VOTING AGREEMENT Dated as of April 26, 2011, Among CENTURYLINK, INC. and the Stockholders Listed on Schedule I
Exhibit 10.1
Dated as of April 26, 2011,
Among
and
the Stockholders Listed on Schedule I
TABLE OF CONTENTS
Page | ||||
ARTICLE I General |
1 | |||
1.1. Defined Terms |
1 | |||
ARTICLE II VOTING |
2 | |||
2.1. Agreement to Vote |
2 | |||
2.2. No Inconsistent Agreements |
3 | |||
2.3. Proxy |
3 | |||
ARTICLE III REPRESENTATIONS AND WARRANTIES |
3 | |||
3.1. Representations and Warranties of the Stockholders |
3 | |||
ARTICLE IV OTHER COVENANTS |
5 | |||
4.1. No Proxies for or Encumbrances on Covered Shares |
5 | |||
4.2. No Solicitation |
6 | |||
4.3. Documentation and Information |
6 | |||
4.4. Waiver of Appraisal and Dissenters’ Rights and Actions |
7 | |||
4.5. Further Assurances |
7 | |||
ARTICLE V MISCELLANEOUS |
7 | |||
5.1. Amendment |
7 | |||
5.2. Extension; Waiver |
7 | |||
5.3. Termination |
7 | |||
5.4. Notices |
8 | |||
5.5. Interpretation; Definitions |
9 | |||
5.6. Severability |
9 | |||
5.7. Counterparts |
9 | |||
5.8. Entire Agreement; No Third-Party Beneficiaries |
9 | |||
5.9. GOVERNING LAW |
9 | |||
5.10. Assignment |
9 | |||
5.11. Specific Enforcement |
10 | |||
5.12. Waiver of Jury Trial |
10 | |||
5.13. Action in Stockholder Capacity Only |
10 | |||
Schedule I: Stockholders |
ii
INDEX OF DEFINED TERMS
Page | ||||
Affiliate
|
1 | |||
Agreement
|
1 | |||
Beneficial Owner
|
1 | |||
Beneficial Ownership
|
1 | |||
Beneficially Own
|
1 | |||
Beneficially Owned
|
1 | |||
Company
|
1 | |||
Company Common Stock
|
1 | |||
Covered Shares
|
2 | |||
Encumber
|
2 | |||
Encumbrance
|
2 | |||
Existing Shares
|
1 | |||
Expiration Date
|
2 | |||
Grantees
|
3 | |||
Investor Rights Agreement
|
4 | |||
Merger Agreement
|
1 | |||
Merger Sub
|
1 | |||
Parent
|
1 | |||
Stockholder
|
1 |
iii
VOTING AGREEMENT, dated as of April 26, 2011 (this “Agreement”), by and among
CENTURYLINK, INC., a company organized under the laws of the State of Louisiana (“Parent”),
and each of the individuals or entities listed on Schedule I (each a
“Stockholder”).
W I T
N E S S E T H:
WHEREAS, concurrently with the execution of this Agreement, Parent, SAVVIS, Inc., a Delaware
corporation (the “Company”), and Mimi Acquisition Company, a Delaware corporation and a
wholly owned subsidiary of Parent (“Merger Sub”), are entering into an Agreement and Plan
of Merger, dated as of the date hereof (as amended, supplemented, restated or otherwise modified
from time to time, the “Merger Agreement”), pursuant to which, among other things, subject
to the terms and conditions thereof, each outstanding share of the common stock, par value $0.01
per share, of the Company (the “Company Common Stock”) will be converted into the right to
receive the Merger Consideration (as defined therein);
WHEREAS, as of the date hereof, each Stockholder is a Beneficial Owner (as defined below) and
the owner of record of the shares of Company Common Stock set forth opposite such Stockholder’s
name under the heading “Existing Shares” on Schedule I (all such shares, such Stockholder’s
“Existing Shares”); and
WHEREAS, as a condition and inducement to Parent entering into the Merger Agreement, Parent
has required that the Stockholders agree, and each of the Stockholders have agreed, to enter into
this Agreement and abide by the covenants and obligations with respect to the Covered Shares (as
defined herein) set forth herein;
NOW, THEREFORE, in consideration of the foregoing and the mutual representations, warranties,
covenants and agreements herein contained, and intending to be legally bound hereby, the parties
hereto agree as follows:
ARTICLE I
GENERAL
1.1. Defined Terms. The following capitalized terms, as used in this Agreement, shall have
the meanings set forth below. Capitalized and other defined terms used but not otherwise defined
herein shall have the meanings ascribed thereto in the Merger Agreement.
