REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made as of
April 19, 1999, by and between QWEST COMMUNICATIONS INTERNATIONAL INC., a
Delaware corporation (the "Company") and BELLSOUTH ENTERPRISES, INC., a Georgia
corporation (the "Stockholder").
RECITALS
A. Pursuant to the terms of that certain Common Stock Purchase
Agreement dated as of even date herewith by and between the Stockholder and the
Company (the "Company Common Stock Purchase Agreement") and that certain Common
Stock Purchase Agreement dated as of even date herewith by and between the
Stockholder and Anschutz Company, a Delaware corporation (the "Anschutz Common
Stock Purchase Agreement" and together with the Company Common Stock Purchase
Agreement, the "Common Stock Purchase Agreements"), the Company and Anschutz
Company are selling to the Stockholder, and the Stockholder is purchasing from
the Company and Anschutz Company, an aggregate of 37,000,000 shares of the
Company's Common Stock, $.01 par value per share (the "Registrable Shares").
B. The Company and the Stockholder desire to enter into this Agreement
to provide for, among other things, the registration under the Securities Act of
1933, as amended (the "Securities Act"), of the disposition of the Registrable
Shares.
AGREEMENT
The parties agree as follows:
1. Demand Registration Rights.
(a) If at any time after the Sale Restriction Termination Date (as defined in
the Common Stock Purchase Agreements) (or the earlier termination of the
transfer restrictions as set forth in Section 7.4 of the Company Common Stock
Purchase Agreement) and prior to the seventh anniversary of the date of this
Agreement (such date, the "Termination Date"), on one or more occasions when the
Company shall have received the written request of the Stockholder or holders of
at least 2,500,000 Registrable Shares in the aggregate (as such number of shares
may be adjusted in the event of any change in the capital stock of the Company
by reason of stock dividends, split-ups, reverse split-ups, mergers,
recapitalizations, subdivisions, conversions, exchanges of shares or the like)
that have been acquired directly or indirectly from the Stockholder and to which
rights under this Section 1 shall have been assigned pursuant to Section 14(a)
(each such person, when requesting registration under this Section 1 or under
Section 2 and thereafter in connection with any such registration, being
hereinafter referred to as a "Registering Stockholder"), the Company shall give
written notice of the receipt of such request to each potential Registering
Stockholder and each other person known by the Company to have rights with
respect to the registration under the Securities Act of the disposition of
securities of the Company. The Company shall use reasonable best efforts as
promptly as practicable to include in a Registration Statement the Registrable
Shares owned by the
Registering Stockholders (all such Registrable Shares collectively, the
"Transaction Registrable Shares") that in each case shall have been duly
specified by such Registering Stockholders by written notice received by the
Company not later than 20 Business Days after the Company shall have given
written notice to the Registering Stockholders pursuant to this Section 1(a).
(b) If the Registering Stockholders initiating a request for registration of
Registrable Shares pursuant to Section 1(a) shall state in such written notice
that they intend to distribute the Transaction Registrable Shares covered by
their request by means of an underwritten offering, the Company shall include
such information in the written notice delivered by the Company pursuant to
Section 1(a). The Company shall select the managing underwriter for the offering
and any additional investment bankers and managers to be used in connection with
the offering, in each case with the consent of the Registering Stockholders
holding a majority of the Transaction Registrable Shares, which consent shall
not be unreasonably withheld, conditioned or delayed.
(c) Notwithstanding anything herein to the contrary:
(1) The Company shall not be required to prepare and file pursuant to this
Section 1, and the Company shall be entitled not to file and, if filed, to
withdraw a Registration Statement including less than 2,500,000 Transaction
Registrable Shares in the aggregate (as such number of shares may be adjusted in
the event of any change in the capital stock of the Company by reason of stock
dividends, split-ups, reverse split-ups, mergers, recapitalizations,
subdivisions, conversions, exchanges of shares or the like);
(2) subject to the following clause (3) and Section 2(b), the Company shall not
be required to prepare and file pursuant to this Section 1 more than two
Registration Statement in any one year period and four Registration Statements
in the aggregate; provided that a Registration Statement shall be deemed not to
have been prepared and filed if (A) the Registration Statement (i) is withdrawn
by Registering Stockholders pursuant to Section 4(c), or (ii) does not become
effective for any other reason except (x) the withdrawal therefrom of 30% or
more of the Transaction Registrable Shares requested to be included in such
registration statement or the determination by Registering Stockholders owning
30% or more of such Transaction Registrable Shares not to proceed with the
contemplated distribution of such Transaction Registrable Shares, or (y) the
withdrawal of the Registration Statement by the Company pursuant to Section
1(c)(1), (B) the Company fails to use reasonable best efforts to cause the
Registration Statement to remain effective under the Securities Act and the
Prospectus to remain current during the entire period referred to in Section
3(e), as the same may be extended pursuant to Section 4(d), or (C) the Company
withdraws the Registration Statement pursuant to Section 5 before the
Registering Stockholders have sold all the Transaction Registrable Shares owned
by them in accordance with the manner of distribution contemplated by the
Registration Statement with respect to such Transaction Registrable Shares;
(3) the Company shall not be required to prepare and file a Registration
Statement pursuant to this Section 1 during the period from the date of filing
of a registration statement of the Company involving an underwritten offering of
any Equity Securities of the Company to the date that is the earlier of (A) the
date of the withdrawal of the registration
statement or the request to file the registration statement by the security
holder requesting the registration and (B) the date that is 90 days following
the effective date of the registration statement;
(4) if a requested registration pursuant to this Section 1 shall involve an
underwritten offering, and if the managing underwriter shall advise the Company
and the Registering Stockholders in writing that, in its opinion, the number of
Transaction Registrable Shares proposed to be included in the registration is so
great as to adversely affect the offering, including the price at which the
Transaction Registrable Shares could be sold, the Company shall include in the
registration the maximum number of securities which it is so advised can be sold
without the adverse effect, allocated as follows:
(A) first, all Transaction Registrable Shares duly requested to be included in
the registration, allocated pro rata among all Registering Stockholders on the
basis of the relative number of Transaction Registrable Shares that each
Registering Stockholder shall have duly requested to be included in the
registration or such other basis as the Registering Stockholders shall agree;
and
(B) second, any other securities proposed to be registered by the Company other
than for its own account, including, without limitation, securities proposed to
be registered by the Company pursuant to the exercise by any person other than a
Registering Stockholder of a "piggy-back" right requesting the registration of
shares of Common Stock pursuant to an agreement with the Company in existence as
of the date of this Agreement that expressly provides, in effect, that the
Company is required to include such shares of Common Stock in the Registration
Statement; provided that if 30% or more of the Transaction Registrable Shares
requested to be included in a registration pursuant to this Section 1 are so
excluded from any registration and an investment banking firm of recognized
national standing shall advise the Company that the number of the Transaction
Registrable Shares requested to be registered, at the time of the request and in
light of the market conditions then prevailing, did not exceed the number that
would have an adverse effect on the offering of such Transaction Registrable
Shares, including the price of which such Transaction Registrable Shares could
be sold, there shall be provided one additional registration under the preceding
clause (2) in respect of each such exclusion or series of related exclusions;
and
(5) before the Registration Statement becomes effective, any Registering
Stockholder may withdraw from the registration any Transaction Registrable
Shares owned by the Registering Stockholder; provided that, subject to Section
1(c)(1), withdrawal of Transaction Registrable Shares shall not relieve the
Company from its obligations under this Agreement with respect to Transaction
Registrable Shares that are not withdrawn from the Registration Statement.
