EXHIBIT (c)(2)
CONFORMED COPY
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TENDER OFFER AND PURCHASE AGREEMENT
TENDER OFFER AND PURCHASE AGREEMENT, dated as of May 16, 1999 (this
"Agreement"), between Global Crossing Ltd., a company formed under the laws of
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Bermuda ("Global"), and U S West, Inc., a Delaware corporation ("USW").
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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
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used and not otherwise defined herein having the meaning set forth in the Merger
Agreement);
WHEREAS , in connection with the transactions contemplated by this
Agreement and the Merger Agreement, certain holders of shares of Global Common
Stock have entered into an agreement with USW to tender such shares as set forth
in such agreement;
WHEREAS, in connection with this Agreement and the Merger Agreement,
USW and Global are entering into a Voting Agreement (the "Voting Agreement"), a
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Standstill Agreement (the "Standstill Agreement") and an Agreement (the
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"Agreement"), all of which agreements are dated as of the date hereof; and
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WHEREAS, as a condition of its entering into the Merger Agreement and
the agreements and transactions pursuant thereto, USW requires that Global enter
into, and Global has agreed to enter into, this 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:
ARTICLE I
THE OFFER
SECTION 1.1 The Offer. (a) Provided that this Agreement shall not have
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been terminated in accordance with Section 5.1 hereof and subject to the
satisfaction of the conditions set forth in Exhibit A hereto (the "Offer
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Conditions"), USW shall or shall cause a direct or indirect wholly-owned
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subsidiary of USW (the entity making the Offer, the "Offeror"), as soon as
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reasonably practicable after the date hereof (and in any event within five
business days from the date of public announcement of the execution hereof),
commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of
1934, as amended (the "Exchange Act")), an offer (the "Offer") to purchase for
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cash up to a number of the issued and outstanding shares of Global Common Stock
equal to the Maximum Offer Number (as defined below) at a price of
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$62.75 per share of Global Common Stock, net to the seller in cash. The
obligation of the Offeror to accept for payment shares of Global Common Stock
tendered pursuant to the Offer shall be subject only to the satisfaction or
waiver by the Offeror of the Offer Conditions. Subject to the last sentence of
this Section 1.1(a), USW expressly reserves the right to waive, or to cause the
Offeror to waive, any such condition and make any other changes in the terms and
conditions of the Offer; provided that, unless previously approved by Global in
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writing, no change may be made which decreases the price per share of Global
Common Stock payable in the Offer, changes the form of consideration payable in
the Offer, increases or reduces the maximum number of 39,259,305 shares of
Global Common Stock (the "Maximum Offer Number"), amends the Offer Conditions or
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imposes conditions to the Offer in addition to the Offer Conditions, or makes
other changes to the terms or conditions to the Offer which may be adverse to
Global or any holder (each, a "Stockholder") of shares of Global Common Stock or
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which may result in a delay of the consummation of the Offer. USW covenants and
agrees that, subject to the terms and conditions of this Agreement, including
but not limited to the Offer Conditions, it will, or will cause the Offeror to,
accept for payment and pay for shares of Global Common Stock as soon as it is
permitted to do so under applicable law (the time of such payment being referred
to herein as the "Offer Closing"). The Offer shall initially be scheduled to
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expire 20 business days following the commencement thereof, provided that,
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unless this Agreement has been terminated pursuant to Section 5.1, USW shall
extend the Offer from time to time in the event that, at a then-scheduled
expiration date, all of the Offer Conditions have not been satisfied or waived
as permitted pursuant to this Agreement, each such extension not to exceed
(unless otherwise consented to in writing by Global) the lesser of 10 additional
business days or such fewer number of days that USW and Global reasonably
believe are necessary to cause the Offer Conditions to be satisfied; provided
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that, under no circumstances shall any such extension be less than the minimum
number of days required by the Exchange Act or the rules and regulations
promulgated thereunder or by other applicable law. It is agreed that the Offer
Conditions are for the benefit of USW and the Offeror and may be asserted by USW
and the Offeror regardless of the circumstances giving rise to any such
condition (except for any action or inaction by USW or the Offeror constituting
a breach of this Agreement). Except as provided in Section 1.1(c), USW shall
not, and shall not permit the Offeror to, terminate the Offer without purchasing
shares of Global Common Stock pursuant to the Offer. In addition,
notwithstanding anything in this Agreement or the Offer Conditions to the
contrary, USW or the Offeror may waive any of the Offer Conditions only after
giving 5 business days prior written notice of its intention to do so to Global.
