SECOND AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT
THIS SECOND AMENDED AND RESTATED STOCKHOLDERS AGREEMENT (this
"Agreement"), dated as of the 10th day of April, 2000, is by and among XXXXXXX
X. AAB, a resident of Pittsford, New York ("Aab"), MELRICH ASSOCIATES, L.P., a
New York limited partnership ("Melrich"), XXXXXXX X. XXXXXXX, a resident of
Charlotte, North Carolina ("Xxxxxxx"), and SUPER STAR ASSOCIATES LIMITED
PARTNERSHIP, a Georgia limited partnership ("Super STAR"). Aab, Melrich, Xxxxxxx
and Super STAR are sometimes referred to individually as a "Stockholder" and
collectively as the "Stockholders."
BACKGROUND:
A. US LEC Corp., a Delaware corporation (the "Corporation"), has
Seventeen Million Seventy-Five Thousand Two Hundred Seventy-Two (17,075,272)
shares of authorized Class B Common Stock, par value $.01 per share ("Class B
Common"), of which Sixteen Million Eight Hundred Thirty-Four Thousand Two
Hundred Seventy (16,834,270) shares are currently issued and outstanding (as
defined in Section 6, the "Shares").
B. The Stockholders own and hold of record the following Shares:
STOCKHOLDER NUMBER OF SHARES
----------- ----------------
Xxxxxxx X. Aab 8,480,770
Melrich Associates, L.P. 4,309,500
Xxxxxxx X. Xxxxxxx 294,000
Super STAR Associates
Limited Partnership 3,750,000
C. The Stockholders believe that it is in their best interest to enter
into specific agreements concerning the disposition, conversion and voting of
the Shares.
D. Concurrently with the execution of this Agreement, the Corporation
and affiliates of Xxxx Capital, Inc. and Xxxxxx X. Xxx Partners, L.P. (the
"Investors") are entering into a Preferred Stock Purchase Agreement (the
"Purchase Agreement") which provides for, among other things, the purchase by
the Investors of 200,000 shares of the Corporation's Series A Convertible
Preferred Stock for an aggregate purchase price of $200,000,000.
E. The Stockholders believe the transactions contemplated by the
Purchase Agreement are in the best in of the Corporation and will be of direct
benefit to them by providing the Corporation with additional capital to expand
and diversify its telecommunications business and potentially increase the value
of the Shares.
F. As an inducement to the Investors to enter into the Purchase
Agreement, and the other agreements contemplated by the Purchase Agreement, the
Class B Stockholders are willing to enter into and be bound by this Agreement
pursuant to which the Stockholders agree to amend and restate certain provisions
concerning the disposition, conversion and voting of the Shares contained in the
Amended and Restated Shareholders Agreement, dated January 1, 1998, and the
irrevocable proxy executed in connection therewith, both of which shall be
superceded in their entirety by this Agreement and the irrevocable proxies in
the forms attached hereto as Exhibit A and Exhibit B.
Accordingly, in consideration of the premises and of the mutual
covenants and agreements contained herein, and for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Stockholders do hereby agree as follows:
1. Voting of the Shares
(a) For so long as Aab is living and not Incapacitated (as
defined below), each Stockholder other than Aab shall vote all of his,
hers or its Shares (whether now owned or hereafter acquired), whether
for directors or for any other purpose, in the same manner as Aab.
(b) For so long as Aab is living and not Incapacitated, each
Stockholder other than Aab shall give his, hers or its irrevocable
proxy to Aab, contemporaneously with the execution and delivery of this
Agreement and hereafter from time to time at the request of Aab, by
executing and delivering to Aab an irrevocable proxy in the form of the
proxy attached hereto as Exhibit A. Aab shall vote the Shares to elect
one (1) designee of Xxxxxxx and one (1) designee of Aab as Class B
Directors (as defined in the Restated Certificate of the Corporation
(the "Certificate")).
