REGISTRATION RIGHTS AGREEMENT
Dated as of December 14, 1998
Between
Qwest Communications International Inc.
and
Microsoft Corporation
-i-
TABLE OF CONTENTS
Page
1. Demand Registration.................................................1
2. Obligations of the Company..........................................1
5. Obligations of the Purchaser........................................6
4. Termination Provisions..............................................7
5. Expenses............................................................7
6. Indemnification and Contribution....................................7
(a) Indemnification by the Company.............................7
(b) Indemnification by the Purchaser...........................8
(c) Notice of Claims...........................................8
7. Notices............................................................10
8. Governing Law......................................................10
9. Entire Agreement; Amendments.......................................11
10. Successors and Assigns.............................................11
11. Severability.......................................................11
12. Termination of Company Obligation..................................11
13. Counterparts.......................................................11
14. No Transfer or Assignment of Registration Rights...................11
15. Interpretation.....................................................11
16. Non-Recourse.......................................................11
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is entered into
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").
WHEREAS, the Purchaser intends to purchase shares of Common Stock, par
value, $0.01 per share (the "Common Stock") of the Company pursuant to the terms
and conditions of a Stock Purchase Agreement dated as of December 14, 1998 (the
"Purchase Agreement"); and
WHEREAS, the Purchase Agreement requires that the Company enter into
this Agreement with the Purchaser;
NOW, THEREFORE, in consideration of the foregoing, the parties to this
Agreement hereby agree as follows:
1. Demand Registration. If, at any time ninety days after the date of
this Agreement the Purchaser shall request the Company in writing to register
under the Securities Act of 1933, as amended (the "Securities Act"), any or all
of the shares of the Common Stock acquired by Purchaser pursuant to the Purchase
Agreement (the shares of such Common Stock so registrable are referred to as the
"Subject Stock"), the Company shall use its reasonable best efforts to cause the
Subject Stock to be registered as soon as reasonably practicable so as to permit
the sale thereof, and in connection therewith shall prepare and file a Form S-3
registration statement with the Securities and Exchange Commission (the "SEC")
under the Securities Act to effect such registration; provided, however, that
the Purchaser shall be entitled to one such request, and such request shall (i)
express the intention of the Purchaser to offer or cause the offering of the
Subject Stock for distribution, (ii) describe the nature or method of the
proposed offer and sale thereof, and (iii) contain the undertaking of the
Purchaser to provide all such information and materials and take all such action
as may be required in order to permit the Company to comply with all applicable
requirements of the SEC and to obtain any desired acceleration of the effective
date of such registration statement. In the event that Form S-3 is not then
available, the registration statement shall be filed on the successor to Form
S-3 or if there is no clear successor form, or if the Company is not eligible to
use Form S-3 or a successor form, then the registration statement shall be filed
using such form as may be available for the proposed distribution by the
Purchaser with which it is least burdensome for the Company to comply. The
Company agrees not to grant to any other person registration rights pursuant to
which such person would have the right to register shares of Common Stock on a
registration statement filed by the Company pursuant to the exercise of
Purchaser's rights under this Agreement.
2. Obligations of the Company.
(a) Whenever the Company is required by the provisions of this
Agreement to use its reasonable best efforts to effect the registration of any
Subject Stock under the Securities Act, the Company shall (i) prepare and, as
soon as reasonably practicable, file with the SEC a registration statement with
respect to the shares of Subject Stock, and shall use its reasonable best
efforts to cause such registration statement to become effective and to remain
effective until the earlier of (A) the sale of the shares of Subject Stock so
registered, (B) the withdrawal at the request of Purchaser of such shares from
such registration statement or (C) six months after the registration statement
becomes effective but in no event shall such effective period specified in
sub-clause (C) end without Purchaser's written consent (x) sooner than two years
and six months from the date of this Agreement nor (y) later than three years
from the date of this Agreement; (ii) subject to paragraph (b) below, prepare
and file with the SEC such amendments and supplements to such registration
statement and the prospectus used in connection therewith as may be reasonably
necessary to make and to keep such registration statement effective and to
comply with the provisions of the Securities Act with respect to the sale or
other disposition of all securities proposed to be registered pursuant to such
registration statement until the earlier of (A), (B) or (C) in (i) above; and
(iii) take all such other action reasonably necessary to permit the shares of
Subject Stock held by the Purchaser to be registered and disposed of in
accordance with the method of disposition described herein.