(b) As soon as reasonably practicable on the date the Offer is
commenced, USW and/or the Offeror shall file a Tender Offer Statement on
Schedule 14D-1 (the "Schedule 14D-1") with respect to the Offer with the
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Securities and Exchange Commission (the "SEC"). The Schedule 14D-1 shall
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contain an Offer to Purchase and forms of the related letter of transmittal
(which Schedule 14D-1, Offer to Purchase and other documents, together with any
supplements or amendments thereto, are referred to herein collectively as the
"Offer Documents"). The Offer Documents and all amendments thereto will comply
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in all material respects with the Exchange Act and the rules and regulations
promulgated thereunder. USW agrees that Global and its counsel shall be given
an opportunity to review the Schedule 14D-1 before it is filed with the SEC.
USW and Global each agree promptly to correct any information provided by it for
use in
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the Offer Documents that shall have become false or misleading in any
material respect, and USW further agrees to take all steps necessary to cause
the Schedule 14D-1 as so corrected to be filed with the SEC and the other Offer
Documents as so corrected to be disseminated to holders of shares of Global
Common Stock, in each case as and to the extent required by applicable federal
securities laws.
(c) In the event that this Agreement has been terminated pursuant to
Section 5.1, USW shall, or shall cause the Offeror to, promptly terminate the
Offer without accepting any shares of Global Common Stock for payment. USW will
provide Global with a copy of any comments USW or the Offeror may receive from
the SEC or its staff with respect to the Offer Documents as soon as possible
following receipt thereof.
(d) If, at the expiration of the Offer, a number of shares of Global
Common Stock in excess of the Maximum Offer Number have been validly tendered
and not withdrawn, USW will purchase such shares on a pro rata basis, based on
the number of shares of Global Common Stock tendered by each Stockholder
(provided, that, to the extent permitted by the Exchange Act, the rules and
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regulations promulgated thereunder and any other applicable law or regulation,
USW and Global will cooperate to make such adjustments to the proration
mechanism and/or take all other reasonable actions as may be necessary to allow
holders of exercisable options for shares of Global Common Stock issued by
Global to tender shares issuable upon exercise of such options without
exercising such options until such time as it is determined that such shares
will be purchased by USW pursuant to the Offer), with appropriate adjustments to
avoid purchase of fractional shares of Global Common Stock.
SECTION 1.2 Company Action. (a) Global shall file with the SEC,
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contemporaneously with the commencement of the Offer pursuant to Section 1.1, a
Solicitation/Recommendation Statement on Schedule 14D-9 (together with all
amendments and supplements thereto, the "Schedule 14D-9"), containing the
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recommendation of Global's Board of Directors that the stockholders of Global
accept the Offer and tender their shares of Global Common Stock pursuant to the
Offer, and shall promptly mail the Schedule 14D-9 to the stockholders of Global.
The Schedule 14D-9 and all amendments thereto will comply in all material
respects with the Exchange Act and the rules and regulations promulgated
thereunder. Global and USW each agree promptly to correct any information
provided by it for use in the Schedule 14D-9 that shall have become false or
misleading in any material respect, and Global further agrees to take all steps
necessary to cause the Schedule 14D-9 as so corrected to be filed with the SEC
and disseminated to holders of shares of Global Common Stock, in each case as
and to the extent required by applicable federal securities laws.
(b) In connection with the Offer, Global shall promptly furnish USW
with mailing labels, security position listings, any non-objecting beneficial
owner lists and any available listings or computer files containing the names
and addresses of the record holders of shares of Global Common Stock, each as of
a recent date, and shall promptly furnish USW with such additional information
(including but not limited to updated lists of stockholders, mailing labels,
security position listings and non-objecting beneficial owner lists) and such
other assistance as USW or its agents may reasonably require in communicating
the Offer to the record
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and beneficial holders of shares of Global Common Stock. Subject to the
requirements of applicable law, and except for such steps as are appropriate to
disseminate the Offer Documents and any other documents necessary to consummate
the Offer, USW and its affiliates, associates, agents and advisors shall use the
information contained in any such labels, listings and files only in connection
with the Offer, and, if this Agreement shall be terminated, will deliver to
Global all copies of such information then in their possession.
