EXHIBIT 3
AMENDMENT NO. 1 TO THE SERIES B PREFERRED STOCK PURCHASE
AGREEMENT AND ASSIGNMENT AND ASSUMPTION
This Amendment No. 1 to the Series B Preferred Stock Purchase Agreement
and Assignment and Assumption is made as of April 12, 2000 by and among the
following:
(i) CTC Communications Group, Inc., a Delaware corporation (the
"Company");
(ii) each of the Persons listed on the signature pages hereto as
an Original Purchaser (each, individually an "Original
Purchaser," and collectively, the "Original Purchasers");
and
(iii) each of the Persons listed on the signature pages hereto as
Additional Purchasers (each, individually an "Additional
Purchaser," and collectively, the "Additional Purchasers").
WITNESSETH:
WHEREAS, the Company and the Original Purchasers have entered into
a Series B Preferred Stock Purchase Agreement dated as of March 22, 2000
(the "Purchase Agreement") and now desire to modify the Purchase Agreement
as set forth herein;
WHEREAS, the Original Purchasers desire to assign, pursuant to
Section 8.2 of the Purchase Agreement (as modified hereby, the "Amended
Purchase Agreement"), a portion of their rights to purchase shares of
Series B Preferred Stock to the Additional Purchasers; and
WHEREAS, the Additional Purchasers wish to accept such assignment
and to join the Amended Purchase Agreement as Purchasers;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth below, the parties hereto agree as
follows:
1. Definitions. Capitalized terms used but not defined herein shall
have the meanings assigned to those terms in the Purchase Agreement.
2. Amendments to the Purchase Agreement.
2.1 Section 4.1.10 of the Purchase Agreement hereby is
amended and restated in its entirety as follows:
"4.1.10. Board of Directors. The Company shall have
taken all the steps necessary to cause the individuals
designated pursuant to Section 5.3.2 to be elected to the
Board of Directors immediately after the Closing."
2.2 Section 5 of the Purchase Agreement hereby is amended by
inserting the phrase ", as adjusted as appropriate to reflect stock
splits, stock combinations, stock dividends, stock
reclassifications or similar events" in the following places: (a)
in Section 5.3.1(ii) immediately after the phrase "(or Common Stock
into which such Preferred Stock was convertible)", (b) in Section
5.3.1(iii) immediately after the phrase "(or Common Stock into
which such Preferred Stock was convertible)", (c) in Section 5.3.2
immediately after the phrase "(or Common Stock into which such
Preferred Stock was convertible)", (d) in Section 5.3.7 immediately
after the phrase "(or Common Stock into which such Preferred Stock
was convertible)" each time it appears therein, (e) in Section 5.5
immediately after the phrase "50% of the shares of Preferred Stock
issued on the Closing Date", and (f) in Section 5.6.2 immediately
after the phrase "30% of the shares of Series B Preferred Stock
issued on the Closing Date".
2.3 Section 5.5 of the Purchase Agreement hereby is amended
by deleting the phrase "provided, however, that notwithstanding the
foregoing the Purchasers and subsequent holders of the Securities
may Transfer Shares" and replacing it with the phrase "provided,
however, that notwithstanding the foregoing the Purchasers and
subsequent holders of the Securities may Transfer Securities".
2.4 Section 8.2 of the Purchase Agreement hereby is amended
by deleting the phrase "one-third" each time it occurs therein and
replacing it in each case with the phrase "thirty-seven and
one-half percent (37.5%)" and by deleting the phrase "within ten
days" appearing therein and replacing it with the phrase "within 21
days".
2.5 Exhibit A to the Purchase Agreement shall be amended and
restated in its entirety as set forth in Exhibit A attached hereto.