(b) Notwithstanding anything in this Agreement to the
contrary, by delivery of written notice to the Purchaser (a "Suspension
Notice"), stating which one or more of the following limitations shall apply to
the Purchaser, the Company may (1) postpone effecting the registration under
this Agreement or (2) require the Purchaser to refrain from disposing of Subject
Stock under the registration, in each case for a reasonable time specified in
the notice but not exceeding an aggregate of 90 days in any one year period
(which period may not be extended or renewed). The Company may postpone
effecting a registration or require the Purchaser to refrain from disposing of
Subject Stock under the registration, 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 disposition by such person of Subject Stock 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 with respect to any of the limitations on
dispositions specified in clause (2) for a period of time in excess of 90 days
in any one year period.
(c) In connection with any registration statement, the
following provisions shall apply:
(1) The Company shall furnish to the Purchaser, prior to the
filing thereof with the SEC, a copy of any registration statement, and
each amendment thereof and each amendment or supplement, if any, to the
prospectus included therein and shall use its reasonable efforts to
reflect in each such document, when so filed with the SEC, such
comments as the Purchaser and its counsel reasonably may propose.
(2) The Company shall take such action as may be necessary so
that: (i) any registration statement and any amendment thereto and any
prospectus forming part thereof and any amendment or supplement thereto
(and each report or other document incorporated therein by reference)
complies in all material respects with the Securities Act and the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and
the respective rules and regulations thereunder, and (ii) any
registration statement and any amendment thereto does not, when it
becomes effective, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading.
(3) (A) The Company shall advise the Purchaser and, if
requested by the Purchaser, confirm such advice in writing:
(i) when a registration statement and any amendment
thereto has been filed with the SEC and when the registration
statement or any post-effective amendment thereto has become
effective; and
(ii) of any request by the SEC for amendments or
supplements to the registration statement or the prospectus
included therein or for additional information.
(B) The Company shall advise the Purchaser and, if
requested by Purchaser, confirm such advice in writing of:
(i) the issuance by the SEC of any stop order
suspending effectiveness of the registration statement or the
initiation of any proceedings for that purpose; and
(ii) the receipt by the Company of any notification
with respect to the suspension of the qualification of the
securities included therein for sale in any jurisdiction or
the initiation of any proceeding for such purpose.
(4) The Company shall notify the Purchaser at any time when a
Prospectus with respect to the Subject Stock 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 Registration
Statement or 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 2(b) and 4, the Company shall use
its reasonable best efforts to prepare and file with the SEC an
amendment or supplement to the Registration Statement or the Prospectus
so that, as thereafter delivered to the purchasers of the Subject
Stock, 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. As promptly as practicable after the issuance by
the SEC of an order suspending the effectiveness of the Registration
Statement, but subject to Sections 2(b) and 4, the Company shall use
its best efforts to obtain the withdrawal of such order at the earliest
possible moment.
(5) The Company shall furnish to the Purchaser with respect to
the registration statement relating to the Subject Stock, without
charge, such number of copies of such registration statement and any
post-effective amendment thereto, including financial statements and
schedules, and all reports, other documents and exhibits (including
those incorporated by reference) as the Purchaser shall reasonably
request.
(6) The Company shall furnish to the Purchaser such number of
copies of any prospectus (including any preliminary prospectus and any
amended or supplemented prospectus) relating to the Subject Stock as
the Purchaser may reasonably request in order to effect the offering
and sale of the shares of Subject Stock to be offered and sold, but
only while the Company shall be required under the provisions hereof to
cause the registration statement to remain current, and the Company
consents (except during the continuance of any event described in
Sections 2(b) or 4 to the use of the Prospectus or any amendment or
supplement thereto by the Purchaser in connection with the offering and
sale of the Subject Stock covered by the Prospectus or any amendment or
supplement thereto.
(7) Prior to any offering of Subject Stock pursuant to any
registration statement, the Company shall use its reasonable best
efforts to register or qualify the shares of Subject Stock covered by
such registration statement under the securities or blue sky laws of
such states as the Purchaser shall reasonably request, maintain any
such registration or qualification current until the earlier of (i) the
sale of the shares of Subject Stock so registered, (ii) termination
pursuant to Section 4 or (iii) the withdrawal of Subject Stock from the
registration statement, and do any and all other acts and things either
reasonably necessary or advisable to enable the Purchaser to consummate
the public sale or other disposition of the shares of Subject Stock in
domestic jurisdictions where the Purchaser desires to effect such sales
or other disposition; provided, however, that the Company shall not be
required to take any action that would subject it to the general
jurisdiction of the courts of any jurisdiction in which it is not so
subject or to qualify as a foreign corporation in any jurisdiction
where the Company is not so qualified.