2. Piggy-back Registration Rights.
(a) From and after the date of this Agreement to and including the date that is
the 10th anniversary of the date of this Agreement, if the Company shall
determine to register or qualify by a registration statement filed under the
Securities Act and under any applicable state securities laws, any offering of
any Equity Securities of the Company, other than an offering
with respect to which a Registering Stockholder shall have requested a
registration pursuant to Section 1, the Company shall give notice of such
determination to each potential Registering Stockholder and each other person
known by the Company to have rights with respect to the registration under the
Securities Act of the disposition of securities of the Company. The Company
shall use reasonable best efforts as promptly as practicable to include in a
Registration Statement the Transaction Registrable Shares that in each case
shall have been duly specified by such Registering Stockholders by written
notice received by the Company not later than 20 Business Days after the Company
shall have given written notice to the Registering Stockholders pursuant to this
Section 2(a).
(b) Notwithstanding anything herein to the contrary:
(1) the Company shall not be required by this Section 2 to include any
Registrable Shares in (A) a registration statement on Form S-4 or S-8 (or any
successor form), (B) a registration statement filed in connection with an
exchange offer or other offering of securities solely to the then existing
stockholders of the Company or (C) a registration statement required pursuant to
the exercise by any person other than a Registering Stockholder of a "demand"
right requesting the registration of shares of the Company's Common Stock
pursuant to an agreement with the Company in existence as of the date of this
Agreement that expressly provides, in effect, that the Company may not include
any Registrable Shares in the registration statement;
(2) if a registration pursuant to this Section 2 involves an underwritten
offering, the Company shall select the managing underwriter for the offering and
any additional investment bankers and managers to be used in connection with the
offering, and if the managing underwriter advises the Company in writing that,
in its opinion, the number of securities requested to be included in the
registration is so great as to adversely affect the offering, including the
price at which the securities could be sold, the Company shall include in the
registration the maximum number of securities which it is so advised can be sold
without the adverse effect, allocated as follows:
(A) first, all securities proposed to be registered by the Company for
its own account;
(B) second, all securities proposed to be registered by the Company pursuant to
the exercise by any person other than a Registering Stockholder of a "demand"
right requesting the registration of shares of Company Common Stock pursuant to
an agreement with the Company in existence as of the date of this Agreement;
(C) third, all securities proposed to be registered by the Company other than
for its own account pursuant to the exercise by any person other than a
Registering Stockholder of a "piggy-back" right requesting the registration of
shares of Company Common Stock pursuant to an agreement with the Company in
existence as of the date of this Agreement that expressly provides, in effect,
that no securities of the Company other than those referred to in the preceding
clauses (A) and (B) shall be included in such registration unless all shares of
Company Common Stock requested by such person to be included in such
registration are so included; and
(D) fourth, any other securities proposed to be registered by the Company other
than for its own account, including, without limitation, Transaction Registrable
Shares duly requested to be included in the registration and securities proposed
to be registered by the Company pursuant to the exercise by any person other
than a Registering Stockholder of a "piggy-back" right requesting the
registration of shares of Company Common Stock pursuant to an agreement with the
Company, allocated pro rata among all Registering Stockholders and such other
persons on the basis of the relative number of Transaction Registrable Shares or
other securities that each Registering Stockholder or other person has duly
requested to be included in such registration; provided that if 30% or more of
the Transaction Registrable Shares requested to be included in a registration
pursuant to this Section 2 are so excluded from any registration and an
investment banking firm of recognized national standing shall advise the Company
that the number of the Transaction Registrable Shares requested to be
registered, at the time of the request and in light of the market conditions
then prevailing, did not exceed the number that would have an adverse effect on
the offering of such Transaction Registrable Shares, including the price of
which such Transaction Registrable Shares could be sold, there shall be provided
one additional registration under Section 1(c)(2) in respect of each such
exclusion or series of related exclusions;
(3) before the Registration Statement becomes effective, any Registering
Stockholder may withdraw from the registration any Transaction Registrable
Shares owned by the Registering Stockholder; provided that, subject to Section
2(b)(4), the withdrawal of Transaction Registrable Shares shall not relieve the
Company from its obligations under this Agreement with respect to Transaction
Registrable Shares that are not withdrawn from the Registration Statement; and
(4) the Company may withdraw the Registration Statement at any time before it
becomes effective.
