EXHIBIT 10.1
AMENDMENT NO. 14
TO
TRANSACTION AGREEMENT
This Amendment No. 14 ("AMENDMENT") to the Transaction Agreement dated
as of July 8, 1998, as amended by Amendment No. 1 dated as of December 18, 1998,
by Amendment No. 2 dated as of February 18, 1999, by Amendment No. 3 dated as of
May 14, 1999, by Amendment No. 4 dated as of June 30, 1999, by Amendment No. 5
dated as of June 30, 1999, by Amendment No. 6 dated as of November 18, 1999, by
Amendment No. 7 dated as of August 1, 2000, by Amendment No. 8 dated as of
December 20, 2000, by Amendment No. 9 dated as of March 13, 2001, by Amendment
No. 10 dated as of June 21, 2001, by a separate and distinct Amendment No. 10
dated as of November 9, 2001, by Amendment No. 11 dated as of December 19, 2002,
by Amendment No. 12 dated as of May 22, 2002 and by Amendment No. 13 dated as of
September 12, 2002 (as so amended, the "ORIGINAL AGREEMENT"), is made as of
January 16, 2004, among Choice One Communications Inc. (the "CORPORATION") and
the persons listed on the signature pages hereto.
WHEREAS, the Fleet Entities desire to irrevocably terminate certain of
their rights under the Original Agreement and the parties hereto desire to amend
the Original Agreement to effect such termination and to address certain issues
raised by such termination;
NOW, THEREFORE, the parties hereto hereby agree as follows:
SECTION 1. Definitions. Capitalized terms used in this Amendment and
not otherwise defined have the meanings ascribed to them in the Agreement.
SECTION 2. Termination of Rights. Each of the parties agrees that,
notwithstanding any provision of the Original Agreement to the contrary, none of
the Fleet Entities shall have any rights:
(a) under Sections 4.01 through 4.04 or Section 4.06 of the Original
Agreement; or
(b) to participate in sales by a Selling Person pursuant to Section
6.05 of the Original Agreement.
SECTION 3. Amendments to Section 5.03. Section 5.03 of the Original
Agreement is hereby amended as follows:
(a) Clause (ii) of Section 5.03(b) of the Original Agreement is hereby
deleted and clauses (iii) through (vi) of Section 5.03(b) are hereby re-numbered
as clauses (ii) through (v) thereof;
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(b) Clause (iii) of Section 5.03(f) of the Original Agreement is hereby
deleted, the reference to Section 5.03(b)(iii) in clause (iv) of Section 5.03(f)
is hereby replaced with a reference to Section 5.03(b)(ii), and clause (iv) of
Section 5.03(f) is hereby re-numbered as clause (iii) thereof;
(c) Clause (iii) of Section 5.03(g) of the Original Agreement is hereby
deleted, the reference to Section 5.03(b)(iii) in clause (iv) of Section 5.03(g)
is hereby replaced with a reference to Section 5.03(b)(ii), and clause (iv) of
Section 5.03(g) is hereby re-numbered as clause (iii) thereof; and
(d) Section 5.03(k) of the Original Agreement is hereby amended by
adding the following proviso to the end thereof: "; provided, however, that
despite the fact that the Fleet Entities do not have the right to designate a
director, the Fleet Entities shall be subject to the obligations of this Section
5.03(k) so long as they continue to own, in the aggregate, at least 50% of the
Fleet Equity".
SECTION 4. Amendments to Section 9.04. Clause (x) of Section 9.04 of
the Original Agreement is hereby amended by deleting "Fleet," therefrom.
SECTION 5. Effect of Amendment; Irrevocable Consent to Future
Amendments, Modifications and Waivers. Except as amended hereby, the Original
Agreement shall remain unchanged and continue in full force and effect. Without
limiting the generality of the foregoing, nothing in this Amendment shall
relieve any of the Fleet Entities from any of their respective obligations under
the Original Agreement including, without limitation, their obligations under
Article 6 of the Original Agreement. This Amendment shall constitute the prior
written consent of the Fleet Entities contemplated by the first sentence of
Section 9.04 of the Original Agreement to any amendment, modification or waiver
after the date hereof except for any amendment, modification or waiver which
both (i) is adverse to any of the Fleet Entities (after giving effect to this
Amendment); and (ii) results in any of the Fleet Entities being treated
differently than holders of Investor Equity generally; provided, however, that
to the extent that the different treatment of the Fleet Entities arises solely
as a result of the different percentage of Investor Equity held such different
treatment shall be disregarded for the purposes of clause (ii). Each of the
Fleet Entities acknowledges that it has not relied on any representations or
warranties of the Corporation or any other party as to the effect of this
Amendment on its rights and obligations under applicable securities laws.