2.6 Exhibit B to the Purchase Agreement (Certificate of
Designation) hereby is amended as follows:
2.6.1 By deleting the phrase "Series B or Series C
Preferred Stock" each time it occurs in the Section 2 in the
definition of "Change of Control" and replacing it in each
instance with the phrase "Series B Preferred Stock" and by
deleting the phrase "or similar provisions in any Agreement
relating to the Series C Preferred Stock" also appearing in
such definition;
2.6.2 By deleting the definition of "Series C
Preferred Stock" appearing in Section 2;
2.6.3 By deleting the phrase "plus an amount equal to
all dividends accrued and unpaid thereon to the date fixed
for redemption, whether declared or undeclared" appearing in
clause (a) of Section 6.1;
2.6.4 By deleting the following appearing in Section
8.10.2:
"(B) as consideration for the acquisition of a
business or of assets, (C) in a firmly committed
underwritten public offering, (D) to the Corporation's joint
venture partners in exchange for interests in the relevant
joint venture, (E) issued in connection with issuances of
debt registered under the Securities Act of 1933, as
amended, or in a transaction not requiring registration
pursuant to Rule 144A thereunder or (F) upon exercise or
conversion of any security the issuance of which caused an
adjustment under Section 8.10.1, 8.10.3 or 8.10.4 hereof or
the issuance of which did not require adjustment
thereunder)"
and replacing it with the following:
"(B) as consideration for the acquisition of a
business or of assets, but only to the extent the aggregate
consideration for all such acquisitions consummated after
the Closing Date, for which the consideration per security
determined as set forth below is less than the Conversion
Price on the date of the relevant issuance, does not exceed
$200,000,000, (C) to the Corporation's joint venture
partners in exchange for interests in the relevant joint
venture, (D) issued in connection with issuances of debt
registered under the Securities Act of 1933, as amended, or
in a transaction not requiring registration pursuant to Rule
144A thereunder or (E) upon exercise or conversion of any
security the issuance of which caused an adjustment under
Section 8.10.1, 8.10.3 or 8.10.4 hereof or the issuance of
which did not require adjustment thereunder)";
2.6.5 By deleting the phrase "determined by dividing
the number of shares of Common Stock issuable upon exercise
or conversion of such rights, options, warrants or other
securities by the sum of" appearing in Section 8.10.2 and
replacing it with the phrase "determined by dividing (i) the
number of shares of Common Stock issuable upon exercise or
conversion of such rights, options, warrants or other
securities into (ii) the sum of";
2.6.6 By deleting the following appearing in Section
8.10.3:
"(B) as consideration for the acquisition of a
business or of assets, (C) in a firmly committed
underwritten public offering, (D) to the Corporation's joint
venture partners in exchange for interests in the relevant
joint venture, (E) issued in connection with issuances of
debt registered under the Securities Act of 1933, as
amended, or in a transaction not requiring registration
pursuant to Rule 144A thereunder (F) upon conversion of the
Series B Preferred Stock, (G) upon exercise of conversion of
any security outstanding as of the Closing Date or (H) upon
exercise or conversion of any security the issuance of which
caused an adjustment under Section 8.10.1, 8.10.2 or 8.10.4
hereof or the issuance of which did not require adjustment
thereunder)"
and replacing it with the following:
"(B) as consideration for the acquisition of a
business or of assets, but only to the extent the aggregate
consideration for all such acquisitions consummated after
the Closing Date, for which the consideration per share is
less than the Conversion Price on the date of the relevant
issuance, does not exceed $200,000,000, (C) to the
Corporation's joint venture partners in exchange for
interests in the relevant joint venture, (D) issued in
connection with issuances of debt registered under the
Securities Act of 1933, as amended, or in a transaction not
requiring registration pursuant to Rule 144A thereunder, (E)
upon conversion of the Series B Preferred Stock, (F) upon
exercise of conversion of any security outstanding as of the
Closing Date or (G) upon exercise or conversion of any
security the issuance of which caused an adjustment under
Section 8.10.1, 8.10.2 or 8.10.4 hereof or the issuance of
which did not require adjustment thereunder)";
2.6.7 By deleting the phrase "(the "Trigger Price")"
appearing in Sections 8.10.2 and 8.10.3;
2.6.8 By deleting the phrase "at the Trigger Price"
appearing in Sections 8.10.2 and 8.10.3 and replacing it in
each instance with the phrase "at the Conversion Price on
the date of such issuance"; and
2.6.9 By deleting the phrase "Section 4.6" appearing
in Section 8.10.5 and replacing it with the phrase "Section
4.5".
