 15,993,406
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Total Xxxx Xxxxxxx 93,189,150
Xxxxxxxx Xxxx 3,580,452
MRCo, Inc. 33,180,260
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* Excluded Shareholder.
