UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
IXC COMMUNICATIONS, INC.
-----------------------------
(Name of Issuer)
COMMON STOCK, PAR VALUE $.01 PER SHARE
-----------------------------------------
(Title of Class of Securities)
450713102
-------------------
(CUSIP Number)
Thomas E. Taylor, Esq.
General Counsel and Secretary
Cincinnati Bell Inc.
201 East Fourth Street
Cincinnati, Ohio 45201-2301
(513) 397-1504
-----------------------------------------------------
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
JULY 20, 1999
-------------------------
(Date of Event which Requires Filing of this Statement)
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 schedule because of Rule 13d-1(b)(3) or (4), check the
following box [ ].
NOTE: Schedules filed in paper format shall include a signed original and
five copies of the schedule, including all exhibits. See Section 240.13d-
7(b) for other copies to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which
would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purposes of Section 18 of the Securities
Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of
that section of the Act but shall be subject to all other provisions of the
Act (however, see the Notes).
<PAGE>
CUSIP No. 450713102
1. Name of Reporting Person: Cincinnati Bell Inc.
I.R.S. Identification Number of Above
Person: 31-1056105
2. Check the appropriate Box if a Member of (a) [ ]
a Group
(b) [X]
3. SEC Use Only
4. Source of Funds: WC
00
5. Check Box if Disclosure of Legal
Proceedings is Required Pursuant to
Item 2(d) or 2(e): [ ]
6. Citizenship or Place of Organization: Ohio
Number of Shares Beneficially Owned by
Reporting Person With:
7. Sole Voting Power: 300,000
8. Shared Voting Power: 14,320,223
9. Sole Dispositive Power: 300,000
10. Shared Dispositive Power: None
11. Aggregate Amount Beneficially Owned by
Reporting Person: 14,620,223
12. Check Box if the Aggregate Amount in
Row (11) Excludes Certain Shares: [ ]
13. Percent of Class Represented by Amount
in Row (11): 39.2%
14. Type of Reporting Person: CO
<PAGE>
Item 1. Security and Issuer.
This statement on Schedule 13D (this "Statement") relates to the
common stock, par value $.01 per share ("IXC Common Stock"), of IXC
Communications, Inc., a Delaware corporation ("IXC"). The address of the
principal executive offices of IXC is 1122 Capital of Texas Highway South,
Austin, Texas 78746-6426.
Item 2. Identity and Background.
Cincinnati Bell Inc. ("Cincinnati Bell") is an Ohio corporation with
its principal office and business at 201 East Fourth Street, Cincinnati,
Ohio 45201-2301. Cincinnati Bell is a diversified telecommunications
services holding company that is organized on the basis of products and
services. Cincinnati Bell's segments are strategic business units that
offer distinct products and services, organized around a telecommunications
core, and are aligned with specific subsidiaries of Cincinnati Bell.
The attached Schedule I is a list of the directors and executive
officers of Cincinnati Bell which contains the following information with
respect to each such person:
(a) name;
(b) business address;
(c) present principal occupation or employment and the name, principal
business and address of any corporation or other organization in which such
employment is conducted; and
(d) citizenship.
During the last five years, neither Cincinnati Bell nor, to the best
of Cincinnati Bell's knowledge, any person named in Schedule I (i) has been
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors) or (ii) has been a party to a civil proceeding of a judicial
or administrative body of competent jurisdiction and as a result of which
such person was or is subject to a judgment, decree or final order
enjoining
<PAGE>
future violations of, or prohibiting or mandating activities subject to,
Federal or state securities laws or finding any violation with respect to
such laws.
Item 3. Source and Amount of Funds or Other Consideration.
Pursuant to the Stockholder Agreement dated as of July 20, 1999 (the
"Stockholder Agreement"), between Cincinnati Bell and the General Electric
Pension Trust ("GE") and the Stockholders Agreement dated as of July 20,
1999 (the "Stockholders Agreement" and, together with the Stockholder
Agreement, the "Stockholders Agreements"), among Cincinnati Bell and
certain stockholders of IXC set forth on Schedule A thereto (collectively,
the "Significant Stockholders"), Cincinnati Bell may be deemed to be the
beneficial owner of 14,320,223 shares of IXC Common Stock. See the response
to Item 5. GE and the Significant Stockholders entered into the
Stockholders Agreements to induce Cincinnati Bell to enter into the
Agreement and Plan of Merger dated as of July 20, 1999 (the "Merger
Agreement"), among Cincinnati Bell, Ivory Merger Inc., a Delaware
corporation and wholly owned subsidiary of Cincinnati Bell ("Sub"), and
IXC.
