COMMON STOCK PURCHASE AGREEMENT
This COMMON STOCK PURCHASE AGREEMENT (this "Agreement") is made as of
April 19, 1999, by and between BELLSOUTH ENTERPRISES, INC., a Georgia
corporation (the "Purchaser"), and ANSCHUTZ COMPANY, a Delaware corporation (the
"Seller").
RECITALS
A. The Seller desires to sell to the Purchaser, and the Purchaser
desires to purchase from the Seller, 16,650,000 shares of the Common Stock of
Qwest Communications International Inc., a Delaware corporation (the "Company"),
$0.01 par value per share (the "Common Stock"), on the terms and conditions set
forth in this Agreement.
B. Concurrently herewith, the Purchaser is entering into the Common
Stock Purchase Agreement dated as of April 19, 1999 (the "Company Purchase
Agreement"), by and between the Purchaser and the Company for the purchase of
20,350,000 shares of Common Stock on the terms and conditions set forth in the
Company Purchase Agreement.
C. Concurrently herewith, the Company and the Purchaser are entering
into a Registration Rights Agreement dated as of even date herewith by and
between the Company and the Purchaser (the "Registration Rights Agreement"), to
provide for the registration under the Securities Act of 1933, as amended (the
"Securities Act"), of the disposition of the shares of Common Stock purchased
under this Agreement and the Company Purchase Agreement pursuant to the terms
thereof.
AGREEMENT
The parties agree as follows:
ARTICLE I
AGREEMENT TO PURCHASE AND SELL COMMON STOCK
1.1 Agreement to Purchase and Sell Common Stock. Upon the terms and subject to
the conditions of this Agreement, the Seller hereby agrees to sell to the
Purchaser at the Closing (as defined in Section 2.1), and the Purchaser agrees
to purchase from the Seller at the Closing, 16,650,000 shares (each, a "Share"
and collectively, the "Shares") of Common Stock at $94.50 per Share for an
aggregate purchase price of $1,573,425,000.00 (the "Purchase Price").
ARTICLE II
CLOSING DATE; DELIVERY
2.1 Closing Date. The Closing of the purchase and sale of the Shares hereunder
(the "Closing") shall be held at the offices of the Company at 10:00 a.m. on the
third business day after the satisfaction or waiver of the conditions set forth
in Articles V and VI, or at such other time and place as the Seller and the
Purchaser mutually agree, and shall be held simultaneously with the closing of
the Company Purchase Agreement (the date of the Closing being hereinafter
referred to as the "Closing Date").
2.2 Delivery. At the Closing, the Seller will deliver to the Purchaser a
certificate or certificates representing the Shares, duly endorsed for transfer,
against payment of the aggregate Purchase Price by wire transfer of immediately
available funds to an account designated by the Seller. The certificate or
certificates representing the Shares shall be subject to a legend restricting
transfer under the Securities Act and referring to restrictions on transfer
herein, such legend to be substantially as follows:
"The shares represented by this certificate have been acquired
for investment and have not been registered under the Securities Act of
1933, as amended. Such shares may not be sold or transferred in the
absence of such registration or an opinion of counsel reasonably
satisfactory to the Company and the Seller as to the availability of an
exemption from registration.
The shares represented by this certificate are subject to
restrictions on transfer, including any sale, pledge or other
hypothecation, set forth in an agreement dated as of April 19, 1999,
between the Company and BellSouth Enterprises, Inc., and an agreement
dated as of April 19, 1999, between BellSouth Enterprises, Inc. and
Anschutz Company, copies of each of which may be obtained at no cost by
written request made by the holder of record of this certificate to the
secretary of the Company at the Company's principal executive offices."
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller hereby represents and warrants to the Purchaser as follows:
3.1 Corporate Existence and Power. Each of the Seller and the Company is a
corporation duly incorporated, validly existing and in good standing under the
laws of the State of Delaware. The Company (1) has all necessary corporate power
and authority and all material licenses, authorizations, consents and approvals
required to own, lease, license or use its properties now owned, leased,
licensed or used and proposed to be owned, leased, licensed or used and to carry
on its business as now conducted and proposed to be conducted, (2) is duly
qualified as a foreign corporation under the laws of each jurisdiction in which
qualification is required either to own, lease, license or use its properties
now owned, leased, licensed or used or to carry on its business as now
conducted, except where the failure to effect or obtain such qualification,
individually or in the aggregate, would not reasonably be expected to have a
Material Adverse Effect (as defined in Section 8.1) on the Company, and (3) has
all necessary
corporate power and authority to execute and deliver this
Agreement and to perform its obligations hereunder.
