EXHIBIT 4.4
Exhibit 4.4
WARRANT
This Warrant is issued as of November 10, 1997, by US LEC L.L.C., a
Delaware limited liability company (the "Company"), to Xxxxx Xxxxxx, a resident
of Louisville, Kentucky (the "Holder").
1. Issuance of Warrant. The Company hereby grants to the Holder the right
to purchase and acquire, at the times and subject to the conditions hereinafter
set forth, ten (10) non-voting units ("Non-Voting Units") of ownership interest
in the Company at the Exercise Price (as hereinafter defined). In the event the
Company merges with and into any other entity such that the Company is not the
surviving entity, the Holder shall be entitled to purchase that number of shares
or other equity interests of the surviving entity that the Holder would have
been entitled to receive as a result of the merger had the Holder exercised its
rights under this Warrant prior to such merger.
2. Exercise; Term. Subject to the terms and conditions hereinafter set
forth, the Holder shall be entitled to purchase and acquire up to ten (10)
Non-Voting Units (in minimum increments of five (5) Non-Voting Units at a time)
at any time and from time to time from the date of this Warrant until 5:00 p.m.
E.S.T., on November 10, 2000. The Holder shall exercise its rights to purchase
Non-Voting Units under this Warrant by providing written notice of exercise to
the Company at the following address: 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Chairman, or such other address as
the Company shall designate in a written notice to the Holder. In addition, the
Holder shall deliver to the Company this Warrant (or any replacement warrant
issued by the Company pursuant to Paragraph 3 below), an executed copy of the
signature page of the Operating Agreement of the Company (but only with respect
to the first exercise of the Warrant), and a certified check representing
payment to the Company of the aggregate Exercise Price of the Non-Voting Units
to be purchased.
In addition, the exercise of this Warrant shall be conditioned on the
continued employment of the Holder by the Company at the time of any such
exercise. In addition, the exercise of this Warrant shall be conditioned on
compliance with all applicable laws and regulations, including, without
limitation, obtaining all requisite approvals, if any, which may then be
required under applicable law.
This Warrant, and all rights of the Holder to purchase or acquire
Non-Voting Units hereunder, shall expire automatically and without any further
action by the Company at 5:00 p.m. E.S.T., on November 10, 2000.
3. Effect of Exercise. The exercise of this Warrant (or any replacement
warrant issued by the Company as provided herein), shall become effective on the
first day of the month immediately following the month in which notice of
exercise is given to the Company. Upon the exercise of this Warrant or any
replacement warrant the Company shall, as promptly as practicable, deliver to
the Holder a certificate or certificates representing the number of Non-Voting
Units purchased by the Holder. If this Warrant shall be exercised with respect
to less than all of the Non-Voting Units to which the Holder is entitled to
purchase hereunder, the Holder shall be entitled to receive a replacement
warrant covering the number of Non-Voting Units in respect of which this Warrant
shall not have been exercised, which new warrant shall in all other respects be
identical to this Warrant.
4. Exercise Price. The exercise price (the "Exercise Price") per each Unit
purchased pursuant to the terms of this Warrant shall be FOUR THOUSAND TWO
HUNDRED EIGHTY-FIVE DOLLARS ($4,285.00).
5. No Transfer Rights. Neither this Warrant nor the Non-Voting Units have
been registered under the Securities Act of 1933, as amended ("Securities Act"
or any state securities laws "Blue Sky Laws"). This Warrant has been acquired
for investment purposes and not with a view to distribution or resale and may
not be
pledged, hypothecated, sold, made subject to a security interest, or otherwise
transferred (voluntarily or involuntarily) without (a) the prior written consent
of the Company and (b) (i) an effective registration statement for such Warrant
under the Securities Act and such applicable Blue Sky Laws, or (ii) an opinion
of counsel, which opinion and counsel shall be reasonably satisfactory to the
Company and its counsel, that registration is not required under the Securities
Act or under any applicable Blue Sky Laws. Any attempted transfer of this
Warrant in violation of this Paragraph 5 shall render this Warrant null and void
and of no further force and effect. In addition, any Non-Voting Units issued
upon the exercise of this Warrant shall be subject to the restrictions on
transfer set forth in the Operating Agreement of the Company, and shall bear
substantially the following legend:
THE UNITS REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE
SECURITIES LAWS OF ANY STATE. THE UNITS HAVE BEEN ACQUIRED FOR
INVESTMENT AND MAY NOT BE SOLD OR OFFERED FOR SALE IN THE ABSENCE OF
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY AND ITS COUNSEL TO THE EFFECT THAT THE PROPOSED TRANSACTION
DOES NOT INVOLVE A VIOLATION OF THE SECURITIES ACT OF 1933, AS
AMENDED.
THE UNITS REPRESENTED BY THIS CERTIFICATE, AND THE TRANSFER HEREOF,
ARE SUBJECT TO THE TERMS AND CONDITIONS OF THAT CERTAIN OPERATING
AGREEMENT DATED JANUARY 1, 1997, AS AMENDED FROM TIME TO TIME, A
COPY OF WHICH IS ON FILE IN THE PRINCIPAL OFFICE OF THE COMPANY.
6. Additional Actions. The Holder and the Company agree to execute such
other documents and instruments as counsel for the Company reasonably deems
necessary to effect the compliance of the issuance of this Warrant and any
Non-Voting Units issued upon exercise hereof with applicable federal and state
securities laws.
7. Governing Law. This Warrant shall be governed by the laws of the State
of Delaware applicable to agreements made entirely within the State of Delaware.
IN WITNESS WHEREOF, the parties hereto have set their hands as of the date
first above written.
COMPANY:
US LEC L.L.C.,
a Delaware limited liability company
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx, President
HOLDER:
/s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
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