Pursuant to the Stock Purchase Agreement dated as of July 20, 1999
(the "Stock Purchase Agreement"), between Cincinnati Bell and GE,
Cincinnati Bell purchased 300,000 shares of IXC Common Stock at a total
cost of $15,000,000. Such amount was funded out of Cincinnati Bell's
working capital, which may at any given time include margin loans made by
brokerage firms in the ordinary course of business.
The descriptions of the Merger Agreement, the Stockholders Agreements
and the Stock Purchase Agreement contained herein are qualified in their
entirety by reference to such agreements, which are attached hereto as
Exhibits 1, 2, 3 and 4.
<PAGE>
Item 4. Purpose of Transaction.
The Stockholders Agreements were entered into as a condition to the
willingness of Cincinnati Bell to enter into the Merger Agreement and to
increase the likelihood that the approval of IXC's stockholders required in
connection with the merger of Sub with and into IXC (the "Merger") pursuant
to the terms of the Merger Agreement will be obtained. In the Merger, IXC
will continue as the surviving corporation ("Surviving Corporation") and as
a wholly owned subsidiary of Cincinnati Bell.
In addition to providing for the Merger, the Merger Agreement
restricts IXC from, among other things, engaging in certain transactions,
including extraordinary corporate transactions (other than the Merger),
selling certain assets, changing its capitalization (including by
purchasing any of its capital stock or by issuing any capital stock or
other voting securities), amending its restated certificate of
incorporation or by-laws, paying dividends, incurring indebtedness, making
loans or advances to other persons, making certain acquisitions and making
certain capital expenditures, and otherwise requires IXC to operate in the
ordinary course of business. The restrictions described in this paragraph
are subject to certain exceptions.
Pursuant to the Merger Agreement, in connection with the Merger the
directors of Sub immediately prior to the effective time of the Merger (the
"Effective Time") will be the directors of the Surviving Corporation.
Pursuant to the Merger Agreement, in connection with the Merger the
restated certificate of incorporation of IXC will be amended so that the
first sentence of Article IV reads in its entirety as follows: "The total
number of shares of stock which the Corporation shall have authority to
issue is 6,000,000 consisting of (i) three million (3,000,000) shares of
common stock, par value $.01 per share and (ii) three million (3,000,000)
shares of preferred stock, par value $.01 per share." Such restated
certificate of
<PAGE>
incorporation, as amended, of IXC will be the certificate of incorporation of
the Surviving Corporation.
In connection with the Merger, it is expected that IXC Common Stock
will be delisted from the NASDAQ National Market System and will become
eligible for termination of registration under the Securities Exchange Act
of 1934, as amended (the "Exchange Act").
The Stock Purchase Agreement was entered into as a condition to the
willingness of GE to enter into the Stockholder Agreement and to increase
the likelihood that the approval of IXC's stockholders required in
connection with the Merger pursuant to the terms of the Merger Agreement
(described above) will be obtained.
Cincinnati Bell intends, subject to (i) obtaining approval under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR
Act"), and (ii) the provisions of the Stock Purchase Agreement, to purchase
for cash an additional 4,699,345 shares of IXC Common Stock from GE. Any
material changes in the percentage of IXC Common Stock beneficially owned
by Cincinnati Bell will be reported by the filing of an amendment to this
Schedule 13D in accordance with Rule 13d-2 under the Exchange Act.
The descriptions of the Merger Agreement, the Stockholders Agreements
and the Stock Purchase Agreement contained herein are qualified in their
entirety by reference to such agreements, which are attached hereto as
Exhibits 1, 2, 3 and 4.
Item 5. Interest in Securities of the Issuer.
As of July 20, 1999, approximately 14,320,223 shares of IXC Common
Stock were subject to the Stockholders Agreements, and, as of July 27,
1999, pursuant to the Stock Purchase Agreement, 300,000 shares of IXC
Common Stock had been purchased by Cincinnati Bell. Such shares represented
approximately 39.2% of IXC Common Stock issued and outstanding as of July
20, 1999.
<PAGE>
Under the terms of the Stockholders Agreements, GE and the Significant
Stockholders have agreed, among other things, (i) to vote (or cause to be
voted) their respective shares of IXC Common Stock in favor of (a) the
approval and adoption of the Merger Agreement, (b) the approval of the
Merger and (c) the approval of the other transactions contemplated by the
Merger Agreement, (ii) subject to certain exceptions, not to sell,
transfer, pledge, assign or otherwise dispose of any of such shares or
enter into any arrangement with respect to the sale, transfer, pledge,
assignment or other disposition of such shares, and (iii) not to grant any
proxy or authorization with respect to such shares. Accordingly, pursuant
to the Stockholders Agreements, Cincinnati Bell may be deemed to have
acquired shared voting power with respect to the IXC Common Stock subject
to the Stockholders Agreements.
