Exhibit 4.26
STOCKHOLDERS' AGREEMENT
This Stockholders' Agreement (this "Agreement") is entered into as of
March 30, 2000, by and among McLeodUSA Incorporated, a Delaware corporation (the
"Company"), Xxxx Xx, a resident of Texas ("Li"), and Linsang Partners, LLC, a
Delaware limited liability company ("Linsang" and together with Li, the
"Stockholders").
WHEREAS, the Company, Southside Acquisition Corporation, a Delaware
corporation and wholly owned subsidiary of the Company ("Southside"), Splitrock
Services, Inc., a Delaware corporation ("Splitrock"), Splitrock Holdings, Inc.,
a Delaware corporation and wholly owned subsidiary of Splitrock ("Holdco"), and
Splitrock Merger Sub, Inc., a Delaware corporation and wholly owned subsidiary
of Holdco, are parties to an Amended and Restated Agreement and Plan of Merger,
dated as of February 11, 2000 (the "Merger Agreement");
WHEREAS, Li is Chairman and Manager of Linsang and owns a majority of
the membership interests of Linsang;
WHEREAS, in order to induce the Company and Southside to enter into
the Merger Agreement, each of the Stockholders entered into an Amended and
Restated Voting Agreement, dated as of February 11, 2000 (the "Voting
Agreement");
WHEREAS, pursuant to Section 17 of the Voting Agreement, each of the
Stockholders has agreed to enter into this Agreement on or prior to the closing
of the transactions contemplated by the Merger Agreement;
WHEREAS, pursuant to Section 7.02(l) of the Merger Agreement, it is a
condition to the obligation of each of the Company and Southside to close that
the Stockholders enter into this Agreement on or prior to the closing of the
transactions contemplated by the Merger Agreement;
WHEREAS, each of the Stockholders is a significant stockholder of
Splitrock, and upon the closing of the transactions contemplated by the Merger
Agreement, each of the Stockholders will become a stockholder of the Company;
and
WHEREAS, each of the Stockholders will be greatly benefited by the
closing of the transactions contemplated by the Merger Agreement;
NOW, THEREFORE, for and in consideration of the foregoing and of the
mutual covenants and agreements contained herein, the parties hereto agree as
follows:
1. DEFINITIONS
For purposes of this Agreement, the following terms have the meanings
indicated:
(a) "Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 under the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
(b) A person shall be deemed the "beneficial owner" of and shall be
deemed to "beneficially own" any securities:
(i) which such person or any of such person's Affiliates or
Associates, directly or indirectly, has the right to
acquire (whether such right is exercisable immediately or
only after the passage of time) pursuant to any agreement,
arrangement or understanding (whether or not in writing),
or upon the exercise of conversion rights, exchange rights,
other rights, warrants or options, or otherwise;
(ii) which such person or any of such person's Affiliates or
Associates, directly or indirectly, has the right to vote
or dispose of or has "beneficial ownership" of (as
determined pursuant to Rule 13d-3 under the Exchange Act),
including pursuant to any agreement, arrangement or
understanding, whether or not in writing; or
(iii) which are beneficially owned, directly or indirectly, by
any other person (or any Affiliate or Associate thereof)
with which such person or any of such person's Affiliates
or Associates has any agreement, arrangement or
understanding (whether or not in writing), for the purpose
of acquiring, holding, voting or disposing of any voting
securities of the Company.
(c) "Class A Common Stock" shall mean the Class A common stock, par
value $.01 per share, of the Company.
(d) "Covered Securities" shall mean (i) 2,438,549 shares of Class A
Common Stock owned beneficially and of record by Li as a result
of the Merger (excluding any shares described in clauses (ii),
(iii) and (iv) below), (ii) 6,824,453 shares of Class A Common
Stock owned beneficially and of record by Linsang as a result of
the Merger (excluding (x) the warrants described in clause (iii)
below, (y) the Excluded McLeodUSA
2
Financing Shares (as defined below), and (z) any shares described
in clause (iv) below), (iii) warrants to purchase 33,528 shares
of Class A Common Stock owned beneficially and of record by
Linsang and (iv) Securities issued or issuable upon exercise of
the warrants described in clause (iii) above and Securities
issued or issuable with respect to the Securities referred to in
clauses (i), (ii) and (iii) above by way of a stock dividend or
stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization.