3. Registration Provisions. With respect to each registration pursuant
to this Agreement:
(a) Notwithstanding anything herein to the contrary, the Company shall not be
required to include in any registration any of the Registrable Shares owned by a
Registering Stockholder if (1) the Company shall deliver to the Registering
Stockholder an opinion, satisfactory in form, scope and substance to the
Registering Stockholder and addressed to the Registering Stockholder by legal
counsel satisfactory to the Registering Stockholder, to the effect that the
distribution of such Registrable Shares proposed by the Registering Stockholder
is exempt from registration under the Securities Act and all applicable state
securities laws, (2) such Registering Stockholder or any underwriter of such
Registrable Shares shall fail to furnish to the Company the information in
respect of the distribution of such Registrable Shares that may be required
under this Agreement to be furnished by the Registering Stockholder or the
underwriter to the Company or (3) if such registration involves an underwritten
offering, such Registrable Shares are not included in such underwritten offering
on the same terms and conditions as shall be applicable to the other securities
being sold through underwriters in the registration or the Registering
Stockholder fails to enter into an underwriting agreement in customary form with
the underwriter or underwriters selected for such underwritten offering.
(b) The Company shall make available for inspection by each Registering
Stockholder participating in the registration, each underwriter of Transaction
Registrable Shares owned by the Registering Stockholder and their respective
accountants, counsel and other representatives all financial and other records,
pertinent corporate documents and properties of the Company as shall be
reasonably necessary to enable them to exercise their due diligence
responsibility in connection with each registration of Transaction Registrable
Shares owned by the Registering Stockholder, and shall cause the Company's
officers, directors and employees to supply all information reasonably requested
by any such person in connection with such registration; provided that records
and documents which the Company determines, in good faith, after consultation
with counsel for the Company and counsel for the Registering Stockholder or
underwriter, as the case may be, 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 (1) the disclosure of such records or documents is necessary to
avoid or correct a misstatement or omission in the Registration Statement or (2)
the release of such records or documents is ordered pursuant to a subpoena or
other order from a court of competent jurisdiction. Each Registering Stockholder
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.
(c) Each Registering Stockholder shall furnish, and shall cause each underwriter
of Transaction Registrable Shares owned by the Registering Stockholder 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
Registering Stockholder or the underwriter, the contemplated distribution of the
Transaction Registrable Shares and the other information regarding the proposed
distribution by the Registering Stockholder 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 Transaction Registrable Shares are contemplated to be distributed. The
information furnished by any Registering Stockholder or any underwriter shall be
certified by the Registering Stockholder or the underwriter, as the case may be,
and shall be stated to be specifically for use in connection with the
registration.
(d) The Company shall use reasonable best efforts to prepare and file with the
Securities and Exchange Commission the Registration Statement, including the
Prospectus, and each amendment thereof or supplement thereto, under the
Securities Act and as required under any applicable state securities laws, on
the form that is then required or available for use by the Company to permit
each Registering Stockholder, upon the effective date of the Registration
Statement, to use the Prospectus in connection with the contemplated
distribution by the Registering Stockholder of the Transaction Registrable
Shares requested to be so registered. A registration pursuant to Section 1 shall
be effected pursuant to Rule 415 (or any similar provision then in force) under
the Securities Act if the manner of distribution contemplated by the Registering
Stockholder initiating the request for such registration shall include an
offering on a delayed or continuous basis. The Company shall furnish to each
Registering Stockholder drafts of the Registration Statement and the Prospectus
and each amendment thereof or supplement thereto for its timely review prior to
the filing thereof with the Securities and Exchange Commission, and shall use
its reasonable best efforts to reflect in each such document, when so filed with
the Securities and Exchange Commission, such comments as the Registering
Stockholder reasonably may propose. If any Registration Statement refers to any
Registering Stockholder by name or otherwise as the holder of any securities of
the Company but such reference is not required by the Securities Act or any
similar federal statute then in force, then the Registering Stockholder shall
have the right to require, the deletion of such reference. The Company shall
deliver to each Registering Stockholder, without charge, such number of copies
of the Registration Statement and each amendment or post-effective amendment
thereof and such number of copies of each document incorporated therein by
reference, as the Registering Stockholder may reasonably may request. If the
registration shall have been initiated solely by the Company or shall not have
been initiated by a Registering Stockholder, the Company shall not be obligated
to prosecute the registration, and may withdraw the Registration Statement at
any time prior to the effectiveness thereof, if the Company shall determine in
good faith not to proceed with the offering of securities included in the
Registration Statement. In all other cases, the Company shall use reasonable
best efforts to cause the Registration Statement to become effective and, as
soon as practicable after the effectiveness thereof, shall deliver to each
Registering Stockholder evidence of the effectiveness and such number of copies
of the Prospectus, including any preliminary prospectus, and each amendment
thereof or supplement thereto, as the Registering Stockholder may reasonably
request. The Company consents to the use by each Registering Stockholder of each
Prospectus and each amendment thereof and supplement thereto in connection with
the distribution, in accordance with this Agreement, of the Transaction
Registrable Shares owned by the Registering Stockholder. In addition, the
Company shall qualify or register under the securities laws or blue sky laws of
such states as may be reasonably requested by each Registering Stockholder with
respect to the Transaction Registrable Shares of the Registering Stockholder
that shall have been included in the Registration Statement, and to continue
such registration or qualification in effect for so long as such registration
statement remains in effect; provided that the Company shall not be obligated to
file any general consent to service of process or to qualify as a foreign
corporation in any state in which it is not subject to process or qualified as
of the date of the request. The Company shall advise the Stockholder and each
Registering Stockholder in writing, promptly after the occurrence of any of the
following, of (1) the filing of the Registration Statement or any Prospectus, or
any amendment thereof or supplement thereto, with the Securities and Exchange
Commission, (2) the effectiveness of the Registration Statement and any
post-effective amendment thereto, (3) the receipt by the Company of any
communication from the Securities Exchange Commission with respect to the
Registration Statement or the Prospectus, or any amendment thereof or supplement
thereto, including, without limitation, any stop order suspending the
effectiveness thereof, any comments with respect thereto and any requests for
amendments or supplements and (4) the receipt by the Company of any notification
with respect to the suspension of the qualification of Transaction Registrable
Shares owned by the Registering Stockholders for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose.
(e) The Company shall use reasonable best efforts to cause the Registration
Statement to remain effective under the Securities Act and the Prospectus to
remain current, including the filing of necessary amendments, post-effective
amendments and supplements, and shall furnish copies of such amendments,
post-effective amendments and supplements to the Registering Stockholders, so as
to permit the Registering Stockholders to distribute the Transaction Registrable
Shares owned by them in their respective manner of distribution during their
respective contemplated periods of distribution, but in no event longer than the
earlier of six
consecutive months from the effective date of the Registration
Statement and the consummation of the distribution of the Transaction
Registrable Shares included in such registration; provided that the period shall
be increased by the number of days that any Registering Stockholder shall have
been required by Section 4 to refrain from disposing under the registration any
of the Transaction Registrable Shares owned by the Registering Stockholder.
