Exhibit 10.2
VOTING AGREEMENT
This VOTING AGREEMENT (this "Agreement"), dated as of October 16, 2006,
is entered into by and among LEVEL 3 COMMUNICATIONS, INC. ("Parent") and the
individuals and other parties listed on Schedule A hereto (each, a
"Stockholder", and collectively, the "Stockholders").
WHEREAS, the Stockholders own (both beneficially and of record) in the
aggregate 8,024,392 shares of Company Common Stock, par value $0.01 per share
("Company Common Stock"), of Broadwing Corporation, a Delaware corporation (the
"Company") (together with any shares of Company Common Stock acquired by the
Stockholder after the date hereof being collectively referred to herein as the
"Shares");
WHEREAS, Parent, Level 3 Services, LLC, a Delaware limited liability
company and a direct wholly owned Subsidiary of Parent ("Merger Sub"), Xxxxx 0
Xxxxxxxx, Xxx., a Delaware corporation and a direct wholly owned Subsidiary of
Parent ("Sister Subsidiary"), and the Company have entered into an Agreement and
Plan of Merger, dated as of the date hereof (the "Merger Agreement"); and
WHEREAS, each Stockholder has agreed to enter into this Agreement in
order to induce Parent and Merger Sub to enter into the Merger Agreement and to
consummate the transactions contemplated by the Merger Agreement.
NOW, THEREFORE, in consideration of Parent's and Merger Sub's entering
into the Merger Agreement and of the mutual covenants and agreements contained
herein and other good and valuable consideration, the adequacy of which is
hereby acknowledged, and intending to be legally bound hereby, the parties
hereto agree as follows:
SECTION 1. Defined Terms. Capitalized terms used in this Agreement and not
otherwise defined herein shall have the meanings assigned to them in the Merger
Agreement.
SECTION 2. Representations and Warranties of Stockholder. Each Stockholder
hereby represents and warrants to Parent as follows:
2.1 Title to the Shares. Such Stockholder is the record and beneficial
owner of, and has good and marketable title to, the number of shares of Company
Common Stock set forth opposite the name of such Stockholder on Schedule A
hereto, which as of the date hereof constitutes all of the shares of Company
Common Stock, or any other securities convertible into or exercisable for any
shares of Company Common Stock (all collectively being "Company Securities")
owned beneficially and of record by such Stockholder and its respective
Affiliates. Such Stockholder and its respective Affiliates do not have any
rights of any nature to acquire any additional Company Securities. Such
Stockholder owns all of such shares of Company Common Stock free and clear of
all security interests, liens, claims, pledges, options, rights of first
refusal, agreements, limitations on voting rights, restrictions, charges,
proxies and other encumbrances of any nature, and has not appointed or granted
any proxy, which appointment or grant is still effective, with respect to any of
such shares of Company Common Stock owned by it.
2.2 Organization. Such Stockholder (if an entity) is duly organized,
validly existing, and in good standing under the laws of the state of its
incorporation, formation or organization.
2.3 Authority Relative to this Agreement. Such Stockholder has the legal
capacity (in the case of Stockholders that are natural persons), and all
necessary power and authority to execute and deliver this Agreement, to perform
its obligations hereunder, and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement by such Stockholder and the
consummation by such Stockholder of the transactions contemplated hereby have
been duly and validly authorized by all necessary action on the part of such
Stockholder (in case of Stockholders that are not natural persons). This
Agreement has been duly and validly executed and delivered by such Stockholder
and, assuming the due authorization, execution and delivery by Parent,
constitutes a legal, valid and binding obligation of such Stockholder,
enforceable against such Stockholder in accordance with its terms, (i) except as
may be limited by bankruptcy, insolvency, moratorium or other similar laws
affecting or relating to enforcement of creditors' rights generally, and (ii)
subject to general principles of equity.