3.2 Authorization; Contravention.
The execution and delivery by the Seller of this Agreement and
the performance by the Seller of its obligations under this Agreement, and the
sale and delivery of the Shares hereunder, have been duly authorized by all
necessary corporate action and do not and will not contravene, violate, result
in a breach of or constitute a default under, (1) its certificate of
incorporation or bylaws, (2) any regulation of any Governmental Entity (as
defined in Section 8.1) or any decision, ruling, order or award of any
arbitrator by which it or any of its properties may be bound or affected, or (3)
any agreement, indenture or other instrument to which it is a party or by which
it or its properties may be bound or affected, except in each case referred to
in the preceding clauses for contraventions, violations, breaches or defaults
that, individually or in the aggregate, would not reasonably be expected to have
a Material Adverse Effect on the Seller, or materially impair or restrict the
Seller's power to perform its obligations as contemplated under said agreements.
The Shares are validly issued, fully paid and nonassessable and free and clear
of any liens. The sale of the Shares will not give rise to any preemptive
rights, rights of first refusal or other rights to acquire Common Stock on
behalf of any Person (as defined in Section 8.1). The Shares have been validly
issued, are fully paid and nonassessable, and are owned beneficially and of
record by the Seller, free and clear of any liens, claims, encumbrances or other
contractual restrictions of any kind. The transfer and delivery of the Shares by
the Seller to the Purchaser, as contemplated by this Agreement will transfer
good title to the Shares to the Purchaser, free and clear of all security
interests, liens, claims, encumbrances and other contractual restrictions of any
kind, in each case except for any of the foregoing created or permitted to exist
by or on behalf of the Purchaser.
3.3 SEC Documents. The Company has filed with the Securities and Exchange
Commission (the "SEC") all reports, schedules, forms, statements and other
documents required by the Securities Act or the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), to be filed by the Company since June 27, 1997
(collectively, and in each case including all exhibits and schedules thereto and
documents incorporated by reference therein, the "Company SEC Documents"). As of
their respective dates, except to the extent revised or superseded by a
subsequent filing with the SEC on or before the date of this Agreement, the
Company SEC Documents filed by the Company complied in all material respects
with the requirements of the Securities Act or the Exchange Act, as the case may
be, and none of the Company SEC Documents (including any and all financial
statements included therein) filed by the Company as of such dates contained any
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading. Except as
set forth in the Company SEC Documents, neither the Company nor any of its
subsidiaries has any material liabilities or obligations of any nature (whether
accrued, absolute, contingent or otherwise) which would reasonably be expected
to have a Material Adverse Effect on the Company.
3.4 Approvals. In reliance on the representations of the Purchaser contained in
Sections 4.5, 4.7, 4.8 and 4.9, no consent, approval or authorization of or
designation, declaration or filing with any Governmental Entity on the part of
the Seller is required in connection with the due execution and delivery of this
Agreement, or the offer, sale of the Shares, except for (a) those required under
the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR
Act"), and (b) such filings as may be required to be made with the SEC.
3.5 Binding Effect. This Agreement constitutes the legally valid and binding
obligation of the Seller enforceable against it in accordance with its terms,
except as may be limited by bankruptcy, insolvency, reorganization, moratorium
or other similar laws relating to or affecting creditors' rights generally and
general principles of equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing and the possible
unavailability of specific performance or injunctive relief, regardless of
whether considered in a proceeding in equity or at law.
3.6 Financial Information. The consolidated balance sheet of the Company and its
consolidated subsidiaries as of December 31, 1998, and the related consolidated
statements of operations and stockholders' equity and cash flows for the fiscal
year then ended, reported on by KPMG Peat Marwick LLP, true and complete copies
of which have been delivered by the Company to the Purchaser, comply as to form
in all material respects with applicable accounting requirements and the
published rules and regulations of the SEC with respect thereto, have been
prepared in accordance with U.S. generally accepted accounting principles
("GAAP") applied on a consistent basis and fairly present the consolidated
financial position of the Company and its consolidated subsidiaries as of that
date and their consolidated results of operations and cash flows for the year
then ended.
3.7 Absence of Certain Changes or Events. Except as disclosed in the Company SEC
Documents filed, or as otherwise publicly disclosed, prior to the date hereof,
since December 31, 1998, there has not been (1) any declaration, setting aside
or payment of any dividend or distribution (whether in cash, stock or property)
with respect to any of the Company's capital stock, (2) any split, combination
or reclassification of any of its capital stock or any issuance or the
authorization of any issuance of any other securities in respect of, in lieu of
or in substitution for shares of its capital stock, (3) any damage, destruction
or loss of property, whether or not covered by insurance, that has or would
reasonably be expected to have a Material Adverse Effect on the Company, (4) any
change in accounting methods, principles or practices by the Company materially
affecting its assets, liabilities, or business, except insofar as may have been
required by a change in GAAP or (5) any event or state of facts that,
individually or in the aggregate, has had or would reasonably be expected to
have a Material Adverse Effect on the Company.