During such respective contemplated periods of distribution, the Company shall
comply with the provisions of the Securities Act applicable to it with respect
to the disposition of all Transaction Registrable Shares owned by the
Registering Stockholders that shall have been included in the Registration
Statement in accordance with their respective contemplated manner of disposition
by the Registering Stockholders set forth in the Registration Statement, the
Prospectus or the supplement, as the case may be.
(f) Any obligation of the Company under this Agreement, including any obligation
to use its 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 4 or Section 5, respectively)
that would result in the Company issuing a Suspension Notice or Termination
Notice.
(g) The Company shall notify each Registering Stockholder, at any time when a
prospectus with respect to the Transaction Registrable Shares owned by the
Registering Stockholders 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 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 4 and 5, the Company
shall use reasonable best efforts to prepare and file with the Securities and
Exchange Commission an amendment or supplement to the Registration Statement or
the Prospectus so that, as thereafter delivered to the purchasers of such
Transaction Registrable Shares, 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. The Company also shall notify each Registering
Stockholder, when the Company becomes aware of the occurrence thereof, of the
issuance by the Securities and Exchange Commission of an order suspending the
effectiveness of the Registration Statement; as promptly as practicable
thereafter, but subject to Sections 4 and 5, the Company shall use reasonable
best efforts to obtain the withdrawal of such order at the earliest possible
moment.
(h) If requested by any Registering Stockholder or an underwriter of Transaction
Registrable Shares owned by the Registering Stockholder, the Company shall as
promptly as practicable prepare and file with the Securities and Exchange
Commission an amendment or supplement to the Registration Statement or the
Prospectus containing such information as the Registering Stockholder or the
underwriter requests to be included therein, including, without limitation,
information with respect to the Transaction Registrable Shares being sold by the
Registering Stockholder to the underwriter, the purchase price being paid
therefor by such underwriter and other terms of the underwritten offering of the
Transaction Registrable Shares to be sold in such offering.
(i) The Stockholder shall (1) offer to sell or otherwise distribute Registrable
Shares in reliance upon a registration contemplated pursuant to Section 1 or 2
only (A) if the Stockholder is a Registering Stockholder and the Registrable
Shares are Transaction Registrable Shares and (B) after the related Registration
Statement shall have been filed with the Securities and Exchange Commission, (2)
sell or otherwise distribute Registrable Shares in reliance upon such
registration only (A) if the Stockholder is a Registering Stockholder and the
Registrable Shares are Transaction Registrable Shares and (B) the related
Registration Statement is then effective under the Securities Act, (3) not sell
or otherwise distribute Transaction Registrable Shares in reliance upon a
registration contemplated by Section 1 or 2 during any period specified in a
Suspension Notice delivered to the Registering Stockholder pursuant to Section 4
or after receiving a Termination Notice pursuant to Section 5 (until the
Registering Stockholder shall have received written notice from the Company
pursuant to Section 3(d) that the registration of such Transaction Registrable
Shares is again effective), (4) distribute Transaction Registrable Shares only
in accordance with the manner of distribution contemplated by the Prospectus
with respect to the Transaction Registrable Shares owned by the Registering
Stockholder and (5) report to the Company distributions made by the Registering
Stockholder of Transaction Registrable Shares pursuant to the Prospectus. Each
Registering Stockholder, by participating in a registration pursuant to this
Agreement, acknowledges that the remedies of the Company at law for failure by
the Registering Stockholder to comply with the undertaking contained in this
paragraph (i) 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 Registering Stockholder in this
paragraph (i) may be specifically enforced.
(j) If the registration involves an underwritten offering, each Registering
Stockholder 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.
(k) If the registration involves an underwritten offering, the Company shall
enter into an underwriting agreement in customary form with the underwriter or
underwriters selected for such underwriting and shall deliver to each
Registering Stockholder, its counsel and each underwriter of Transaction
Registrable Shares owned by the Registering Stockholders to be distributed
pursuant to such registration, the certificates, opinions of counsel and comfort
letters that are customarily delivered in connection with underwritten
offerings.
(l) Before sales of Transaction Registrable Shares under a Registration
Statement, the Company shall cooperate with each Registering Stockholder and
each underwriter of Transaction Registrable Shares owned by the Registering
Stockholder to facilitate the timely preparation and delivery of certificates
(not bearing any restrictive legends) representing the Transaction Registrable
Shares to be sold under the Registration Statement and to enable such
Transaction Registrable Shares to be in such denominations and registered in
such names as the Registering Stockholder or the underwriter may request.
(m) The Company shall use reasonable best efforts to (1) comply with all
applicable rules and regulations of the Securities and Exchange Commission, and
(2) make available to its securityholders, as soon as reasonably practicable, an
earning statement covering the period of at
least twelve months, but not more than eighteen months, beginning with the
first calendar month after the effective date of the Registration Statement,
which earning statement shall satisfy the provisions of Section 11(a) of the
Securities Act.
(n) The Company shall use reasonable best efforts to cause the Transaction
Registrable Shares to be listed on each national securities exchange on which
Company Common Stock shall then be listed, if any, and to be qualified for
inclusion in the NASDAQ/National Market, as the case may be, if Company Common
Stock is then so qualified, and in each case if the listing or inclusion of the
Transaction Registrable Shares is then permitted under the rules of such
national securities exchange or the NASD, as the case may be.
