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"), Level 3
Colorado, Inc., 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.
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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
2
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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 a
