EXHIBIT 10.2
REGISTRATION RIGHTS AGREEMENT
by and between
QWEST COMMUNICATIONS INTERNATIONAL INC.
and
BELLSOUTH ENTERPRISES, INC.
Dated as of April 19, 1999
TABLE OF CONTENTS
PAGE
1. Demand Registration Rights............................................1
2. Piggy-back Registration Rights........................................3
3. Registration Provisions...............................................5
4. Blackout Provisions..................................................11
5. Termination Provisions...............................................12
6. Expenses ............................................................12
7. Indemnification .....................................................13
8. Transfer Restrictions................................................16
9. Exempt Sales ........................................................16
10. Merger, Consolidation, Exchange, Etc.................................17
11. Notices .............................................................17
12. No Waivers; Remedies.................................................18
13. Amendments, Etc .....................................................18
14. Successors and Assigns...............................................18
15. Governing Law .......................................................19
16. Counterparts; Effectiveness..........................................19
17. Severability of Provisions...........................................19
18. Headings and References..............................................19
19. Entire Agreement ....................................................19
20. Survival ............................................................19
21. Exclusive Jurisdiction...............................................19
22. Waiver of Jury Trial.................................................19
23. Affiliate ...........................................................20
24. Non-Recourse ........................................................20
25. No Inconsistent Agreements...........................................20
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") is made as of
April 19, 1999, by and between QWEST COMMUNICATIONS INTERNATIONAL INC., a
Delaware corporation (the "COMPANY") and BELLSOUTH ENTERPRISES, INC., a Georgia
corporation (the "STOCKHOLDER").
RECITALS
A. Pursuant to the terms of that certain Common Stock Purchase
Agreement dated as of even date herewith by and between the Stockholder and the
Company (the "COMPANY COMMON STOCK PURCHASE AGREEMENT") and that certain Common
Stock Purchase Agreement dated as of even date herewith by and between the
Stockholder and Anschutz Company, a Delaware corporation (the "ANSCHUTZ COMMON
STOCK PURCHASE AGREEMENT" and together with the Company Common Stock Purchase
Agreement, the "COMMON STOCK PURCHASE AGREEMENTS"), the Company and Anschutz
Company are selling to the Stockholder, and the Stockholder is purchasing from
the Company and Anschutz Company, an aggregate of 37,000,000 shares of the
Company's Common Stock, $.01 par value per share (the "REGISTRABLE SHARES").
B. The Company and the Stockholder desire to enter into this Agreement
to provide for, among other things, the registration under the Securities Act of
1933, as amended (the "SECURITIES ACT"), of the disposition of the Registrable
Shares.
AGREEMENT
The parties agree as follows:
1. DEMAND REGISTRATION RIGHTS.
(a) If at any time after the Sale Restriction Termination Date (as
defined in the Common Stock Purchase Agreements) (or the earlier termination of
the transfer restrictions as set forth in Section 7.4 of the Company Common
Stock Purchase Agreement) and prior to the seventh anniversary of the date of
this Agreement (such date, the "TERMINATION DATE"), on one or more occasions
when the Company shall have received the written request of the Stockholder or
holders of at least 2,500,000 Registrable Shares in the aggregate (as such
number of shares may be adjusted in the event of any change in the capital stock
of the Company by reason of stock dividends, split-ups, reverse split-ups,
mergers, recapitalizations, subdivisions, conversions, exchanges of shares or
the like) that have been acquired directly or indirectly from the Stockholder
and to which rights under this Section 1 shall have been assigned pursuant to
Section 14(a) (each such person, when requesting registration under this Section
1 or under Section 2 and thereafter in connection with any such registration,
being hereinafter referred to as a "REGISTERING STOCKHOLDER"), the Company shall
give written notice of the receipt of such request to each potential Registering
Stockholder and each other person known by the Company to have rights with
respect to the registration under the Securities Act of the disposition of
securities of the Company. The Company shall use reasonable best efforts as
promptly as practicable to include in a Registration Statement the Registrable
Shares owned by the
Registering Stockholders (all such Registrable Shares collectively, the
"TRANSACTION REGISTRABLE SHARES") that in each case shall have been duly
specified by such Registering Stockholders by written notice received by the
Company not later than 20 Business Days after the Company shall have given
written notice to the Registering Stockholders pursuant to this Section 1(a).
(b) If the Registering Stockholders initiating a request for
registration of Registrable Shares pursuant to Section 1(a) shall state in such
written notice that they intend to distribute the Transaction Registrable Shares
covered by their request by means of an underwritten offering, the Company shall
include such information in the written notice delivered by the Company pursuant
to Section 1(a). The Company shall select the managing underwriter for the
offering and any additional investment bankers and managers to be used in
connection with the offering, in each case with the consent of the Registering
Stockholders holding a majority of the Transaction Registrable Shares, which
consent shall not be unreasonably withheld, conditioned or delayed.