(o) For the purposes of this Agreement, the following terms shall have the
following meanings:
(1) "Beneficial Owner" has the meaning given to it in Section 13(d)(3)
of the Exchange Act and the rules and regulations promulgated thereunder;
(2) "Business Day" means any day excluding Saturday, Sunday and any day which is
a legal holiday under the laws of the State of Colorado or is a day on which
banking institutions located in such state are authorized or required by law or
other governmental action to close;
(3) "Equity Securities" of a person means the capital stock of the person and
all other securities convertible into or exchangeable or exercisable for any
shares of its capital stock, all rights or warrants to subscribe for or to
purchase, all options for the purchase of, and all calls, commitments or claims
of any character relating to, any shares of its capital stock and any securities
convertible into or exchangeable or exercisable for any of the foregoing;
(4) "Exchange Act" means the Securities Exchange Act of 1934, as amended;
(5) "Prospectus" means (A) the prospectus relating to the Transaction
Registrable Shares owned by the Registering Stockholders included in a
Registration Statement, (B) if a prospectus relating to the Transaction
Registrable Shares shall be filed with the Securities and Exchange Commission
pursuant to Rule 424 (or any similar provision then in force) under the
Securities Act, such prospectus, and (C) in the event of any amendment or
supplement to the prospectus after the effective date of the Registration
Statement, then from and after the effectiveness of the amendment or the filing
with the Securities and Exchange Commission of the supplement, the prospectus as
so amended or supplemented;
(6) "Registration Statement" means (A) a registration statement filed by the
Company in accordance with Section 3(d), including exhibits and financial
statements thereto, in the form in which it shall become effective, the
documents incorporated by reference therein pursuant to Item 12 of Form S-3 (or
any similar provision or forms then in force) under the Securities Act and
information deemed to be a part of such registration statement pursuant to
paragraph (B) of Rule 430A (or any similar provision then in force) and (B) in
the event of any amendment thereto after the effective date of the registration
statement, then from and after the effectiveness of the amendment, the
registration statement as so amended; and
(7) information "contained", "included" or "stated" in a Registration Statement
or a Prospectus (or other references of like import) includes information
incorporated by reference.
4. Blackout Provisions.
(a) Notwithstanding anything in this Agreement to the contrary, by delivery of
written notice to any of the Registering Stockholders and the other holders of
Registrable Shares (a "Suspension Notice"), stating which one or more of the
following limitations shall apply to the addressee of such Suspension Notice,
the Company may (1) postpone effecting a registration under this Agreement, or
(2) require such addressee to refrain from disposing of Transaction Registrable
Shares under the registration, in either case for a reasonable time specified in
the notice but not exceeding 90 days in any one year period (which period may
not be extended or renewed).
(b) The Company may postpone effecting a registration or apply to any person
specified in clause (2) of Section 4(a) any of the limitations on dispositions
specified in such clause 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 registration or the disposition by such person of Registrable Shares or
other Equity Securities of the Company, as the case may be, 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 4(b) for a period of time in excess of 90 days in any one year
period.
(c) If the Company shall take any action pursuant to Section 4(a) with respect
to a Registering Stockholder or other holder of Registrable Shares in connection
with a registration, then (1) not later than 30 days after the action is taken,
Registering Stockholders holding a majority of the Transaction Registrable
Shares may by written notice to the Company elect to withdraw a registration
that shall have been requested pursuant to Section 1 or (2) if the registration
shall not have been withdrawn pursuant to the preceding clause (1), the period
during which the Registering Stockholder may exercise its rights under Sections
1 and 2 shall be extended by one day beyond the Termination Date for each day
that, pursuant to Section 4(a), the Company postpones effecting a registration,
requires the Registering Stockholder or other holder to refrain from disposing
of Transaction Registrable Shares under a registration or otherwise requires the
Registering Stockholder or other holder to refrain from disposing of Registrable
Shares.
(d) If the Company shall take any action pursuant to clause 2 of Section 4(a)
with respect to any Registering Stockholder or other holder of Registrable
Shares in a period during which the Company shall be required under Section 3(e)
to cause the Registration Statement to
remain effective under the Securities Act and the Prospectus to remain
current, such period shall be extended for such person by one day beyond the end
of such period for each day that, pursuant to Section 4(a), the Company shall
require such person to refrain from disposing of Transaction Registrable Shares
owned by such person.
5. Termination Provisions.
(a) Notwithstanding anything in this Agreement to the contrary, if, in the
opinion of counsel for the Company (which counsel shall be reasonably acceptable
to the Registering Stockholder; provided, however, that any of O'Melveny & Xxxxx
LLP and Holme Xxxxxxx & Xxxx LLP shall be deemed reasonably acceptable to the
Registering Stockholder for purposes of this Section 5(a)), there shall have
arisen any legal impediment to the offering of Transaction Registrable Shares
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 (a "Termination Notice") to each Registering Stockholder
participating in the registration (1) terminate the effectiveness of the related
Registration Statement or (2) withdraw from the Registration Statement the
Transaction Registrable Shares owned by the Registering Stockholder; provided
that, promptly after those matters shall be resolved to the satisfaction of
counsel for the Company, then the Company shall notify each affected Registering
Stockholder in writing that such matters have been resolved and, pursuant to
Section 1 or 2, as the case may be, shall, upon the written direction of such
affected Registering Stockholder and subject to the limitations in Section 1(b)
or elsewhere herein, cause the registration of Transaction Registrable Shares
formerly covered by the Registration Statement that were removed from
registration by the action of the Company.
(b) If the Company shall take any action pursuant to Section 5(a) with respect
to a Registering Stockholder or other holder of Registrable Shares, then the
period during which the Registering Stockholder may exercise its rights under
Sections 1 and 2 shall be extended by one day beyond the Termination Date for a
number of days equal to (1) the number of days during which the Company shall be
required under Section 3(e) to cause the Registration Statement to remain
effective under the Securities Act and the Prospectus to remain current minus
(2) the number of days during which the Registration Statement was effective
before the date of the action taken pursuant to Section 5(a).