2.4 No Conflict. Except for any filings as may be required by applicable
federal securities laws, the execution and delivery of this Agreement by such
Stockholder does not, and the performance of this Agreement by such Stockholder
will not, (a) require any consent, approval, authorization or permit of, or
filing with or notification to, any Governmental Authority or any other Person
by such Stockholder; (b) conflict with, or result in any violation of, or
default (with or without notice or lapse of time or both) under any provision
of, the certificate of incorporation, by-laws or analogous documents of such
Stockholder (other than Stockholders that are natural persons) or any other
agreement to which such Stockholder is a party, including any voting agreement,
stockholders agreement, voting trust, trust agreement, pledge agreement, loan or
credit agreement, note, bond, mortgage, indenture lease or other agreement,
instrument, permit, concession, franchise or license; or (c) conflict with or
violate any judgment, order, notice, decree, statute, law, ordinance, rule or
regulation applicable to such Stockholder or to such Stockholder's property or
assets.
SECTION 3. Covenants of Stockholder.
3.1 Restriction on Transfer. Except as provided in the last sentence of
this Section 3.1, Stockholder hereby covenants and agrees that prior to the
termination or expiration of this Agreement, except as otherwise specifically
contemplated by this Agreement, Stockholder shall not sell, transfer, tender,
assign, hypothecate or otherwise dispose of, grant any proxy to, deposit any
Shares into a voting trust, enter into a voting trust agreement or create or
permit to exist any additional security interest, lien, claim, pledge, option,
right of first refusal, limitation on voting rights, charge or other encumbrance
of any nature with respect to the Shares, that would prevent or impair
Stockholder's performance of his obligations hereunder. Notwithstanding anything
to the contrary in this Agreement, Stockholder may continue to sell Shares in
accordance with the terms of his existing 10b5-1 trading plan, provided that he
may not amend that plan to increase the volume or frequency of the disposition
of the Shares.
3.2 Additional Shares. Prior to the termination of this Agreement, each
Stockholder will promptly notify Parent of the number of any new shares of
Company Common Stock or any
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other Company Securities acquired directly or beneficially by such Stockholder,
if any, after the date hereof. Any such shares shall become "Shares" within the
meaning of this Agreement.
3.3 Appraisal Rights. Each Stockholder hereby irrevocably waives any rights
of appraisal, or rights to dissent from the Merger, that such Stockholder may
have, and 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 the Company or any of its subsidiaries
(or any of their respective successors) relating to the negotiation, execution
and delivery of this Agreement or the Merger Agreement or the consummation of
the Merger or any of the other transactions contemplated hereby or thereby.
SECTION 4. Voting Agreement.
4.1 Voting Agreement. Each Stockholder hereby agrees, severally and not
jointly, that prior to the termination of this Agreement, at any meeting of the
stockholders of the Company, however called, in any action by written consent of
the stockholders of the Company, or in any other circumstances upon which such
Stockholder's vote, consent or other approval is sought, such Stockholder shall
vote the Shares owned beneficially or of record by such Stockholder as follows:
(a) in favor of adoption of the Merger Agreement and approval of the terms
thereof and of the Merger and each of the other transactions contemplated
thereby;
(b) against any action or agreement that Parent has provided reasonable
prior written notice thereof to Stockholder that has or would be reasonably
likely to result in any conditions to the Company's obligations under Article
VIII of the Merger Agreement not being fulfilled ;
(c) against any Acquisition Proposal;
(d) against any amendments to the Company Organizational Documents if such
amendment would reasonably be expected to prevent or delay the consummation of
the Closing; and
(e) against any other action or agreement that is intended, or could
reasonably be expected, to impede, interfere with, delay, or postpone the Merger
or the transactions contemplated thereby or change in any manner the voting
rights of any class of stock of the Company.
4.2 Other Voting. Each Stockholder shall vote on all issues other than
those specified in this Section 4 that may come before a meeting of the
stockholders of the Company in its sole discretion, provided that such vote does
not contravene the provisions of this Section 4. Nothing in this Agreement shall
be deemed to govern or relate to any actions, omissions to act, or votes taken
or not taken by Stockholder in his capacity as a director of the Company and no
action taken by Stockholder in his capacity as a director of the Company shall
be deemed to violate any of Stockholder's duties under this Agreement.
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SECTION 5. Representations and Warranties of Parent. Parent hereby
represents and warrants to the Stockholders as follows:
5.1 Organization. Parent is duly organized, validly existing, and in good
standing under the laws of the state of its incorporation.