An “Affiliate” of any Person means another Person that directly or indirectly, through
one or more intermediaries, controls, is controlled by, or is under common control with, such first
Person; provided that the Company shall not be deemed an Affiliate of any Stockholder.
“Beneficial Ownership” has the meaning ascribed to such term in Rule 13d-3 under the
Securities Exchange Act of 1934, as amended. The terms “Beneficially Own,”
“Beneficially Owned” and “Beneficial Owner” shall each have a correlative meaning.
“Covered Shares” means, with respect to any Stockholder, such Stockholder’s Existing
Shares and any shares of Company Common Stock of which such Stockholder acquires Beneficial
Ownership or ownership of record prior to the Expiration Date; provided that any unissued share of
Company Common Stock underlying an option shall not be a Covered Share until the exercise of such
option.
“Encumbrance” means any mortgage, lien, pledge, charge, option, proxy, voting trust or
agreement, understanding or arrangements, right of first refusal or offer, security interest or
encumbrance of any kind, or any other encumbrances whatsoever on title, transfer or exercise of any
rights of a stockholder. The term “Encumber” shall have a correlative meaning.
“Expiration Date” shall mean the date on which this Agreement terminates in accordance
with its terms.
ARTICLE II
VOTING
2.1. Agreement to Vote. Each Stockholder hereby irrevocably and unconditionally agrees
that until the Expiration Date, at the Company Stockholders Meeting and at any other annual or
special meeting of the stockholders of the Company, however called, including any adjournment or
postponement thereof, and in connection with any action proposed to be taken by written consent of
the stockholders of the Company, each Stockholder shall, in each case to the fullest extent that
the Covered Shares are entitled to vote thereon or consent thereto:
(a) appear at each such meeting or otherwise cause the Covered Shares to be counted as present
thereat for purposes of determining a quorum; and
(b) vote (or cause to be voted), in person or by proxy, or deliver (or cause to be delivered)
a written consent with respect to, all of such Stockholder’s Covered Shares (A) in favor of the
adoption of the Merger Agreement and any action reasonably requested by Parent in furtherance of
the foregoing, including any proposal to adjourn or postpone any meeting of the stockholders of the
Company at which the adoption of the Merger Agreement is submitted for the consideration and vote
of the stockholders of the Company to a later date if there are not sufficient votes for approval
of such matters on the date on which the meeting is held; (B) against any action or agreement that
would reasonably be expected to (1) result in a breach of any covenant, representation or warranty
or any other obligation or agreement of the Company contained in the Merger Agreement, or of any
Stockholder contained in this Agreement or (2) result in any of the conditions set forth in Article
VII of the Merger Agreement not being satisfied on or before the End Date; (C) against any change
in the Board of Directors of the Company and (D) against any Takeover Proposal and against any
other action, agreement or transaction involving the Company or any of the Company Subsidiaries
that is intended, or would reasonably be expected, to impede, interfere with, delay, postpone,
adversely affect or prevent the consummation of the Merger or the other transactions contemplated
by the Merger Agreement or this Agreement or the performance by the Company of its obligations
under the Merger Agreement or by any Stockholder of its obligations under this Agreement, including
(1) any extraordinary corporate transaction, such as a merger, consolidation or other business
2
combination involving the Company or the Company Subsidiaries (other than the Merger); (2) a
sale, lease or transfer of a material amount of assets of the Company or any of the Company
Subsidiaries or any reorganization, recapitalization or liquidation of the Company or any of the
Company Subsidiaries or (3) any change in the present capitalization of the Company or any
amendment or other change to its certificate of incorporation or by-laws.
2.2. No Inconsistent Agreements. Each Stockholder hereby covenants and agrees that, except
for this Agreement, such Stockholder has not taken and shall not take any action that would make
any representation or warranty of such Stockholder contained herein untrue or incorrect or have the
effect of preventing or disabling such Stockholder from performing any of its obligations under
this Agreement or that is intended, or would reasonably be expected, to impede, interfere with,
delay, postpone, adversely affect or prevent the consummation of the Merger or the other
transactions contemplated by the Merger Agreement or this Agreement or the performance by the
Company of its obligations under the Merger Agreement or by any Stockholder of its obligations
under this Agreement.