(c) Notwithstanding anything herein to the contrary:
(1) The Company shall not be required to prepare and file
pursuant to this Section 1, and the Company shall be entitled not to file and,
if filed, to withdraw a Registration Statement including less than 2,500,000
Transaction Registrable Shares in the aggregate (as such number of shares may be
adjusted in the event of any change in the capital stock of the Company by
reason of stock dividends, split-ups, reverse split-ups, mergers,
recapitalizations, subdivisions, conversions, exchanges of shares or the like);
(2) subject to the following clause (3) and Section 2(b), the
Company shall not be required to prepare and file pursuant to this Section 1
more than two Registration Statement in any one year period and four
Registration Statements in the aggregate; PROVIDED that a Registration Statement
shall be deemed not to have been prepared and filed if (A) the Registration
Statement (i) is withdrawn by Registering Stockholders pursuant to Section 4(c),
or (ii) does not become effective for any other reason except (x) the withdrawal
therefrom of 30% or more of the Transaction Registrable Shares requested to be
included in such registration statement or the determination by Registering
Stockholders owning 30% or more of such Transaction Registrable Shares not to
proceed with the contemplated distribution of such Transaction Registrable
Shares, or (y) the withdrawal of the Registration Statement by the Company
pursuant to Section 1(c)(1), (B) the Company fails to use reasonable best
efforts to cause the Registration Statement to remain effective under the
Securities Act and the Prospectus to remain current during the entire period
referred to in Section 3(e), as the same may be extended pursuant to Section
4(d), or (C) the Company withdraws the Registration Statement pursuant to
Section 5 before the Registering Stockholders have sold all the Transaction
Registrable Shares owned by them in accordance with the manner of distribution
contemplated by the Registration Statement with respect to such Transaction
Registrable Shares;
(3) the Company shall not be required to prepare and file a
Registration Statement pursuant to this Section 1 during the period from the
date of filing of a registration statement of the Company involving an
underwritten offering of any Equity Securities of the Company to the date that
is the earlier of (A) the date of the withdrawal of the registration
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statement or the request to file the registration statement by the security
holder requesting the registration and (B) the date that is 90 days following
the effective date of the registration statement;
(4) if a requested registration pursuant to this Section 1 shall
involve an underwritten offering, and if the managing underwriter shall advise
the Company and the Registering Stockholders in writing that, in its opinion,
the number of Transaction Registrable Shares proposed to be included in the
registration is so great as to adversely affect the offering, including the
price at which the Transaction Registrable Shares could be sold, the Company
shall include in the registration the maximum number of securities which it is
so advised can be sold without the adverse effect, allocated as follows:
(A) FIRST, all Transaction Registrable Shares duly requested
to be included in the registration, allocated pro rata among all Registering
Stockholders on the basis of the relative number of Transaction Registrable
Shares that each Registering Stockholder shall have duly requested to be
included in the registration or such other basis as the Registering Stockholders
shall agree; and
(B) SECOND, any other securities proposed to be registered by
the Company other than for its own account, including, without limitation,
securities proposed to be registered by the Company pursuant to the exercise by
any person other than a Registering Stockholder of a "piggy-back" right
requesting the registration of shares of Common Stock pursuant to an agreement
with the Company in existence as of the date of this Agreement that expressly
provides, in effect, that the Company is required to include such shares of
Common Stock in the Registration Statement; PROVIDED that if 30% or more of the
Transaction Registrable Shares requested to be included in a registration
pursuant to this Section 1 are so excluded from any registration and an
investment banking firm of recognized national standing shall advise the Company
that the number of the Transaction Registrable Shares requested to be
registered, at the time of the request and in light of the market conditions
then prevailing, did not exceed the number that would have an adverse effect on
the offering of such Transaction Registrable Shares, including the price of
which such Transaction Registrable Shares could be sold, there shall be provided
one additional registration under the preceding clause (2) in respect of each
such exclusion or series of related exclusions; and
(5) before the Registration Statement becomes effective, any
Registering Stockholder may withdraw from the registration any Transaction
Registrable Shares owned by the Registering Stockholder; provided that, subject
to Section 1(c)(1), withdrawal of Transaction Registrable Shares shall not
relieve the Company from its obligations under this Agreement with respect to
Transaction Registrable Shares that are not withdrawn from the Registration
Statement.
2. PIGGY-BACK REGISTRATION RIGHTS.
(a) From and after the date of this Agreement to and including the date
that is the 10th anniversary of the date of this Agreement, if the Company shall
determine to register or qualify by a registration statement filed under the
Securities Act and under any applicable state securities laws, any offering of
any Equity Securities of the Company, other than an offering
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with respect to which a Registering Stockholder shall have requested a
registration pursuant to Section 1, the Company shall give notice of such
determination to each potential Registering Stockholder and each other person
known by the Company to have rights with respect to the registration under the
Securities Act of the disposition of securities of the Company. The Company
shall use reasonable best efforts as promptly as practicable to include in a
Registration Statement the Transaction Registrable Shares that in each case
shall have been duly specified by such Registering Stockholders by written
notice received by the Company not later than 20 Business Days after the Company
shall have given written notice to the Registering Stockholders pursuant to this
Section 2(a).
(b) Notwithstanding anything herein to the contrary:
(1) the Company shall not be required by this Section 2 to
include any Registrable Shares in (A) a registration statement on Form S-4 or
S-8 (or any successor form), (B) a registration statement filed in connection
with an exchange offer or other offering of securities solely to the then
existing stockholders of the Company or (C) a registration statement required
pursuant to the exercise by any person other than a Registering Stockholder of a
"demand" right requesting the registration of shares of the Company's Common
Stock pursuant to an agreement with the Company in existence as of the date of
this Agreement that expressly provides, in effect, that the Company may not
include any Registrable Shares in the registration statement;
(2) if a registration pursuant to this Section 2 involves an
underwritten offering, the Company shall select the managing underwriter for the
offering and any additional investment bankers and managers to be used in
connection with the offering, and if the managing underwriter advises the
Company in writing that, in its opinion, the number of securities requested to
be included in the registration is so great as to adversely affect the offering,
including the price at which the securities could be sold, the Company shall
include in the registration the maximum number of securities which it is so
advised can be sold without the adverse effect, allocated as follows:
(A) FIRST, all securities proposed to be registered by the
Company for its own account;
(B) SECOND, all securities proposed to be registered by the
Company pursuant to the exercise by any person other than a Registering
Stockholder of a "demand" right requesting the registration of shares of Company
Common Stock pursuant to an agreement with the Company in existence as of the
date of this Agreement;
(C) THIRD, all securities proposed to be registered by the
Company other than for its own account pursuant to the exercise by any person
other than a Registering Stockholder of a "piggy-back" right requesting the
registration of shares of Company Common Stock pursuant to an agreement with the
Company in existence as of the date of this Agreement that expressly provides,
in effect, that no securities of the Company other than those referred to in the
preceding clauses (A) and (B) shall be included in such registration unless all
shares of Company Common Stock requested by such person to be included in such
registration are so included; and
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(D) FOURTH, any other securities proposed to be registered by
the Company other than for its own account, including, without limitation,
Transaction Registrable Shares duly requested to be included in the registration
and securities proposed to be registered by the Company pursuant to the exercise
by any person other than a Registering Stockholder of a "piggy-back" right
requesting the registration of shares of Company Common Stock pursuant to an
agreement with the Company, allocated pro rata among all Registering
Stockholders and such other persons on the basis of the relative number of
Transaction Registrable Shares or other securities that each Registering
Stockholder or other person has duly requested to be included in such
registration; PROVIDED that if 30% or more of the Transaction Registrable Shares
requested to be included in a registration pursuant to this Section 2 are so
excluded from any registration and an investment banking firm of recognized
national standing shall advise the Company that the number of the Transaction
Registrable Shares requested to be registered, at the time of the request and in
light of the market conditions then prevailing, did not exceed the number that
would have an adverse effect on the offering of such Transaction Registrable
Shares, including the price of which such Transaction Registrable Shares could
be sold, there shall be provided one additional registration under Section
1(c)(2) in respect of each such exclusion or series of related exclusions;
(3) before the Registration Statement becomes effective, any
Registering Stockholder may withdraw from the registration any Transaction
Registrable Shares owned by the Registering Stockholder; PROVIDED that, subject
to Section 2(b)(4), the withdrawal of Transaction Registrable Shares shall not
relieve the Company from its obligations under this Agreement with respect to
Transaction Registrable Shares that are not withdrawn from the Registration
Statement; and
(4) the Company may withdraw the Registration Statement at any
time before it becomes effective.
