EXHIBIT 10.15
SECOND AMENDED AND RESTATED
NOVEMBER 1998 STOCKHOLDERS' AGREEMENT
This Second Amended and Restated November 1998 Stockholders'
Agreement (this "Agreement") is entered into as of December 17, 1999, by and
among McLeodUSA Incorporated, a Delaware corporation (the "Company"); Alliant
Energy Corporation, a Wisconsin corporation ("AEC"); IES Investments Inc., an
Iowa corporation (n/k/a Alliant Energy Investments, Inc.) and indirect wholly
owned subsidiary of AEC ("IES"); Heartland Properties, Inc., a Wisconsin
corporation and indirect wholly owned subsidiary of AEC ("Heartland");
Alliant Energy Foundation, Inc., a Wisconsin corporation (non-profit) ("AEF"
and together with AEC, IES and Heartland, the "AEC Entities"); Clark E.
McLeod ("McLeod"); Mary E. McLeod (together with McLeod, the "McLeods"); and
Richard A. Lumpkin ("Lumpkin") and each of the former shareholders of
Consolidated Communications Inc. ("CCI") and certain permitted transferees of
the former CCI shareholders in each case who are listed in Schedule I hereto
(the "CCI Shareholders"). The AEC Entities, the McLeods, Lumpkin and the CCI
Shareholders party hereto are referred to herein collectively as the
"Principal Stockholders" and individually as a "Principal Stockholder."
WHEREAS, the Company, IES, the McLeods, Lumpkin and the CCI
Shareholders party hereto are parties to an Amended and Restated November
1998 Stockholders' Agreement, entered into as of September 15, 1999 (the
"Amended and Restated November 1998 Stockholders' Agreement");
WHEREAS, the Company, IES, the McLeods, Lumpkin and the CCI
Shareholders party hereto desire to add each of AEC, Heartland and AEF as a
party to this Agreement and to make certain changes to permit transfers of
Securities (as defined in Section 3.1(a)) by the AEC Entities to or among the
Subsidiaries (as defined in Section 1.2) of AEC in accordance with the terms
herein set forth;
WHEREAS, the Company and the Principal Stockholders deem it to be
in the best interests of the Company and its stockholders to provide for the
continuity and stability of the business and policies of the Company on the
terms and conditions hereinafter set forth;
WHEREAS, concurrently with the execution and delivery of this
Agreement, the Company, the Principal Stockholders and certain other
stockholders of the Company are entering into an amendment and restatement of
the Amended and Restated January 1999 Stockholders' Agreement, entered into
as of September 15, 1999; and
WHEREAS, the Company and the Principal Stockholders desire to
amend and restate the Amended and Restated November 1998 Stockholders'
Agreement in its entirety with the terms and conditions hereinafter set forth;
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. VOTING AGREEMENT
1.1 Board of Directors
For the period commencing on the Effective Date (as defined in
Section 1.2) and ending on the Expiration Date (as defined in Section 1.2),
each Principal Stockholder, for so long as each such Principal Stockholder
beneficially and continuously owns at least five million (5,000,000) shares
of the Company's Class A common stock, $.01 par value per share (the "Class A
Common Stock"), subject to adjustment pursuant to Section 5.1, shall take or
cause to be taken all such action within their respective power and authority
as may be required:
(a) to establish and maintain the authorized size of the Board of Directors
of the Company (the "Board of Directors" or the "Board") at up to
thirteen (13) directors;
(b) to cause to be elected to the Board one (1) director designated by the
AEC Entities, for so long as the AEC Entities collectively
beneficially and continuously own at least five million (5,000,000)
shares of the Class A Common Stock (subject to adjustment pursuant
to Section 5.1);
(c) to cause Lumpkin to be elected to the Board, for so long as Lumpkin and
the CCI Shareholders collectively beneficially and continuously own
at least five million (5,000,000)shares of the Class A Common
Stock (subject to adjustment pursuant to Section 5.1);
(d) to cause to be elected to the Board three (3) directors who are
executive officers of the Company designated by McLeod, for so
long as the McLeods collectively beneficially and continuously
own at least five million (5,000,000) shares of the Class A
Common Stock (subject to adjustment pursuant to Section 5.1);
(e) to cause to be elected to the Board a director or directors nominated
by the Board to replace a director or directors designated
pursuant to paragraphs (b) through (d) above upon the earlier to
occur of such designated director's or directors' resignation
(and the acceptance of such resignation by the Board) and the
expiration of such director's or directors' term as a result of any
party or parties identified in paragraphs (b) through
(d) above no longer collectively beneficially and continuously owning
at least five million (5,000,000) shares of the Class A Common Stock
(subject to adjustment pursuant to Section 5.1) at any time during
the period commencing on the Effective Date and ending on the
Expiration Date; it being understood that within three (3)
business days following such time that the party or parties identified
in paragraphs (b) through (d) above no longer collectively
beneficially and continuously own at least five million (5,000,000)
shares of the Class A Common Stock (subject to adjustment
pursuant to Section 5.1) during such period, such party or parties
shall use its or their respective best efforts to cause the director
or directors designated by such party or parties to tender their
immediate resignation to the Board which the Board may accept or reject;
and
(f) to cause to be elected to the Board, if and as nominated by the Board,
up to eight (8) non-employee directors.
