Exhibit 4.6
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:
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(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
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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:
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(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
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▇▇▇▇▇▇ ▇. ▇▇▇ 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.
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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. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
SUPER STAR ASSOCIATES LIMITED
PARTNERSHIP
By: /s/ T. V. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Partner
11
US LEC CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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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/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
THE HARKINS 1995 GIFT TRUST
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Trustee
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇
13
/s/ ▇. ▇▇▇▇▇▇ ▇▇▇▇
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▇. ▇▇▇▇▇▇ ▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/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/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ 1988 IRREVOCABLE TRUST
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Trustee
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ as Custodian for
▇▇▇▇▇ ▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ as Custodian for
▇▇▇▇▇▇ ▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇
15
THL-CCI INVESTORS LIMITED
PARTNERSHIP
By: THL Investment Management Corp.,
its general partner
By:
--------------------------------------
Name:
Title:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇. ▇▇▇▇▇▇ Spaht
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▇. ▇▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ Wm. ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Wm. ▇▇▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ ▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇ ▇. ▇▇▇▇▇▇
16
SCHEDULE I
Investors
Number of Shares of Series A
Name Preferred Stock Purchased
---- -------------------------
▇▇▇▇ Capital CLEC Investors, L.L.C. 100,000.00
▇▇▇▇▇▇ ▇. ▇▇▇ Equity Fund IV, L.P. 83,533.00
▇▇▇▇▇▇ ▇. ▇▇▇ Foreign Fund IV-B, L.P. 8,113.00
▇▇▇▇▇▇ ▇. ▇▇▇ Foreign Fund IV, L.P. 2,859.00
▇▇▇▇▇▇ Investment Holdings, LLC 1,374.00
1997 ▇▇▇▇▇▇ ▇. ▇▇▇ Nominee Trust/1/ 1,104.00
▇▇▇▇▇▇ ▇. ▇▇▇ Charitable Investment Limited Partnership 543.00
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 294.00
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 245.00
▇. ▇▇▇▇▇▇ ▇▇▇▇ 245.00
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 245.00
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 245.00
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 245.00
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. 245.00
▇▇▇▇ ▇. ▇▇▇▇▇ 102.00
▇▇▇▇ ▇. ▇▇▇▇▇▇ 68.00
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 54.00
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 54.00
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ 1988 Irrevocable Trust 50.00
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ 50.00
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 41.00
The Harkins 1995 Gift Trust 33.00
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 29.00
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ as Custodian for ▇▇▇▇▇ ▇▇▇ 25.00
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ as Custodian for ▇▇▇▇▇▇ ▇▇▇ 25.00
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 20.00
▇▇▇▇▇ ▇▇▇▇▇▇ 20.00
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 20.00
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 17.00
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 15.00
▇▇▇▇▇ ▇. ▇▇▇▇▇ 15.00
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 12.00
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 12.00
▇. ▇▇▇▇▇▇ ▇▇▇▇▇ 7.00
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 12.00
--------
/1/ For legal purposes, certificate should be issued to "State Street Bank as
Trustee for 1997 ▇▇▇▇▇▇ ▇. ▇▇▇ Nominee Trust"
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 12.00
Wm. ▇▇▇▇▇▇▇ ▇▇▇▇▇ 12.00
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 2.00
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 2.00
▇▇▇ ▇. ▇▇▇▇▇▇ 1.00