The descriptions of the Merger Agreement, the Stockholders Agreements
and the Stock Purchase Agreement contained herein are qualified in their
entirety by reference to such agreements, which are attached hereto as
Exhibits 1, 2, 3 and 4.
Item 6. Contracts, Arrangements, Understandings or Relationships with
Respect to Securities of the Issuer.
The information set forth under Items 3, 4 and 5 above are
incorporated herein by reference.
Item 7. Material to Be Filed as Exhibits.
Exhibit 1: Agreement and Plan of Merger dated as of July 20, 1999,
among Cincinnati Bell, Sub and IXC [incorporated by
reference to Exhibit 2.1 to Cincinnati Bell's Form 8-K
filed on July 22, 1999].
Exhibit 2: Stockholders Agreement dated as of July 20, 1999,
among Cincinnati Bell and the Significant Stockholders
[incorporated by reference to Exhibit 99.1 to
Cincinnati Bell's Form 8-K filed on July 22, 1999].
<PAGE>
Exhibit 3: Stockholder Agreement dated as of July 20, 1999, between
Cincinnati Bell and GE [incorporated by reference to
Exhibit 99.2 to Cincinnati Bell's Form 8-K filed on
July 22, 1999].
*Exhibit 4: Stock Purchase Agreement dated as of July 20, 1999, between
Cincinnati Bell and GE.
* Filed Herewith
<PAGE>
(Signature)
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete
and correct.
Dated: July 29, 1999
CINCINNATI BELL INC.
By:
/s/ Thomas E. Taylor
-------------------------------------
Name: Thomas E. Taylor
Title: General Counsel and Secretary
<PAGE>
SCHEDULE I
Name, business address and present
principal occupation or employment of
the directors and executive officers of
Cincinnati Bell Inc.
