**Exhibit99.4**

 

THIS AGREEMENT IS NOT AN OFFER WITH RESPECT TO ANYSECURITIES ORA SOLICITATION OF ANY KIND.  SUCH ANOFFER OR SOLICITATION WILL BEMADE ONLY IN COMPLIANCE WITH ALL APPLICABLE SECURITIES LAWS

 

**EXCHANGEAND VOTING AGREEMENT**

 

EXCHANGE AND VOTINGAGREEMENT, dated as of March 24, 2003, by and among Broadwing Inc., an Ohiocorporation (the “***Company***”),and the undersigned beneficial owners of (or investment managers or advisorsfor accounts or funds that own) the 12 1⁄2% Series B Junior Exchangeable PreferredStock due 2009 (the “***PreferredStock***”) of Broadwing Communications Inc., a Delaware corporationand a subsidiary of the Company (“***BCI***”) (together with their applicabletransferees, successors and assigns, each a “***Stockholder***” and, collectively, the “***Stockholders***”).

 

WHEREAS, the Companyintends to offer to exchange (the “***Exchange Offer***”) each outstanding share ofthe Preferred Stock for shares of the Company’s common stock, par value $0.01per share (the “***BroadwingStock***”), and concurrently with making the Exchange Offer, theCompany plans to engage in a related solicitation (the “***Consent Solicitation***”)of consents of the Stockholders to certain amendments to the Certificate ofDesignation (as defined below) to, among other things, eliminate all votingrights and restrictive covenants therein all as contemplated by the ExchangeOffer and Consent Solicitation;

 

WHEREAS, the Company andthe Stockholders have engaged in good faith negotiations with the objective ofconsummating the Exchange Offer and Consent Solicitation substantially on theterms set forth in the Term Sheet attached hereto as Annex A, as each may beamended in accordance with the terms hereof; and

 

WHEREAS, the Company andthe Stockholders desire that the Company conduct the Exchange Offer and theConsent Solicitation as soon as practicable all as contemplated by the ExchangeOffer and Consent Solicitation.

 

NOW, THEREFORE, inconsideration of the mutual covenants and agreements set forth in thisAgreement, and for other good and valuable consideration, the receipt andsufficiency of which are hereby acknowledged, each of the parties signatory tothis Agreement hereby agrees as follows:

 

1.  Definitions.  Capitalized terms used and not defined inthis Agreement have the meaning ascribed to them in the Term Sheet, and thefollowing terms shall have the following meanings:

 

“***Agreement***” means thisExchange and Voting Agreement, including the Schedule and Annex hereto.

 

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“***Certificate of Designation***”means  the Certificate of Designation ofthe Powers, Preferences and Relative, Participating, Optional and Other SpecialRights of the 12 1⁄2% Junior Exchangeable Preferred Stock Due 2009 and 12 1⁄2%Series B Junior Exchangeable Preferred Stock Due 2009 and Qualifications,Limitations and Restrictions Thereof, relating to the Preferred Stock, asamended and supplemented through the date hereof.

 

“***EngagementLetters***” means the letter agreement by and between HoulihanLokey Howard & Zukin, the Company and BCI dated February 10, 2003 and theletter agreement by and between Akin Gump Strauss Hauer & Feld, LLP and BCIdated January 29, 2003.

 

“***HSR Act***” means theHart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rulesand regulations of the Federal Trade Commission promulgated thereunder.

 

“***Minimum Tender Condition***”means the condition to the consummation of the Exchange Offer that there bevalidly tendered and not withdrawn not less than 662/3%of the outstanding shares of the Preferred Stock.

 

“***Person***” means anyindividual, partnership, corporation, limited liability company, association,trust, joint venture, unincorporated organization, governmental unit or otherentity.

 

“***Required Holders***” means the Stockholders thathold, in the aggregate, at least a majority of the outstanding shares ofPreferred Stock held by all of the Stockholders.

 

“***Securities Act***” meansthe Securities Act of 1933, as amended, and the rules and regulationspromulgated thereunder.

 

“***Term Sheet***” meansthat certain Term Sheet attached hereto as Annex A which sets forth thematerial terms and conditions of the Exchange Offer and ConsentSolicitation.  The Term Sheet shall bedeemed a part of this Agreement and references to the Agreement shall be deemedto include the Term Sheet.

 

“***Transfer***” means todirectly or indirectly (i) sell (through a direct sale, constructive sale orotherwise), pledge, assign, encumber, grant a proxy, grant an option withrespect to, transfer or dispose of any participation or interest (voting orotherwise) in or (ii) enter into an agreement, voting trust, commitment orother arrangement to sell (through a direct sale, constructive sale orotherwise), pledge, assign, encumber, grant a proxy, grant an option withrespect to, transfer or dispose of any participation or interest (voting or otherwise)in, or the act thereof.  The term “***constructive sale***”means a short sale with respect to the subject security, entering into oracquiring an offsetting derivative contract with respect to such security,entering into or acquiring a futures or forward contract to deliver suchsecurity or entering into any other hedging or other derivative 

 

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transaction that has theeffect of materially changing the economic benefits and risks of ownership.

 

2.  Agreement to Complete the Exchange Offerand Consent Solicitation.  Subjectto the terms and conditions of this Agreement, the parties to this Agreementagree to use commercially reasonable efforts to complete the Exchange Offer andConsent Solicitation.  The obligationsof the parties hereunder are several and not joint and no party hereto shall beresponsible for the failure of any other party hereto to perform itsobligations hereunder.

 

3.  Agreements of the Company.  (a) The Company agrees to use its commerciallyreasonable efforts to commence the Exchange Offer and the Consent Solicitationas promptly as practicable, to do all things reasonably necessary andappropriate in furtherance thereof, including filing any related documents withthe Securities and Exchange Commission (the “***Commission***”), and to cause theRegistration Statement (as defined below) to be declared effective under theSecurities Act as promptly as practicable.