(c) If Aab shall die or become Incapacitated prior to such
time as Xxxxxxx dies or becomes Incapacitated, the irrevocable proxy
granted pursuant to Section 1(b) of this Agreement shall terminate and,
for so long as Xxxxxxx is living and not Incapacitated, each
Stockholder other than Xxxxxxx shall vote all of his, hers or its
Shares (whether now owned or hereafter acquired), whether for directors
or for any other purpose, in the same manner as Xxxxxxx.
(d) If Aab shall die or become Incapacitated prior to such
times as Xxxxxxx dies or becomes Incapacitated, for so long as Xxxxxxx
is living and not Incapacitated, each Stockholder other than Xxxxxxx
shall give his, hers or its irrevocable proxy to Xxxxxxx, and
thereafter from time to time at the request of Xxxxxxx, by executing
and delivering to Xxxxxxx an irrevocable proxy in the form of proxy
attached hereto as Exhibit B.
(e) If, at any time subsequent to becoming Incapacitated, Aab
shall cease being Incapacitated, Sections 1(a) and (b) of this
Agreement shall again become operative as if this Agreement had been
executed and delivered at such time and the irrevocable proxy given
pursuant to Section 1(d) shall terminate.
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2. Offer Upon Elective Conversion. If any Stockholder desires to effect
an elective conversion of any Shares (whether now owned or hereafter acquired)
into shares of Class A Common Stock of the Corporation ("Class A Common"), as
provided for in the Restated Certificate, the Stockholder shall first submit to
all other Stockholders a written notice of the Stockholder's intent to convert
his, her or its Shares into Class A Common, along with an offer to sell or
exchange all or part of the Shares proposed to be converted, pursuant to this
Section 2 (the "Conversion Notice"). Each Conversion Notice shall constitute
dual, binding offers by the offering Stockholder to (A) sell all or part of such
Shares for cash (the "Cash Offer") or (B) exchange all or part of such Shares
for an equal number of shares of Class A Common (the "Exchange Offer").
(a) The offered Shares shall be allocated among the other
Stockholders on the basis of the percentage of Shares then owned by
them (excluding Shares owned by the offering Stockholder). Each offeree
Stockholder shall have the right to purchase (by cash or exchange of
shares of Class A Common) all or part of his, her or its allocated
portion of the offered Shares.
(b) Within ten (10) days of delivery of the Conversion Notice,
each offeree Stockholder shall provide written notice to the offering
Stockholder and all other Stockholders of his, her or its election to
consider acceptance of either the Cash Offer or the Exchange Offer and,
if he, she or it intends to consider a Cash Offer, the expiration date
for the six month period referred to in subsection (c)(ii) below (if
applicable). An election by an offeree Stockholder to consider the Cash
Offer shall automatically terminate the Exchange Offer to such
Stockholder and an election by an offeree Stockholder to consider the
Exchange Offer shall automatically terminate the Cash Offer to such
Stockholder.
(c) For those offeree Stockholders electing to consider the
Cash Offer (the "Cash Offerees"), the Cash Offer shall continue to be a
binding offer of the offering Stockholder to sell until the later of,
(i) the expiration of thirty (30) days after delivery of the Conversion
Notice or (ii) 5:00 p.m. on the first business day subsequent to the
expiration of the six month period following consummation, by any Cash
Offeree, of any transaction treated as a nonexempt sale under Section
16(b) of the Securities Exchange Act of 1934, as amended (the later of
such times is referred to herein as the "Cash Offer Expiration Date").
If any Cash Offeree does not purchase all of his, her or its allocated
portion of the offered Shares on or before the Cash Offer Expiration
Date, the offering Stockholder shall give written notice to the other
Cash Offerees, and such other Cash Offerees shall have an additional
ten (10) days from the delivery of such notice to elect to purchase
such declined Shares at the same price and upon the same terms
previously offered to the declining Cash Offeree (and the Cash Offer
shall continue to be a binding offer with respect to such declined
shares until the expiration of such additional ten (10) day period).
Any such Shares shall be allocated to the remaining Cash Offeree(s) on
the basis of the percentage of Shares owned by them (excluding Shares
owned by the offering Stockholder, the declining Cash Offeree(s), and
the Exchange Offeree(s), as defined below).