2.3. Proxy. Each Stockholder hereby irrevocably appoints as its proxy and attorney-in-fact
Xxxx X. Post III and Xxxxxx X. Xxxx in their respective capacities as officers of Parent, and any
individual who shall hereafter succeed any such officer of Parent, and any other Person designated
in writing by Parent (collectively, the “Grantees”), each of them individually, with full
power of substitution and resubstitution, to vote or execute written consents with respect to the
Covered Shares in accordance with Section 2.1 prior to the Expiration Date at the Company
Stockholders Meeting and at any other annual or special meeting of the stockholders of the Company,
however called, including any adjournment or postponement thereof, at which any of the matters
described in Section 2.1 is to be considered. Each Stockholder hereby represents that all
proxies, powers of attorney, instructions or other requests given by such Stockholder prior to the
execution of this Agreement in respect of the voting of such Stockholder’s Covered Shares, if any,
are not irrevocable and such Stockholder hereby revokes (or causes to be revoked) any and all
previous proxies, powers of attorney, instructions or other requests with respect to such
Stockholder’s Covered Shares. This proxy is coupled with an interest, was given as an additional
inducement of Parent to enter into the Merger Agreement and shall be irrevocable prior to the
Expiration Date, at which time any such proxy shall terminate. Each Stockholder shall take such
further action or execute such other instruments as may be necessary to effectuate the intent of
this proxy. Parent may terminate this proxy with respect to a Stockholder at any time at its sole
election by written notice provided to such Stockholder.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1. Representations and Warranties of the Stockholders. Each Stockholder hereby
represents and warrants to Parent as follows:
(a) Authorization; Validity of Agreement; Necessary Action. If such Stockholder is
not an individual, the execution, delivery and performance by such Stockholder of this Agreement
and the consummation by such Stockholder of the transactions contemplated
3
hereby are within the powers of such Stockholder and have been duly authorized by all
necessary action. If such Stockholder is an individual, he has full legal capacity, right and
authority to execute and deliver this Agreement and to perform his obligations hereunder. Such
Stockholder has duly executed and delivered this Agreement and, assuming the due authorization,
execution and delivery by Parent, this Agreement constitutes such Stockholder’s legal, valid and
binding obligation, enforceable against it in accordance with its terms except, in each case, as
enforcement may be limited by bankruptcy, insolvency, reorganization or similar Laws affecting
creditors’ rights generally and by general principles of equity. If such Stockholder is married
and any of the Covered Shares constitute community property or spousal approval is otherwise
necessary for this Agreement to be legal, valid, binding and enforceable, this Agreement has been
duly executed and delivered by, and, assuming the due authorization, execution and delivery by
Parent, constitutes the legal, valid and binding obligation of, such Stockholder’s spouse,
enforceable in accordance with its terms except, in each case, as enforcement may be limited by
bankruptcy, insolvency, reorganization or similar Laws affecting creditors’ rights generally and by
general principles of equity.
(b) Ownership. Such Stockholder’s Covered Shares are and will at all times through
the Closing Date be Beneficially Owned and owned of record by such Stockholder. Such Stockholder
has and will at all times through the Closing Date have good and valid title to such Stockholder’s
Covered Shares, free and clear of any Encumbrances other than (i) pursuant to this Agreement, (ii)
the restrictions on transfer set forth in Section 2 of the Investor Rights Agreement dated as of
March 6, 2002 among the Company and the other parties thereto as in effect on the date hereof
(disregarding any amendments thereto, the “Investor Rights Agreement”) and (iii)
restrictions on Covered Shares underlying restricted stock awards issued to directors of the
Company. The Investor Rights Agreement has not been amended, supplemented, restated or otherwise
modified other than pursuant to Amendment No. 1 thereto dated as of June 28, 2002 and Amendment No.
2 thereto dated as of May 10, 2006, and a complete and correct copy of the Investor Rights
Agreement and each of such amendments thereto has been filed by the Company with the SEC prior to
the date hereof. As of the date hereof, except as set forth on Schedule I, such Stockholder’s
Existing Shares constitute all of the shares of Company Common Stock Beneficially Owned or owned of
record by such Stockholder. Such Stockholder has and will have at all times through the Closing
Date sole voting power (including the right to control such vote as contemplated herein), sole
power of disposition (except with respect to Covered Shares underlying restricted stock awards
issued to directors of the Company), sole power to issue instructions with respect to the matters
set forth in Article II or Section 4.1, and sole power to agree to all of the
matters set forth in this Agreement, in each case with respect to all of such Stockholder’s Covered
Shares.
