Free Settlement Agreement - District Court of Colorado - Colorado

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EXHIBIT Ä-2

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-1451-REB-PAC (Consolidated with Civil Action Nos. 01-cv-1472-REB-PAC, 01-cv-1527-REB-PAC, 01cv-1616-REB-PAC, 01-cv-1799-REB-PAC, 01-cv-1930-REB-PAC, 01-cv-2083-REBPAC, 02-cv-0333-REB-PAC, 02-cv-0374-REB-PAC, 02-cv-0507-REB-PAC, 02-cv-0658REB-PAC, 02-cv-755-REB-PAC, 02-cv-798-REB-PAC and 04-cv-0238-REB-PAC) In re QWEST COMMUNICATIONS INTERNATIONAL, INC. SECURITIES LITIGATION PROOF OF CLAIM AND RELEASE EXHIBIT A-2

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I.

GENERAL INSTRUCTIONS 1. This Proof of Claim Form and Release relates to Lead Plaintiffs' settlement

with defendants Joseph P. Nacchio and Robert S. Woodruff. 2. To recover from the N&W Settlement Fund as an N&W Class Member based

on your claims in the consolidated action entitled In re Qwest Communications International, Inc. Securities Litigation, Civil Action No. 01-cv-1451-REB-CBS (the "Litigation"), you must complete and sign this Proof of Claim and Release. If you fail to execute and submit a timely, properly completed and addressed (as set forth in paragraph 3 below) Proof of Claim and Release, your claim may be rejected and you may be precluded from any recovery from the Settlement Fund created in connection with the settlement of the claims against the Settling Defendants in the Litigation. 3. IF YOU FILED A VALID PROOF OF CLAIM IN THE PREVIOUS PARTIAL

SETTLEMENT WITH QWEST AND OTHERS IN THIS ACTION, YOU DO NOT NEED TO TAKE ANY FURTHER ACTION TO PARTICIPATE IN THIS SETTLEMENT. 4. Submission of this Proof of Claim and Release, however, does not assure

that you will share in the Settlement Fund. 5. IF YOU HAVE NOT ALREADY DONE SO IN CONNECTION WITH THE

PRIOR PARTIAL SETTLEMENT WITH QWEST AND OTHERS, YOU MUST MAIL YOUR COMPLETED AND SIGNED PROOF OF CLAIM AND RELEASE POSTMARKED ON OR BEFORE _____________, 200_, ADDRESSED AS FOLLOWS: Qwest Claims Administrator c/o Gilardi & Co. LLC P.O. Box 5100 Larkspur, California 94977-5100 -1-

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If you are NOT an N&W Class Member (as defined in the Notice of Pendency and Partial Settlement of Class Action) DO NOT submit a Proof of Claim and Release form. If you are an N&W Class Member and you have not validly and timely requested exclusion, you will be bound by the terms of the Final Judgment entered in the Litigation, WHETHER OR NOT YOU SUBMIT A PROOF OF CLAIM AND RELEASE. II. DEFINITIONS All capitalized terms not otherwise defined herein shall have the same meaning as set forth in the Notice of Pendency and Partial Settlement of Class Action ("Notice") that accompanies this Proof of Claim and Release. III. IDENTIFICATION OF CLAIMANT 1. If you purchased Qwest publicly traded securities during the Class Period and

held the securities in your name, you are the beneficial purchaser, seller or holder as well as the record purchaser, seller or holder. If, however, you purchased Qwest publicly traded securities during the Class Period and the securities were registered in the name of a third party, such as a nominee or brokerage firm, you are the beneficial purchaser, seller or holder of these securities, but the third party is the record purchaser, seller or holder of these securities. 2. Use Part I of this form entitled "Claimant Identification" to identify each

purchaser, seller or holder of record ("nominee"), if different from the beneficial purchaser of Qwest publicly traded securities which forms the basis of this claim. THIS CLAIM MUST BE SUBMITTED BY THE ACTUAL BENEFICIAL PURCHASER OR THE LEGAL

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REPRESENTATIVE OF SUCH PURCHASER OF QWEST PUBLICLY TRADED SECURITIES UPON WHICH THIS CLAIM IS BASED. 3. All joint beneficial purchasers, sellers or holders must sign this claim.

