AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
THIS AGREEMENT is made as of July 21, 1995, by and among United USN, Inc.,
a Delaware corporation (the "Company"), CIBC Wood Gundy Ventures, Inc., a
Delaware corporation ("CIBC"), Chemical Venture Capital Associates, a California
limited partnership ("Chemical"), Xxxxxxx Venture Partners IV - Direct Fund
L.P., a Delaware limited partnership ("Xxxxxxx"), BT Capital Partners, Inc., a
Delaware corporation ("BT"), Northwood Capital Partners LLC, a New York limited
liability company ("Northwood Capital"), Northwood Ventures, a New York limited
partnership ("Northwood Ventures"), and Enterprises & Transcommunications, L.P.,
a Delaware limited partnership ("Prime," and collectively with CIBC, Chemical,
Xxxxxxx, Northwood Capital, and subject to paragraph 7 below, the "Investors"),
and each of the stockholders listed on the Schedule of United Stockholders
attached hereto (the "United Stockholders"). The Investors and the United
Stockholders are collectively referred to as the "Stockholders" and individually
as a "Stockholder." Capitalized terms used herein are defined in paragraph 6
hereof.
The Investors (other than Prime) are parties to an Amended and Restated
Stockholders Agreement dated as of June 22, 1995 (the "Original Agreement"), and
all of the Investors are parties to a Purchase Agreement with the Company dated
as of such date and amended as of the date hereof (as amended through the date
hereof and hereafter in accordance with its terms, the "Purchase Agreement")
pursuant to which the Investors other than Prime have purchased, and in
connection with the execution hereof Prime will purchase, shares of the
Company's Common Stock, par value $.01 per share (the "Common Stock"), and
Series A-2 10% Senior Cumulative Preferred Stock, par value $1.00 per share (the
"Preferred Stock"). The Investors (other than Prime) executed the Original
Agreement for the purpose, among others, of (i) establishing the composition of
the Company's Board of Directors (the "Board"), and (ii) limiting the manner and
terms by which the Stockholder Shares may be transferred.
The Company, the Investors and the undersigned United Stockholders desire
to amend and restate the Original Agreement on the terms set forth herein. The
undersigned Investors hold all of
the Investor Common Stock and the undersigned United Stockholders hold a
majority of the Stockholder Shares which are not Investor Common Stock. The
execution and delivery of this Agreement is a condition to Prime's purchase of
the Common Stock and Preferred Stock pursuant to the Purchase Agreement. This
Agreement shall become effective upon the consummation of the Second Closing (as
defined in the Purchase Agreement) pursuant to the Purchase Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties to this Agreement hereby agree as follows:
1. Board of Directors.
(a) From and after the Closing (as defined in the Purchase Agreement) and
until the provisions of this paragraph 1 cease to be effective, each Stockholder
shall vote all of his Stockholder Shares and any other voting securities of the
Company over which such Stockholder has voting control and shall take all other
necessary or desirable actions within its control (whether in its capacity as a
stockholder or officer of the Company or otherwise, and including, without
limitation, attendance at meetings in person or by proxy for purposes of
obtaining a quorum and execution of written consents in lieu of meetings), and
the Company shall take all necessary and desirable actions within its control
(including, without limitation, calling special board and stockholder meetings),
so that:
(i) subject to paragraph l(g), the authorized number of directors on
the Board shall be established at seven directors;
(ii) the following persons shall be elected to the Board:
(A) one representative designated by the holders of CIBC Common
Stock, determined by a vote of the holders of a majority of the
outstanding shares of CIBC Stock (the "CIBC Director");
(B) one representative designated by the holders of Chemical
Common Stock, determined by a vote of the
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holders of a majority of the outstanding shares of Chemical Common
Stock (the "Chemical Director");
(C) one representative designated by the holders of Xxxxxxx
Common Stock, determined by a vote of the holders of a majority of the
outstanding shares of Xxxxxxx Common Stock (the "Xxxxxxx Director");
(D) one representative designated by the holders of BT Common
Stock, determined by a vote of the holders of a majority of the
outstanding shares of BT Common Stock (the "BT Director");
(E) two representatives (the "Management Directors") designated
by Xxxxxx X. Xxxxxxxxxxx ("Xxxxxxxxxxx"), provided that until the
first annual meeting of the Company's stockholders, Xxxxxxxxxxx and
Xxxxxxx X. Xxxxxxx shall serve as the Management Directors; and
(F) upon and after consummation of the sale of Additional Stock
to Prime in accordance with the terms of the Purchase Agreement and
execution by Prime of a counterpart to this Agreement, one
representative designated by the holders of Prime Common Stock,
determined by a vote of the holders of a majority of the outstanding
shares of Prime Common Stock (the "Prime Director");
(iii) the composition of the board of directors (the "Quest Board") of
Quest United, Inc., a Delaware corporation, shall include each of the
directors, if any, designated to the Board pursuant to subparagraph (A),
(B), (C), (D), (E) or (F) of paragraph l(a)(ii) above and not more than two
(2) other persons (three (3) other persons so long as Xxxxxxx X. Xxxxxxxx
owns common stock of UTS);
(iv) the composition of the board of directors (the "Network Board")
of U.S. Network Corporation, a Delaware corporation ("Network"), shall be
the same as that of the Board;
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(v) the composition of the board of directors (the "UTS Board") of UTS
shall include each of the directors, if any, designated to the Board
pursuant to subparagraph (A), (B), (C), (D), (E) or (F) of paragraph
l(a)(ii) above and not more than three (3) other persons; provided,
however, that until such time as the existing agreement among stockholders
of UTS is amended to accommodate the foregoing (it being understood that
each of the parties hereto will take reasonable steps to cause such
agreement to be amended), such board shall include each of the directors
designated to the board pursuant to subparagraph (A),(B) or (C), one
director designated pursuant to subparagraph (E), and Xxxxxxx X. Xxxxxxxx.
