EXHIBIT 99.1
CONFORMED COPY
STOCKHOLDERS AGREEMENT dated as of
July 20, 1999 (this "Agreement"), among
CINCINNATI BELL INC., an Ohio corporation
("CBI"), and the individuals and other
parties listed on Schedule A attached hereto
(each, a "Stockholder" and, collectively, the
"Stockholders").
WHEREAS CBI, Ivory Merger Inc., a Delaware corporation and a
wholly owned subsidiary of CBI ("Sub"), and IXC Communications, Inc., a
Delaware corporation ("IXC"), propose to enter into an Agreement and Plan
of Merger dated as of the date hereof (as the same may be amended or
supplemented, the "Merger Agreement"; terms used but not defined herein
shall have the meanings set forth in the Merger Agreement) providing for
the merger of Sub with and into IXC (the "Merger") upon the terms and
subject to the conditions set forth in the Merger Agreement;
WHEREAS each Stockholder owns the number of shares of common
stock of IXC set forth opposite such Stockholder's name on Schedule A
hereto (such shares of common stock of IXC, together with any other
shares of common stock of IXC acquired by such Stockholder after the date
hereof and during the term of this Agreement (including through the
exercise of any stock options, warrants or similar instruments), being
collectively referred to herein as the "Subject Shares"); and
WHEREAS as a condition to its willingness to enter into the
Merger Agreement, CBI has requested that each Stockholder enter into this
Agreement.
NOW, THEREFORE, to induce CBI to enter into, and in
consideration of its entering into, the Merger Agreement, and in
consideration of the premises and the representa tions, warranties and
agreements contained herein, the parties hereto agree as follows:
SECTION 1. Representations and Warranties of Each Stockholder.
Except as specifically set forth in the disclosure schedule delivered to
CBI by such Stockholder on the date hereof, each Stockholder hereby,
severally and not jointly, represents and warrants to CBI as follows:
(a) Organization; Authority; Execution and Delivery;
Enforceability. Such Stockholder has all requisite power and authority to
enter into this Agreement and to consummate the transactions contemplated
hereby. To
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the extent that such Stockholder is an entity other than an individual,
such Stockholder is duly organized, validly existing and in good standing
under the laws of its jurisdiction of organization. The execution and
delivery of this Agreement by such Stockholder and the consummation by such
Stockholder of the transactions contemplated hereby have been duly
authorized by all necessary action on the part of such Stockholder. This
Agreement has been duly executed and delivered by such Stockholder and,
assuming due authorization, execution and delivery by CBI, constitutes a
legal, valid and binding obligation of such Stockholder, enforceable
against such Stockholder in accordance with its terms. The execution and
delivery by such Stockholder of this Agreement do not, and the consummation
of the transactions contemplated hereby and compliance with the provisions
hereof, will not, conflict with, or result in any violation of, or default
(with or without notice or lapse of time or both) under, or give rise to a
right of termination, cancelation or acceleration of any obligation or loss
of a benefit under, or result in the creation of any Lien on any properties
or assets of such Stockholder under, (i) any provision of any certificate
of incorporation or by-laws or partnership agreement or the comparable
organizational documents applicable to such Stockholder, (ii) any loan or
credit agreement, note, bond, mortgage, indenture, lease or other
agreement, instrument, permit, concession, franchise, license or similar
authorization (a "Contract") to which such Stockholder is a party or by
which any of the properties or assets of such Stockholder are bound or
(iii) subject to the filings and other matters referred to in the following
sentence of this Section 1(a), any judgment, order, decree, statute, law,
ordinance, rule or regulation applicable to such Stockholder or its
properties or assets, except in the case of each of clauses (ii) and (iii),
as is not materially likely to (x) impair the ability of such Stockholder
to perform its obligations under this Agreement or (y) prevent or
materially delay the consummation of the transactions contemplated by this
Agreement. No consent, approval, order or authorization of, action by or in
respect of, or registration, declaration or filing with, any Governmental
Entity is required by or with respect to such Stockholder in connection
with the execution and delivery of this Agreement by such Stockholder or
the consummation by such Stockholder of the transactions contemplated
hereby, except for such filings under the Exchange Act as may be required
in connection with this Agreement and the transactions contemplated hereby
and except those which are not materially likely to (x) impair the ability
of such Stockholder to perform its obligations under this Agreement or (y)
prevent or materially delay the consummation of the transactions
contemplated by this Agreement. No trust of which such Stockholder is a
trustee requires the consent of any beneficiary to the execution and
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delivery of this Agreement or to the consummation of the transactions
contemplated hereby, except for such consents which have been obtained
prior to the date hereof.
