VOTING AGREEMENT
VOTING AGREEMENT dated as of March 8, 1998 (this "Agreement") among
XXXXXX X. XXXXXXXX ("Shareholder"), ANSCHUTZ COMPANY, a Delaware corporation
that is wholly owned by Shareholder ("Record Holder"), and LCI INTERNATIONAL,
INC., a Delaware corporation (together with its successors and assigns,
"LCI").
RECITALS
A. Shareholder beneficially owns not less than 170,000,000
shares of Common Stock, par value $.01 per share, of Qwest Corporation, a
Delaware corporation ("Qwest" and the "Qwest Common Stock"). All such
shares, together with all other shares of capital stock of Qwest with respect
to which Shareholder has beneficial ownership as of the date of this
Agreement, are referred to as the "Subject Shares"; provided that any such
share shall cease to be a "Subject Share" from and after the time that such
share is transferred pursuant to Section 2 and ceases to be subject to the
Voting Documents (as defined below) in accordance with the terms of Section
2. Record Holder is the record owner of all of the Subject Shares.
X. Xxxxx, Xxxxx 0000-X Xxxxxxxxxxx Corp., a Delaware corporation
("Merger Sub"), and LCI are, simultaneously with the execution hereof,
entering into an Agreement and Plan of Merger dated as of March 8, 1998 (the
"Merger Agreement") providing for the merger of Merger Sub with and into LCI
(the "Merger"). Terms not otherwise defined in this Agreement have the
meanings stated in the Merger Agreement.
C. The Board of Directors of Qwest has approved an amendment to
the Amended and Restated Certificate of Incorporation of Qwest to increase
the number of authorized shares of Qwest Common Stock.
D. Shareholder, Record Holder and LCI desire to enter into this
Agreement to provide for, among other things, (1) the obligation of
Shareholder to cause Record Holder to vote the Subject Shares at the Qwest
Stockholders Meeting to approve the Share Issuance and the Qwest Charter
Amendment and (2) certain restrictions on (A) the sale or other transfer of
the record ownership or the beneficial ownership, or both, of the Subject
Shares by Shareholder and Record Holder and (B) the acquisition by
Shareholder or Record Holder of beneficial ownership of additional shares of
capital stock of Qwest from any Person other than Qwest, in each case until
the consummation of the Merger or the termination of the Merger Agreement.
This Agreement and all other agreements, instruments and other documents
executed and delivered by Shareholder and Record Holder in connection with
this Agreement are collectively referred to as the "Voting Documents".
E. Shareholder and Record Holder acknowledge that LCI is entering
into the Merger Agreement in reliance on the representations, warranties,
covenants and other agreements of Shareholder and Record Holder set forth in
this Agreement and would not enter into the Merger Agreement if Shareholder
and Record Holder did not enter into this Agreement.
AGREEMENT
The parties agree as follows:
Section 1. Covenants of Shareholder and Record Holder.
(a) Voting. Until the day following the termination of this
Agreement, subject to the receipt of proper notice and the absence of a
preliminary or permanent injunction or other final order by any United States
federal court or state court barring such action, Shareholder shall cause
Record Holder to do, and Record Holder shall do, the following:
(1) be present, in person or represented by proxy, at each
meeting (whether annual or special, and whether or not an adjourned
or postponed meeting) of the stockholders of Qwest, however called,
or in connection with any written consent of the stockholders of
Qwest, so that all Subject Shares then entitled to vote may be
counted for the purposes of determining the presence of a quorum at
such meetings; and
(2) at each such meeting held before the Effective Time and
with respect to each such written consent, vote (or cause to be
voted), or deliver a written consent (or cause a consent to be
delivered) covering, all the Subject Shares to approve the Share
Issuance and the Qwest Charter Amendment and any action required in
furtherance thereof.
(b) Stock Acquisitions. Until the day following the termination
of this Agreement, Shareholder shall not, and shall cause Record Holder and
his other affiliates not to, acquire, from any Person other than Qwest,
beneficial ownership of any additional shares of Qwest Common Stock;
provided, however, that Qwest may purchase shares of Qwest Common Stock to
the extent permitted by the Merger Agreement and subject to the terms
thereof.