For purposes of Section 1.1, (i) the McLeods shall be deemed to
be a single Principal Stockholder, (ii) Lumpkin and all of the CCI
Shareholders shall be deemed to be a single Principal Stockholder, and the
CCI Shareholders shall be deemed to own shares "continuously" as long as the
shares of the CCI Shareholders are owned by the CCI Shareholders or a CCI
Permitted Transferee (as defined in Section 3.1), and (iii) the AEC Entities
shall be deemed to be a single Principal Stockholder, and the AEC Entities
shall be deemed to own shares "continuously" as long as the shares of the AEC
Entities are owned by the AEC Entities or an AEC Permitted Transferee (as
defined in Section 3.1).
1.2 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.
For purposes of the definition of "beneficial owner" and
"beneficially own," the terms "agreement," "arrangement"
and "understanding" shall not include this Agreement or the
Second Amended and Restated January 1999 Stockholders'
Agreement (as defined in Section 1.2).
(c) "Effective Date" shall mean December 17, 1999.
(d) "Expiration Date" shall mean December 31, 2001.
(e) "Original Stockholders' Agreement" shall mean the
Stockholders' Agreement, entered into as of June 14, 1997,
as amended on September 19, 1997, by and among the Company,
IES, the McLeods, Lumpkin and certain other stockholders.
(f) "Second Amended and Restated January 1999
Stockholders' Agreement" shall mean the Second Amended and
Restated January 1999 Stockholders' Agreement, entered into
as of December 17, 1999, by and among the Company, the
Principal Stockholders, M/C Investors L.L.C. and
Media/Communications Partners III Limited Partnership.
(g) "Stock Split" shall mean that certain two-for-one
stock split in the form of a stock dividend paid on July
26, 1999 to stockholders of record on July 12, 1999
effected by the Company with respect to its Class A Common
Stock.
(h) "Subsidiary" or "Subsidiaries" shall mean a
corporation, partnership, joint venture or other entity of
which AEC owns, directly or indirectly, one hundred percent
(100%) of the outstanding securities or other interests the
holders of which are generally entitled to vote for the
election of the board of directors or other governing body.
2. STANDSTILL
AEC hereby agrees that, prior to the Expiration Date, neither AEC
nor any Affiliate of AEC will (and AEC will not assist or encourage others
to), directly or indirectly, acquire or agree, offer, seek or propose to
acquire, or cause to be acquired, ownership (including, but not limited to,
beneficial ownership) of any securities issued by the Company or any of its
subsidiaries, or any rights or options to acquire such ownership (including
from a third party), except (a) to the extent expressly set forth in this
Agreement, (b) as consented prior thereto in writing by the Board of
Directors, (c) upon conversion of any Class B common stock, $.01 par value
per share, of the Company into Class A Common Stock pursuant to the terms
thereof, (d) with respect to transfers of equity securities between or among
AEC and AEC's Subsidiaries consistent with the terms and conditions of this
Agreement, or (e) with respect to the grant, vesting or exercise of stock
options.
