Exhibit 4.10
AGREEMENT
THIS AGREEMENT is entered into this day of May 11, 1999, by and among
McLeodUSA Incorporated ("McLeodUSA"), on its own behalf and on behalf of its
wholly owned subsidiaries Talking Directories, Inc. ("TDI") and Info America
Phone Books, Inc. ("Info America"), the Xxxxxxx X. Xxxxxx XXX Xxxxxx 0000
Special Trust F/B/X Xxxxx Xxxxxxxxx Xxxxx, the Xxxxxxx X. Xxxxxx XXX Xxxxxx
0000 Special Trust F/B/O Xxxxx Xxxxx Xxxxxxxx Xxxxx, the Xxxxxxx X. Xxxxxx
XXX Xxxxxx 0000 Special Trust F/B/O Xxxxx Xxx Xxxxx (collectively, the
"Meijer Trusts"), Xxxxxxx X. Xxxxxx, individually and as Trustee of the
Xxxxxxx X. Xxxxxx Trust dated August 30, 1988 ("Meijer"), Xxxx X. Xxxxxx,
individually and as First Trustee of the Xxxx X. Xxxxxx Trust ("Xxxxxx") and
the other parties listed on the signature pages below. All capitalized terms
used in this Agreement shall, unless otherwise defined herein, have the
meanings ascribed to them in the TDI Merger Agreement (as defined below) or
the Info America Merger Agreement (as defined below), as applicable.
WHEREAS, on February 10, 1999, McLeodUSA, Pubco Merging Co., TDI,
Meijer, and Xxxxxx entered into an Amended and Restated Agreement and Plan of
Merger (the "TDI Merger Agreement"), which amended and restated the Agreement
and Plan of Merger among such parties originally dated as of January 7, 1999;
and
WHEREAS, in connection with the TDI Merger Agreement, the parties
thereto entered into an Investment Agreement dated as of February 10, 1999 (the
"TDI Investment Agreement"); and
WHEREAS, in a related transaction, McLeodUSA, Publication Merge Co.,
Info America, Meijer and Xxxxxx entered into an Amended and Restated Agreement
and Plan of Merger (the "Info America Merger Agreement"), which amended and
restated the Agreement and Plan of Merger among such parties originally dated as
of January 7, 1999; and
WHEREAS, in connection with the Info America Merger Agreement, the
parties thereto, the Meijer Trusts and certain other parties entered into an
Investment Agreement dated as of February 10, 1999 (the "Info America Investment
Agreement"); and
WHEREAS, McLeodUSA consummated the transactions contemplated by the TDI
Merger Agreement and the Info America Merger Agreement on February 10, 1999;
WHEREAS, the TDI Merger Agreement granted Meijer and Xxxxxx certain
registration rights and the Info America Merger Agreement granted Meijer,
Morgan, the Meijer Trusts and the other parties thereto certain registration
rights; and
WHEREAS, the parties hereto desire to revise certain terms of the
registration rights provided in those agreements.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby expressly acknowledged, the undersigned parties
agree as follows:
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1. The parties hereto hereby waive the requirement set out in Section
6.19(a) of the TDI Merger Agreement and the Info America Merger Agreement that
McLeodUSA file the Resale Registration Statement by May 11, 1999, and expressly
agree that the deadline for McLeodUSA to file such Resale Registration Statement
shall be extended until May 14, 1999.
2. For good and valuable consideration transferred from Meijer to the
Meijer Trusts, the Meijer Trusts, acting by and through their authorized
trustees, hereby transfer to Meijer, which transfer is hereby approved by the
parties hereto, any and all registration and related rights they have pursuant
to Section 6.19 of Info America Merger Agreement (including the right of
indemnification), and do hereby waive, release and relinquish any and all claims
they may have to the rights so transferred.
3. The parties hereto acknowledge that pursuant to paragraph 2 hereof,
and subject to paragraph 5 below, Meijer shall have, in addition to Meijer's
existing rights under Section 6.19 of the TDI Merger Agreement and the Info
America Merger Agreement, the right to register the number of shares of XxXxxx
Common Stock that the Meijer Trusts otherwise would have been entitled to
register under Section 6.19 of the Info America Merger Agreement. The parties
acknowledge that Meijer consequently shall have the right, subject to paragraph
5 below, to register up to a total of 469,909 shares of XxXxxx Common Stock
pursuant to the terms of Section 6.19 of the TDI Merger Agreement and the Info
America Merger Agreement and the Resale Registration Statement described
therein.
4. Meijer hereby represents to McLeodUSA that Meijer intends (a) to
transfer the shares of XxXxxx Common Stock owned by Meijer that have been
registered pursuant to the Resale Registration Statement to a charitable
remainder unitrust formed by Meijer for subsequent sale by such charitable
remainder unitrust pursuant to the Resale Registration Statement, and (b) to
transfer the registration rights associated with such shares of XxXxxx Common
Stock under the TDI Merger Agreement, the Info America Merger Agreement and
paragraph 2 hereof to such charitable remainder unitrust ( the transfers
described in clauses (a) and (b) of this paragraph 4 are referred to herein
collectively as, the "Proposed Transfers").
