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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 16)
Commonwealth Telephone Enterprises, Inc.
(Name of Issuer)
Common Stock Class B Common Stock
$1.00 Par Value $1.00 Par Value
(Title of Classes of Securities)
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126504208 126504109
(Cusip Numbers)
Level 3 Telecom Holdings, Inc.
(Name of Persons Filing Statement)
Matthew J. Johnson, Esq.
c/o Level 3 Communications, Inc.
1000 Kiewit Plaza
Omaha, Nebraska 68131
(402) 536-3613
(Name, Address and Telephone Number of
Person Authorized to Receive Notices
and Communications)
October 29, 1998
(Date of Event which Requires Filing of this Statement)
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If the filing person has previously filed a statement on
Schedule 13G to report the acquisition which is the subject of this Schedule
13D, and is filing this statement because of Rule 13d-1(b)(3) or (4), check
the following: [ ]
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SCHEDULE 13D
CUSIP No. 126504109/126504208 Page 2 of 6 Pages
1 NAME OF REPORTING PERSON: Level 3 Telecom Holdings, Inc.
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: 47-0761
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [X]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
AF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
N/A
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER (See Item 5)
9,466,326 Common Stock
1,190,061 Class B Common Stock
NUMBER OF SHARES 8 SHARED VOTING POWER (See Item 5)
BENEFICIALLY OWNED BY EACH
REPORTING PERSON WITH 0
9 SOLE DISPOSITIVE POWER (See Item 5)
9,466,326 Common Stock
1,190,061 Class B Common Stock
10 SHARED DISPOSITIVE POWER (See Item 5)
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
9,466,326 Common Stock
1,190,061 Class B Common Stock
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN [ ]
SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
48.26% of Common Stock
48.37% of Class B Common Stock
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
The following information amends the Schedule 13D dated June
28, 1993 as previously amended (as so amended, the "Schedule 13D").
Unless otherwise indicated, each capitalized term used but not
defined herein shall have the meaning assigned to such term in the Schedule
13D.
Item 3. Source and Amount of Funds or Other Consideration.
The response set forth in Item 3 of the Schedule 13D is hereby
amended and supplemented as follows:
The purchase price for the 1,776,065 shares of Common Stock
acquired by LTTH pursuant to the Rights Offering (as defined below) was
$37,741,381.25. This was funded through a capital contribution by LTC from
its cash reserves.
Pursuant to the Rights Offering (i) Walter Scott, Jr. purchased
105,153 shares of Common Stock for a purchase price of $2,234,501.25, (ii)
James Q. Crowe purchased 11,719 shares of Common Stock for a purchase price of
$249,028.75 and (iii) David C. McCourt purchased 39,085 shares of Common Stock
for a purchase price of $830,556.25. Each of Messrs. Scott and Crowe funded
the purchase price for the shares acquired by him through his personal funds.
Mr McCourt funded the purchase price for the shares acquired by him through a
line of credit provided by Merrill Lynch International Private Finance Limited.
Item 4. Purpose of Transaction.
The response set forth in Item 4 of the Schedule 13D is hereby
amended and supplemented as follows:
On October 26, 1998, the Company announced that the Rights
Offering expired on October 23, 1998 at 5:00 p.m. EST. The Company also
announced that it estimated the net proceeds from the Rights Offering to be
approximately $77,000,000. The Company allocated and issued the shares
acquired pursuant to the Rights Offering on October 29 and 30, 1998.
In connection with the Rights Offering, the Company has entered
into a Registration Rights Agreement (the "Registration Rights Agreement")
dated as of October 23, 1998 among the Company and the Committed Individuals.
Pursuant to the Registration Rights Agreement, the Committed Individuals have
(i) two demand registration rights (to be exercised by a majority of the
Committed Individuals) and (ii) unlimited "piggyback" registration rights in
respect of the shares of Common Stock issued to the Committed Individuals
pursuant to the Rights Offering. These registration rights are provided at
the expense of the Company. The preceding summary of the Registration Rights
Agreement is qualified in its entirety by the terms of the Registration Rights
Agreement which is incorporated herein by reference.
Item 5. Interest in Securities of the Issuer.