 

(b)  The Company shall file, on or before April15, 2003, with the Commission a Registration Statement on Form S-4 or any otherappropriate form (the “***Registration Statement***”) under the Securities Actcovering the offering of the shares of Broadwing Stock to be offered inexchange for the shares of Preferred Stock in connection with the ExchangeOffer.

 

(c)  Nothing inthis Agreement shall be deemed to prevent the Company or BCI from taking, orfailing to take, any action that it is obligated to take (or fail to take) inthe performance of any fiduciary or similar duty which the Company or BCI owesto any other Person; provided, however, that such fiduciary or similar dutyshall apply only in the circumstance that BCI or the Company receives anunsolicited offer or expression of bona fide interest from a third party withrespect to a potential merger, acquisition, business combination or otherstrategic combination involving BCI or the Company; it being understood and agreed that if anysuch action (or failure to act) that the board of directors of BCI or theCompany determines to be in the best interests of BCI or the Company wouldalter the terms of the Exchange Offer and Consent Solicitation in amanner not permitted by Section 6, this Agreement and all of the obligationsand undertakings of the parties set forth in this Agreement shall terminate andexpire.

 

(d)  The Company shall provide the Stockholderswith a reasonable opportunity to review and comment upon the form and substanceof the documents and other materials that the Company shall distribute to theStockholders to effect the Exchange Offer and Consent Solicitation.

 

(e) The Company willprovide the Stockholders with written notice of any executed amendments,waivers or supplements (other than any amendments, waivers or supplementsrelating to immaterial, and non-economic matters) to the terms of the SaleAgreement (as defined below) immediately after the execution of any suchamendment, 

 

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waiver orsupplement.  The Company herebyacknowledges that its failure to provide such notice will preclude theCompany’s right to terminate this Agreement pursuant to Section 7(vi).

 

4.  Agreements of the Stockholders.  Subject to the terms and conditions of thisAgreement:

 

(a)  Each Stockholder agrees with each of theother parties to this Agreement, in connection with and conditioned upon theconsummation of the Exchange Offer and Consent Solicitation and when solicitedin accordance with applicable securities law, to:

 

(i)  tender (or cause to be tendered) all of thePreferred Stock held by such Stockholder in exchange for shares of BroadwingStock pursuant to and in accordance with the Exchange Offer and ConsentSolicitation within 10 business days following the commencement of the ExchangeOffer;

 

(ii)vote (or cause to be voted) its shares of Preferred Stock to grant its consentpursuant to the Consent Solicitation and agree to the amendments to theCertificate of Designation; and

 

(iii)not withdraw or revoke any (or cause not to be withdrawn or revoked) of theforegoing unless and until this Agreement is terminated in accordance with itsterms.

 

Each Stockholderacknowledges that by tendering its Preferred Stock in the Exchange Offer, itwill be deemed to have delivered the consents required in the ConsentSolicitation for the amendments to the Certificate of Designation.

 

In furtherance of the foregoing, each Stockholderhereby grants, so long as this Agreement remains in effect, an irrevocableproxy, coupled with an interest, to each of the President and the Secretary ofthe Company and any other Company-authorized representative or agent to voteall of the shares of the Preferred Stock beneficially owned by such Stockholderto grant its consent pursuant to the Consent Solicitation and agree to theamendments to the Certificate of Designation. So long as this Agreement remains in effect, such Stockholder herebyratifies and approves of each and every action taken by the President and theSecretary of the Company and any other Company-authorized representative oragent pursuant to the foregoing proxy. So long as this Agreement remains in effect, if requested by theCompany, such Stockholder will execute and deliver applicable proxy materialsin furtherance of the provisions of this Section 4(a).

 

(b)  Each Stockholder agrees, so long as thisAgreement remains in effect, not to Transfer any of the shares of PreferredStock held by it, in whole or in part, unless the transferee agrees in writingto be bound by the terms of this Agreement. In the event that any Stockholder Transfers any of the Preferred Stock,as a condition precedent to such Transfer, such Stockholder shall notify theCompany prior to such transfer and agrees to cause the transferee to executeand deliver an acknowledgement, in the form attached 

 

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hereto as Annex B,whereby such transferee agrees to be bound by the terms of this Agreement forso long as this Agreement shall remain in effect.  Such acknowledgement shall be delivered to the Company prior tothe consummation of such Transfer.  AnyTransfer of the Preferred Stock in violation of the foregoing shall be deemedvoid.

 

(c)  Each Stockholder agrees, so long as thisAgreement remains in effect, not to commit any act that could restrict or otherwise affect its legal power,authority or right to tender or vote all of the shares of Preferred Stock thenowned of record or beneficially by it. So long as this Agreement remains in effect, no Stockholder will enterinto any voting agreement with any person or entity with respect to any ofsuch  shares, grant any person or entityany proxy (revocable or irrevocable) or power of attorney with respect to anyof such shares, deposit any of such shares in a voting trust or otherwise enterinto any agreement or arrangement with any person or entity limiting oraffecting such Stockholder’s legal power, authority or right to vote suchshares to grant its consent pursuant to the Consent Solicitation and agree tothe amendments to the Certificate of Designation.

 

(d)  Subject to the provisions of Section 29,each Stockholder agrees that it will permit public disclosure, including in apress release and in the registration statement for the Exchange Offer andConsent Solicitation, of the contents of this Agreement, including, but notlimited to, the commitments contained in this Section 4 and the Term Sheet;provided, however, unless required by applicable law, such press release willnot include the name of any of the Stockholders.

 

(e)  Each Stockholder further agrees, so long asthis Agreement remains in effect, that it will not object to, or otherwisecommence or support any proceeding or material action to oppose, the ExchangeOffer and Consent Solicitation and shall not take any action that (x) ismaterially inconsistent with its representations, warranties and agreements setforth herein or (y) would unreasonably delay the consummation of the ExchangeOffer and Consent Solicitation.