3. REGISTRATION PROVISIONS. With respect to each registration pursuant to
this Agreement:
(a) Notwithstanding anything herein to the contrary, the Company shall
not be required to include in any registration any of the Registrable Shares
owned by a Registering Stockholder if (1) the Company shall deliver to the
Registering Stockholder an opinion, satisfactory in form, scope and substance to
the Registering Stockholder and addressed to the Registering Stockholder by
legal counsel satisfactory to the Registering Stockholder, to the effect that
the distribution of such Registrable Shares proposed by the Registering
Stockholder is exempt from registration under the Securities Act and all
applicable state securities laws, (2) such Registering Stockholder or any
underwriter of such Registrable Shares shall fail to furnish to the Company the
information in respect of the distribution of such Registrable Shares that may
be required under this Agreement to be furnished by the Registering Stockholder
or the underwriter to the Company or (3) if such registration involves an
underwritten offering, such Registrable Shares are not included in such
underwritten offering on the same terms and conditions as shall be applicable to
the other securities being sold through underwriters in the registration or the
Registering Stockholder fails to enter into an underwriting agreement in
customary form with the underwriter or underwriters selected for such
underwritten offering.
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(b) The Company shall make available for inspection by each Registering
Stockholder participating in the registration, each underwriter of Transaction
Registrable Shares owned by the Registering Stockholder and their respective
accountants, counsel and other representatives all financial and other records,
pertinent corporate documents and properties of the Company as shall be
reasonably necessary to enable them to exercise their due diligence
responsibility in connection with each registration of Transaction Registrable
Shares owned by the Registering Stockholder, and shall cause the Company's
officers, directors and employees to supply all information reasonably requested
by any such person in connection with such registration; provided that records
and documents which the Company determines, in good faith, after consultation
with counsel for the Company and counsel for the Registering Stockholder or
underwriter, as the case may be, to be confidential and which it notifies such
persons are confidential shall not be disclosed to them, except in each case to
the extent that (1) the disclosure of such records or documents is necessary to
avoid or correct a misstatement or omission in the Registration Statement or (2)
the release of such records or documents is ordered pursuant to a subpoena or
other order from a court of competent jurisdiction. Each Registering Stockholder
shall, upon learning that disclosure of any such records or documents is sought
in a court of competent jurisdiction, give notice to the Company, and allow the
Company, at the Company's expense, to undertake appropriate action and to
prevent disclosure of any such records or documents deemed confidential.
(c) Each Registering Stockholder shall furnish, and shall cause each
underwriter of Transaction Registrable Shares owned by the Registering
Stockholder to be distributed pursuant to the registration to furnish, to the
Company in writing promptly upon the request of the Company the information
regarding the Registering Stockholder or the underwriter, the contemplated
distribution of the Transaction Registrable Shares and the other information
regarding the proposed distribution by the Registering Stockholder and the
underwriter that shall be required in connection with the proposed distribution
by the applicable securities laws of the United States of America and the states
thereof in which the Transaction Registrable Shares are contemplated to be
distributed. The information furnished by any Registering Stockholder or any
underwriter shall be certified by the Registering Stockholder or the
underwriter, as the case may be, and shall be stated to be specifically for use
in connection with the registration.
(d) The Company shall use reasonable best efforts to prepare and file
with the Securities and Exchange Commission the Registration Statement,
including the Prospectus, and each amendment thereof or supplement thereto,
under the Securities Act and as required under any applicable state securities
laws, on the form that is then required or available for use by the Company to
permit each Registering Stockholder, upon the effective date of the Registration
Statement, to use the Prospectus in connection with the contemplated
distribution by the Registering Stockholder of the Transaction Registrable
Shares requested to be so registered. A registration pursuant to Section 1 shall
be effected pursuant to Rule 415 (or any similar provision then in force) under
the Securities Act if the manner of distribution contemplated by the Registering
Stockholder initiating the request for such registration shall include an
offering on a delayed or continuous basis. The Company shall furnish to each
Registering Stockholder drafts of the Registration Statement and the Prospectus
and each amendment thereof or supplement thereto for its timely review prior to
the filing thereof with the Securities and Exchange Commission, and shall use
its reasonable best efforts to reflect in each such document, when so filed with
the Securities and Exchange Commission, such comments as the Registering
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Stockholder reasonably may propose. If any Registration Statement refers to any
Registering Stockholder by name or otherwise as the holder of any securities of
the Company but such reference is not required by the Securities Act or any
similar federal statute then in force, then the Registering Stockholder shall
have the right to require, the deletion of such reference. The Company shall
deliver to each Registering Stockholder, without charge, such number of copies
of the Registration Statement and each amendment or post-effective amendment
thereof and such number of copies of each document incorporated therein by
reference, as the Registering Stockholder may reasonably may request. If the
registration shall have been initiated solely by the Company or shall not have
been initiated by a Registering Stockholder, the Company shall not be obligated
to prosecute the registration, and may withdraw the Registration Statement at
any time prior to the effectiveness thereof, if the Company shall determine in
good faith not to proceed with the offering of securities included in the
Registration Statement. In all other cases, the Company shall use reasonable
best efforts to cause the Registration Statement to become effective and, as
soon as practicable after the effectiveness thereof, shall deliver to each
Registering Stockholder evidence of the effectiveness and such number of copies
of the Prospectus, including any preliminary prospectus, and each amendment
thereof or supplement thereto, as the Registering Stockholder may reasonably
request. The Company consents to the use by each Registering Stockholder of each
Prospectus and each amendment thereof and supplement thereto in connection with
the distribution, in accordance with this Agreement, of the Transaction
Registrable Shares owned by the Registering Stockholder. In addition, the
Company shall qualify or register under the securities laws or blue sky laws of
such states as may be reasonably requested by each Registering Stockholder with
respect to the Transaction Registrable Shares of the Registering Stockholder
that shall have been included in the Registration Statement, and to continue
such registration or qualification in effect for so long as such registration
statement remains in effect; PROVIDED that the Company shall not be obligated to
file any general consent to service of process or to qualify as a foreign
corporation in any state in which it is not subject to process or qualified as
of the date of the request. The Company shall advise the Stockholder and each
Registering Stockholder in writing, promptly after the occurrence of any of the
following, of (1) the filing of the Registration Statement or any Prospectus, or
any amendment thereof or supplement thereto, with the Securities and Exchange
Commission, (2) the effectiveness of the Registration Statement and any
post-effective amendment thereto, (3) the receipt by the Company of any
communication from the Securities Exchange Commission with respect to the
Registration Statement or the Prospectus, or any amendment thereof or supplement
thereto, including, without limitation, any stop order suspending the
effectiveness thereof, any comments with respect thereto and any requests for
amendments or supplements and (4) the receipt by the Company of any notification
with respect to the suspension of the qualification of Transaction Registrable
Shares owned by the Registering Stockholders for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose.
