VOTING AND TAG ALONG AGREEMENT
This Voting AND TAG ALONG Agreement (this "Agreement") is made and
entered into as of April 11, 2000, by and among the persons whose names are set
forth on the attached Schedule I (collectively, the "Investors") and ▇▇▇▇▇▇▇ ▇.
Aab ("Aab"), Melrich Associates, L.P., a New York limited partnership
("Melrich"), ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇") and Super STAR Associates Limited
Partnership, a Georgia limited partnership ("Super STAR"). Aab, Melrich, ▇▇▇▇▇▇▇
and Super STAR are collectively referred to herein as the "Class B
Stockholders."
STATEMENT OF PURPOSE
A. The Class B Stockholders own and hold of record the following shares
of Class B Common Stock, par value $0.01 per share ("Class B Common Stock"),
issued by US LEC Corp., a Delaware corporation (the "Company"), which constitute
all of the issued and outstanding shares of Class B Common Stock:
CLASS B NUMBER
STOCKHOLDERS OF SHARES
----------------------- -----------------
Aab 8,480,770
Melrich 4,309,500
▇▇▇▇▇▇▇ 294,000
Super STAR 3,750,000
-----------------
Total 16,834,270
=================
B. The Class B Stockholders have entered into a Second Amended and
Restated Stockholders Agreement, of even date herewith (the "Stockholders
Agreement"), pursuant to which, among other things, Melrich, ▇▇▇▇▇▇▇ and Super
STAR (i) agreed to vote all of their shares of Class B Common Stock in the same
manner as Aab and (ii) granted to Aab an irrevocable proxy, with full power of
substitution, for and on their behalf to attend all meetings of stockholders of
the Company and to act, vote and execute consents with respect to all of their
shares of Class B Common Stock, which proxy continues in full force and effect
for the period specified in the Stockholders Agreement (the "Irrevocable
Proxy").
C. The Board of Directors of the Company has designated a new series of
Series A Convertible Preferred Stock (the "Preferred Stock") pursuant to a
Certificate of Designation (the "Designation") amending the Company's Restated
Certificate of Incorporation (as so amended and as further amended from time to
time, the "Restated Certificate").
D. Concurrently with the execution of this Agreement, the Company and
the Investors are entering into a Preferred Stock Purchase Agreement (the
"Purchase Agreement") which provides for (i) the purchase by the Investors of an
aggregate of 200,000 shares of the Preferred Stock, (ii) the issuance of an
option to the Investors (the "Option") to purchase up to an aggregate of 100,000
shares of the Company's Series B Convertible Preferred Stock (the "Option
Preferred Stock") having the terms set forth in the Series B Certificate of
Designation (the "Option Designation") attached as an exhibit to the Option
Agreement (as defined in the Purchase Agreement) and (iii) a Corporate
Governance Agreement which obligates the
Company to take certain actions in connection with the Purchase Agreement (the
"Corporate Governance Agreement").
E. Shares of the Preferred Stock and shares of Option Preferred Stock,
when issued under the Option Agreement, will be convertible into shares of the
Company's Class A Common Stock, par value $.01 per share ("Class A Common
Stock"). "Common Stock" means any Class A Common Stock, Class B Common Stock or
any other class of common stock created by the Company. "Subject Common Stock"
means any Common Stock now or hereafter held by the Class B Stockholders.
F. As an inducement to the Investors to enter into the Purchase
Agreement, the Class B Stockholders are willing to enter into and be bound by
this Agreement pursuant to which, among other things, the Class B Stockholders
grant to the Investors, certain tag-along rights and voting agreements with
respect to the shares of Subject Common Stock upon the terms set forth herein.
Now, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and intending to be legally bound
hereby, the parties hereby agree as follows:
1. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE CLASS B
STOCKHOLDERS. The Class B Stockholders hereby represent, warrant and covenant to
the Investors as follows:
(a) Ownership of and Proxy Held With Respect to the Class B
Shares. Aab owns and holds of record 8,480,770 shares of Class B Common
Stock and holds an irrevocable proxy with respect to the 4,309,500
shares of Class B Common Stock owned and held of record by Melrich,
294,000 shares of Class B Common Stock owned and held of record by
▇▇▇▇▇▇▇ and 3,750,000 shares of Class B Common Stock owned and held of
record by Super STAR.