Executors, administrators, guardians, conservators and trustees must complete and sign this claim on behalf of persons represented by them and their authority must accompany this claim and their titles or capacities must be stated. The Social Security (or taxpayer identification) number and telephone number of one of the beneficial owner(s) may be used in verifying this claim. Failure to provide the foregoing information could delay verification of your claim or result in rejection of your claim. IV. IDENTIFICATION OF TRANSACTION(S) 1. Use Part II of this form entitled "Schedule of Transactions in Qwest Publicly

Traded Securities" to supply all required details of your transaction(s) in Qwest publicly traded securities. If you need more space or additional schedules, attach separate sheets giving all of the required information in substantially the same form. Sign and print or type your name on each additional sheet. 2. On the schedules, provide all of the requested information with respect to all

of your holdings of Qwest publicly traded securities as of May 24, 1999, all of your purchases and sales of Qwest publicly traded securities which took place at any time beginning May 24, 1999 through and including July 28, 2002 (the "Class Period"), as well as proof of your holdings of Qwest publicly traded securities as of the close of trading on July 28, 2002, whether such transactions resulted in a profit or a loss. Failure to report all such transactions may result in the rejection of your claim. -3-

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3.

List each purchase and sale in the Class Period separately by security and in

chronological order, by trade date, beginning with the earliest. You must accurately provide the month, day and year of each such transaction you list. 4. The date of covering a "short sale" is deemed to be the date of purchase of

Qwest securities. The date of a "short sale" is deemed to be the date of sale of Qwest securities. 5. Broker confirmations or other documentation of your transactions in Qwest Failure to provide this

publicly traded securities should be attached to your claim.

documentation could delay verification of your claim or result in rejection of your claim.

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UNITED STATES DISTRICT COURT DISTRICT OF COLORADO In re Qwest Communications International, Inc. Securities Litigation Civil Action No. 01-cv-1451-REB-PAC PROOF OF CLAIM Must be Postmarked No Later Than: _____________, 2008 Please Type or Print PART I: CLAIMANT IDENTIFICATION

Beneficial Owner's Name (First, Middle, Last)

Street Address

City

State or Province

Zip Code or Postal Code

Country Individual

Social Security Number or Taxpayer Identification Number

Corporation/Other

Area Code

Telephone Number (work)

Area Code

Telephone Number (home)

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Record Owner's Name (if different from beneficial owner listed above)

PART II:

SCHEDULE OF TRANSACTIONS IN QWEST PUBLICLY TRADED SECURITIES Number of shares of Qwest common stock held at the beginning of trading on May 24, 1999: ________________________ Number and type of bonds held at beginning of trading on May 24, 1999: ______________________________ Number of shares of Qwest common stock acquired in the merger between Qwest and US West: _________________________ Purchases (May 24, 1999 ­ July 28, 2002, inclusive) of Qwest common stock and bonds: Number of Shares or Bonds Purchased (specify) Total Purchase Price

A. B. C. D.

Trade Date Month Day Year 1. 2. 3. IMPORTANT: E.

Identify by number listed above all purchases in which you covered a "short sale": ________________________

Sales (May 24, 1999 ­ July 28, 2002, inclusive) of Qwest common stock and bonds: Number of Shares or Bonds Sold (specify) Total Sales Price

Trade Date Month Day Year 1. 2. 3. F.