SECTION 1.3 Adjustments to Number of Shares of Global Common Stock.
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If, prior to the Offer Closing, Global should split, combine or otherwise
reclassify the Global Common Stock, or pay (or set a record date that is prior
to the Offer Closing with respect to) a stock dividend or other stock
distribution in Global Common Stock, or otherwise change Global Common Stock
into any other securities, or make any other such stock dividend or distribution
with respect to the Global Common Stock in capital stock of Global or its
subsidiaries in respect of the Global Common Stock, then the Maximum Offer
Number will be appropriately adjusted to reflect such split, combination,
dividend or other distribution or change to provide USW and the Stockholders the
same economic effect as contemplated by this Agreement prior to such event.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF GLOBAL
Global hereby represents and warrants to USW that:
SECTION 2.1 Corporate Organization. Global is duly organized,
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validly existing and in good standing under the laws of Bermuda and has the
requisite power and authority to own, operate or lease its properties and to
carry on its business as it is now being conducted.
SECTION 2.2 Authority Relative to This Agreement. Global has all
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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 have been
duly and validly authorized by all necessary corporate action, and no other
corporate proceedings on the part of Global are 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 USW constitutes a legal, valid
and binding obligation of Global enforceable against Global in accordance with
its terms.
SECTION 2.3 No Conflict; Required Filings and Consents. (a) The
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execution and delivery of this Agreement by Global and the consummation by
Global of the transactions contemplated hereby and the consummation of the Offer
as contemplated hereby do not and will not (i) conflict with or violate the
Memorandum of Association or by-laws of Global, (ii assuming that all consents,
approvals and authorizations contemplated by subsection (b) below have been
obtained and all filings described in such subsection have been made, conflict
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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, (ii conflict with or violate any provision of the
Registration Rights Agreement (as defined in Section 4.1 hereof) or (iv 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, except, in the case of clauses (ii), (iii) and (iv), for
any such conflict, violation, breach, default or other occurrence which,
individually or in the aggregate, would not reasonably be likely to have a
Material Adverse Effect on Global or have a material adverse effect on the
ability of the Offeror to consummate the Offer in accordance with the terms
hereof.
(b) The execution and delivery of this Agreement by Global and the
consummation by Global of the transactions contemplated hereby do not and will
not require any consent, approval, authorization or permit of, action by, filing
with or notification to, any Federal, state, local or foreign court of competent
jurisdiction, administrative agency or commission or other governmental
authority or instrumentality ("Governmental Entity"), except for (i) compliance
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with and filings under, to the extent required, the Exchange Act and the rules
and regulations promulgated thereunder, the HSR Act, and state securities,
takeover and blue sky laws, and (ii any such consent, approval, authorization,
permit, action, filing or notification the failure of which to make or obtain,
individually or in the aggregate, would not reasonably be likely to have a
Material Adverse Effect on Global or have a material adverse effect on the
ability of the Offeror to consummate the Offer in accordance with the terms
hereof.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF USW
USW hereby represents and warrants to Global that:
SECTION 3.1 Corporate Organization. USW is duly organized, validly
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existing and in good standing under the laws of the state of Delaware and has
the requisite power and authority to own, operate or lease its properties and to
carry on its business as it is now being conducted.
SECTION 3.2 Authority Relative to This Agreement. USW has all
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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
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corporate proceedings on the part of USW is 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.
SECTION 3.3 No Conflict; Required Filings and Consents. (a) The
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execution and delivery of this Agreement by USW and the consummation by USW of
the transactions contemplated hereby and the consummation of the Offer as
contemplated hereby do not and will not (i) conflict with or violate the
certificate of incorporation or by-laws of USW, (ii assuming that all consents,
approvals and authorizations contemplated by subsection (b) below have been
obtained and all filings described in such subsection have been made, conflict
with or violate any law, rule, regulation, order, judgment or decree applicable
to USW or any of its subsidiaries including, without limitation, Purchaser) or
by which its or any of their respective properties are bound or (ii 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, except, in the case of clauses (ii) and (iii), for any
such conflict, violation, breach, default or other occurrence which,
individually or in the aggregate, would not reasonably be likely to have a
Material Adverse Effect on USW.