--------------------------------------------------------
Name, Business Address Principal Occupation Citizenship
James D. Kiggen Chairman of the Board of United States of
Cincinnati Bell Inc. Cincinnati Bell Inc. America
201 East Fourth Street
Cincinnati, Ohio 45201-2301
Daniel J. Meyer Chairman, President and United States of
Milacron, Inc. Chief Executive Officer of America
655 Eden Park Drive Milacron, Inc.
Suite 850
Cincinnati, Ohio 45202
Mary D. Nelson President of Nelson & Co. United States of
Nelson & Co. America
105 West Fourth Street
Suite 1120
Cincinnati, Ohio 45202
Richard G. Ellenberger President and Chief United States of
Cincinnati Bell Inc. Executive Officer of America
201 East Fourth Street Cincinnati Bell Inc.
Cincinnati, Ohio 45201-2301
Karen M. Hoguet Chief Financial Officer, United States of
Federated Department Stores, Senior Vice President and America
Inc. Treasurer of Federated
7 West Seventh Street Department Stores, Inc.
Cincinnati, Ohio 45202
David B. Sharrock Consultant United States of
Consultant America
4658 Beecher Court
New Albany, Ohio 43054
Phillip R. Cox President and Chief United States of
Cox Financial Corporation Executive Officer of Cox America
105 East Fourth Street Financial Corporation
Suite 600
Cincinnati, Ohio 45202
William A. Friedlander Chairman of Bartlett & Co. United States of
Bartlett & Co. America
36 East Fourth Street
Cincinnati, Ohio 45202
<PAGE>
Name, Business Address Principal Occupation Citizenship
John T. LaMacchia President and Chief United States of
CellNet Data Systems Inc. Executive Officer of America
125 Shoreway Road CellNet Data Systems Inc.
San Carlos, CA 94070
Kevin W. Mooney Chief Financial Officer of United States of
Cincinnati Bell Inc. Cincinnati Bell Inc. America
201 East Fourth Street
Cincinnati, Ohio 45201-2301
Thomas E. Taylor General Counsel and United States of
Cincinnati Bell Inc. Secretary of Cincinnati America
201 East Fourth Street Bell Inc.
Cincinnati, Ohio 45201-2301
Mary E. McCann Vice President, United States of
Cincinnati Bell Inc. Controller of Cincinnati America
201 East Fourth Street Bell Inc.
Cincinnati, Ohio 45201-2301
Mark W. Peterson Vice President, United States of
Cincinnati Bell Inc. Treasurer of Cincinnati America
201 East Fourth Street Bell Inc.
Cincinnati, Ohio 45201-2301
Michael W. Callaghan Vice President, Corporate United States of
Cincinnati Bell Inc. Development of Cincinnati America
201 East Fourth Street Bell Inc.
Cincinnati, Ohio 45201-2301
Robert C. Coogan Vice President, United States of
Cincinnati Bell Inc. Internal Audits of America
201 East Fourth Street Cincinnati Bell Inc.
Cincinnati, Ohio 45201-2301
STOCK PURCHASE AGREEMENT
by and among
GENERAL ELECTRIC PENSION TRUST
and
CINCINNATI BELL INC.
Dated as of July 20, 1999
<PAGE>
EXHIBIT 4
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT is made and entered into this 20th
day of July, 1999, by and among Cincinnati Bell Inc., an Ohio corporation
("Buyer"), and General Electric Pension Trust, a New York common law trust
(the "Seller").
RECITALS
WHEREAS, Seller owns of record and beneficially 8,624,517 shares
common stock, par value $.01 per share ("Common Stock"), of IXC
Communications, Inc., a Delaware corporation (the "Company"), and 322,349
shares of 7 1/4% Junior Convertible Preferred Stock Due 2007, par value
$.01 per share, of the Company, which are convertible into an aggregate of
1,374,173 shares of Common Stock; and
WHEREAS, Seller desires to sell, and Buyer desires to purchase,
an aggregate of 4,999,345 shares of Common Stock owned by the Seller
pursuant to the terms and subject to the conditions of this Agreement (the
"Purchased Shares").
NOW, THEREFORE, in consideration of the foregoing, and of the
representations, warranties, covenants and agreements contained herein, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. As used in this Agreement, unless
otherwise defined herein or unless the context otherwise requires, the
following terms shall have the following meanings:
"Agreement" means this Stock Purchase Agreement and all
amendments, modifications and supplements hereto.
"Closing Dates" means the Initial Closing Date and the Final
Closing Date.
"Company" has the meaning set forth in the recitals hereof.
"Contract" has the meaning set forth in Section 3.1(a) hereof.
<PAGE>
"Encumbrance" means any claim, lien, pledge, charge or security
interest of any kind or nature whatsoever.
"Escrow Agent" means State Street Bank.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Final Closing" has the meaning specified in Section 2.3 hereof.
"Final Closing Date" has the meaning specified in Section 2.3
hereof.
"Final Purchase Price" has the meaning specified in Section 2.3
hereof.
"Governmental Authority" means any Federal, state, local or
foreign government, any court, administrative, regulatory or other
governmental agency, commission or authority, or any non-governmental
self-regulatory agency, commission or authority.
"HSR Act" means the Hart-Scott-Rodino Antitrust Improvements Act
of 1976, as amended.
"Initial Closing" has the meaning set forth in Section 2.2
hereof.
"Initial Closing Date" has the meaning set forth in Section 2.2
hereof.
"Initial Purchase Price" has the meaning set forth in Section 2.2
hereof.
"IRS" means the Internal Revenue Service.
"Knowledge" means the actual knowledge of each of the Seller and
Buyer, as the case may be.
"Purchased Shares" means the aggregate of 4,999,345 shares of
Common Stock to be sold by Seller to Buyer pursuant to this Agreement.
"Stockholders Agreement" means the Stockholders Agreement dated
as of July 20, 1999 by and between Buyer and Seller.
"Subsidiary" of an entity means any entity in which the specified
entity directly or indirectly owns at
<PAGE>
least a majority of the outstanding stock or other equity or
general voting interest.
ARTICLE II
SALE OF SHARES; PURCHASE PRICE
Section 2.1 Sale of Shares. Upon the terms and subject to the
conditions of this Agreement, on the Closing Dates Seller shall sell,
transfer and deliver to Buyer and Buyer shall purchase and acquire the
number of Purchased Shares agreed to be purchased hereunder on the
respective Closing Date by the Buyer at a purchase price of $50.00 per
share.
Section 2.2 Initial Closing. The initial closing of the purchase
and sale of 300,000 shares of Common Stock (the "Initial Closing") shall
take place at the offices of Dewey Ballantine LLP, 1301 Avenue of the
Americas, New York, New York, at 10:00 a.m. (local time) within two
business days of the date hereof or such later date as Seller shall advise
Buyer (the "Initial Closing Date"). At the Initial Closing, in
consideration of the sale, transfer and delivery of the Purchased Shares to
be sold at the Initial Closing, Buyer shall pay to Seller $15,000,000 in
cash (the "Initial Purchase Price").