(vi) the composition of the board of directors (a "Sub Board") of each
other Subsidiary of the Company shall include each of the directors, if
any, designated to the Board pursuant to subparagraph (A), (B), (C), (D),
(E) or (F) of paragraph l(a)(ii) above and not more than four (4) other
persons; provided that the board of directors of USN Solutions, Inc. and
the board of directors of USN Communications, Inc. shall be comprised
solely of one director, and such director shall be Xxxxxxxxxxx, unless and
until the holders of a majority of the outstanding shares of CIBC Common
Stock, Chemical Common Stock, Xxxxxxx Common Stock, BT Common Stock or
Prime Common Stock request otherwise;
(vii) the removal from the Board, or any Sub Board (with or without
cause) of any representative designated hereunder by the holders of CIBC
Common Stock, Chemical Common Stock, Xxxxxxx Common Stock, BT Common Stock
or Prime Common Stock or by Xxxxxxxxxxx shall be at the written request of
holders of a majority of the outstanding shares of CIBC Common Stock,
Chemical Common Stock, Xxxxxxx Common Stock, BT Common Stock or Prime
Common Stock, respectively, or by Xxxxxxxxxxx, respectively, but only upon
such written request and under no other circumstances, provided that if any
director elected pursuant to (ii)(C) above ceases to be an employee of the
Company and its subsidiaries, such director shall be removed as a director
promptly after his employment ceases; and
(viii) in the event that any representative designated hereunder by
the holders of CIBC Common Stock, Chemical Common
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Stock, Xxxxxxx Common Stock, BT Common Stock or Prime Common Stock,
respectively, or Xxxxxxxxxxx for any reason ceases to serve as a member of
the Board or any Sub Board during such director's term of office, the
resulting vacancy on the Board or Sub Board shall be filled by a
representative designated by the holders of a majority of the outstanding
shares of CIBC Common Stock, Chemical Common Stock, Xxxxxxx Common Stock,
BT Common Stock or Prime Common Stock, respectively, or by Xxxxxxxxxxx,
respectively, as provided hereunder.
(b) The Company shall pay the reasonable out-of-pocket expenses incurred by
each director in connection with attending the meetings of the Board or the
board of any Subsidiary and any committees thereof. So long as any CIBC
Director, Chemical Director, Xxxxxxx Director, BT Director or Prime Director
serves on the Board and for 5 years thereafter, the Company shall maintain
directors and officers indemnity insurance coverage satisfactory to the
Investors.
(c) The rights of the holders of CIBC Common Stock under this paragraph 1
shall terminate at such time as (i) the CIBC Common Stock represents less than
5% of the outstanding Common Stock, and (ii) CIBC and its Affiliates
collectively hold less than 66 2/3% of the aggregate amount of Investor Common
Stock originally issued to CIBC pursuant to the Purchase Agreement and the First
Purchase Agreement, as such amount is adjusted appropriately for stock splits,
stock dividends, combinations of shares and similar recapitalizations. The
rights of the holders of Chemical Common Stock under this paragraph 1 shall
terminate at such time as (i) the Chemical Common Stock represents less than 5%
of the outstanding Common Stock, and (ii) Chemical and its Affiliates
collectively hold less than 66 2/3% of the aggregate amount of Investor Common
Stock originally issued to Chemical pursuant to the Purchase Agreement and the
First Purchase Agreement, as such amount is adjusted appropriately for stock
splits, stock dividends, combinations of shares and similar recapitalizations.
The rights of the holders of Xxxxxxx Common Stock under this paragraph 1 shall
terminate at such time as (i) the Xxxxxxx Common Stock represents less than 5%
of the outstanding Common Stock, and (ii) Xxxxxxx and its Affiliates
collectively hold less than 66 2/3% of the aggregate amount of Investor Common
Stock originally issued to Xxxxxxx pursuant to the Purchase Agreement and the
First Purchase Agreement, as such amount is adjusted appropriately for stock
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splits, stock dividends, combinations of shares and similar recapitalizations.