(e) The Company shall use reasonable best efforts to cause the
Registration Statement to remain effective under the Securities Act and the
Prospectus to remain current, including the filing of necessary amendments,
post-effective amendments and supplements, and shall furnish copies of such
amendments, post-effective amendments and supplements to the Registering
Stockholders, so as to permit the Registering Stockholders to distribute the
Transaction Registrable Shares owned by them in their respective manner of
distribution during their respective contemplated periods of distribution, but
in no event longer than the earlier of six
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consecutive months from the effective date of the Registration Statement and the
consummation of the distribution of the Transaction Registrable Shares included
in such registration; provided that the period shall be increased by the number
of days that any Registering Stockholder shall have been required by Section 4
to refrain from disposing under the registration any of the Transaction
Registrable Shares owned by the Registering Stockholder. During such respective
contemplated periods of distribution, the Company shall comply with the
provisions of the Securities Act applicable to it with respect to the
disposition of all Transaction Registrable Shares owned by the Registering
Stockholders that shall have been included in the Registration Statement in
accordance with their respective contemplated manner of disposition by the
Registering Stockholders set forth in the Registration Statement, the Prospectus
or the supplement, as the case may be.
(f) Any obligation of the Company under this Agreement, including any
obligation to use its reasonable best efforts or take such actions as are
reasonably required shall not preclude the Company from taking any action or
omitting to take any action (other than omitting to file necessary amendments,
post-effective amendments and supplements if a Suspension Notice or Termination
Notice is not then in effect pursuant to Section 4 or Section 5, respectively)
that would result in the Company issuing a Suspension Notice or Termination
Notice.
(g) The Company shall notify each Registering Stockholder, at any time
when a prospectus with respect to the Transaction Registrable Shares owned by
the Registering Stockholders is required to be delivered under the Securities
Act, when the Company becomes aware of the happening of any event as a result of
which the Prospectus (as then in effect) contains any untrue statement of a
material fact or omits to state a material fact necessary to make the statements
therein (in the case of the Prospectus or any preliminary prospectus, in light
of the circumstances under which they were made) not misleading; and, as
promptly as practicable thereafter, but subject to Sections 4 and 5, the Company
shall use reasonable best efforts to prepare and file with the Securities and
Exchange Commission an amendment or supplement to the Registration Statement or
the Prospectus so that, as thereafter delivered to the purchasers of such
Transaction Registrable Shares, such Prospectus will not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading. The Company also shall notify each Registering
Stockholder, when the Company becomes aware of the occurrence thereof, of the
issuance by the Securities and Exchange Commission of an order suspending the
effectiveness of the Registration Statement; as promptly as practicable
thereafter, but subject to Sections 4 and 5, the Company shall use reasonable
best efforts to obtain the withdrawal of such order at the earliest possible
moment.
(h) If requested by any Registering Stockholder or an underwriter of
Transaction Registrable Shares owned by the Registering Stockholder, the Company
shall as promptly as practicable prepare and file with the Securities and
Exchange Commission an amendment or supplement to the Registration Statement or
the Prospectus containing such information as the Registering Stockholder or the
underwriter requests to be included therein, including, without limitation,
information with respect to the Transaction Registrable Shares being sold by the
Registering Stockholder to the underwriter, the purchase price being paid
therefor by such underwriter and other terms of the underwritten offering of the
Transaction Registrable Shares to be sold in such offering.
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(i) The Stockholder shall (1) offer to sell or otherwise distribute
Registrable Shares in reliance upon a registration contemplated pursuant to
Section 1 or 2 only (A) if the Stockholder is a Registering Stockholder and the
Registrable Shares are Transaction Registrable Shares and (B) after the related
Registration Statement shall have been filed with the Securities and Exchange
Commission, (2) sell or otherwise distribute Registrable Shares in reliance upon
such registration only (A) if the Stockholder is a Registering Stockholder and
the Registrable Shares are Transaction Registrable Shares and (B) the related
Registration Statement is then effective under the Securities Act, (3) not sell
or otherwise distribute Transaction Registrable Shares in reliance upon a
registration contemplated by Section 1 or 2 during any period specified in a
Suspension Notice delivered to the Registering Stockholder pursuant to Section 4
or after receiving a Termination Notice pursuant to Section 5 (until the
Registering Stockholder shall have received written notice from the Company
pursuant to Section 3(d) that the registration of such Transaction Registrable
Shares is again effective), (4) distribute Transaction Registrable Shares only
in accordance with the manner of distribution contemplated by the Prospectus
with respect to the Transaction Registrable Shares owned by the Registering
Stockholder and (5) report to the Company distributions made by the Registering
Stockholder of Transaction Registrable Shares pursuant to the Prospectus. Each
Registering Stockholder, by participating in a registration pursuant to this
Agreement, acknowledges that the remedies of the Company at law for failure by
the Registering Stockholder to comply with the undertaking contained in this
paragraph (i) would be inadequate and that the failure would not be adequately
compensable in damages and would cause irreparable harm to the Company, and
therefore agrees that undertakings made by the Registering Stockholder in this
paragraph (i) may be specifically enforced.
(j) If the registration involves an underwritten offering, each
Registering Stockholder shall cause the underwriter or underwriters selected for
such underwriting to enter into an underwriting agreement in customary form and
shall enter into such Underwriting Agreement with such underwriter or
underwriters.
(k) If the registration involves an underwritten offering, the Company
shall enter into an underwriting agreement in customary form with the
underwriter or underwriters selected for such underwriting and shall deliver to
each Registering Stockholder, its counsel and each underwriter of Transaction
Registrable Shares owned by the Registering Stockholders to be distributed
pursuant to such registration, the certificates, opinions of counsel and comfort
letters that are customarily delivered in connection with underwritten
offerings.
(l) Before sales of Transaction Registrable Shares under a Registration
Statement, the Company shall cooperate with each Registering Stockholder and
each underwriter of Transaction Registrable Shares owned by the Registering
Stockholder to facilitate the timely preparation and delivery of certificates
(not bearing any restrictive legends) representing the Transaction Registrable
Shares to be sold under the Registration Statement and to enable such
Transaction Registrable Shares to be in such denominations and registered in
such names as the Registering Stockholder or the underwriter may request.
(m) The Company shall use reasonable best efforts to (1) comply with
all applicable rules and regulations of the Securities and Exchange Commission,
and (2) make available to its securityholders, as soon as reasonably
practicable, an earning statement covering the period of at
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least twelve months, but not more than eighteen months, beginning with the first
calendar month after the effective date of the Registration Statement, which
earning statement shall satisfy the provisions of Section 11(a) of the
Securities Act.
(n) The Company shall use reasonable best efforts to cause the
Transaction Registrable Shares to be listed on each national securities exchange
on which Company Common Stock shall then be listed, if any, and to be qualified
for inclusion in the NASDAQ/National Market, as the case may be, if Company
Common Stock is then so qualified, and in each case if the listing or inclusion
of the Transaction Registrable Shares is then permitted under the rules of such
national securities exchange or the NASD, as the case may be.