(e) "Excluded McLeodUSA Financing Shares" shall mean 1,069,400 shares
of Class A Common Stock owned beneficially and of record by
Linsang in connection with the exchange of 2,000,000 shares of
common stock, par value $.001 per share, of Splitrock in
connection with the consummation of the Merger.
(f) "Expiration Date" shall mean December 31, 2002.
(g) "Merger" shall mean the merger of Southside with and into Holdco
pursuant to the terms and conditions of the Merger Agreement.
(h) "Securities" shall mean any equity securities of the Company or
any other securities convertible into or exercisable for such
equity securities.
2. TRANSFERS OF COVERED SECURITIES
2.1 Restrictions on Transfers
(a) Except as otherwise provided in this Section 2.1 or Section 2.2,
the Stockholders hereby agree that until the Expiration Date, the Stockholders
will not offer, sell, contract to sell, grant any option to purchase, or
otherwise dispose of, directly or indirectly, ("Transfer"), any Covered
Securities without submitting a written request to, and receiving the prior
written consent of, the Board of Directors of the Company (the "Board of
Directors" or the "Board").
(b) For the period commencing for the quarter ending December 31,
2000 and ending on the Expiration Date, the Board shall determine prior to the
public release of the Company's consolidated financial results with respect to
each such financial reporting quarter during such period, the aggregate number,
if any, of shares of Class A Common Stock which are Covered Securities (not to
exceed in the aggregate one hundred thousand (100,000) shares of Class A Common
Stock per
3
quarter, subject to adjustment pursuant to Section 4.1) that may be Transferred
by the Stockholders (the "Transfer Amount") during the period commencing on the
third (3rd) business day and ending on the twenty-third (23rd) business day
following such public release of the Company's quarterly or annual financial
results or such other trading period designated or permitted by the Board with
respect to the purchase and sale of its Securities (each such period, a
"Transfer Period"). Notwithstanding the provisions of Section 2.1(a), the
Stockholders shall be entitled to Transfer during each Transfer Period, provided
such Transfer is effected in accordance with all applicable laws (including
without limitation applicable federal and state securities laws), a number of
shares of Class A Common Stock which are Covered Securities equal to the
Transfer Amount, if any, for such Transfer Period. In no event shall any portion
of a Transfer Amount that is not utilized by the Stockholders during a Transfer
Period be reallocated or otherwise credited to any subsequent Transfer Periods.
The allocation between Li and Linsang of the Transfer Amount, if any, shall be
determined by Li as the Representative pursuant to Section 4.9.
(c) For the period commencing for the quarter ending December 31,
2000 and ending on the Expiration Date, the Company shall give the Stockholders
prompt written notice (in any event no later than fifty (50) days prior to the
beginning of the applicable Transfer Period) of its determination of any
Transfer Amount. Within seven (7) days of receipt of such notice, the
Stockholders shall provide written notice to the Company of the number of shares
of Class A Common Stock which are Covered Securities that the Stockholders
desire to Transfer pursuant to Section 2.1(b).
(d) At any time following the date hereof, (i) Linsang may pledge to
a nationally recognized financial institution (the "Pledgee") up to the
aggregate number of Covered Securities required by such Pledgee in order to
secure financing for Linsang of the difference between $100 million and the
amount of financing received with respect to, or to the extent not received,
reasonably available with respect to, the Excluded McLeodUSA Financing Shares
(such difference being referred to as the "Financing"); provided, however, (x)
-------- -------
such pledge complies with all applicable laws (including without limitation
applicable federal and state securities laws) and (y) the Pledgee takes such
shares subject to the restrictions on Transfer of this Agreement and agrees to
be bound by the terms hereof (as this Agreement may be amended or amended and
restated from time to time) and to become a party hereto with respect to the
Covered Securities being pledged pursuant to this Section 2.1(d), and (ii) Li
may pledge to a Pledgee up to the aggregate number of Covered Securities
required by such Pledgee in order to secure financing for the purchase of a
Gulfstream IV or other similarly priced aircraft; provided, however, (x) such
-------- -------
pledge complies with all applicable laws (including without limitation
applicable federal and state securities laws) and (y) the Pledgee takes such
shares subject to the restrictions on Transfer of this Agreement and agrees to
be bound by the terms hereof (as this Agreement may be amended or amended and
restated from time to
4
time) and to become a party hereto with respect to the Covered Securities being
pledged pursuant to this Section 2.1(d).