(c) No Inconsistent Agreements. Until the day following the
termination of this Agreement, Shareholder and Record Holder, shall not enter
into any voting agreement or grant a proxy or power of attorney with respect
to the Subject Shares which is inconsistent with this Agreement.
(d) Review of Merger Agreement. Both Shareholder and Record
Holder acknowledge receipt and review of a copy of the Merger Agreement.
Section 2. Transfer of Subject Shares. During the term of
this Agreement, Shareholder agrees not to transfer record or beneficial
ownership of any shares of capital stock of Record Holder, and Shareholder
and Record Holder shall not transfer record ownership or beneficial
ownership, or both, of any Subject Shares except in each case to the extent
permitted in the following sentences. Shareholder may transfer record or
beneficial ownership, or both, of any shares of capital stock of Record
Holder to any Person that is wholly owned, directly or indirectly, by
Shareholder; provided that each such Person, and each Person that directly or
indirectly is the record or beneficial owner of the shares of capital stock
of such Person, shall then be a party to this Agreement or shall have
executed and delivered an agreement by which such Person agrees to be bound
by Sections 1, 2 and 4 of this Agreement with respect to such shares.
Shareholder and Record Holder may transfer record ownership or beneficial
ownership, or both, of any Subject Shares, and such shares shall cease to be
subject to the Voting Documents; provided, that (x) if, as a result of such
transfer, less than 51% of the outstanding shares of Qwest Common Stock would
be subject to the Voting Documents, then the Person to whom record ownership
or beneficial ownership, or both, of such shares shall be transferred shall
execute and deliver to LCI an agreement by which such transferee agrees that
such shares shall be Subject Shares that are subject to the Voting Documents
and agrees to be bound by Sections 1, 2 and 4 of this Agreement with respect
to such shares and (y) in any event, on the record date for the meeting of
the stockholders of Qwest at which the Share Issuance and the Qwest Charter
Amendment shall be presented for their approval or with respect to any
written consent in lieu thereof, the Subject Shares shall constitute a
majority of the outstanding shares of Qwest Common Stock. For the purposes
of this Agreement, the term "transfer" means a sale, an assignment, a grant,
a transfer, a pledge, the creation of a lien or other disposition of any
Subject Shares or any interest of any nature in any Subject Shares,
including, without limitation, the "beneficial ownership" of such Subject
Shares (as determined pursuant to Regulation 13D-G under the Exchange Act).
Section 3. Representations and Warranties of Shareholder.
Shareholder and Record Holder, jointly and severally, represent and warrant
to LCI as follows:
(a) Existence and Power. Record Holder (1) is a corporation duly
incorporated, validly existing and in good standing under the laws of the
State of Delaware and (2) has all requisite corporate power and authority to
execute and deliver each Voting Document to which it is or may become a
party.
(b) Authorization; Contravention. The execution and delivery by
Shareholder and Record Holder of each Voting Document and the performance by
it of its obligations under each Voting Document have, (1) in the case of
Record Holder, been duly authorized by all necessary corporate action and (2)
do not and will not conflict with or result in a Violation pursuant to, (A)
in the case of Record Holder, any provision of its certificate of
incorporation or bylaws, or (B) in the case of Shareholder and Record Holder,
any loan or credit agreement, note, mortgage, bond, indenture, lease, benefit
plan or other agreement, obligation, instrument, permit, concession,
franchise, license, judgment, order, decree, statute, law, ordinance, rule or
regulation applicable to Shareholder or Record Holder, as the case may be,
the Subject Shares or any of Shareholder's or Record Holder's other
properties or assets.
(c) Binding Effect. Each Voting Document constitutes, or when
executed and delivered by Shareholder and Record Holder will constitute, a
valid and binding obligation of Shareholder and Record Holder, respectively,
enforceable against Shareholder or Record Holder, as the case may be, in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium and similar laws relating
to or affecting creditors generally, by general equity principles
(regardless of whether such enforceability is considered in a proceeding in
equity or at law) or by an implied covenant of good faith and fair dealing.