Section 2.3 Final Closing. The final closing of the purchase and
sale of 4,699,345 shares of Common Stock (the "Final Closing") shall take
place at the offices of Dewey Ballantine LLP, 1301 Avenue of the Americas,
New York, New York, at 10:00 a.m. (local time) within two business days
following the satisfaction or waiver of the conditions set forth in Article
VI, hereof or at such other date as shall be agreed upon by the parties.
The date on which the Final Closing occurs is referred to herein as the
"Final Closing Date." At the Final Closing, in consideration of the sale,
transfer and delivery of the Purchased Shares to be sold at the Final
Closing, Buyer shall pay to Seller $234,967,250 in cash (the "Final
Purchase Price").
Section 2.4 Closing Obligations. On the Closing Dates:
(a) Seller shall deliver or cause to be delivered to Buyer:
(i) A certificate or certificates representing the Purchased
Shares to be purchased by the Buyer on such date, duly endorsed in
blank, or accompanied by stock powers duly executed in blank, with any
necessary stock transfer tax stamps attached or provided for; and
<PAGE>
(ii) Such other duly executed documents and certificates as may
be required to be delivered by Seller pursuant to the terms of this
Agreement.
(b) Buyer shall deliver or cause to be delivered to Seller:
(i) The Initial Purchase Price or the Final Purchase Price, as
applicable, payable by wire transfer of immediately available funds to
such account or accounts as Seller shall designate prior to the
Initial Closing Date or the Final Closing Date, as applicable; and
(ii) Such other duly executed documents and certificates as may
be required to be delivered by Buyer pursuant to the terms of this
Agreement.
Section 2.5 Escrow Account. If the Final Closing Date has not
occurred within 60 days after the date of this Agreement, the Buyer, on
such 60th day, shall deposit an amount equal to the Final Purchase Price
into an escrow account to be established with the Escrow Agent and Seller
shall deposit the Purchased Shares into such escrow account. Escrow Agent
shall hold and invest all funds received in this escrow in accordance with
such instructions and directions as may be provided to Escrow Agent in
writing and signed by the Seller. Thereafter, on the Final Closing Date,
the amount held in the Escrow Account, including any interest earned on the
funds deposited in such escrow, shall be paid to the Seller and the
Purchased Shares shall be delivered to Buyer. If the Final Closing does not
occur and this Agreement is terminated under Section 7.1, the amount held
in escrow, including any interest earned on the funds deposited in such
escrow, shall be delivered to Buyer and the Purchased Shares shall be
delivered to Seller.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Buyer as follows:
Section 3.1 Organization; Authority; Execution and Delivery;
Enforceability. Seller has all requisite power and authority to enter into
this Agreement and to consummate the transactions contemplated hereby.
Seller is duly organized, validly existing and in good standing under the
laws of its jurisdiction of organization. The execution and delivery of
this Agreement by Seller and the consummation by Seller of the transactions
contemplated
<PAGE>
hereby have been duly authorized by all necessary action on the part of
Seller. This Agreement has been duly executed and delivered by Seller and,
assuming due authorization, execution and delivery by Buyer constitutes a
legal, valid and binding obligation of Seller, enforceable against Seller
in accordance with its terms. The execution and delivery by Seller of this
Agreement do not, and the consummation of the transactions contemplated
hereby and compliance with the provisions hereof, will not, conflict with,
or result in any violation of, or default (with or without notice or lapse
of time or both) under, or give rise to a right of termination,
cancellation or acceleration of any obligation or loss of a benefit under,
or result in the creation of any Encumbrance on any properties or assets of
Seller under, (i) any provision of the certificate of incorporation or
by-laws or partnership agreement or the comparable organizational documents
applicable to Seller, (ii) any loan or credit agreement, note, bond,
mortgage, indenture, lease or other agreement, instrument, permit,
concession, franchise, license or instrument, or similar authorization (a
"Contract") to which Seller is a party or by which any of the properties or
assets of Seller are bound or (iii) subject to the filings and other
matters referred to in the following sentence of this Section 3.1(a), any
judgment, order, decree, statute, law, ordinance, rule or regulation
applicable to Seller or its properties or assets, except in the case of