3.8 Litigation.
(a) There is no action, suit or proceeding pending or, to the Sellers'
knowledge, threatened against the Seller or any of its Affiliates or the Company
or any of its subsidiaries that (1) impairs (or, if successful, would so impair)
in any material respect the ability of the Seller or the Company to perform its
respective obligations under this Agreement, or the Company Purchase Agreement
and the Registration Rights Agreement, as the case may be, or (2) restricts
in any material respect or prohibits (or, if successful, would so restrict
or prohibit) the sale of the Shares to the Purchaser.
(b) Except as disclosed in the Company SEC Documents filed with the SEC on or
prior to the date hereof, there is no action, suit or proceeding pending or, to
the Seller's knowledge, threatened against the Seller or any of its Affiliates
or the Company or any of its subsidiaries that, individually or in the
aggregate, if determined adversely to any of them, would reasonably be expected
to have a Material Adverse Effect on the Company.
3.9 Capitalization.
(a) As of the date of this Agreement, the authorized capital stock of the
Company consists of 600,000,000 shares of the Common Stock and 25,000,000 shares
of preferred stock, par value $0.01 per share, of the Company (the "Company
Preferred Stock").
(b) As of March 31, 1999, there are (1) 350,735,529 shares of the Common Stock
issued and outstanding, (2) no shares of the Common Stock held in the treasury
of the Company, (3) no shares of the Company Preferred Stock issued and
outstanding, (4) 40,725,059 shares of the Common Stock reserved for issuance
upon exercise of outstanding stock options issued by the Company to current or
former employees and directors of the Company and its subsidiaries, and (5)
10,163,380 shares of the Common Stock reserved for issuance upon exercise of
authorized but unissued stock options.
(c) All outstanding shares of the Common Stock are duly authorized, validly
issued, fully paid and nonassessable, free from any liens created by the Company
with respect to the issuance and delivery thereof and not subject to preemptive
rights.
(d) No Person (other than the Purchaser and the Seller) has the right to cause
the Company to register shares of Common Stock on a registration statement filed
pursuant to the Registration Rights Agreement.
3.10 Absence of Certain Agreements. There are no material discussions between
the Seller or any of its Affiliates, on the one hand, and any Person (other than
the Purchaser), on the other hand that, as of the date hereof, would reasonably
be expected to lead to an agreement within 30 days after the date hereof for (1)
a transaction resulting in a Change of Control, (2) a transaction involving the
Seller that would include the acquisition of Beneficial Ownership by a Person of
more than 5% of the outstanding Voting Stock (as defined in Section 8.1), or (3)
the acquisition by the Company of any business for an aggregate purchase price
(including assumption of indebtedness) of at least $1,500,000,000.00.
3.11 No Broker. The Seller has not engaged, consented to or authorized any
broker, finder or intermediary to act on its behalf, directly or indirectly, as
a broker, finder or intermediary in connection with the transactions
contemplated by this Agreement. The Seller hereby agrees to indemnify and hold
harmless the Purchaser from and against all fees, commissions or other payments
owing to any party acting on behalf of the Seller hereunder.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser hereby represents and warrants to the Seller as follows:
4.1 Corporate Existence and Power. The Purchaser (1) is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Georgia, (2) has all necessary corporate power and authority and all material
licenses, authorizations, consents and approvals required to own, lease, license
or use its properties now owned, leased, licensed or used and proposed to be
owned, leased, licensed or used and to carry on its business as now conducted
and proposed to be conducted, (3) is duly qualified as a foreign corporation
under the laws of each jurisdiction in which qualification is required either to
own, lease, license or use its properties now owned, leased, licensed or used or
to carry on its business as now conducted, except where the failure to effect or
obtain such qualification, individually or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect on the Purchaser, and
(4) has all necessary corporate power and authority to execute and deliver this
Agreement and to perform its obligations hereunder.
4.2 Authorization; Contravention. The execution and delivery by the Purchaser of
this Agreement and the performance by the Purchaser of its obligations under
this Agreement, have been duly authorized by all necessary corporate action and
do not and will not contravene, violate, result in a breach of or constitute a
default under, (1) its articles of incorporation or bylaws, or (2) any
regulation of any Governmental Entity or any decision, ruling, order or award of
any arbitrator by which it or any of its properties may be bound or affected,
except in each case referred to in the preceding clauses for contraventions,
violations, breaches or defaults that, individually or in the aggregate, would
not reasonably be expected to have a Material Adverse Effect on the Purchaser.