(b) The execution and delivery of this Agreement by USW and the
consummation by USW of the transactions contemplated hereby do not and will not
require any consent, approval, authorization or permit of, action by, filing
with or notification to, any Governmental Entity, except for (i) compliance with
and filings under, to the extent required, the Exchange Act and the rules and
regulations promulgated thereunder, the HSR Act, and state securities, takeover
and blue sky laws, and (ii any such consent, approval, authorization, permit,
action, filing or notification the failure of which to make or obtain,
individually or in the aggregate, would not reasonably be likely to have a
Material Adverse Effect on USW.
SECTION 3.4 Purchase for Investment. USW acknowledges that certain of
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the shares of Global Common Stock which may be tendered in the Offer have not
been registered under the Securities Act of 1933, as amended (the "Securities
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Act"), or under any state securities laws. USW (i) is not an underwriter as
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such term is defined under the Securities Act and the rules and regulations
promulgated thereunder, (ii) is purchasing the shares of Global Common Stock
solely for investment with no present intention to distribute any of such shares
to any person and (iii) will not sell or otherwise transfer or dispose of any of
such shares, except in compliance with the registration requirements or
exemption provisions of the Securities Act and the rules and regulations
promulgated thereunder, and any other applicable securities laws.
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SECTION 3.5 Financing. USW has on the date hereof, and will have at
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the time of the Offer Closing, the funds necessary to consummate the Offer in
accordance with this Agreement.
ARTICLE IV
CERTAIN ADDITIONAL AGREEMENTS
SECTION 4.1 Registration Rights. (a) Subject to the provisions of
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this Section 4.1, with respect to shares of Global Common Stock purchased by USW
in the Offer (collectively, "Purchased Securities"), USW shall have all the
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rights and obligations of a Holder (as such term is defined in that certain
Registration Rights Agreement dated as of August 12, 1998 by and among Global
and the other persons named on the signature pages thereto (the "Registration
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Rights Agreement")) under the Registration Rights Agreement (other than any
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rights a Holder may have under or with respect to Section 2(f) of the
Registration Rights Agreement).
(b) The Purchased Securities shall be deemed to be Registrable
Securities within the meaning of the Registration Rights Agreement until
distributed or sold in the manner contemplated in the second sentence of the
definition of Registrable Securities in the Registration Rights Agreement.
(c) With respect to demand registration rights, USW shall have the
same rights (including number of demand registrations) as the BCLP Holders (as
such term is defined in the Registration Rights Agreement) as set forth in
Section 2 of the Registration Rights Agreement (other than any rights a Holder
may have under or with respect to Section 2(f) of the Registration Rights
Agreement); provided, that USW shall have two demand registration rights, and
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provided, further, that the last proviso set forth in Section 2(a)(v) of the
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Registration Rights Agreement shall not apply to USW.
(d) USW agrees to be subject to the obligations set forth in Section
4 of the Registration Rights Agreement as if named as a holder therein.
(e) None of the rights of USW provided in this Section 4.1 shall be
exercised by USW until the later of (i) the termination of the Frontier Merger
Agreement (or consummation of the transactions pursuant thereto) and (ii) the
termination of the Merger Agreement.
(f) Global shall not amend the Registration Rights Agreement in a
manner which would adversely affect USW's registration rights provided in this
Section 4.1.
SECTION 4.2 Standstill Agreement and Voting Agreement. USW agrees
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that simultaneously with the purchase by USW of shares of Global Common Stock
pursuant to the Offer or otherwise, such shares shall become subject to each of
the Standstill Agreement and the Voting Agreement between USW and Global.
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SECTION 4.3 Tag-Along Rights. (a) Global agrees that USW shall have
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the right, in connection with any CoC Tag-Along Sale (as defined in the
Stockholders Agreement (as such term is defined in the Agreement)) to
participate in such sale on the same basis as any other CoC Other Holder (as
defined in the Stockholders Agreement) pursuant to Section 4(b) of the
Stockholders Agreement.