(b) The Subject Shares. Such Stockholder is the record and
beneficial owner of (or is the trustee of a trust that is the record holder
of, and whose beneficiaries are the beneficial owners of), and has good and
marketable title to, the Subject Shares set forth opposite its name on
Schedule A hereto, free and clear of any Liens. Such Stockholder does not
own of record any shares of common stock of IXC other than the Subject
Shares set forth opposite its name on Schedule A hereto, and does not
beneficially own any shares of common stock of IXC other than Subject
Shares. Such Stockholder has the sole right to vote and Transfer (as
defined below) the Subject Shares set forth opposite its name on Schedule A
hereto, and none of such Subject Shares is subject to any voting trust or
other agreement, arrangement or restriction with respect to the voting or
the Transfer of such Subject Shares, except as set forth in Section 3 of
this Agreement.
SECTION 2. Representations and Warranties of CBI. CBI hereby
represents and warrants to each Stockholder as follows: CBI has all
requisite corporate power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery
of this Agreement by CBI and the consummation of the transactions
contemplated hereby have been duly authorized by all necessary corporate
action on the part of CBI. This Agreement has been duly executed and
delivered by CBI and, assuming due authorization, execution and delivery by
each Stockholder, constitutes a legal, valid and binding obligation of CBI,
enforceable against CBI in accordance with its terms. The execution and
delivery by CBI of this Agreement do not, and the consummation of the
transactions contemplated hereby and compliance with the provisions hereof,
will not, conflict with, or result in any violation of, or default (with or
without notice or lapse of time or both) under, or give rise to a right of
termination, cancelation or acceleration of any obligation or loss of a
benefit under, or result in the creation of any Lien on any properties or
assets of CBI under, (i) any provision of the Amended Articles of
Incorporation or Amended Regulations of CBI, (ii) any Contract to which CBI
is a party or by which any of its properties or assets are bound or (iii)
subject to the filings and other matters referred to in the last sentence
of this Section 2, any judgment, order, decree, statute, law, ordinance,
rule or regulation applicable to CBI or any of its properties or assets,
except in the case of each of clauses (ii) and (iii), as is not materially
likely to (x) have a Material Adverse Effect on CBI, (y) impair the ability
of CBI to perform its obligations under
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this Agreement or (z) prevent or materially delay the consummation of the
transactions contemplated by this Agreement. No consent, approval, order or
authorization of, action by or in respect of, or registration, declaration
or filing with, any Governmental Entity is required by or with respect to
CBI in connection with the execution and delivery of this Agreement by CBI
or the consummation by CBI of the transactions contemplated hereby except
for such filings under the Exchange Act as may be required in connection
with this Agreement and the transactions contemplated hereby and except
those which are not materially likely to (x) have a Material Adverse Effect
on CBI, (y) impair the ability of CBI to perform its obligations under this
Agreement or (z) prevent or materially delay the consummation of the
transactions contemplated by this Agreement.
SECTION 3. Covenants of Each Stockholder. Each Stockholder,
severally and not jointly, covenants and agrees during the term of this
Agreement as follows:
(a) At any meeting of the stockholders of IXC called to vote upon
the Merger or the Merger Agreement or at any adjournment thereof or in any
other circumstances upon which a vote, consent or other approval (including
by written consent) with respect to the Merger or the Merger Agreement is
sought, such Stockholder shall, including by executing a written consent
solicitation if requested by CBI, vote (or cause to be voted) the Subject
Shares in favor of the adoption by IXC of the Merger Agreement and the
approval of the terms thereof and of the Merger and each of the other
transactions contemplated by the Merger Agreement. Such Stockholder hereby
agrees not to take any action by written consent in any circumstance other
than in accordance with this paragraph.
(b) Other than in accordance with the terms of this Agreement,
such Stockholder shall not (i) sell, transfer, pledge, assign or otherwise
dispose of (including by gift) (collectively, "Transfer"), or consent to
any Transfer of, any Subject Shares or any interest therein or enter into
any Contract, option or other arrangement (including any profit sharing or
other derivative arrangement) with respect to the Transfer of, any Subject
Shares or any interest therein to any person other than pursuant to the
Merger Agreement or (ii) enter into any voting arrangement, whether by
proxy, voting agreement or otherwise, in connection with, directly or
indirectly, any IXC Takeover Proposal or otherwise with respect to the
Subject Shares. Such Stockholder shall not commit or agree
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to take any action inconsistent with the foregoing. Notwithstanding any
other provision of this Agreement, (i) each Stockholder may, in the
aggregate, Transfer up to 200,000 of such Stockholder's Subject Shares and
(ii) each Stockholder may Transfer all or a portion of such Stockholder's
Subject Shares to any other person if such person expressly agrees in
writing to be bound by all of the provisions of this Agreement.