6. Expenses.
(a) The Company shall pay all expenses (other than underwriting discounts and
commissions in respect of the Transaction Registrable Shares) incurred in
connection with the performance of its obligations under Sections 1 and 2
hereof), whether or not any related Registration Statement shall become
effective, including, without limitation:
(1) preparing, printing and filing each Registration Statement and Prospectus
and each qualification or notice required to be filed under federal and state
securities laws or the rules and regulations of the National Association of
Securities Dealers, Inc. (the "NASD") in connection with a registration pursuant
to Section 1 or 2;
(2) all fees and expenses of complying with federal and state securities
laws and the rules and regulations of the NASD;
(3) furnishing to each Registering Stockholder such number of copies of the
related Registration Statement and the number of copies of the related
Prospectus that may be required by Sections 3(d) and 3(e) to be so furnished,
together with a like number of copies of each amendment, post-effective
amendment or supplement;
(4) performing its obligations under Sections 3(d), 3(e) and 3(k);
(5) printing and issuing share certificates, including the transfer agent's and
registrar's fees, in connection with each distribution so registered;
(6) preparing audited financial statements required by the Securities Act and
the rules and regulations thereunder to be included in the Registration
Statement and preparing audited financial statements for use in connection with
the registration other than audited financial statements required by the
Securities Act and the rules and regulations thereunder, including fees and
expenses of the Company's outside independent accountants (including any fees
and expenses in connection with any comfort letters and any special audits
incident to or required by any registration or qualification);
(7) internal expenses of the Company (including, without limitation, all
salaries and expenses of its officers and employees performing legal or
accounting duties);
(8) premiums or other expenses relating to liability insurance required
by the Company or underwriters of the Registering Stockholders;
(9) fees and disbursements of underwriters of the Registering
Stockholders customarily paid by issuers or sellers of securities;
(10) listing of the Registrable Shares on national securities exchanges
and inclusion of the Registrable Shares on the NASDAQ/National Market; and
(11) fees and expenses of any special experts retained by the Company in
connection with the registration, including fees and disbursements of the
Company's outside counsel.
(b) The Registering Stockholders shall bear all other expenses incident to the
distribution by the respective Registering Stockholders of the Transaction
Registrable Shares owned by them in connection with a registration pursuant to
this Agreement, including, without limitation (but excluding the expenses
referred to in paragraph (a)(8) above), the selling expenses of the Registering
Stockholders, commissions, underwriting discounts, insurance and fees of counsel
for the Registering Stockholders.
7. Indemnification.
(a) The Company shall indemnify and hold harmless each Registering Stockholder
participating in a registration pursuant to this Agreement, each underwriter of
Transaction
Registrable Shares owned by the Registering Stockholder to be
distributed pursuant to the registration, each partner in the Registering
Stockholder, the officers and directors of the Registering Stockholder and the
underwriter and each person, if any, who controls the Registering Stockholder,
any partner in the Registering Stockholder or the underwriter within the meaning
of Section 15 (or any successor provision) of the Securities Act, and their
respective successors, against all claims, losses, damages and liabilities to
third parties (or actions in respect thereof) arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact contained in
the Registration Statement or the Prospectus or other document incident thereto
or any omission (or alleged omission) to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and shall reimburse each such Registering Stockholder and each other person
indemnified pursuant to this Section 7(a) for any legal and any other expenses
reasonably incurred in connection with investigating or defending any such
claim, loss, damage, liability or action; provided that the Company shall not be
liable in any case to the extent that any such claim, loss, damage or liability
arises out of or is based on any untrue statement or omission based upon written
information furnished to the Company by the Registering Stockholder or the
underwriter of such Transaction Registrable Shares specifically for use in the
Registration Statement or the Prospectus.
(b) Each Registering Stockholder, by participating in a registration pursuant to
this Agreement, thereby agrees to indemnify and to hold harmless the Company and
its officers and directors and each person, if any, who controls any of them
within the meaning of Section 15 (or any successor provision) of the Securities
Act, and their respective successors, against all claims, losses, damages and
liabilities to third parties (or actions in respect thereof) arising out of or
based upon any untrue statement (or alleged untrue statement) of a material fact
contained in the Registration Statement or the Prospectus or other document
incident thereto or any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and shall reimburse the Company and each other person
indemnified pursuant to this Section 7(b) for any legal and any other expenses
reasonably incurred in connection with investigating or defending any such
claim, loss, damage, liability or action; provided that (x) this Section 7(b)
shall apply only if (and only to the extent that) the statement or omission was
made in reliance upon and in conformity with information furnished to the
Company in writing by the Registering Stockholder specifically for use in the
Registration Statement or the Prospectus and (y) in no event shall the liability
of a Registering Stockholder under this Section 7 exceed the amount of the gross
proceeds paid to the Registering Stockholder in consideration of the sale of
Transaction Registrable Shares pursuant to such registration.
(c) If any action or proceeding (including any governmental investigation or
inquiry) shall be brought, asserted or threatened against any person indemnified
under this Section 7, the indemnified person shall promptly notify the
indemnifying party in writing, and the indemnifying party shall assume the
defense of the action or proceeding, including the employment of counsel
satisfactory to the indemnified person and the payment of all expenses. The
indemnified person shall have the right to employ separate counsel in any action
or proceeding and to participate in the defense of the action or proceeding, but
the fees and expenses of that counsel shall be at the expense of the indemnified
person unless:
(1) the indemnifying party shall have agreed to pay those fees and
expenses; or
(2) the indemnifying party shall have failed to assume the defense of the action
or proceeding or shall have failed to employ counsel reasonably satisfactory to
the indemnified person in the action or proceeding; or
(3) the named parties to the action or proceeding (including any impleaded
parties) include both the indemnified person and the indemnifying party, and the
indemnified person shall have been advised by counsel that there may be one or
more legal defenses available to the indemnified person that are different from
or additional to those available to the indemnifying party (in which case, if
the indemnified person notifies the indemnifying party in writing that it elects
to employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such action
or proceeding on behalf of the indemnified person;
it being understood, however, that the indemnifying party shall not, in
connection with any one action or proceeding or separate but substantially
similar or related actions or proceedings in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for the reasonable
fees and expenses of more than one separate firm of attorneys at any time for
the indemnified person, which firm shall be designated in writing by the
indemnified person).
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 person from and against any loss or liability by reason of the
settlement or judgment.