Number of shares of Qwest common stock or bonds (specify) held at close of trading on July 28, 2002: ________________________ -6-

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G. Type of Bond

For bond purchasers, please list the following information for each bond purchased during the Class Period that was later redeemed at any time: Date of Redemption __________________________ __________________________ __________________________

__________________________ __________________________ __________________________

OPTION TRANSACTIONS IN QWEST H. I. Type [C]all [B]uy [P]ut [S]ell Number of Qwest options held at beginning of trading on May 24, 1999 ________________________ Options: Purchases and/or sales during the period May 24, 1999 ­ July 28, 2002, inclusive: Number of Trade Date Option Contracts Mth/Day/Year Purchased/Sold

Total Price

Price Received

1. __ _____ ___________ _______________________ _________ ____________ 2. __ _____ ___________ _______________________ _________ ____________ 3. __ _____ ___________ _______________________ _________ ____________ 4. __ _____ ___________ _______________________ _________ ____________

J.

Number of Qwest options held at close of trading on July 28, 2002: ________________________

If you require additional space, attach extra schedules in the same format as above. Sign and print your name on each additional page. YOU MUST READ THE RELEASE AND SIGN ON PAGE _____.

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V.

SUBMISSION TO JURISDICTION OF COURT AND ACKNOWLEDGMENTS I (We) submit this Proof of Claim and Release under the terms of the Stipulation of

Settlement described in the Notice. I (We) also submit to the jurisdiction of the United States District Court for the District of Colorado with respect to my (our) claim as an N&W Class Member and for purposes of enforcing the release set forth herein. I (We) further acknowledge that I (we) will be bound by and subject to the terms of any Judgment that may be entered in the Litigation. I (We) agree to furnish additional information such as transactions in other Qwest publicly traded securities to the Claims Administrator to support this claim if requested to do so. I (We) have not submitted any other claim covering the same purchases, sales or holdings of Qwest publicly traded securities during the Class Period and know of no other person having done so on my (our) behalf. VI. RELEASE 1. I (We) hereby acknowledge full and complete satisfaction of, and do hereby

fully, finally and forever settle, release and discharge from the Released Claims each and all of the Released Persons as those terms are defined below: (a) "Authorized Claimant" means any N&W Class Member whose claim for

recovery has been allowed pursuant to the terms of the Stipulation. (b) "Claimant" means any N&W Class Member of a class certified in

accordance with the Stipulation who files or has filed a Proof of Claim in such form and manner and within such time as the Court shall prescribe. (c) "Claims Administrator" means Gilardi & Co. LLC.

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(d)

"Defendants" mean QCII, Arthur Andersen LLP and each of the

individuals named as a defendant in the Litigation, including Nacchio and Woodruff. (e) "Effective Date" means the first date by which all of the events and

conditions specified in Paragraph 8.1 of the Stipulation have occurred. (f) (g) "Escrow Agent" means Lead Counsel. "Final" means: (i) if no appeal is timely filed, the expiration date of the

time for the filing or noticing of an appeal from the Judgment; or (ii) if an appeal is timely filed, (a) the later of the date of final affirmance on appeal of the Judgment, the expiration of the time for a petition for a writ of certiorari to review the affirmance, a denial of certiorari that has been timely sought or, if certiorari is granted, the date of final affirmance of the Judgment following review pursuant to that grant; or (b) the date of final dismissal of any appeal from the Judgment or the final dismissal of any proceeding on certiorari to review the Judgment. (h) "Final Settlement Approval" means an order by the District Court finally

approving the terms of the Stipulation pursuant to Fed. R. Civ. P. 23(e). (i) "Judgment" means the judgment or order to be rendered by the District

Court, substantially in the form attached to the Stipulation as Exhibit B. (j) "Lead Counsel" means Coughlin Stoia Geller Rudman & Robbins LLP,

655 W. Broadway, Suite 1900, San Diego, CA 92101-3301. (k) "Lead Plaintiffs" mean New England Healthcare Employees Pension

Fund, Sat Pal Singh, Tejinder Singh, and Clifford Mosher.

