AMENDMENT NO. 7 TO
THE AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
AMENDMENT NO. 7 dated as of January 1, 2000 to the Amended and Restated
Stockholders Agreement, dated as of October 31, 1997 (as heretofore amended, the
"Stockholders Agreement") among KMC Telecom Holdings, Inc., Nassau Capital
Partners L.P., NAS Partners I L.L.C., Xxxxxx X. Xxxxxx, Newcourt Commercial
Finance Corporation (as successor to AT&T Credit Corporation), General Electric
Capital Corporation, First Union National Bank (as successor to CoreStates Bank,
N.A.) and CoreStates Holdings, Inc.
W I T N E S S E T H
WHEREAS, the parties hereto desire to make certain amendment to the
Stockholders Agreement;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. DEFINED TERMS. Unless otherwise defined herein, all
capitalized terms defined in the Stockholders Agreement and used herein are so
used as so defined.
2. AMENDMENTS TO SECTION 4.3.1 OF THE STOCKHOLDERS AGREEMENT.
Section 4.3 of the Stockholders Agreement is amended to read as follows:
4.3. ELECTION OF DIRECTORS.
4.3.1 NUMBER AND COMPOSITION. Subject to Section
4.3.2, each Stockholder agrees that the number of directors shall be
eight (8) and each Stockholder shall vote its or his Shares at any
Stockholders Meeting, or act by Written Consent with respect to such
Shares, and take all other actions necessary to ensure that the number
of directors constituting the entire Board of Directors shall be eight
(8), as provided for below. Each Stockholder shall vote its or his
Shares at any Stockholders Meeting called for the purpose of filling
the positions on the Board of Directors, or in any Written Consent
executed for such purpose, and to take all other actions necessary to
ensure, including, without limitation, using its or his best efforts to
cause the Board of Directors to take such actions to ensure: (i) the
election to the Board of Directors of (w) three individuals designated
by Nassau to serve initially as Nassau Directors, (x) subject to
paragraph (b) of Section 4.4, three individuals (one of whom shall be
the President and chief executive officer of the Company from time to
time, elected pursuant to Article IV of the By-Laws) designated by
Kamine to serve initially as Kamine Directors, (y) one independent
director who shall be mutually acceptable to Nassau, Kamine and either
AT&T or the Majority Series C Holders, provided that it is agreed that
Xxxx X. Xxxxxx shall be an independent director beginning November 1,
1997, and (z) one additional director who shall mutually acceptable to
Nassau, Kamine and either AT&T or the Majority Series C Holders,
provided that it is agreed that Xxxxxx X. Xxxxx XX shall be mutually
acceptable to each of the foregoing; (ii) the election to each
committee of the Board of Directors of an equal number of Nassau
Directors and Kamine Directors; and (iii) the election of an
independent director to the compensation committee of the Board of
Directors.
3. Except as expressly amended hereby, all of the provisions
of the Stockholders Agreement are hereby affirmed and shall continue in full
force and effect in accordance with their terms.
4. This Amendment shall be governed and construed in
accordance with the laws of the state of Delaware applicable to agreements made
and to be performed entirely within such state, without regard to the principles
of conflicts of laws thereof.
5. This Amendment may be executed in one or more counterparts,
each of which shall be deemed an original and all of which, taken together,
shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have executed, or caused to be
executed, this Agreement as of the date first above written.
KMC TELECOM HOLDINGS, INC.
By: /s/
-----------------------------
Name: Xxxxxx X. Xxxxxx
Title:Chairman of the Board
NASSAU CAPITAL PARTNERS L.P.
By: Nassau Capital L.L.C., its General Partner
By: /s/
---------------------------
Name: Xxxx X. Xxxxxx
Title: Member
NAS PARTNERS I L.L.C.
By: /s/
-----------------------------
Name: Xxxx X. Xxxxxxx
Title:Member
XXXXXX X. XXXXXX
in his individual capacity
/s/
---------------------------------
Xxxxxx X. Xxxxxx
NEWCOURT COMMERCIAL FINANCE
CORPORATION
By: /s/
-----------------------------
Name: Xxxxxxx Xxxxx
Title:Vice President
FIRST UNION NATIONAL BANK
By: /s/
-----------------------------
Name: Xxxxxx Xxxxxx
Title:Vice President
CORESTATES HOLDINGS, INC.
By: /s/
-----------------------------
Name: Xxxxxx X. Xxxxxxx
Title:Vice President
GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s/
-----------------------------
Name: Xxxx X. Xxxxx
Title:Manager - Operations