(b) Authority; No Conflict. This Agreement has been duly
executed and delivered by the Class B Stockholders and constitutes the
legal, valid and binding obligation of each of them, enforceable
against each of them in accordance with its terms, except as limited by
(i) applicable bankruptcy, insolvency, reorganization, moratorium and
other laws of general application affecting enforcement of creditors'
rights generally and (ii) general principles of equity, regardless of
whether asserted in a proceeding in equity or at law. Neither the
execution and delivery of this Agreement nor the performance by the
Class B Stockholders of the obligations contemplated hereby will result
in a violation of, or a default under, or conflict with, any contract,
trust, commitment, agreement, understanding, arrangement or restriction
of any kind to which a Class B Stockholder is a party or bound or to
which the shares of Subject Common Stock are subject. Performance by
the Class B Stockholders of the obligations contemplated hereby will
not violate, or require any consent, approval, or notice under, any
provision of any judgment, order, decree, statute, law, rule or
regulation applicable to the Class B Stockholders or the shares of
Subject Common Stock.
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(c) Investors' Reliance. The Class B Stockholders understand
and acknowledge that the Investors are entering into the Purchase
Agreement in reliance upon the Class B Stockholders' execution and
delivery of this Agreement.
2. ADDITIONAL DOCUMENTS
The Class B Stockholders hereby covenant and agree to execute and
deliver any additional documents necessary or desirable, in the reasonable
opinion of the Investors, to carry out the intent of this Agreement.
3. AGREEMENT TO VOTE FOR DIRECTORS
(a) If, pursuant to the Restated Certificate, the Class B
Stockholders are authorized to vote on a proposal to elect one or more
Investor Directors (as defined in the Corporate Governance Agreement)
presented at any meeting of stockholders of the Company, the Class B
Stockholders shall vote each share of Subject Common Stock as to which
they hold voting power in favor of the election of any Investor
Director at such meeting and any adjournment thereof.
(b) If, pursuant to the Restated Certificate, the Class B
Stockholders are authorized to vote on a proposal to elect one or more
persons as directors to the Board (as defined in the Corporate
Governance Agreement) presented at any meeting of stockholders of the
Company called upon (i) the exercise by the Investor Agents (as defined
in the Corporate Governance Agreement) of a remedy they are entitled to
exercise pursuant to Section 3.4 of the Corporate Governance Agreement,
or (ii) the exercise by the Permitted Owners (as defined in the
Corporate Governance Agreement) of any rights they are entitled to
exercise under Section 5 of the Designation and the Option Designation,
the Class B Stockholders shall vote each share of Subject Common Stock
as to which they hold voting power in favor of the election of such
persons as directors as may be designated or nominated by the Investor
Agents or Permitted Owners, as applicable (including any Investor
Directors as defined in the Corporate Governance Agreement); provided
that the Class B Stockholders shall not be required to vote their
shares of Subject Common Stock in favor of more than such number of
persons so designated or nominated who, upon their election, would then
constitute (together with any incumbent Investor Directors) a majority
of the members of the Board.
4. POTENTIAL CHANGE OF CONTROL TRANSFERS
The Class B Stockholders agree not to Transfer for value any
shares of Subject Common Stock if, as a result of such Transfer, a Change of
Control (as defined in the Designation and the Option Designation) would occur
unless either (i) the outstanding shares of Preferred Stock and Option Preferred
Stock have been converted into Class A Common Stock prior to such Change of
Control or (ii) the Company is legally able, and has the resources necessary, to
comply with the provisions of Section 5.1(b) of the Designation and the Option
Designation upon the exercise by the holders of Preferred Stock and Option
Preferred Stock of their rights to require the Company to redeem the Preferred
Stock and Option Preferred Stock.
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5. TAG ALONG RIGHTS
No Class B Stockholder (each such stockholder, a "Prospective
Selling Class B Stockholder") shall Transfer for value (a "Sale") any shares of
Common Stock ("Shares") to any Person (a "Prospective Buyer") except in
compliance with this Section 5. Any attempted Sale of Shares not in compliance
with this Section 5 shall be null and void, and the Company shall not in any way
give effect to any such impermissible Sale.