The response set forth in Item 5 of the Schedule 13D is hereby
amended and restated in its entirety as follows:
(a) and (b) LTTH owns 9,466,326 shares of Common Stock,
representing approximately 48.26% of the outstanding Common Stock, and
1,190,061 shares of Class B Stock, representing approximately 48.37% of the
outstanding Class B Stock (collectively, the "Company Shares"). The Common
Stock has one vote per share and the Class B Stock has 15 votes per share, and
consequently, LTTH is entitled to cast 27,317,241 (48.33%) of the 56,520,174
total votes of all outstanding shares of Common Stock and Class B Stock.
Each share of Class B Stock is convertible into one share of
Common Stock. If all 1,190,061 shares of Class B Stock owned by LTTH (but no
other shares of Class B Stock) were converted into Common Stock, the Company
Shares would comprise 10,656,387 shares of Common Stock representing 48.27% of
the 22,075,204 shares of Common Stock then outstanding.
LTTH owns, and has the sole power to vote or to direct the
vote, and to dispose or direct the disposition of, the Company Shares.
Through their direct and indirect ownership of LTTH, Level 3 Communications,
Inc. and David C. McCourt may, for purposes of Rule 13d-3 under the Exchange
Act, be deemed to beneficially own the Company Shares.
David C. McCourt is the beneficial owner of 58,554 shares of
Common Stock and 3,333 shares of Class B Stock representing approximately .30%
and .14% of the shares of the outstanding Common Stock and Class B Stock,
respectively.(1) Mr. McCourt disclaims beneficial ownership of 180 shares
of Common Stock beneficially owned by his wife.
James Q. Crowe is the beneficial owner of 12,403 shares of
Common Stock representing less than .1% of the outstanding Common Stock. Mr.
Crowe has the sole power to vote or direct the vote and to dispose of or
direct the disposition of such shares.
Richard R. Jaros is the beneficial owner of 661 shares of
Common Stock representing less than .1% of the outstanding Common Stock.
Mr. Jaros has the sole power to vote or direct the vote and to dispose of or
direct the disposition of such shares.
Walter Scott, Jr. is the beneficial owner of 105,837 shares of
Common Stock representing approximately .54% of the outstanding Common
Stock. Mr. Scott has the sole power to vote or direct the vote and to
dispose of or direct the disposition of such shares.
All information in this item 5(a) and (b) as to the number of
shares outstanding, the number of votes that outstanding shares are entitled
to cast or the percentage of shares held or votes entitled to be cast are
based on the number of shares outstanding on October 29, 1998.
Except as set forth in this Item 5(a) and (b), none of the
Level 3 Companies, nor, to the best knowledge of the Level 3 Companies, any
persons named in Schedule A or B hereto, owns beneficially any shares of
Common Stock or Class B Stock.
(c) Except as described above, no transactions in the Common
Stock or the Class B Stock have been effected during the past 60 days by the
Level 3 Companies or, to the best knowledge of the Level 3 Companies, by any
of the persons named in Schedule A or B hereto.(2)
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(1) Does not include 12,652 shares of Common Stock issued to Mr.
McCourt as a matching contribution under the CTE Executive Stock Purchase
Plan. Such shares are unvested and subject to forfeiture. Mr. McCourt
has sole power to vote such shares.
(2) Excludes purchases of Common Stock by the Plan Administrator of the
Employee Stock Purchase Plan on behalf of David C. McCourt.
(d) Inapplicable.
(e) Inapplicable.
Item 6. Contracts, Arrangements, Understandings or
Relation-ships with Respect to Securities of the Issuer.
The response set forth in Item 6 of the Schedule 13D is hereby
amended and restated in its entirety as follows:
Except for the Rights Exercise Agreement and the Registration
Rights Agreement, to the best knowledge of the Level 3 Companies, there are no
contracts, arrangements, understandings or relationships (legal or otherwise)
among the persons named in Item 2 or between such persons and any other
person, with respect to any securities of the Company, including, but not
limited to, transfer or voting of any of the securities, finder's fees, joint
ventures, loan or option arrangements, puts or calls, guarantees of profits,
division of profits or loss, or the giving or withholding of proxies.
Item 7. Material to be Filed as Exhibits.
The response set forth in Item 7 of the Schedule 13D is hereby
amended and supplemented by the following:
Exhibit 10: Registration Rights Agreement dated as of October
23, 1998 among the Company, Walter Scott, Jr., James Q. Crowe and David C.
McCourt.
SIGNATURES
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the undersigned certifies that the information set forth
in this statement is true, complete and correct.