The rights of the holders of BT Common Stock under this paragraph 1 shall
terminate at such time as (i) the BT Common Stock represents less than 5% of the
outstanding Common Stock, and (ii) BT and its Affiliates collectively hold less
than 66 2/3% of the aggregate amount of Investor Common Stock originally issued
to BT pursuant to the Purchase Agreement, as such amount is adjusted
appropriately for stock splits, stock dividends, combinations of shares and
similar recapitalizations. The rights of the holders of Northwood Capital Common
Stock under this paragraph 1 shall terminate at such time as (i) the Northwood
Capital Common Stock represents less than 5% of the outstanding Common Stock,
and (ii) Northwood Capital and its Affiliates collectively hold less than
66 2/3% of the aggregate amount of Investor Common Stock originally issued to
Northwood Capital pursuant to the Purchase Agreement, as such amount is adjusted
appropriately for stock splits, stock dividends, combinations of shares and
similar recapitalizations. The rights of the holders of Northwood Ventures
Common Stock under this paragraph 1 shall terminate at such time as (i) the
Northwood Ventures Common Stock represents less than 5% of the outstanding
Common Stock, and (ii) Northwood Ventures and its Affiliates collectively hold
less than 66 2/3% of the aggregate amount of Investor Common Stock originally
issued to Northwood Ventures pursuant to the Purchase Agreement, as such amount
is adjusted appropriately for stock splits, stock dividends, combinations of
shares and similar recapitalizations. The rights of the holders of Prime Common
Stock under this paragraph 1 shall terminate at such time as (i) the Prime
Common Stock represents less than 5% of the outstanding Common Stock, and (ii)
Prime and its Affiliates collectively hold less than 66 2/3% of the aggregate
amount of Investor Common Stock originally issued to Prime pursuant to the
Purchase Agreement, as such amount is adjusted appropriately for stock splits,
stock dividends, combinations of shares and similar recapitalizations.
(d) The rights of Xxxxxxxxxxx under this paragraph 1 shall terminate at
such time as (i) Xxxxxxxxxxx holds in the aggregate less than 2% of the
outstanding Common Stock or (ii) Xxxxxxxxxxx ceases to be employed by the
Company.
(e) The provisions of this paragraph 1 shall terminate automatically and be
of no further force and effect upon the first to occur of (i) April 20, 2004,
unless extended by the parties
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hereto in accordance with Section 218 of the General Corporation Law of the
State of Delaware or (ii) a Qualified Public Offering.
(f) If any party fails to designate a representative to fill a directorship
pursuant to the terms of this paragraph 1, the election of a person to such
directorship shall be accomplished in accordance with the Company's bylaws and
applicable law.
(g) If any Stockholder's right to designate representatives to the Board
pursuant to this paragraph 1 shall terminate, any director position which is no
longer subject to designation pursuant to the terms of this paragraph 1 shall be
elected pursuant to the requirements of the General Corporation Law of the State
of Delaware and the bylaws of the Company.
(h) Notwithstanding the provisions in this paragraph 1, if the authorized
number of directors on the Board is increased, the persons filling such Board
positions shall be designated by the holders of Investor Common Stock,
determined by a vote of the holders of 66 2/3% of the outstanding Investor
Common Stock.
2. Irrevocable Proxy: Conflicting Agreement.
(a) In order to secure each United Stockholder's obligation to vote his
Stockholder Shares and other voting securities of the Company in accordance with
the provisions of paragraph 1 hereof, each United Stockholder hereby appoints
Xxxxxxxxxxx as his true and lawful proxy and attorney-in-fact, with full power
of substitution, to vote all of his Stockholder Shares and other voting
securities of the Company for the election and/or removal of directors and all
such other matters as expressly provided for in paragraph 1. Xxxxxxxxxxx may
exercise the irrevocable proxy granted to him hereunder at any time any United
Stockholder fails to comply with the provisions of this Agreement. The proxies
and powers granted by each United Stockholder pursuant to this paragraph 2 are
coupled with an interest and are given to secure the performance of the United
Stockholder's obligations to the holders of the CIBC Common Stock, Chemical
Common Stock, Xxxxxxx Common Stock, BT Common Stock and Prime Common Stock under
this Agreement. Such proxies and powers will be irrevocable for the term set
forth in paragraph i(e) of this Agreement and will survive the death,
incompetency and disability of such United Stockholder and the subsequent
holders of such Stockholder Shares.
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(b) Each Stockholder represents that he has not granted and is not a party
to any proxy, voting trust or other agreement which is inconsistent with or
conflicts with the provisions of this Agreement, and no holder of Stockholder
Shares shall grant any proxy or become party to any voting trust or other
agreement which is inconsistent with or conflicts with the provisions of this
Agreement, except for the Voting Trust Agreement dated April 15, 1994 by and
between Xxxxx X. Xxxxxxxxx ("Montville") and Xxxxxxxxxxx, as trustee (the
"Trustee"), pursuant to which Montville granted to the Trustee all rights,
including the right to vote, in connection with Montville's Stockholder Shares;
the Stock Option dated April 15, 1994 by and between Xxxxxxxxxxx and Xxxxxxxxx
Xxxxxxxxx (the "Xxxxxxxxxxx Option"), the Stock Option dated April 15, 1994 by
and between Montville and Xxxxxxxxx Xxxxxxxxx (the "Montville Option") and the
Stock Option dated April 15, 1994 by and between Montville and Xxxxxxxxx Xxxx
(the "Xxxx Option").
