COMMON STOCK PURCHASE AGREEMENT
Dated as of December 14, 1998
Between
QWEST COMMUNICATIONS INTERNATIONAL INC.
and
MICROSOFT COPORATION
COMMON STOCK PURCHASE AGREEMENT
This COMMON STOCK PURCHASE AGREEMENT (this "Agreement") is made as of
this 14th day of December, 1998 between Qwest Communications International Inc.,
a Delaware corporation (the "Company"), and Microsoft Corporation, a Washington
corporation (the "Purchaser").
RECITALS
WHEREAS, the Company desires to sell to the Purchaser, and the
Purchaser desires to purchase from the Company, shares of the Company's Common
Stock, $.01 par value per share (the "Common Stock"), on the terms and
conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the foregoing recitals, the mutual
promises hereinafter set forth, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1
Agreement to Purchase and Sell Common Stock
1.1 Agreement to Purchase and Sell Common Stock. Upon the terms and
subject to the conditions of this Agreement, the Company hereby agrees to sell
to the Purchaser at the Closing (as defined below), and the Purchaser agrees to
purchase from the Company at the Closing, 4,444,445 shares of Common Stock, (the
"Shares") at a price of $45.00 per share (the "Per Share Purchase Price") for an
aggregate purchase price of $200,000,025.
SECTION 2
Closing Date; Delivery
2.1 Closing Date. The Closing of the purchase and sale of the Shares hereunder
(the "Closing") shall be held at the offices of the Company at 6:00 a.m. on
December 14, 1998, or at such other time and place as the Company and the
Purchaser mutually agree (the date of the Closing being hereinafter referred to
as the "Closing Date").
2.2 Delivery. At the Closing, the Company will deliver to the Purchaser
a certificate or certificates representing the Shares against payment of the
aggregate purchase price of $200,000,025 by wire transfer of immediately
available funds to an account designated by the Company. The certificate or
certificates representing the Shares shall be subject to a legend restricting
transfer under the Securities Act of 1933, as amended (the "Securities Act") and
referring to restrictions on transfer herein, such legend to be substantially as
follows:
"The shares represented by this certificate have been acquired
for investment and have not been registered under the Securities Act of
1933, as amended. Such shares may not be sold or transferred in the
absence of such registration or an opinion of counsel reasonably
satisfactory to the Company as to the availability of an exemption from
registration.
The shares represented by this certificate are subject to
restrictions on transfer, including any sale, pledge or other
hypothecation, set forth in an agreement dated as of December 14, 1998
between the Company and Microsoft Corporation, a copy of which
agreement may be obtained at no cost by written request made by the
holder of record of this certificate to the secretary of the Company at
the Company's principal executive offices."
The Company agrees (i) to remove the legend set forth in the second
preceding paragraph upon receipt of an opinion of counsel in form and substance
reasonably satisfactory to the Company that the Shares or the shares of Common
Stock issuable upon conversion of the Shares are eligible for transfer without
registration under the Securities Act and (ii) to remove the legend set forth in
the immediately preceding paragraph at such time as the Shares may be
transferred upon the termination of the covenants of Section 7 as provided for
in Section 8.4.
SECTION 3
Representations and Warranties of the Company
The Company hereby represents and warrants to the Purchaser as follows:
3.1 Organization. The Company is a corporation duly organized and
validly existing under the laws of the State of Delaware and is in good standing
under such laws. The Company has the requisite corporate power to own and
operate its properties and assets, and to carry on its business as presently
conducted and as proposed to be conducted. The Company is qualified to do
business as a foreign corporation in each jurisdiction in which the ownership of
its property or the nature of its business requires such qualification, except
where the failure to be so qualified would not have a materially adverse effect
on the Company and its subsidiaries, taken as a whole.