Date: November 5, 1998
LEVEL 3 TELECOM HOLDINGS, INC.
By: /s/ Neil Eckstein
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Name: Neil Eckstein
Title: Vice President
REGISTRATION RIGHTS AGREEMENT
AGREEMENT dated as of October 23, 1998 among Commonwealth
Telephone Enterprises, Inc., a Pennsylvania corporation (the "Company"),
Walter Scott, Jr., James Q. Crowe and David C. McCourt (collectively, the
"Shareholders").
WHEREAS, the Company has distributed to the holders of record
of its issued and outstanding shares of Common Stock, par value $1.00 per share
("Common Stock"), and to holders of record its outstanding shares of Class B
Common Stock, par value $1.00 per share, at no charge to such holders,
transferable subscription rights to subscribe for and purchase an aggregate of
3,678,612 shares of Common Stock for a price of $21.25 per share (such
transaction being herein referred to as the "Rights Offering").
WHEREAS, this Agreement is being entered into pursuant to
Section 6 of the Rights Exercise Agreement dated as of September 25, 1998 (the
"Rights Exercise Agreement") among the Company, Level 3 Telecom Holdings,
Inc., a Delaware corporation, and the Shareholders.
WHEREAS, it is intended by the Company and the Shareholders that
this Agreement shall become effective immediately upon the issuance of the
Common Stock of the Company to be issued pursuant to the Rights Offering.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
Definitions
Section 1.1. Definitions. The following terms, as used
herein, have the following meanings:
"Commission" means the Securities and Exchange Commission.
"Demand Registration" means a Demand Registration as defined in
Section 2.1.
"Fair Market Value" means, with respect to Registrable
Securities, the average closing price of the shares of Common Stock for the 30
trading days prior to the day on which a request for registration pursuant to
a Demand Registration is made.
"Participating Shareholders" means the Shareholders electing to
sell Registrable Securities pursuant to a Demand Registration or a Piggyback
Registration.
"Person" means an individual, corporation, limited liability
company, partnership, association, trust or other entity or organization,
including a government or political subdivision or an agency or
instrumentality thereof.
"Piggyback Registration" means a Piggyback Registration as
defined in Section 2.2.
"Registrable Securities" means the shares of Common Stock
issued to the Shareholders pursuant to the Rights Exercise Agreement and any
shares of Common Stock or other securities distributed as a dividend with
respect to, or issued in exchange for or in replacement of such shares.
"Underwriter" means a securities dealer who purchases any
Registrable Securities as principal and not as part of such dealer's
market-making activities.
ARTICLE 2
Registration Rights
Section 2.1. Demand Registration. (a) The Shareholders may
make up to two written requests for registration under the Securities Act of
all or any part of the Registrable Securities held by such Shareholders (a
"Demand Registration"); provided that (i) a majority of the Shareholders (the
"Required Holders") must make each such request, (ii) each Demand Registration
must be in respect of Registrable Securities with a Fair Market Value in
excess of $1,000,000 and (iii) the Shareholders shall not request a Demand
Registration within 180 days of the effective date of a prior Demand
Registration. Such request will specify the aggregate number of shares of
Registrable Securities proposed to be sold by the Required Holders and will
also specify the intended method of disposition thereof. Each Shareholder that
is not a Required Holder in relation to a Demand Registration shall have the
right to be a Participating Shareholder in relation to such Demand
Registration. A registration will not count as a Demand Registration until it
has become effective. Should a Demand Registration not become effective due
to the failure of the Participating Shareholders to perform their obligations
under this Agreement or the inability of the Participating Shareholders to
reach agreement with the underwriters for the proposed sale (the
"Underwriters") on price or other customary terms for such transaction, or in
the event the Participating Shareholders withdraw or do not pursue the request
for the Demand Registration (in each of the foregoing cases, provided that at
such time the Company is in compliance in all material respects with its
obligations under this Agreement), then such Demand Registration shall be
deemed to have been effected (provided that if the Demand Registration does
not become effective because of (i) a material adverse change in the condition
(financial or otherwise), business, assets or results of operations of the
Company and its subsidiaries taken as a whole or (ii) a material adverse
change in the financial markets that occurs, in either case, subsequent to the
date of the written request made by the Participating Shareholders, then the
Demand Registration shall not be deemed to have been effected). The Required
Holders may on any occasion withdraw a request for a Demand Registration at
any time prior to the time the Demand Registration becomes effective and such
request will not be considered a request for a Demand Registration provided
that the Participating Shareholders pay all expenses incurred by the Company in
connection with such withdrawn request.