3. Transfer of Stockholder Shares.
(a) Unless otherwise approved in writing by all of the Investors, prior to
an initial public offering of the Common Stock Xxxxxxxxxxx shall not sell,
transfer, assign, pledge or otherwise dispose of (a "Transfer") any Stockholder
Shares held by him on the date hereof or hereafter acquired other than pursuant
to the Xxxxxxxxxxx Option as in effect on April 20, 1994.
(b) Unless otherwise approved in writing by all of the Investors, each
United Stockholder agrees not to consummate any Transfer until 30 days after the
later of the delivery to the Company and the Investors of such United
Stockholder's Offer Notice (as defined below), unless the parties to the
Transfer have been finally determined pursuant to this paragraph 3 prior to the
expiration of such 30-day period (the "Election Period") or the Transfer is
pursuant to the Xxxxxxxxxxx Option, the Montville Option or the Xxxx Option as
in effect on April 20, 1994.
(c) Subject to the provisions of subparagraph 3(a), at least 30 days prior
to making any Transfer of any Stockholder Shares, the transferring United
Stockholder (the "Transferring Stockholder") shall deliver a written notice (the
"Offer Notice") to the Company and the Investors. The Offer Notice shall
disclose in reasonable detail the proposed number of Stockholder Shares to
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Transfer. First, the Company may elect to purchase all or any portion of the
Stockholder Shares specified in the Offer Notice at the price and on the terms
specified therein by delivering written notice of such election to the
Transferring Stockholders and the Investors as soon as practical but in any
event within ten days after the delivery of the Offer Notice. If the Company has
not elected to purchase all of the Stockholder Shares within such ten day
period, each Investor may elect to purchase all (but not less than all) of his
Pro Rata Share (as defined below) of the Stockholder Shares specified in the
Offer Notice at the price and on the terms specified therein by delivering
written notice of such election to the Transferring Stockholder as soon as
practical but in any event within 20 days after delivery of the Offer Notice.
Any Stockholder Shares not elected to be purchased by the end of such 20-day
period shall be reoffered for the ten-day period prior to the expiration of the
Election Period by the Transferring Stockholder on a pro rata basis to the
Investors who have elected to purchase their Pro Rata Share. If the Company or
any Investors have elected to purchase Stockholder Shares from the Transferring
Stockholder, the transfer of such shares shall be consummated as soon as
practical after the delivery of the election notices, but in any event within 15
days after the expiration of the Election Period. To the extent that the Company
and the Investors have not elected to purchase all of the Stockholder Shares
being offered, the Transferring Stockholder may, within 90 days after the
expiration of the Election Period, transfer such Stockholder Shares to one or
more third parties at a price no less than 95% of the price per share specified
in the Offer Notice. The purchase price specified in any Offer Notice shall be
payable solely in cash at the closing of the transaction or in installments over
time, and no Stockholder Shares may be pledged without the prior written consent
of the Investors, which consent may be withheld in their sole discretion. Each
Stockholder's "Pro Rata Share" shall be based upon such Stockholder's
proportionate ownership of all Stockholder Shares on a fully-diluted basis.
(d) The restrictions contained in this paragraph 3 shall not apply with
respect to any Transfer of Stockholder Shares by any United Stockholder pursuant
to applicable laws of descent and distribution or among such Stockholder's
Family Group or (ii) among its Affiliates; provided that the restrictions
contained in this paragraph 3 shall continue to be applicable to the Stockholder
Shares after any such Transfer and provided further that the
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transferees of such Stockholder Shares shall have agreed in writing to be bound
by the provisions of this Agreement affecting the Stockholder Shares so
transferred. "Family Group" means a Stockholder's spouse and descendants
(whether natural or adopted) and any trust solely for the benefit of the
Stockholder and/or the Stockholder's spouse and/or descendants. "Affiliate" of a
Stockholder means any other person, entity or investment fund controlling,
controlled by or under common control with an Investor and any partner of an
Investor which is a partnership; and, in the case of BT, "Affiliate" of BT shall
also include any entity controlled by individuals who, immediately prior to any
applicable transfer, are officers of BT.
(e) The restrictions on transfer set forth in this paragraph 3 shall
continue with respect to each Stockholder Share of the United Stockholders until
the consummation of a Qualified Public Offering.
4. Holdback Agreement. Each United Stockholder agrees not to effect any
public sale or distribution of the Company's equity securities, or any
securities convertible into or exchangeable or exercisable for such securities,
during the seven days prior to and the 120-day period beginning on the effective
date of any underwritten registration of the Common Stock, including an initial
public offering thereof, or any underwritten Piggyback Registration (as defined
in the Registration Agreement dated as of the date hereof between the Investors
and the Company) unless the underwriters managing the registration otherwise
agree. The restrictions on the transfer of Stockholder Shares set forth in this
paragraph 4 shall continue with respect to each Stockholder Share until the date
on which such Stockholder Share has been transferred in a Qualified Public
Offering.