(d) Ownership. Shareholder and Record Holder are the only
beneficial owners of the Subject Shares, free and clear of all liens, and
Record Holder is the sole record holder of the Subject Shares, free and clear
of liens, except in each case with respect to pledges or other liens that
Shareholder or Record Holder or both would be entitled to effect or create as
of the date of this Agreement pursuant to the third sentence of Section 2 and
in accordance with the terms thereof. As of the date of this Agreement,
Shareholder does not own beneficially or of record any equity securities of
Qwest other than the Subject Shares and Record Holder does not own
beneficially or of record any equity securities of Qwest other than the
Subject Shares and the Qwest Warrants. Shareholder is the sole record and
beneficial owner of all of the capital stock of Record Holder, free and clear
of all liens. Neither Shareholder nor Record Holder has appointed or granted
any proxy which is still effective with respect to Subject Shares.
(e) Litigation. There is no action, suit, investigation,
complaint or other proceeding pending against Shareholder or Record Holder
or, to the knowledge of Shareholder or Record Holder, threatened against
Shareholder or Record Holder or any other Person that restricts in any
material respect or prohibits (or, if successful, would restrict or prohibit)
the exercise by any party or beneficiary of its rights under any Voting
Document or the performance by any party of its obligations under any Voting
Document.
Section 4. Miscellaneous Provisions.
(a) Notices. All notices and other communications hereunder
shall be in writing and shall be deemed duly given (1) on the date of
delivery if delivered personally, or by telecopy or telefacsimile, upon
confirmation of receipt, (2) on the first Business Day following the date of
dispatch if delivered by a recognized next-day courier service, or (3) on the
tenth Business Day following the date of mailing if delivered by registered
or certified mail, return receipt requested, postage prepaid. All notices
hereunder shall be given the party at its address stated on the signature
pages of this Agreement or at any other address as the party may specify for
this purpose by notice to the other party.
(b) No Waivers; Remedies; Specific Performance.
(1) No failure or delay by LCI in exercising any right, power
or privilege under any Voting Document 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 the Voting Documents
shall be cumulative and not exclusive of any rights or remedies provided
by law.
(2) In view of the uniqueness of the agreements contained in
the Voting Documents and the transactions contemplated hereby and
thereby and the fact that LCI would not have an adequate remedy at law
for money damages in the event that any obligation under any Voting
Document is not performed in accordance with its terms, each of
Shareholder and Record Holder therefore agrees that LCI shall be
entitled to specific enforcement of the terms of each Voting Document in
addition to any other remedy to which LCI may be entitled, at law or in
equity.
(c) Amendments, Etc. No amendment, modification, termination, or
waiver of any provision of any Voting Document, and no consent to any
departure by any of Shareholder, Record Holder and LCI from any provision of
any Voting Document, shall be effective unless it shall be in writing and
signed and delivered by each of Shareholder, Record Holder and LCI, and then
it shall be effective only in the specific instance and for the specific
purpose for which it is given.
(d) Successors and Assigns; Third Party Beneficiaries.
(1) No party shall assign any of its rights or delegate any
of its obligations under any Voting Document. Any assignment or
delegation in contravention of this Section 4(d) shall be void ab initio
and shall not relieve the assigning or delegating party of any
obligation under any Voting Document.
(2) The provisions of each Voting Document shall be binding
upon and inure solely to the benefit of the parties hereto, the express
beneficiaries thereof (to the extent provided therein) and their
respective permitted heirs, executors, legal representatives, successors
and assigns, and no other person.
(e) Governing Law. Each Voting Document and all rights, remedies,
liabilities, powers and duties of the parties hereto and thereto, shall be
governed in accordance with the laws of the State of Delaware without regard
to principles of conflicts of laws.
(f) Severability of Provisions. If any term or other provision of
any Voting Document is invalid, illegal or incapable of being enforced by any
law or public policy, all other terms and provisions of such Voting Document
shall nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated hereby is not affected in
any manner materially adverse to any party. Upon such determination that any
term or other provision is invalid, illegal or incapable of being enforced,
the parties shall negotiate in good faith to modify such Voting Document so
as to effect the original intent of the parties as closely as possible in an
acceptable manner in order that the transactions contemplated hereby are
consummated as originally contemplated to the greatest extent possible.