3.2 Authorization. All corporate action on the part of the Company
necessary for the authorization, execution, delivery and performance of this
Agreement and the Registration Rights Agreement (attached as Exhibit A hereto)
by the Company, the authorization, sale, issuance and delivery of the Shares
hereunder. This Agreement and the Registration Rights Agreement constitute
legal, valid and binding obligations of the Company enforceable in accordance
with their respective terms, subject to laws of general application relating to
bankruptcy, insolvency and the relief of debtors and rules of law governing
specific performance, injunctive relief or other equitable remedies, and to
limitations of public policy as they may apply to Section 6 of the Registration
Rights Agreement. Upon their issuance and delivery pursuant to this Agreement,
the Shares will be validly issued, fully paid and nonassessable. The issuance
and sale of the Shares will not give rise to any preemptive rights or rights of
first refusal on behalf of any person in existence on the date hereof.
3.3 No Conflict. The execution and delivery of this Agreement and the
Registration Rights Agreement do not, and the consummation of the transactions
contemplated hereby and thereby will not, conflict with, or result in any
violation of, or default (with or without notice or lapse of time, or both), or
give rise to a right of termination, cancellation or acceleration of any
obligation or to a loss of a material benefit under, any provision of the
Certificate of Incorporation or Bylaws of the Company or any mortgage,
indenture, lease or other agreement or instrument, permit, concession,
franchise, license, judgment, order, decree, statute, law, ordinance, rule or
regulation applicable to the Company, its properties or assets, the effect of
which would have a material adverse effect on the Company and its subsidiaries,
taken as a whole, or materially impair or restrict the Company's power to
perform its obligations as contemplated under said agreements.
3.4 SEC Documents. The Company has filed all required reports,
schedules, forms, statements and other documents required to be filed by the
Company with the Securities and Exchange Commission (the "SEC") since June 27,
1997 (the "SEC Documents"). As of their respective dates, the SEC Documents
complied in all material respects with requirements of the Securities Act or the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), as the case
may be and the rules and regulations of the SEC promulgated thereunder
applicable to such SEC Documents, and none of the SEC Documents, except to the
extent that information contained in any SEC Document has been revised or
superseded by a later Filed SEC Document (as defined below), contained any
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading. The
financial statements of the Company included in the Company's Form 10-K for the
year ended December 31, 1997 and the Form 10-Q for the three months ended
September 30, 1998 comply as to form in all material respects with applicable
accounting requirements and the published rules and regulations of the SEC with
respect thereto, have been prepared in accordance with U.S. generally accepted
accounting principles ("GAAP") (except, in the case of unaudited statements as
permitted by Form 10-Q of the SEC) applied on a consistent basis during the
periods involved (except as may be indicated in the notes thereto or as
described in writing to the Purchaser prior to the date hereof) and fairly
present the consolidated financial position of the Company and its consolidated
subsidiaries as of the dates thereof and the consolidated results of their
operation and cashflows for the periods then ending in accordance with GAAP
(subject, in the case of the unaudited statements, to normal year end audit
adjustments). Except as set forth in the Filed SEC Documents (as defined below),
neither the Company nor any of its subsidiaries has any material liabilities or
obligations of any nature (whether accrued, absolute, contingent or otherwise)
required by GAAP to be set forth on a consolidated balance sheet of the Company
and its consolidated subsidiaries or in the notes thereto and which can
reasonably be expected to have a material adverse effect on the Company and its
subsidiaries taken as a whole.
3.5 Absence of Certain Changes or Events. Except as disclosed in the
SEC Documents filed and publicly available (either on the XXXXX system or by
delivery to Purchaser) prior to the date of this Agreement (the "Filed SEC
Documents"), since the date of the most recent audited financial statements
included in the Filed SEC Documents, there has not been (i) any declaration,
setting aside or payment of any dividend or distribution (whether in cash, stock
or property) with respect to any of the Company's capital stock, (ii) any split,
combination or reclassification of any of its capital stock or any issuance or
the authorization of any issuance of any other securities in respect of, in lieu
of or in substitution for shares of its capital stock, (iii) any damage,
destruction or loss of property, whether or not covered by insurance, that has
or is likely to have a material adverse effect on the Company and its
subsidiaries taken as a whole, or (iv) any change in accounting methods,
principles or practices by the Company materially affecting its assets,
liabilities, or business, except insofar as may have been required by a change
in GAAP.