5. Legend. Each certificate evidencing Stockholder Shares and each
certificate issued in exchange for or upon the transfer of any Stockholder
Shares (if such shares remain Stockholder Shares as defined herein after such
transfer) shall be stamped or otherwise imprinted with a legend in substantially
the following form:
"The securities represented by this certificate are
subject to an Amended and Restated Stockholders Agreement
dated as of
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June 22, 1995 by and among the issuer of such
securities (the "Company"), as amended, and
certain of the Company's stockholders. A copy
of such Stockholders Agreement will be furnished
without charge by the Company to the holder hereof
upon written request."
The legend set forth above shall be removed from the certificates
evidencing any shares which cease to be Stockholder Shares in accordance with
paragraph 7 hereof.
6. Transfer. Prior to transferring any Stockholder Shares (other than in a
Qualified Public Offering) to any person or entity, including transfers pursuant
to the Xxxxxxxxxxx Option, the Montville Option or the Xxxx Option, the
transferring Stockholder shall cause the prospective transferee to execute and
deliver to the Company and the other Stockholders a counterpart of this
Agreement.
7. Definitions. Unless otherwise defined herein, each capitalized term used
herein shall have the meaning given such term in the Purchase Agreement.
"BT Common Stock" means (i) the Common Stock issued to BT pursuant to the
Purchase Agreement and (ii) any Common Stock issued or issuable with respect to
the Common Stock referred to in clause (i) foregoing by way of stock dividends
or stock splits or in connection with a combination of shares, recapitalization,
merger, consolidation or other reorganization.
"Chemical Common Stock" means (i) the Common Stock issued to Chemical
pursuant to the Purchase Agreement or the First Purchase Agreement and (ii) any
Common Stock issued or issuable with respect to the Common Stock referred to in
clause (i) foregoing by way of stock dividends or stock splits or in connection
with a combination of shares, recapitalization, merger, consolidation or other
reorganization.
"CIBC Common Stock" means (i) the Common Stock issued to CIBC pursuant to
the Purchase Agreement or the First Purchase Agreement and (ii) any Common Stock
issued or issuable with respect to the Common Stock referred to in clause (i)
foregoing by way of stock dividends or stock splits or in connection with a
combination
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of shares, recapitalization, merger, consolidation or other reorganization.
"Xxxxxxx Common Stock" means (i) the Common Stock issued to Xxxxxxx
pursuant to the Purchase Agreement or the First Purchase Agreement and (ii) any
Common Stock issued or issuable with respect to the Common Stock referred to in
clause (i) foregoing by way of stock dividends or stock splits or in connection
with a combination of shares, recapitalization, merger, consolidation or other
reorganization.
"Investor" means any of CIBC, Chemical, Xxxxxxx, XX, Northwood Capital,
Northwood Ventures and Prime; and "Investors" means all of such Persons,
collectively.
"Investor Common Stock" means (i) the Common Stock issued to the Investors
pursuant to the Purchase Agreement or First Purchase Agreement and (ii) any
Common Stock issued or issuable with respect to the Common Stock referred to in
clause (i) foregoing by way of stock dividends or stock splits or in connection
with a combination of shares, recapitalization, merger, consolidation or other
reorganization.
"Northwood Capital Common Stock" means (i) the Common Stock issued to
Northwood Capital pursuant to the Purchase Agreement and (ii) any Common Stock
issued or issuable with respect to the Common Stock referred to in clause (i)
foregoing by way of stock dividends or stock splits or in connection with a
combination of shares, recapitalization, merger, consolidation or other
reorganization.
"Northwood Ventures Common Stock" means (i) the Common Stock issued to
Northwood Ventures pursuant to the Purchase Agreement and (ii) any Common Stock
issued or issuable with respect to the Common Stock referred to in clause (i)
foregoing by way of stock dividends or stock splits or in connection with a
combination of shares, recapitalization, merger, consolidation or other
reorganization.
"Prime Common Stock" means (i) the Common Stock issued to Prime pursuant to
the Purchase Agreement and (ii) any Common Stock issued or issuable with respect
to the Common Stock referred to in clause (i) foregoing by way of stock
dividends or stock splits or
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in connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization.
"Oualified Public Offering" means the sale in an underwritten public
offering registered under the Securities Act of shares of Common Stock which
would result in at least 20% of the shares of Common Stock outstanding after
such offering having been registered pursuant to the Securities Act, with such
shares outstanding having an aggregate value of at least $20 million; provided
that upon consummation thereof the Common Stock is listed on a national
securities exchange or the NASDAQ National Market System.
"Securities Act" means the Securities Act of 1933, as amended from time to
time.