 

5.  Effectiveness of this Agreement.  The effectiveness of this Agreement, and therespective obligations of the parties under this Agreement, are conditionedupon the receipt by the Company of the consent and signature hereto of each ofthe Stockholders listed on Schedule A hereto; provided that such Stockholdershold in the aggregate not less than 66 2/3% of the outstanding shares of the PreferredStock.

 

6.  Amendments to the Exchange Offer andConsent Solicitation.  The Companyshall not alter the material terms and conditions of the Exchange Offer andConsent Solicitation as set forth in the Term Sheet in a manner adverse to theStockholders without the prior written consent of the Stockholders.  Notwithstanding the foregoing, the Companymay extend the expiration date of the Exchange Offer, if at the time of anysuch extension the conditions to closing set forth in the Exchange Offer shallnot have been satisfied or waived as provided in this Agreement.

 

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7.  Termination of Agreement.  Notwithstanding anything to the contrary setforth in this Agreement, unless the Exchange Offer and Consent Solicitationhave been consummated as provided in this Agreement, this Agreement and all ofthe obligations and undertakings of the parties set forth in this Agreementshall terminate and expire upon the earliest to occur of:

 

(i)  mutual written consent of the Company andeach Stockholder;

 

(ii)written notice from the Company to the Stockholders, in the event the MinimumTender Condition is not satisfied at any time after the effectiveness of thisAgreement;

 

(iii)written notice from the Required Holders to the other signatories hereto of analteration by the Company of the terms of the Exchange Offer and ConsentSolicitation not permitted under Section 6;

 

(iv)written notice from the Company to the Stockholders of the Company’s intent toterminate this Agreement upon a determination by the Board of Directors thatsuch termination is in the best interests of the Company pursuant to theexercise of its fiduciary duties in accordance with Section 3(c);

 

(v) writtennotice from the Company or the Required Holders to the other signatories heretoafter July 30, 2003, if the closing of the Exchange Offer and ConsentSolicitation has not occurred on or before such date;

 

(vi)written notice from the Company to the Stockholders, if the “First StageClosing” referred to in the Agreement for the Purchase and Sale of Assets datedas of February 22, 2003 (the “***Sale Agreement***”) between certain subsidiaries of BCI, asSellers, and the Buyers party thereto shall not have been consummated by June30, 2003 in accordance with the terms currently set forth in the SaleAgreement, together with any immaterial and non-economic amendments, waivers orsupplements thereto after the date hereof;

 

(vii)  written notice from the Required Holders tothe other signatories hereto, if the Company or BCI shall make an assignmentfor the benefit of creditors, or an order, judgment or decree shall be enteredadjudicating the Company or BCI bankrupt or insolvent, or any order for reliefwith respect to the Company or BCI is entered under the U.S. Bankruptcy Code,or the Company or BCI petitions or applies to any tribunal for the appointmentof a custodian, trustee, receiver or liquidator of the Company or BCI or of anysubstantial part of the assets of the Company or BCI, or commences anyproceeding relating to the Company or BCI under any bankruptcy, reorganization,arrangement, insolvency, readjustment of debt, dissolution or liquidation lawof any jurisdiction, or any such petition or application is filed, or any suchproceeding is commenced, against the Company or BCI and either (A) the Companyor BCI by any act 

 

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indicates its approvalthereof, consents thereto or acquiescences therein or (B) such petition,application or proceeding is not dismissed within 60 days; and

 

(viii)  written notice from the Company or theRequired Holders, as the case may be, to the other signatories hereto, if anyStockholder or the Company, respectively, shall fail to perform, in anymaterial respect, any of its obligations hereunder and such failure shallremain uncured at the conclusion of the ten-business-day period that shallcommence on the date on which the Company or the Required Holders, as the casemay be, give such written notice.

 

8.  Representations and Warranties.  (a) Each of the signatories to thisAgreement represents and warrants to the other signatories to this Agreementthat:

 

(i) ifan entity, it is duly organized, validly existing and in good standing underthe laws of the jurisdiction of its organization and has all requisitecorporate, partnership or other power and authority to enter into thisAgreement and to carry out the transactions contemplated by, and perform itsrespective obligations under, this Agreement;

 

(ii)the execution, delivery and performance by it of this Agreement do not andshall not (A) violate any provision of law, order, rule or regulationapplicable to it or any of its affiliates or its certificate of incorporationor bylaws or other organizational documents or those of any of its subsidiariesor (B) conflict with, result in the breach of or constitute (with due notice orlapse of time or both) a default under any material contractual obligations towhich it or any of its affiliates is a party or under its certificate ofincorporation, bylaws or other governing instruments;

 

(iii)the execution, delivery and performance by it of this Agreement do not andshall not require any registration or filing with, the consent or approval of,notice to, or any other action with respect to, any Federal, state or othergovernmental authority or regulatory body, except for (A) the registrationunder the Securities Act of the shares of the Broadwing Stock to be issued inthe Exchange Offer and such consents, approvals, authorizations, registrationsor qualifications as may be required under the state securities or Blue Skylaws in connection with the issuance of those shares, (B) the filing with theCommission of a Statementon Schedule TO with respect to the Exchange Offer, including the exhibitsthereto, (C) such other filings as may be necessary or required by theCommission and (D) any filings required under the HSR Act;

 

(iv)assuming the due execution and delivery of this Agreement by each of the otherparties hereto, this Agreement is the legally valid and binding obligation ofit, enforceable against it in accordance with its terms; and

 

(v) ithas been represented by counsel in connection with this Agreement and thetransactions contemplated by this Agreement.