(c) No Violation. The execution and delivery of this Agreement by such Stockholder do
not, and the performance by such Stockholder of its obligations under this Agreement will not, (i)
if such Stockholder is not an individual, violate the certificate of formation, agreement of
limited partnership, certificate of incorporation or similar organizational documents of such
Stockholder, (ii) conflict with or violate any law, ordinance or regulation of any Governmental
Entity applicable to such Stockholder or by which any of its assets or properties is bound, or
(iii) conflict with, result in any breach of or constitute a default (or an event that with notice
or lapse of time or both would become a default) under, or give to others
4
any rights of
termination, amendment, acceleration or cancellation of, or result in the creation of any Encumbrance on the properties or assets of such Stockholder pursuant to, any note, bond,
mortgage, indenture, Contract, agreement, lease, license, permit, franchise or other instrument or
obligation to which such Stockholder is a party or by which such Stockholder and/or any of its
assets or properties is bound, except for any of the foregoing as would not reasonably be expected,
either individually or in the aggregate, to impair the ability of such Stockholder to perform its
obligations hereunder or to consummate the transactions contemplated hereby on a timely basis.
(d) Consents and Approvals. The execution and delivery of this Agreement by such
Stockholder do not, and the performance by such Stockholder of its obligations under this Agreement
and the consummation by it of the transactions contemplated hereby will not, require such
Stockholder to obtain any consent, approval, authorization or permit of, or to make any filing with
or notification to, any Governmental Entity, other than the filings of any reports with the
Securities and Exchange Commission.
(e) Absence of Litigation. As of the date hereof there is no Action pending or, to
the knowledge of such Stockholder, threatened against or affecting such Stockholder and/or any of
its Affiliates before or by any Governmental Entity that would reasonably be expected to impair the
ability of such Stockholder to perform its obligations hereunder or to consummate the transactions
contemplated hereby on a timely basis.
(f) Finder’s Fees. No investment banker, broker, finder or other intermediary is
entitled to a fee or commission from Parent or the Company in respect of this Agreement based upon
any arrangement or agreement made by or on behalf of such Stockholder.
(g) Reliance by Parent. Such Stockholder understands and acknowledges that Parent is
entering into the Merger Agreement in reliance upon the execution and delivery of this Agreement by
the Stockholders and the representations, warranties and covenants of the Stockholders contained
herein. Such Stockholder understands and acknowledges that the Merger Agreement governs the terms
of the Merger and the other transactions contemplated thereby.
3.2. Representations and Warranties of Parent. The execution, delivery and
performance by Parent of this Agreement and the consummation by Parent of the transactions
contemplated hereby are within the powers of Parent and have been duly authorized by all necessary
action. Parent has duly executed and delivered this Agreement and, assuming the due authorization,
execution and delivery by each Stockholder, this Agreement constitutes Parent’s legal, valid and
binding obligation, enforceable against it in accordance with its terms except, in each case, as
enforcement may be limited by bankruptcy, insolvency, reorganization or similar Laws affecting
creditors’ rights generally and by general principles of equity.
ARTICLE IV
OTHER COVENANTS
4.1. No Proxies for or Encumbrances on Covered Shares. Except pursuant to the terms of
this Agreement or the Merger Agreement, such Stockholder shall not, without the prior
5
written
consent of Parent, directly or indirectly, (a) grant any proxies or enter into any voting trust or
other agreement or arrangement with respect to the voting of any Covered Shares or (b) sell,
assign, transfer, Encumber or otherwise dispose of, or enter into any Contract, option or other
arrangement or understanding with respect to the direct or indirect sale, assignment, transfer,
Encumbrance or other disposition of, any Covered Shares during the term of this Agreement. Such
Stockholder shall not seek or solicit any such sale, assignment, transfer, Encumbrance or other
disposition or any such Contract, option or other arrangement or understanding. Each Stockholder
hereby authorizes and instructs the Company (including its transfer agent) to, upon direction of
Parent, impose stop orders to prevent the transfer of any Covered Shares on the books of the
Company in violation of this Agreement.
4.2. No Solicitation. Each Stockholder shall not, nor shall it authorize or permit any of
its Affiliates or any of its and their respective Representatives to, (i) directly or indirectly
solicit or initiate, or knowingly encourage, induce or facilitate any Takeover Proposal or any
inquiry or proposal that may reasonably be expected to lead to a Takeover Proposal or (ii) directly
or indirectly participate in any discussions or negotiations with any Person regarding, or furnish
to any Person any information with respect to, or cooperate in any way with any Person (whether or
not a Person making a Takeover Proposal) with respect to any Takeover Proposal or any inquiry or
proposal that may reasonably be expected to lead to a Takeover Proposal; provided,
however, that if the Company is engaging in activities with respect to a Takeover Proposal
that the Stockholders reasonably believe are in compliance with the provisions of the Merger
Agreement, the Stockholders, their Affiliates and their respective Representatives may participate
with the Company in such activities. Each Stockholder shall, and shall cause its Affiliates and
its and their respective Representatives to, immediately cease and cause to be terminated all
existing discussions or negotiations with any Person conducted heretofore with respect to any
Takeover Proposal or any inquiry or proposal that may reasonably be expected to lead to a Takeover
Proposal.