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(l)

"Litigation" means In re Qwest Communications Securities Litigation,

Civil Action No. 01-CV-1451-REB-KLM, including all putative class actions consolidated therein. (m) "N&W Class" means all Persons who purchased or otherwise acquired

Qwest publicly traded securities (including common stock, bonds, and options) from May 24, 1999 through July 28, 2002 ("Class Period"), except for those Persons who requested and obtained exclusion from the class that was certified by the Court in the Partial Settlement and who subsequently resolved their claims against QCII, Nacchio, Woodruff and others and provided releases of claims against QCII, Nacchio, Woodruff and others. Excluded from the N&W Class are Defendants and any Persons affiliated with or related to any Defendant. For purposes of this paragraph, the Persons affiliated with or related to any Defendant are members of the immediate family of each Defendant, any entity in which any Defendant has a controlling interest, officers and directors of QCII and its subsidiaries and affiliates, and Arthur Andersen LLP ("AA") and AA's partners, shareholders and members, and the legal representatives, heirs, predecessors, successors and assigns of any such excluded party. Also excluded from the N&W Class are those Persons who request exclusion from the N&W Class in such form and manner, and within such time, as the Court shall prescribe. Also excluded from the N&W Class is any current or former officer, director, employee, or agent of Qwest who has been sued by the United States Securities and Exchange Commission in connection with such Person's affiliation with or conduct related to Qwest.

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(n) the N&W Class. (o)

"N&W Class Member" means a Person who falls within the definition of

"N&W Settlement Fund" means the principal amount of $45,000,000.00

(forty-five million dollars) in cash, plus all interest earned thereon pursuant to the Stipulation. (p) "Net N&W Settlement Fund" means the N&W Settlement Fund,

together with any interest earned thereon, less (i) any taxes, (ii) the amount allocated to Lead Counsel for attorneys' fees and expenses pursuant to any Fee and Expense Application (defined in Paragraph 7.1 of the Stipulation) approved by the Court pursuant to Paragraphs 7.1 and 7.2 of the Stipulation, and (iii) the cash allocated to the N&W Class Notice and Administration Fund pursuant to Paragraph 2.8 of the Stipulation. (q) "Partial Settlement" means the Order of the District Court entered on

September 29, 2006 [Docket No. 1050], as amended on January 8, 2007 [Docket No. 1096], certifying a class for the purpose of implementing the partial class action settlement provided for in the Stipulation of Partial Settlement between and among Lead Plaintiffs, Qwest and all other Defendants except Nacchio and Woodruff, and finding that settlement to be fair, reasonable, and adequate to that class in accordance with the standards of Rule 23 of the Federal Rules of Civil Procedure. (r) "Person" means an individual, corporation, partnership, limited

partnership, limited liability partnership (LLP), limited liability corporation (LLC), association, joint stock company, estate, legal representative, trust, unincorporated association, and any

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business or legal entity and their spouses, heirs, predecessors, successors, representatives, or assignees. (s) "Plan of Allocation" means the plan or formula of allocation that was

approved by the United States District Court for the District of Colorado as part of that Court's approval of the Partial Settlement, which shall be used in distributing the Net N&W Settlement Fund as well. The Plan of Allocation is not part of the Stipulation and the Defendants and the Related Parties shall have no liability with respect to it. (t) "Preliminary Settlement Approval" means an order by the District Court

preliminarily approving the terms of the Stipulation and ordering that notice be issued to the Class pursuant to Fed. R. Civ. P. 23(e). (u) (v) "QCII" means Qwest Communications International Inc. "Qwest" means QCII, any and all successors, subsidiaries, and

affiliates of QCII, and any and all current and former officers, directors, employees and agents of any of them, as well as any predecessors of QCII (including but not limited to U S WEST and any successors, subsidiaries, and affiliates thereof) and their successors, subsidiaries, and affiliates, and any and all current and former officers, directors, employees and agents of any of them. Notwithstanding the foregoing, neither Nacchio nor Woodruff is included in the definition of Qwest. (w) "Qwest Stipulation" shall mean the Stipulation of Partial Settlement,

executed by Lead Plaintiffs, Qwest and all other Defendants except Nacchio and Woodruff and filed in this matter on November 21, 2005 [Docket No. 886], which was approved by