 

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(b)  Each of the Stockholders further representsand warrants to the other signatories to this Agreement that:

 

(i) asof the date of this Agreement, such Stockholder (together with its affiliates)is the beneficial owner of, or the investment adviser or manager for thebeneficial owners of, the number of shares of Preferred Stock, set forthopposite such Stockholder’s name on Schedule A hereto, with the requisite powerand authority to vote and dispose of such Preferred Stock, and such shares ofPreferred Stock are owned free and clear of any liens, encumbrances, equitiesor claims;

 

(ii)as of the date of this Agreement and for so long as this Agreement remains ineffect, such Stockholder has full legal power, authority and right to vote allof such shares of Preferred Stock then held of record or beneficially owned byit to grant its consent pursuant to the Consent Solicitation and agree to theamendments to the Certificate of Designation without the consent, approval of,or any other action on the part of, any other person or entity; and suchStockholder has not entered into any voting agreement (other than thisAgreement) with any person or entity with respect to any of such shares,granted to any person or entity any of such shares, deposited any such sharesin a voting trust or entered into any arrangement or agreement with any personor entity limiting or affecting its legal power, authority or right to votesuch shares on any matter;

 

(iii)such Stockholder has reviewed, or has had the opportunity to review, with theassistance of professional and legal advisors of its choosing, sufficientinformation necessary for such Stockholder to decide to tender its PreferredStock and grant its consent pursuant to the Exchange Offer and ConsentSolicitation, respectively; and

 

(iv)as of the date of this Agreement, such Stockholder is not aware of any eventthat, due to any fiduciary or similar duty to any other Person, would prevent itfrom taking any action required of it under this Agreement.

 

(c)  The Company further represents and warrantsto the Stockholders that, upon the delivery of the Broadwing Stock to theStockholders upon consummation of with the Exchange Offer, the Broadwing Stockmay be resold without registration under the Securities Act; provided that suchStockholder is not an “affiliate” (as defined in the Securities Act) of theCompany and would not be deemed an “underwriter” (as defined in the SecuritiesAct) with respect to the Broadwing Stock.

 

9.  No Public Announcement.  Each Stockholder agrees that it shall notmake any announcement or disclosure regarding this Agreement or thetransactions contemplated herein without the prior written consent of theCompany.

 

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10.  Good Faith.  Each of the signatories to this Agreement agrees to cooperate ingood faith with each other to facilitate the performance by the parties oftheir respective obligations hereunder and the purposes of this Agreement.

 

11.  Amendments and Modifications.  Except as otherwise expressly provided inthis Agreement, this Agreement shall not be amended, changed, supplemented,waived or otherwise modified or terminated except by instrument in writingsigned by each of the parties hereto.

 

12.  No Waiver.  Each of the signatories to this Agreement expressly acknowledgesand agrees that, except as expressly provided in this Agreement, nothing inthis Agreement is intended to, or does, in any manner waive, limit, impair orrestrict the ability of any party to this Agreement to protect and preserve allof its rights, remedies and interests, including, without limitation, withrespect to its claims against and interests in BCI.

 

13.   Stop Transfer Restriction.  In furtherance of this Agreement, each ofthe Stockholders shall, and hereby does, authorize the Company’s counsel tonotify BCI’s transfer agent that a stop transfer restriction has been imposedwith respect to all of the shares of Preferred Stock owned by such Stockholder(and that this Agreement places limits on the voting and Transfer of suchshares), which shall remain in effect unless and until an acknowledgement inthe form set forth in Annex B has been delivered to the Company prior to any Transfer.  Notwithstanding the foregoing sentence, ifsuch a stop transfer is imposed and this Agreement is terminated, theStockholders may notify the transfer agent that the stop transfer is terminatedand the Company shall (and shall cause BCI to) provide any and all notices orinstructions to reflect such termination.

 

14.  Fees and Expenses.  In accordance with the terms of theEngagement Letters, the Company shall timely pay in full the reasonable anddocumented fees and expenses of Akin Gump Strauss Hauer & Feld, LLP andHoulihan Lokey Howard & Zukin, in their respective capacities as legalcounsel and financial advisors to the Stockholders in connection with theExchange Offer and Consent Solicitation; provided, however, the Company agreesthat it will not terminate the engagements set forth in the Engagement Lettersprior to the earlier of the termination of the Company’s obligations under thisAgreement or the conclusion of the Exchange Offer and Consent Solicitation.

 

15.  Further Assurances.  Each of the signatories to this Agreementhereby further covenants and agrees to execute and deliver all furtherdocuments and agreements and take all further action that may be reasonablynecessary or desirable in order to enforce and effectively implement the termsand conditions of this Agreement and the Exchange Offer and ConsentSolicitation.

 

16.  Complete Agreement.  This Agreement, including the Schedule andAnnex hereto, constitutes the complete agreement between the signatories tothis Agreement with respect to the subject matter hereof and supersedes allprior and contemporaneous negotiations, agreements and understandings withrespect to the subject matter hereof.  

 

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The provisions of thisAgreement shall be interpreted in a reasonable manner to effect the intent ofthe signatories to this Agreement.

 

17.  Notices.  All notices, requests, demands, claims and other communicationshereunder shall be in writing and shall be (a) transmitted by hand delivery,  (b) mailed by first class, registered orcertified mail, postage prepaid, (c) transmitted by overnight courier, or (d)transmitted by telecopy, and in each case, if to the Company, at the addressset forth below:

 

Broadwing Inc.

201 East Fourth Street

Cincinnati, OH  45202

Attention:  ThomasW. Bosse, Esq.

Facsimile:   (513) 397-9557

Telephone: (513) 397-9900

 

*witha copy to:*

 

Cravath, Swaine &Moore

825 Eighth Avenue

New York, NY  10019

Facsimile:  (212) 474-3700

Telephone:  (212) 474-1000

Attention:  William V. Fogg, Esq. and

                  Robert Townsend, Esq. 