2.2 Registration Rights
(a) For the period commencing on January 1, 2001 and ending on the
Expiration Date, in the event the Company proposes to register any shares of
Class A Common Stock under the Securities Act of 1933, as amended (the
"Securities Act") pursuant to an underwritten primary offering (other than
pursuant to a registration statement on Form S-4 or Form S-8 or any successor
forms thereto or other form which would not permit the inclusion of the shares
of Class A Common Stock of the Stockholders), the Company, as determined by the
Board of Directors, shall give written notice to the Stockholders of its
intention to effect such a registration. Following any such notice, the Board
of Directors shall undertake to determine the aggregate number, if any, of
shares of Class A Common Stock which are Covered Securities (not to exceed in
the aggregate on a per year basis a number of shares of Class A Common Stock
equal to 1,394,480, subject to adjustment pursuant to Section 4.1) to be
registered by the Company under the Securities Act (the "Registrable Amount")
for Transfer by the Stockholders in connection with such offering during such
period. If the Board determines to register shares of Class A Common Stock
which are Covered Securities pursuant to this Section 2.2(a), the Company will
promptly give written notice of such determination to the Stockholders, and
thereupon the Company will use commercially reasonable efforts to effect the
registration of that portion of the Registrable Amount that the Stockholders
indicate a desire to register. The allocation between Li and Linsang of the
Registrable Amount, if any, shall be determined by Li as the Representative
pursuant to Section 4.9. All terms, conditions and rights with respect to such
registration (including but not limited to any determination to reduce the
Registrable Amount) shall be determined by the Board, provided that (i) the
representations and warranties of the Stockholders shall be customary taking
into account, among other things, the nature of the offering and the
Stockholders' relationship with the Company, and (ii) the Company shall be
responsible for all expenses with respect to such registration other than
underwriting discounts and commissions allocable to the Class A Common Stock of
the Stockholders, which underwriting discounts and commissions shall be the
responsibility of the Stockholders.
(b) In addition to the registration rights granted pursuant to
Section 2.2(a), no more frequently than once during each of the calendar years
ending December 31, 2001 and 2002 (each such year, an "Annual Period), and upon
either (i) the receipt of a written request of the Stockholders or (ii) a
determination by the Board of Directors, the Board shall undertake to determine
the Registrable Amount, if any, for Transfer by the Stockholders. If the Board
determines to register shares of Class A Common Stock which are Covered
Securities pursuant to this Section 2.2(b), the Company will promptly give
written notice of such
5
determination to the Stockholders, and thereupon the Company will use
commercially reasonable efforts to effect the registration of that portion of
the Registrable Amount that the Stockholders indicate a desire to register. The
allocation between Li and Linsang of the Registrable Amount, if any, shall be
determined by Li as the Representative pursuant to Section 4.9. All terms,
conditions and rights with respect to such registration (including but not
limited to any determination to reduce the Registrable Amount) shall be
determined by the Board, provided that (i) the representations and warranties of
the Stockholders shall be customary taking into account, among other things, the
nature of the offering and the Stockholders' relationship with the Company, and
(ii) the Company shall be responsible for all expenses with respect to such
registration other than underwriting discounts and commissions allocable to the
Class A Common Stock of the Stockholders, which underwriting discounts and
commissions shall be the responsibility of the Stockholders.
(c) Notwithstanding any other provision of this Agreement, to the
extent the Company has undertaken to register Covered Securities of the
Stockholders pursuant to this Section 2.2, the Company may subsequently
determine not to register such Securities and may either not file a registration
statement or otherwise withdraw or abandon a registration statement previously
filed with respect to the registration of such Securities.
3. REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of Linsang
Linsang hereby represents and warrants, as of the date of this
Agreement, to the Company as follows:
3.1.1 Authorization
Linsang has taken all action necessary for it to enter into this
Agreement and to consummate the transactions contemplated hereby.
3.1.2 Binding Obligation
This Agreement constitutes a valid and binding obligation of Linsang,
enforceable in accordance with its terms, except to the extent that such
enforceability may be limited by bankruptcy, insolvency, and similar laws
affecting the rights and remedies of creditors generally, and by general
principles of equity and public policy; and each document and instrument to be
executed by Linsang pursuant hereto, when executed and delivered in accordance
with the provisions hereof, shall be a valid and binding obligation of Linsang,
enforceable in accordance with its terms (with the aforesaid exceptions).
