EX. 4.2
AMENDMENT NO. 1
TO THE
AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT
AMENDMENT NO. 1, dated as of January 7, 1998, to the Amended and
Restated Stockholders Agreement, dated as of October 31, 1997 (as amended
from time to time, the "Stockholders Agreement"), among KMC Telecom Holdings,
Inc. (the "Company"), Nassau Capital Partners L.P., NAS Partners I L.L.C.,
Xxxxxx X. Xxxxxx ("HNK"), KMC Telecommunications L.P. ("KMC LP"), AT&T Credit
Corporation, General Electric Capital Corporation, CoreStates Bank, N.A. and
CoreStates Holdings, Inc.
W I T N E S S E T H:
WHEREAS, HNK intends to transfer his general-partner interest in
KMC LP to a substitute general partner, in the form of a partnership owned or
controlled by Xxxxxx X. Xxxxxxxxxx and Xxxxxx Xxxxxx and other limited
partners, some of whom are members of HNK's family (such substitute general
partner, the "New Partner"); and
WHEREAS, the undersigned stockholders of the Company desire to
accommodate such transfer to the New Partner by amending the Stockholders
Agreement in accordance with the terms set forth herein;
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration the receipt and sufficiency of which is hereby
acknowledged, the parties hereto hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, all
capitalized terms used herein have the meanings ascribed thereto in the
Stockholders Agreement.
2. Amendment to Preamble. The Preamble to the Stockholders
Agreement is hereby amended by deleting the first paragraph thereof and
replacing such paragraph in its entirety with the following:
"AMENDED AND RESTATED STOCKHOLDERS AGREEMENT, dated as of
October 31, 1997 (this "Agreement"), among KMC Telecom Holdings,
Inc., a Delaware corporation (the "Company"), Nassau Capital
Partners L.P., a Delaware limited partnership ("Nassau Capital"),
NAS Partners I L.L.C., a Delaware limited liability company
("NAS" and, together with Nassau Capital, "Nassau"), Xxxxxx X.
Xxxxxx ("HNK" or "Kamine"), AT&T Credit Corporation, a Delaware
corporation ("AT&T"), General Electric Capital Corporation, a New
York corporation ("GECC"), CoreStates Bank, N.A., a national
banking association ("CoreStates Bank") and CoreStates Holdings,
Inc., a Delaware corporation ("CoreStates Holdings" and, together
with CoreStates Bank, "CoreStates").
3. Amendment to Definitions. The Definitions section of the
Stockholders Agreement is hereby amended as follows:
""Registrable Securities" means (i) the Common Stock issued
or issuable upon the conversion of the Convertible Preferred
Stock or the exercise of the AT&T Company Warrant or the GECC
Warrant, (ii) any Common Stock acquired after October 31, 1997 by
Nassau, Kamine, AT&T, GECC, CoreStates, any Accredited Investor
that is a permitted transferee of Common Stock pursuant to
Section 3.1.6 or any of their respective Affiliates, (iii) the
Common Stock held, as of October 31, 1997, by Kamine, Nassau,
AT&T and CoreStates and their respective Affiliates and by KMC
Telecommunications L.P., a Delaware limited partnership, and (iv)
any shares of capital stock of the Company issued or issuable
with respect to the securities referred to in clauses (i) through
(iii) by way of a stock dividend or stock split or in connection
with a combination of shares, recapitalization, merger,
consolidation or other reorganization. For purposes of this
Agreement, a Person will be deemed to be a holder of Registrable
Securities whenever such Person has the right to acquire directly
or indirectly such Registrable Securities (including, without
limitation, upon conversion or exercise in connection with a
transfer of securities or otherwise, but disregarding any
restrictions or limitations upon the exercise of such right),
whether or not such acquisition has actually been effected. As
to any particular Registrable Securities, once issued such
securities shall cease to be Registrable Securities when (i) such
securities shall have been registered under the Securities Act,
and the registration statement with respect to the sale of such
securities shall have become effective under the Securities Act
or such securities shall have been sold under circumstances in
which all applicable conditions of Rule 144 (or any similar
provision then in force) under the Securities Act are met or may
be sold pursuant to Rule 144(k), (ii) such securities shall have
been otherwise transferred, new certificates for them not bearing
a legend restricting further transfer shall have been delivered
by the Company and subsequent disposition of such securities
shall not require registration or qualification of such
securities under the Securities Act or any state securities or
blue sky laws then in force in a preponderance of states, or
(iii) such securities shall cease to be outstanding.
4. Limited Amendment. Except as expressly amended hereby, all the
provisions of the Stockholders Agreement are hereby affirmed and shall
continue to be in full force and effect in accordance with their terms, and
any amendments contained herein shall be limited precisely as drafted and
shall not constitute an amendment of any terms or provisions of the
Stockholders Agreement except as expressly provided.
5. Governing Law. THIS AMENDMENT NO. 1 AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT NO. 1 SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
DELAWARE.
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6. Counterparts. This Amendment No. 1 may be executed by
one or more of the parties to this Amendment on any number of separate
counterparts, and all of said counterparts taken together shall be deemed to
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
on the date first written above.
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/s/ Xxxxxx X. Xxxxxx
----------------------------
Xxxxxx X. Xxxxxx
KMC TELECOM HOLDINGS, INC.
By: /s/ Xxxxxxx Xxxxxxxx
------------------------
Name:
Title:
NASSAU CAPITAL PARTNERS L.P.
By: NASSAU CAPITAL L.L.C.
(as general partner)
By: /s/ Illegible
-------------------
Name:
Title:
NAS PARTNERS I L.L.C.
By: /s/ Illegible
------------------------
Name:
Title:
KMC TELECOMMUNICATIONS L.P.
By: /s/ Xxxxxx X. Xxxxxx
------------------------
Name:
Title:
AT&T CREDIT CORPORATION
By: /s/ Xxxxxxx X. Xxxx
------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
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GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s/ Xxxxxx Xxxxx Xxxxxxx
--------------------------
Name: Xxxxxx Xxxxx Xxxxxxx
Title: Manager-Operations
CORESTATES BANK, N.A.
By: /s/ Xxxxxxxxx Xxxxxx
------------------------
Name: Xxxxxxxxx Xxxxxx
Title: Vice President
CORESTATES HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxxx XX
--------------------------
Name: Xxxxxxx X. Xxxxxx XX
Title: Vice President
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