(d) If the indemnification provided for in this Section 7 is unavailable to an
indemnified person (other than by reason of exceptions provided in this Section
7) in respect of losses, claims, damages, liabilities or expenses referred to in
this Section 7, then each applicable indemnifying party, in lieu of indemnifying
the indemnified person, shall contribute to the amount paid or payable by the
indemnified person as a result of the losses, claims, damages, liabilities or
expenses in such proportion as is appropriate to reflect the relative fault of
the indemnifying party on the one hand and of the indemnified person on the
other in connection with the statements or omissions which resulted in the
losses, claims, damages, liabilities or expenses as well as any other relevant
equitable considerations. The relative fault of the indemnifying party on the
one hand and of the indemnified person on the other 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 indemnifying party or by the indemnified
person and by these persons' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The parties
agree that it would not be just and equitable if contribution pursuant to this
Section 7(d) were determined by pro rata allocation or by any other method of
allocation that does not take into account the equitable considerations referred
to in the immediately preceding sentence. The amount paid or payable by a person
as a result of the losses, claims, damages, liabilities and expenses shall be
deemed to include any legal or other
fees or expenses reasonably incurred by the person in connection with
investigating or defending any action or claim. Notwithstanding in the foregoing
to the contrary, no Registering Stockholder or underwriter of Transaction
Registrable Shares owned by the Registering Stockholder shall be required to
contribute any amount in excess of the amount by which (1) in the case of the
Registering Stockholder, the gross proceeds paid to the Registering Stockholder
in consideration of the sale pursuant to the registration of Transaction
Registrable Shares owned by it or (2) in the case of the underwriter, the total
price at which such Transaction Registrable Shares purchased by it and
distributed to the public were offered to the public exceeds, in any such case,
the amount of any damages that the Registering Stockholder or underwriter, as
the case may be, has otherwise been required to pay by reason of any untrue or
alleged untrue statement or omission. No person guilty of fraudulent
representation (within the meaning of Section 11(f) of the Securities Act) shall
be entitled to contribution from any person who is not guilty of such fraudulent
misrepresentation.
(e) Each Registering Stockholder participating in a registration pursuant to
Section 1 shall cause each underwriter of any Transaction Registrable Shares
owned by the Registering Stockholder to be distributed pursuant to the
registration to agree in writing on terms reasonably satisfactory to the Company
to indemnify and to hold harmless the Company and its officers and directors and
each person, if any, who controls any of them within the meaning of Section 15
(or any similar provision then in force) of the Securities Act, and their
respective successors, against all claims, losses, damages and liabilities to
third parties (or actions in respect thereof) arising out of or based upon any
untrue statement (or alleged untrue statement) of a material fact contained in
the Registration Statement or the Prospectus or other document incident thereto
or any omission (or alleged omission) to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and to reimburse the Company and each other person indemnified pursuant to the
agreement for any legal or any other expense reasonably incurred in connection
with investigating or defending any claim, loss, damage, liability or action;
provided that the agreement shall apply only if (and only to the extent that)
the statement or omission was made in reliance upon and in conformity with
information furnished to the Company in writing by the underwriter specifically
for use in the Registration Statement or the Prospectus.
8. Transfer Restrictions. The Stockholder agrees that before any sale or other
disposition of any Registrable Shares other than in a sale registered under the
Securities Act or pursuant to Rule 144 (or any similar provisions then in force)
under the Securities Act (unless the Company shall have been advised by counsel
that the sale does not meet the requirements of Rule 144, as the case may be,
for such sale), it will deliver to the Company an opinion of counsel, in form
and substance reasonably satisfactory to the Company, to the effect that such
registration is unnecessary.
9. Exempt Sales.
(a) The Company shall make all filings with the Securities and Exchange
Commission required by Rule 144(c) (or any similar provision then in force)
under the Securities Act to permit the sale of Registrable Shares by any holder
thereof (other than an Affiliate of the Company) to satisfy the conditions of
Rule 144 (or any similar provision then in force). The Company shall, promptly
upon the written request of the holder of Registrable Shares, deliver to
such holder a written statement as to whether the Company has complied with
all such filing requirements.
(b) Before sales of Registrable Shares proposed to be sold pursuant to an
exemption from the registration requirements of the Securities Act, the Company
shall, subject to Section 8(c), cooperate with the holder of such Registrable
Shares, to facilitate the timely preparation and delivery of certificates (not
bearing any restrictive legends) representing such Registrable Shares, in
connection with the closing of the sales and to enable such Registrable Shares,
to be in such denominations and registered in such names as the holder may
request.
10. Merger, Consolidation, Exchange, Etc. In the event, directly or indirectly,
(1) the Company shall merge with and into, or consolidate with, any other person
or (2) any person shall merge with and into, or consolidate, the Company and the
Company shall be the surviving corporation of such merger or consolidation and,
in connection with such merger or consolidation, all or part of the Registrable
Shares shall be changed into or exchanged for stock or other securities of any
other person, then, in each such case, proper provision shall be made so that
such other person shall be bound by the provisions of this Agreement and the
term the "Company" shall thereafter be deemed to refer to such other person.
11. Notices. All notices, requests and other communications to any party under
this Agreement shall be in writing. Communications may be made by telecopy or
similar writing. Each communication shall be given to the party at its address
set forth below or at any other address as the party may specify for this
purpose by notice to the other party. Each communication shall be effective (1)
if given by telecopy, when the telecopy is transmitted to the proper address and
the receipt of the transmission is confirmed, (2) if given by mail, 72 hours
after the communication is deposited in the mails properly addressed with first
class postage prepaid or (3) if given by any other means, when delivered to the
proper address and a written acknowledgement of delivery is received.
(a) If to the Company, to:
Qwest Communications International Inc.
000 Xxxxx Xxxxx
000 Xxxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 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, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile Number: (000) 000-0000
(b) If to the Stockholder, to:
BellSouth Enterprises, Inc.
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
Facsimile Number: (000) 000-0000
Attention: Xxxxx X. Xxxxx
and with additional copies to:
E. Xxxx Xxxxxxxx
BellSouth Corporation
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Facsimile Number: (000) 000-0000
Xxxx X. Xxxxxxxxx
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile Number: (000) 000-0000
12. No Waivers; Remedies. No failure or delay by any party in exercising any
right, power or privilege under this Agreement 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 this Agreement shall be cumulative and not exclusive of
any rights or remedies provided by law.
13. Amendments, Etc. No amendment, modification, termination or waiver of any
provision of this Agreement, and no consent to any departure by a party to this
Agreement from any provision of this Agreement, shall be effective unless it
shall be in writing and signed and delivered by the other party to this
Agreement, and then it shall be effective only in the specific instance and for
the specific purpose for which it is given.