6
3.2 Representations and Warranties of Xx
Xx hereby represents and warrants, as of the date of this Agreement,
to the Company as follows:
3.2.1 Power and Authority
Li has the legal capacity and all other power and authority necessary
to enter into this Agreement and to consummate the transactions contemplated
hereby.
3.2.2 Binding Obligation
This Agreement constitutes a valid and binding obligation of Li,
enforceable in accordance with its terms, except to the extent that such
enforceability may be limited by bankruptcy, insolvency, and similar laws
affecting the rights and remedies of creditors generally, and by general
principles of equity and public policy; and each document and instrument to be
executed by Li pursuant hereto, when executed and delivered in accordance with
the provisions hereof, shall be a valid and binding obligation of Li,
enforceable in accordance with its terms (with the aforesaid exceptions).
3.3 Representations and Warranties of the Company
The Company hereby represents and warrants, as of the date of this
Agreement, to each of Li and Linsang as follows:
3.3.1 Authorization
The Company has taken all corporate action necessary for it to enter
into this Agreement and to consummate the transactions contemplated hereby.
3.3.2 Binding Obligation
This Agreement constitutes a valid and binding obligation of the
Company, enforceable in accordance with its terms, except to the extent that
such enforceability may be limited by bankruptcy, insolvency, and similar laws
affecting the rights and remedies of creditors generally, and by general
principles of equity and public policy; and each document and instrument to be
executed by the Company pursuant hereto, when executed and delivered in
accordance with the provisions hereof, shall be a valid and binding obligation
of the Company, enforceable in accordance with its terms (with the aforesaid
exceptions).
7
4. MISCELLANEOUS
4.1 Effect of Changes in Capitalization
All share amounts of the Company's capital stock referred to in this
Agreement shall be appropriately and proportionally adjusted for any
recapitalization, reclassification, stock split-up, combination of shares,
exchange of shares, stock dividend or other distribution payable in capital
stock, or other increase or decrease in such shares effected without receipt of
consideration by the Company, occurring after the date of this Agreement.
4.2 Additional Actions and Documents
Each of the parties hereto hereby agrees to take or cause to be taken
such further actions, to execute, deliver and file or cause to be executed,
delivered and filed such further documents and instruments, and to obtain such
consents, as may be necessary or as may be reasonably requested in order to
fully effectuate the purposes, terms and conditions of this Agreement.
4.3 Entire Agreement; Amendment
This Agreement constitutes the entire agreement among the parties
hereto as of the date hereof with respect to the specific matters contemplated
herein, and it supersedes all prior oral or written agreements, commitments or
understandings with respect to the matters provided herein (other than with
respect to the foregoing the letter by and among the parties hereto dated as of
the date hereof). No amendment, modification or discharge of this Agreement
shall be valid or binding unless set forth in writing and duly executed by the
Company and the Stockholders.
4.4 Limitation on Benefit
It is the explicit intention of the parties hereto that no person or
entity other than the parties hereto is or shall be entitled to bring any action
to enforce any provision of this Agreement against any of the parties hereto,
and the covenants, undertakings and agreements set forth in this Agreement shall
be solely for the benefit of, and shall be enforceable only by, the parties
hereto or their respective successors, heirs, executors, administrators, legal
representatives and permitted assigns.
4.5 Binding Effect; Specific Performance
This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors, heirs, executors,
administrators, legal representatives and permitted assigns. No party shall
assign this Agreement without the written consent of the other parties hereto;
and such consent shall not
8
be unreasonably withheld. The parties hereto agree that irreparable damage would
occur in the event any provision of this Agreement was not performed in
accordance with the terms hereof and that the parties shall be entitled to
specific performance of the terms hereof, in addition to any other remedy at law
or in equity.
4.6 Governing Law
This Agreement, the rights and obligations of the parties hereto, and
any claims or disputes relating thereto, shall be governed by and construed in
accordance with the laws of Delaware (excluding the choice of law rules
thereof).
4.7 Notices
All notices, demands, requests, or other communications which may be
or are required to be given, served, or sent by any party to any other party
pursuant to this Agreement shall be in writing and shall be hand-delivered or
mailed by first-class, registered or certified mail, return receipt requested,
postage prepaid, or transmitted by telegram, telecopy, facsimile transmission or
telex, addressed as follows:
(i) If to the Company:
McLeodUSA Incorporated
McLeodUSA Technology Park
0000 X Xxxxxx, XX, X.X. Xxx 0000
Xxxxx Xxxxxx, XX 00000-0000
Attention: Xxxxxxx Rings, Esq.