3. TRANSFERS OF SECURITIES
3.1 Restrictions on Transfers
(a) Except as otherwise provided in this Section 3.1 or Section
3.2, each Principal Stockholder hereby severally agrees that until the
Expiration Date, such Principal Stockholder will not offer, sell, contract to
sell, grant any option to purchase, or otherwise dispose of, directly or
indirectly, ("Transfer"), any equity securities of the Company or any other
securities convertible into or exercisable for such equity securities
("Securities") beneficially owned by such Principal Stockholder (including
distributions of Securities with respect to such Securities and Securities
acquired as a result of a stock split with respect to such Securities)
without submitting a written request to, and receiving the prior written
consent of, the Board of Directors, provided, however, that (i) the AEC
Entities may transfer Securities to or among any Subsidiary or Subsidiaries
of AEC, and (ii) any CCI Shareholder may transfer Securities to any other CCI
Shareholder, the spouse of a CCI Shareholder, or a lineal descendant of a CCI
Shareholder (or a trust for the primary benefit of any one or more of a CCI
Shareholder, the spouse of a CCI Shareholder, or a lineal descendant of a CCI
Shareholder or a partnership or limited liability company owned and managed
solely by one or more CCI Shareholders, spouses of CCI Shareholders and
lineal descendants of CCI Shareholders), or, in the case of a CCI Shareholder
that is a trust, to any beneficiary of such trust (or a trust for the primary
benefit of such beneficiary or a partnership or limited liability company
owned and managed solely by one or more CCI Shareholders, spouses of CCI
Shareholders and lineal descendants of CCI Shareholders), in each case with
respect to clause (i) and clause (ii), provided that (x) such transfer is
done in accordance with the transfer restrictions applicable to such
Securities under federal and state securities laws and (y) the transferee
agrees to be bound by the terms hereof (as this Agreement may be amended or
amended and restated from time to time) as a Principal Stockholder with
respect to the shares being transferred pursuant to this Section (any such
AEC Entity transferee pursuant to the foregoing proviso, an "AEC Permitted
Transferee" and any such CCI Shareholder transferee pursuant to the foregoing
proviso, a "CCI Permitted Transferee"), and any such transfer shall not
constitute a "Transfer" for purposes of this Agreement. Notwithstanding the
foregoing, no party hereto shall avoid the provisions of this Agreement by
making one or more transfers to one or more AEC Permitted Transferees or CCI
Permitted Transferees, as the case may be, and then at any time directly or
indirectly disposing of all or any portion of such party's interest in any
such AEC Permitted Transferee or CCI Permitted Transferee, as the case may
be. In the event that the Board of Directors consents to any Transfer of
Securities by a Principal Stockholder pursuant to this Section 3.1(a) upon
the written request of such Principal Stockholder (the "Transferring
Stockholder") and except as otherwise provided in Section 3.1(b) and Section
3.2, each other Principal Stockholder shall, notwithstanding the provisions
of this Section 3.1(a), have the right to Transfer a percentage of the total
number of Securities beneficially owned by such Principal Stockholder equal
to the percentage of the total number of Securities beneficially owned by the
Transferring Stockholder that the Board of Directors has consented may be
Transferred by such Transferring Stockholder. The parties acknowledge that
any Transfer pursuant to this Section 3.1(a) to which the Board of Directors
has consented may be in connection with, or as part of, a private placement
by the Company of, or other transaction involving, its Securities.