(b) Global shall not amend the Stockholders Agreement in a manner
which would adversely affect USW's tag-along rights provided in this Section
4.3.
SECTION 4.4 Board Representation. From and after the date of the
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termination of the Merger Agreement and so long as USW beneficially owns the
Threshold Amount (as defined below) of Global Common Stock, Global agrees to use
its reasonable best efforts to cause to be nominated to stand for election to
serve on the Board of Directors of Global, together with Global's slate of
nominees, one individual designated by USW (a "USW Designee"), and Global agrees
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to solicit proxies for such individual to the same extent as for other members
of its slate of nominees; provided, however, that Global shall not be obligated
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to nominate a USW Designee if an individual previously so designated by USW
continues to serve on the Board of Directors of Global following the applicable
election unless USW requested in writing to Global that such person not be
renominated at least 90 days prior to such election. The term "Threshold
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Amount" shall mean Global Common Stock representing 5% or more of the
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outstanding shares of Global Common Stock; provided, however, that if USW's
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ownership of Global Common Stock is reduced from its level to less than 5% of
Global Common Stock as a result of issuances of Global Common Stock, USW shall
be deemed to beneficially own the Threshold Amount until such time as it
transfers one or more shares of Global Common Stock, at which time USW shall no
longer beneficially own the Threshold Amount of Global Common Stock. At such
time as USW no longer beneficially owns the Threshold Amount of Global Common
Stock, at the request of Global, USW shall cause any USW Designee to resign from
the Board of Directors of Global.
SECTION 4.5 HSR Act. As promptly as practicable, Global and USW shall
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make all filings and submissions under the HSR Act as may be required to be made
in connection with this Agreement and the transactions contemplated hereby.
Global will furnish to USW, and USW will furnish to Global, such information and
assistance as the other may reasonably request in connection with the
preparation of any such filings or submissions. Global will provide to USW, and
USW will provide to Global, copies of all correspondence, filings or
communications between such party or any of its representatives, on the one
hand, and any Governmental Authority or members of their respective staffs, on
the other hand, with respect to this Agreement and the transactions contemplated
hereby.
SECTION 4.6 Public Announcements. USW and Global agree that they will
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not issue any press release or otherwise make any public statement or respond to
any press inquiry with respect to this Agreement or the transactions
contemplated hereby without the prior approval of the other party (which
approval shall not be unreasonably withheld), except as may be required by law.
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SECTION 4.7 Legend. Promptly following consummation of the Offer,
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the parties shall cooperate to legend the certificates representing the Global
Common Stock purchased pursuant to the Offer to refer to the applicable
restrictions on the transfer of such certificates under the Voting Agreement,
the Standstill Agreement, this Agreement and applicable law.
ARTICLE V
TERMINATION, AMENDMENT AND WAIVER
SECTION 5.1 Termination. This Agreement may be terminated and the
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transactions contemplated hereby may be abandoned at any time prior to the Offer
Closing:
(a) by the mutual written consent of USW and Global; or
(b) by USW or Global on or after May 16, 2000, but only if the Merger
Agreement has been terminated prior to such termination; or
(c) by USW at any time after the termination of the Merger Agreement
by USW pursuant to Section 9.1(d)(ii)(A) or Section 9.1(e) of the Merger
Agreement or by Global pursuant to Section 9.1(h)(i) of the Merger Agreement; or
(d) by Global at any time commencing on the first business day prior
to the mailing of the Frontier Proxy Statement in connection with the Frontier
Merger Agreement; or
(e) by USW at any time commencing on the first business day following
the termination of the Frontier Merger Agreement in accordance with its terms.
SECTION 5.2 Effect of Termination. In the event of the termination
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of this Agreement pursuant to Section 5.1, this Agreement shall forthwith become
void and there shall be no liability on the part of any party hereto; provided
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that the obligation of USW set forth in the first sentence of Section 1.1(c)
hereof shall survive any such termination and provided, further, that nothing
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herein shall relieve any party from liability for any breach hereof.
SECTION 5.3 Amendment. This Agreement may be amended by the parties
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hereto at any time only by an instrument in writing signed by the parties
hereto.
