EXHIBIT I
FIRST AMENDMENT OF VOTING RIGHTS AGREEMENT
FIRST AMENDMENT OF VOTING RIGHTS AGREEMENT (this
"Amendment"), dated as of December 14, 1995, by and between The
Xxxx Alternative Income Fund, L.P. ("Xxxx") and ING Equity
Partners, L.P. I ("ING").
R E C I T A L S:
WHEREAS, a Voting Rights Agreement, dated as of
November 8, 1995 (the "Voting Rights Agreement") was executed and
delivered by certain holders of shares of the outstanding Common
Stock, $.01 par value of American Communications Services, Inc.,
a Delaware corporation (the "Company"), and certain holders of
the outstanding shares of 9% Series A-1 Convertible Preferred
Stock, $1.00 par value, 9% Series B-1 Convertible Preferred
Stock, $1.00 par value, 9% Series B-2 Convertible Preferred
Stock, $1.00 par value and 9% Series B-3 Convertible Preferred
Stock, $1.00 par value of the Company set forth in Schedule I to
the Voting Rights Agreement.
WHEREAS, an amendment of the Voting Rights Agreement
may only be accomplished by a written instrument duly executed by
Xxxx and ING; and
WHEREAS, Xxxx and ING desire to amend the Voting Rights
Agreement in the manner hereinafter provided.
NOW, THEREFORE, in consideration of the foregoing and
for other good and valuable consideration, the parties hereto
hereby agree as follows:
1. Sections 1.2, 1.3 and 1.4 of the Voting Rights
Agreement shall be deleted in their entirety and replaced with
the following:
"1.2 In any Election of Directors held during a
period in which the Standard Board Structure is in effect,
the Voting Shareholders agree to vote all of the shares of
Common Stock which they then own in the following manner:
(i) for Xxxxx X. Xxxxx, designated by Xxxx as a
director to be elected by the holders of the
Common Stock (the "Common Directors");
(ii) for Xxxxxx X. Xxxxxxxxx, designated by Apex
Investment Fund II, L.P. ("Apex") as a Common
Director;
(iii) for Xxxxxxxx X. Xxxxx, designated by ING as a
Common Director; and
(iv) for Xxxxxxx X. Xxxxxxxxx, designated by Xxxx
and ING as a Common Director.
1.3 In an Election of Directors held during a
period in which the Triggering Event Board Structure is in
effect, the Voting Shareholders agree to vote all of the shares
of Preferred Stock which they then own in the following manner:
(i) for Xxxxxxxxxxx X. Xxxxxxxx, Xxxxx X. Xxxxx,
Xxxxx Xxxxxx and Xxxxxxxxx Xxxxxxx,
designated by Xxxx as Preferred Directors.
(ii) for Xxxxxxx X. Xxxxxxxxx and Xxxxxxx X.
Xxxxx, designated by ING as Preferred
Directors; and
(iii) for Xxxxxx X. Xxxxxx, designated by Xxxx and
ING as Preferred Directors.
1.4 In any Election of Directors held during a
period in which the Triggering Event Board Structure is in
effect, the Voting Shareholders agree to vote all of the shares
of Common Stock which they then own in the following manner:
(i) for Xxxxx X. Xxxxx, designated by Xxxx as a
Common Director;
(ii) for Xxxxxxxx X. Xxxxx, designated by ING as a
Common Director;
(iii) for Xxxxxxx X. Xxxxxxxxx, designated by Xxxx
and ING as a Common Director; and
(iv) for Xxxxxx X. Xxxxxxxxx, designated by Apex
as a Common Director."
2. Section 1.8 of the Voting Rights Agreement shall
be deleted in its entirety and replaced with the following:
1.5 (i) The Common Director designated by Xxxx
and ING pursuant to Section 1.2(iv)
hereof shall not be an employee,
associate or affiliate of Xxxx or ING.
(ii) Of the Preferred Directors designated by Xxxx
pursuant to Section 1.3(i) hereof, one shall
not be an employee, associate or affiliate of
Xxxx; the Common Director designated by Xxxx
and ING pursuant to Section 1.4(iii) hereof
shall not be an employee, associate or
affiliate of Xxxx or ING and shall be the
Chairman of the Board; and of the Preferred
Directors designated by ING pursuant to
Section 1.3(ii) hereof, one shall not be an
employee, associate or affiliate of ING and
shall be the president of the Company; and
the Preferred Director designated by Xxxx and
ING pursuant to Section 1.3(iii) shall not be
an employee, associate or affiliate of Xxxx
or ING.
Except as herein amended, the terms and provisions of the Voting
Rights Agreement shall, in all other respects, remain unmodified,
are hereby ratified and reaffirmed, and shall remain in full
force and effect.
IN WITNESS WHEREOF, this Amendment has been executed by
the parties hereto as of the day and year first above written.
THE XXXX ALTERNATIVE INCOME FUND, L.P.
By: WKH PARTNERS, L.L.C.
general partner
By: /s/ Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title:
ING EQUITY PARTNERS, L.P. I
By: LEXINGTON PARTNERS, L.P.
its general partner
By: LEXINGTON PARTNERS, INC.
its general partner
By: /s/ Olivier Trouveroy
Name: Olivier Trouveroy
Title: Managing Director
SCHEDULE I
VOTING SHAREHOLDERS
Series A-1 Series B-1 Series B-2 Series B-3 Common
Voting Shareholder Preferred Preferred Preferred Preferred Stock
__________________ ___________ ___________ ___________ ___________ ____________
The Xxxx Alternative 138,899 100,000
Income Fund, L.P.
ING Equity Partners, 100,000 50,000
L.P., I
Apex Investment Fund 2,595 4,904.85
I, L.P.
Apex Investment Fund 16,803 3,269.90
II, L.P.
The Productivity Fund 10,249 1,380.61
II, L.P.
Argentum Capital 4,000.00
Partners, L.P.
Environmental Private 6,056 11,444.64
Equity Fund, II, L.P.