(b) If the Required Holders so elect, the offering of such
Registrable Securities pursuant to such Demand Registration shall be in the
form of an underwritten offering. The Participating Shareholders shall have
the right jointly to select the managing Underwriters and any additional
investment bankers and managers to be used in connection with such offering,
subject to the Company's approval, which approval shall not be unreasonably
withheld.
(c) The Company will have the right to preempt any Demand
Registration with a primary registration by delivering written notice (within
five business days after the Company has received from the Participating
Shareholders a request for such Demand Registration) of such intention to the
Participating Shareholders indicating that the Company has identified a
specific business need and use for the proceeds of the sale of such securities
and the Company shall use all commercially reasonable efforts to effect a
primary registration within 60 days of such notice. In the ensuing primary
registration, the Shareholders will have such piggyback registration rights as
are set forth in Section 2.02 hereof. Upon the Company's preemption of a
requested Demand Registration, such requested registration will not count as a
Demand Registration.
Section 2.2. Piggyback Registration. If the Company proposes
to file a registration statement under the Securities Act with respect to an
offering (a "Proposed Offering") of common equity securities for the Company's
own account or for the account of other shareholders of the Company (other
than a registration statement on Form S-4 or S-8 or pursuant to Rule 415 (or
any substitute form or rule, respectively, that may be adopted by the
Commission)), the Company shall give written notice of such proposed filing
to each Shareholder as soon as reasonably practicable (but in no event less
than ten business days before the anticipated filing date), and such notice
shall offer each Shareholder the opportunity to register such number of shares
of Registrable Securities held by such Shareholder as such Shareholder may
request on the same terms and conditions as the Company's Common Stock (a
"Piggyback Registration"). Each Shareholder will have five business days
after receipt of any such notice to notify the Company as to whether it wishes
to participate in a Piggyback Registration and, if so, the number of
Registrable Securities proposed to be included in such offering; provided that
should any Shareholder fail to provide timely notice to the Company, such
Shareholder will forfeit any rights to participate in the Piggyback
Registration with respect to such proposed offering. If the Company shall
determine in its sole discretion not to register or to delay the Proposed
Offering, the Company may, at its election, provide written notice of such
determination to the Shareholders who have provided timely notice of their
intention to participate in the Piggyback Registration and (i) in the case of
a determination not to effect the Proposed Offering, shall thereupon be
relieved of the obligation to register such Shareholders' Registrable
Securities in connection therewith, and (ii) in the case of a determination to
delay a Proposed Offering, shall thereupon be permitted to delay registering
such Shareholders' Registrable Securities for the same period as the delay in
respect of Common Stock being registered for the Company's account; provided
that such delay will not prevent the Shareholders from exercising their right
to request a Demand Registration subject to the provisions of Section 2.1.
The Company shall be entitled to select the Underwriters in connection with
any Piggyback Registration.
Section 2.3. Reduction of Offering. Notwithstanding anything
contained herein, if the managing Underwriter of an offering described in
Section 2.1 or Section 2.2 states in writing that the size of the offering that
the Shareholders, the Company and any other Persons intend to make is such
that the success of the offering would be materially and adversely affected,
then the amount of Registrable Securities to be offered for the account of the
Shareholders and other selling persons exercising similar piggy-back
registration rights shall be reduced pro rata to the extent necessary to reduce
the total amount of securities to be included in such offering to the amount
recommended by such managing Underwriter and, as between the Shareholders and
other selling persons exercising similar piggy-back registration rights, the
number will be reduced pro rata based on the number of Registrable Securities
each Shareholder requests to have registered; provided that in the case of a
Demand Registration, the amount of Registrable Securities to be offered for
the account of the Shareholder making the Demand shall be reduced pro rata as
to those Shareholders making a Demand Registration only after the amount of
securities to be offered for the account of the Company and any other Persons
has been reduced to zero. If, in the case of a Demand Registration, the
amount of Registrable Securities to be offered for the account of the
Shareholders making the demand has been reduced by 50% or more pursuant to
this Section 2.03, then the Demand Registration shall be deemed not to have
been effected.
