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EXHIBIT 4.6
DIGITAL TELEPORT, INC.
AMENDMENT NO. 1 TO SHAREHOLDERS' AGREEMENT
THIS AMENDMENT NO. 1 (the "Amendment") dated as of November 7, 1997,
by and among DIGITAL TELEPORT, INC. (the "Company"), a Missouri corporation,
XXXXXXX X. XXXXXXXXX ("Xxxxxxxxx"), an individual, and KLT TELECOM INC. ("KLT"),
a Missouri corporation. Xxxxxxxxx and KLT are hereinafter sometimes referred to
collectively as "Shareholders" or individually as a "Shareholder."
WITNESSETH:
WHEREAS, the Company, Xxxxxxxxx, and KLT entered into that certain
Shareholders' Agreement, dated as of March 12, 1997 (the "Shareholders'
Agreement");
WHEREAS, the Shareholders desire to amend the Shareholders' Agreement
as provided herein;
NOW, THEREFORE, the Shareholders and the Company agree as follows:
1. Section 1.1. Section 1.1 of the Shareholders' Agreement is, effective as
of the date hereof, amended to read in its entirety as follows:
"1.1 Composition of the Board. (a) The Board of Directors of the
Company shall consist of six (6) directors. Three (3) of these six (6) directors
shall be designated by Xxxxxxxxx, and the remaining three (3) directors shall be
designated by KLT, and each of Xxxxxxxxx and KLT agree to vote for the election
of all such designees to the board of directors. In addition, at least one of
the directors designated by each of Xxxxxxxxx and KLT shall be an individual who
is not an affiliate (as defined herein) of the Company, Xxxxxxxxx or KLT (such
directors, the "Outside Directors"). There shall be no change in the number or
composition of the Board of Directors without the express approval of each of
the Shareholders.
(b) For purposes of this Section 1.1, an "affiliate" of KLT shall mean
any person that directly, or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with KLT, including
without limitation, any director, officer or employee of KLT.
(c) For purposes of this Section 1.1, an "affiliate" of the Company
shall mean any person that directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with
the Company, including without limitation, any officer or employee of the
Company.
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(d) For purposes of this Section 1.1, an "affiliate" of Xxxxxxxxx
means:
(i) any director, officer, shareholder, member, partner, trustee
or owner of any corporation, organization or other entity of which
Xxxxxxxxx is, directly or indirectly, the beneficial owner of 5% or
more of any class of equity securities; and
(ii) Xxxxxxxxx'x spouse, parents, children, siblings, mothers and
fathers-in-law, sons and daughters-in-law, and brothers and
sisters-in-law."
2. Section 1.2. Section 1.2 of the Shareholders' Agreement is,
effective as of the date hereof, amended to read in its entirety as
follows:
"1.2 Agreement to Vote Shares. At any annual or special
stockholders' meeting called for the purpose of electing members of
the Board of Directors of the Company, and whenever stockholders act
by written consent with respect to the election of members of the
Board of Directors of the Company, each of the Shareholders agrees to
vote all of the Shares held or controlled by such Shareholder having
voting rights with respect to the election of directors, and the
Company agrees to take any and all actions necessary, to cause:
(a) the election as directors of the Company of three
individuals nominated by Xxxxxxxxx; and
(b) the election as directors of the Company of three
individuals nominated by KLT.
Each of the Shareholders shall at all times cause each of his or its duly
nominated and elected directors (other than any Outside Directors) to exercise
their respective voting power to elect Xxxxxxx X. Xxxxxxxxx as the Chairman of
the Board of Directors, President, and Chief Executive Officer of the Company.
This obligation to elect Xxxxxxx X. Xxxxxxxxx to such offices shall terminate
upon the termination of the Employment Agreement between the Company and Xxxxxxx
X. Xxxxxxxxx, a form of which is attached as Exhibit E to a stock purchase
agreement between the Company, KLT and Xxxxxxxxx dated December 31, 1996 ("Stock
Purchase Agreement")."
3. Section 1.3. Section 1.3 of the Shareholders' Agreement is, effective as
of the date hereof, amended to read in its entirety as follows:
"1.3 Removal and Vacancy of Directors. In the event either
Shareholder wishes to remove a director who has been elected as its own nominee
to the Board of Directors of the Company, the other Shareholder shall vote for
or consent to such removal. In the event a vacancy in the office of a director
is caused by death, retirement or removal of a director, the vacancy shall be
filled by appointing or electing the nominee of the Shareholder whose nominee is
so deceased, retired or removed, provided that if such vacancy relates to an
Outside Director,
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the director who replaces such Outside Director shall not be
an affiliate of the Company, Xxxxxxxxx or KLT. In the event either Shareholder
wishes to remove an officer who has been elected as its nominee, the other
Shareholder shall cause the directors it has nominated to vote for such removal.
In the event a vacancy in the office of an officer is caused by death,
retirement or removal of an officer, the vacancy shall be filled by appointing
or electing the nominee of the Shareholder whose nominee is so deceased, retired
or removed."
4 Section 1.8. Section 1.8 of the Shareholders' Agreement is, effective as
of the date hereof, amended to read in its entirety as follows:
"1.8 Reimbursable Expenses. The Company shall bear all reasonable
travel and related expenses incurred by each Director to attend any meetings of
the Board of Directors. In addition, the Outside Directors shall be entitled to
the following compensation: (i) a $20,000 annual retainer fee payable quarterly
in arrears, and (ii) options to purchase 150 shares of Common Stock of the
Company under the Company's 1997 Long-Term Incentive Award Plan."
5. Definitions. Any capitalized terms used but not defined herein shall
have the meaning ascribed thereto in the Shareholders' Agreement.
6. Effect of this Amendment. Except as otherwise specifically amended
herein, the Shareholders' Agreement, as modified by this Amendment, remains in
full force and effect.
7. Counterparts; Effectiveness. This Ame3ndment may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed and delivered as of the day and year first above written.
DIGITAL TELEPORT, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Xxxxxxx X. Xxxxxxxxx
President
SHAREHOLDERS:
/s/ Xxxxxxx X. Xxxxxxxxx
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Xxxxxxx X. Xxxxxxxxx
KLT Telecom Inc.
By: /s/ X.X. Xxxxxx
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Xxxxxx X. Xxxxxx
President
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