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the District Court in the Partial Settlement and incorporated into the Partial Settlement by reference. (x) "Related Parties" mean each of a Settling Defendant's past or present

partners, employees, attorneys, accountants or auditors, banks or investment banks, advisors, personal or legal representatives, insurers, reinsurers, successors, assigns, spouses, heirs, related or affiliated entities, any partnership in which a Settling Defendant is a general or limited partner, any entity in which a Settling Defendant has a controlling interest, any member of a Settling Defendant's immediate family, or any trust or foundation of which any Settling Defendant is the settlor or which is for the benefit of any Settling Defendant and/or member(s) of his or her family. (y) "Released Claims" shall collectively mean all claims, demands, rights,

liabilities and causes of action of every nature and description whatsoever, whether based in law or equity, on federal, state, local, foreign, statutory or common law, or any other law, rule, or regulation (including, but not limited to, all claims arising out of or relating to any acts, omissions, disclosures, public filings, registration statements, financial statements, audit opinions, or statements by the Settling Defendants, including without limitation, claims for negligence, gross negligence, constructive or actual fraud, negligent misrepresentation, conspiracy, or breach of fiduciary duty), whether known or unknown, whether or not concealed or hidden, accrued or not accrued, foreseen or unforeseen, matured or not matured, that were asserted or that could have been asserted directly, indirectly, representatively or in any other capacity, at any time, in any forum by Lead Plaintiffs, the N&W Class Members, or the successors or assigns of any Lead Plaintiff or N&W Class - 13 -

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Member, or any of them against the Released Persons arising out of, based upon, or related in any way to: (a) the purchase, acquisition, sale, or disposition of Qwest securities by any Lead Plaintiff or any N&W Class Member during the Class Period and the allegations that were made or could have been made in the Litigation; (b) the purchase or other acquisition of, the retention of, the sale or other disposition of, or any other transaction involving Qwest securities by any of the Released Persons during the Class Period; or (c) the settlement or resolution of the Litigation (including, without limitation, any claim for attorneys' fees by Lead Plaintiffs or any N&W Class Member). Released Claims shall also include claims related to any tax effects or tax liabilities (including any interest, penalties and representation costs) arising out of the Stipulation or any payment or transfer made pursuant to the Stipulation. Released Claims shall also include Unknown Claims otherwise subject to this provision. Released Claims does not include claims to enforce the terms of the Stipulation. (z) Related Parties. (aa) Robert S. Woodruff. (bb) "Settling Parties" mean, collectively, each of the Settling Defendants "Settling Defendants" mean, collectively, Joseph P. Nacchio and "Released Persons" means each of the Settling Defendants and his

and the Lead Plaintiffs on behalf of themselves and the N&W Class Members. (cc) "Stipulation" means the Stipulation of Settlement dated as of August 4,

2008 together with all its exhibits.

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(dd)

"Unknown Claims" mean any claims that any N&W Class Member or

Lead Plaintiffs do not know or suspect to exist in his, her, its or their favor at the time of the release of the Released Persons which, if known by him, her, it, or them might have affected his, her, its or their settlement with and release of the Released Persons, or might have affected his, her, its, or their decision not to object to this settlement. With respect to any and all Released Claims, the Settling Parties stipulate and agree that, upon the Effective Date, the Lead Plaintiffs shall expressly, and each of the N&W Class Members shall be deemed to have, and by operation of the Judgment shall have, expressly waived the provisions, rights and benefits of California Civil Code §1542, which provides: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. The Lead Plaintiffs shall expressly, and each of the N&W Class Members shall be deemed to have, and by operation of the Judgment shall have, expressly waived any and all provisions, rights and benefits conferred by any law, or principle of common law, which is similar, comparable or equivalent to California Civil Code §1542. The Lead Plaintiffs and N&W Class Members may hereafter discover facts in addition to or different from those that he, she, it or they now know or believe to exist or to be true with respect to the subject matter of the Released Claims, but the Lead Plaintiffs shall have, and each N&W Class Member, upon the Effective Date, and by operation of the Judgment shall be deemed to have, fully, finally, and forever settled and released any and all Released Claims, known or unknown, suspected or unsuspected, contingent or non-contingent, whether or not - 15 -