"Stockholder Shares" means (i) any Common Stock purchased or otherwise
acquired by any Stockholder and (ii) any equity securities issued or issuable
directly or indirectly with respect to the Common Stock referred to in clause
(i) above by way of stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or other
reorganization. As to any particular shares constituting Stockholder Shares,
such shares will cease to be Stockholder Shares when they have been (x)
effectively registered under the Securities Act and disposed of in accordance
with the registration statement covering them or (y) sold to the public through
a broker, dealer or market maker pursuant to Rule 144 (or any similar provision
then in force) under the Securities Act.
8. Transfers in Violation of Agreement. Any transfer or attempted transfer
of any Stockholder Shares in violation of any provision of this Agreement shall
be void, and the Company shall not record such transfer on its books or treat
any purported transferee of such Stockholder Shares as the owner of such shares
for any purpose.
9. Sale of the Company. If the Board and the holders of 66 2/3% of the
shares of Investor Common Stock then outstanding approve a sale of all or
substantially all of the Company's assets determined on a consolidated basis or
a sale of all or substantially all of the Company's outstanding capital stock
(whether by merger, recapitalization, consolidation,
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reorganization, combination or otherwise) to any other person or entity
(collectively an "Approved Sale"), each Stockholder shall vote for, consent to
and raise no objections against such Approved Sale. If the Approved Sale is
structured as a (i) merger or consolidation, each Stockholder shall waive any
dissenters rights, appraisal rights or similar rights in connection with such
merger or consolidation or (ii) sale of stock, each Stockholder shall agree to
sell all of his shares of Common Stock and rights to acquire shares of Common
Stock on the terms and conditions approved by the Board and the holders of
66 2/3% of the Investor Common Stock then outstanding. Each Stockholder shall
take all necessary or desirable actions in connection with the consummation of
the Approved Sale as requested by the Company.
10. Representations and Warranties. Each of the undersigned United
Stockholders hereby represents and warrants to United and each of the Investors
that he holds, free and clear of any liens, charges and encumbrances, the number
of shares of Common Stock set forth opposite his name on the "Schedule of United
Stockholders" hereto. Based upon the foregoing representation, the Company
hereby represents and warrants to the Investors that the undersigned United
Stockholders hold a majority of the outstanding Stockholder Shares which are not
Investor Common Stock.
11. Amendment and Waiver. Except as otherwise provided herein, no
modification, amendment or waiver of any provision of this Agreement shall be
effective against the Company or the Stockholders unless such modification,
amendment or waiver is approved in writing by the Company, the holders of
66 2/3% of the outstanding Investor Common Stock and the holders of a majority
of the Stockholder Shares which are not Investor Common Stock; provided that no
modification, amendment or waiver of any provision of this Agreement which (A)
adversely affects (i) the ability of the holders of a majority of the
outstanding shares of CIBC Common Stock, Chemical Common Stock, Xxxxxxx Common
Stock, BT Common Stock or Prime Common Stock, respectively, to designate or
remove any CIBC Director, Chemical Director, Xxxxxxx Director, BT Director, or
Prime Director, respectively, (ii) the obligation of any Stockholder pursuant to
paragraph 2 above with respect to the election or removal of any such person as
a director, respectively, or (iii) the obligation of the Company, directly or
indirectly through its Subsidiaries, to elect a designee of such holder to the
board of directors of each of the Company's Subsidiaries pursuant
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to the terms of this Agreement as in effect on the date hereof, or (B) directly
or indirectly modifies, amends or waives Section 9 above in any respect, shall
be effective without the prior written consent of the holders of a majority of
the outstanding shares of CIBC Common Stock, Chemical Common Stock, Xxxxxxx
Common Stock, BT Common Stock or Prime Common Stock, respectively. The failure
of any party to enforce any of the provisions of this Agreement shall in no way
be construed as a waiver of such provisions and shall not affect the right of
such party thereafter to enforce each and every provision of this Agreement in
accordance with its terms.
12. Severability. Whenever possible, each provision of this Agreement shall
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or any other jurisdiction, but this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
13. Entire Agreement. Except as otherwise expressly set forth herein, this
document embodies the complete agreement and understanding among the parties
hereto with respect to the subject matter hereof and supersedes and preempts any
prior understandings, agreements or representations by or among the parties,
written or oral, which may have related to the subject matter hereof in any way.
14. Successors and Assigns. Except as otherwise provided herein, this
Agreement shall bind and inure to the benefit of and be enforceable by the
Company and its successors and assigns and the Stockholders and any subsequent
holders of Stockholder Shares and the respective successors and assigns of each
of them, so long as they hold Stockholder Shares.
15. Counterparts. This Agreement may be executed in separate counterparts
each of which shall be an original and all of which taken together shall
constitute one and the same agreement.
16. Remedies. The Company, the Investors and the United Stockholders shall
be entitled to enforce their rights under this
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Agreement specifically to recover damages by reason of any breach of any
provision of this Agreement and to exercise all other rights existing in their
favor. The parties hereto agree and acknowledge that money damages may not be an
adequate remedy for any breach of the provisions of this Agreement and that the
Company, any Investor and any United Stockholder may in its sole discretion
apply to any court of law or equity of competent jurisdiction for specific
performance and/or injunctive relief (without posting a bond or other security)
in order to enforce or prevent any violation of the provisions of this
Agreement.