(b) In addition to the provisions of Section 3.1(a), for the
period commencing for the quarter ending December 31, 1999 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 (not to exceed in the aggregate three hundred
thousand (300,000) shares of Class A Common Stock per quarter, subject to
adjustment pursuant to Section 5.1) that may be Transferred by the Principal
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 3.1(a), each
Principal Stockholder shall be entitled to Transfer during each Transfer
Period, provided such Transfer is effected in accordance with all applicable
federal and state securities laws, a number of shares of Class A Common Stock
equal to thirty-three and one-third percent (33 1/3%) of the Transfer Amount,
if any, for such Transfer Period (rounding down in the case of any fractional
amount). Any portion of any Principal Stockholder's share of the Transfer
Amount that such Principal Stockholder elects not to transfer during a
Transfer Period shall be reallocated equally among the remaining Principal
Stockholders who intend to Transfer shares of Class A Common Stock during
such Transfer Period, and such remaining Principal Stockholders shall be
entitled to Transfer such additional shares of Class A Common Stock during
the Transfer Period, provided such Transfer is effected in accordance with
all applicable federal and state securities laws. In no event shall any
portion of a Transfer Amount that is not utilized by a Principal Stockholder
during a Transfer Period be reallocated or otherwise credited to any
subsequent Transfer Periods.
(c) For the period commencing for the quarter ending
December 31, 1999 and ending on the Expiration Date, the Company shall give
each Principal Stockholder 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, any Principal Stockholder that desires to Transfer shares of
Class A Common Stock during such Transfer Period pursuant to Section 3.1(b)
shall provide written notice to the Company of the number of shares of
Class A Common Stock that such Principal Stockholder desires to Transfer
pursuant to Section 3.1(b). Not later than seven (7) days after receipt of
such responses, the Company shall notify all remaining Principal Stockholders
of any Principal Stockholder's election not to Transfer the total number of
shares of Class A Common Stock that such Principal Stockholder is entitled to
Transfer during such Transfer Period. Any Principal Stockholder that desires
to Transfer additional shares of Class A Common Stock equal to all or part of
the remaining Transfer Amount shall notify the Company within seven (7) days
of receipt of the Company's second notice. The Company shall allocate the
remaining Transfer Amount in accordance with the provisions of Section 3.1(b)
and shall notify the appropriate Principal Stockholders of such allocation no
later than ten (10) days prior to the beginning of the Transfer Period.
(d) For purposes of this Section 3.1, the McLeods shall be
deemed to be a single Principal Stockholder, Lumpkin and all of the CCI
Shareholders shall be deemed to be a single Principal Stockholder and the AEC
Entities shall be deemed to be a single Principal Stockholder.
3.2 Registration Rights
(a) In the event that the Board of Directors consents pursuant
to Section 3.1(a) to a Principal Stockholder's request for a Transfer and in
connection therewith, the Company agrees to register Securities with respect
to such Transfer under the Securities Act of 1933, as amended (the
"Securities Act"), the Company shall grant each other Principal Stockholder
the opportunity (subject to reduction in the event the registered Transfer is
underwritten) to register for Transfer under the Securities Act a percentage
of the total number of Securities beneficially owned by such Principal
Stockholder equal to the percentage of the total number of Securities
beneficially owned by the Transferring Stockholder that such Transferring
Stockholder is registering for Transfer under the Securities Act, on the same
terms and conditions as the Transferring Stockholder (each Principal
Stockholder registering, or indicating a desire to register, any Securities
for Transfer under the Securities Act pursuant to this Section 3.2 being a
"Registering Transferor").
(b) To the extent that the Company grants pursuant to Section
3.1(b) a Principal Stockholder the opportunity to register shares of Class A
Common Stock for Transfer under the Securities Act, the Company shall grant
each other Principal Stockholder the opportunity (subject to reduction in the
event the registered Transfer is underwritten) to register an equal number of
shares of Class A Common Stock for Transfer under the Securities Act on the
same terms and conditions.
(c) In the event the Company proposes to register any shares of
Class A Common Stock under 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 Principal
Stockholders), the Company, as determined by the Board of Directors, shall
give written notice to all Principal 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 held by the Principal Stockholders (not to exceed in the
aggregate on a per year basis a number of shares of Class A Common Stock
equal to fifteen percent (15%) of the total number of shares of Class A
Common Stock beneficially owned by the Principal Stockholders as of December
31, 1998, subject to appropriate and proportionate adjustment as a result of
the Stock Split and subject to adjustment pursuant to Section 5.1) to be
registered by the Company under the Securities Act (the "Registrable Amount")
for Transfer by the Principal Stockholders in connection with such offering.
