EXHIBIT (C)(8)
CONFORMED COPY
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TRANSFER AGREEMENT
TRANSFER AGREEMENT (this "Agreement"), dated as of May 16, 1999, by
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and between Global Crossing Ltd., a company organized under the laws of Bermuda
("Global"), and each of the parties listed on the signature page hereto
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(individually, a "Shareholder" and collectively, the "Shareholders"); and
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WHEREAS, Global, the Shareholders and each of the other parties listed
on the signature page thereto are parties to that certain Tender and Voting
Agreement dated as of the date hereof (the "Tender and Voting Agreement";
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capitalized terms used and not otherwise defined herein having the meaning set
forth in the Tender and Voting 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:
SECTION 1. 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 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).
SECTION 2. REPRESENTATIONS AND WARRANTIES OF SHAREHOLDERS. Each
Shareholder severally represents and warrants to Global 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
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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.
(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.
(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 3. 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 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 Global in exercising any right, power or
privilege under this Agreement shall operate as a waiver of the right,
power or
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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.
(2) In view of the uniqueness of the agreements contained in this
Agreement and the transactions contemplated hereby and thereby and the fact
that Global 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 Global from any provision of this Agreement, shall be
effective unless it shall be in writing and signed and delivered by all the
Shareholders and Global, 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.
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(g) ENTIRE AGREEMENT. This Agreement embodies the entire agreement
and understanding of the Shareholders and Global, and supersedes all prior
agreements or understandings, with respect to the subject matters of this
Agreement.
(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 Global
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 Global 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 Global 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, this Agreement shall automatically terminate at such time as all of the
obligations of the Shareholders pursuant to Sections 1 shall have terminated in
accordance with thier 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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
GLOBAL CROSSING LTD.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
By:_______________________________________
Title: Vice Chairman
CIBC WOOD GUNDY CAPITAL (SFC) INC.
/s/ ▇▇▇ ▇. ▇▇▇▇▇▇
By:_______________________________________
Title: Agent
CIBC WG ARGOSY MERCHANT FUND 3, L.P.
/s/ ▇▇▇ ▇. ▇▇▇▇▇▇
By:_______________________________________
Title: Agent
CO-INVESTMENT MERCHANT FUND, LLC
/s/ ▇▇▇ ▇. ▇▇▇▇▇▇
By:_______________________________________
Title: Agent
GLOBAL CROSSING LTD., LDC
/s/ ▇▇▇ ▇. ▇▇▇▇▇▇
By:_______________________________________
Title: Agent
EXHIBIT A
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