(8) In connection with any offering of shares of Subject Stock
registered pursuant to this Agreement, the Company shall (x) furnish
the Purchaser, at the Company's expense, on a timely basis with
certificates free of any restrictive legends representing ownership of
the shares of Subject Stock being sold in such denominations and
registered in such names as the Purchaser shall request and (y)
instruct the transfer agent and registrar of the Subject Stock to
release any stop transfer orders with respect to the shares of Subject
Stock.
(9) The Company shall make generally available to its security
holders or otherwise provide in accordance with Section 11(a) of the
Securities Act as soon as reasonably practicable after the effective
date of the registration statement an earnings statement satisfying the
provisions of Section 11(a) of the Securities Act.
(10) The Company shall, if requested, promptly include or
incorporate in a prospectus supplement or post-effective amendment to a
registration statement, such information as the Purchaser or any
underwriters reasonably request to be included therein in accordance
with Section 3(b) and to which the Company does not reasonably object
and shall make all required filings of such prospectus supplement or
post-effective amendment as soon as practicable after they are notified
of the matters to be included or incorporated in such prospectus
supplement or post-effective amendment.
(11) In the event Purchaser proposes to conduct an
underwritten public offering, then the Company shall: (i) enter into an
underwriting agreement containing representations, warranties,
indemnities and agreements then customarily included by an issuer in
underwriting agreements with respect to secondary underwritten
distributions, and in connection therewith cause the same to contain
indemnification provisions and procedures substantially identical to
those set forth in Section 6 (or such other provisions and procedures
acceptable to the managing underwriters, if any) with respect to all
parties to be indemnified pursuant to Section 6; (ii) make reasonably
available for inspection by Purchaser and its counsel, any underwriter
participating in any distribution pursuant to such registration
statement, and any attorney, accountant or other agent retained by
Purchaser or any such underwriter, all relevant financial and other
records, pertinent corporate documents and properties of the Company
and its subsidiaries; and cause the Company's officers, directors and
employees to make reasonably available for inspection all relevant
information reasonably requested by Purchaser or any such underwriter,
attorney, accountant or agent in connection with any such registration
statement, in each case, as is customary for similar due diligence
examinations; provided, however, that any records or documents that the
Company determines, in good faith, after consultation with counsel to
the Company and counsel to the Purchaser, 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 (A) the disclosure of such
records or documents is necessary to avoid or correct a misstatement or
omission in the registration statement or (B) the release of such
records or documents is ordered pursuant to a subpoena or other order
from a court of competent jurisdiction, (the Purchaser 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); (iii) obtain opinions of counsel to the Company
and updates thereof (which counsel and opinions (in form, scope and
substance) shall be reasonably satisfactory to the managing
underwriters, if any) addressed to Purchaser and the underwriters, if
any, covering such matters as are customarily covered in opinions
requested in underwritten offerings (it being agreed that the matters
to be covered by such opinion or written statement by such counsel
delivered in connection with such opinions shall include a negative
assurance statement as to the absence of material misstatements or
omissions of material facts required to be stated in the registration
statement in order to make the statements therein not misleading in
such form as such counsel customarily provides in underwritten
offerings); (iv) obtain "cold comfort" letters and updates thereof from
the independent public accountants of the Company (and, if necessary,
any other independent public accountants of any subsidiary of the
Company or of any business acquired by the Company for which financial
statements and financial data are, or are required to be, included in
the Registration statement), addressed to Purchaser and the
underwriters, if any, in customary form and covering matters of the
type customarily covered in "cold comfort" letters in connection with
primary underwritten offerings; (v) deliver such documents and
certificates as may be reasonably requested by Purchaser and the
managing underwriters. The foregoing actions set forth in clauses
(iii), (iv), and (v) of this Section 2(c)(11) shall be performed at
each closing under any underwritten offering to the extent required
thereunder, but, in any event, need not be performed by the Company
more than twice. The managing underwriter for the offering and any
additional investment bankers and managers to be used in connection
with the offering shall be selected by the Company subject in each case
to the consent of the Purchaser which consent shall not be unreasonably
withheld, conditioned or delayed.