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ARTICLE VI
GENERAL PROVISIONS
SECTION 6.1 Notices. All notices, requests, claims, demands and
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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 or
the Offeror:
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
Global Crossing Ltd.
▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
Attention: General Counsel
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
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with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
and Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
SECTION 6.2 Severability. If any term or other provision of this
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Agreement is invalid, illegal or incapable of being enforced by any rule of law
or public policy, all other conditions 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
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto 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 to the end
that the transactions contemplated hereby are fulfilled to the fullest extent
possible.
SECTION 6.3 Entire Agreement; Assignment. Except as may otherwise be
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agreed by the parties, this Agreement, the Voting Agreement, the Standstill
Agreement, the Merger Agreement and the 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.
SECTION 6.4 Governing Law. This Agreement shall be governed by, and
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construed in accordance with, the internal laws of the State of New York.
SECTION 6.5 Headings. The descriptive headings contained in this
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Agreement are included for convenience of reference only and shall not affect in
any way the meaning or interpretation of this Agreement.
SECTION 6.6 Counterparts. This Agreement may be executed in two or
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more counterparts, and by the different parties hereto in separate counterparts,
each of which when executed shall be deemed to be an original but all of which
taken together shall constitute one and the same agreement.
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SECTION 6.7 Specific Performance; Jurisdiction. The parties agree
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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 (i)
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, (ii agrees that it will not attempt to deny or defeat such
personal jurisdiction by motion or other request for leave from any such court,
(ii 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 (iv consents to
service being made through the notice procedures set forth in Section 6.1.
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IN WITNESS WHEREOF, USW and Global have caused this Agreement to be
executed as of the date first written above by their respective officers
thereunto duly authorized.
U S WEST, INC.
By: /s/ Solomon D. Trujilllo
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Title: President and Chief Executive Officer
GLOBAL CROSSING LTD.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Title: Chief Executive Officer
Exhibit A
Offer Conditions
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Notwithstanding any other provision of the Offer or this Agreement,
USW shall not accept for payment or, subject to any applicable rules and
regulations of the SEC, including Rule 14e-1(c) under the Exchange Act (relating
to USW's obligation to pay for or return tendered shares of Global Common Stock
promptly after termination or withdrawal of the Offer), pay for any shares of
Global Common Stock tendered pursuant to the Offer unless any waiting periods
applicable to the Offer under the HSR Act shall have expired or been terminated
and this Agreement shall not have been terminated in accordance with its terms.
Furthermore, notwithstanding any other provision of the Offer or this Agreement,
USW shall not be required to accept for payment or, subject to the restriction
referred to above, pay for any shares of Global Common Stock tendered pursuant
to the Offer, and may, subject to the terms of this Agreement, terminate the
Offer if, prior to the expiration of the Offer, any of the following conditions
occurs or has occurred and continues to exist (other than as a result of any
action or inaction by USW or any of its subsidiaries which constitutes a breach
of this Agreement): any order or preliminary or permanent injunction shall have
been entered in any action or proceeding before any federal or state court or
governmental, administrative or regulatory authority or agency, or any other
action shall have been taken, or statute, rule, regulation, legislation,
judgment or order enacted, entered, enforced, promulgated, amended or issued by
any legislative body, court, government or governmental, administrative or
regulatory authority or agency which has the effect of making illegal or
otherwise prohibiting the acceptance for payment of, or payment for, some of or
all the shares of Global Common Stock pursuant to the Offer, which, in the
reasonable judgment of USW with respect to each and every matter referred to
above and regardless of the circumstances giving rise to any such condition,
makes it inadvisable to proceed with the Offer or with such acceptance for
payment of or payment for shares of Global Common Stock.
The foregoing conditions are for the benefit of USW and may be
asserted by USW regardless of the circumstances giving rise to any such
condition or may be waived by USW in whole or in part at any time and from time
to time in its sole discretion (subject to the terms of this Agreement). The
failure by USW at any time to exercise any of the foregoing rights shall not be
deemed a waiver of any such right, the waiver of any such right with respect to
particular facts and other circumstances shall not be deemed a waiver with
respect to any other facts and circumstances, and each such right shall be
deemed an ongoing right that may be asserted at any time and from time to time.