EXHIBIT 4.1
AMENDMENT, dated as of April 16, 2002 (this "Amendment"), to the
Amended and Restated Purchase Agreement, dated as of January 30, 2002 (the
"Amended and Restated Purchase Agreement"), by and among McLeodUSA Incorporated
and Forstmann Little & Co. Equity Partnership-VII, L.P., Forstmann Little & Co.
Subordinated Debt and Equity Management Buyout Partnership-VIII, L.P., Forstmann
Little & Co. Equity Partnership-V, L.P., Forstmann Little & Co. Subordinated
Debt and Equity Management Buyout Partnership-VI, L.P. and Forstmann Little &
Co. Subordinated Debt and Equity Management Buyout Partnership-VII, L.P.
WHEREAS, the parties hereto desire to amend the Amended and Restated
Purchase Agreement as provided herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants
and agreements contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. DEFINED TERMS. Unless otherwise defined herein, capitalized terms
used herein shall have the meanings given such terms in the Amended and Restated
Purchase Agreement.
2. AMENDMENTS TO AMENDED AND RESTATED PURCHASE AGREEMENT.
2.1. Section 4.5(a) of the Amended and Restated Purchase
Agreement is hereby amended by deleting the last sentence thereof and replacing
it with the following:
"In the event that the holders of the Preferred Stock shall beneficially
own less than 10% of the shares of Class A Common Stock beneficially owned
by them immediately following the Closing (calculated as set forth in the
Certificate of Designation) but shall beneficially own at least one share
of Class A Common Stock, then the holders of the Preferred Stock shall be
entitled to designate two "Board Observers" (as defined in Section 3(b) of
the Certificate of Designation). In the event that the holders of the
Preferred Stock shall become entitled to designate any Board Observer,
whether pursuant to Section 3(b) of the Certificate of Designation or
pursuant to this Section 4.5, such Board Observer shall have the rights set
forth in Sections (d) through (f) of this Section 4.5."
2.2. Section 4.10(c) of the Amended and Restated Purchase
Agreement is hereby amended by deleting clause (ii) thereof and replacing it
with the following:
"at least three members of the Board of Directors are officers of the
Corporation selected by the Board of Directors; provided that each such
officer shall hold one or more of the following titles: Chairperson; Chief
Executive Officer; President; Chief Operating Officer or Chief Financial
Officer (such three officers, the "Officers")."
2.3. Section 4.17 of the Amended and Restated Purchase Agreement
is hereby amended by deleting clauses (ii), (iii) and (iv) thereof and replacing
them with the following: "and (ii) the Officers."
3. EFFECTIVENESS OF AMENDED AND RESTATED PURCHASE AGREEMENT. Except
as expressly modified herein, all terms and provisions of the Amended and
Restated Purchase Agreement shall remain in full force and effect and are hereby
ratified and confirmed in all respects.
4. MODIFICATION. No change, modification or waiver of any provision
of this Amendment shall be valid unless the same is in writing and signed by
each of the parties hereto.
5. GOVERNING LAW. This Amendment shall be governed by and construed
in accordance with, and the rights and obligations of the parties hereto shall
be governed by, the laws of the State of Delaware without giving effect to the
conflicts of law principles thereof.
6. DESCRIPTIVE HEADINGS. The descriptive headings of the several
sections and paragraphs of this Amendment are inserted for reference only and
shall not control or otherwise affect the meaning hereof.
7. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which shall
together constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Amendment as of the date first above written.
McLEODUSA INCORPORATED
By: /s/ Xxxxx Xxxxx
---------------
Name: Xxxxx Xxxxx
Title: Chief Financial Officer
FORSTMANN LITTLE & CO. EQUITY
PARTNERSHIP-VII, L.P.
By: FLC XXXII Partnership, L.P.
its general partner
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Xxxxxx X. Xxxxxx,
a general partner
FORSTMANN LITTLE & CO. SUBORDINATED DEBT
AND EQUITY MANAGEMENT BUYOUT
PARTNERSHIP-VIII, L.P.
By: FLC XXXIII Partnership, L.P.
its general partner
By: /s/ Xxxxxx X. Xxxxxx
---------------------
Xxxxxx X. Xxxxxx,
a general partner
FORSTMANN LITTLE & CO. EQUITY
PARTNERSHIP-V, L.P.
By: FLC XXX Partnership, L.P.
its general partner
By: /s/ Xxxxxx X. Xxxxxx
---------------------
Xxxxxx X. Xxxxxx,
a general partner
FORSTMANN LITTLE & CO. SUBORDINATED DEBT
AND EQUITY MANAGEMENT BUYOUT
PARTNERSHIP-VI, L.P.
By: FLC XXIX Partnership, L.P.
ts general partner
By /s/ Xxxxxx X. Xxxxxx
---------------------
Xxxxxx X. Xxxxxx,
a general partner
FORSTMANN LITTLE & CO. SUBORDINATED DEBT
AND EQUITY MANAGEMENT BUYOUT
PARTNERSHIP-VII, L.P.
By: FLC XXXIII Partnership, L.P.
its general partner
By: /s/ Xxxxxx X. Xxxxxx
----------------------
Xxxxxx X. Xxxxxx,
a general partner