 

if to a Stockholder, tothe address set forth on the signature pages to this Agreement, with a copy tothe Stockholders’ counsel:

 

Akin Gump Strauss Hauer& Feld LLP

590 Madison Avenue

New York, NY  10022

Facsimile:  (212) 872-1002

Telephone: (212) 872-1025

Attention:   Michael S. Stamer, Esq.

 

Notices mailed ortransmitted in accordance with the foregoing shall be deemed to have been givenupon receipt.

 

18.  Governing Law.  This Agreement shall be governed by, andconstrued in accordance with, the laws of the State of New York, without regardto its choice of law rules (except for Section 5-1401 of the NewYork General Obligation Law).

 

19.  Jurisdiction; Waiver of Jury Trial.  By its execution and delivery of thisAgreement, each of the signatories to this Agreement irrevocably andunconditionally agrees that any legal action, suit or proceeding against itwith respect to any matter under 

 

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or arising out of or inconnection with this Agreement or for recognition or enforcement of anyjudgment rendered in any such action, suit or proceeding, shall be brought in afederal or state court of competent jurisdiction in the State of New York inthe Borough of Manhattan.  By itsexecution and delivery of this Agreement, each of the signatories to thisAgreement irrevocably accepts and submits itself to the jurisdiction of a courtof competent jurisdiction in the State of New York, as applicable under thepreceding sentence, with respect to any such action, suit or proceeding.

 

Each of the signatoriesto this Agreement waives its right to trial by jury in any suit, action orproceeding with respect to this Agreement and the transactions contemplatedhereby.

 

20.  Consent to Service of Process.  Each of the signatories to this Agreementirrevocably consents to service of process by mail at the address listed withthe signature of each such party on the signature pages to this Agreement.  Each of the signatories to this Agreementagrees that its submission to jurisdiction and consent to service of process bymail is made for the express benefit of each of the other signatories to thisAgreement.

 

21.  Specific Performance.  It is understood and agreed by each of thesignatories to this Agreement that money damages would not be a sufficientremedy for any breach of this Agreement by any party and each non-breachingparty shall be entitled to specific performance, injunctive, rescissionary orother equitable relief as remedy for any such breach.

 

22.  Headings.  The headings of the sections, paragraphs and subsections of thisAgreement are inserted for convenience only and shall not affect theinterpretation hereof.

 

23.  Successors and Assigns.  This Agreement is intended to bind and inureto the benefit of the signatories to this Agreement and their respectivesuccessors, permitted assigns, heirs, executors, administrators andrepresentatives. The agreements, representations and obligations of the undersignedparties under this Agreement are, in all respects, several and not joint.

 

24.  Additional Shares.  If, after the date hereof, a Stockholderacquires beneficial or record ownership of any additional shares of PreferredStock for itself or any account or fund managed by such Stockholder (any suchshares, “***AdditionalShares***”), such Stockholder shall promptly notify the Company ofsuch acquisition and the provisions of this Agreement shall be applicable tosuch Additional Shares as if such Additional Shares had been shares ofPreferred Stock owned by such Stockholder as of the date hereof.   The provisions of the immediately precedingsentence shall be effective with respect to Additional Shares without action byany person or entity immediately upon the acquisition by such Stockholder ofbeneficial or record ownership of such Additional Shares.

 

25.  Counterparts.  This Agreement may be executed in one ormore counterparts, each of which shall be deemed an original and all of whichshall constitute one and the 

 

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same agreement.  Delivery of an executed counterpart of asignature page by facsimile shall be as effective as delivery of a manuallyexecuted counterpart.

 

26.  No Third-Party Beneficiaries.  This Agreement shall be solely for thebenefit of the signatories to this Agreement, and no other Person or entityshall be a third-party beneficiary hereof.

 

27.  Severability.  Any provision of this Agreementheld to be invalid, illegal or unenforceable in any jurisdiction shall, as tosuch jurisdiction, be ineffective to the extent of such invalidity, illegalityor unenforceability without affecting the validity, legality and enforceabilityof the remaining provisions hereof; and the invalidity of a particularprovision in a particular jurisdiction shall not invalidate such provision inany other jurisdiction.

 

28.  Consideration.  It is hereby acknowledged by each of thesignatories to this Agreement that no consideration (other than the obligationsof the other parties under this Agreement) has been paid or shall be due orpaid to the parties for their agreement to support the Exchange Offer andConsent Solicitation in accordance with the terms and conditions of thisAgreement, other than the Company’s agreement to use commercially reasonableefforts to obtain approval of confirmation of the Exchange Offer and ConsentSolicitation in accordance with the terms and conditions of this Agreement.

 

29.  Disclosure of Individual Holdings.  Unless required by applicable law, theCompany shall not disclose the number of shares of the Preferred Stock held bya Stockholder without the prior written consent of such Stockholder; provided,however, that if such disclosure is required by law, the Company shall affordsuch Stockholder a reasonable opportunity to review and comment upon any suchdisclosure prior to the release or publication thereof.  The foregoing shall not prohibit the Companyfrom disclosing the aggregate number of shares of the Preferred Stock held bythe Stockholders as a group.

 

30.  HSR Act.  In the event the Company and one or more of the Stockholdersshall be required to make any filings with the Federal Trade Commissionpursuant to the HSR Act, the Company shall timely pay all related filing fees andexpenses that any such Stockholder would otherwise be required to pay inconnection therewith.