4.3 Approvals. No consent, approval or authorization of or designation,
declaration or filing with any Governmental Entity on the part of the Purchaser
is required in connection with the due execution and delivery of this Agreement,
or the acquisition of the Shares by Purchaser, except for (a) those required
under the HSR Act, and (b) such filings as may be required to be made with the
SEC.
4.4 Binding Effect. This Agreement constitutes the legally valid and binding
obligation of the Purchaser enforceable against it in accordance with its terms,
except as may be limited by bankruptcy, insolvency, reorganization, moratorium
or other similar laws relating to or affecting creditors' rights generally and
general principles of equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing and the possible
unavailability of specific performance or injunctive relief, regardless of
whether considered in a proceeding in equity or at law.
4.5 Investment. The Purchaser is acquiring the Shares for investment for its own
account, not as a nominee or agent, and not with a view to, or for resale in
connection with, any distribution thereof. The Purchaser understands that the
Shares have not been registered under the Securities Act by reason of a specific
exemption from the registration provisions of the Securities Act which depends
upon, among other things, the bona fide nature of the investment intent and the
accuracy of the Purchaser's representations and warranties contained herein.
4.6 Disclosure of Information. The Purchaser has had full access to all
information it considers necessary or appropriate to make an informed investment
decision with respect to the Shares to be purchased by the Company under this
Agreement. The Purchaser further has had an opportunity to ask questions and
receive answers from the Seller regarding the terms and conditions of the
offering of the Shares and to obtain additional information necessary to verify
any information furnished to the Purchaser or to which the Purchaser had access.
4.7 Investment Experience. The Purchaser understands that the purchase of the
Shares involves substantial risk. The Purchaser has experience as an investor in
securities of companies and acknowledges that it is able to fend for itself, can
bear the economic risk of its investment in the Shares and has such knowledge
and experience in financial or business matters that it is capable of evaluating
the merits and risks of this investment in the Shares and protecting its own
interests in connection with this investment.
4.8 Accredited Investor Status. The Purchaser is an "accredited
investor" within the meaning of Regulation D promulgated under the
Securities Act.
4.9 Restricted Securities. The Purchaser understands that the Shares to be
purchased by the Purchaser hereunder are characterized as "restricted
securities" under the Securities Act inasmuch as they are being acquired from
the Company in a transaction not involving a public offering and that under the
Securities Act and applicable regulations thereunder such securities may be
resold without registration under the Securities Act only in certain limited
circumstances. The Purchaser is familiar with Rule 144 of the Securities Act, as
presently in effect, and understands the resale limitations imposed thereby and
by the Securities Act.
4.10 Investigation. The Purchaser has conducted its own investigation of the
Company and hereby acknowledges that the only representations and warranties of
the Seller in connection with the Purchaser's investment are those expressly
made by the Seller in Article III of this Agreement, and the Seller hereby
acknowledges that such representations and warranties are unaffected by the
Purchaser's investigation of the Company.
4.11 No Broker. The Purchaser hereby agrees to indemnify and hold harmless the
Seller from and against all fees, commissions or other payments owing to any
party acting on behalf of the Purchaser hereunder.
ARTICLE V
CONDITIONS TO OBLIGATION OF THE PURCHASER
The Purchaser's obligation to purchase the Shares at the Closing is
subject to the fulfillment on or prior to the Closing Date of the following
conditions:
5.1 Representations and Warranties. Each of the representations and warranties
of the Seller contained in Article III will be true and correct on and as of the
date hereof and (except to the extent such representations and warranties speak
as of a particular date) true and correct in all material respects as of the
Closing Date with the same effect as though such representations and warranties
had been made on and as of the Closing Date; provided,
however, that for purposes of this Section 5.1 only, the representations
and warranties contained in Sections 3.1, 3.3, 3.6, 3.7, 3.8(b) and 3.10 shall
be deemed to be true and correct on and as of the Closing Date unless the
failure or failures of such representations and warranties to be so true and
correct (without regard to materiality qualifiers contained therein),
individually or in the aggregate, results or would reasonably be expected to
result in a Material Adverse Effect on the Company. The Purchaser shall have
received a certificate signed by an officer of the Seller to such effect on the
Closing Date.
5.2 Covenants. All covenants, agreements and conditions contained in this
Agreement to be performed by the Seller on or prior to the Closing Date shall
have been performed or complied with in all material respects. The Purchaser
shall have received a certificate signed by an officer of the Seller to such
effect on the Closing Date.
5.3 HSR Act. The waiting period (and any extensions thereof) under the HSR Act
applicable to the transactions contemplated hereby shall have expired or been
terminated.
5.4 No Order Pending. There shall not then be in effect any order
enjoining or restraining the sale and purchase of the Shares.