If the Board determines to register shares of Class A Common Stock held by
the Principal Stockholders pursuant to this Section 3.2(c), the Company will
promptly give written notice of such determination to all Principal
Stockholders, and thereupon the Company will use commercially reasonable
efforts to effect the registration of that portion of the Registrable Amount
that the Registering Transferors indicate a desire to register. In the event
the Registering Transferors indicate a desire to register a number of shares
of Class A Common Stock that, in the aggregate, exceeds the Registrable
Amount, the number of shares of Class A Common Stock that each Registering
Transferor shall be entitled to register shall be reduced to the extent such
number exceeds such Registering Transferor's pro rata share of the
Registrable Amount based upon the ratio of the total number of Securities
beneficially owned by such Registering Transferor to the total number of
Securities beneficially owned by all Principal Shareholders. To the extent
any portion of the Registrable Amount remains unallocated after such
reductions, each Registering Transferor who has indicated a desire to
register additional shares of Class A Common Stock shall be entitled to
register an additional amount of Class A Common Stock equal to such
Registering Transferor's pro rata portion of the remaining Registrable Amount
based upon the ratio of the total number of Securities beneficially owned by
such Registering Transferor to the total number of Securities beneficially
owned by all Registering Transferors who have indicated a desire to register
additional shares of Class A Common Stock. The reallocation procedure
described in the preceding sentence shall be repeated until the entire
Registrable Amount is allocated. 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 a Principal Stockholder shall
be customary taking into account, among other things, the nature of the
offering and such Principal Stockholder's 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 Registering Transferors, which underwriting
discounts and commissions shall be the responsibility of the Registering
Transferors.
(d) In addition to the registration rights granted pursuant to
Sections 3.2(a), (b) and (c), no more frequently than once during each of the
calendar years ending December 31, 2000 and 2001 (each such year, an "Annual
Period"), and upon either (i) the receipt of a written request of one or more
Principal 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 Principal Stockholders. If the Board determines to register
shares of Class A Common Stock held by the Principal Stockholders pursuant to
this Section 3.2(d), the Company will promptly give written notice of such
determination to all Principal Stockholders, and thereupon the Company will
use commercially reasonable efforts to effect the registration of that
portion of the Registrable Amount that the Registering Transferors indicate a
desire to register. In the event the Registering Transferors indicate a
desire to register a number of shares of Class A Common Stock that, in the
aggregate, exceeds the Registrable Amount, the number of shares of Class A
Common Stock that each Registering Transferor shall be entitled to register
shall be reduced to the extent such number exceeds such Registering
Transferor's pro rata share of the Registrable Amount based upon the ratio of
the total number of Securities beneficially owned by such Registering
Transferor to the total number of Securities beneficially owned by all
Principal Stockholders. To the extent any portion of the Registrable Amount
remains unallocated after such reductions, each Registering Transferor who
has indicated a desire to register additional shares of Class A Common Stock
shall be entitled to register an additional amount of Class A Common Stock
equal to such Registering Transferor's pro rata portion of the remaining
Registrable Amount based upon the ratio of the total number of Securities
beneficially owned by such Registering Transferor to the total number of
Securities beneficially owned by all Registering Transferors who have
indicated a desire to register additional shares of Class A Common Stock.
The reallocation procedure described in the preceding sentence shall be
repeated until the entire Registrable Amount is allocated. 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 a Principal Stockholder shall be customary taking into account, among
other things, the nature of the offering and such Principal Stockholder's
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, which underwriting discounts and commissions shall
be the responsibility of the Registering Transferors.
(e) If the Board establishes a committee (a "Pricing
Committee") to authorize and approve the price and any other terms of any
Transfer of Securities registered under the Securities Act pursuant to this
Section 3.2 in which Lumpkin or any CCI Shareholder is participating as a
Registering Transferor, the Company will use its best efforts to cause
Lumpkin to be nominated to such Pricing Committee. Notwithstanding any other
provision of this Agreement, to the extent the Company has undertaken to
register Securities of the Principal Stockholders pursuant to this Section
3.2, 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.