3.6 Governmental Consent, etc. In reliance on the representations of
the Purchaser contained herein, no consent, approval or authorization of, or
designation, declaration or filing with, any governmental authority on the part
of the Company is required in connection with the valid execution and delivery
of this Agreement, or the offer, sale or issuance of the Shares, or the
consummation of any other transaction contemplated hereby, except such filings
as may be required to be made with the SEC and the National Association of
Securities Dealers, Inc.
3.7 Litigation. Except as is disclosed in the Filed SEC Documents,
there is no suit, action or proceeding pending against the Company or any of its
subsidiaries that, individually or in the aggregate, would (i) have a material
adverse effect on the Company and its subsidiaries taken as a whole, (ii) impair
the ability of the Company to perform its obligations under this Agreement and
the Registration Rights Agreement, or (iii) prevent the consummation of any of
the transactions contemplated by said agreements.
3.8 Capitalization.
(a) As of the date of this Agreement, the authorized capital stock of
the Company consists of 600,000,000 shares of the Common Stock and 25,000,000
shares of preferred stock, par value $.01 per share, of the Company (the
"Company Preferred Stock").
(b) As of November 30, 1998, there are approximately (1) 336,869,859
shares of the Common Stock issued and outstanding, (2) no shares of the Common
Stock held in the treasury of the Company, (3) no shares of the Company
Preferred Stock issued and outstanding, (4) 406,640,087 shares of the Common
Stock reserved for issuance upon exercise of outstanding stock options issued by
the Company to current or former employees and directors of the Company and its
subsidiaries, (5) 506,643,587 shares of the Common Stock reserved for issuance
upon exercise of authorized but unissued stock options and (6) 8,600,000 shares
of the Common Stock reserved for issuance upon exercise of a warrant issued to
The Xxxxxxx Family Investment Company, LLC.
(c) All outstanding shares of the Common Stock are duly authorized,
validly issued, fully paid and nonassessable, free from any liens created by the
Company with respect to the issuance and delivery thereof and not subject to
preemptive rights.
3.9 Registration Rights. No person has the right to register shares of
Common Stock on a Registration Statement filed by the Company pursuant to this
Agreement.
SECTION 4
Representations and Warranties of the Purchaser
The Purchaser hereby represents and warrants to the Company as follows:
4.1 Organization. The Purchaser is a corporation duly organized and
validly existing and in good standing under the laws of the State of Washington,
with all requisite corporate power and authority to own, lease and operate its
properties and to conduct its business as now being conducted.
4.2 Authority. All corporate action on the part of the Purchaser
necessary for the authorization, execution, delivery and performance of this
Agreement and the Registration Rights Agreement by the Purchaser has been taken.
This Agreement and the Registration Rights Agreement have been duly executed and
delivered by the Purchaser and constitute legal, valid and binding obligations
of the Purchaser, enforceable in accordance with their respective terms, subject
to laws of general application relating to bankruptcy, insolvency and the relief
of debtors and rules of law governing specific performance, injunctive relief or
other equitable remedies, and to limitations of public policy as they may apply
to Section 6 of the Registration Rights Agreement. The execution and delivery of
said agreements do not, and the consummation of the transactions contemplated
hereby and thereby will not, conflict with or result in any violation of any
obligation under any provision of the Articles of Incorporation or Bylaws of the
Purchaser or any judgment, order, decree, statute, law, ordinance, rule or
regulation applicable to the Purchaser.
4.3 Investment. The Purchaser is acquiring the Shares for investment
for its own account, not as a nominee or agent, and not with a view to, or for
resale in connection with, any distribution thereof. The Purchaser understands
that the Shares have not been registered under the Securities Act by reason of a
specific exemption from the registration provisions of the Securities Act which
depends upon, among other things, the bona fide nature of the investment intent
and the accuracy of the Purchaser's representations and warranties contained
herein.
4.4 Disclosure of Information. The Purchaser has had full access to all
information it considers necessary or appropriate to make an informed investment
decision with respect to the Shares to be purchased by the Purchaser under this
Agreement. The Purchaser further has had an opportunity to ask questions and
receive answers from the Company regarding the terms and conditions of the
offering of the Shares and to obtain additional information necessary to verify
any information furnished to the Purchaser or to which the Purchaser had access.