 

31.  Mutual Release.  (a) In consideration of the agreements setforth herein and subject to paragraph (b) below (including that the releasesprovided for in this Section 31 are effective only upon the consummation of theExchange Offer and Consent Solicitation), each of the signatories hereto herebyunconditionally releases, and forever discharges and acquits, BCI, its parent,subsidiaries and affiliates and their respective directors, officers,executives, employees, attorneys, advisors, representatives and shareholders(the “***Released Persons***”),from all, and all manner of, actions, suits, debts, claims, duties, payment andperformance of all obligations, liabilities and indebtedness of every kind,direct or indirect, determined or undetermined, at law or in equity, whether ornot asserted or raised and existing or alleged to exist or to have existed, atany time, which such signatory ever had or has or may have at this time againstany Released 

 

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Person, arising out of,relating to, or incurred in connection with, the Preferred Stock, theCertificate of Designation, this Agreement or the Exchange Offer and ConsentSolicitation, or any transaction entered into hereunder or thereunder or anyaction taken or omitted to be taken by the Released Persons hereunder orthereunder (collectively, the “***Released Claims***”).

 

(b)  The releases provided for by paragraph (a)above shall be effective upon the consummation of the Exchange Offer andConsent Solicitation.  The release by asignatory hereto will not apply if and to the extent that any payment ordelivery, in whole or in part, by or on behalf of another signatory heretounder or in connection with this Agreement or the Exchange Offer and ConsentSolicitation is rescinded or must be otherwise restored, whether as a result ofany proceedings in bankruptcy, insolvency or reorganization or otherwise, allas though such payment or delivery had not been made.  Each signatory hereto hereby covenants not to sue or pursue anylegal or equitable action against any other signatory hereto with respect toany Released Claim, and if any such signatory shall breach such covenant, then(i) such non-breaching signatory shall be entitled to collect from suchbreaching signatory all reasonable out-of-pocket costs and expenses, includingattorneys’ fees, losses, claims and damages, incurred by such non-breachingsignatory that are directly related to the defense of such action and (ii) therelease granted to such breaching signatory by such non-breaching signatoryshall be void ab initio and shall be deemed never to have been given.

 

[SIGNATURES BEGINON NEXT PAGE]

 

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IN WITNESS WHEREOF, eachof the parties has caused this Agreement to be executed and delivered by itsduly authorized officers as of the date first written above.

 
|   | BROADWING INC. |
|--------|----------------|
|   |           |
|   |           |
|   | By:            |  /s/ Mark W. Peterson |   |
|   |           | Name: | Mark W. Peterson |
|   |           | Title: | Vice President &  Treasurer |
|        |                |  |  |  |

 

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| ALLIANCE CAPITAL  MANAGEMENT   L.P., as investment advisor |
|------------------------------------------------------------|
|                                                       |
|                                                       |
| By:                                                        |  /s/ Michael Sohr |   |
|                                                       | Name: | Michael Sohr |
|                                                       | Title: | Vice President |
| 1345 Avenue of the Americas                                |
| New York, NY  10105                                   |
|                                                            |  |  |  |  |

 

15

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FIDELITY MANAGEMENT &RESEARCH CO.:

 
| Fidelity Advisor Series  II: Fidelity Advisor  High Income Advantage Fund                                      |                       |
|---------------------------------------------------------------------------------------------------------------------|----------------------------|
|                                                                                                                |                       |
| Pension Investment  Committee of General   Motors for General Motors Employees   Domestic Group Pension Trust  |                       |
|                                                                                                                |                       |
| Commonwealth of  Massachusetts Pension   Reserves Investment Management Board                                       |                       |
|                                                                                                                |                       |
|                                                                                                                |                       |
| By:                                                                                                                 |  /s/ Thomas Saviers   |   |
|                                                                                                                | Name:  Thomas Saviers |
|                                                                                                                | Title: Portfolio  Manager  |
| c/o Fidelity  Investments                                                                                           |                       |
| 82 Devonshire Street,  E20E                                                                                         |                       |
| Boston, MA  02109                                                                                              |                       |
| Attn:  Nate Van Duzer                                                                                          |                       |
|                                                                                                                     |                            |  |  |  |

 

16

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FIDELITY MANAGEMENT &RESEARCH CO.:

 
| Fidelity Puritan Trust:  Fidelity Puritan Fund                                        |
|---------------------------------------------------------------------------------------|
|                                                                                  |
| Variable Insurance  Products Fund: High   Income Portfolio                            |
|                                                                                  |
| Variable Insurance  Products Fund II: Asset   Manager Portfolio                       |
|                                                                                  |
| Illinois Municipal  Retirement Fund Master   Trust                                    |
|                                                                                  |
| Fidelity School Street  Trust: Fidelity   Strategic Income Fund                       |
|                                                                                  |
| Fidelity Advisor Series  II: Fidelity Advisor   Strategic Income Fund                 |
|                                                                                  |
| Fidelity Advisor Series  I: Fidelity Advisor   Balanced Fund                          |
|                                                                                  |
| The Assets Management  Committee of The   Coca-Cola Company Master Retirement   Trust |
|                                                                                  |
| Variable Insurance  Products Fund II: Asset   Manager: Growth Portfolio               |
|                                                                                  |
| Fidelity Institutional  High Yield Fund, LLC                                          |
|                                                                                  |
| By:                                                                                   |  /s/ Mark Notkin |   |
|                                                                                  | Name:  Mark Notkin |
|                                                                                  | Title: Portfolio  Manager |
| c/o Fidelity  Investments                                                             |
| 82 Devonshire Street,  E20E                                                           |
| Boston, MA  02109                                                                |
| Attn:  Nate Van Duzer                                                            |
|                                                                                       |  |  |  |

 

17

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| GMT CAPITAL CORP.                  |
|------------------------------------|
|                               |
|                               |
| By:                                |  /s/ Joe Mathias |   |
|                               | Name:  Joe Mathias |
|                               | Title: Vice President |
| 2100 RiverEdge Parkway,  Suite 840 |
| Atlanta, GA  30328            |
|                                    |  |  |  |

 