ARTICLE 3
Registration Procedures
Section 3.1. Filings; Information. Whenever the Shareholders
request that any Registrable Securities be registered pursuant to Section 2.1
hereof, the Company will use all commercially reasonable efforts to effect the
registration of such Registrable Securities as promptly as is reasonably
practicable, and in connection with any such request:
(a) The Company will expeditiously prepare and file with the
Commission a registration statement on any form for which the
Company then qualifies and which counsel for the Company shall
deem appropriate and available for the sale of the Registrable
Securities to be registered thereunder in accordance with the
intended method of distribution thereof, and use all commercially
reasonable efforts to cause such filed registration statement to
become and remain effective for such period, not to exceed 90
days, as may be reasonably necessary to effect the sale of such
securities; provided that if the Company shall furnish to the
Participating Shareholders a certificate signed by the Company's
Chairman or President stating that in the good faith judgment of
the Company's Board of Directors it would be seriously
detrimental to the Company or its shareholders for such a
registration statement to be filed or become effective as
expeditiously as possible, the Company may postpone the filing or
effectiveness of a registration statement for a period of not
more than 120 days (provided that the Company may not defer such
filing pursuant to this clause more than once in any 12 month
period); and provided further that if (i) the effective date of
any registration statement filed pursuant to a Demand
Registration would otherwise be at least 45 calendar days, but
fewer than 90 calendar days, after the end of the Company's
fiscal year, and (ii) the Securities Act requires the Company to
include audited financials as of the end of such fiscal year, the
Company may delay the effectiveness of such registration
statement for such period as is reasonably necessary to include
therein its audited financial statements for such fiscal year.
(b) The Company will, if requested, prior to filing such
registration statement or any amendment or supplement thereto,
furnish to the Participating Shareholders and each applicable
managing Underwriter, if any, copies thereof, and thereafter
furnish to the Participating Shareholders and each such
Underwriter, if any, such number of copies of such registration
statement, amendment and supplement thereto (in each case
including all exhibits thereto and documents incorporated by
reference therein) and the prospectus included in such
registration statement (including each preliminary prospectus) as
the Participating Shareholders or each such Underwriter may
reasonably request in order to facilitate the sale of the
Registrable Securities.
(c) After the filing of the registration statement, the
Company will promptly notify the Participating Shareholders of
any stop order issued or, to the Company's knowledge, threatened
to be issued by the Commission and take all commercially
reasonable actions required to prevent the entry of such stop
order or to remove it if entered.
(d) The Company will use all commercially reasonable efforts
to qualify the Registrable Securities for offer and sale under
such other securities or blue sky laws of such jurisdictions in
the United States as the Participating Shareholders reasonably
request; provided that the Company will not be required to (i)
qualify generally to do business in any jurisdiction where it
would not otherwise be required to qualify but for this paragraph
3.1(d), (ii) subject itself to taxation in any such jurisdiction
or (iii) consent to general service of process in any such
jurisdiction.
(e) The Company will as promptly as is practicable notify
the Participating Shareholders, at any time when a prospectus
relating to the sale of the Registrable Securities is required by
law to be delivered in connection with sales by an Underwriter or
dealer, of the occurrence of any event requiring the preparation
of a supplement or amendment to such prospectus so that, as
thereafter delivered to the purchasers of such Registrable
Securities, such prospectus will not contain an untrue statement
of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading and promptly make available to the Participating
Shareholders and to the Underwriters any such supplement or
amendment. Upon receipt of any notice from the Company of the
occurrence of any event of the kind described in the preceding
sentence, the Participating Shareholders will forthwith
discontinue the offer and sale of Registrable Securities pursuant
to the registration statement covering such Registrable
Securities until receipt by the Participating Shareholders and
the Underwriters of the copies of such supplemented or amended
prospectus and, if so directed by the Company, the Participating
Shareholders will deliver to the Company all copies, other than
permanent file copies then in the Participating Shareholders'
possession, of the most recent prospectus covering such
Registrable Securities at the time of receipt of such notice. In
the event the Company shall give such notice, the Company shall
extend the period during which such registration statement shall
be maintained effective as provided in Section 3.1(a) hereof by
the number of days during the period from and including the date
of the giving of such notice to the date when the Company shall
make available to the Participating Shareholders such
supplemented or amended prospectus.