(c) From and after the date of this Agreement, such Stockholder
shall not, and shall not authorize or permit any of its Subsidiaries or
affiliates (other than IXC) or any of its or their directors, officers,
employees, investment bankers, financial advisors, attorneys, accountants
or other representatives to, directly or indirectly, (i) solicit, initiate,
encourage (including by way of furnishing information), or take any other
action designed to facilitate, any inquiries or the making of any proposal
that constitutes, an IXC Takeover Proposal, (ii) enter into any agreement
with respect to any IXC Takeover Proposal or (iii) participate in any
discussions or negotiations regarding an IXC Takeover Proposal.
(d) Such Stockholder shall not issue any press release or make
any other public statement, and shall not authorize or permit any of its
Subsidiaries or affiliates (other than IXC) or any of its or their
directors, officers, employees, partners, investment bankers, attorneys or
other advisors or representatives to issue any press release or make any
other public statement, with respect to the Merger Agreement, this
Agreement, the Merger or any of the other transactions contemplated by the
Merger Agreement or this Agreement without the prior written consent of
CBI, except as may be required by applicable law, including any filings
required under the Exchange Act.
SECTION 4. Further Assurances. Each Stockholder will, from time
to time, execute and deliver, or cause to be executed and delivered, such
additional or further consents, documents and other instruments as CBI may
reasonably request for the purpose of effectuating the matters covered by
this Agreement.
SECTION 5. Certain Events. Each Stockholder agrees that this
Agreement and the obligations hereunder shall attach to such Stockholder's
Subject Shares and shall be binding upon any person or entity to which
legal or beneficial ownership of such Subject Shares shall pass, whether by
operation of law or otherwise, including such Stockholder's heirs,
guardians, administrators or successors. In the event of any stock split,
stock dividend, merger, reorganization, recapitalization or other change in
the capital structure of IXC affecting the IXC
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Common Stock, or the acquisition of additional shares of IXC Common Stock
or other voting securities of IXC by any Stockholder, the number of Subject
Shares listed on Schedule A hereto beside the name of such Stockholder
shall be adjusted appropriately and this Agreement and the obligations
hereunder shall attach to any additional shares of IXC Common Stock or
other voting securities of IXC issued to or acquired by such Stockholder.
SECTION 6. Assignment. 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
hereto without the prior written consent of the other parties hereto,
except that CBI may assign, in its sole discretion, any of or all its
rights, interests and obligations under this Agreement to any direct or
indirect wholly owned subsidiary of CBI, but no such assignment shall
relieve CBI of its obligations under this Agreement. Any purported
assignment in violation of this Section 6 shall be void. Subject to the
preceding sentences of this Section 6, this Agreement will be binding upon,
inure to the benefit of, and be enforceable by, the parties hereto and
their respective successors and assigns.
SECTION 7. Termination. This Agreement shall terminate upon the
earlier of (a) the Effective Time and (b) 10 Business Days after the
termination of the Merger Agreement in accordance with its terms. No such
termination of this Agreement shall relieve any party hereto from any
liability for any breach of this Agreement prior to termination.
SECTION 8. General Provisions. (a) Amendments. This Agreement may
not be amended except by an instrument in writing signed by each of the
parties hereto.
(b) Notices. All notices, requests, clauses, demands and other
communications under this Agreement shall be in writing and shall be deemed
given if delivered personally, telecopied (with confirmation) or sent by
overnight or same-day courier (providing proof of delivery) to CBI in
accordance with Section 8.02 of the Merger Agreement and to the
Stockholders at their respective addresses set forth on Schedule A hereto
(or at such other address for a party as shall be specified by like
notice).
(c) Interpretation. When a reference is made in this Agreement to
Sections or Schedules, such reference shall be to a Section or Schedule to
this Agreement unless otherwise indicated. The headings contained in this
Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this
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Agreement. Wherever the words "include", "includes" or "including" are used
in this Agreement, they shall be deemed to be followed by the words
"without limitation". The words "hereof", "herein" and "hereunder" and
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement.
The term "or" is not exclusive. The definitions contained in this Agreement
are applicable to the singular as well as the plural forms of such terms.