5.2 Authority Relative to this Agreement. Parent has all necessary
corporate power and authority to execute and deliver this Agreement, to perform
its obligations hereunder and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement by Parent and the
consummation by Parent of the transactions contemplated hereby have been duly
and validly authorized by all necessary action on the part of Parent. This
Agreement has been duly and validly executed and delivered by Parent and,
assuming the due authorization, execution and delivery by the Stockholders,
constitutes a legal, valid and binding obligation of Parent, enforceable against
Parent in accordance with its terms, (i) except as may be limited by bankruptcy,
insolvency, moratorium or other similar laws affecting or relating to
enforcement of creditors' rights generally, and (ii) subject to general
principles of equity.
5.3 No Conflict. The execution and delivery of this Agreement by Parent
does not, and the performance of this Agreement by Parent will not, (a) require
any consent, approval, authorization or permit of, or filing with or
notification to, any Governmental Entity or any other Person by Parent, except
for filings with the SEC of such reports under the Exchange Act as may be
required in connection with this Agreement and the transactions contemplated by
this Agreement; (b) conflict with, or result in any violation of, or default
(with or without notice or lapse of time or both) under any provision of, the
certificate of incorporation or by-laws of Parent or any other agreement to
which such Parent is a party; or (c) conflict with or violate any judgment,
order, notice, decree, statute, law, ordinance, rule or regulation applicable to
Parent or to Parent's property or assets.
SECTION 6. Further Assurances. Each Stockholder shall, without further
consideration, from time to time, execute and deliver, or cause to be executed
and delivered, such additional or further consents, documents and other
instruments as Parent may request for the purpose of effectuating the matters
covered by this Agreement.
SECTION 7. Stop Transfer Order. In furtherance of this Agreement,
concurrently herewith each Stockholder shall and hereby does authorize Parent to
notify the Company's transfer agent that there is a stop transfer order with
respect to all Shares (and that this Agreement places limits on the voting and
transfer of the Shares). Each Stockholder further agrees to cause the Company
not to register the transfer of any certificate representing any of the Shares
unless such transfer is made in accordance with the terms of this Agreement.
SECTION 8. Certain Events. Each Stockholder agrees that this Agreement and
the obligations hereunder shall attach to the Shares and shall be binding on any
Person to which legal or beneficial ownership of such Shares shall pass, whether
by operation of law or otherwise. In the event of any stock split, stock
dividend, merger, reorganization, recapitalization or other change in the
capital structure of the Company affecting the Company Common Stock or other
voting securities of the Company, the number of Shares shall be deemed adjusted
appropriately and this Agreement and the obligations hereunder shall attach to
any
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additional shares of Company Common Stock or other Company Securities issued
to or acquired by a Stockholder.
SECTION 9. No Termination or Closure of Trusts. Unless, in connection
herewith, the Shares held by any trust which are presently subject to the terms
of this Agreement are transferred upon termination to one or more Stockholders
and remain subject in all respects to the terms of this Agreement, the
Stockholders who are trustees shall not take any action to terminate, close or
liquidate any such trust and shall take all steps necessary to maintain the
existence thereof at least until the first to occur of (i) the Effective Time of
the Merger and (ii) the termination of the Merger Agreement in accordance with
its terms.
SECTION 10. Termination. This Agreement shall terminate on the first to
occur of (a) the Effective Time or (b) the termination of the Merger Agreement,
provided that the provisions of Section 11 hereof shall survive any such
termination.
SECTION 11. Miscellaneous.
11.1 Expenses. All costs and expenses incurred in connection with the
transactions contemplated by this Agreement shall be paid by the party incurring
such costs and expenses.
11.2 Specific Performance. The parties hereto agree that, in the event any
provision of this Agreement is not performed in accordance with the terms
hereof, (a) the non-breaching party will sustain irreparable damages for which
there is not an adequate remedy at law for money damages and (b) the parties
shall be entitled to specific performance of the terms hereof, in addition to
any other remedy at law or in equity.
11.3 Entire Agreement. This Agreement constitutes the entire agreement
among the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and understandings, both written and oral, among
such parties with respect to the subject matter hereof.
11.4 Assignment. Without the prior written consent of the other party to
this Agreement, no party may assign any rights or delegate any obligations under
this Agreement. Any such purported assignment or delegation made without prior
consent of the other party hereto shall be null and void.