4.3. Documentation and Information. Unless required by Law or legal process, each
Stockholder shall not, and shall cause its Representatives not to, make any press release, public
announcement or other public communication that criticizes or disparages this Agreement or the
Merger Agreement or the transactions contemplated hereby or thereby, without the prior written
consent of Parent. Each Stockholder (a) consents to and authorizes the publication and disclosure
by Parent or the Company of such Stockholder’s identity and holding of Covered Shares, the nature
of such Stockholder’s commitments, arrangements and understandings under this Agreement (including,
for the avoidance of doubt, the disclosure of this Agreement) and any other information, in each
case, that Parent or the Company reasonably determines is required to be disclosed by Law in any
press release, any Current Report on Form 8-K, any Statement on Schedule 13D, the Form S-4, the
Proxy Statement, any other disclosure document in connection with the Merger Agreement and any
filings with or notices to Governmental Entities in connection with the Merger Agreement and (b)
agrees promptly to give to Parent any information it may reasonably request for the preparation of
any such documents. Each Stockholder hereby agrees, while this Agreement is in effect, to notify
Parent promptly in writing of the number and description of any additional Covered Shares of which
such Stockholder acquires Beneficial Ownership or ownership of record.
6
4.4. Waiver of Appraisal and Dissenters’ Rights and Actions. Each Stockholder hereby (i)
waives and agrees not to exercise any rights of appraisal or rights to dissent from the Merger that
such Stockholder may have and (ii) agrees not to commence or participate in, and to take all
actions necessary to opt out of any class in any class action with respect to, any claim,
derivative or otherwise, against Parent, Merger Sub, the Company or any of their respective
successors relating to the negotiation, execution or delivery of this Agreement or the Merger
Agreement or the consummation of the Merger, including any claim (x) challenging the validity of,
or seeking to enjoin the operation of, any provision of this Agreement or the Merger Agreement or
(y) alleging a breach of any fiduciary duty of the Board of Directors of the Company in connection
with the Merger Agreement or the transactions contemplated thereby.
4.5. Further Assurances. From time to time, at Parent’s reasonable request, Welsh,
Carson, Xxxxxxxx & Xxxxx VIII, L.P. and WCAS Management Corporation shall cooperate with Parent in
making all filings (including FCC applications) and shall obtain all consents of Governmental
Entities and third parties and execute and deliver such additional documents and take all such
further actions as may be necessary or desirable to effect the actions contemplated by this
Agreement and the Merger Agreement.
ARTICLE V
MISCELLANEOUS
5.1. Amendment. This Agreement may not be amended except by an instrument in writing
signed on behalf of each of the parties.
5.2. Extension; Waiver. At any time prior to the Effective Time, the parties may (a)
extend the time for the performance of any of the obligations or other acts of the other parties,
(b) waive any inaccuracies in the representations and warranties contained in this Agreement or in
any document delivered pursuant to this Agreement, or (c) waive compliance with any covenants and
agreements contained in this Agreement. Any agreement on the part of a party to any such extension
or waiver shall be valid only if set forth in an instrument in writing signed on behalf of such
party. The failure of any party to this Agreement to assert any of its rights under this Agreement
or otherwise shall not constitute a waiver of such rights.
5.3. Termination. This Agreement shall remain in effect until the earlier to occur of (a)
the receipt of the Company Stockholder Approval; (b) the termination of the Merger Agreement in
accordance with its terms; (c) an Adverse Recommendation Change in response to a Superior
Proposal; and (d) the effective date of any waiver, amendment or other modification of the
Merger Agreement that reduces the per share Merger Consideration, or changes the cash/equity per
share allocation of the consideration to be received (other than by adding cash consideration and,
for clarity, other than by any adjustment to the Exchange Ratio pursuant to the terms of the Merger
Agreement as in effect on the date hereof); provided, however, the provisions of
this Article V shall survive any termination of this Agreement without regard to any
temporal limitation. No termination of this Agreement shall relieve any Stockholder of any
liability for any breach of this Agreement. Nothing in the Merger Agreement shall relieve any
Stockholder from any liability for any breach of this Agreement. In particular, without
limitation, the liability of any Stockholder for damages and losses suffered by Parent as a
7
consequence of any breach of this Agreement by such Stockholder shall not be extinguished by the
payment or the coming due of the Termination Fee.
5.4. Notices. All notices, requests, claims, demands and other communications under this
Agreement shall be in writing and shall be deemed given upon receipt by the parties at the
following addresses (or at such other address for a party as shall be specified by like notice):
(a) if to Parent, to:
CenturyLink, Inc.