(o) For the purposes of this Agreement, the following terms shall have
the following meanings:
(1) "BENEFICIAL OWNER" has the meaning given to it in Section
13(d)(3) of the Exchange Act and the rules and regulations promulgated
thereunder;
(2) "BUSINESS DAY" means any day excluding Saturday, Sunday and
any day which is a legal holiday under the laws of the State of Colorado or is a
day on which banking institutions located in such state are authorized or
required by law or other governmental action to close;
(3) "EQUITY SECURITIES" of a person means the capital stock of
the person and all other securities convertible into or exchangeable or
exercisable for any shares of its capital stock, all rights or warrants to
subscribe for or to purchase, all options for the purchase of, and all calls,
commitments or claims of any character relating to, any shares of its capital
stock and any securities convertible into or exchangeable or exercisable for any
of the foregoing;
(4) "EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended;
(5) "PROSPECTUS" means (A) the prospectus relating to the
Transaction Registrable Shares owned by the Registering Stockholders included in
a Registration Statement, (B) if a prospectus relating to the Transaction
Registrable Shares shall be filed with the Securities and Exchange Commission
pursuant to Rule 424 (or any similar provision then in force) under the
Securities Act, such prospectus, and (C) in the event of any amendment or
supplement to the prospectus after the effective date of the Registration
Statement, then from and after the effectiveness of the amendment or the filing
with the Securities and Exchange Commission of the supplement, the prospectus as
so amended or supplemented;
(6) "REGISTRATION STATEMENT" means (A) a registration statement
filed by the Company in accordance with Section 3(d), including exhibits and
financial statements thereto, in the form in which it shall become effective,
the documents incorporated by reference therein pursuant to Item 12 of Form S-3
(or any similar provision or forms then in force) under the Securities Act and
information deemed to be a part of such registration statement pursuant to
paragraph (B) of Rule 430A (or any similar provision then in force) and (B) in
the event of any amendment thereto after the effective date of the registration
statement, then from and after the effectiveness of the amendment, the
registration statement as so amended; and
10
(7) information "CONTAINED", "INCLUDED" or "STATED" in a
Registration Statement or a Prospectus (or other references of like import)
includes information incorporated by reference.
4. BLACKOUT PROVISIONS.
(a) Notwithstanding anything in this Agreement to the contrary, by
delivery of written notice to any of the Registering Stockholders and the other
holders of Registrable Shares (a "SUSPENSION NOTICE"), stating which one or more
of the following limitations shall apply to the addressee of such Suspension
Notice, the Company may (1) postpone effecting a registration under this
Agreement, or (2) require such addressee to refrain from disposing of
Transaction Registrable Shares under the registration, in either case for a
reasonable time specified in the notice but not exceeding 90 days in any one
year period (which period may not be extended or renewed).
(b) The Company may postpone effecting a registration or apply to any
person specified in clause (2) of Section 4(a) any of the limitations on
dispositions specified in such clause if (1) the Company in good faith
determines that such registration or disposition would materially impede, delay
or interfere with any material financing, offer or sale of Equity Securities or
debt securities of the Company, acquisition, disposition or other material
transaction by the Company or any of its material subsidiaries, (2) an
investment banking firm of recognized national standing shall advise the Company
in writing that effecting the registration or the disposition by such person of
Registrable Shares or other Equity Securities of the Company, as the case may
be, would materially and adversely affect an offering of Equity Securities of
the Company, by the Company for its own account the preparation of which had
then been commenced, or (3) the Company in good faith determines that the
Company is in possession of material non-public information the disclosure of
which during the period specified in such notice the Company reasonably believes
would not be in the best interests of the Company; provided that the Company may
not take any action pursuant to this Section 4(b) for a period of time in excess
of 90 days in any one year period.
(c) If the Company shall take any action pursuant to Section 4(a) with
respect to a Registering Stockholder or other holder of Registrable Shares in
connection with a registration, then (1) not later than 30 days after the action
is taken, Registering Stockholders holding a majority of the Transaction
Registrable Shares may by written notice to the Company elect to withdraw a
registration that shall have been requested pursuant to Section 1 or (2) if the
registration shall not have been withdrawn pursuant to the preceding clause (1),
the period during which the Registering Stockholder may exercise its rights
under Sections 1 and 2 shall be extended by one day beyond the Termination Date
for each day that, pursuant to Section 4(a), the Company postpones effecting a
registration, requires the Registering Stockholder or other holder to refrain
from disposing of Transaction Registrable Shares under a registration or
otherwise requires the Registering Stockholder or other holder to refrain from
disposing of Registrable Shares.
(d) If the Company shall take any action pursuant to clause 2 of
Section 4(a) with respect to any Registering Stockholder or other holder of
Registrable Shares in a period during which the Company shall be required under
Section 3(e) to cause the Registration Statement to
11
remain effective under the Securities Act and the Prospectus to remain current,
such period shall be extended for such person by one day beyond the end of such
period for each day that, pursuant to Section 4(a), the Company shall require
such person to refrain from disposing of Transaction Registrable Shares owned by
such person.
5. TERMINATION PROVISIONS.
(a) Notwithstanding anything in this Agreement to the contrary, if, in
the opinion of counsel for the Company (which counsel shall be reasonably
acceptable to the Registering Stockholder; PROVIDED, HOWEVER, that any of
O'Melveny & Myers LLP and Holme Roberts & Owen LLP shall be deemed reasonably
acceptable to the Registering Stockholder for purposes of this Section 5(a)),
there shall have arisen any legal impediment to the offering of Transaction
Registrable Shares pursuant to this Agreement or if any legal action or
administrative proceeding shall have been instituted or threatened or any other
claim shall have been made relating to the registration or the offer made by the
related prospectus or against any of the parties involved in the offering, the
Company may at any time upon written notice (a "TERMINATION NOTICE") to each
Registering Stockholder participating in the registration (1) terminate the
effectiveness of the related Registration Statement or (2) withdraw from the
Registration Statement the Transaction Registrable Shares owned by the
Registering Stockholder; provided that, promptly after those matters shall be
resolved to the satisfaction of counsel for the Company, then the Company shall
notify each affected Registering Stockholder in writing that such matters have
been resolved and, pursuant to Section 1 or 2, as the case may be, shall, upon
the written direction of such affected Registering Stockholder and subject to
the limitations in Section 1(b) or elsewhere herein, cause the registration of
Transaction Registrable Shares formerly covered by the Registration Statement
that were removed from registration by the action of the Company.