(12) The Company will use its best efforts to cause the
Subject Stock to be admitted for quotation on the Nasdaq National
Market or other stock exchange or trading system on which the Common
Stock primarily trades on or prior to the effective date of any
registration statement hereunder.
(13) Any obligation of the Company under this Agreement,
including any obligation to use its "best efforts," "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 2(b) or 4,
respectively) that would result in the Company issuing a Suspension
Notice or Termination Notice pursuant to Section 2(b) or 4,
respectively.
(d) With a view to making available the benefits of certain
rules and regulations of the SEC which may at any time permit the sale of the
Subject Stock to the public without registration, the Company agrees to:
(1) make all filings with the SEC required by Rule 144(c) (or
any similar provision then in force) under the Securities Act to permit the sale
of the Subject Stock by any holder thereof to satisfy the conditions of Rule 144
(or any similar provision then in force).
(2) during the term of this Agreement, to furnish to the
Purchaser upon request (i) a written statement by the Company as to its
compliance with the reporting requirements of Rule 144, (ii) a copy of the most
recent annual or quarterly report of the Company, and (iii) such other reports
and documents of the Company as the Purchaser may reasonably request in availing
itself of any rule or regulation of the SEC allowing the Purchaser to sell any
such securities without registration.
3. Obligations of the Purchaser.
(a) The Purchaser shall, (i) offer to sell or otherwise
distribute the Subject Stock in reliance upon a registration contemplated by
this Agreement only after a registration statement shall have been filed with
the SEC, (ii) sell or otherwise distribute the Subject Stock in reliance upon
such registration only if a registration statement is then effective under the
Securities Act, (iii) not sell or otherwise distribute any of the Subject Stock
during any period specified in a Suspension Notice delivered to the Purchaser
pursuant to Section 2(b) or after receiving a Termination Notice pursuant to
Section 4 (until the Purchaser shall have received written notice from the
Company that the registration is again effective), (iv) distribute the Subject
Stock only in accordance with the manner of distribution contemplated by the
prospectus and (v) report to the Company distributions made by the Purchaser of
shares of the Subject Stock pursuant to the prospectus. The Purchaser, by
participating in a registration pursuant to this Agreement, acknowledges that
the remedies of the Company at law for failure by the Purchaser to comply with
the undertaking contained in this paragraph (a) 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 Purchaser in this paragraph (a) may be specifically enforced.
(b) The Purchaser shall furnish, and shall cause each
underwriter of the Subject Stock 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 Purchaser or the underwriter, the contemplated
distribution of the Subject Stock and the other information regarding the
proposed distribution by the Purchaser 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 Subject Stock are contemplated to be distributed. The information furnished
by the Purchaser or any underwriter shall be certified by the Purchaser or the
underwriter, as the case may be, and shall be stated to be specifically for use
in connection with the registration.
(c) The obligations of the Company to maintain a registration
statement are conditioned upon (i) the Purchaser or any underwriter of the
Subject Stock furnishing to the Company the information in respect of the
distribution of the Subject Stock that may be required under this Agreement to
be furnished by the Purchaser or the underwriter to the Company and (ii) if such
registration involves an underwritten offering, the Purchaser entering into an
underwriting agreement in customary form with the underwriter or underwriters
selected for such underwritten offering.
(d) If the Purchaser intends to distribute the Subject Stock
by means of an underwritten offering, the Purchaser 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.
4. Termination Provisions. Notwithstanding anything in this Agreement
to the contrary, if, in the opinion of counsel for the Company (which opinion
shall be reasonably acceptable to counsel for the Purchaser), there shall have
arisen any legal impediment to the offering of the Subject Stock 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 to the Purchaser (a "Termination Notice") terminate the
effectiveness of the related Registration Statement; provided that, promptly
after those matters shall be resolved to the satisfaction of counsel for the
Company, then, the Company shall cause the registration of the Subject Stock
formerly covered by the Registration Statement that were removed from
registration by the action of the Company.
5. Expenses. The Company shall pay all fees and expenses incurred in
connection with the performance of its obligations under Sections 1 and 2
hereof, including, without limitation, all SEC and blue sky registration and
filing fees, printing expenses, transfer agents' and registrars' fees, and the
reasonable fees and disbursements of the Company's outside counsel and
independent accountants incurred in connection with the preparation, filing and
amendment of any registration statement authorized by this Agreement (but
excluding underwriters' and brokers' discounts and commissions).
