Exhibit 1
AMENDMENT NO. 3 TO RIGHTS AGREEMENT
This Amendment No. 3 to Rights Agreement (this "Amendment") is entered
into as of June 10, 2002 by and between Broadwing Inc., an Ohio corporation (the
"Company"), and The Fifth Third Bank, a Delaware corporation (the "Rights
Agent"), amending the Rights Agreement, dated as of April 29, 1997, as amended,
between the Company and the Rights Agent (the "Rights Agreement").
WHEREAS, the Company has duly authorized the execution and delivery of
this Amendment, and all things necessary to make this Amendment a valid
agreement of the Company have been done; and
WHEREAS, this Amendment is entered into pursuant to Section 27 of the
Rights Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby agree as follows:
1. DEFINED TERMS. Terms defined in the Rights Agreement and used and
not otherwise defined herein shall have the meanings given to them in the Rights
Agreement.
2. AMENDMENTS TO THE RIGHTS AGREEMENT. Section 1 of the Rights
Agreement is hereby amended as follows:
(1) In Section 1(a) defining an "Acquiring Person," the following
sentence shall be added after the first sentence and before the second sentence
of such Section 1(a):
Notwithstanding the foregoing, any investment adviser under the
Investment Advisers Act of 1940 shall not be deemed to be or to have become an
Acquiring Person as a result of it and/or its Affiliates (or any of their
investment funds or clients for whom the investment adviser and/or its
Affiliates invest on a discretionary basis ("Discretionary Clients")) becoming
the Beneficial Owner of 15% or more of the Common Shares of the Corporation then
outstanding, provided, that the investment adviser and/or its Affiliates (and/or
any of their investment funds or Discretionary Clients) (i) have purchased the
Common Shares of the Corporation for itself or themselves, for its/their
investment funds or for its/their Discretionary Clients for investment purposes,
and (ii) have acted without any intention of changing or influencing control of
the Corporation, and, provided further, that (A) no investment adviser and/or
its Affiliates (including any of its/their investment funds or any group of
its/their investment funds or any Discretionary Clients) that are commonly
managed or acting in concert have become the Beneficial Owner of 15% or more of
the Common Shares of the Corporation then outstanding and (B) no investment
adviser and/or its Affiliates (and/or any of its/their investment funds or
Discretionary Clients) collectively have become the Beneficial Owner of 20% or
more of the Common Shares of the Corporation then outstanding; and, if either of
the foregoing percentage thresholds is exceeded, the investment adviser shall be
an Acquiring Person hereunder as of the date such percentage threshold is
exceeded, unless the Board of
Directors determines otherwise pursuant to and in accordance with the proviso
contained in the first sentence of this Section 1(a).
(2) Section 1 of the Rights Agreement is further amended to add the
following subsection at the end thereof:
(ii) Notwithstanding anything in this Agreement to the contrary,
neither a Distribution Date nor a Shares Acquisition Date shall be deemed to
have occurred nor has any Person become an Acquiring Person as a result of
purchases of Common Shares by any investment adviser under the Investment
Advisers Act of 1940 and/or its Affiliates prior to or on the date hereof
exceeding the percentage threshold set forth in the first sentence of Section
1(a) hereof but not exceeding the percentage thresholds set forth in the second
sentence of Section 1(a) hereof.
3. EFFECTIVENESS. This Amendment shall be deemed effective as of June
10, 2002, as if executed on such date. Except as amended hereby, the Rights
Agreement shall remain in full force and effect and shall be otherwise
unaffected hereby.
4. MISCELLANEOUS. This Amendment shall be deemed to be a contract made
under the laws of the State of Ohio and for all purposes shall be governed by
and construed in accordance with the laws of such State. This Amendment may be
executed in any number of counterparts, each of such counterparts shall for all
purposes be deemed an original and all such counterparts shall together
constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and attested, all as of the day and year first above written.
Attest: BROADWING INC.
By: By:
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Name: Xxxxxx X. Xxxxxxxx Name: Xxxxxxx X. Xxxxx
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General Counsel and
Title: Assistant Corporate Secretary Title: Corporate Secretary
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Attest: THE FIFTH THIRD BANK
By: By:
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Name: Xxxxx Xxxxx Name: Xxxxxxxx X. Xxxxxxxx
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Title: Relationship Manager Title: Assistant Vice President
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