000 XxxxxxxXxxx Xxxxx
Xxxxxx, Xxxxxxxxx 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
000 XxxxxxxXxxx Xxxxx
Xxxxxx, Xxxxxxxxx 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: General Counsel
with a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxxxx
(b) if to a Stockholder, to the addresses and to the attention of the parties set forth next
to such Stockholder’s name in Schedule I, with a copy to:
Welsh, Carson, Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxxx X. Rather
and
Ropes & Xxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxxx and Xxxxxxx Xxxxxx
8
5.5. Interpretation; Definitions. When a reference is made in this Agreement to an
Article, a Section or a Schedule, such reference shall be to an Article, a Section or a Schedule of
or to this Agreement unless otherwise indicated. The table of contents, index of defined terms and
headings contained in this Agreement are for reference purposes only and shall not affect in any
way the meaning or interpretation of this Agreement. Any capitalized term used in the Schedule but
not otherwise defined therein shall have the meaning assigned to such term in this Agreement.
Whenever the words “include”, “includes” or “including” are used in this Agreement, they shall be
deemed to be followed by the words “without limitation.” The words “hereof”, “hereto”, “hereby”,
“herein” and “hereunder” and words of similar import when used in this Agreement shall refer to
this Agreement as a whole and not to any particular provision of this Agreement. The term “or” is
not exclusive. The word “extent” in the phrase “to the extent” shall mean the degree to which a
subject or other thing extends, and such phrase shall not mean simply “if.” The definitions
contained in this Agreement are applicable to the singular as well as the plural forms of such
terms. Any agreement, instrument or Law defined or referred to herein means such agreement,
instrument or Law as from time to time amended, modified or supplemented, unless otherwise
specifically indicated. References to a Person are also to its permitted successors and assigns.
Unless otherwise specifically indicated, all references to “dollars” and “$” will be deemed
references to the lawful money of the United States of America.
5.6. Severability. If any term or other provision of this Agreement is invalid, illegal or
incapable of being enforced by any rule or Law, or public policy, all other conditions and
provisions of this Agreement shall nevertheless remain in full force and effect so long as either
the economic or legal substance of the transactions contemplated hereby is not affected in any
manner materially adverse to any party or such party waives its rights under this Section
5.6 with respect thereto. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify
this Agreement so as to effect the original intent of the parties as closely as possible in an
acceptable manner to the end that transactions contemplated hereby are fulfilled to the extent
possible.
5.7. Counterparts. This Agreement may be executed in one or more counterparts, all of
which shall be considered one and the same agreement, and shall become effective when one or more
counterparts have been signed by each of the parties and delivered to the other parties.
5.8. Entire Agreement; No Third-Party Beneficiaries. This Agreement and, to the extent
referenced herein, the Merger Agreement, (a) constitutes the entire agreement, and supersedes all
prior agreements and understandings, both written and oral, between the parties with respect to
the subject matter hereof or thereof and (b) is not intended to confer upon any Person other
than the parties any rights or remedies.
5.9. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF DELAWARE, REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER ANY
APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS OF THE STATE OF DELAWARE.
5.10. Assignment. Neither this Agreement nor any of the rights, interests or obligations
under this Agreement shall be assigned, in whole or in part, by operation of Law or otherwise by
9
any of the parties without the prior written consent of the other parties. Any purported
assignment without such consent shall be void. Subject to the preceding sentences, this Agreement
will be binding upon, inure to the benefit of, and be enforceable by, the parties and their
respective successors and assigns.
5.11. Specific Enforcement. Each Stockholder acknowledges and agrees that irreparable
damage to Parent would occur in the event that any of the provisions of this Agreement were not
performed by such Stockholder in accordance with their specific terms or were otherwise breached,
and that monetary damages, even if available, would not be an adequate remedy therefor. It is
accordingly agreed that Parent shall be entitled to an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the performance of terms and provisions of
this Agreement in any court referred to in clause (a) below, without proof of actual damages (and
each Stockholder hereby waives any requirement for the securing or posting of any bond in
connection with such remedy), this being in addition to any other remedy to which they are entitled
at law or in equity. Each Stockholder further agrees not to assert that a remedy of specific
enforcement is unenforceable, invalid, contrary to Law or inequitable for any reason, nor to assert
that a remedy of monetary damages would provide an adequate remedy for any such breach. In
addition, each Stockholder (a) consents to submit itself to the personal jurisdiction of any
Delaware state court or any Federal court located in the State of Delaware in the event any dispute
arises out of this Agreement, (b) agrees that it will not attempt to deny or defeat such personal
jurisdiction by motion or other request for leave from any such court and (c) agrees that it will
not bring any action relating to this Agreement in any court other than any Delaware state court or
any Federal court sitting in the State of Delaware.