(g) Headings and References. Article and section headings in any
Voting Document are included for the convenience of reference only and do not
constitute a part of the Voting Document for any other purpose. References
to parties, express beneficiaries, articles and sections in any Voting
Document are references to parties to or the express beneficiaries and
sections of the Voting Document, as the case may be, unless the context shall
require otherwise. Any of the terms defined in this Agreement may, unless
the context otherwise requires, be used in the singular or the plural,
depending on the reference. The use in this Agreement of the word "include"
or "including," when following any general statement, term or matter, shall
not be construed to limit such statement, term or matter to the specific
items or matters set forth immediately following such word or to similar
items or matters, whether or not nonlimiting language (such as "without
limitation" or "but not limited to" or words of similar import) is used with
reference thereto, but rather shall be deemed to refer to all other items or
matters that fall within the broadest possible scope of such general
statement, term or matter.
(h) Entire Agreement. The Voting Documents embody the entire
agreement and understanding of Shareholder, Record Holder and LCI, and
supersede all prior agreements or understandings, with respect to the
subject matters of the Voting Documents.
(i) Survival. Except as otherwise specifically provided in any
Voting Document, each representation, warranty or covenant of a party
contained in the Voting Document shall remain in full force and effect,
notwithstanding any investigation or notice to the contrary or any waiver by
any other party or beneficiary of a related condition precedent to the
performance by the other party or beneficiary of an obligation under the
Voting Document.
(j) Submission to Jurisdiction; Waivers. Each of Shareholder,
Record Holder and LCI irrevocably agrees that any legal action or proceeding
with respect to any Voting Document or for recognition and enforcement of any
judgment in respect hereof or thereof brought by the other party hereto or
its successors or assigns may be brought and determined in the Chancery or
other Courts of the State of Delaware, and each of Shareholder, Record Holder
and LCI hereby irrevocably submits with regard to any such action or
proceeding for itself and in respect to its property, generally and
unconditionally, to the nonexclusive jurisdiction of the aforesaid courts.
Each of Shareholder, Record Holder and LCI hereby irrevocably waives, and
agrees not to assert, by way of motion, as a defense, counterclaim or
otherwise, in any action or proceeding with respect to any Voting Document,
(a) any claim that it is not personally subject to the jurisdiction of the
above-named courts for any reason other than the failure to serve process in
accordance with this Section 4(j), (b) that it or its property is exempt or
immune from jurisdiction of any such court or from any legal process
commenced in such courts (whether through service of notice, attachment prior
to judgment, attachment in aid of execution of judgment, execution of
judgment or otherwise), and (c) to the fullest extent permitted by applicable
law, that (i) the suit, action or proceeding in any such court is brought in
an inconvenient forum, (ii) the venue of such suit, action or proceeding is
improper and (iii) such Voting Document, or the subject matter hereof or
thereof, may not be enforced in or by such courts. This Agreement does not
involve less than $100,000, and the parties intend that 6 Del.C. Section 2708
shall apply to this Agreement.
(k) Waiver of Jury Trial. Each party, and each express
beneficiary of a Voting Document as a condition of its right to enforce or
defend any right under or in connection with such Voting Document, waives any
right to a trial by jury in any Action to enforce or defend any right under
any Voting Document and agrees that any Action shall be tried before a court
and not before a jury.
(l) Termination. LCI may terminate this Agreement at any time
upon written notice to each of Shareholder and Record Holder. Unless
terminated earlier by LCI or by mutual agreement of the parties, this
Agreement shall terminate upon the first to occur of (i) consummation of the
Merger and (ii) the termination of Merger Agreement pursuant to Section 7.1
thereof.
(m) Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if
all signatures were on the same instrument.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first written above.
XXXXXX X. XXXXXXXX
/s/ Xxxxxx X. Xxxxxxxx
-------------------------
Address: 0000 Xxxxx Xxxxx
000 Xxxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
ANSCHUTZ COMPANY
By: /s/ Xxxxxx X. Xxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
Address: 0000 Xxxxx Xxxxx
000 Xxxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
LCI INTERNATIONAL, INC.
By: /s/ H. Xxxxx Xxxxxxxx
-------------------------
Name: H. Xxxxx Xxxxxxxx
Title: Chairman of the Board and
Chief Executive Officer
Address: 0000 Xxxxxxxxxx Xxxxx
Xxxxx 000
XxXxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