Facsimile: (000) 000-0000
(ii) If to either of the Stockholders:
Linsang Partners, LLC
0000 Xxxxxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xx
Facsimile: (000) 000-0000
with a copy to:
Xxxx & Xxxxxxx
0000 Xxxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
9
Each party may designate by notice in writing a new address to which
any notice, demand, request or communication may thereafter be so given, served
or sent. Each notice, demand, request or communication which shall be hand-
delivered, mailed, transmitted, telecopied or telexed in the manner described
above, or which shall be delivered to a telegraph company, shall be deemed
sufficiently given, served, sent, received or delivered for all purposes at such
time as it is delivered to the addressee (with the return receipt, the delivery
receipt, or the answerback being deemed conclusive, but not exclusive, evidence
of such delivery) or at such time as delivery is refused by the addressee upon
presentation.
4.8 Termination
(a) If during any Annual Period the Board of Directors has not
provided the Stockholders a reasonable opportunity to Transfer shares of Class A
Common Stock which are Covered Securities pursuant to Section 2.2, or consented
to the written request of the Stockholders or otherwise provided the
Stockholders a reasonable opportunity to Transfer shares of Class A Common Stock
which are Covered Securities pursuant to Section 2.1(a), an aggregate of not
less than 1,394,480 shares of Class A Common Stock which are Covered Securities,
subject to adjustment pursuant to Section 4.1, then the Stockholders may
terminate this Agreement by providing written notice of termination to the
Company not later than ten (10) business days following the end of such Annual
Period, such that all rights and obligations hereunder shall cease, and this
Agreement shall be of no further force or effect.
(b) Unless otherwise previously terminated by the Stockholders
pursuant to Section 4.8(a), this Agreement shall terminate on the Expiration
Date, such that all rights and obligations hereunder shall cease, and this
Agreement shall be of no further force or effect.
4.9 Appointment of Representative
Linsang hereby appoints Li, with power of substitution, as its
exclusive agent to act on its behalf with respect to any and all actions to be
taken under or amendments or modifications to be made to this Agreement (the
"Representative"). The Representative shall take, and Linsang agrees that the
Representative shall take, any and all actions which the Representative believes
are necessary or advisable under this Agreement for and on behalf of Linsang, as
fully as if Linsang was acting on its own behalf, including, without limitation,
dealing with the Company with respect to all matters arising under this
Agreement, entering into any amendment or modification to this Agreement deemed
advisable by the Representative and taking any and all other actions specified
in or contemplated by this Agreement. The Company shall have the right to rely
upon all actions taken or not taken by the Representative pursuant to this
Agreement, all of which actions or omissions shall be legally binding upon
Linsang.
10
4.10 Publicity
The Stockholders will use their reasonable best efforts to consult
with the Company prior to issuing any press release, making any filing with any
governmental entity or national securities exchange or making any other public
dissemination of information by the Stockholders within which this Agreement or
the contents hereof are referenced or described.
4.11 Execution in Counterparts
To facilitate execution, this Agreement may be executed in as many
counterparts as may be required; and it shall not be necessary that the
signatures of, or on behalf of, each party, or that the signatures of all
persons required to bind any party, appear on each counterpart; but it shall be
sufficient that the signature of, or on behalf of, each party, or that the
signatures of the persons required to bind any party, appear on one or more of
the counterparts. All counterparts shall collectively constitute a single
agreement. It shall not be necessary in making proof of this Agreement to
produce or account for more than a number of counterparts containing the
respective signatures of, or on behalf of, all of the parties hereto.
11
IN WITNESS WHEREOF, the undersigned have duly executed and delivered this
Stockholders' Agreement, or have caused this Stockholders' Agreement to be duly
executed and delivered on their behalf, as of the day and year first hereinabove
set forth.
McLEODUSA INCORPORATED
By: /s/ J. Xxxx Xxxxxxx
-------------------------------
Name: J. Xxxx Xxxxxxx
Title: Group Vice President
STOCKHOLDERS
LINSANG PARTNERS, LLC
By: /s/ Xxxx Xx
-------------------------------
Name: Xxxx Xx
Title: Chairman and Manager
/s/ Xxxx Xx
-----------------------------------
Xxxx Xx
12