5.5 No Law Prohibiting or Restricting Sale of the Shares. There shall not be in
effect any law, rule or regulation prohibiting or restricting the sale and
purchase of the Shares, or requiring any consent or approval of any Person which
shall not have been obtained to sell and purchase the Shares, with full benefits
afforded the Common Stock.
5.6 Registration Rights Agreement. The Registration Rights Agreement
shall not have been terminated.
5.7 Company Purchase Agreement. The Purchaser and the Company shall have
consummated the acquisition by the Purchaser of 20,350,000 shares of Common
Stock from the Company pursuant to the terms of the Company Purchase Agreement
(unless such acquisition shall not have been consummated as a result of a breach
by the Purchaser thereunder).
5.8 Master Agreement. The Master Agreement dated April 19, 1999, by and between
the Company and the Purchaser (the "Master Agreement") shall not have been
terminated (or notice of termination provided) in accordance with the terms
thereof.
5.9 Opinion of Counsel. The Purchaser shall have received an opinion dated as of
the Closing Date of Holme, Xxxxxxx & Xxxx LLP, counsel to the Seller,
substantially in the form attached hereto as Exhibit A.
ARTICLE VI
CONDITIONS TO OBLIGATION OF THE SELLER
The Seller's obligation to sell the Shares at the Closing is subject to
the fulfillment on or prior to the Closing Date of the following conditions:
6.1 Representations and Warranties. The representations and warranties of the
Purchaser contained in Article IV will be true and correct on and as of the date
hereof and (except to the extent such representations and warranties speak as of
a particular date) true and correct in all material respects as of the Closing
Date with the same effect as though such representations and warranties had been
made on and as of the Closing Date; provided, however, that for purposes of this
Section 6.1 only, such representations and warranties shall be deemed to be true
and correct on and as of the Closing Date unless the failure or failures of such
representations and warranties to be so true and correct (without regard to
materiality qualifiers contained therein), individually or in the aggregate,
results or would reasonably be expected to result in a Material Adverse Effect
on the Purchaser. The Seller shall have received a certificate signed on behalf
of the Purchaser by an officer of the Purchaser to such effect on the Closing
Date.
6.2 Covenants. All covenants, agreements and conditions contained in this
Agreement to be performed by the Purchaser on or prior to the Closing Date shall
have been performed or complied with in all material respects. The Seller shall
have received a certificate signed on behalf of the Purchaser by an officer of
the Purchaser to such effect on the Closing Date.
6.3 HSR Act. The waiting period (and any extensions thereof) under the HSR Act
applicable to the transactions contemplated hereby shall have expired or been
terminated.
6.4 No Order Pending. There shall not then be in effect any order
enjoining or restraining the sale and purchase of the Shares.
6.5 No Law Prohibiting or Restricting the Sale of the Shares. There shall not be
in effect any law, rule or regulation prohibiting or restricting the sale and
purchase of the Shares, or requiring any consent or approval of any Person which
shall not have been obtained to sell and purchase the Shares (except as
otherwise provided in this Agreement).
6.6 Registration Rights Agreement. The Registration Rights Agreement
shall not have been terminated.
6.7 Company Purchase Agreement. The Purchaser and the Company shall have
consummated the acquisition by the Purchaser of 20,350,000 shares of Common
Stock from the Company pursuant to the terms of the Company Purchase Agreement
(unless such acquisition shall not have been consummated as a result of a breach
by the Company thereunder).
6.8 Master Agreement. The Master Agreement shall not have been terminated (or
notice of termination provided) in accordance with the terms thereof.
ARTICLE VII
MISCELLANEOUS
7.1 Registration Rights. The Seller hereby agrees that if any "Other Agreement"
(as defined in that certain Registration Rights Agreement between the Seller and
the
Company dated as of April 18, 1999) is entered into, the Seller will cause
the Company to enter into an "Other Agreement" with the Purchaser on
substantially the same terms.
7.2 Purchaser Director. The Seller will, and will cause its Affiliates to, vote
all of their respective shares of Common Stock in favor of the election of the
Purchaser Director (as defined in Section 7.5(b) of the Company Purchase
Agreement), for so long as the Purchaser is entitled under the Company Purchase
Agreement to designate a Purchaser Director.
7.3 Certain Definitions. As used in this Agreement:
(a) The term "Affiliate" shall have the meaning given such term in Rule 12b-2
under the Exchange Act.
(b) The terms "Beneficial Ownership" and "Beneficial Owner" shall have the
meanings given such terms in Section 13(d)(3) of the Exchange Act and the rules
and regulations promulgated thereunder.
