VOTING AGREEMENT
VOTING AGREEMENT (this "Agreement") dated as of October 1, 1999 between
RCN Corporation, a Delaware corporation (the "Corporation"), Vulcan Ventures
Incorporated ("Vulcan") and Level 3 Telecom Holdings, Inc., a Delaware
corporation ("Level 3").
WHEREAS, Level 3 owns 26,640,970 shares of the Corporation's common
stock (the "Common Stock"), par value $1.00 per share (all shares of Common
Stock owned as of the date hereof and which may be hereafter be acquired by
Xxxxx 0 prior to the termination of this Agreement shall be referred to herein
as the "Shares");
WHEREAS, the Corporation and Vulcan propose to enter into a Stock
Purchase Agreement dated as of the date hereof (as amended from time to time,
the "Stock Purchase Agreement"), which provides for the purchase by Vulcan of
1,650,000 shares of Series B 7% Senior Convertible Preferred Stock (the
"Preferred Stock") of the Corporation;
WHEREAS, promptly after the execution of the Stock Purchase Agreement,
the Corporation will seek the concurrence of the National Association of
Securities Dealers, Inc. (the "NASD") with the Corporation's view that the
issuance of the Preferred Stock does not require the approval of the
Corporation's stockholders. If the NASD does not concur with the Corporation's
view, then the Corporation shall cause a meeting of its stockholders (including
any adjournment or postponement thereof, the "Stockholder Meeting") to be duly
called and held as soon as reasonably practicable for the purpose of voting on
the issuance of the Preferred Stock;
WHEREAS, it is a condition to the willingness of Vulcan to enter into
the Stock Purchase Agreement that Level 3 agree, and in order to induce Vulcan
to enter into the Stock Purchase Agreement, Level 3 has agreed, to enter into
this Agreement;
WHEREAS, the Board of Directors of the Corporation has approved this
Agreement for the purposes of Section 203 of the Delaware General Corporation
Law;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and intending to be legally bound
hereby, the parties hereto hereby agree as follows:
ARTICLE 1
VOTING OF THE SHARES
SECTION 1.1. Voting Agreement. Level 3 hereby agrees to vote the Shares
at the Stockholder Meeting: (i) in favor of the issuance of the shares of
Preferred Stock as contemplated by the Stock Purchase Agreement and (ii) in
favor of any other matter relating to the consummation of the transactions
contemplated by the Stock Purchase Agreement with respect to which Level 3 may
be entitled to vote and against any action which would reasonably be expected to
result in a failure of the conditions described in Article 8 of the Stock
Purchase Agreement to be satisfied.
SECTION 1.2. Irrevocable Proxy. Level 3 hereby revokes any and all
previous proxies granted with respect to the Shares that are inconsistent with
the voting agreement set forth in Section 1.1. By entering into this Agreement,
Level 3 hereby grants a proxy appointing Vulcan as Level 3's attorney-in-fact
and proxy, with full power of substitution, for and in Level 3's name, to vote
or consent or otherwise to utilize such voting power solely in the manner
contemplated by Section 1.1. The proxy granted by Level 3 pursuant to this
Section 1.2 is irrevocable and is coupled with an interest and is granted in
consideration of Vulcan entering into this Agreement and the Stock Purchase
Agreement and as security for the obligations of Level 3 under Section 1.1.
Without limiting the foregoing, Level 3 will, upon Vulcan's request, take all
action as shall be reasonably required from time to time in order to appoint
Vulcan as its duly authorized proxy holder for the Shares solely for the purpose
set forth in Section 1.1.
SECTION 1.3. Record Holder. If Level 3 is not the record owner of any
Shares as to which such Stockholder is the beneficial owner, Level 3 agrees to
cause or direct the record holder to vote such Shares in accordance with the
terms of this Agreement or, to the extent permitted by law, to provide a proxy
to Vulcan with respect thereto.
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ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF XXXXX 0
Xxxxx 0 hereby represents and warrants to the Corporation as follows:
SECTION 2.1. Authority Relative to this Agreement. Level 3 is a
corporation duly incorporated, validly existing and in good standing under the
laws of the State of Delaware. Level 3 has all necessary power and authority to
execute and deliver this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement by Xxxxx 0 and the consummation by Level 3 of the transactions
contemplated hereby have been duly and validly authorized by Xxxxx 0, and no
other proceedings on the part of Level 3 are necessary to authorize the
execution and delivery of this Agreement or to consummate such transactions.
This Agreement has been duly and validly executed and delivered by Xxxxx 0 and
constitutes a legal, valid and binding obligation of Xxxxx 0, enforceable
against Level 3 in accordance with its terms.