Any agreement or instrument defined or referred to herein or in any
agreement or instrument that is referred to herein means such agreement or
instrument as from time to time amended, modified or supplemented.
References to a person are also to its permitted successors and assigns.
(d) Counterparts; Effectiveness. This Agreement may be executed
in one or more counterparts, each of which shall be deemed to be an
original, but all of which, taken together, 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 hereto and delivered to the other
party. The effectiveness of this Agreement shall be conditioned upon the
execution and delivery of the Merger Agreement by each of the parties
thereto.
(e) Entire Agreement; No Third-Party Beneficiaries. This
Agreement (including the documents and instruments referred to herein) (i)
constitutes the entire agreement and supersedes all prior agreements and
understandings, both written and oral, among the parties hereto with
respect to the subject matter of this Agreement and (ii) is not intended to
confer upon any person other than the parties hereto any rights or remedies
hereunder.
(f) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT
REGARD TO ANY PRINCIPLES OF CONFLICTS OF LAWS OF SUCH STATE.
SECTION 9. Stockholder Capacity. No person executing this
Agreement who is or becomes during the term hereof a director or officer of
IXC makes any agreement or understanding herein in his or her capacity as
such director or officer. Each Stockholder signs solely in his or her
capacity as the record holder and beneficial owner of, or the trustee of a
trust whose beneficiaries are the beneficial owners of, such Stockholder's
Subject Shares and nothing herein shall limit or affect any actions taken
by a Stockholder in its capacity as an officer or director of IXC.
SECTION 10. Enforcement. Each of the parties hereto agrees that
irreparable damage would occur in the
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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 hereto 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
Delaware state court or any Federal court located in the State of Delaware,
this being in addition to any other remedy to which they are entitled at
law or in equity. In addition, each of the parties hereto (a) consents to
submit itself to the personal jurisdiction of any Delaware state court or
any Federal court located in the State of Delaware in the event any dispute
arises out of or under or relates to this Agreement or any of the
transactions contemplated hereby, (b) agrees that it will not attempt to
deny or defeat such personal jurisdiction by motion or other request for
leave from any such court, (c) agrees that it will not bring any action,
suit or proceeding arising out of or under or relating to this Agreement or
any of the transactions contemplated hereby in any court other than any
Delaware state court or any Federal court located in the State of Delaware
and (iv) waives any right to trial by jury with respect to any action, suit
or proceeding arising out of or under or relating to this Agreement or any
of the transactions contemplated hereby in any Delaware state court or any
Federal court located in the State of Delaware, and hereby further and
unconditionally waives and agrees not to plead or claim in any such court
that any such action, suit or proceeding brought in any such court has been
brought in an inconvenient forum.
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IN WITNESS WHEREOF, CBI has caused this Agreement to be signed by
its officer thereunto duly authorized and each Stockholder has signed this
Agreement, all as of the date first written above.
CINCINNATI BELL INC.,
by /s/ Richard G. Ellenberger
-----------------------------
Name: Richard G. Ellenberger
Title: President and Chief
Executive Officer
STOCKHOLDERS:
/s/ Richard D. Irwin
-------------------------
RICHARD D. IRWIN
/s/ Ralph J. Swett
------------------------
RALPH J. SWETT
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Schedule A
Number of
Outstanding Shares of
Stockholder IXC Common Stock
Ralph J. Swett 1,760,105
Ralph J. Swett 409*
Ralph J. Swett, Trustee of the RJS 1994 Trust 472,480
Ralph J. Swett, Trustee of the MBS 1994 Trust 472,480
Ralph and Eileen Swett 35,242
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Total 2,740,716
=========
Mr. Swett's address is 2305 Barton Creek Boulevard, #23, The Fairways,
Austin, Texas 78735.
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* To be issued as of the date hereof.
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Number of
Outstanding Shares of
Stockholder IXC Common Stock
Richard D. Irwin (individually or in the Richard 190,905+
Irwin Revocable Living Trust)
Grumman Hill Investments, L.P., a Delaware 636,990
limited partnership
The Irwin Family Limited Partnership, dated 1,628,216
January 4, 1995
The Irwin Family Limited Partnership #2 341,341
The Irwin Family Limited Partnership #3 350,444
Grumman Hill Associates, Inc. 107,094
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Total 3,254,990
=========
Mr. Irwin's address is 23 Wild Duck Road, Wilton, Connecticut 06897.
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+ Subject to a reduction of 35,512 shares which have not been located in
Mr. Irwin's Merrill Lynch account.