(c) The term "Change of Control" shall mean (1) an acquisition of, or the
entering into of a definitive agreement with the Company to acquire, Voting
Stock by a Person or Group (other than the Seller or its Affiliates) in a
purchase or transaction or series of purchases or transactions if immediately
thereafter such Person or Group has, or would have, Beneficial Ownership of more
than 50% of the combined voting power of the Company's then outstanding Voting
Stock; (2) the execution of an agreement providing for a tender offer, merger,
consolidation or reorganization, or series of such related transactions
involving the Company, unless both (x) the stockholders of the Company,
immediately after such transaction or transactions shall Beneficially Own at
least 50% of the Voting Stock of the Company (or, if the Company shall not be
the surviving company in such merger, consolidation or reorganization, such
surviving company), and (y) the Company is not subject to an agreement that
contemplates that individuals who are then directors of the Company (or
individuals designated by the Company at or before the closing of such
transaction) shall constitute less than a majority of the directors of the
Company (or such surviving company, as the case may be) after the closing of
such transaction; (3) a change or changes in the membership of the Company's
Board of Directors which represent a change of a majority or more of such
membership during any twelve month period (unless such change or changes in
membership are caused by the actions of the then existing Board of Directors and
do not occur within twelve months of the commencement, threat or proposal of an
Election Contest (as such term is defined in Rule 14a-11 of Regulation 14A under
the Exchange Act), tender offer or other transaction which would constitute a
Change of Control under (1) or (2) of this Section 8.1(b)); (4) a sale of all or
substantially all of the Company's assets; or (5) an Insolvency Proceeding (as
defined in Section 8.1).
(d) The term "Governmental Entity" shall mean any agency, bureau, commission,
court, department, official, political subdivision, tribunal or other
instrumentality of any government, whether federal, state, county or local,
domestic or foreign.
(e) The term "Group" shall have the meaning given such term in Section 13(d)(3)
of the Exchange Act and the rules and regulations promulgated thereunder.
(f) The term "Insolvency Proceeding" shall mean (1) an assignment for the
benefit of creditors, (2) the filing by the Company of a petition to have the
Company adjudged insolvent, bankrupt or seeking a reorganization or liquidation
under any law relating to bankruptcy, insolvency or receivership, (3) an
appointment of a receiver or trustee for all or substantially all of the assets
of the Company unless appointed without the Company's consent, in which case if
after 60 days such appointment has not been vacated or stayed, (4) a public
admission in writing of the Company's inability to pay its debts as they come
due, or (5) the adoption of a plan of liquidation or dissolution by the Board of
Directors of the Company.
(g) The term "Material Adverse Effect" shall mean, with respect to any Person, a
material adverse effect on the business, properties, operations, or condition
(financial or otherwise) of such Person (and its subsidiaries), taken as a
whole.
(h) The term "Person" shall mean any person, individual, corporation,
partnership, trust or other non-governmental entity or any governmental agency,
court, authority or other body (whether foreign, federal, state, local or
otherwise).
(i) The term "Voting Stock" shall mean (1) the Common Stock and any other
securities issued by the Company having the ordinary power to vote in the
election of directors of the Company (other than securities having such power
only upon the happening of a contingency), and (2) the common stock and any
other securities issued by any successor to the Company pursuant to a merger,
consolidation or reorganization having the ordinary power to vote in the
election of directors of such successor company (other than securities having
such power only upon the happening of a contingency).
(j) As used herein, any references to specified numbers (but not percentages) of
Shares or of Common Stock shall be deemed to be references to such number of
Shares or of Common Stock as 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 occurring after the date of this Agreement.
7.4 Further Assurances.
(a) Each of the Seller and the Purchaser shall use its commercially reasonable
efforts to take all actions required under any law, rule or regulation to ensure
that the conditions to the Closing set forth herein are satisfied on or before
the Closing Date.
(b) Each of the Seller and the Purchaser shall, in connection with the efforts
referenced in Section 8.2(a), use commercially reasonable efforts to obtain all
requisite approvals and authorizations for the sale and purchase of the Shares
under any law, rule, regulation, order or decree (collectively, the "Laws"). In
furtherance and not in limitation of the foregoing, each of the Seller and the
Purchaser shall (1) cooperate in all respects with each other in connection with
any filing or submission and in connection with any investigation or other
inquiry, including any proceeding initiated by a private party, (2) promptly
inform the other party of any communication received by such party from, or
given by such party to any Governmental Entity and of any material communication
received or given in connection with any proceeding by a
private party, in each case regarding any of the transactions contemplated
hereby, and (3) permit the other party to review any communication given by it
to, and consult with each other in advance of any meeting or conference with,
any Governmental Entity or, in connection with any proceeding by a private
party, with any other Person, and to the extent permitted by the Governmental
Entity or other Person, give the other party the opportunity to attend and
participate in such meetings and conferences.