5.12. Waiver of Jury Trial. Each Stockholder hereby waives, to the fullest extent permitted
by applicable Law, any right it may have to a trial by jury in respect of any suit, action or other
proceeding arising out of this Agreement. Each Stockholder (a) certifies that no representative,
agent or attorney of any other party has represented, expressly or otherwise, that such Stockholder
would not, in the event of any action, suit or proceeding, seek to enforce the foregoing waiver and
(b) acknowledges that Parent has been induced to enter into this Agreement by, among other things,
the waiver and certifications in this Section 5.12.
5.13.
Action in Stockholder Capacity Only. No Stockholder who is or becomes during the term
hereof a director or officer of the Company makes any agreement or understanding herein in his or
her capacity as a director or officer. Any such Stockholder signs solely in his or her capacity as
the Beneficial Owner of Covered Shares and nothing in this Agreement shall
limit or affect any actions taken by such individual solely in his or her capacity as a
director or officer of the Company.
[Remainder of page left intentionally blank]
10
IN WITNESS WHEREOF, Parent and each of the Stockholders have duly executed this Agreement, all
as of the date first written above.
CENTURYLINK, INC. |
||||
By: | /s/ Xxxx X. Post, III | |||
Name: | Xxxx X. Post, III | |||
Title: | Chief Executive Officer & President |
|||
WELSH, CARSON, XXXXXXXX & XXXXX VIII, L.P. |
||||
By: | WCAS VIII Associates LLC, | |||
its General Partner | ||||
By: | /s/ Xxxxxxxx Rather | |||
Name: | Xxxxxxxx Rather | |||
Title: | Managing Member | |||
WCAS MANAGEMENT CORPORATION |
||||
By: | /s/ Xxxxxxxx Rather | |||
Name: | Xxxxxxxx Rather | |||
Title: | Treasurer | |||
XXXXXXX X. XXXXX | ||
XXXXXXX X. XXXXXX | ||
XXXXX X. XXXXXXXX | ||
XXXXXX X. XXXXXXXXX | ||
XXXXXX X. XXXXXXXXX | ||
XXXXXXX X. XXXXXXXX | ||
XXXX X. XXXXXXX | ||
XXXXXXXX X. RATHER | ||
D. XXXXX XXXXXXX | ||
XXXX X. XXXXX | ||
XXXXXX XXXXX |
By: | /s/ Xxxxxxxx X. Rather | |||
Xxxxxxxx X. Rather | ||||
Attorney-in-fact | ||||
XXXXXX FAMILY CHARITABLE TRUST |
||||
By: | /s/ Xxxxxxx X. Xxxxxx | |||
Name: | Xxxxxxx X. Xxxxxx | |||
Schedule I
Stockholders
Stockholder Name | Existing Shares | Notice Address | ||||
Welsh, Carson, Xxxxxxxx
& Xxxxx VIII, L.P.
|
10,285,694 | Welsh, Carson, Xxxxxxxx & Xxxxx 000 Xxxx Xxxxxx, Xxxxx 0000 |
||||
Xxx Xxxx, Xxx Xxxx 00000 | ||||||
Attention: Xxxxxxxx X. Rather | ||||||
Tel: (000) 000-0000 | ||||||
WCAS Management Corporation
|
80,759 | Welsh, Carson, Xxxxxxxx & Xxxxx | ||||
000 Xxxx Xxxxxx, Xxxxx 0000 | ||||||
Xxx Xxxx, Xxx Xxxx 00000 | ||||||
Attention: Xxxxxxxx X. Rather | ||||||
Tel: (000) 000-0000 | ||||||
Xxxxxxx X. Xxxxx*
|
715,927 | Xx. Xxxxxxx X. Xxxxx | ||||
Welsh, Carson, Xxxxxxxx & Xxxxx | ||||||
000 Xxxx Xxxxxx, Xxxxx 0000 | ||||||
Xxx Xxxx, Xxx Xxxx 00000 | ||||||
Tel: (000) 000-0000 | ||||||