(b) If the Company shall take any action pursuant to Section 5(a) with
respect to a Registering Stockholder or other holder of Registrable Shares, then
the period during which the Registering Stockholder may exercise its rights
under Sections 1 and 2 shall be extended by one day beyond the Termination Date
for a number of days equal to (1) the number of days during which the Company
shall be required under Section 3(e) to cause the Registration Statement to
remain effective under the Securities Act and the Prospectus to remain current
minus (2) the number of days during which the Registration Statement was
effective before the date of the action taken pursuant to Section 5(a).
6. EXPENSES.
(a) The Company shall pay all expenses (other than underwriting
discounts and commissions in respect of the Transaction Registrable Shares)
incurred in connection with the performance of its obligations under Sections 1
and 2 hereof), whether or not any related Registration Statement shall become
effective, including, without limitation:
(1) preparing, printing and filing each Registration Statement
and Prospectus and each qualification or notice required to be filed under
federal and state securities laws or the rules and regulations of the National
Association of Securities Dealers, Inc. (the "NASD") in connection with a
registration pursuant to Section 1 or 2;
12
(2) all fees and expenses of complying with federal and state
securities laws and the rules and regulations of the NASD;
(3) furnishing to each Registering Stockholder such number of
copies of the related Registration Statement and the number of copies of the
related Prospectus that may be required by Sections 3(d) and 3(e) to be so
furnished, together with a like number of copies of each amendment,
post-effective amendment or supplement;
(4) performing its obligations under Sections 3(d), 3(e) and
3(k);
(5) printing and issuing share certificates, including the
transfer agent's and registrar's fees, in connection with each distribution so
registered;
(6) preparing audited financial statements required by the
Securities Act and the rules and regulations thereunder to be included in the
Registration Statement and preparing audited financial statements for use in
connection with the registration other than audited financial statements
required by the Securities Act and the rules and regulations thereunder,
including fees and expenses of the Company's outside independent accountants
(including any fees and expenses in connection with any comfort letters and any
special audits incident to or required by any registration or qualification);
(7) internal expenses of the Company (including, without
limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties);
(8) premiums or other expenses relating to liability insurance
required by the Company or underwriters of the Registering Stockholders;
(9) fees and disbursements of underwriters of the Registering
Stockholders customarily paid by issuers or sellers of securities;
(10) listing of the Registrable Shares on national securities
exchanges and inclusion of the Registrable Shares on the NASDAQ/National Market;
and
(11) fees and expenses of any special experts retained by the
Company in connection with the registration, including fees and disbursements of
the Company's outside counsel.
(b) The Registering Stockholders shall bear all other expenses incident
to the distribution by the respective Registering Stockholders of the
Transaction Registrable Shares owned by them in connection with a registration
pursuant to this Agreement, including, without limitation (but excluding the
expenses referred to in paragraph (a)(8) above), the selling expenses of the
Registering Stockholders, commissions, underwriting discounts, insurance and
fees of counsel for the Registering Stockholders.
7. INDEMNIFICATION.
(a) The Company shall indemnify and hold harmless each Registering
Stockholder participating in a registration pursuant to this Agreement, each
underwriter of Transaction
13
Registrable Shares owned by the Registering Stockholder to be distributed
pursuant to the registration, each partner in the Registering Stockholder, the
officers and directors of the Registering Stockholder and the underwriter and
each person, if any, who controls the Registering Stockholder, any partner in
the Registering Stockholder or the underwriter within the meaning of Section 15
(or any successor provision) of the Securities Act, and their respective
successors, against all claims, losses, damages and liabilities to third parties
(or actions in respect thereof) arising out of or based on any untrue statement
(or alleged untrue statement) of a material fact contained in the Registration
Statement or the Prospectus or other document incident thereto or any omission
(or alleged omission) to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and shall
reimburse each such Registering Stockholder and each other person indemnified
pursuant to this Section 7(a) for any legal and any other expenses reasonably
incurred in connection with investigating or defending any such claim, loss,
damage, liability or action; provided that the Company shall not be liable in
any case to the extent that any such claim, loss, damage or liability arises out
of or is based on any untrue statement or omission based upon written
information furnished to the Company by the Registering Stockholder or the
underwriter of such Transaction Registrable Shares specifically for use in the
Registration Statement or the Prospectus.
(b) Each Registering Stockholder, by participating in a registration
pursuant to this Agreement, thereby agrees to indemnify and to hold harmless the
Company and its officers and directors and each person, if any, who controls any
of them within the meaning of Section 15 (or any successor provision) of the
Securities Act, and their respective successors, against all claims, losses,
damages and liabilities to third parties (or actions in respect thereof) arising
out of or based upon any untrue statement (or alleged untrue statement) of a
material fact contained in the Registration Statement or the Prospectus or other
document incident thereto or any omission (or alleged omission) to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, and shall reimburse the Company and each
other person indemnified pursuant to this Section 7(b) for any legal and any
other expenses reasonably incurred in connection with investigating or defending
any such claim, loss, damage, liability or action; provided that (x) this
Section 7(b) shall apply only if (and only to the extent that) the statement or
omission was made in reliance upon and in conformity with information furnished
to the Company in writing by the Registering Stockholder specifically for use in
the Registration Statement or the Prospectus and (y) in no event shall the
liability of a Registering Stockholder under this Section 7 exceed the amount of
the gross proceeds paid to the Registering Stockholder in consideration of the
sale of Transaction Registrable Shares pursuant to such registration.
(c) If any action or proceeding (including any governmental
investigation or inquiry) shall be brought, asserted or threatened against any
person indemnified under this Section 7, the indemnified person shall promptly
notify the indemnifying party in writing, and the indemnifying party shall
assume the defense of the action or proceeding, including the employment of
counsel satisfactory to the indemnified person and the payment of all expenses.
The indemnified person shall have the right to employ separate counsel in any
action or proceeding and to participate in the defense of the action or
proceeding, but the fees and expenses of that counsel shall be at the expense of
the indemnified person unless:
14
(1) the indemnifying party shall have agreed to pay those fees
and expenses; or
(2) the indemnifying party shall have failed to assume the
defense of the action or proceeding or shall have failed to employ counsel
reasonably satisfactory to the indemnified person in the action or proceeding;
or
(3) the named parties to the action or proceeding (including any
impleaded parties) include both the indemnified person and the indemnifying
party, and the indemnified person shall have been advised by counsel that there
may be one or more legal defenses available to the indemnified person that are
different from or additional to those available to the indemnifying party (in
which case, if the indemnified person notifies the indemnifying party in writing
that it elects to employ separate counsel at the expense of the indemnifying
party, the indemnifying party shall not have the right to assume the defense of
such action or proceeding on behalf of the indemnified person;
it being understood, however, that the indemnifying party shall not, in
connection with any one action or proceeding or separate but substantially
similar or related actions or proceedings in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for the reasonable
fees and expenses of more than one separate firm of attorneys at any time for
the indemnified person, which firm shall be designated in writing by the
indemnified person).