(c) In furtherance and not in limitation of the covenants of the parties
contained in Sections 8.2(a), (b) and (c), if any administrative or judicial
action or proceeding, including any proceeding by a private party, is instituted
(or threatened to be instituted) challenging the purchase of the Shares
contemplated by this Agreement as violative of any Law, each of the Seller and
the Purchaser shall cooperate in all respects with each other and use
commercially reasonable efforts to contest and resist any such action or
proceeding and to have vacated, lifted, reversed or overturned any decree,
judgment, injunction or other order, whether temporary, preliminary or
permanent, that is in effect and that prohibits, prevents or restricts
consummation of the transactions contemplated by this Agreement. Notwithstanding
the foregoing or any other provision of this Agreement, nothing in this Section
8.2 shall limit a party's right to terminate this Agreement pursuant to Section
8.10, so long as such party has complied with this Section 8.2.
(d) If any objections are asserted with respect to the transactions contemplated
hereby under any Law or if any suit is instituted by any Governmental Entity or
any private party challenging the purchase of the Shares contemplated hereby as
violative of any Law, each of the Seller and the Purchaser shall use
commercially reasonable efforts to resolve any such objections or challenge as
such Governmental Entity or private party may have to such transactions under
such Law so as to permit consummation of the transactions contemplated by this
Agreement.
7.5 Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York, without regard to principles
of conflicts of law.
7.6 Survival . The representations and warranties in Articles III and IV of this
Agreement shall survive until 30 days following the filing by the Company with
the SEC of its first annual report on Form 10-K after the date hereof, except
for the representations and warranties in Sections 3.5, 3.9 and 3.11, and in
Sections 4.4 through 4.11 hereof, which shall continue to survive.
7.7 Successors and Assigns. This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective successors and
permitted assigns. Neither party may assign this Agreement or any of its rights
or obligations hereunder to any Person without the prior written consent of the
other party; provided that the Purchaser may assign its rights and obligations
hereunder to any of BellSouth Corporation and its direct or indirect,
wholly-owned subsidiaries.
7.8 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.
7.9 Entire Agreement. This Agreement and the Registration Rights Agreement
embody the entire agreement and understanding of the parties and supersede all
prior agreements or understandings with respect to the subject matter thereof.
7.10 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 Seller, to:
Anschutz Company
0000 Xxxxx Xxxxx
000 Xxxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Facsimile Number: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx, President
and with additional copies to:
Qwest Communications International Inc.
000 Xxxxx Xxxxx
000 Xxxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Facsimile Number: (000) 000-0000
Attention: Chief Financial Officer
Holme Xxxxxxx & Xxxx LLP
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Facsimile Number: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx
(b) If to the Purchaser, 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:
BellSouth Corporation
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Facsimile Number: (000) 000-0000
Attention: E. Xxxx Xxxxxxxx
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile Number: (000) 000-0000
Attention: Xxxx X. Xxxxxxxxx
7.11 Fees, Costs and Expenses. All fees, costs and expenses (including
attorneys' fees and expenses) incurred by either party hereto in connection with
the preparation, negotiation and execution of this Agreement and the
consummation of the transactions contemplated hereby, shall be the sole and
exclusive responsibility of such party. The Purchaser shall pay the filing fee
for filing of the Notification and Report Form pursuant to the HSR Act.
7.12 Termination.
(a) This Agreement may be terminated at any time prior to the Closing Date:
(1) by mutual written consent of the Seller and the Purchaser;
(2) by either the Seller or the Purchaser if the other materially
breaches this Agreement and such breach remains uncured for 30
days after receipt by the breaching party of written notice
thereof;
(3) by either the Seller or the Purchaser if the Closing Date shall not have
occurred on or before the date that is 120 days after the date of this
Agreement (the "Termination Date"), unless prior to the Termination Date
any party reasonably determines that it is substantially unlikely that the
conditions to such party's obligations will be fulfilled by the Termination
Date and delivers to the other party a notice to such effect, in which case
this Agreement will terminate within ten days after receipt of such notice
by the other party. The right to terminate this Agreement under this
Section 8.10(a)(3) shall be not available to
any party whose failure to fulfill any obligation under this
Agreement has been the cause of, or resulted in, the failure of any
condition to be satisfied.
(b) In the event of termination of this Agreement by either the Seller or the
Purchaser as provided in this Section 8.10, this Agreement shall forthwith
become null and void and there shall be no liability or obligation on the part
of the Seller or the Purchaser except with respect to Sections 3.11, 4.11 and
8.9 and this Section 8.10(b); provided, however, that in the case of termination
as provided in Section 8.10(a)(2), the breaching party shall not be absolved
from any liability with respect to breach of this Agreement.