(d) For those offeree Stockholders electing to consider the
Exchange Offer (the "Exchange Offerees"), the Exchange Offer shall
continue to be a binding offer of the offering Stockholder to exchange
Shares for an equal number of shares of Class A Common
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until the expiration of thirty (30) days after delivery of the
Conversion Notice (the "Exchange Offer Expiration Date"). If any
Exchange Offeree does not exchange all of his, her or its allocated
share of the offered Shares on or before the Exchange Offer Expiration
Date, the offering Stockholder shall give written notice to the other
Exchange Offerees, and such other Exchange Offerees shall have an
additional ten (10) days from the delivery of such notice to elect to
acquire such declined Shares upon the same terms previously offered to
the declining Exchange Offeree (and the Exchange Offer shall continue
to be a binding offer with respect to such declined Shares until the
expiration of such additional ten (10) day period). Any such Shares
shall be allocated to the remaining Exchange Offeree(s) on the basis of
the percentage of Shares owned by them (excluding Shares owned by the
offering Stockholder, the declining Exchange Offeree(s), and the Cash
Offeree(s)).
(e) Purchase Price Payable by Cash Offerees. The cash purchase
price of each Share for purposes of this Section 2 shall be the average
of the closing prices of a share of Class A Common for the ten (10)
trading days immediately following the date on which Conversion Notice
is given by the offering Stockholder, as reported in The Wall Street
Journal or other reporting services acceptable to all parties hereto.
If at the time the purchase price is to be determined, shares of the
Class A Common are not publicly traded, the purchase price shall be
determined as follows:
(
( 8 x EBITDA
----------
Per Share Purchase Price = .75 x Total A&B )
Where EBITDA = The Corporation's earnings before interest,
taxes, depreciation and amortization as shown
on the most recent consolidated year end
financial statements of the Corporation.
and Total A&B = Total issued and outstanding shares of the
Corporation's Class A Common and Class B
Common at the time the purchase price is
determined.
(f) Terms of Purchase and Payment for Cash Offerees. If any
Cash Offeree elects to purchase Shares in accordance with this Section
2, the purchase must be consummated at the principal office of the
Corporation in the State of North Carolina on the last day the Cash
Offer remains binding (or at such other time and place as may otherwise
be acceptable to the selling Stockholder and the purchasing
Stockholder). Payment of the purchase price of the Shares shall be made
at closing by wire transfer of immediately available funds to an
account designated by the selling Stockholder or by certified check
payable to the selling Stockholder. Upon tender of the purchase price,
the selling Stockholder shall deliver to the purchasing Stockholder one
or more certificates representing all Shares being purchased, duly
endorsed over to the purchaser or accompanied by duly executed stock
powers. The Stockholders shall cause the Corporation to cooperate with
selling and purchasing Stockholders in connection with such offers and
closing, including, but not limited to, providing appropriately
denominated certificates on a timely basis.
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If, pursuant to this Section 2, the Cash Offer Expiration Date
occurs on a date which is subsequent to the thirtieth (30th) day
subsequent to delivery of the Conversion Notice, then on the thirtieth
day subsequent to delivery of the Conversion Notice, the Cash Offerees
(other than those who have, prior to such date either purchased their
allocated portion of the offered Shares or have notified the offering
Stockholder of their decision not to purchase their allocated share of
the offered Shares) shall submit a non-refundable deposit (by wire
transfer of immediately available funds to an account designated by the
offering Stockholder or by certified check payable to the offering
Stockholder) to the offering Stockholder in an amount equal to
twenty-five percent (25%) of the purchase price of such Stockholder's
share of offered Shares (not previously purchased or declined). In the
event that a Cash Offeree who has submitted a deposit does not purchase
his, her or its allocated portion of the offered Shares on or before
the Cash Offer Expiration Date, his, her or its deposit shall be
forfeited.