5. Subject to (a) McLeodUSA receiving from Miller, Johnson, Xxxxx &
Xxxxxxxxx, P.L.C. a written opinion letter, in form and substance acceptable to
McLeodUSA and its legal counsel and upon which McLeodUSA and its legal counsel
may rely, to the effect that (i) the execution, delivery and performance of this
Agreement (including the Proposed Transfers) by Meijer and the Meijer Trusts (A)
has been duly authorized by all necessary corporate or trust action, and (B)
does not conflict with or violate any provision of the trust agreement or other
organizational documents of the Meijer Trusts, any right of any beneficiary of
any of the Meijer Trusts, or any provision of applicable law, and (ii) this
Agreement constitutes the legal, valid and binding obligation of Meijer and the
Meijer Trusts, enforceable in accordance with its terms, and (b) such charitable
remainder unitrust agreeing to be bound by the terms of Section 6.19 of the TDI
Merger Agreement and the Info America Merger Agreement, the Meijer Trusts,
Meijer and such charitable remainder unitrust may make the
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Proposed Transfers, notwithstanding the terms of Section 6.19(e) of the TDI
Merger Agreement and the Info America Merger Agreement.
6. Meijer and each of the Meijer Trusts, jointly and severally, shall
indemnify, defend and hold harmless McLeodUSA and its officers, directors and
affiliates from and against any and all losses, costs, damages, liabilities and
expenses, including reasonable attorney's fees and expenses, arising out of any
breach of the representations, covenants and agreements given or made by Meijer
or the Meijer Trusts under this Agreement.
7. Meijer and each of the Meijer Trusts, jointly and severally,
represent and warrant as follows:
(a) the execution, delivery and performance of this Agreement by
Meijer and the Meijer Trusts (i) has been duly authorized by all necessary
corporate or trust action and (ii) does not conflict with or violate any
provision of the trust agreement or other organizational documents of the Meijer
Trusts, any right of any beneficiary of any of the Meijer Trusts, or any
provision of applicable law, and
(b) this Agreement constitutes the legal, valid and binding
obligation of Meijer and the Meijer Trusts, enforceable in accordance with its
terms.
8. Except as otherwise set out herein, the terms of the TDI Merger
Agreement, the TDI Investment Agreement, the Info America Merger Agreement, the
Info America Investment Agreement, and all other documents and instruments
executed in connection with the transactions contemplated by those agreements,
shall remain in full force and effect.
This Agreement may be executed in multiple counterparts, each of which,
when executed and delivered, shall be deemed to be an original and all of which
shall constitute one and the same Agreement.
EXECUTED as of the date set out above.
McLEODUSA INCORPORATED
By: /s/ Xxxxxxx Rings /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx Rings, Secretary XXXXXXX X. XXXXXX, Individually and as
Trustee of the Xxxxxxx X. Xxxxxx Trust
dated August 30, 1988
/s/ Xxxx X. Xxxxxx
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XXXX X. XXXXXX, Individually and as XXXXXXX X. XXXXXX XXX XXXXXX 0000
First Trustee of the Xxxx X. Xxxxxx SPECIAL TRUST F/B/X XXXXX
Trust under a Trust Agreement dated XXXXXXXXX XXXXX
May 24, 1988, as amended and
restated in its entirety on BY OLD KENT BANK, TRUSTEE
February 22, 1991
By: /s/ Xxx X. Xxxxxxx
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Xxx X. Xxxxxxx, Vice President
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XXXXXXX X. XXXXXX GST EXEMPT 1997 XXXXXXX X. XXXXXX GST EXEMPT 1997
SPECIAL TRUST F/B/O XXXXX XXXXX SPECIAL TRUST F/B/0 XXXXX XXX
XXXXXXXX XXXXX XXXXX
BY OLD KENT BANK, TRUSTEE BY OLD KENT BANK
By: /s/ Xxx X. Xxxxxxx By: /s/ Xxx X. Xxxxxxx
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Xxx X. Xxxxxxx, Vice President Xxx X. Xxxxxxx, Vice President
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XXXXX X. XXXXXXXX EXEMPT TRUST XXXXX X. XXXXXX EXEMPT TRUST
UNDER THE XXXXXX 1997 SPECIAL UNDER THE XXXXXX 1997 SPECIAL
TRUST, DATED OCTOBER 24, 1997 TRUST, DATED OCTOBER 24, 1997
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx, Trustee Xxxxxxx X. Xxxxxx, Trustee
-------------------------------- ------------------------------------
XXXXXX X. XXXXXX EXEMPT TRUST
UNDER THE XXXXXX 1997 SPECIAL
TRUST, DATED OCTOBER 24, 1997
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx, Trustee
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