(a) Notice. A written notice (the "Tag Along Notice") shall be
furnished by the Prospective Selling Class B Stockholders to the
Company, and to each Permitted Owner of the Underlying Common Stock (as
defined in the Corporate Governance Agreement) known to them based on
the records maintained by the Company (each, a "Tag Along Holder") at
least ten Business Days (as defined in the Purchase Agreement) prior to
such Sale. The Tag Along Notice shall include:
(i) The material terms of the proposed Sale,
including the number of Shares to be purchased from the
Prospective Selling Class B Stockholders, the percentage of
the total number of Shares held by the Prospective Selling
Class B Stockholders or their Affiliates (as defined in the
Purchase Agreement) which such number of Shares constitutes
(the "Tag Along Sale Percentage"), the maximum and minimum per
share purchase price (which maximum price shall not be more
than 110% of the minimum price) and the name and address of
the Prospective Buyer; and
(ii) An invitation to each Tag Along Holder to make
an offer to include in the proposed Sale to the Prospective
Buyer an additional number of Shares (not in any event to
exceed the Tag Along Sale Percentage of the total number of
shares of Underlying Common Stock held by such Tag Along
Holder) owned by such Tag Along Holder, on the same terms and
conditions, with respect to each Share sold, as the
Prospective Selling Class B Stockholders shall sell each of
their Shares.
(b) Exercise. Within ten Business Days after the effectiveness
of the Tag Along Notice, each Tag Along Holder desiring to make an
offer to include Shares in the proposed Sale (each a "Participating
Seller" and, together with the Prospective Selling Class B
Stockholders, collectively, the "Tag Along Sellers") shall send a
written offer (the "Tag Along Offer") to the Prospective Selling Class
B Stockholders, with a copy to the Company, specifying the number of
Shares (not in any event to exceed the Tag Along Sale Percentage of the
total number of shares of Underlying Common Stock held by such
Participating Seller) which such Participating Seller desires to have
included in the proposed Sale. Each Tag Along Holder who does not
accept the Prospective Selling Class B Stockholders' invitation to make
an offer to include Shares in the proposed Sale shall be deemed to have
waived all of its rights with respect to such Sale, and the Tag Along
Sellers shall thereafter be free to sell to the Prospective Buyer, at a
per share price no greater than the maximum per share price set forth
in the Tag Along Notice and on other principal terms which are not
materially more favorable to the Tag Along Sellers than those set forth
in the Tag Along Notice, without any further obligation to such
non-accepting Tag Along Holder.
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(c) Irrevocable Offer. The offer of each Participating Seller
contained in its Tag Along Offer shall be irrevocable, and, to the
extent such offer is accepted, such Participating Seller shall be bound
and obligated to sell in the proposed Sale on the same terms and
conditions, with respect to each Share sold, as the Prospective Selling
Class B Stockholders, up to such number of Shares as such Participating
Seller shall have specified in its Tag Along Offer; provided, however,
that if the principal terms of the proposed Sale change with the result
that the per share price shall be less than the minimum per share price
set forth in the Tag Along Notice or the other principal terms shall be
materially less favorable to the Tag Along Sellers than those set forth
in the Tag Along Notice, each Participating Seller shall be permitted
to withdraw the offer contained in its Tag Along Offer and shall be
released from its obligations thereunder.
(d) Reduction of Shares Sold. The Prospective Selling Class B
Stockholders shall attempt to obtain the inclusion in the proposed Sale
of the entire number of Shares which the Tag Along Sellers requested to
have included in the Sale (as evidenced in the case of the Prospective
Selling Class B Stockholders by the Tag Along Notice and in the case of
each Participating Seller by such Participating Seller's Tag Along
Offer). In the event the Prospective Selling Class B Stockholders shall
be unable to obtain the inclusion of such entire number of Shares in
the proposed Sale, the number of Shares to be sold in the proposed Sale
shall be allocated among the Tag Along Sellers in proportion, as nearly
as practicable, to the respective number of Shares which each Tag Along
Seller requested to be included in the proposed Sale.
(e) Additional Compliance. If (i) prior to consummation, the
terms of the proposed Sale shall change with the result that the per
share price to be paid in such proposed Sale shall be greater than the
maximum per share price set forth in the Tag Along Notice or the other
principal terms of such proposed Sale shall be materially more
favorable to the Tag Along Sellers than those set forth in the Tag
Along Notice, the Tag Along Notice shall be null and void, and it shall
be necessary for a separate Tag Along Notice to be furnished, and the
terms and provisions of this Section 5 separately complied with, in
order to consummate such proposed Sale pursuant to this Section 5;
provided, however, that in the case of such a separate Tag Along
Notice, the applicable period to which reference is made in Sections
5(a) and 5(b) shall be five Business Days and (ii) the Prospective
Selling Class B Stockholders have not completed the proposed Sale by
the end of the 90th day following the date of the effectiveness of the
Tag Along Notice, each Participating Seller shall be released from its
obligations under its Tag Along Offer, the Tag Along Notice shall be
null and void, and it shall be necessary for a separate Tag Along
Notice to be furnished, and the terms and provisions of this Section 5
separately complied with, in order to consummate such proposed Sale
pursuant to this Section 5, unless the failure to complete such
proposed Sale resulted from any failure by any Participating Seller to
comply with the terms of this Section 5.