18

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| GRYPHON PARTNERS L.P.          |
|--------------------------------|
|                           |
|                           |
| By:                            |  /s/ Michael H. Scholten |   |
|                           | Name:  Michael H. Scholten |
|                           | Title: Partner |
| 500 Crescent Court,  Suite 270 |
| Dallas, TX  75201         |
|                                |  |  |  |

 

19

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| MORGAN STANLEY  INVESTMENT  MANAGEMENT, on behalf of certain  institutional accounts |
|--------------------------------------------------------------------------------------|
|                                                                                 |
|                                                                                 |
| By:                                                                                  |  /s/ Deanna Loughnane |   |
|                                                                                 | Name:  Deanna Loughnane |
|                                                                                 | Title:  Executive Director |
| 1 Tower Bridge                                                                       |
| 100 Front Street                                                                     |
| West Conshohocken, PA 19428                                                          |
|                                                                                      |  |  |  |

 

20

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| OZ MANAGEMENT, LLC, as  investment   manager, on behalf of: |
|-------------------------------------------------------------|
|                                                        |
| OZ MAC 13 LTD.                                              |
| FLEET MARITIME, INC.                                        |
| GOLDMAN, SACHS &  CO. PROFIT                            |
| SHARING MASTER TRUST                                        |
| OZ MASTER FUND, LTD.                                        |
|                                                        |
|                                                        |
| By:                                                         |  /s/ Joel M. Frank |   |
|                                                        | Name:  Joel M. Frank |
|                                                        | Title: Chief Financial  Officer |
| 9 West 57th  Street, 39th Floor                             |
| New York, NY  10019                                    |
|                                                             |  |  |  |

 

21

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| OZF MANAGEMENT, L.P.,  as investment   manager, on behalf of: |
|---------------------------------------------------------------|
|                                                          |
| OZF CREDIT  OPPORTUNITIES                                     |
| MASTER FUND, LTD.                                             |
| OZF CREDIT  OPPORTUNITIES                                     |
| MASTER FUND II, LTD.                                          |
| By: OZF Management,  LLC, General                             |
| Partner                                                       |
|                                                          |
|                                                          |
| By:                                                           |  /s/ Stephen C. Freidheim |   |
|                                                          | Name:  Stephen C. Freidheim |
|                                                          | Title: Managing Member |
| 9 West 57th  Street, 39th Floor                               |
| New York, NY  10019                                      |
|                                                               |  |  |  |

 

22

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Schedule A

To the Exchangeand Voting Agreement

 

Stockholder andNumber of Shares of Preferred Stock Held

 
| **NAME**                                                                               |   | **SHARES OF  PREFERRED STOCK** |   |
|----------------------------------------------------------------------------------------|--------|--------------------------------|--------|
|                                                                                   |   |                           |   |
| Alliance  Capital Management L.P., as investment advisor                               |   | XXX                            |   |
|                                                                                   |   |                           |   |
| Fidelity  Management & Research Co., on behalf of funds and accounts managed by it |   | XXX                            |   |
|                                                                                   |   |                           |   |
| GMT  Capital Corp.                                                                     |   | XXX                            |   |
|                                                                                   |   |                           |   |
| Gryphon  Partners L.P.                                                                 |   | XXX                            |   |
|                                                                                   |   |                           |   |
| Morgan  Stanley Investment Management(1), on behalf of certain institutional accounts  |   | XXX                            |   |
|                                                                                   |   |                           |   |
| OZ  Management, LLC, as investment manager                                             |   | XXX                            |   |
|                                                                                   |   |                           |   |
| OZF  Management, L.P., as investment manager                                           |   | XXX                            |   |
|                                                                                   |   |                           |   |
| Total                                                                                  |   | 266,514                        |   |

 

----

(1) With respect solely to Section 8(b)(ii), Morgan Stanley InvestmentManagement (“MSIM”)  hereby qualifiesits representations and warranties as follows: (i) MSIM acts as asset manager/agent for account(s) that own PreferredStock, (ii) MSIM does not have the voting authority with respect to suchaccount(s) to grant an irrevocable proxy to the Company that is effective afterthe date of a Transfer, not caused or initiated by MSIM, of any shares ofPreferred Stock subsequent to the date hereof, that results in the replacementof MSIM as asset manager/agent (a “Permitted Transfer”); and (iii) as of thedate hereof, MSIM is not aware of any request to (x) Transfer any shares ofPreferred Stock managed by MSIM to another asset manager/agent or (y) replaceMSIM as asset manager/agent for any shares of Preferred Stock.  Provided that such representations andwarranties are accurate, the Company and BCI agree that a Permitted Transferwill result in such shares of Preferred Stock no longer being subject to theterms and conditions of the Agreement.

 

23

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Annex A

To the Exchangeand Voting Agreement

 

**BroadwingInc.**

**TermSheet For Proposed Exchange Offer and Consent Solicitation**

 

This Term Sheet setsforth the principal terms and conditions, as each may be amended in accordancewith the terms of the Exchange and Voting Agreement (the “Agreement”), by whichBroadwing Inc. (the “Company”) intends to offer to exchange (the “ExchangeOffer”) each outstanding share of 12 1⁄2% Series B Junior Exchangeable PreferredStock due 2009 (the “Preferred Stock”) of Broadwing Communications Inc. (“BCI”)for shares of the Company’s common stock, par value $0.01 per share (the“Broadwing Stock”), and concurrently with making the Exchange Offer, theCompany plans to engage in a related solicitation (the “Consent Solicitation”)of consents of the holders of the Preferred Stock to certain amendments to therelated certificate of designation under which the Preferred Stock was issuedto, among other things, eliminate all voting rights and restrictivecovenants.  The Company also shall havethe option to pay a portion of the Exchange Offer consideration in cash.  Capitalized terms used and not definedherein shall have the meanings assigned to them in the Agreement .