each of clauses (ii) and (iii), as is not materially likely to (x) impair
the ability of Seller to perform its obligations under this Agreement or
(y) prevent or materially delay the consummation of the transactions
contemplated by this Agreement. No consent, approval, order or
authorization of, action by or in respect of, or registration, declaration
or filing with, any Governmental Authority is required by or with respect
to Seller in connection with the execution and delivery of this Agreement
by Seller or the consummation by Seller of the transactions contemplated
hereby, except for (1) such filings under the Exchange Act as may be
required in connection with this Agreement and the transactions
contemplated hereby, (2) such filings under the HSR Act as may be required
in connection with this Agreement and the transactions contemplated hereby
and (3) those which are not materially likely to (x) impair the ability of
Seller to perform its obligations under this Agreement or (y) prevent or
materially delay the consummation of the transactions contemplated by this
Agreement. No trust of which Seller is a trustee requires the consent of
any beneficiary to the execution and delivery of this Agreement or to the
consummation of the transactions contemplated hereby. Seller is the record
and beneficial owner of (or is a trust that is the record holder of, and
whose beneficiaries are the beneficial owners of), and has
<PAGE>
good and marketable title to, the Purchased Shares, free and clear of any
Liens. Seller has the sole right to sell, transfer, pledge, assign or
otherwise dispose of (including by gift) ("Transfer") the Purchased Shares,
and none of such Purchased Shares is subject to any voting trust or other
agreement, arrangement or restrictions with respect to the Transfer of such
Purchased Shares.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Seller as follows:
Section 4.1 Organization; Authority; Execution and Delivery;
Enforceability. Buyer has all requisite corporate power and authority to
enter into this Agreement and to consummate the transactions contemplated
hereby. Buyer is duly organized, validly existing and in good standing
under the laws of its jurisdiction of organization. The execution and
delivery of this Agreement by Buyer and the consummation by Buyer of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of Buyer. This Agreement has been duly
executed and delivered by Buyer and, assuming due authorization, execution
and delivery by Seller, constitutes a legal, valid and binding obligation
of Buyer, enforceable against Buyer in accordance with its terms. The
execution and delivery by Buyer of this Agreement do not, and the
consummation of the transactions contemplated hereby and compliance with
the provisions hereof, will not, conflict with, or result in any violation
of, or default (with or without notice or lapse of time or both) under, or
give rise to a right of termination, cancellation or acceleration of any
obligation or loss of a benefit under, or result in the creation of any
Encumbrance on any properties or assets of Buyer under, (i) any provision
of the Amended Articles of Incorporation or Amended Regulations of Buyer,
(ii) any Contract to which Buyer is a party or by which any of its
properties or assets are bound or (iii) subject to the filings and other
matters referred to in the last sentence of this Section 4.1, any judgment,
order, decree, statute, law, ordinance, rule or regulation applicable to
Buyer or any of its properties or assets, except in the case of each of
clauses (ii) and (iii), as is not materially likely to (x) have a Material
Adverse Effect (as defined in the Merger Agreement) on Buyer, (y) impair
the ability of Buyer to perform its obligations under this Agreement or (z)
prevent or materially delay the consummation of the transactions
contemplated by this Agreement. No consent, approval, order or
authorization of, action by or in repect of, or
<PAGE>
registration, declaration or filing with, any Governmental Authority is
required by or with respect to Buyer in connection with the execution and
delivery of this Agreement by Buyer or the consummation by Buyer of the
transactions contemplated hereby except for (1) such filings under the
Exchange Act as may be required in connection with this Agreement and the
transactions contemplated hereby, (2) such filings under the HSR Act as may
be required in connection with this Agreement and the transactions
contemplated hereby and (3) those which are not materially likely to (x)
impair the ability of Buyer to perform its obligations under this Agreement
or (y) prevent or materially delay the consummation of the transactions
contemplated by this Agreement.