The indemnifying party shall not be liable for any settlement of any action or
proceeding effected without its written consent, but if settled with its written
consent, or if there be a final judgment for the plaintiff in any such action or
proceeding, the indemnifying party shall indemnify and hold harmless the
indemnified person from and against any loss or liability by reason of the
settlement or judgment.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified person (other than by reason of exceptions
provided in this Section 7) in respect of losses, claims, damages, liabilities
or expenses referred to in this Section 7, then each applicable indemnifying
party, in lieu of indemnifying the indemnified person, shall contribute to the
amount paid or payable by the indemnified person as a result of the losses,
claims, damages, liabilities or expenses in such proportion as is appropriate to
reflect the relative fault of the indemnifying party on the one hand and of the
indemnified person on the other in connection with the statements or omissions
which resulted in the losses, claims, damages, liabilities or expenses as well
as any other relevant equitable considerations. The relative fault of the
indemnifying party on the one hand and of the indemnified person on the other
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the indemnifying
party or by the indemnified person and by these persons' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The parties agree that it would not be just and equitable
if contribution pursuant to this Section 7(d) were determined by pro rata
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to in the immediately preceding sentence.
The amount paid or payable by a person as a result of the losses, claims,
damages, liabilities and expenses shall be deemed to include any legal or other
15
fees or expenses reasonably incurred by the person in connection with
investigating or defending any action or claim. Notwithstanding in the foregoing
to the contrary, no Registering Stockholder or underwriter of Transaction
Registrable Shares owned by the Registering Stockholder shall be required to
contribute any amount in excess of the amount by which (1) in the case of the
Registering Stockholder, the gross proceeds paid to the Registering Stockholder
in consideration of the sale pursuant to the registration of Transaction
Registrable Shares owned by it or (2) in the case of the underwriter, the total
price at which such Transaction Registrable Shares purchased by it and
distributed to the public were offered to the public exceeds, in any such case,
the amount of any damages that the Registering Stockholder or underwriter, as
the case may be, has otherwise been required to pay by reason of any untrue or
alleged untrue statement or omission. No person guilty of fraudulent
representation (within the meaning of Section 11(f) of the Securities Act) shall
be entitled to contribution from any person who is not guilty of such fraudulent
misrepresentation.
(e) Each Registering Stockholder participating in a registration
pursuant to Section 1 shall cause each underwriter of any Transaction
Registrable Shares owned by the Registering Stockholder to be distributed
pursuant to the registration to agree in writing on terms reasonably
satisfactory to the Company to indemnify and to hold harmless the Company and
its officers and directors and each person, if any, who controls any of them
within the meaning of Section 15 (or any similar provision then in force) of the
Securities Act, and their respective successors, against all claims, losses,
damages and liabilities to third parties (or actions in respect thereof) arising
out of or based upon any untrue statement (or alleged untrue statement) of a
material fact contained in the Registration Statement or the Prospectus or other
document incident thereto or any omission (or alleged omission) to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, and to reimburse the Company and each other
person indemnified pursuant to the agreement for any legal or any other expense
reasonably incurred in connection with investigating or defending any claim,
loss, damage, liability or action; provided that the agreement shall apply only
if (and only to the extent that) the statement or omission was made in reliance
upon and in conformity with information furnished to the Company in writing by
the underwriter specifically for use in the Registration Statement or the
Prospectus.
8. TRANSFER RESTRICTIONS. The Stockholder agrees that before any sale or
other disposition of any Registrable Shares other than in a sale registered
under the Securities Act or pursuant to Rule 144 (or any similar provisions then
in force) under the Securities Act (unless the Company shall have been advised
by counsel that the sale does not meet the requirements of Rule 144, as the case
may be, for such sale), it will deliver to the Company an opinion of counsel, in
form and substance reasonably satisfactory to the Company, to the effect that
such registration is unnecessary.
9. EXEMPT SALES.
(a) The Company shall make all filings with the Securities and Exchange
Commission required by Rule 144(c) (or any similar provision then in force)
under the Securities Act to permit the sale of Registrable Shares by any holder
thereof (other than an Affiliate of the Company) to satisfy the conditions of
Rule 144 (or any similar provision then in force). The Company shall, promptly
upon the written request of the holder of Registrable Shares, deliver to
16
such holder a written statement as to whether the Company has complied with all
such filing requirements.
(b) Before sales of Registrable Shares proposed to be sold pursuant to
an exemption from the registration requirements of the Securities Act, the
Company shall, subject to Section 8(c), cooperate with the holder of such
Registrable Shares, to facilitate the timely preparation and delivery of
certificates (not bearing any restrictive legends) representing such Registrable
Shares, in connection with the closing of the sales and to enable such
Registrable Shares, to be in such denominations and registered in such names as
the holder may request.
10. MERGER, CONSOLIDATION, EXCHANGE, ETC. In the event, directly or
indirectly, (1) the Company shall merge with and into, or consolidate with, any
other person or (2) any person shall merge with and into, or consolidate, the
Company and the Company shall be the surviving corporation of such merger or
consolidation and, in connection with such merger or consolidation, all or part
of the Registrable Shares shall be changed into or exchanged for stock or other
securities of any other person, then, in each such case, proper provision shall
be made so that such other person shall be bound by the provisions of this
Agreement and the term the "Company" shall thereafter be deemed to refer to such
other person.
11. NOTICES. All notices, requests and other communications to any party
under this Agreement shall be in writing. Communications may be made by telecopy
or similar writing. Each communication shall be given to the party at its
address set forth below or at any other address as the party may specify for
this purpose by notice to the other party. Each communication shall be effective
(1) if given by telecopy, when the telecopy is transmitted to the proper address
and the receipt of the transmission is confirmed, (2) if given by mail, 72 hours
after the communication is deposited in the mails properly addressed with first
class postage prepaid or (3) if given by any other means, when delivered to the
proper address and a written acknowledgement of delivery is received.
(a) If to the Company, to:
Qwest Communications International Inc.
700 Qwest Tower
555 Seventeenth Street
Denver, Colorado 80202
Facsimile Number: (303) 992-1798
Attention: Chief Financial Officer
with a copy addressed as set forth above but to the attention
of General Counsel, Facsimile Number: (303) 992-1044
and with an additional copy to:
Steven L. Grossman
O'Melveny & Myers LLP
1999 Avenue of the Stars, Suite 700
Los Angeles, California 90067
Facsimile Number: (310) 246-6779
17
(b) If to the Stockholder, to:
BellSouth Enterprises, Inc.
1155 Peachtree Street, N.E.
Suite 2000
Atlanta, Georgia 30309-3610
Facsimile Number: (404) 249-2658
Attention: Keith O. Cowan
and with additional copies to:
E. John Whelchel
BellSouth Corporation
1155 Peachtree Street, N.E.
Atlanta, Georgia 30309-3610
Facsimile Number: (404) 249-2629
Gail L. Weinstein
Fried, Frank, Harris, Shriver & Jacobson
One New York Plaza
New York, New York 10004
Facsimile Number: (212) 859-4000
12. NO WAIVERS; REMEDIES. No failure or delay by any party 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 or 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.