(g) Terms of Closing for Exchange Offerees. If any Exchange
Offeree elects to accept the Exchange Offer in accordance with this
Section 2, the exchange must be consummated at the principal office of
the Corporation in the State of North Carolina on the last day on which
the Exchange Offer remains binding (or at such other time or place as
may otherwise be acceptable to the selling Stockholder and the
purchasing Stockholder). At the closing, the accepting Exchange
Offerees shall deliver to the selling Stockholder one or more
certificates representing all shares of Class A Common being exchanged,
duly endorsed over to the selling Stockholder or accompanied by duly
executed stock powers, and the selling Stockholder shall deliver to the
Exchange Offerees one or more certificates representing all Shares
being exchanged, duly endorsed over to the accepting Exchange Offerees
or accompanied by duly executed stock powers. The Stockholders shall
cause the Corporation to cooperate with the participating Stockholders
in connection with such exchange and closing, including, but not
limited to, providing appropriately denominated certificates on a
timely basis.
3. Transfer of Shares. The Stockholders hereby agree that, unless all
of the other Stockholders give their written consent thereto, no Stockholder
shall make a voluntary transfer or otherwise dispose of (as defined in Section
6(c) herein) any of his, her or its Shares, whether now owned or hereafter
acquired, to any party other than another Stockholder, except that such Shares
may be transferred to a Permitted Transferee (as defined in Article IV of the
Certificate), but only if, simultaneously with the transfer of such Shares, such
Permitted Transferee becomes a signatory to this Agreement as a "Stockholder"
(by executing and delivering to all other Stockholders a signature page by which
he, she or it agrees without condition to be bound by this Agreement as a
"Stockholder," and provides an address for the giving of notices, and executes
and delivers to Aab or Xxxxxxx, as applicable, an irrevocable proxy as required
by Section 1 of this Agreement.
4. Divorce or Legal Separation of a Stockholder
(a) Notwithstanding anything herein to the contrary, if a
spouse of a Stockholder has received Shares as a Permitted Transferee
(as defined in Article IV of the Certificate) and such spouse is
subsequently no longer legally married to or is legally separated from
such Stockholder, then such Stockholder shall have an option to
purchase any or all of such Shares (by cash payment or exchange). The
option shall constitute a binding offer of the
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spouse to sell any or all of the Shares to the Stockholder at the same
price per share and upon the same terms as is provided in Section 2
hereof, except that the cash purchase price shall be determined based
on the closing prices of a share of Class A Common for the ten (10)
trading days immediately following the date of the legal separation or
divorce of such spouse and Stockholder and the option shall extend from
the date of the divorce or legal separation until the applicable
expiration date (excluding the additional ten day periods) provided in
Section 2 (calculated by using the date of the divorce or legal
separation rather than the date of delivery of the Conversion Notice).
(b) If such Stockholder does not purchase all such Shares of
his or her spouse pursuant to the option described in (a), then (i)
such Stockholder shall give written notice (a "Divorce Notice") to all
other Stockholders, and (ii) the other Stockholders shall have an
option to acquire all or part of the declined Shares. This option shall
constitute a binding offer of such spouse to sell all or part of the
Shares to the other Stockholders at the same price per share and upon
the same terms as provided in Section 2 hereof, except that the cash
purchase price shall be determined based on the closing prices of a
share of Class A Common for the ten (10) trading days immediately
following the date of the legal separation or divorce of such spouse
and Stockholder. The option shall confer upon each such other
Stockholder the right to purchase (by cash payment or exchange) his,
her or its allocated portion of the declined Shares (allocated pro rata
based on the Shares owned by all Stockholders other than the spouse and
the declining Stockholder), and shall extend, with regard to each
Stockholder, from the delivery of the Divorce Notice to such other
Stockholder until the applicable expiration date (including but not
limited to the additional ten day periods) provided in Section 2
(calculated by using the date of the delivery of the Divorce Notice
rather than the date of delivery of the Conversion Notice).