ARTICLE V
COVENANTS
Section 5.1 Reasonable Efforts. (a) Upon the terms and subject to
the conditions set forth in this Agreement, each of the parties agrees to
use its reasonable efforts to take, or cause to be taken, all actions, and
to do, or cause to be done, and to assist and cooperate with the other
party in doing, all things necessary, proper or advisable to consummate and
make effective, in the most expeditious manner practicable, the
transactions contemplated by this Agreement, including using reasonable
efforts to accomplish the following: (i) the taking of all reasonable acts
necessary to cause the conditions to Closing to be satisfied as promptly as
practicable, (ii) the obtaining of all necessary actions or nonactions,
waivers, consents and approvals from Governmental Authorities and the
making of all necessary registrations and filings (including filings with
Governmental Authorities) and the taking of all reasonable steps as may be
necessary to obtain an approval or waiver from, or to avoid an action or
proceeding by any Governmental Authority, (iii) the obtaining of all
necessary consents, approvals or waivers from third parties, (iv) the
defending of any lawsuits or other legal proceedings, whether judicial or
administrative, challenging this Agreement or the transactions contemplated
hereby, and to fully carry out the purposes of, this Agreement, including
seeking to have any stay or temporary restraining order entered by any
court or other Governmental Authority vacated or reversed and (v) the
execution and delivery of any additional instruments necessary to
consummate the transactions contemplated by, and to fully carry out the
purposes of this Agreement. In connection with and without limiting the
foregoing, Buyer shall make filings under the HSR Act within five business
days of the date hereof and
<PAGE>
shall use reasonable efforts to obtain an early termination of the waiting
period under the HSR Act.
Section 5.2 Certain Tax Matters. All transfer, registration,
stamp and documentary taxes (including all applicable real estate transfer
and any stock transfer taxes), any penalties, interest and additions to
such tax incurred in connection with this Agreement and the transactions
contemplated hereby shall be the responsibility of and be paid by Buyer.
Seller and Buyer shall cooperate in the timely making of all filings,
returns, reports and forms as may be required in connection therewith.
Section 5.3 Implied Warranties. Except as expressly provided in
this Agreement, Seller has not made and is not making any representation or
warranty whatsoever to Buyer as to Seller, the Company or its Subsidiaries
or the Company's or its Subsidiaries' businesses. Without limiting the
foregoing, Buyer acknowledges that Buyer is not relying on any implied
warranties (whether of merchantability or fitness for a particular purpose
or otherwise), or upon any representation or warranty whatsoever as to the
prospects (financial or otherwise), or the viability or likelihood of
success, of the business of the Company and its Subsidiaries as conducted
after the Final Closing Date, or in any subsequent or supplemental
materials provided by the Company or Seller, except as expressly provided
in this Agreement.
Section 5.4 Further Assurances. From time to time after the Final
Closing, without additional consideration, each of Seller and Buyer will
execute and deliver such further instruments and take such other action as
may be necessary to make effective the transactions contemplated by this
Agreement.
Section 5.5 Notice of Certain Events. Seller shall notify Buyer
in writing and Buyer shall notify the Seller in writing of:
(a) any notice or other communication received by Seller or
Buyer, as the case may be, from any person alleging that the consent of
such person is or may be required in connection with the transactions
contemplated by this Agreement;
(b) any notice or other communication received by Seller or
Buyer, as the case may be, relating to the transactions contemplated by
this Agreement and any other significant notices or other communications
from any Governmental Authority; and
<PAGE>
(c) any actions, suits, claims or proceedings or, to Seller's or
Buyer's, as the case may be, Knowledge, investigations commenced or to
Seller' or Buyer's Knowledge, as the case may be, threatened against,
relating to or involving or otherwise affecting Seller or Buyer, as the
case may be, that relate to the consummation of the transactions
contemplated by this Agreement.
ARTICLE VI
CONDITIONS TO OBLIGATIONS OF EACH PARTY
The respective obligations of each party to consummate the
transactions contemplated to be completed on the Final Closing Date shall
be subject to the fulfillment, at or prior to the Final Closing Date, of
the following conditions, each of which may be waived by the parties in
writing:
Section 6.1 No Action or Proceeding. No statute, rule,
regulation, order, decree, temporary restraining order or injunction shall
have been entered, enacted, promulgated or enforced by a Governmental
Authority, which enjoins or prohibits the transactions contemplated hereby.
Section 6.2 Hart-Scott-Rodino Requirements. Any applicable
waiting period (as such may be extended by the governmental agencies
involved) with respect to the transactions contemplated hereby under the
provisions of the HSR Act shall have expired or have been terminated by the
appropriate governmental agency.
ARTICLE VII
TERMINATION
Section 7.1 Termination. This Agreement may be terminated at any
time prior to the Closing Date as follows and in no other manner:
(a) by mutual written consent of Seller and Buyer;
(b) by either Seller or Buyer if any United States court of
competent jurisdiction or other competent Governmental Authority shall have
issued an order, decree or injunction or taken any other action permanently
restraining, enjoining or otherwise prohibiting the transactions
contemplated by this Agreement and such order decree or injunction or other
action shall have become final and nonappealable; and
(c) by either Buyer or Seller if the Closing has not occurred by
July 31, 2000, provided, however, that
<PAGE>
neither party may terminate this Agreement pursuant to this subsection (c)
if the Closing has not occurred by such date by reason of the failure of
such party to perform in all material respects any of its obligations under
this Agreement.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Notices. All notices, requests, claims, demands and
other communications under this Agreement shall be in writing and shall be
deemed given if delivered personally, telecopied (which is confirmed) or
sent by overnight courier (providing proof of delivery) to the parties at
the following addresses (or at such other address for a party as shall be
specified by like notice):
If to Buyer:
Cincinnati Bell Inc.
