FIRST AMENDMENT TO
PURCHASE AGREEMENT
THIS FIRST AMENDMENT TO PURCHASE AGREEMENT (the "Amendment") is made
as of July 21, 1995, by and among United USN, Inc., a Delaware corporation (the
"Company"), CIBC Wood Gundy Ventures, Inc., a Delaware corporation ("CIBC"),
Chemical Venture Capital Associates, a California limited partnership
("Chemical"), Xxxxxxx Venture Partners IV - Direct Fund L.P., a Delaware limited
partnership ("Xxxxxxx"), BT Capital Partners, Inc., a Delaware corporation
("BT"), Northwood Capital Partners LLC, a New York limited liability company
("Northwood Capital"), Northwood Ventures, a New York limited partnership
("Northwood Ventures"), and Enterprises & Transcommunications, L.P., a Delaware
limited partnership ("Prime" and, collectively with CIBC, Chemical, Xxxxxxx, XX,
Northwood Capital and Northwood Ventures, the "Purchasers"), and amends that
certain Purchase Agreement dated as of June 22, 1995 by and among the Company,
CIBC, Chemical, Xxxxxxx, XX, Northwood Ventures and Northwood Capital (the
"Purchase Agreement").
WHEREAS, the Purchasers other than Prime have purchased, and Prime
desires to purchase, shares of Common Stock, par value $.01 per share (the
"Common Stock"), of the Company and Series A 10% Senior Cumulative Preferred
Stock, par value $1.00 per share (the "Preferred Stock"), of the Company; and
WHEREAS, the Company and the Purchasers desire to enter into this
Amendment to amend the Purchase Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
1. Prime shall be deemed to be the Additional Purchaser for all
purposes of the Purchase Agreement.
2. The following definition is hereby added to Section 8 of the
Purchase Agreement:
"Prime Common Stock" has the meaning given such term in the Amended
Stockholders Agreement.
3. Section 9E of the Purchase Agreement is hereby amended and restated
as follows:
9E. Consent to Amendments. Except as otherwise expressly provided
herein, the provisions of this Agreement may be amended or waived and the
Company may take any action herein prohibited, or omit to perform any act
herein required to be performed by it, only if the Company has obtained the
Required Approval; provided that no amendment of Section 3D(ii) which would
have the effect of permitting the Company to repurchase, directly or
indirectly, shares of Common Stock pursuant to Section 7 of the First
Purchase Agreement without offering to purchase BT Common Stock on the
terms set forth in Section 3D(ii)(c) will be effective without the prior
written consent of the holders of a majority of the BT Common Stock then
outstanding, or without offering to purchase Prime Common Stock on the
terms set forth in Section 3D(ii)(c) will be effective without the prior
written consent of the holders of a majority of the Prime Common Stock then
outstanding. No other course of dealing between the Company and the holder
of any Stock or any delay in exercising any rights hereunder or under the
Certificate of Incorporation (as amended by the Certificate of Amendment)
or Certificate of Designation shall operate as a waiver of any rights of
any such holders. For purposes of this Agreement, shares of Stock held by
the Company or any Subsidiaries shall not be deemed to be outstanding.
4. Exhibit I to the Purchase Agreement as in effect at the Closing is
hereby amended and restated as set forth in Exhibit I hereto.
5. The address for Prime to be set forth on the Schedule of Purchasers
is as follows:
-2-
Enterprises & Transcommunications, L.P.
3000 One American Center
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
6. Severability. Whenever possible, each provision of this Amendment
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Amendment is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Amendment.
7. Counterparts. This Amendment may be executed simultaneously in two
or more counterparts, any one of which need not contain the signatures of more
than one party, but all such counterparts taken together shall constitute one
and the same Amendment.
8. Descriptive Headings; Interpretation. The descriptive headings of
this Amendment are inserted for convenience only and do not constitute a part of
this Amendment. The use of the word "including" in this Amendment shall be by
way of example rather than by limitation.
* * * * *
-3-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
UNITED USN, INC.
-----------------------------------------
By: Xxxxxx X. Xxxxxxxxxxx
Its: Chief Executive Officer
BT CAPITAL PARTNERS, INC.
-----------------------------------------
By:
Its:
CIBC WOOD GUNDY VENTURES, INC.
-----------------------------------------
By: Xxxxxxx X. Xxxxxx
Its: President
XXXXXXX VENTURE PARTNERS IV - DIRECT FUND
L.P.
By: Back Bay Partners XII L.P.