5. Endorsement on Stock Certificate. The Stockholders shall use their
best efforts to cause each certificate representing Shares at any time owned by
any Stockholder to bear the following legend prominently displayed thereon:
"THE SHARES REPRESENTED BY THIS CERTIFICATE, AND THE TRANSFER
HEREOF, ARE SUBJECT TO THE TERMS AND PROVISIONS OF THAT CERTAIN AMENDED
AND RESTATED STOCKHOLDERS AGREEMENT DATED AS OF JANUARY 1, 1998, AS
AMENDED FROM TIME TO TIME, A COPY OF WHICH MAY BE OBTAINED FROM ANY
STOCKHOLDER OWNING SHARES OF CLASS B COMMON STOCK UPON REQUEST."
6. Certain Interpretations and Definitions. As used in this
Agreement:
(a) "Stockholder" or "Stockholders" means stockholders of the
Corporation who are parties to this Agreement as provided on page 1
hereof, and any successor in interest or transferee of any Shares of
such Stockholder who purchased shares in accordance with this
Agreement.
(b) "Shares" means any outstanding shares of Class B Common
Stock of the Corporation now owned (as shown in the Background recitals
hereto) or hereafter acquired
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by any Stockholder, any shares of Class B Common Stock distributed with
respect to any such shares in a stock split, stock dividend or other
recapitalization or reorganization, and any other outstanding shares of
the Corporation that otherwise become subject to this Agreement by
written agreement among the parties.
(c) The terms "transfer", "dispose of" and/or "disposition",
when used with respect to shares, mean and include any sale,
assignment, transfer, conveyance, gift, encumbrance, pledge,
hypothecation, equitable distribution or other disposition of Shares
(whether voluntary, involuntary, or otherwise), including permitting a
levy or attachment on the Shares.
(d) An "involuntary" transfer or disposition of shares means
(i) a testamentary or intestate transfer or disposition made incident
to the death of a Stockholder, (ii) a transfer made in connection with
the divorce or separation of a Stockholder pursuant to a property
settlement agreement that is filed for public record, or (iii) a
transfer made pursuant to an order issued by a court of competent
jurisdiction in connection with the involuntary bankruptcy of, or the
appointment of a receiver for, a Stockholder.
(e) A "voluntary" transfer or disposition of Shares refers to
any transfer or disposition other than an involuntary transfer or
disposition.
(f) "Incapacitated" means under any one or more of the
following circumstances: (i) during any period that the individual is
legally incompetent as determined by a court of competent jurisdiction;
(ii) during any period beginning when two physicians licensed to
practice medicine certify in writing that, in their opinion, the
individual, as a result of illness, age or other cause, no longer has
the capacity to act prudently or effectively in financial affairs and
continuing until two such physicians (whether or not those making the
initial determination) certify in writing that, in their opinion, the
individual's capacity is restored; or (iii) during any period that a
person (other than such individual) has evidence that the individual is
absent without explanation or is being detained against his will under
circumstances in which he does not have the capacity to act prudently
or effectively in financial affairs.
7. Term. The term of this Agreement shall commence on the date hereof
and shall continue in effect until January 1, 2010. Thereafter, this Agreement
shall automatically renew for successive one (1) year terms unless all of the
Stockholders then holding Shares elect to terminate this Agreement as of the end
of the then current term (initial or renewal). Notwithstanding the foregoing,
Section 1 hereof shall be of no further force or effect upon the last to occur
of:
(a) The death or Incapacity of Aab; or
(b) The death or Incapacity of Xxxxxxx.
8. Notices. Any and all notices, consents, offers, acceptances or other
communications made hereunder must be in writing and shall be deemed given and
delivered when delivered personally or by courier service, provided evidence of
receipt is obtained, or three (3) days after
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mailing if mailed by registered or certified mail, return receipt requested,
postage prepaid, and addressed as follows (or to such other address that the
parties may from time to time designate in a writing sent to all other parties
of this Agreement in the manner required by this Section 8, except that any such
change of address notice shall only be effective upon receipt):
(a) if to Xxxxxxx X. Aab:
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxx Xxxx 00000
(b) if to Melrich Associates L.P.:
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxx Xxxx 00000
(c) if to Xxxxxxx X. Xxxxxxx:
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
(d) if to Super STAR Associates Limited Partnership:
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
(e) Copies of any such correspondence shall also be sent
to:
US LEC Corp.