201 E. Fourth Street, 102-1900
P.O. Box 2301
Cincinnati, OH 45201-2301
Attention: General Counsel
Facsimile: (513) 397-9557
with a copy to:
Cravath, Swaine & Moore
Worldwide Plaza
825 Eighth Avenue
New York, NY 10019
Attention: Robert A. Kindler, Esq.
Robert J. Townsend, III, Esq.
Facsimile: (212) 474-3700
If to Seller:
General Electric Pension Trust
c/o General Electric Investment Corporation
3003 Summer Street
Stamford, CT 06904
Attention: Michael M. Pastore, Esq.
Facsimile: (203) 326-4073
<PAGE>
with a copy to:
Dewey Ballantine LLP
1301 Avenue of the Americas
New York, NY 10019
Attention: Sanford W. Morhouse, Esq.
Facsimile: (212) 259-6333
Section 8.2 Interpretation. When a reference is made in this
Agreement to an Article or Section, such reference shall be to an Article
or Section of this Agreement unless otherwise indicated. The headings
contained in this Agreement are for reference purposes only and shall not
affect in any way the meaning or interpretation of 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", "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. All terms defined in this
Agreement shall have the defined meanings when used in any certificate or
other document made or delivered pursuant hereto unless otherwise defined
therein. The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as
well as to the feminine and neuter genders of such term. Any agreement,
instrument or statute defined or referred to herein or in any agreement or
instrument that is referred to herein means such agreement, instrument or
statute as from time to time amended, modified or supplemented, including
(in the case of agreements or instruments) by waiver or consent and (in the
case of statutes) by succession of comparable successor statutes and
references to all attachments thereto and instruments incorporated therein.
References to a person are also to its permitted successors and assigns.
Section 8.3 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.
Section 8.4 Entire Agreement; No Third-Party Beneficiaries. This
Agreement (including the documents and instruments referred to herein), the
Stockholder Agreement and the Confidentiality Agreement (a) constitute the
entire agreement, and supersede all prior agreements and understandings,
both written and oral, among the parties with respect to the subject matter
of this Agreement and
<PAGE>
(b) are not intended to confer upon any person other than the parties any
rights or remedies.
Section 8.5 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 applicable
principles of conflict of laws thereof.
Section 8.6 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 either of the parties
hereto without the prior written consent of the other party. Any assignment
in violation of the preceding sentence shall be void. Subject to the
preceding two sentences, this Agreement will be binding upon, inure to the
benefit of, and be enforceable by, the parties and their respective
successors and assigns.
Section 8.7 Enforcement. The parties agree that irreparable
damage would occur and that the parties would not have any adequate remedy
at law in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions of this Agreement in any
Federal court located in the State of Delaware or in Delaware state court,
this being in addition to any other remedy to which they are entitled at
law or in equity. In addition, each of the parties hereto (a) consents to
submit itself to the personal jurisdiction of any Federal court located in
the State of Delaware or any Delaware state court in the event any dispute
arises out of this Agreement or any of the transactions contemplated by
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 or any of the transactions contemplated by this Agreement in any
court other than a Federal court sitting in the State of Delaware or a
Delaware state court.
Section 8.8 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. Upon such determination
that any term or other provision is invalid,
<PAGE>
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 to the fullest extent permitted by
applicable law in an acceptable manner to the end that the transactions
contemplated hereby are fulfilled to the extent possible.
<PAGE>
IN WITNESS WHEREOF, Cincinnati Bell Inc. has caused this
Agreement to be signed by its officer thereunto duly authorized and General
Electric Pension Trust has signed this Agreement, all as of the date first
written above.
CINCINNATI BELL INC.
By: /s/ Richard G. Ellenberger
----------------------------
Name: Richard G. Ellenberger
Title: President and
Chief Executive Officer
GENERAL ELECTRIC PENSION TRUST
By General Electric Investment
Corporation,
Its investment manager,
By: /s/ Donald W. Torey
-----------------------------
Name: Donald W. Torey
Title: Executive Vice President