(f) For purposes of this Section 3.2, the McLeods shall be
deemed to be a single Principal Stockholder, Lumpkin and all of the CCI
Shareholders shall be deemed to be a single Principal Stockholder and the AEC
Entities shall be deemed to be a single Principal Stockholder.
4. REPRESENTATIONS AND WARRANTIES
4.1 Representations and Warranties of Non-individual
Stockholders
Each non-individual Principal Stockholder hereby represents and
warrants, as of the date of this Agreement, to the Company and to each other
Principal Stockholder as follows:
4.1.1 Authorization
Such Principal Stockholder has taken all action necessary for it
to enter into this Agreement and to consummate the transactions contemplated
hereby.
4.1.2 Binding Obligation
This Agreement constitutes a valid and binding obligation of such
Principal Stockholder, 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 such Principal Stockholder pursuant hereto, when
executed and delivered in accordance with the provisions hereof, shall be a
valid and binding obligation of such Principal Stockholder, enforceable in
accordance with its terms (with the aforesaid exceptions).
4.2 Representations and Warranties of Individual Stockholders
Each Principal Stockholder who is an individual hereby represents
and warrants, as of the date of this Agreement, to the Company and to each
other Principal Stockholder as follows:
4.2.1 Power and Authority
Such Principal Stockholder has the legal capacity and all other
power and authority necessary to enter into this Agreement and to consummate
the transactions contemplated hereby.
4.2.2 Binding Obligation
This Agreement constitutes a valid and binding obligation of such
Principal Stockholder, 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 such Principal Stockholder pursuant hereto, when
executed and delivered in accordance with the provisions hereof, shall be a
valid and binding obligation of such Principal Stockholder, enforceable in
accordance with its terms (with the aforesaid exceptions).
4.3 Representations and Warranties of the Company
The Company hereby represents and warrants, as of the date of
this Agreement, to each Principal Stockholder as follows:
4.3.1 Authorization
The Company has taken all corporate action necessary for it to
enter into this Agreement and to consummate the transactions contemplated
hereby.
4.3.2 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).
5. MISCELLANEOUS
5.1 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.
5.2 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, whether before, at or after the Effective Date.
5.3 Entire Agreement; Termination of Original Stockholders'
Agreement; Amendment
Other than the Second Amended and Restated January 1999
Stockholders' Agreement with respect to the parties thereto and as set forth
therein, 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 for
herein. The parties hereto further agree, confirm and acknowledge that the
Original Stockholders' Agreement is terminated and of no force or effect. 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 by
the party against whom enforcement of the amendment, modification, or
discharge is sought.
5.4 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.
5.5 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 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.
5.6 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).
5.7 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 or to the McLeods:
McLeodUSA Incorporated
McLeodUSA Technology Park
6400 C Street, SW, P.O. Box 3177
Cedar Rapids, IA 52406-3177
Attention: Randall Rings
Facsimile: (319) 790-7901
(ii) If to the AEC Entities:
IES Investments Inc. (n/k/a Alliant Energy Investments,Inc.)
200 1st Street SE
Cedar Rapids, IA 52401
Attention: James E. Hoffman
Facsimile: (319) 398-4204
(iii) If to Lumpkin or any CCI Shareholder:
P.O. Box 1234
Mattoon, IL 61938
Attention: Richard A. Lumpkin
Facsimile: (217) 234-9934
with a copy to :
Schiff Hardin & Waite
6600 Sears Tower
Chicago, Illinois 60606
Attention: David R. Hodgman, Esq.
Facsimile: (312) 258-5600
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.