4.5 Investment Experience. The Purchaser understands that the purchase
of the Shares involves substantial risk. The Purchaser has experience as an
investor in securities of companies and acknowledges that it is able to fend for
itself, can bear the economic risk of its investment in the Shares and has such
knowledge and experience in financial or business matters that it is capable of
evaluating the merits and risks of this investment in the Shares and protecting
its own interests in connection with this investment.
4.6 Accredited Investor Status. The Purchaser is an "accredited
investor" within the meaning of Regulation D promulgated under the Securities
Act.
4.7 Restricted Securities. The Purchaser understands that the Shares to
be purchased by the Purchaser hereunder are characterized as "restricted
securities" under the Securities Act inasmuch as they are being acquired from
the Company in a transaction not involving a public offering and that under the
Securities Act and applicable regulations thereunder such securities may be
resold without registration under the Securities Act only in certain limited
circumstances. The Purchaser is familiar with Rule 144 of the Securities Act, as
presently in effect, and understands the resale limitations imposed thereby and
by the Securities Act. The Purchaser understands that the Company is under no
obligation to register any of the Shares sold hereunder except as provided in
the Registration Rights Agreement.
4.8 Governmental Consent, etc. In reliance on the representations of
the Company contained herein, no consent, approval or authorization of, or
designation, declaration or filing with, any governmental authority on the part
of the Purchaser is required in connection with the valid execution and delivery
of this Agreement, or the offer, sale or issuance of the Shares, or the
consummation of any other transaction contemplated hereby, except such filings
as may be required to be made with the SEC and the National Association of
Securities Dealers, Inc.
4.9 Passive Investor. The Purchaser is acquiring the Shares "solely for
the purpose of investment" as such phrase is defined in 16 C.F.R. ss.
801.1(i)(1) and the Purchaser has no intention of participating in the
formulation, determination or direction of the basic business decisions of the
Company.
SECTION 5
Conditions to Obligation of the Purchaser
The Purchaser's obligation to purchase the Shares at the Closing is
subject to the fulfillment on or prior to the Closing Date of the following
conditions:
5.1 Representations and Warranties. Each of the representations and
warranties of the Company contained in Section 3 will be true and correct on and
as of the date hereof and on and as of the Closing Date with the same effect as
though such representations and warranties had been made as of the Closing Date.
The Purchaser shall have received a certificate signed by an officer of the
Company to such effect on the Closing Date.
5.2 Covenants. All covenants, agreements and conditions contained in
this Agreement to be performed by the Company on or prior to the Closing Date
shall have been performed or complied with in all material respects. The
Purchaser shall have received a certificate signed by an officer of the Company
to such effect on the Closing Date.
5.3 No Order Pending. There shall not then be in effect any order
enjoining or restraining the transactions contemplated by this Agreement.
5.4 No Law Prohibiting or Restricting Sale of the Shares. There shall
not be in effect any law, rule or regulation prohibiting or restricting the sale
of the Shares, or requiring any consent or approval of any Person which shall
not have been obtained to issue the Shares with full benefits afforded the
Preferred Stock or the Common Stock into which the Preferred Stock is
convertible (except as otherwise provided in this Agreement).
5.5 Registration Rights Agreement. The Company shall have executed and
delivered the Registration Rights Agreement substantially in the form attached
hereto as Exhibit A.
5.6 Opinion of Counsel. The Purchaser shall have received an opinion
dated as of the Closing Date of O'Melveny & Xxxxx LLP, counsel to the Company,
substantially in the form attached as Exhibit 5.6.
SECTION 6
Conditions to Obligation of the Company
The Company's obligation to sell and issue the Shares at the Closing is
subject to the fulfillment on or prior to the Closing Date of the following
conditions:
6.1 Representations and Warranties. The representations and warranties
of the Purchaser contained in Section 4 will be true and correct on and as of
the date hereof and on and as of the Closing Date with the same effect as though
such representations and warranties had been made as of the Closing Date. The
Company shall have received a certificate signed on behalf of the Purchaser by
an officer of the Purchaser to such effect on the Closing Date.
