AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
THIS AGREEMENT is made as of June 22, 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") and Northwood Ventures, a New York
limited partnership ("Northwood Ventures", and collectively with CIBC, Chemical,
Xxxxxxx and 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 are parties to a Purchase Agreement with the Company of
even date herewith (as amended hereafter in accordance with its terms, the
"Purchase Agreement") pursuant to which the Investors 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 Company, CIBC, Chemical, Xxxxxxx and the United
Stockholders are parties to a Stockholders Agreement dated as of April 20, 1994,
as amended (the "Original Agreement"), which agreement such parties executed 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. Under the terms of the Original Agreement, such agreement may be amended
with the consent of 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. 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 the Investors' purchase of the
Common Stock and Preferred Stock pursuant to the Purchase Agreement. This
Agreement shall become effective upon the consummation of the Closing (as
defined in the Purchase Agreement) pursuant to the Purchase Agreement.
Pursuant to the Purchase Agreement, Prime Cable and/or one or more of
its controlled Affiliates (collectively, "Prime") may purchase certain shares of
the Common Stock and Preferred Stock at the Second Closing.
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 six directors (provided that, upon
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, 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
(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) or
(E) of paragraph l(a)(ii) above and not more than four (4) other persons; (the
"CIBC Director");
(A) one representative designated by the holders of Chemical
Common Stock, determined by a vote of the holders of a majority of the
outstanding shares of Chemical Common Stock (the "Chemical Director");
(B) 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");
(C) 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");
(D) 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
(E) 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");
(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;
(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), or (E) of paragraph l(a)(ii) above and not more
than four (4) other persons;
(vi) 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) or (E)
of paragraph l(a)(ii) above and not more than four (4) other persons;
(vii) 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) or (E) 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;
(viii) 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
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Company and its subsidiaries, such director shall be removed as a director
promptly after his employment ceases; and
(ix) in the event that any representative designated hereunder by the
holders of CIBC Common Stock, Chemical Common 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
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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 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
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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 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
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the holders of the Investor Common Stock and BT 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.
(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.
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(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
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.
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(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
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
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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 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,
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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 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 and, upon
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, 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 Original 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
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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.
"Qualified 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
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substantially all of the Company's outstanding capital stock (whether by merger,
recapitalization, consolidation, 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
adversely affects the ability of the holders of a majority of the outstanding
shares of BT Common Stock to designate, elect or remove any BT Director or Sub
Director pursuant to the terms of this Agreement as in effect on the date
hereof, or which 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 BT Common Stock. The
failure of any party to enforce any of the provisions of this Agreement shall in
no way be
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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 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
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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.
20. Execution of this Agreement by Prime. By executing a counterpart
to this Agreement, Prime assumes all of the obligations, and inures to all of
the benefits, of an Investor and a Stockholder hereunder.
* * * * *
-16-
IN WITNESS WHEREOF, the parties have executed this Agreement 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.
/s/ Xxxx X. Xxxxxxxxx
-----------------------------------
By:
Its:
CIBC WOOD GUNDY VENTURES, INC.
/s/ Xxxxxxx X. Xxxxxx
-----------------------------------
By: Xxxxxxx X. Xxxxxx
Its: President
CHEMICAL VENTURE CAPITAL ASSOCIATES
/s/ Xxxxxx X. Xxxxxxx, Xx.
-----------------------------------
By:
Its:
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:
Its:
NORTHWOOD CAPITAL PARTNERS LLC
/s/ Xxxxx X. Xxxxxx
-------------------------------
By: Xxxxx X. Xxxxxx
---------------------------
Its: President
---------------------------
NORTHWOOD VENTURES
/s/ Xxxxx X. Xxxxxx
-------------------------------
By: Xxxxx X. Xxxxxx
---------------------------
Attorney-in-fact for
Xxxxx X. Xxxxxx
Its: General Partner
---------------------------
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
-20-
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
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
-21-
A1 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
-22-