13. AMENDMENTS, ETC. No amendment, modification, termination or waiver of
any provision of this Agreement, and no consent to any departure by a party to
this Agreement from any provision of this Agreement, shall be effective unless
it shall be in writing and signed and delivered by the other party to this
Agreement, and then it shall be effective only in the specific instance and for
the specific purpose for which it is given.
14. SUCCESSORS AND ASSIGNS.
(a) Each holder of Registrable Shares may assign to any permitted
transferee of Registrable Shares, its rights and delegate to the transferee its
obligations under this Agreement including, without limitation, the rights of
assignment pursuant to this Section 14; PROVIDED that (1) any assignment of
rights under Section 1 of one or more demand registration right must indicate in
writing the number of demand rights so assigned and the Company must receive
notice of such assignment and (2) such transferee shall accept such rights and
assume such obligations for the benefit of the Company by written instrument, in
form and substance reasonably satisfactory to the Company. Thereafter, without
any further action by any person, all references in this Agreement to the holder
of such Registrable Shares, and all comparable references, shall be deemed to be
references to the transferee, and the transferor shall be released
18
from each obligation or liability under this Agreement with respect to the
Registrable Shares so transferred.
(b) The provisions of this Agreement shall be binding upon and inure to
the benefit of the parties to this Agreement, the express beneficiaries thereof
and their respective permitted heirs, executors, legal representatives,
successors and assigns, and no other person.
15. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York, without regard to
principles of conflicts of law.
16. COUNTERPARTS; EFFECTIVENESS. 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.
17. SEVERABILITY OF PROVISIONS. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to that jurisdiction,
be ineffective to the extent of the prohibition or unenforceability without
invalidating the remaining provisions of this Agreement or affecting the
validity or enforceability of the provision in any other jurisdiction.
18. HEADINGS AND REFERENCES. Section headings in this Agreement are
included for the convenience of reference only and do not constitute a part of
this Agreement for any other purpose. References to parties, express
beneficiaries and sections in this Agreement are references to the parties to or
the express beneficiaries and sections of this Agreement, as the case may be,
unless the context shall require otherwise.
19. ENTIRE AGREEMENT. This Agreement and the Common Stock Purchase
Agreements embody the entire agreement and understanding of the parties and
supersedes all prior agreements or understandings with respect to the subject
matters thereof.
20. SURVIVAL. Except as otherwise specifically provided in this Agreement,
each representation, warranty or covenant of each party contained in to this
Agreement shall remain in full force and effect, notwithstanding any
investigation or notice to the contrary or any waiver by the other party of a
related condition precedent to the performance by such other party of an
obligation under this Agreement.
21. EXCLUSIVE JURISDICTION. Each party (1) agrees that any action,
complaint, counterclaim, investigation, petition, suit or other proceeding,
whether civil or criminal, in law or in equity, or before any arbitrator, court
or governmental authority (each, an "ACTION"), with respect to this Agreement or
any transaction contemplated by this Agreement shall be brought exclusively in
the courts of the State of New York or of the United States of America for the
Southern District of New York, in each case sitting in the Borough of Manhattan,
State of New York, (2) accepts for itself and in respect of its property,
generally and unconditionally, the jurisdiction of those courts and (3)
irrevocably waives any objection, including, without limitation, any objection
to the laying of venue or based on the grounds of FORUM NON CONVENIENS, which it
may now or hereafter have to the bringing of any legal action in those
jurisdictions; PROVIDED, HOWEVER, that any party may assert in an Action in any
other jurisdiction or venue each mandatory defense, third-party claim or similar
claim that, if not so asserted in such Action, may thereafter not be asserted by
such party in an original Action in the courts referred to in clause (1) above.
19
22. WAIVER OF JURY TRIAL. Each party waives any right to a trial by jury in
any Action to enforce or defend any right under this Agreement or any amendment,
instrument, document or agreement delivered, or which in the future may be
delivered, in connection with this Agreement and agrees that any Action shall be
tried before a court and not before a jury.
23. AFFILIATE. Nothing contained in this Agreement shall constitute
Stockholder or any Registering Stockholder an "affiliate" of any of the Company
and its Subsidiaries within the meanings of the Securities Act or the Exchange
Act, respectively, including, without limitation, Rule 501 under the Securities
Act and Rule 13e-3 under the Exchange Act.
24. NON-RECOURSE. No recourse under this Agreement shall be had against any
"controlling person" (within the meaning of Section 20 of the Exchange Act) of
any party or the stockholders, directors, officers, employees, agents and
Affiliates of such party or such controlling persons, whether by the enforcement
of any assessment or by any legal or equitable proceeding, or by virtue of any
Regulation, it being expressly agreed and acknowledged that no personal
liability whatsoever shall attach to, be imposed on or otherwise be incurred by
such controlling person, stockholder, director, officer, employee, agent or
Affiliate, as such, for any obligations of such party under this Agreement or
for any claim based on, in respect of or by reason of such obligations or their
creation; provided, however, that nothing contained in this Section 24 shall be
deemed to be a waiver by the Company or any such controlling person,
stockholder, director, officer, employee, agent or affiliate of the Company of
their respective liabilities under applicable federal or state securities laws,
rules or regulations.
25. NO INCONSISTENT AGREEMENTS.
(a) The Company shall not enter into, or amend or otherwise modify, any
agreement to afford to any person other than the Stockholder and the holders of
Registrable Shares rights with respect to the registration under the Securities
Act of shares of Company Common Stock or other securities or the inclusion of
any such shares or other securities in any registration that are inconsistent
with, or conflict with, the rights of the Stockholders and the holders of
Registrable Shares under this Agreement, including, without limitation, Sections
1 and 2.
(b) Without derogating from the generality of Section 25(a), after the
date of this Agreement, the Company shall not enter into, or amend or otherwise
modify, any agreement to afford to any person other than the Stockholder and the
holders of Registrable Shares the right to require the Company to include in any
registration pursuant to Section 1 any securities of the Company pursuant to the
exercise of any "piggy-back" right under an agreement with the Company not in
existence as of the date of this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
20
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective authorized officers as of the date first written
above.
BELLSOUTH ENTERPRISES, INC.
By: /s/ Keith O. Cowan
----------------------------------
Name: Keith O. Cowan
----------------------------------
Title: Authorized Signatory
---------------------------------
QWESTCOMMUNICATIONS
INTERNATIONAL INC.
By: /s/ Drake S. Tempest
----------------------------------
Name: Drake S. Tempest
Title: Executive Vice President
and General Counsel