(f) The Company will enter into customary agreements
(including an underwriting agreement in customary form) and take
such other actions as are required in order to expedite or
facilitate the sale of such Registrable Securities.
(g) At the request of any Underwriter in connection with an
underwritten offering, the Company will furnish (i) an opinion of
counsel, addressed to the Underwriters, covering such customary
matters as the managing Underwriter may reasonably request and
(ii) a comfort letter or comfort letters from the Company's
independent public accountants covering such customary matters as
the managing Underwriter may reasonably request.
(h) The Company will make generally available to its
security holders, as soon as reasonably practicable, an earnings
statement covering a period of 12 months, beginning within three
months after the effective date of the registration statement,
which earnings statement shall satisfy the provisions of Section
11(a) of the Securities Act and the rules and regulations of the
Commission thereunder.
(i) The Company will use all commercially reasonable efforts
to cause all such Registrable Securities to be listed on each
securities exchange or quoted on each inter-dealer quotation
system on which the Common Stock is then listed or quoted.
The Company may require the Participating Shareholders promptly
to furnish in writing to the Company such information regarding the
Participating Shareholders, the plan of distribution of the Registrable
Securities and other information as the Company may from time to time
reasonably request or as may be legally required in connection with such
registration.
Section 3.2. Registration Expenses. In connection with any
Demand Registration or Piggyback Registration, the Company shall pay the
following expenses incurred in connection with such registration: (i)
registration and filing fees with the Commission and National Association of
Securities Dealers, Inc., (ii) fees and expenses of compliance with securities
or blue sky laws (including reasonable fees and disbursements of counsel in
connection with blue sky qualifications of the Registrable Securities), (iii)
printing expenses, (iv) fees and expenses incurred in connection with the
listing or quotation of the Registrable Securities, (v) fees and expenses of
counsel to the Company and the fees and expenses of independent certified
public accountants for the Company (including fees and expenses associated
with any special audits or the delivery of comfort letters), (vi) the
reasonable fees and expenses of any additional experts retained by the Company
in connection with such registration and (vii) the reasonable fees and
expenses of one counsel for all the Participating Shareholders not in excess
of $25,000. The Shareholders shall pay any underwriting fees, discounts or
commissions attributable to the sale of Registrable Securities and any
out-of-pocket expenses of the Shareholders (other than the fees and expenses
of counsel described in clause (vii) of this Section 3.02).
ARTICLE 4
Indemnification and Contribution
Section 4.1. Indemnification by the Company. The Company
agrees to indemnify and hold harmless each Shareholder from and against any
and all losses, claims, damages and liabilities (including reasonable
attorneys' fees) caused by any untrue statement or alleged untrue statement of
a material fact contained in any registration statement or prospectus relating
to the Registrable Securities (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto) or any preliminary
prospectus, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by or contained in or based upon any
information furnished in writing to the Company by a Shareholder or any
Underwriter expressly for use therein. The Company also agrees to indemnify
any Underwriters of the Registrable Securities, their officers and directors
and each person who controls such Underwriters on substantially the same basis
as that of the indemnification of Shareholder provided in this section 4.1.
Section 4.2. Indemnification by Shareholder. Each Shareholder
agrees to indemnify and hold harmless the Company, its officers and directors,
and each Person, if any, who controls the Company within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act to the same
extent as the foregoing indemnity from the Company to the Shareholders, but
only with reference to information furnished in writing by or on behalf of
such Shareholder expressly for use in any registration statement or prospectus
relating to the Registrable Securities, or any amendment or supplement
thereto, or any preliminary prospectus or the failure to deliver a copy of
such registration statement or prospectus or any amendments or supplements
thereto due to the fault of such Shareholder. Each Shareholder also agrees to
indemnify and hold harmless any Underwriters of the Registrable Securities,
their officers and directors and each person who controls such Underwriters on
substantially the same basis as that of the indemnification of the Company
provided in this section 4.2. The extent of each Shareholder's liability
under this Section 4.02 shall be limited to the amount such Shareholder
receives in the relevant offering of Registrable Securities.