SECTION 2.2. No Conflict. (a) The execution and delivery of this
Agreement by Xxxxx 0 do not, and the performance of this Agreement by Level 3
will not, (i) conflict with or violate the certificate of incorporation or
bylaws of Xxxxx 0, (xx) conflict with or violate any law, rule, regulation,
order, judgment or decree applicable to Level 3 or by which the Shares are bound
or affected or (iii) require any consent or other action by any person or
private or governmental entity, result in any breach of or constitute a default
(or an event that, with notice or lapse of time or both, would become a default)
under, or give to others any rights of termination, amendment, acceleration or
cancellation of, or result in the creation of any lien or encumbrance on any of
the Shares pursuant to, any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or obligation
to which Level 3 is a party or by which Level 3 or the Shares are bound or
affected, except, in the case of clauses (ii) and (iii), for any such conflicts,
violations, breaches, defaults or other occurrences that would not prevent,
delay or impair the performance by Xxxxx 0 of its obligations under this
Agreement.
(b) The execution and delivery of this Agreement by Xxxxx 0 do not, and
the performance of this Agreement by Level 3 will not, require any consent,
approval, authorization or permit of, or filing with or notification to, any
federal, state, local or foreign regulatory body, except (i) filings with the
Securities and Exchange Commission under the Securities Exchange Act of 1934 and
(ii) where the failure to obtain such consents, approvals, authorizations or
permits, or to
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make such filings or notifications, would not prevent, delay or impair the
performance by Xxxxx 0 of its obligations under this Agreement.
SECTION 2.3. Title to the Shares. Level 3 is the owner of the Shares,
free and clear of all security interests, liens, claims, pledges, options,
rights of first refusal, agreements, limitations on voting rights, charges and
other encumbrances of any nature whatsoever. Other than the Shares, Level 3 does
not own, either of record or beneficially, any other voting securities of the
Corporation. Level 3 has not appointed or granted any proxy, which appointment
or grant is still effective, with respect to the Shares. Level 3 has sole voting
power with respect to the Shares and Level 3 has the sole power to direct the
voting of the Shares.
ARTICLE 3
COVENANTS OF LEVEL 3
SECTION 3.1. No Inconsistent Agreement. Level 3 hereby covenants and
agrees that it shall not enter into any voting agreement or grant a proxy or
power of attorney or take any other action with respect to the Shares which is
inconsistent with this Agreement.
SECTION 3.2. Transfer of Title. Xxxxx 0 hereby covenants and agrees
that, prior to the termination of this Agreement, Level 3 will not transfer
ownership of any of its Shares except for transfers to a transferee that agrees
in writing to be bound by the terms and conditions of this Agreement. Nothing
else contained in this Agreement shall be construed to prohibit any transfer
permitted by this Section 3.2.
SECTION 3.3. Further Assurances. Level 3 will execute and deliver, or
cause to be executed and delivered, all further documents and instruments and
use all reasonable efforts to take, or cause to be taken, all actions and to do,
or cause to be done, all things necessary, proper or advisable under applicable
laws and regulations, to vote the Shares to approve the issuance of the
Preferred Stock as contemplated by the Stock Purchase Agreement and to take all
other acts required to be taken by Level 3 pursuant to this Agreement.
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ARTICLE 4
MISCELLANEOUS
SECTION 4.1. Termination. This Agreement (including, without
limitation, the proxy granted hereunder) shall terminate on the earlier of (i)
the date of notification by the NASD to the Corporation that the NASD concurs
with the Corporation's view that the issuance of the Preferred Stock does not
require the approval of the Corporation's stockholders, (ii) the day immediately
following final adjournment of the Stockholder Meeting and (iii) the date upon
which the Stock Purchase Agreement terminates.
SECTION 4.2. Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with the terms hereof and that Vulcan shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or in equity.
SECTION 4.3. Entire Agreement. This Agreement constitutes the entire
agreement among the parties, and supersedes all prior written and oral and all
contemporaneous oral agreements and understandings, with respect to the subject
matter hereof.
SECTION 4.4. Amendment. This Agreement may not be amended except
by an instrument in writing signed by all the parties hereto.
SECTION 4.5. Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in an acceptable manner to
the end that the transactions contemplated hereby are fulfilled to the extent
possible.
SECTION 4.6. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, regardless of
the laws that might otherwise govern under principles of conflicts of law
applicable hereto.
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SECTION 4.7. Descriptive Headings. The descriptive headings herein
are inserted for convenience of reference only and are not intended to be part
of or to affect the meaning or interpretation of this Agreement.
SECTION 4.8. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same agreement.
SECTION 4.9. Assignments. This Agreement shall not be assigned by any
party hereto except that Vulcan may assign its rights under this Agreement to a
Controlled Affiliate (as defined in the Stock Purchase Agreement).
SECTION 4.10. Parties in Interest. This Agreement shall be binding upon
and inure solely to the benefit of each party hereto, and nothing in this
Agreement, express or implied, is intended to or shall confer upon any person
other than the parties hereto any right, benefit or remedy of any nature
whatsoever under or by reason of this Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first written above.
RCN CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Chief Financial Officer
LEVEL 3 TELECOM HOLDINGS, INC.
By: /s/ R. Xxxxxxx Xxxxxxxx
-----------------------------------------
Name: R. Xxxxxxx Xxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
VULCAN VENTURES INCORPORATED
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
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