 
| EXCHANGE OFFER: |   | Each Stockholder, in  exchange for all outstanding shares of Preferred Stock (plus accumulated and  unpaid dividends thereon) owned by such Stockholder, will receive on the date  of the closing of the Exchange Offer and Consent Solicitation (the “Closing  Date”) a number of shares of Broadwing Stock determined by multiplying (i)  the fraction, the numerator of which is the number of shares of Preferred  Stock owned by such Stockholder on the Closing Date, and the denominator of which  is the total number of shares of Preferred Stock outstanding on the Closing  Date, by (ii) 14,148,329.  The Company  shall have the option to pay a portion of the Exchange Offer consideration in  cash, but in no event shall such cash payment exceed 1% of the total Exchange  Offer consideration. |
|-----------------|--------|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|            |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             |
|            |   | The consummation of the  Exchange Offer will be subject to the condition that there be validly  tendered and not withdrawn not less than 66 2/3% of the  outstanding Preferred Stock (the “Minimum Tender Condition”).                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 |

 

----

 
|                   |   |                                                                                                                                                                                                                                                                                                                                                                              |
|------------------------|--------|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|                   |   | The Exchange Offer will  include a simultaneous   solicitation  of  consents (each, a “Consent”) to amendments  to the certificate of designation under which the Preferred Shares were  issued to, among other things, eliminate all voting rights and restrictive  covenants therein and such other provisions as shall be determined by the  Company. |
|                   |   |                                                                                                                                                                                                                                                                                                                                                                              |
|                   |   | All tendering holders  of Preferred Stock will be deemed to have delivered a Consent with respect to  any Preferred Stock tendered.                                                                                                                                                                                                                                               |
|                   |   |                                                                                                                                                                                                                                                                                                                                                                              |
| CONDITIONS TO CLOSING: |   | The Exchange Offer and  Consent Solicitation will be subject to the following conditions, which may  be waived by the Company in its sole discretion:                                                                                                                                                                                                                             |
|                   |   |                                                                                                                                                                                                                                                                                                                                                                              |
|                   |   | (i) the Minimum Tender  Condition shall have been met;                                                                                                                                                                                                                                                                                                                            |
|                   |   |                                                                                                                                                                                                                                                                                                                                                                              |
|                   |   | (ii) the registration  statement registering the Exchange Offer and Solicitation Consent having been  declared effective by the Commission;                                                                                                                                                                                                                                       |
|                   |   |                                                                                                                                                                                                                                                                                                                                                                              |
|                   |   | (iii) subject to  Section 3(e) of the Agreement, the “First Stage Closing” referred to in the  Sale Agreement shall have been consummated on or before June 30, 2003 in  accordance with the terms currently set forth in the Sale Agreement, together  with any immaterial and non-economic amendments, waivers or supplements  thereto after the date hereof;         |
|                   |   |                                                                                                                                                                                                                                                                                                                                                                              |
|                   |   | (iv) the absence of any  threatened or pending litigation or other legal action relating to the  Exchange Offer or the Consent Solicitation or the Merger (as defined below);                                                                                                                                                                                                     |
|                   |   |                                                                                                                                                                                                                                                                                                                                                                              |
|                   |   | (v) the Company shall  not have received any  unsolicited  offer or expression of bona fide interest from a third party with respect to  a                                                                                                                                                                                                                                   |

 

2

----

 
|           |   | potential merger,  acquisition, business combination or other strategic combination involving  BCI or the Company, that if the board of directors of BCI or the Company determines it to be in  the best interests of BCI or the Company to accept, would alter the  terms of the Exchange Offer and Consent Solicitation in a manner not  permitted by Section 6 of the Agreement; and       |
|----------------|--------|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|           |   |                                                                                                                                                                                                                                                                                                                                                                                          |
|           |   | (vi) no governmental  approvals are required in order to complete the Exchange Offer or the Consent  Solicitation or the Merger.                                                                                                                                                                                                                                                              |
|           |   |                                                                                                                                                                                                                                                                                                                                                                                          |
| MERGER:        |   | If the Exchange Offer  and Consent Solicitation are completed, the Company  will effect a merger of BCI (the “Merger”), unless it is not  lawful to do so, in which any remaining shares of Preferred Stock not  tendered will be converted into the same number of shares of Broadwing Stock  and cash, if any, that  tendering  holders received in the Exchange Offer. |
|           |   |                                                                                                                                                                                                                                                                                                                                                                                          |
| GOVERNING LAW: |   | New York law.                                                                                                                                                                                                                                                                                                                                                                                 |

 

3

----

 

Annex B

To the Exchangeand Voting Agreement

 

[Form of Acknowledgement of Transfer]

 

Broadwing Inc.

201 East Fourth Street

Cincinnati, OH  45202

Attn:  Thomas W. Bosse, Esq.

 

Ladies and Gentlemen:

 

Reference is made to thatcertain Exchange and Voting Agreement, dated as of March 25, 2003 (the“Agreement”), by and among Broadwing Inc. (the “Company”) and certainbeneficial owners of (or investment managers or advisors for accounts that own)the 12 1⁄2% Series B Junior Exchangeable Preferred Stock due 2009 (the “PreferredStock”) of Broadwing Communications, Inc.

 

[Name of transferor] intendsto transfer [insert number] shares of Preferred Stock to the undersigned.

 

The undersignedacknowledges that the foregoing shares of Preferred Stock will be transferredto the undersigned subject to the Agreement and that the undersigned agrees tobe bound by the terms of the Agreement for so long as the Agreement shallremain in effect.

 
|   | Very truly yours, |   |
|--------|-------------------|--------|
|   |              |   |
|   | [Transferee]      |   |
|   |              |   |
|   | By:               |   |   |
|   | Name:             |   |   |
|   | Title:            |   |   |
|        |                   |        |  |  |

 

----