Xxxxxxx X. Xxxxxx
|
80,149 | Xx. Xxxxxxx X. Xxxxxx | ||||
Welsh, Carson, Xxxxxxxx & Xxxxx | ||||||
000 Xxxx Xxxxxx, Xxxxx 0000 | ||||||
Xxx Xxxx, Xxx Xxxx 00000 | ||||||
Tel: (000) 000-0000 | ||||||
Xxxxxx Family Charitable Trust
|
272,967 | Xx. Xxxxxxx X. Xxxxxx | ||||
Welsh, Carson, Xxxxxxxx & Xxxxx | ||||||
000 Xxxx Xxxxxx, Xxxxx 0000 | ||||||
Xxx Xxxx, Xxx Xxxx 00000 | ||||||
Tel: (000) 000-0000 | ||||||
Xxxxx X. Xxxxxxxx
|
712,944 | Xx. Xxxxx X. Xxxxxxxx | ||||
Welsh, Carson, Xxxxxxxx & Xxxxx | ||||||
000 Xxxx Xxxxxx, Xxxxx 0000 | ||||||
Xxx Xxxx, Xxx Xxxx 00000 | ||||||
Tel: (000) 000-0000 | ||||||
Xxxxxx X. XxXxxxxxx**
|
619,205 | Xx. Xxxxxx X. XxXxxxxxx | ||||
Welsh, Carson, Xxxxxxxx & Xxxxx | ||||||
000 Xxxx Xxxxxx, Xxxxx 0000 | ||||||
Xxx Xxxx, Xxx Xxxx 00000 | ||||||
Tel: (000) 000-0000 | ||||||
Xxxxxx X. Xxxxxxxxx
|
159,410 | Xx. Xxxxxx X. Xxxxxxxxx | ||||
Welsh, Carson, Xxxxxxxx & Xxxxx | ||||||
000 Xxxx Xxxxxx, Xxxxx 0000 | ||||||
Xxx Xxxx, Xxx Xxxx 00000 | ||||||
Tel: (000) 000-0000 |
I-1
Stockholder Name | Existing Shares | Notice Address | ||||
Xxxxxxx X. xxXxxxxx***
|
101,176 | Xx. Xxxxxxx X. xxXxxxxx | ||||
Welsh, Carson, Xxxxxxxx & Xxxxx | ||||||
000 Xxxx Xxxxxx, Xxxxx 0000 | ||||||
Xxx Xxxx, Xxx Xxxx 00000 | ||||||
Tel: (000) 000-0000 | ||||||
Xxxx X. Xxxxxxx
|
37,994 | Xx. Xxxx X. Xxxxxxx | ||||
Welsh, Carson, Xxxxxxxx & Xxxxx | ||||||
000 Xxxx Xxxxxx, Xxxxx 0000 | ||||||
Xxx Xxxx, Xxx Xxxx 00000 | ||||||
Tel: (000) 000-0000 | ||||||
Xxxxxxxx X. Rather
|
15,536 | Xx. Xxxxxxxx X. Rather | ||||
Welsh, Carson, Xxxxxxxx & Xxxxx | ||||||
000 Xxxx Xxxxxx, Xxxxx 0000 | ||||||
Xxx Xxxx, Xxx Xxxx 00000 | ||||||
Tel: (000) 000-0000 | ||||||
D. Xxxxx Xxxxxxx
|
4,156 | Mr. D. Xxxxx Xxxxxxx | ||||
Welsh, Carson, Xxxxxxxx & Xxxxx | ||||||
000 Xxxx Xxxxxx, Xxxxx 0000 | ||||||
Xxx Xxxx, Xxx Xxxx 00000 | ||||||
Tel: (000) 000-0000 | ||||||
Xxxx X. Xxxxx
|
17,831 | Xx. Xxxx X. Xxxxx | ||||
Welsh, Carson, Xxxxxxxx & Xxxxx | ||||||
000 Xxxx Xxxxxx, Xxxxx 0000 | ||||||
Xxx Xxxx, Xxx Xxxx 00000 | ||||||
Tel: (000) 000-0000 | ||||||
Xxxxxx Xxxxx
|
1,556 | Xx. Xxxxxx Xxxxx | ||||
Welsh, Carson, Xxxxxxxx & Xxxxx | ||||||
000 Xxxx Xxxxxx, Xxxxx 0000 | ||||||
Xxx Xxxx, Xxx Xxxx 00000 | ||||||
Tel: (000) 000-0000 | ||||||
Total: 13,105,304 |
* | 1,200 of the Existing Shares owned by Xxxxxxx X. Xxxxx are subject to restricted stock awards. In addition, Xx. Xxxxx Beneficially Owns 11,938 shares of Company Common Stock subject to options. | |
** | 1,200 of the Existing Shares owned by Xxxxxx X. XxXxxxxxx are subject to restricted stock awards. In addition, Xx. XxXxxxxxx Beneficially Owns 11,938 shares of Company Common Stock subject to options. | |
*** | In addition, Xxxxxxx X. xxXxxxxx Beneficially Owns an aggregate 86,784 shares of Company Common Stock indirectly through the Xxxxxxx & Xxxxxxxx xxXxxxxx Family Foundation. |
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