EXHIBIT 10.12
AMENDMENT NO. 9
TO
TRANSACTION AGREEMENT
This Amendment No. 9 ("AMENDMENT") to the Transaction Agreement dated as of
July 8, 1998, as amended by Amendment No. 1 dated as of December 18, 1998, by
Amendment No. 2 dated as of February 18, 1999, by Amendment No. 3 dated as of
May 14, 1999, by Amendment No. 4 dated as of June 30, 1999, by Amendment No. 5
dated as of June 30, 1999, by Amendment No. 6 dated as of November 18, 1999, by
Amendment No. 7 dated as of August 1, 2000, and by Amendment No. 8 dated as of
December 20, 2000 (the "ORIGINAL AGREEMENT"), is made as of March 13, 2001,
among Choice One Communications Inc. (the "CORPORATION") and the persons listed
on the signature pages hereto.
WHEREAS, the parties now desire to amend the Original Agreement to remove
certain obligations, restrictions and limitations contained in the Original
Agreement as they relate to Caravelle, First Union Capital Partners, Inc.,
General Electric and R. Xxxxxx Silver and to clarify certain provisions of the
Original Agreement;
NOW, THEREFORE, the parties hereto hereby agree as follows:
SECTION 1. Amendment of Section 5.05. Section 5.05 of the Original
Agreement is hereby amended and restated as follows:
"Section 5.05. Termination. The rights and requirements under
Section 5.01 and 5.02 shall terminate upon the earlier to occur of (i)
consummation of the initial Public Offering approved under Section
5.02 of the LLC Agreement and (ii) the closing of a Sale of the
Corporation. The provisions of Section 5.03(k) shall terminate with
respect to Caravelle, First Union Capital Partners, Inc., General
Electric and R. Xxxxxx Silver on March 8, 2001, and Section 5.03 shall
terminate in its entirety upon the closing of a Sale of the
Corporation. The provisions of Section 5.04 shall survive the
termination of the other provisions of this Agreement."
SECTION 2. New Section 6.01(d). A new section 6.01(d) is hereby added to
the Original Agreement to read as follows:
"(d) The Corporation may, by Board approval, waive the
delivery of any opinion required by this Section 6.01(d)."
SECTION 3. Equity Definitions. Clause (b) of the last sentence of each of
the definitions of Fleet Equity, Investor Equity, MSCP Equity and Xxxxxx-Xxxxxx
Equity in Section 8.01 of the Original Agreement is hereby amended to read as
follows:
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". . . (b) distributed to the public after a Public Offering through a
broker, dealer or market maker pursuant to Rule 144 in compliance with
Article 6 in a transaction that is not (i) in excess of the volume
limitations of Rule 144 or (ii) a block trade by any holder of Investor
Equity who cannot at the time of the block trade immediately Transfer
all of the Investor Equity held by such holder without exceeding the
volume limitations of Rule 144 . . ."
SECTION 4. Definition of Private Tag Transaction. Clause (iii) of the
definition of Private Tag Transaction in Section 8.01 of the Original Agreement
is hereby amended to read as follows:
". . . (iii) pursuant to Rule 144 effected after the initial Public
Offering that is not (x) in excess of the volume limitations of Rule
144 or (y) a block trade by any holder of Investor Equity who cannot at
the time of the block trade immediately Transfer all of the Investor
Equity held by such holder without exceeding the volume limitations of
Rule 144 . . ."
SECTION 5. Other Defined Terms. Capitalized terms used in this Amendment
and not otherwise defined have the meanings ascribed to them in the Original
Agreement.
SECTION 6. Effectiveness; Effect of Amendment; Governing Law. Except as
amended hereby, the Original Agreement shall remain unchanged. The Original
Agreement, as amended hereby, shall remain in full force and effect. This
Amendment shall be governed by, and construed under, the laws of the State of
Delaware, all rights and remedies being governed by said laws, without regard to
conflict of laws principles.