Section 4.3. Conduct of Indemnification Proceedings. In case
any proceeding (including any governmental investigation) shall be instituted
involving any Person in respect of which indemnity may be sought pursuant to
Section 4.1 or Section 4.2, such Person (the "Indemnified Party") shall
promptly notify the Person against whom such indemnity may be sought (the
"Indemnifying Party") in writing and the Indemnifying Party, upon the request
of the Indemnified Party, shall retain counsel reasonably satisfactory to such
Indemnified Party to represent such Indemnified Party and any others the
Indemnifying Party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any Indemnified Party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Party unless (i) the Indemnifying Party and the Indemnified
Party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the Indemnified Party and the Indemnifying Party and representation of
both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
Indemnifying Party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm of attorneys (in addition to any local counsel) at
any time for all such Indemnified Parties, and that all such fees and expenses
shall be reimbursed as they are incurred. In the case of any such separate
firm for the Indemnified Parties, such firm shall be designated in writing by
the Indemnified Parties. The Indemnifying Party shall not be liable for any
settlement of any proceeding effected without its written consent, which
consent will not be unreasonably withheld, but if settled with such consent, or
if there be a final judgment for the plaintiff, the Indemnifying Party shall
indemnify and hold harmless such Indemnified Parties from and against any loss
or liability (to the extent stated above) by reason of such settlement or
judgment.
Section 4.4. Contribution. If the indemnification provided
for in this Article 4 is unavailable to an Indemnified Party in respect of any
losses, claims, damages or liabilities in respect of which indemnity is to be
provided hereunder, then each such Indemnifying Party, in lieu of indemnifying
such Indemnified Party, shall to the fullest extent permitted by law
contribute to the amount paid or payable by such Indemnified Party as a result
of such losses, claims, damages or liabilities in such proportion as is
appropriate to reflect the relative fault of the Company and the Shareholders
in connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Company and the Shareholders shall
be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by such
party and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company and the Shareholders agree that it would not be
just and equitable if contribution pursuant to this section 4.4 were
determined by pro rata allocation (even if the Shareholders were treated as
one entity for such purpose) or by any other method of allocation that does
not take account of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by an Indemnified
Party as a result of the losses, claims, damages or liabilities referred to in
the immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred
by such Indemnified Party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this Article 4, no
Shareholder shall be required to contribute any amount in excess of the amount
by which the net proceeds of the offering (before deducting expenses) received
by such Shareholder exceeds the amount of any damages which such Shareholder
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation.
ARTICLE 5
Miscellaneous
Section 5.1. Participation in Underwritten Registrations. No
Person may participate in any underwritten registered offering contemplated
hereunder unless such Person (a) agrees to sell its securities on the basis
provided in any underwriting arrangements approved by the Persons entitled
hereunder to approve such arrangements, (b) completes and executes all
customary and normal questionnaires, powers of attorney, custody arrangements,
indemnities, underwriting agreements and other documents reasonably required
under the terms of such underwriting arrangements and this Agreement and (c)
furnishes in writing to the Company such information regarding such Person,
the plan of distribution of the Registrable Securities and other information
as the Company may from time to time request or as may be legally required in
connection with such registration.
Section 5.2. Rule 144. The Company covenants that it will
file any reports required to be filed by it under the Securities Act and the
Exchange Act and that it will take such further action as the Shareholders may
reasonably request to the extent required from time to time to enable the
Shareholders to sell Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided by Rule 144
under the Securities Act, as such Rule may be amended from time to time, or
any similar rule or regulation hereafter adopted by the Commission. Upon the
request of the Shareholders, the Company will deliver to the Shareholders a
written statement as to whether it has complied with such reporting
requirements. A Shareholder shall not be entitled to a Demand Registration or
a Piggyback Registration if the Company provides to the Shareholder an opinion
of recognized counsel to the effect that based on the proposed plan of
distribution, registration of such transaction under the Securities Act is not
required.
Section 5.3. Holdback Agreements. Each Shareholder agrees, if
requested by the Company and an underwriter of equity securities of the
Company, not to offer, sell, contract to sell or otherwise dispose of any
Registrable Securities, or any securities convertible into or exchangeable or
exercisable for such securities during the 90-day period beginning on the
effective date of the registration statement of the Company filed under the
Securities Act with respect to the offering of such equity securities (other
than the Registrable Securities to be sold pursuant to such registration
statement); provided that all executive officers and directors of the Company
enter into similar arrangements.
Section 5.4. Notices. All notices, requests and other
communications to either party hereunder shall be in writing (including
telecopy or similar writing) and shall be given,
if to the Company, to
Commonwealth Telephone Enterprises, Inc.