5.8 Termination
Notwithstanding any other provision of this Agreement, if during
any Annual Period the Board of Directors has not provided a Principal
Stockholder a reasonable opportunity to Transfer Securities pursuant to
Section 3.2 or consented to the written request of such Principal Stockholder
or otherwise provided such Principal Stockholder a reasonable opportunity to
Transfer (other than a transfer by a CCI Shareholder to a CCI Permitted
Transferee and other than a transfer by the AEC Entities to an AEC Permitted
Transferee) pursuant to Section 3.1(a) an aggregate number of shares of Class
A Common Stock equal to not less than fifteen percent (15%) of the total
number of shares of Class A Common Stock beneficially owned by such Principal
Stockholder as of December 31, 1998, subject to appropriate and proportionate
adjustment as a result of the Stock Split and subject to adjustment pursuant
to Section 5.1, then such Principal Stockholder may terminate this Agreement
as it applies to such terminating party by providing written notice of
termination to all other parties no 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, with respect to the terminating party. Unless otherwise previously
terminated by the Principal Stockholders pursuant to this Section 5.8, this
Agreement shall terminate on the Expiration Date. For purposes of this
Section 5.8, the McLeods shall be deemed to be a single Principal
Stockholder, Lumpkin and all of the CCI Shareholders shall be deemed to be a
single Principal Stockholder and the AEC Entities shall be deemed to be a
single Principal Stockholder.
5.9 Publicity
Each of the Principal Stockholders will use its 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 such
Principal Stockholder within which this Agreement or the contents hereof are
referenced or described.
5.10 Appointment of Representative
Each of the CCI Shareholders hereby appoints Lumpkin, 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 the CCI Shareholders agree 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 each of the CCI Shareholders, as
fully as if each of the CCI Shareholders were acting on its own behalf,
including, without limitation, dealing with the Company and the other parties
hereto 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 and the other parties hereto
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 each of the CCI Shareholders.
5.11 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.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the undersigned have duly executed and
delivered this Second Amended and Restated November 1998 Stockholders'
Agreement, or have caused this Second Amended and Restated November 1998
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. Lyle Patrick
--------------------
Name: J. Lyle Patrick
Title: Group Vice President/CFO
/s/ Clark E. McLeod /s/ Mary E. McLeod
-------------------- -------------------
Clark E. McLeod Mary E. McLeod
ALLIANT ENERGY CORPORATION
By: /s/ James E. Hoffman
---------------------
Name: James E. Hoffman
Title: Executive Vice President
Business Development
ALLIANT ENERGY FOUNDATION, INC.
By: /s/ Edward M. Gleason
---------------------
Name: Edward M. Gleason
Title: Treasurer
IES INVESTMENTS INC.
(n/k/a ALLIANT ENERGY INVESTMENTS, INC.)
By: /s/ James E. Hoffman
---------------------
Name: James E. Hoffman
Title: President, Alliant Energy Resources
HEARTLAND PROPERTIES, INC.
By: /s/ Henry Wertheimer
--------------------
Name: Henry Wertheimer
Title: Vice President/Treasurer
/s/ Richard A. Lumpkin /s/ Gail G. Lumpkin
- ------------------------- --------------------
Richard A. Lumpkin Gail G. Lumpkin
Margaret Lumpkin Keon Trust Mary Lee Sparks Trust
dated May 13, 1978 dated May 13, 1978
/s/ Margaret Lumpkin Keon /s/ Mary Lee Sparks
- ------------------------- --------------------
Margaret Lumpkin Keon, as Trustee Mary Lee Sparks, as Trustee
/s/ Steven L. Grissom
----------------------
Steven L. Grissom, as Trustee
/s/ Mary Lee Sparks
- -------------------
Mary Lee Sparks
The twelve trusts created under the Mary Green The twelve trusts created under the Richard Adamson
Lumpkin Gallo Trust Agreement dated December 29, Lumpkin Grandchildren's Trust dated September 5, 1980,
1989 one for the benefit of each of: one for the benefit of each of:
Joseph John Keon III, Joseph John Keon III,
Katherine Stoddert Keon, Katherine Stoddert Keon,
Lisa Anne Keon, Lisa Anne Keon,
Margaret Lynley Keon, Margaret Lynley Keon,
Pamela Keon Vitale, Pamela Keon Vitale,
Susan Tamara Keon DeWyngaert, Susan Tamara Keon DeWyngaert,
Benjamin Iverson Lumpkin, Benjamin Iverson Lumpkin,
Elizabeth Arabella Lumpkin, Elizabeth Arabella Lumpkin,
Anne Romayne Sparks, Anne Romayne Sparks,
Barbara Lee Sparks, Barbara Lee Sparks,
Christina Louise Sparks, and Christina Louise Sparks, and
John Woodruff Sparks John Woodruff Sparks
Bank One, Texas, N.A., Trustee Bank One, Texas, N.A., Trustee
By: /s/ Frank A. Glispin By: /s/ Frank A. Glispin
-------------------- --------------------
Name: Frank A. Glispin Name: Frank A. Glispin
Title: Relationship Manager Title: Relationship Manager
The three trusts established by Richard The twelve 1990 Personal Income Trusts established
Adamson Lumpkin under Trust Agreement dated by Margaret L. Keon, Mary Lee Sparks, and Richard A.