6. Indemnification and Contribution.
(a) Indemnification by the Company. In the case of any
offering registered pursuant to this Agreement, the Company agrees to indemnify
and hold the Purchaser, each underwriter (if any) of shares of Subject Stock
under such registration statements and each person who controls any of the
foregoing within the meaning of Section 15 of the Securities Act harmless
against any and all losses, claims, damages or liabilities to which they or any
of them may become subject under the Securities Act or any other statute or
common law or otherwise, and to reimburse them, from time to time upon request,
for any legal or other expenses reasonably incurred by them in connection with
investigating any claims and defending any actions, insofar as any such losses,
claims, damages, liabilities or actions shall arise out of or shall be based
upon (i) any untrue statement or alleged untrue statement of a material fact
contained in the registration statement (or any amendment thereto) relating to
the sale of such shares of Subject Stock, including all documents incorporated
therein by reference, or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or (ii) any untrue statement or alleged untrue statement
of a material fact contained in any preliminary prospectus (as amended or
supplemented if the Company shall have filed with the SEC any amendment thereof
or supplement thereto), if used prior to the effective date of such registration
statement or contained in the prospectus (as amended or supplemented if the
Company shall have filed with the SEC any amendment thereof or supplement
thereto), if used within the period during which the Company shall be required
to keep the registration statement to which such prospectus relates current
pursuant to the terms of this Agreement, or the omission or alleged omission to
state therein (if so used) a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the indemnification agreement
contained in this Section 6(a) shall not apply to such losses, claims, damages,
liabilities or actions which shall arise out of or shall be based upon any such
untrue statement or alleged untrue statement, or any such omission or alleged
omission, if such statement or omission shall have been (x) made in reliance
upon and in conformity with information furnished in writing to the Company by
the Purchaser or any such underwriter specifically for use in connection with
the preparation of the registration statement or any preliminary prospectus or
prospectus contained in the registration statement or any such amendment thereof
or supplement thereto, or (y) made in any preliminary prospectus, and the
prospectus shall have corrected such statement or omission and a copy of such
prospectus shall have been delivered to the Purchaser or any such underwriter
prior to the time such prospectus is required to be delivered by the Purchaser
or the underwriter under applicable law.
(b) Indemnification by the Purchaser. In the case of each
offering registered pursuant to this Agreement, the Purchaser agrees, in the
same manner and to the same extent as set forth in Section 6(a) of this
Agreement to indemnify and hold harmless the Company and each person, if any,
who controls the Company within the meaning of Section 15 of the Securities Act,
its directors and those officers of the Company who shall have signed any such
registration statement with respect to any statement in or omission from such
registration statement or any preliminary prospectus (as amended or as
supplemented, if amended or supplemented as aforesaid) or prospectus contained
in such registration statement (as amended or as supplemented, if amended or
supplemented as aforesaid), if such statement or omission shall have been made
in reliance upon and in conformity with information furnished in writing to the
Company by the Purchaser specifically for use in connection with the preparation
of such registration statement or any preliminary prospectus or prospectus
contained in such registration statement or any such amendment thereof or
supplement thereto.