6.2 Covenants. All covenants, agreements and conditions contained in
this Agreement to be performed by the Purchaser on or prior to the Closing Date
shall have been performed or complied with in all material respects. The Company
shall have received a certificate signed on behalf of the Purchaser by an
officer of the Purchaser to such effect on the Closing Date.
6.3 No Order Pending. There shall not then be in effect any order
enjoining or restraining the transactions contemplated by this Agreement.
6.4 No Law Prohibiting or Restricting the Sale of the Shares. There
shall not be in effect any law, rule or regulation prohibiting or restricting
the sale of the Shares, or requiring any consent or approval of any Person which
shall not have been obtained to issue the Shares with full benefits afforded the
Common Stock (except as otherwise provided in this Agreement).
6.5 Registration Rights Agreement. The Purchaser shall have executed
and delivered the Registration Rights Agreement substantially in the form
attached hereto as Exhibit A.
6.6 Opinion of Counsel. The Company shall have received an opinion
dated as of the Closing Date of Xxxxxxx Xxxxx & Xxxxx, counsel to the Purchaser,
substantially in the form attached as Exhibit 6.6.
SECTION 7
Covenants of the Purchaser
7.1 Purchase Restrictions.
(a) Other than pursuant to the transactions contemplated by this
Agreement, the Purchaser shall not, and shall not cause or permit its affiliates
or any Group (as defined below) including the Purchaser or any of its affiliates
to, acquire shares of the Common Stock, which when combined with shares of the
Common Stock then owned by the Purchaser and its subsidiaries would result in
the Purchaser Beneficially Owning (as defined below) more than 5% of the shares
of the Common Stock then issued and outstanding, except pursuant to a
transaction or series of transactions at prices and on terms approved by the
Board of Directors of the Company.
(b) Nothing in this Section 7.1 shall require the Purchaser or its
subsidiaries to transfer any shares of Common Stock if the aggregate percentage
ownership of the Purchaser and its subsidiaries is increased as a result of any
action taken by the Company or its subsidiaries including, without limitation,
by reason of any reclassification, recapitalization, stock split, reverse stock
split, combination or exchange of shares, redemption, repurchase or cancellation
of shares or any other similar transaction.
7.2 Other Restrictions. Neither the Purchaser nor any of its
subsidiaries shall, without the approval of the Board of Directors of the
Company, (1) take any action with respect to an acquisition proposal that would
require the Company to make a public announcement, (2) solicit proxies or
initiate, or become an active participant in, a solicitation (as such terms are
defined in Regulation 14A under the Exchange Act) with respect to the Company in
opposition to any matter which has been recommended by the Board of Directors of
the Company or in favor of any matter which has not been approved by the Board
of Directors of the Company, (3) become a member of a Group (other than a Group
comprised solely of the Purchaser and its subsidiaries), or (4) enter into any
discussions, negotiations, arrangements or understandings with any third party
with respect to any of the foregoing.
7.3 Restrictions on Transfer of Shares. For a period of two years from
the date of this Agreement, the Purchaser shall not, directly or indirectly,
offer, sell, transfer, assign, exchange, encumber, pledge, hypothecate or
otherwise dispose of the Beneficial Ownership of any Shares acquired pursuant to
this Agreement except (i) to the Company or any persons or Groups approved in
writing by the Company, or (ii) to a corporation of which the Purchaser owns
more than 50% of the voting power entitled to be cast in the election of
directors (a "Controlled Corporation"), so long as such Controlled Corporation
agrees to hold such Shares subject to all the provisions of this Agreement,
including this Section 7.3, and agrees to transfer such Shares to the Purchaser
or another Controlled Corporation of the Purchaser if it ceases to be a
Controlled Corporation of the Purchaser. The restrictions in this Section shall
terminate in the event of a "Change or Control" or "Insolvency Proceeding."
SECTION 8Miscellaneous
8.1 Certain Definitions. As used in this Agreement:
(a) The term "Beneficial Ownership" shall have the meaning
comprehended by Section 13(d)(3) of the Exchange Act and the rules and
regulations promulgated thereunder.
