EXHIBIT (c)(3)
CONFORMED COPY
--------------
VOTING AGREEMENT
VOTING AGREEMENT, dated as of May 16, 1999 (this "Agreement"), between
---------
Global Crossing Ltd., a company formed under the laws of Bermuda ("Global") and
------
U S West, Inc., a Delaware corporation ("USW").
---
WHEREAS, Global, and USW are parties to that certain Agreement and Plan
of Merger dated as of the date hereof (the "Merger Agreement"; 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
----------
March 16, 1999 (as amended, the "Frontier Merger Agreement"; the transactions
-------------------------
contemplated by the Frontier Merger Agreement being referred to herein as the
"Frontier Merger");
----------------
WHEREAS, certain shareholders of Global and Frontier 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");
-------------------------
and
WHEREAS, in connection with the Merger Agreement, Global and USW have
entered into a Tender Offer and Purchase Agreement dated the date hereof (the
"TOP Agreement") pursuant to which USW will acquire up to 39,259,305 shares of
--------------
the common stock, par value $0.01 per share, of Global ("Global Common Stock"),
-------------------
upon the terms and subject to the conditions set forth in the TOP 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:
1. Representations and Warranties of USW. USW represents and
-------------------------------------
warrants to Global as follows:
(a) Ownership of Securities. USW is the record and beneficial owner of
-----------------------
the number of shares of Global Common Stock (the "Existing Securities")
-------------------
(together with any shares of Global Common Stock or other securities hereafter
acquired by USW (including by USW or the Offeror (as such term is defined in the
TOP Agreement) pursuant to the TOP Agreement), the "Subject Securities") set
------------------
forth on the signature page to this Agreement. USW does not own any shares of
Global Common Stock on the date hereof other than the Existing Securities. USW
has or will have sole voting power and sole power to issue instructions with
respect to the voting of
2
the Subject Securities, sole power of disposition, sole power of exercise or
conversion and the sole power to demand appraisal rights, in each case with
respect to all of the Subject Securities.
(b) Power; Binding Agreement. USW has all necessary corporate power and
------------------------
authority to execute and deliver this Agreement, to perform its obligations
hereunder and to consummate the transactions contemplated hereby. The execution
and delivery of this Agreement by USW and the consummation by USW of the
transactions contemplated hereby have been duly and validly authorized by all
necessary corporate action, and no other corporate proceedings on the part of
USW are necessary to authorize this Agreement or to consummate the transactions
so contemplated. This Agreement has been duly and validly executed and
delivered by USW and, assuming the due authorization, execution and delivery
hereof by Global, constitutes a legal, valid and binding obligation of USW,
enforceable against USW in accordance with its terms.
(c) No Conflicts. (i) The execution and delivery of this Agreement by
------------
USW and the consummation by USW of the transactions contemplated hereby does not
and will not (1) conflict with or violate the certificate of incorporation or
by-laws of USW, (2) conflict with or violate any law, rule, regulation, order,
judgment or decree applicable to USW or any of its subsidiaries or by which its
or any of their respective properties are bound or (3) result in any breach or
violation of or constitute a default (or an event which with notice or lapse of
time or both would become a default) or result in the loss of a material benefit
under, or give rise to any right of termination, cancellation, material
amendment or material acceleration of, any note, bond, mortgage, indenture,
contract, agreement, lease, license, permit or other instrument or obligation to
which USW or any of its subsidiaries is a party or by which USW or any of its
subsidiaries or its or any of their respective properties are bound.
(ii) The execution and delivery of this Agreement by USW and the
consummation by USW of the transactions contemplated hereby does not and will
not require any consent, approval, authorization or permit of, action by, filing
with or notification to, any Governmental Entity other than filings, if any,
which may be required under the Exchange Act.
(d) No Liens. The Existing Securities (if any) are now and, at all
--------
times during the term hereof, the Subject Securities will be held by USW, or by
a nominee or custodian for the benefit of USW, free and clear of all liens,
claims, security interests, proxies, voting trusts or agreements, understandings
or arrangements or any other encumbrances whatsoever, except for any
encumbrances arising hereunder.
2. Agreement to Vote Shares. At every meeting of the stockholders
------------------------
of Global called with respect to any of the following, and at every adjournment
thereof, and on every action or approval by written consent of the stockholders
of Global with respect to any of the following, USW agrees that it shall vote
(or cause to be voted), or deliver a written consent (or cause a consent to be
delivered) covering all the Subject Securities (to the extent such securities
have voting rights) that it or any of its subsidiaries beneficially owns on the
record date of any such vote: (i) (x) in favor of the Global Merger and any
action required in furtherance thereof and (y) in favor of the Frontier Merger
and any action required in furtherance thereof and (ii) unless otherwise agreed
to in writing by Global, against any action which would reasonably
3
be expected to result in a failure of the conditions described in Article VIII
of the Merger Agreement to be satisfied.
3. Representations and Warranties of Global.
----------------------------------------
(a) Power; Binding Agreement. Global has all necessary corporate power
------------------------
and authority to execute and deliver this Agreement, to perform its obligations
hereunder and to consummate the transactions contemplated hereby. The execution
and delivery of this Agreement by Global and the consummation by Global of the
transactions contemplated hereby has been duly and validly authorized by all
necessary corporate action, and no other corporate proceedings on the part of
Global is necessary to authorize this Agreement or to consummate the
transactions so contemplated. This Agreement has been duly and validly executed
and delivered by Global and, assuming the due authorization, execution and
delivery hereof by Global, constitutes a legal, valid and binding obligation of
Global, enforceable against Global in accordance with its terms.