17. Notices. Any notice provided for in this Agreement shall be in writing
and shall be either personally delivered, or mailed first class mail (postage
prepaid) or sent by reputable overnight courier service (charges prepaid) to the
Company at the address set forth below and to any other recipient at the address
indicated on the schedules hereto and to any subsequent holder of Stockholder
Shares subject to this Agreement at such address as indicated by the Company's
records, or at such address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
Notices will be deemed to have been given hereunder when delivered personally,
three days after deposit in the U.S. mail and one day after deposit with a
reputable overnight courier service. The Company's address is:
United USN, Inc.
00 Xxxxx Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
18. Governing Law. The corporate law of the State of Delaware shall govern
all issues concerning the relative rights of the Company and its stockholders.
All other questions concerning the construction, validity and interpretation of
this Agreement shall be governed by the internal law, and not the law of
conflicts, of the State of New York.
19. Descriptive Headings. The descriptive headings of this Agreement are
inserted for convenience only and do not constitute a part of this Agreement.
-16-
20. Execution of this Agreement by Prime. By executing this Agreement,
Prime assumes all of the obligations, and inures to all of the benefits, of an
Investor and a Stockholder hereunder.
* * * * *
-17-
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first written above.
UNITED USN, INC.
/s/ Xxxxxx X. Xxxxxxxxxxx
-----------------------------
By: Xxxxxx X. Xxxxxxxxxxx
Its: Chief Executive Officer
BT CAPITAL PARTNERS, INC.
_________________________________
By:______________________________
Its:_____________________________
CIBC WOOD GUNDY VENTURES, INC.
______________________________
By: Xxxxxxx X. Xxxxxx
Its: President
XXXXXXX VENTURE PARTNERS IV - DIRECT FUND
L.P.
By: Back Bay Partners XII L.P.
By: Xxxxxxx Venture
Partners, Inc.
_________________________________
By:______________________________
Its:_____________________________
CHEMICAL VENTURE CAPITAL
ASSOCIATES
_________________________________
By:______________________________
Its:_____________________________
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
first written above.
UNITED USN, INC.
_________________________________
By: Xxxxxx X. Xxxxxxxxxxx
Its: Chief Executive Officer
BT CAPITAL PARTNERS, INC.
/s/ Xxxx X. Xxxxxxxxx
_________________________________
By:______________________________
Its:_____________________________
CIBC WOOD GUNDY VENTURES, INC.
_________________________________
By: Xxxxxxx X. Xxxxxx
Its: President
XXXXXXX VENTURE PARTNERS IV -
DIRECT FUND L.P,
By: Back Bay Partners XII L.P.
By: Xxxxxxx Venture Partners, Inc.
_________________________________
By:______________________________
Its:_____________________________
CHEMICAL VENTURE CAPITAL
ASSOCIATES
_________________________________
By:______________________________
Its:_____________________________
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
first written above.
UNITED USN, INC.
_________________________________
By: Xxxxxx X. Xxxxxxxxxxx
Its: Chief Executive Officer
BT CAPITAL PARTNERS, INC.
________________________________
By:______________________________
Its:_____________________________
CIBC WOOD GUNDY VENTURES, INC.
/s/ Xxxxxxx X. Xxxxxx
_________________________________
By: Xxxxxxx X. Xxxxxx
Its: President
XXXXXXX VENTURE PARTNERS IV - DIRECT FUND L.P.
By: Back Bay Partners XII L.P.
By: Xxxxxxx Venture Partners, Inc.
_________________________________
By:______________________________
Its:_____________________________
CHEMICAL VENTURE CAPITAL ASSOCIATES
_________________________________
By:______________________________
Its:_____________________________
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
first written above.
UNITED USN, INC.
_________________________________
By: Xxxxxx X. Xxxxxxxxxxx
Its: Chief Executive Officer
BT CAPITAL PARTNERS, INC.
_________________________________
By:______________________________
Its:_____________________________
CIBC WOOD GUNDY VENTURES, INC.
_________________________________
By: Xxxxxxx X. Xxxxxx
Its: President
XXXXXXX VENTURE PARTNERS IV - DIRECT FUND L.P.
By: Back Bay Partners XII L.P.
By: Xxxxxxx Venture Partners, Inc.
/s/ Xxxxxxx X. Xxxxxxxx
_________________________________
By: Xxxxxxx X. Xxxxxxxx
Its: S.V.P.
_____________________________
CHEMICAL VENTURE CAPITAL ASSOCIATES
_________________________________
By:______________________________
Its:_____________________________
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
first written above.
UNITED USN, INC.
_________________________________
By: Xxxxxx X. Xxxxxxxxxxx
Its: Chief Executive Officer
BT CAPITAL PARTNERS, INC.
_________________________________
By:______________________________
Its:_____________________________
CIBC WOOD GUNDY VENTURES, INC.