SECTION 6. Governing Law. This Amendment shall be governed by, and
construed under, the laws of the State of Delaware, all rights and remedies
being governed by said laws, without regard to conflict of laws principles.
SECTION 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 instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first written above.
CHOICE ONE COMMUNICATIONS INC.
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
Chairman and Chief Executive Officer
MANAGEMENT MEMBERS
/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, as a Management
Member and as Chief Executive Officer
of Choice One Communications Inc.
/s/ Xxx Xxxxxx-Xxx
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Xxx Xxxxxx-Xxx
/s/ Xxxxx Xxxxxxx
-----------------------------------------------
Xxxxx Xxxxxxx
/s/ Xxxxxx Xxxxxx
-----------------------------------------------
Xxxxxx Xxxxxx
/s/ Xxxx Xxxxxxxxx
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Xxxx Xxxxxxxxx
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INVESTOR MEMBERS
XXXXXX XXXXXXX CAPITAL
PARTNERS III, L.P.
By: MSCP III, LLC, its general partner
By: Xxxxxx Xxxxxxx Capital Partners III,
Inc., its Member
By: /s/ Xxxx X. Xxxxxxxxxx
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Its: Managing Director
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MSCP III 892 INVESTORS, L.P.
By: MSCP III, LLC, its general partner
By: Xxxxxx Xxxxxxx Capital Partners III,
Inc., its Member
By: /s/ Xxxx X. Xxxxxxxxxx
-----------------------------------------------
Its: Managing Director
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XXXXXX XXXXXXX CAPITAL
INVESTORS, L.P.
By: MSCP III, LLC, its general partner
By: Xxxxxx Xxxxxxx Capital Partners III,
Inc., its Member
By: /s/ Xxxx X. Xxxxxxxxxx
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Its: Managing Director
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XXXXXX XXXXXXX XXXX XXXXXX
CAPITAL PARTNERS IV, L.P.
By: MSDW Capital Partners IV, LLC, its
general partner
By: MSDW Capital Partners IV, Inc., its Member
By: /s/ Xxxx X. Xxxxxxxxxx
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Its: Managing Director
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MSDW IV 892 INVESTORS, L.P.
By: MSDW Capital Partners IV, LLC, its
general partner
By: MSDW Capital Partners IV, Inc., its Member
By: /s/ Xxxx X. Xxxxxxxxxx
-----------------------------------------------
Its: Managing Director
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XXXXXX XXXXXXX XXXX XXXXXX
CAPITAL INVESTORS IV, L.P.
By: MSDW Capital Partners IV LLC, its
general partner
By: MSDW Capital Partners IV, Inc., its Member
By: /s/ Xxxx X. Xxxxxxxxxx
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Its: Managing Director
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FLEET VENTURE RESOURCES, INC.
By: /s/ Xxxxxx X. Xxx Xxxxx
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Xxxxxx X. Xxx Xxxxx
Under Power of Attorney Dated 8/4/00
FLEET EQUITY PARTNERS VI, L.P.
By: Silverado IV Corp., its General Partner
By: /s/ Xxxxxx X. Xxx Xxxxx
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Xxxxxx X. Xxx Xxxxx
Chairman & CEO
XXXXXXXX PARTNERS III, L.P.
By: Silverado III, L.P., its General Partner
By: Silverado III Corp., its General Partner
By: /s/ Xxxxxx X. Xxx Xxxxx
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Xxxxxx X. Xxx Xxxxx
Chairman & CEO
XXXXXXX PLAZA PARTNERS
By: /s/ Xxxxxx X. Xxx Xxxxx
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Xxxxxx X. Xxx Xxxxx
Managing General Partner
XXXXXX-XXXXXX MEDIA PARTNERS, L.P.
By: Xxxxxx Xxxxxx Media, L.L.C. its general partner
By: /s/ Xxxxx Xxxxxxxxx
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Xxxxx Xxxxxxxxx
Chief Executive Officer