(b) The term "Change of Control" shall mean (i) an acquisition
of Voting Stock by a Person or Group (other than the Company or its affiliates)
in a purchase or transaction or series of related purchases or transactions if
immediately thereafter such Person or Group has Beneficial Ownership of more
than fifty percent (50%) of the combined voting power of the Company's then
outstanding Voting Stock; (ii) the execution of an agreement providing for a
tender offer, merger, consolidation or reorganization, or series of such related
transactions involving the Company, unless the stockholders of the Company,
immediately after such transaction or transactions are the Beneficial Owners of
at least fifty percent (50%) of the Voting Stock; (iii) a change or changes in
the membership of the Company's Board of Directors which represent a change of a
majority or more of such membership during any twelve month period (unless such
change or changes in membership are caused by the actions of the then existing
Board of Directors and do not occur within twelve months of the commencement,
threat or proposal of an Election Contest (as such term is defined in Rule
14a-11 of Regulation 14A under the Exchange Act), tender offer or other
transaction which would constitute a Change of Control under (i) or (ii) of this
Section 8.1(a)); or (iv) a sale of all or substantially all of the Company's
assets.
(c) The term "Group" shall have the meaning comprehended by
Section13(d)(3) of the Exchange Act and the rules and regulations promulgated
thereunder.
(d) The term "Insolvency Proceeding" shall mean (i) an
assignment for the benefit of creditors, (ii) the filing by the Company of a
petition to have the Company adjudged insolvent, bankrupt or seeking a
reorganization or liquidation under any law relating to bankruptcy, insolvency
or receivership, (iii) an appointment of a receiver or trustee for all or
substantially all of the assets of the Company unless appointed without the
Company's consent, in which case if after sixty (60) days such appointment has
not been vacated or stayed, (iv) a public admission in writing of the Company's
inability to pay its debts as they come due, or (v) the adoption of a plan of
liquidation or dissolution by the Board of Directors of the Company.
(e) The term "Person" shall mean any person, individual,
corporation, partnership, trust or other non-governmental entity or any
governmental agency, court, authority or other body (whether foreign, federal,
state, local or otherwise).
(f) The term "Voting Stock" means the Common Stock and any
other securities issued by the Company having the ordinary power to vote in the
election of directors of the Company (other than securities having such power
only upon the happening of a contingency).
8.2 Best Efforts. Each of the Company and the Purchaser shall use its
best efforts to take all actions required under any law, rule or regulation
adopted subsequent to the date hereto to ensure that the conditions to the
Closing set forth herein are satisfied on or before the Closing Date.
8.3 Governing Law. This Agreement shall be governed in all respects by
the internal laws of the State of New York as applied to contracts entered into
solely between residents of, and to be performed entirely within, such state,
and without reference to principles of conflicts of laws or choice of laws.
8.4 Survival; Termination of Covenants. The representations and
warranties in Sections 3 and 4 of this Agreement shall not survive the Closing
except for the representations and warranties in Sections 4.3, 4.7 and 4.9
hereof, which shall continue to survive. The covenants of the Purchaser under
Sections 7.1 and 7.2 hereof shall terminate on the earlier of (A) such time as
officers, directors and affiliates of the Company have Beneficial Ownership of
less than thirty-three percent (33%) of the voting power of the outstanding
Voting Stock, (B) the disposal by Purchaser of all of the Shares, (C)
termination of that certain Master Agreement between Qwest Communications
Corporation and Purchaser dated as of the date of this Agreement, or (D) the
fifth anniversary of this Agreement. Section 7.3 shall terminate on the second
anniversary of this Agreement.
8.5 Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and assigns.
8.6 Entire Agreement; Amendment. This Agreement and the Registration
Rights Agreement constitute the full and entire understanding and agreement
between the parties with regard to the subject matter hereof and thereof and
supersede all prior agreements and understandings among the parties relating to
the subject matter hereof. Neither this Agreement nor any term hereof may be
amended, waived, discharged or terminated other than by a written instrument
signed by the party against whom enforcement of any such amendment, waiver,
discharge or termination is sought.