7.13 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.
7.14 Publicity. The Seller and the Purchaser shall agree on the form and
content of the initial public announcement which shall be made concerning this
Agreement and the transactions contemplated hereby, and neither the Seller nor
the Purchaser shall make such public announcement without the consent of the
other, except as required by law.
7.15 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.
7.16 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.
7.17 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 Entity (each, an "Action"), with respect to this Agreement or any
transaction contemplated by this Agreement may be brought 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.
7.18 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.
7.19 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 8.17 shall
be deemed to be a waiver by the Seller 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.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first written above.
BELLSOUTH ENTERPRISES, INC.
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Authorized Signatory
ANSCHUTZ COMPANY
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: V.P.
S-1
Exhibit A
Form of Opinion of Counsel to the Seller
On the basis of such examination, our reliance upon the assumptions in
this opinion and our consideration of those questions of law we considered
relevant, and subject to the limitations and qualifications in this opinion, we
are of the opinion that the Shares have been duly authorized by all necessary
corporate action on the part of the Company and, upon payment for and delivery
of the Shares in accordance with the Purchase Agreement and the countersigning
of the certificate or certificates representing the Shares by a duly authorized
signatory of the registrar for the Common Stock, the Shares will be validly
issued, fully paid and non-assessable.
COMMON STOCK PURCHASE AGREEMENT
by and between
ANSCHUTZ COMPANY
and
BELLSOUTH ENTERPRISES, INC
Dated as of April 19, 1999
TABLE OF CONTENTS
Page
ARTICLE I
AGREEMENT TO PURCHASE AND SELL COMMON STOCK
1.1 Agreement to Purchase and Sell Common Stock.......................1
ARTICLE II
CLOSING DATE; DELIVERY
2.1 Closing Date......................................................1
2.2 Delivery..........................................................2
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SELLER
3.1 Corporate Existence and Power.....................................2
3.2 Authorization; Contravention......................................3
3.3 SEC Documents.....................................................3
3.4 Approvals.........................................................3
3.5 Binding Effect....................................................4
3.6 Financial Information.............................................4
3.7 Absence of Certain Changes or Events..............................4
3.8 Litigation........................................................4
3.9 Capitalization....................................................5
3.10 Absence of Certain Agreements.....................................5
3.11 No Broker.........................................................5
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
4.1 Corporate Existence and Power.....................................6
4.2 Authorization; Contravention......................................6
4.3 Approvals.........................................................6
4.4 Binding Effect....................................................6
4.5 Investment........................................................6
4.6 Disclosure of Information.........................................7
4.7 Investment Experience.............................................7
4.8 Accredited Investor Status........................................7
4.9 Restricted Securities.............................................7
4.10 Investigation.....................................................7
TABLE OF CONTENTS
(continued)
Page
4.11 No Broker.........................................................7
ARTICLE V
CONDITIONS TO OBLIGATION OF THE PURCHASER
5.1 Representations and Warranties....................................7
5.2 Covenants.........................................................8
5.3 HSR Act...........................................................8
5.4 No Order Pending..................................................8
5.5 No Law Prohibiting or Restricting Sale of the Shares..............8
5.6 Registration Rights Agreement.....................................8
5.7 Company Purchase Agreement........................................8
5.8 Master Agreement..................................................8
ARTICLE VI
CONDITIONS TO OBLIGATION OF THE SELLER
6.1 Representations and Warranties....................................8
6.2 Covenants.........................................................9
6.3 HSR Act...........................................................9
6.4 No Order Pending..................................................9
6.5 No Law Prohibiting or Restricting the Sale of the Shares..........9
6.6 Registration Rights Agreement.....................................9
6.7 Company Purchase Agreement........................................9
6.8 Master Agreement..................................................9
ARTICLE VII
MISCELLANEOUS
7.1 Registration Rights...............................................9
7.2 Purchaser Director...............................................10
7.3 Certain Definitions..............................................10
7.4 Further Assurances...............................................11
7.5 Governing Law....................................................12
7.6 Survival.........................................................12
7.7 Successors and Assigns...........................................12
7.8 Amendments; Etc..................................................12
7.9 Entire Agreement.................................................12
7.10 Notices..........................................................13
7.11 Fees, Costs and Expenses.........................................14
7.12 Termination......................................................14
TABLE OF CONTENTS
(continued)
Page
7.13 Severability of Provisions.......................................14
7.14 Publicity........................................................15
7.15 Headings and References..........................................15
7.16 Counterparts; Effectiveness......................................15
7.17 Jurisdiction.....................................................15
7.18 Waiver of Jury Trial.............................................15
7.19 Non-Recourse.....................................................15