_________________________________
By: Xxxxxxx X. Xxxxxx
Its: President
XXXXXXX VENTURE PARTNERS IV - DIRECT FUND L.P.
By: Back Bay Partners XII L.P.
By: Xxxxxxx Venture Partners, Inc.
_________________________________
By:______________________________
Its:_____________________________
CHEMICAL VENTURE CAPITAL ASSOCIATES
/s/ Xxxxxx X. Xxxxxxx, Xx.
_________________________________
By:______________________________
Its:_____________________________
ENTERPRISES & TRANSCOMMUNICATIONS, L.P.
By: Prime Enterprises, L.P.
By: Prime New Ventures Management, L.P.
By: Prime II Management, L.P.
By: Prime II Management, Inc.
/s/ Xxxxxxx X. Xxxxxxx
_______________________________________
By:____________________________________
Its:___________________________________
NORTHWOOD CAPITAL PARTNERS LLC
_______________________________________
By:____________________________________
Its:___________________________________
NORTHWOOD VENTURES
_______________________________________
By:____________________________________
Its:___________________________________
XXXXXX X. XXXXXXXXXXX
_______________________________________
XXXXXX X. XXXXXXXXXXX, as Trustee for
Xxxxx X. Xxxxxxxxx
_______________________________________
ENTERPRISES & TRANSCOMMUNICATIONS, L.P.
By: Prime Enterprises, L.P.
By: Prime New Ventures Management, L.P.
By: Prime II Management, L.P.
By: Prime II Management, Inc.
_______________________________________
By:____________________________________
Its:___________________________________
NORTHWOOD CAPITAL PARTNERS LLC
/s/ Xxxxx X. Xxxxxx
_______________________________________
By:
____________________________________
Its: Chairman and CEO
___________________________________
NORTHWOOD VENTURES
/s/ Xxxxx X. Xxxxxx
_______________________________________
By:
____________________________________
Its: General Partner
___________________________________
XXXXXX X. XXXXXXXXXXX
_______________________________________
XXXXXX X. XXXXXXXXXXX, as Trustee for
Xxxxx X. Xxxxxxxxx
_______________________________________
ENTERPRISES & TRANSCOMMUNICATIONS, L.P.
By: Prime Enterprises, L.P.
By: Prime New Ventures Management, L.P.
By: Prime II Management, L.P.
By: Prime II Management, Inc.
_______________________________________
By:____________________________________
Its:___________________________________
NORTHWOOD CAPITAL PARTNERS LLC
_______________________________________
By:____________________________________
Its:___________________________________
NORTHWOOD VENTURES
_______________________________________
By:____________________________________
Its:___________________________________
XXXXXX X. XXXXXXXXXXX
/s/ Xxxxxx X. Xxxxxxxxxxx
_______________________________________
XXXXXX X. XXXXXXXXXXX, as Trustee for
Xxxxx X. Xxxxxxxxx
/s/ Xxxxxx X. Xxxxxxxxxxx
_______________________________________
SCHEDULE OF INVESTORS
---------------------
CIBC Wood Gundy Ventures, Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxx, President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Chemical Venture Capital Associates
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxx, Xx.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Xxxxxxx Venture Partners IV - Direct Fund L.P.
Xxx Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
BT Capital Partners, Inc.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Northwood Capital Partners LLC
000 Xxxxxxxxx Xxxx.
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Northwood Ventures
000 Xxxxxxxxx Xxxx.
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
-21-
Enterprises & Transcommunications, L.P.
600 Congress, Suite 0000
Xxx Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx Fennewalt
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
SCHEDULE OF UNITED STOCKHOLDERS
-------------------------------
First Continental Capital Corporation
0000 Xxxxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: C. Xxxxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Xxxxxx X. Xxxxxxxxxxx
00 X. Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Xxxxxx X. Xxxxxxxxxxx, as Trustee for
Xxxxx X. Xxxxxxxxx
00 X. Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Xxxxx Xxxxxxx
00000 Xxxxxxxxxx
Xxxxxxx Xxxxx, XX 00000
Xxxxxx Xxxxxxx
0 Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Xxxxxx Xxxxxxxxx
0000 Xxxxxxxxx Xxxx
Xxx Xxxxxxx, XX 00000
Xxxxx XxXxxxxx
-22-
0000 00xx Xxx. Xxxxx
Xxxxxxxx Xxxxxx, XX 00000
Xxxxxx Xxxxxx
00-00 000xx Xxxxxx
Xxxxxxxx, XX 00000
Xxx Xxxxxxxxxx
0 Xxxxxxxxxx Xxxx X.
Xxx Xxxxx, XX 00000
Al Dentale, Jr.
00 Xxxx'x Xxxx
Xxxxxxx, XX 00000
Demo Cervelli
00 Xxxx Xxxxxx
Xxxxx, XX 00000
Xxxxx Xxxxxxx
0 Xxxxxxx Xxxx
Xxx Xxxxx, XX 00000
Xxxxx Xxxxxxxxx
000 Xxxxx Xxx Xxxxx Xxxx
Xxxxx Xxxxx, XX 00000
-23-