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concealed or hidden, which now exist, or heretofore have existed, upon any theory of law or equity now existing or coming into existence in the future, including, but not limited to, conduct that is negligent, intentional, with or without malice, or a breach of any duty, law or rule, without regard to the subsequent discovery or existence of such different or additional facts. The Lead Plaintiffs acknowledge, and the N&W Class Members shall be deemed by operation of the Judgment to have acknowledged, that the foregoing waiver was separately bargained for and a material element of the settlement of which this release is a part. 2. This release shall be of no force or effect unless and until the Court approves

the Stipulation and the Effective Date (as defined in the Stipulation) has occurred. 3. I (We) hereby warrant and represent that I (we) have not assigned or

transferred or purported to assign or transfer, voluntarily or involuntarily, any matter released pursuant to this release or any other part or portion thereof. 4. I (We) hereby warrant and represent that I (we) have included information

about all of my (our) purchase and sales transactions in Qwest publicly traded securities which occurred during the Class Period and the number of securities held by me (us) at the beginning of trading on May 24, 1999, and at the close of trading on July 28, 2002. 5. I (We) hereby warrant and represent that I (we) am (are) not excluded from

the N&W Class as defined herein and in the Notice.

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SUBSTITUTE FORM W-9 Request for Taxpayer Identification Number ("TIN") and Certification PART I NAME: Check appropriate box: Individual/Sole Proprietor Corporation Partnership IRA Other Enter TIN on appropriate line. For individuals, this is your social security number ("SSN"). For sole proprietors, you must show your individual name, but you may also enter your business or "doing business as" name. You may enter either your SSN or your Employer Identification Number ("EIN"). For other entities, it is your EIN. __ __ __ - __ __ - __ __ __ __ Social Security Number or __ __ - __ __ __ __ __ __ __ Employer Identification Number Pension Plan Trust

PART II For Payees Exempt from Backup Withholding If you are exempt from backup withholding, enter your correct TIN in Part I and write "exempt" on the following line: ________________________________. PART III Certification UNDER THE PENALTY OF PERJURY, I (WE) CERTIFY THAT: 1. 2. The number shown on this form is my correct TIN; and I (We) certify that I am (we are) NOT subject to backup withholding under the provisions of Section 3406 (a)(1)(C) of the Internal Revenue Code because: (a) I am (we are) exempt from backup withholding; or (b) I (we) have not been notified by the Internal Revenue Service that I am (we are) subject to backup withholding as a - 17 -

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result of a failure to report all interest or dividends; or (c) the Internal Revenue Service has notified me (us) that I am (we are) no longer subject to backup withholding.

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NOTE:

If you have been notified by the Internal Revenue Service that you are subject to backup withholding, you must cross out Item 2 above. SEE ENCLOSED FORM W-9 INSTRUCTIONS

The Internal Revenue Service does not require your consent to any provision of this document other than the certification required to avoid backup withholding. I declare under penalty of perjury under the laws of the United States of America that the foregoing information supplied by the undersigned is true and correct. Executed this _________ day of ___________________, (Month / Year) in _____________________, ______________________________. (City) (State / Country)

(Sign your name here) (Type or print your name here) (Capacity of person(s) signing, e.g., Beneficial Purchaser, Executor or Administrator) ACCURATE CLAIMS PROCESSING TAKES A SIGNIFICANT AMOUNT OF TIME. THANK YOU FOR YOUR PATIENCE. Reminder Checklist: 1. 2. 3. 4. Please sign the above release and declaration. Remember to attach supporting documentation, if available. Do not send original or copies of stock certificates. Keep a copy of your claim form for your records.

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5. 6.

If you desire an acknowledgment of receipt of your claim form, please send it Certified Mail, Return Receipt Requested. If you move, please send us your new address.

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