105 Carnegie Center
Princeton, NJ 08540-6215
Attention: General Counsel
Telecopy: (609) 734-3830
with a copy to:
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
Attention: William L. Taylor, Esq.
Telecopy: (212) 450-4800
if to Walter Scott, Jr., to:
Walter Scott, Jr.
c/o Level 3 Communications Inc.
3555 Farnam Street
Omaha, NE 68131
Telecopy: (303) 926-3400
if to James Q. Crowe, to:
James Q. Crowe
c/o Level 3 Communications Inc.
3555 Farnam Street
Omaha, NE 68131
Telecopy: (303) 926-3400
if to David C. McCourt, to:
David C. McCourt
c/o Commonwealth Telephone Enterprises, Inc.
105 Carnegie Center
Princeton, NJ 08540-6215
Telecopy: (609) 734-3830
or such other address or telecopier number as such party may hereafter specify
for the purpose by notice to the other party hereto. Each such notice, request
or other communication shall be effective when delivered at the address
specified in this Section 5.
Section 5.5. Amendments; No Waivers.
(a) Any provision of this Agreement may be amended or waived if,
and only if, such amendment or waiver is in writing and signed, in the case of
an amendment, by each Shareholder and the Company, or in the case of a waiver,
by the party against whom the waiver is to be effective.
(b) No failure or delay by any party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights
and remedies herein provided shall be cumulative and not exclusive of any
rights or remedies provided by law.
Section 5.6. Successors and Assigns. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective heirs, legal representatives, successors and assigns;
provided that no party may assign, delegate or otherwise transfer any of its
rights or obligations under this Agreement (except for any assignment,
delegation or transfer by a deceased person to its executor or heirs or by an
incompetent person to its legal guardian or by a Shareholder to any person or
entity to whom such Shareholder transfers any Registrable Securities in a
private placement transaction) without the written consent of the other parties
hereto. Neither this Agreement nor any provision hereof is intended to confer
upon any Person other than the parties hereto any rights or remedies
hereunder.
Section 5.7. 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 the signatures thereto and hereto were upon the same
instrument. This Agreement shall become effective when each party hereto
shall have received a counterpart hereof signed by the other parties hereto.
Section 5.8. Entire Agreement. This Agreement constitutes the
entire agreement between the parties hereto with respect to the subject matter
hereof and supersede all prior agreements, understandings and negotiations,
both written and oral, between the parties hereto with respect thereto.
Section 5.9. Governing Law. This Agreement shall be construed
in accordance with and governed by the laws of the State of New York, without
regard to the conflicts of law rules of such state.
Section 5.10. Jurisdiction. Except as otherwise expressly
provided in this Agreement, the parties hereto agree that any suit, action or
proceeding seeking to enforce any provision of, or based on any matter arising
out of or in connection with, this Agreement or the transactions contemplated
hereby shall be brought in the United States District Court for the Southern
District of New York or any New York State court sitting in the Borough of
Manhattan, and each of the parties hereby consents to the jurisdiction of such
courts (and of the appropriate appellate courts therefrom) in any such suit,
action or proceeding and irrevocably waives, to the fullest extent permitted
by law, any objection which it may now or hereafter have to the laying of the
venue of any such suit, action or proceeding in any such court or that any
such suit, action or proceeding which is brought in any such court has been
brought in an inconvenient forum. Process in any such suit, action or
proceeding may be served on any party anywhere in the world, whether within or
without the jurisdiction of any such court. Without limiting the foregoing,
each party agrees that service of process on such party as provided in Section
5.04 shall be deemed effective service of process on such party.
Section 5.11. WAIVER OF JURY TRIAL. EACH OF THE PARTIES
HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
Section 5.12. Headings. The headings contained in this
Agreement are for reference purposes only and shall not in any way affect the
meaning of interpretation of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement, or caused this Agreement to be duly executed by their respective
authorized officers, as of the day and year first above written.
COMMONWEALTH TELEPHONE
ENTERPRISES, INC.
By: /s/ Bruce C. Godfrey
-----------------------------------
Name: Bruce C. Godfrey
Title: Executive Vice President
and Chief Financial Officer
WALTER SCOTT, JR.
/s/ Walter Scott, Jr.
---------------------------------------
JAMES Q. CROWE
/s/ James Q. Crowe
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DAVID C. MCCOURT
/s/ David C. McCourt
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