(f) Excluded Transactions. Notwithstanding the foregoing, the
Class B Stockholders shall not be obligated to comply with the
foregoing provisions of this Section 5 and none of the Permitted Owners
shall have any right of participation pursuant to the terms of this
Section 5, or otherwise, in each case, with respect to any Sale of
Shares:
5
(i) by a Class B Stockholder to another Class B
Stockholder or to a Permitted Transferee who agrees to be
bound by this Agreement as a Class B Stockholder;
(ii) in a public offering of Common Stock with
respect to which holders of Registrable Securities (as defined
in the Registration Rights Agreement) have piggyback
registration rights pursuant to the Registration Rights
Agreement (as defined in the Purchase Agreement); or
(iii) if, after giving effect to such Sale, the Class
B Stockholders and their Permitted Transferees will continue
to own in the aggregate not less than 85% of the shares of
Subject Common Stock held by the Class B Stockholders as of
the date of this Agreement.
(g) Further Assurances. Each Participating Seller, whether in
its capacity as a Participating Seller, stockholder, officer or
director of the Company, or otherwise, shall take or cause to be taken
all such actions as may be necessary or reasonably desirable in order
expeditiously to consummate each Sale pursuant to this Section 5 and
any related transactions, including, without limitation, executing,
acknowledging and delivering consents, assignments, waivers and other
documents or instruments; furnishing information and copies of
documents; filing applications, reports, returns, filings and other
documents or instruments with governmental authorities; and otherwise
cooperating with the Prospective Selling Class B Stockholders and the
Prospective Buyer; provided, however, that Participating Sellers shall
be obligated to become liable in respect of any representations,
warranties, covenants, indemnities or otherwise to the Prospective
Buyer solely to the extent provided in the immediately following
sentence. Without limiting the generality of the foregoing, each
Participating Seller agrees to execute and deliver such agreements as
may be reasonably specified by the Prospective Selling Class B
Stockholders, to which such Prospective Selling Class B Stockholders
will also be party, including, without limitation, agreements to (A)
make individual representations, warranties, covenants and other
agreements as to the unencumbered title to its Shares and the power,
authority and legal right to sell such Shares and the absence of any
adverse claim with respect to such Shares and (B) be liable (whether by
purchase price adjustment, indemnity payments or otherwise) in respect
of representations, warranties, covenants and agreements in respect of
the Company and its subsidiaries; provided, however, that, except with
respect to individual representations, warranties, covenants,
indemnities and other agreements of Participating Sellers of the type
described in clause (A) above, the aggregate amount of such liability
shall not exceed the lesser of (x) such Participating Seller's pro rata
portion of any such liability, to be determined in accordance with such
Participating Seller's portion of the total number of Shares included
in such Sale or (y) the proceeds to such Participating Seller in
connection with such Sale; and provided, further, that with respect to
individual representations, warranties, covenants, indemnities and
other agreements of Participating Sellers of the type described in
clause (A) above, the aggregate amount of such liability shall not
exceed the proceeds to such Participating Seller in connection with
such Sale.
(h) Sale Process. The Prospective Selling Class B Stockholders
shall, in their sole discretion, decide whether or not to pursue,
consummate, postpone or abandon any
6
proposed Sale and the terms and conditions thereof. No Prospective
Selling Class B Stockholder or any Affiliate of any Prospective Selling
Class B Stockholder shall have any liability to any other holder of
Shares arising from, relating to or in connection with the pursuit,
consummation, postponement, abandonment or terms and conditions of any
proposed Sale except to the extent such Prospective Selling Class B
Stockholder shall have failed to comply with the provisions of this
Section 5.