11.5 Parties in Interest. This Agreement shall be binding upon, inure
solely to the benefit of, and be enforceable by, the parties hereto and their
successors and permitted assigns. Nothing in this Agreement, express or implied,
is intended to or shall confer upon any other person not a party hereto any
right, benefit or remedy of any nature whatsoever under or by reason of this
Agreement.
11.6 Amendment. This Agreement may not be amended except by an instrument
in writing signed by the parties hereto.
11.7 Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law, or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the
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economic or legal substance of this Agreement is not affected in any manner
materially adverse to any party. 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 a mutually acceptable
manner in order that the terms of this Agreement remain as originally
contemplated to the fullest extent possible.
11.8 Notices. Except as otherwise provided herein, all notices and other
communications hereunder shall be in writing and shall be deemed duly given (a)
on the date of delivery if delivered personally, or by facsimile, upon
confirmation of receipt, (b) on the first Business Day following the date of
dispatch if delivered by a recognized next-day courier service, or (c) on the
fifth Business Day following the date of mailing if delivered by registered or
certified mail, return receipt requested, postage prepaid. All notices hereunder
shall be delivered as set forth below, or pursuant to such other instructions as
may be designated in writing by the party to receive such notice (or at such
other address for a party as shall be specified in a notice given in accordance
with this Section 11.8):
if to Parent:
Xxxxx 0 Communications, Inc.
0000 Xxxxxxxx Xxxx.
Xxxxxxxxxx, XX 00000
Attn: General Counsel
with a copy to:
Xxxxxxx Xxxx & Xxxxxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Boston
if to the Stockholders, at their respective addresses set forth on
Schedule A hereto (or at such other address for a party as shall be specified by
like notice).
11.9 Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Delaware, regardless of the laws that
might otherwise govern under applicable principles of conflicts of laws thereof.
11.10 Headings. The descriptive headings contained in this Agreement are
included for convenience of reference only and shall not affect in any way the
meaning or interpretation of this Agreement.
11.11 Counterparts. This Agreement may be executed and delivered (including
by facsimile transmission) in one or more counterparts, and by the different
parties hereto in separate counterparts, each of which when so executed and
delivered shall be deemed to be an original but all of which taken together
shall constitute one and the same agreement.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be duly executed and delivered as of the date first written above.
XXXXX 0 COMMUNICATIONS, INC.
By: _/s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President
STOCKHOLDERS
DR. XXXXX XXXXX
By: _/s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
HRLD LIMITED PARTNERSHIP
By: _/s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: President of its general partner, HRLD
CORPORATION
XX. XXXXX X. XXXXX GRANTOR RETAINED ANNUITY TRUST
By: _/s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Grantor
COLUMBIA TRUST
By: _/s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
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THE GRANDE FOUNDATION
By: _/s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
HRLD CORPORATION
By: _/s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: President
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SCHEDULE A
Name and Address Number and Class
of Stockholder of Shares Owned Total Number of Votes
Xxxxx X. Xxxxx
0000 Xxxxxxxx Xxxxxxx Xxxxx
Xxxxx X
Xxxxxxxx, XX 00000 5,053,937 common shares 5,053,937
HRLD Limited Partnership
0000 Xxxxxxxx Xxxxxxx Xxxxx
Xxxxx X
Xxxxxxxx, XX 00000 2,491,673 common shares 2,491,673
The Xxxxx X. Xxxxx Grantor
Retained Annuity Trust
0000 Xxxxxxxx Xxxxxxx Xxxxx
Xxxxx X
Xxxxxxxx, XX 00000 295,210 common shares 295,210
Columbia Trust
0000 Xxxxxxxx Xxxxxxx Xxxxx
Xxxxx X
Xxxxxxxx, XX 00000 142,000 common shares 142,000
Grande Foundation
0000 Xxxxxxxx Xxxxxxx Xxxxx
Xxxxx X
Xxxxxxxx, XX 00000 41,276 common shares 41,276
HRLD Corporation
0000 Xxxxxxxx Xxxxxxx Xxxxx
Xxxxx X
Xxxxxxxx, XX 00000 296 common shares 296
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