(b) No Conflicts. (i) The execution and delivery of this Agreement
------------
by Global and the consummation by Global of the transactions contemplated hereby
does not and will not (1) conflict with or violate the Memorandum of Association
or by-laws of Global, (2) conflict with or violate any law, rule, regulation,
order, judgment or decree applicable to Global or any of its subsidiaries or by
which its or any of their respective properties are bound or (3) result in any
breach or violation of or constitute a default (or an event which with notice or
lapse of time or both would become a default) or result in the loss of a
material benefit under, or give rise to any right of termination, cancellation,
material amendment or material acceleration of, any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit or other instrument or
obligation to which Global or any of its subsidiaries is a party or by which
Global or any of its subsidiaries or its or any of their respective properties
are bound.
(ii) The execution and delivery of this Agreement by Global and
the consummation by Global of the transactions contemplated hereby does not and
will not require any consent, approval, authorization or permit of, action by,
filing with or notification to, any Governmental Entity.
4. Covenants of the Holders. USW agrees and covenants that:
------------------------
(a) Restriction on Transfer, Proxies and Noninterference. USW shall
----------------------------------------------------
not, and shall cause each of its affiliates not to, directly or indirectly: (i)
offer for sale, sell, transfer, tender, pledge, encumber, assign or otherwise
dispose of, or enter into any contract, option or other arrangement or
understanding with respect to or consent to the offer for sale, sale, transfer,
tender, pledge, encumbrance, assignment or other disposition of, any or all of
the Subject Securities; (ii) except as contemplated hereby, grant any proxies or
powers of attorney, deposit any such Subject Securities into a voting trust or
enter into a voting agreement with respect to any of the Subject Securities; or
(iii) take any action that would make any representation or warranty contained
herein untrue or incorrect or have the effect of preventing or disabling USW
from performing its obligations under this Agreement.
4
(b) Further Actions. USW shall use reasonable efforts to take all
---------------
actions and to do all things necessary, proper or advisable to consummate the
transactions contemplated by the Merger Agreement and this Agreement.
5. Entire Agreement; Assignment. Except as may otherwise be agreed
----------------------------
by the parties, this Agreement, the TOP Agreement, the Standstill Agreement (as
defined in the TOP Agreement), and the Merger Agreement constitute the entire
agreement among the parties with respect to the subject matter hereof and
supersede all prior agreements and undertakings, both written and oral, among
the parties, or any of them, with respect to the subject matter hereof. Neither
this Agreement nor any of the rights, interests or obligations under this
Agreement shall be assigned, in whole or in part, by operation of law or
otherwise by any of the parties without the prior written consent of the other
parties.
6. Notices. All notices, requests, claims, demands and other
-------
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by delivery in person, by cable,
facsimile, telegram or telex or by registered or certified mail (postage
prepaid, return receipt requested) to the respective parties at the following
addresses (or at such other address for a party as shall be specified by like
notice):
If to USW:
U S West, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. Block
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Global:
Global Crossing Ltd.
Wessex House
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇
Attention: K. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
and
5
Global Crossing Ltd.
▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
Attention: General Counsel
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
and Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
7. Specific Performance; Jurisdiction. The parties agree that
----------------------------------
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions of this Agreement in any court of
the United States located in the State of New York or in any New York state
court, this being in addition to any other remedy to which such party is
entitled at law or in equity. In addition, each of the parties hereto (1)
consents to submit itself to the personal jurisdiction of any Federal court
located in the State of New York or any New York state court in the event any
dispute arises out of this Agreement or any of the transactions contemplated by
this Agreement, (2) agrees that it will not attempt to deny or defeat such
personal jurisdiction by motion or other request for leave from any such court,
(3) agrees that it will not bring any action relating to this Agreement or any
of the transactions contemplated by this Agreement in any court other than a
Federal or state court sitting in the State of New York and (4) consents to
service being made through the notice procedures set forth in Section 6.
8. Amendment. This Agreement may be amended by the parties hereto at
---------
any time only by an instrument in writing signed by the parties hereto.
9. Governing Law. This Agreement shall be governed by, and construed
-------------
in accordance with, the internal laws of the State of New York.
10. Counterparts. This Agreement may be executed in two or more
------------
counterparts, and by the different parties hereto in separate counterparts, each
of which when
6
executed shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement.
11. Termination. This Agreement shall terminate upon the later of
-----------
(x) the earlier of (i) the consummation of the Global Merger and (ii) the
termination of the Merger Agreement pursuant to its terms and (y) the earlier of
(i) the consummation of the Frontier Merger and (ii) the termination of the
Frontier Merger Agreement pursuant to its terms. The date and time at which
this Agreement is terminated in accordance with this Section 11 is referred to
herein as the "Termination Date." Upon any termination of this Agreement, this
Agreement shall thereupon become void and of no further force and effect, and
there shall be no liability in respect of this Agreement or of any transactions
contemplated hereby on the part of any party hereto or any of its directors,
officers, partners, stockholders, employees, agents, advisors, representatives
or affiliates; provided, however, that nothing herein shall relieve any party
-------- -------
from any liability for such party's breach of this Agreement; and provided
--------
further that nothing herein shall limit, restrict, impair, amend or otherwise
-------
modify the rights, remedies, obligations or liabilities of any person under any
other contract or agreement, including, without limitation, the Merger
Agreement.
7
IN WITNESS WHEREOF, this Agreement has been executed by or on behalf
of each of the parties hereto, all as of the date first above written.
GLOBAL CROSSING LTD.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-------------------------------------------
Title: Chief Executive Officer
U S WEST, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------------
Title: President and Chief Executive
Officer
Existing Securities: NONE
---------------