(i) Expenses. All reasonable costs and expenses incurred by
the Prospective Selling Class B Stockholders or the Company in
connection with any proposed Sale pursuant to this Section 5 (whether
or not consummated), including without limitation all attorneys fees
and expenses, all accounting fees and charges and all finders,
brokerage or investment banking fees, charges or commissions, shall be
paid by the Prospective Selling Class B Stockholders. The reasonable
costs and expenses incurred by the Participating Sellers in connection
with any proposed Sale pursuant to this Section 5 (whether or not
consummated) including, without limitation, all attorneys fees and
expenses, all accounting fees and charges and all finders, brokerage or
investment banking fees, charges or commissions, shall be paid by the
Participating Seller(s).
(j) Closing. The closing of a Sale pursuant to the Section 5
shall take place at such time and place as the Prospective Selling
Class B Stockholders shall specify by notice to each Participating
Seller. At the closing of any Sale under this Section 5, each
Participating Seller shall deliver the certificates evidencing the
Shares to be sold by such Participating Seller, duly endorsed, or with
stock (or equivalent) powers duly endorsed, for transfer with signature
guaranteed, free and clear of any liens or encumbrances, with any stock
(or equivalent) transfer tax stamps affixed, against delivery of the
applicable consideration.
(k) Termination. The provisions of this Section 5 shall
terminate and have no further force or effect immediately after the
Permitted Owners cease to hold at least 20% of the Underlying Common
Stock.
6. SUBJECT COMMON STOCK; TRANSFERS TO PERMITTED TRANSFEREES
(a) Subject Common Stock. The Class B Stockholders agree that
any shares of Subject Common Stock held or owned by them, or with
respect to which they otherwise acquire beneficial ownership after the
execution of this Agreement, including, without limitation, in the
event of any stock split, stock dividend, recapitalization or other
change in the capital structure of the Company affecting the Subject
Common Stock, shall be subject to the terms and conditions of this
Agreement to the same extent as if such shares constituted the shares
of Subject Common Stock issued and outstanding as of the date hereof.
(b) Transfers to Permitted Transferees. The Class B
Stockholders agree that this Agreement and the obligations hereunder
shall be binding upon any Permitted Transferee (as defined in the
Restated Certificate) to which legal or beneficial ownership of any
shares of Subject Common Stock shall pass, whether by operation of law
or otherwise. No transfer of the legal or beneficial ownership of such
shares to a Permitted Transferee shall be valid unless such Permitted
Transferee agrees to be bound by this Agreement as a "Class B
Stockholder."
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7. MISCELLANEOUS
(a) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent
jurisdiction to be invalid, void or unenforceable, then the remainder
of the terms, provisions, covenants and restrictions of this Agreement
shall remain in full force and effect and shall in no way be affected,
impaired or invalidated.
(b) Binding Effect and Assignment. This Agreement and all of
the provisions hereof shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and permitted
assigns (including any Permitted Transferees); provided, however,
except as otherwise specifically provided herein, neither this
Agreement nor any of the rights, interests or obligations of the Class
B Stockholders may be assigned by the Class B Stockholders without the
prior written consent of the Permitted Owners holding a majority of the
Underlying Common Stock.
(c) Amendments and Modification. This Agreement may not be
modified, amended, altered or supplemented except upon the execution
and delivery of a written agreement executed by the Class B
Stockholders and Permitted Owners holding a majority of the Underlying
Common Stock.
(d) Specific Performance; Injunctive Relief. The parties
hereto acknowledge that the Investors will be irreparably harmed and
that there will be no adequate remedy at law for a violation of any of
the covenants or agreements of the Class B Stockholders set forth
herein. Therefore, it is agreed that, in addition to any other remedy
or remedies that may be available to the Investors upon any such
violation, the Investors shall have the right to enforce such covenants
and agreements by specific performance, injunctive relief or by any
other means available to the Investors at law or in equity without
posting any bond and without proving that monetary damages would be
inadequate.
(e) Notices. All notices, requests, claims, demands and other
communications hereunder ("Notices") shall be in writing and sent by
certified or registered mail, return receipt requested, a recognized
overnight courier service, telecopier or personal delivery, as follows:
8
(i) if to any Class B Stockholder:
▇▇▇▇▇▇▇ ▇. Aab
Melrich Associates, L.P.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Super STAR Associates Limited Partnership
c/o US LEC Corp.
Transamerica Square
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with required copies to:
▇▇▇▇▇▇▇ ▇. Aab
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ LEC Corp.