2.7 Exhibit C to the Purchase Agreement (Registration Rights
Agreement) hereby is amended as follows:
2.7.1 By inserting the phrase "the lesser of"
immediately before the phrase "20% or $30 million" appearing
in Section 2.a(i);
2.7.2 By deleting the phrase ", with rights to be
included therein," as it currently appears in clause (2) of
Section 5.a(i) and by inserting the phrase "with rights to
be included therein" in clause (2) of Section 5.a(i)
immediately after the phrase "Common Stock of all holders";
and
2.7.3 By inserting the phrase "(whether pursuant to
Section 2 or Section 3 hereof)" immediately before the
period at the end of Section 5.a(i).
3. Assignment. Pursuant to Section 8.2 of the Amended Purchase
Agreement, the Original Purchasers hereby assign (a) to the Additional
Purchasers listed on the signature pages hereto as Bain Funds (together,
the "Bain Funds") collectively the right to purchase an aggregate of
thirty-seven and one-half percent (37.5%) of the number of shares of Series
B Preferred Stock to be issued on the Closing Date; and (b) to the
Additional Purchasers listed on the signature pages hereto as TH Xxx
Investors (together, the "TH Xxx Investors") the right to purchase an
aggregate of thirty-seven and one-half percent (37.5%) of the number of
shares of Series B Preferred Stock to be issued on the Closing Date. The
Bain Funds shall be Bain Holders and Purchasers for all purposes under the
Amended Purchase Agreement and shall have the same rights as Purchasers as
if they were originally Purchaser parties thereto. The TH Xxx Investors
shall be THL Holders and Purchasers for all purposes under the Amended
Purchase Agreement and shall have the same rights as Purchasers as if they
were originally Purchaser parties thereto.
4. Acceptance and Assumption. The Bain Funds hereby accept the
assignment set forth in Section 3 and hereby assume all obligations, and
agree to be bound by all terms and conditions, of the Amended Purchase
Agreement as if they were originally Purchaser parties thereto. The TH Xxx
Investors hereby accept the assignment set forth in Section 3 and hereby
assume all obligations, and agree to be bound by all terms and conditions,
of the Amended Purchase Agreement as if they were originally Purchaser
parties thereto.
5. Further Assurances. Each of the Company, the Original Purchasers
and the Additional Purchasers agrees that it will execute and deliver such
other agreements and take such other action as is necessary to carry out
the terms and intent of this Agreement.
6. Incorporation of Certain Provisions of the Purchase Agreement.
The provisions of Section 8 of the Amended Purchase Agreement are
incorporated herein by reference as if such provisions were set forth in
full herein.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as
a sealed instrument as of the day and year first above written.
The Company: CTC COMMUNICATIONS GROUP, INC.
By: ________________________________
Name:
Title:
[Signatures continue on following page]
The Original Purchasers:
CREDIT SUISSE FIRST BOSTON EQUITY
PARTNERS, L.P.
By: Credit Suisse First Boston Advisory
Partners, LLC, as Investment Advisor
By:
Name:
Title:
Address for notices:
00 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
Xxxxxxx Xxxxxxxxxxx
CREDIT SUISSE FIRST BOSTON EQUITY
PARTNERS (BERMUDA), L.P.
By: Credit Suisse First Boston Advisory
Partners, LLC, as Investment Advisor
By:
Name:
Title:
Address for notices:
00 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
Xxxxxxx Xxxxxxxxxxx
CREDIT SUISSE FIRST BOSTON U.S.
EXECUTIVE ADVISORS, L.P.
By: Credit Suisse First Boston Advisory
Partners, LLC, as Investment Advisor
By:
Name:
Title:
Address for notices:
00 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
Xxxxxxx Xxxxxxxxxxx
EMA PRIVATE EQUITY FUND 1999, L.P.
By: Credit Suisse First Boston (Bermuda)
Limited, as General Partner
By:
Name:
Title:
Address for notices:
c/o Credit Suisse First Boston Advisory
Partners, LLC
00 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
Xxxxxxx Xxxxxxxxxxx
The Additional Purchasers:
The Bain Funds:
XXXX CAPITAL FUND VI, L.P.