(c) Notice of Claims. Each party indemnified under Section
6(a) or Section 6(b) of this Agreement shall, promptly after receipt of notice
of the commencement of any action against such indemnified party in respect of
which indemnity may be sought, notify the indemnifying party in writing of the
commencement thereof, enclosing a copy of all papers served on such indemnified
party. The omission of any indemnified party so to notify an indemnifying party
of any such action shall not relieve the indemnifying party from any liability
in respect of such action which it may have to such indemnified party on account
of the indemnity agreement contained in Section 6(a) or Section 6(b) of this
Agreement, unless the indemnifying party was prejudiced by such omission, and in
no event shall relieve the indemnifying party from any other liability which it
may have to such indemnified party. In case any such action shall be brought
against any indemnified party and it shall notify an indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party; provided, that if any indemnified party
or parties reasonably determine that there may be legal defenses available to
such indemnified party that are different from or in addition to those available
to such indemnifying party or that representation of such indemnifying party and
any indemnified party by the same counsel would present a conflict of interest,
then such indemnifying party shall not be entitled to assume such defense. If an
indemnifying party is not entitled to assume the defense of such action as a
result of the proviso to the preceding sentence, counsel for such indemnifying
party shall be entitled to conduct the defense of such indemnifying party and
counsel for the indemnified party shall be entitled to conduct the defense of
such indemnified party or parties. If an indemnifying party assumes the defense
of an action in accordance with and as permitted by the provisions of this
paragraph, such indemnifying party shall not be liable to such indemnified party
under Section 6(a) or Section 6(b) of this Agreement for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation. In no event shall
the indemnifying party be liable for the fees and expenses of more than one
counsel (in addition to local counsel) separate from its own counsel for all
indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances. 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 persons from and against any loss or
liability by reason of the settlement or judgment.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnity provided for in this Section 6 is for any
reason held to be unavailable to the indemnified parties although applicable in
accordance with its terms, the Company and Purchaser shall contribute to the
aggregate losses, liabilities, claims, damages and expenses of the nature
contemplated by said indemnity incurred by the Company and Purchaser, as
incurred; provided that no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person that was not guilty of such fraudulent
misrepresentation. As between the Company, on the one hand, and Purchaser, on
the other hand, such parties shall contribute to such aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by such
indemnity agreement in such proportion as shall be appropriate to reflect the
relative fault of the Company, on the one hand, and the Purchaser, on the other
hand, with respect to the statements or omissions which resulted in such loss,
liability, claim, damage or expense, or action in respect thereof, as well as
any other relevant equitable considerations. The relative fault of the Company,
on the one hand, and of the Purchaser, on the other hand, 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 Company, on the one hand, or by or on
behalf of the Purchaser, on the other hand, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Purchaser agree that it would not be
just and equitable if contribution pursuant to this Section 6 were to be
determined by pro rata allocation or by any other method of allocation that does
not take into account the relevant equitable considerations. For purposes of
this Section 6(d), each person who controls the Company or the Purchaser within
the meaning of Section 15 of the Securities Act shall have the same rights to
contribution as Purchaser or the Company, as the case may be. No party shall be
liable for contribution with respect to any action, suit, proceeding or claim
settled without its written consent.
(e) The Company may require, as a condition to entering into
any underwriting agreement with respect to the registration of Subject Stock,
that the Company shall have received an undertaking reasonably satisfactory to
it from each underwriter named in any such underwriting agreement, severally and
not jointly, to comply with the provisions of paragraphs (a) through (d) of this
Section 6.
(f) The obligations of the Company and Purchaser under this
Section 6 shall survive the completion of any offering of Subject Stock in a
registration statement.
7. Notices. Any notice or other communication given under this
Agreement shall be sufficient if in writing and sent by registered or certified
mail, return receipt requested, postage prepaid, to a party at its address set
forth below (or at such other address as shall be designated for such purpose by
such party in a written notice to the other party hereto):
(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
Attn: 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
Xxx Xxxxxxxxx Xxx
Xxxxxxxx 0
Xxxxx Xxxxxx 0000
Xxxxxxx, XX 00000-0000
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
Facsimile Number: (000) 000-0000
All such notices and communications shall be effective when received by the
addressee.
8. 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.
9. Entire Agreement; Amendments. This Agreement constitutes the full
and entire understanding and agreement between the parties with regard to the
subject matter hereof and supersedes 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.
10. 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.
11. Severability. If any term, provision, covenant or restriction of
this 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.
12. Termination of Company Obligation. All registration rights provided
hereunder shall terminate upon the earlier to occur of the third anniversary of
the date of this Agreement.
13. 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 - Registration Rights 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.
14. No Transfer or Assignment of Registration Rights. The registration
rights set forth in this Agreement shall not be transferable or assignable by
the Purchaser, except to (i) any person or group approved in writing by the
Company; or (ii) a corporation of which the Purchaser owns more than 50% of the
voting power entitled to be cast in the election of directors; provided,
however, that each transferee agrees in writing to be subject to all the terms
and conditions of this Agreement and the Purchase Agreement.
15. Interpretation. The words "include," "includes," and "including"
when used therein shall be deemed in each case to be followed by the words
"without limitation." The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
16. 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 the Company or the stockholders, directors, officers, employees, agents and
affiliates of the Company or such controlling persons, whether by the
enforcement of any assessment or by any legal or equitable proceeding, or by
virtue of any law, rule, regulation, order or decree, 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
the Company 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 16 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.
[The balance of this page intentionally left blank.]
SIGNATURE PAGE--REGISTRATION RIGHTS 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.
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
MICROSOFT CORPORATION,
a Washington corporation
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Vice President and Chief Financial
Officer