SECTION 7. Counterparts. This Amendment may be executed simultaneously in
two or more counterparts, any one of which need not contain the signatures of
more than one party, but all such counterparts taken together shall constitute
one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first written above.
CHOICE ONE COMMUNICATIONS INC.
By: /S/ XXXXX X. XXXXXX
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Xxxxx X. Xxxxxx
Its: Chairman and Chief Executive Officer
MANAGEMENT MEMBERS
/S/ XXXXX X. XXXXXX
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Xxxxx X. Xxxxxx, as a Management
Member and as Chief Executive Officer of
Choice One Communications Inc.
/S/ XXX XXXXXX-XXX
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Xxx Xxxxxx-Xxx
/S/ XXXXX XXXXXXX
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Xxxxx Xxxxxxx
/S/ XXXXXX XXXXXX
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Xxxxxx Xxxxxx
/S/ XXXX XXXXXXXXX
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Xxxx Xxxxxxxxx
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INVESTOR MEMBERS
XXXXXX XXXXXXX CAPITAL PARTNERS III, L.P.
By MSCP III, LLC, its general partner
By Xxxxxx Xxxxxxx Capital Partners III, Inc., its
Member
By /S/ XXXX XXXXXXXXXX
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Its MANAGING DIRECTOR
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By
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Its
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MSCP III 892 INVESTORS, L.P.
By MSCP III, LLC, its general partner
By Xxxxxx Xxxxxxx Capital Partners III, Inc., its
Member
By /S/ XXXX XXXXXXXXXX
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Its MANAGING DIRECTOR
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By
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Its
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XXXXXX XXXXXXX CAPITAL INVESTORS, L.P.
By MSCP III, LLC, its general partner
By Xxxxxx Xxxxxxx Capital Partners III, Inc., its
Member
By /S/ XXXX XXXXXXXXXX
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Its MANAGING DIRECTOR
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By
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Its
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XXXXXX XXXXXXX XXXX XXXXXX CAPITAL PARTNERS IV, L.P.
By MSDW Capital Partners IV, LLC, its
general partner
By MSDW Capital Partners IV, Inc., its Member
By /S/ XXXX XXXXXXXXXX
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Its MANAGING DIRECTOR
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By
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Its
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MSDW IV 892 INVESTORS, L.P.
By MSDW Capital Partners IV, LLC, its general
partner
By MSDW Capital Partners IV, Inc., its Member
By /S/ XXXX XXXXXXXXXX
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Its MANAGING DIRECTOR
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By
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Its
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XXXXXX XXXXXXX XXXX XXXXXX CAPITAL INVESTORS IV,
L.P.
By MSDW Capital Partners IV LLC, its
general partner
By MSDW Capital Partners IV, Inc., its Member
By /S/ XXXX XXXXXXXXXX
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Its MANAGING DIRECTOR
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By
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Its
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XXXXXXXX PARTNERS III, L.P.
By Silverado III, L.P., its General Partner
By Silverado III Corp., its General Partner
By /S/ XXXXXX X. XXX XXXXX
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Xxxxxx X. Xxx Xxxxx
Chairman & CEO
XXXXXXX PLAZA PARTNERS
By /S/ XXXXXX X. XXX XXXXX
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Xxxxxx X. Xxx Xxxxx
Managing General Partner
FLEET VENTURE RESOURCES, INC.
By /S/ XXXXXX X. XXX XXXXX
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Xxxxxx X. Xxx Xxxxx
Chairman & CEO
FLEET EQUITY PARTNERS VI, L.P.
By Fleet Growth Resources II, Inc., its
General Partner
By /S/ XXXXXX X. XXX XXXXX
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Xxxxxx X. Xxx Xxxxx
Chairman & CEO
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XXXXXX-XXXXXX MEDIA PARTNERS, L.P.
By Xxxxxx Xxxxxx Media, L.L.C. its general partner
By /s/ Xxxxx Xxxxxxxxx
Xxxxx Xxxxxxxxx
Chief Executive Officer
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