8.7 Notices. All notices, requests, demands or other communications
which are required or may be given pursuant to the terms of this Agreement shall
be in writing and shall be deemed to have been duly given: (i) on the date of
delivery if personally delivered by hand, (ii) upon the third day after such
notice is (a) deposited in the United States mail, if mailed by registered or
certified mail, postage prepaid, return receipt requested, or (b) sent by a
nationally recognized overnight express courier, or (iii) by facsimile upon
written confirmation (other than the automatic confirmation that is received
from the recipient's facsimile machine) of receipt by the recipient of such
notice:
(a) if to the Company, to it at:
Qwest Communications International Inc.
000 Xxxxx Xxxxx
000 Xxxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile Number: (000) 000-0000
Attention: Chief Financial Officer
with a copy addressed as set forth above but to the attention
of General Counsel Facsimile Number: (000) 000-0000
and with an additional copy to:
Xxxxxx X. Xxxxxxxx
O'Melveny & Xxxxx LLP
0000 Xxxxxx xx xxx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Facsimile Number: (000) 000-0000
(b) if to the Purchaser, to it at:
Microsoft Corporation
One Microsoft Way
Building 8 North Office 2211
Xxxxxxx, XX 00000
Attention: Chief Financial Officer
Facsimile Number: (000) 000-0000
with a copy addressed as set forth above but to the attention of
General Counsel, Finance and Administration, Facsimile Number: (000) 000-0000
with a copy to:
Xxxxxxx X. Xxxx
Xxxxxxx Xxxxx & Xxxxx LLP
0000 Xxxxxxxx Xxxxxx
000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Facimile Number: (000) 000-0000
8.8 Brokers. (a) The Company has not engaged, consented to or
authorized any broker, finder or intermediary to act on its behalf, directly or
indirectly, as a broker, finder or intermediary in connection with the
transactions contemplated by this Agreement. The Company hereby agrees to
indemnify and hold harmless the Purchaser from and against all fees, commissions
or other payments owing to any party acting on behalf of the Company hereunder.
(b) The Purchaser has not engaged, consented to or authorized
any broker, finder or intermediary to act on its behalf, directly or indirectly,
as a broker, finder or intermediary in connection with the transactions
contemplated by this Agreement. The Purchaser hereby agrees to indemnify and
hold harmless the Company from and against all fees, commissions or other
payments owing to any party acting on behalf of the Purchaser hereunder.
8.9 Fees, Costs and Expenses. All fees, costs and expenses (including
attorneys' fees and expenses) incurred by either party hereto in connection with
the preparation, negotiation and execution of this Agreement and the
Registration Rights Agreement and the consummation of the transactions
contemplated hereby and thereby, shall be the sole and exclusive responsibility
of such party.
8.10 Severability. If any term, provision, covenant or restriction of
this Agreement or the Registration Rights Agreement is held by a court of
competent jurisdiction to be invalid, void or unenforceable, the remainder of
the terms, provisions, covenants and restriction of this Agreement shall remain
in full force and effect and shall in no way be affected, impaired or
invalidated.
8.11 Counterparts. This Agreement may be executed in two or more
partially or fully executed counterparts and by facsimile signatures each of
which shall be deemed an original and shall bind the signatory, but all of which
together shall constitute but one and the same instrument. The execution and
delivery of a Signature Page - Common Stock Purchase Agreement in the form
attached to this Agreement by any party hereto who shall have been furnished the
final form of this Agreement shall constitute the execution and delivery of this
Agreement by such party.
8.12 Initial Public Announcement. The Company and the Purchaser shall
agree on the form and content of the initial public announcement which shall be
made concerning this Agreement and the Registration Rights Agreement and the
transactions contemplated hereby and thereby, and neither the Company nor the
Purchaser shall make such public announcement without the consent of the other,
except as required by law.
SIGNATURE PAGE--COMMON STOCK PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective authorized officers as of the date set forth above.
MICROSOFT CORPORATION,
a Washington corporation
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Vice President and Chief Financial
Officer
QWEST COMMUNICATIONS INTERNATIONAL INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Executive Vice President - Finance and
Chief Financial Officer