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: General Counsel
and
Xxxxx & Xxx Xxxxx, PLLC
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 00
Xxxxxxxxx, Xxxxx Xxxxxxxx 28202-4003
Attention: Xxxxxx Xxxxxxx III
9. Severability. If any such provision of this Agreement shall be
invalid or unenforceable for any reason, the other provisions shall continue to
be effective and binding and this Agreement shall be construed as if the invalid
or unenforceable provision were omitted. If any provision of this Agreement is
unenforceable after a certain period of years from the date hereof due to the
requirements of any state laws, the remainder of the Agreement shall remain
enforceable and binding in accordance with its terms.
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10. Binding Effect. This Agreement shall be binding upon the
Stockholders, and their respective heirs, legal representatives, executors,
administrators, successors and permitted assigns. Any rights given or duties
imposed upon the estate of a deceased Stockholder shall inure to the benefit of
and be binding upon the legal representative of such deceased Stockholder's
estate in his or her fiduciary capacity.
11. Entire Agreement, Amendment, Waiver. This Agreement contains the
entire agreement of the parties hereto with respect to the subject matter
hereof, and supersedes any and all other agreements, either written or oral,
among the parties hereto regarding the same subject matter. The provisions of
this Agreement may be amended, modified or waived only as provided for herein or
on unanimous written consent of the Stockholders. A written waiver provided
pursuant to this Section 11 shall be effective only in the specific instance and
for the specific purpose for which given. No failure or delay on the part of any
Stockholder in the exercise of any right, power or privilege hereunder shall
operate as a waiver of any such right, power or privilege nor shall any such
failure or delay preclude any other or further exercise hereof.
12. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original, and it shall not be necessary in making proof of this Agreement to
produce or account for more than one such counterpart.
13. Captions. The captions herein are inserted only as a matter of
convenience and for reference and in no way define, limit or describe the scope
of this Agreement nor any provisions hereof.
14. Governing Law. This Agreement shall be governed by and construed
and interpreted in accordance with the laws of the State of Delaware.
15. Arbitration.
(a) Any dispute, controversy, difference or claim arising out
of, relating to or in connection with this Agreement, any transaction
hereunder, or the breach hereof shall be decided by arbitration in
accordance with the Commercial Arbitration Rules of the American
Arbitration Association then in effect, except as otherwise agreed by
the parties. Any such arbitration shall be conducted on the earliest
possible date and conducted in Charlotte, North Carolina. The arbiter's
award shall be final and binding on the parties hereto and judgment
upon the award may be entered in any court having jurisdiction thereof.
Expenses in the arbitration shall be apportioned between the parties by
the arbiter. The arbitration award may include reasonable attorneys'
fees from the other party. No action, regardless of form, arising out
of this Agreement may be brought more than three (3) years after the
cause of action for such action has accrued.
(b) Notwithstanding subsection (a), either party may, if it
believes that it requires or is entitled to injunctive relief, file a
civil action in any court having jurisdiction seeking injunctive
relief. Any claim or demand for monetary damages shall, however, be
governed exclusively by the provisions for arbitration set forth in
subsection (a).
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement under seal as of the date first above written.
/s/ Xxxxxxx X. Aab
----------------------------------------------
Xxxxxxx X. Aab
MELRICH ASSOCIATES, L.P.
By: /s/ Xxxxxxx X. Aab
-------------------------------------
Xxxxxxx X. Aab, General Partner
By: /s/ Xxxxx X. Aab
-------------------------------------
Xxxxx X. Aab, General Partner
/s/ T. V. Xxxxxxx
----------------------------------------------
Xxxxxxx X. Xxxxxxx
SUPER STAR ASSOCIATES
LIMITED PARTNERSHIP
By: /s/ T. V. Xxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxx, General Partner
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