By: Xxxx Capital Partners VI, L.P., its general
partner
By: Xxxx Capital Investors VI, Inc., its general
partner
By:
Name:
Title:
XXXX CAPITAL VI COINVESTMENT FUND, L.P.
By: Xxxx Capital Partners VI, L.P., its general
partner
By: Xxxx Capital Investors VI, Inc., its general
partner
By:
Name:
Title:
BCIP ASSOCIATES II
By: Xxxx Capital, Inc., its Managing Partner
By:
Name:
Title:
BCIP TRUST ASSOCIATES II
By: Xxxx Capital, Inc., its Managing Partner
By:
Name:
Title:
BCIP ASSOCIATES II-B
By: Xxxx Capital, Inc., its Managing Partner
By:
Name:
Title:
BCIP TRUST ASSOCIATES II-B
By: Xxxx Capital, Inc., its Managing Partner
By:
Name:
Title:
BCIP ASSOCIATES II-C
By: Xxxx Capital, Inc., its Managing Partner
By:
Name:
Title:
PEP INVESTMENTS PTY LTD.
By: Xxxx Capital, Inc., its attorney-in-fact
By:
Name:
Title: Managing Director
BROOKSIDE CAPITAL PARTNERS FUND, L.P.
By:
Name:
Title:
SANKATY HIGH YIELD ASSET PARTNERS, L.P.
By:
Name:
Title:
SANKATY HIGH YIELD PARTNERS II, L.P.
By:
Name:
Title:
Address for notices:
-------------------
c/o Bain Capital, Inc.
Two Xxxxxx Xxxxx
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention:
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx, LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx Xxxxxxx, Esq.
The TH Xxx Investors:
XXXXXX X. XXX EQUITY FUND IV, L.P.
By: THL Equity Advisors IV, LLC
as General Partner
By:
Name:
Title:
XXXXXX X. XXX FOREIGN FUND IV, L.P.
By: THL Equity Advisors IV, LLC
as General Partner
By:
Name:
Title:
XXXXXX X. XXX FOREIGN FUND IV-B, L.P.
By: THL Equity Advisors IV, LLC
as General Partner
By:
Name:
Title:
XXXXXX X. XXX INVESTORS LIMITED
PARTNERSHIP
By:
Name:
Title:
XXXXXX X. XXX CHARITABLE INVESTMENT
LIMITED PARTNERSHIP
By: Xxxxxx X. Xxx
as General Partner
By:
1997 XXXXXX X. XXX NOMINEE TRUST
By: State Street Bank and Trust Company, as
Trustee
By:
Name:
Title:
XXXXX X. XXXXXXX
THE HARKINS 1995 GIFT TRUST
XXXXX X. XXXXXX
X. XXXXXX XXXX
XXXXX X. XXXXXXXX
XXXXXXX X. XXXXXX
XXXXXX X. XXXXXXX
XXXXXX X. XXXXX, XX.
XXXX X. XXXXX
XXXX X. XXXXXX
XXXXXXXX X. XXXXXX
XXXX X. XXXXXXXX
XXXXXXX X. XXXXXXX
XXXXX X. XXXXXXX
XXXXX X. XXXXX
XXXXXX X. XXXXXXXX
XXXXX X. XXXXXX
XXXXXX X. XXXXXXX
XXXXXX XXXXXX XXX 1988 TRUST
XXXXXXX XXXXXXX XXX
XXXXXXX X. XXXXXX AS CUSTODIAN
FOR XXXXX XXX
XXXXXXX X. XXXXXX AS CUSTODIAN
FOR XXXXXX XXX
XXXXXXX X. XXXXXX
XXXXX XXXXXX
XXXXXX INVESTMENT HOLDINGS, LLC.
By:
Name:
Title:
Address for notices:
c/o Xxxxxx X. Xxx Company
00 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx XxXxxx and Xxxxx Xxxxxxxx
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx, LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx Xxxxxxx, Esq.