By: Xxxxxxx Venture Partners, Inc.
-----------------------------------------
By:
Its:
CHEMICAL VENTURE CAPITAL ASSOCIATES
------------------------------------------
By:
Its:
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
UNITED USN, INC.
_____________________________________
By: Xxxxxx X. Xxxxxxxxxxx
Its: Chief Executive Officer
BT CAPITAL PARTNERS, INC.
_____________________________________
By:
Its:
CIBC WOOD GUNDY VENTURES, INC.
_____________________________________
By: Xxxxxxx X. Xxxxxx
Its: President
XXXXXXX VENTURE PARTNERS IV - DIRECT FUND L.P.
By: Back Bay Partners XII L.P.
By: Xxxxxxx Venture Partners, Inc.
/s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------
By: Xxxxxxx X. Xxxxxxxx
Its: Senior Vice President
CHEMICAL VENTURE CAPITAL ASSOCIATES
_____________________________________
By:
Its:
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
UNITED USN, INC.
___________________________________
By: Xxxxxx X. Xxxxxxxxxxx
Its: Chief Executive Officer
BT CAPITAL PARTNERS, INC.
___________________________________
By:
Its:
CIBC WOOD GUNDY VENTURES, INC.
/s/ Xxxxxxx X. Xxxxxx
------------------------------------
By: Xxxxxxx X. Xxxxxx
Its: President
XXXXXXX VENTURE PARTNERS IV - DIRECT FUND L.P.
By: Back Bay Partners XII L.P.
By: Xxxxxxx Venture Partners, Inc.
____________________________________
By:
Its:
CHEMICAL VENTURE CAPITAL ASSOCIATES
___________________________________
By:
Its:
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
UNITED USN, INC.
_____________________________________
By: Xxxxxx X. Xxxxxxxxxxx
Its: Chief Executive Officer
BT CAPITAL PARTNERS, INC.
_____________________________________
By:
-----------------------------------
Its:
---------------------------------
CIBC WOOD GUNDY VENTURES, INC.
_____________________________________
By: Xxxxxxx X. Xxxxxx
Its: President
XXXXXXX VENTURE PARTNERS IV - DIRECT FUND L.P.
By: Back Bay Partners XII L.P.
By: Xxxxxxx Venture Partners, Inc.
________________________________________
By:
-------------------------------------
Its:
------------------------------------
CHEMICAL VENTURE CAPITAL ASSOCIATES
________________________________________
By:
-------------------------------------
Its:
------------------------------------
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
UNITED USN, INC.
/s/ Xxxxxx X. Xxxxxxxxxxx
------------------------------
By: Xxxxxx X. Xxxxxxxxxxx
Its: Chief Executive Officer
BT CAPITAL PARTNERS, INC.
------------------------------
By:
---------------------------
Its:
--------------------------
CIBC WOOD GUNDY VENTURES, INC.
------------------------------
By: Xxxxxxx X. Xxxxxx
Its: President
XXXXXXX VENTURE PARTNERS IV - DIRECT FUND L.P.
By: Back Bay Partners XII L.P.
By: Xxxxxxx Venture Partners, Inc.
------------------------------
------------------------------
By:
---------------------------
Its:
--------------------------
CHEMICAL VENTURE CAPITAL ASSOCIATES
------------------------------
By:
---------------------------
Its:
--------------------------
NORTHWOOD CAPITAL PARTNERS LLC
---------------------------------
By:
------------------------------
Its: Chairman and CEO
-----------------------------
NORTHWOOD VENTURES
---------------------------------
By:
------------------------------
Its: General Partners
-----------------------------
ENTERPRISES & TRANSCOMMUNICATIONS, L.P.
By: Prime Enterprises, L.P.
By: Prime New Ventures Management, L.P.
By: Prime II Management, L.P.
By: Prime II Management, Inc.
---------------------------------
By:
------------------------------
Its:
-----------------------------
NORTHWOOD CAPITAL PARTNERS LLC
---------------------------------
By:
------------------------------
Its:
-----------------------------
NORTHWOOD VENTURES
---------------------------------
By:
------------------------------
Its:
-----------------------------
ENTERPRISES & TRANSCOMMUNICATIONS, L.P.
By: Prime Enterprises, L.P.
By: Prime New Ventures Management, L.P.
By: Prime II Management, L.P.
By: Prime II Management, Inc.
/s/ Xxxxxxx X. Xxxxxxx
---------------------------------
By:
------------------------------
Its:
-----------------------------