Transamerica Square
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇▇ & ▇▇▇ ▇▇▇▇▇, PLLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ III
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) if to the Investors:
▇▇▇▇ Capital, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇. ▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
and
9
▇▇▇▇▇▇ ▇. ▇▇▇ Partners, L.P.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a required copy to:
Ropes & ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
All such Notices shall be deemed to have been duly given: when
delivered by hand, if personally delivered; when delivered by courier,
if delivered by commercial overnight courier service; five Business
Days after being deposited in the mail, postage prepaid, if mailed; and
when receipt is acknowledged by the individual to whose attention the
telecopy is sent, if telecopied. A party may change its address for
purposes of this Agreement by Notice in accordance with this Section
7(e).
(f) Governing Law. The laws of the State of Delaware
(irrespective of its choice of laws, rules or principles) will govern
the validity of this Agreement, the construction of its terms and the
interpretation and enforcement of the rights and duties of the parties
hereto.
(g) Entire Agreement. This Agreement and the Purchase
Agreement contain the entire understanding of the parties with respect
to the subject matter hereof, and supersede all prior negotiations and
understandings between the parties with respect to such subject matter.
(h) Counterparts. This Agreement may be executed in
counterparts, each of which shall be an original, but which together
shall constitute one and the same agreement.
(i) Effect of Headings. The section headings herein are for
convenience only and shall not affect the construction or
interpretation of this Agreement.
(j) Definition of Transfer. For purposes of Sections 4 and 5
of this Agreement, a "Transfer" means any sale, assignment or other
disposition of any Shares to any other Person, whether directly,
indirectly, voluntarily, involuntarily, by operation of law, pursuant
to judicial process or otherwise; provided that the term "Transfer"
shall not include the pledge or granting of a security interest in the
Shares or the subsequent disposition of any of such Shares upon the
exercise by the pledgee or secured party, in accordance with its
customary practices, of its rights upon a default with respect to any
obligation owed to such pledgee or secured party by a Class B
Stockholder.
10
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first above written.
CLASS B STOCKHOLDERS:
/s/ ▇▇▇▇▇▇▇ ▇. Aab
--------------------------------------------
▇▇▇▇▇▇▇ ▇. Aab
MELRICH ASSOCIATES, L.P.
By: /s/ ▇▇▇▇▇▇▇ ▇. Aab
-----------------------------------
▇▇▇▇▇▇▇ ▇. Aab, General Partner
By: /s/ ▇▇▇▇▇ ▇. Aab
-----------------------------------
▇▇▇▇▇ ▇. Aab, General Partner
/s/ T. V. ▇▇▇▇▇▇▇
--------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
SUPER STAR ASSOCIATES LIMITED PARTNERSHIP
By: /s/ T. V. ▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Partner
11
US LEC CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
▇▇▇▇ CAPITAL CLEC INVESTORS, L.L.C.
By: ▇▇▇▇ Capital Fund VI, L.P.,
its Administrative Member
By: ▇▇▇▇ Capital Partners VI, L.P.,
its General Partner
By: ▇▇▇▇ Capital Investors VI, Inc.,
its general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
▇▇▇▇▇▇ ▇. ▇▇▇ EQUITY FUND IV, L.P.
By: THL Equity Advisors IV, LLC,
its general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
▇▇▇▇▇▇ ▇. ▇▇▇ FOREIGN FUND IV-B, L.P.
By: THL Equity Advisors IV, LLC,
its general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
12
▇▇▇▇▇▇ ▇. ▇▇▇ FOREIGN FUND IV, L.P.
By: THL Equity Advisors IV, LLC,
its general partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
▇▇▇▇▇▇ INVESTMENTS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Managing Director
1997 ▇▇▇▇▇▇ ▇. ▇▇▇ NOMINEE TRUST
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Trustee
▇▇▇▇▇▇ ▇. ▇▇▇ CHARITABLE INVESTMENT L.P.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇
Title: President
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
THE HARKINS 1995 GIFT TRUST
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Trustee
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
13
/s/ ▇. ▇▇▇▇▇▇ ▇▇▇▇
--------------------------------------
▇. ▇▇▇▇▇▇ ▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
--------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇
14
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ 1988 IRREVOCABLE TRUST
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Trustee
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
--------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ AS CUSTODIAN FOR
▇▇▇▇▇ ▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ AS CUSTODIAN FOR
▇▇▇▇▇▇ ▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
15
THL-CCI INVESTORS LIMITED
PARTNERSHIP
By: THL Investment Management Corp.,
its general partner
By:
-----------------------------------
Name:
Title:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇. ▇▇▇▇▇▇ Spaht
--------------------------------------
▇. ▇▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ Wm. ▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
WM. ▇▇▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ ▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇
16