14. Successors and Assigns.
(a) Each holder of Registrable Shares may assign to any permitted transferee of
Registrable Shares, its rights and delegate to the transferee its obligations
under this Agreement including, without limitation, the rights of assignment
pursuant to this Section 14; provided that (1) any assignment of rights under
Section 1 of one or more demand registration right must indicate in writing the
number of demand rights so assigned and the Company must receive notice of such
assignment and (2) such transferee shall accept such rights and assume such
obligations for the benefit of the Company by written instrument, in form and
substance reasonably satisfactory to the Company. Thereafter, without any
further action by any person, all references in this Agreement to the holder of
such Registrable Shares, and all comparable references, shall be deemed to be
references to the transferee, and the transferor shall be released
from each obligation or liability under this Agreement with respect to the
Registrable Shares so transferred.
(b) The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties to this Agreement, the express beneficiaries thereof and
their respective permitted heirs, executors, legal representatives, successors
and assigns, and no other person.
15. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York, without regard to
principles of conflicts of law.
16. Counterparts; Effectiveness. 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.
17. Severability of Provisions. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to that jurisdiction,
be ineffective to the extent of the prohibition or unenforceability without
invalidating the remaining provisions of this Agreement or affecting the
validity or enforceability of the provision in any other jurisdiction.
18. Headings and References. Section headings in this Agreement are included for
the convenience of reference only and do not constitute a part of this Agreement
for any other purpose. References to parties, express beneficiaries and sections
in this Agreement are references to the parties to or the express beneficiaries
and sections of this Agreement, as the case may be, unless the context shall
require otherwise.
19. Entire Agreement. This Agreement and the Common Stock Purchase Agreements
embody the entire agreement and understanding of the parties and supersedes all
prior agreements or understandings with respect to the subject matters thereof.
20. Survival. Except as otherwise specifically provided in this Agreement, each
representation, warranty or covenant of each party contained in to this
Agreement shall remain in full force and effect, notwithstanding any
investigation or notice to the contrary or any waiver by the other party of a
related condition precedent to the performance by such other party of an
obligation under this Agreement.
21. Exclusive Jurisdiction. Each party (1) agrees that any action, complaint,
counterclaim, investigation, petition, suit or other proceeding, whether civil
or criminal, in law or in equity, or before any arbitrator, court or
governmental authority (each, an "Action"), with respect to this Agreement or
any transaction contemplated by this Agreement shall be brought exclusively in
the courts of the State of New York or of the United States of America for the
Southern District of New York, in each case sitting in the Borough of Manhattan,
State of New York, (2) accepts for itself and in respect of its property,
generally and unconditionally, the jurisdiction of those courts and (3)
irrevocably waives any objection, including, without limitation, any objection
to the laying of venue or based on the grounds of forum non conveniens, which it
may now or hereafter have to the bringing of any legal action in those
jurisdictions; provided, however, that any party may assert in an Action in any
other jurisdiction or venue each mandatory defense, third-party claim or similar
claim that, if not so asserted in such Action, may thereafter not be asserted by
such party in an original Action in the courts referred to in clause (1) above.
22. Waiver of Jury Trial. Each party waives any right to a trial by jury in any
Action to enforce or defend any right under this Agreement or any amendment,
instrument, document or agreement delivered, or which in the future may be
delivered, in connection with this Agreement and agrees that any Action shall be
tried before a court and not before a jury.
23. Affiliate. Nothing contained in this Agreement shall constitute Stockholder
or any Registering Stockholder an "affiliate" of any of the Company and its
Subsidiaries within the meanings of the Securities Act or the Exchange Act,
respectively, including, without limitation, Rule 501 under the Securities Act
and Rule 13e-3 under the Exchange Act.
24. 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
any party or the stockholders, directors, officers, employees, agents and
Affiliates of such party or such controlling persons, whether by the enforcement
of any assessment or by any legal or equitable proceeding, or by virtue of any
Regulation, 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 such party 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 24 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.
25. No Inconsistent Agreements.
(a) The Company shall not enter into, or amend or otherwise modify, any
agreement to afford to any person other than the Stockholder and the holders of
Registrable Shares rights with respect to the registration under the Securities
Act of shares of Company Common Stock or other securities or the inclusion of
any such shares or other securities in any registration that are inconsistent
with, or conflict with, the rights of the Stockholders and the holders of
Registrable Shares under this Agreement, including, without limitation, Sections
1 and 2.
(b) Without derogating from the generality of Section 25(a), after the date of
this Agreement, the Company shall not enter into, or amend or otherwise modify,
any agreement to afford to any person other than the Stockholder and the holders
of Registrable Shares the right to require the Company to include in any
registration pursuant to Section 1 any securities of the Company pursuant to the
exercise of any "piggy-back" right under an agreement with the Company not in
existence as of the date of this Agreement.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective authorized officers as of the date first written
above.
BELLSOUTH ENTERPRISES, INC.
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Authorized Signatory
QWEST COMMUNICATIONS
INTERNATIONAL INC.
By: /s/ Drake S. Tempest
Name: Drake S. Tempest
Title: Executive Vice President
and General Counsel
REGISTRATION RIGHTS AGREEMENT
by and between
QWEST COMMUNICATIONS INTERNATIONAL INC.
and
BELLSOUTH ENTERPRISES, INC.
Dated as of April 19, 1999
TABLE OF CONTENTS
Page
1. Demand Registration Rights..................................1
2. Piggy-back Registration Rights..............................3
3. Registration Provisions.....................................5
4. Blackout Provisions........................................11
5. Termination Provisions.....................................12
6. Expenses .........................................12
7. Indemnification .........................................13
8. Transfer Restrictions......................................16
9. Exempt Sales .........................................16
10. Merger, Consolidation, Exchange, Etc.......................17
11. Notices .........................................17
12. No Waivers; Remedies.......................................18
13. Amendments, Etc .........................................18
14. Successors and Assigns.....................................18
15. Governing Law .........................................19
16. Counterparts; Effectiveness................................19
17. Severability of Provisions.................................19
18. Headings and References....................................19
19. Entire Agreement .........................................19
20. Survival .........................................19
21. Exclusive Jurisdiction.....................................19
22. Waiver of Jury Trial.......................................19
23. Affiliate .........................................20
24. Non-Recourse .........................................20
25. No Inconsistent Agreements.................................20