February 6, 1970, one for the benefit of each of: Lumpkin, each dated April 20, 1990, one for the benefit
of each of:
Richard Anthony Lumpkin, Joseph John Keon III,
Margaret Anne Keon, and Katherine Stoddert Keon,
Mary Lee Sparks Lisa Anne Keon,
Margaret Lynley Keon,
Pamela Keon Vitale,
Bank One, Texas, N.A., Trustee Susan Tamara Keon DeWyngaert,
Benjamin Iverson Lumpkin,
Elizabeth Arabella Lumpkin,
By: /s/ Frank A. Glispin Anne Romayne Sparks,
-------------------- Barbara Lee Sparks,
Name: Frank A. Glispin Christina Louise Sparks, and
Title: Relationship Manager John Woodruff Sparks
/s/ David R. Hodgman
---------------------
David R. Hodgman, Trustee
/s/ Steven L. Grissom
--------------------
Steven L. Grissom, Trustee
SCHEDULE I
Richard A. Lumpkin
Gail G. Lumpkin
Margaret Lumpkin Keon, as Trustee under the Margaret Lumpkin Keon Trust dated
May 13, 1978
Mary Lee Sparks and Steven L. Grissom, as Trustees of the Mary Lee Sparks
Trust dated May 13, 1978
Mary Lee Sparks
Bank One, Texas, N.A., as Trustee of the twelve trusts created under the Mary
Green Lumpkin Gallo Trust Agreement dated December 29, 1989, one for the
benefit of each of Joseph John Keon III, Katherine Stoddert Keon, Lisa Anne
Keon, Margaret Lynley Keon, Pamela Keon Vitale, Susan Tamara Keon DeWyngaert,
Benjamin Iverson Lumpkin, Elizabeth Arabella Lumpkin, Anne Romayne Sparks,
Barbara Lee Sparks, Christina Louise Sparks, and John Woodruff Sparks
Bank One, Texas, N.A., as Trustee of the twelve trusts created under the
Richard Adamson Lumpkin Grandchildren's Trust dated September 5, 1980, one
for the benefit of each of Joseph John Keon III, Katherine Stoddert Keon,
Lisa Anne Keon, Margaret Lynley Keon, Pamela Keon Vitale, Susan Tamara Keon
DeWyngaert, Benjamin Iverson Lumpkin, Elizabeth Arabella Lumpkin, Anne
Romayne Sparks, Barbara Lee Sparks, Christina Louise Sparks, and John
Woodruff Sparks
Bank One, Texas, N.A., as Trustee of the three trusts established by Richard
Adamson Lumpkin under the Trust Agreement dated February 6, 1970, one for the
benefit of each of Richard Anthony Lumpkin, Margaret Anne Keon, and Mary Lee
Sparks
David R. Hodgman and Steven L. Grissom, as Trustees of the twelve 1990
Personal Income Trusts established by Margaret L. Keon, Mary Lee Sparks, and
Richard A. Lumpkin, each dated April 20, 1990, one for the benefit of each of
Joseph John Keon III, Katherine Stoddert Keon, Lisa Anne Keon, Margaret
Lynley Keon, Pamela Keon Vitale, Susan Tamara Keon DeWyngaert, Benjamin
Iverson Lumpkin, Elizabeth Arabella Lumpkin, Anne Romayne Sparks, Barbara Lee
Sparks, Christina Louise Sparks, and John Woodruff Sparks