EXHIBIT 4.2
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SUPPLEMENTAL STOCKHOLDERS' AGREEMENT
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AGREEMENT dated as of December 29, 1987 by and among Xxxxxxx X.
Xxxxxxx ("Xxxxxxx"), Xxxxxxxxx X. Prior, Jr. ("Prior"), X.X. Xxxxxx LBO Inc.
("Xxxxxx"), Atlantic Tele-Network Management Company ("Management"), Atlantic
Tele-Network Co. ("ATN") and Rural Telephone Finance Cooperative ("RTFC"). This
Supplemental Stockholders' Agreement, as it may be amended or supplemented from
time to time, is hereinafter referred to as "this Agreement."
RECITALS
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1. All of the above-named parties other than RTFC are parties to a
Stockholders' Agreement dated as of June 23, 1987 (the "Stockholders'
Agreement"). All defined terms used herein are as defined in the Stockholders'
Agreement unless otherwise defined herein.
2. ATN is the owner of all of the issued and outstanding shares of
capital stock of Virgin Islands Telephone Corporation ("Vitelco").
3. Xxxxxx owns 45% of the common stock, $1.00 par value, of ATN ("ATN
Common Stock"). Xxxxxxx and Prior each own 27.5% of the ATN Common Stock,
either directly or indirectly through their ownership of Management.
4. To assist ATN in purchasing the stock of Vitelco, ATN and the
parent of Xxxxxx, X.X. Xxxxxx Group Inc. ("Xxxxxx Group"), entered into a Loan
Agreement dated as of June 23, 1987 (as amended, the "Xxxxxx Loan Agreement"),
providing for a bridge loan by Xxxxxx Group to ATN in the principal amount of
$94,000,000 and the issuance to Xxxxxx Group of ATN's Promissory Note dated June
24, 1987 (the "Note") also in such principal amount.
5. ATN, Vitelco, Xxxxxx Xxxxxxx, Prior and Xxxxxx Group desire that
the Note be paid in full. Accordingly, RTFC has agreed to make loans to each of
ATN and Vitelco (the "Refinancing Loans"), the proceeds of which are to be used
to repay the Note, pursuant to a Loan Agreement dated as of December 29, 1987
between RTFC as lender and ATN and Vitelco, respectively, as borrowers (the
"Loan Agreement").
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6. In order to induce RTFC to make the Refinancing Loans, the parties
hereto have agreed (a) immediately to provide RTFC with a representative on the
Board of Directors of ATN, (b) to enable RTFC to appoint a majority of the
members of the Board of Directors of ATN upon the occurrence and during the
continuance of certain Events of Default (as defined herein) and (c) to
supersede and modify the Stockholders' Agreement to the extent necessary to
accomplish the foregoing and certain other purposes, but otherwise to reaffirm
the Stockholders' Agreement without change.
AGREEMENT
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In consideration of the premises and of the terms and conditions
herein contained, the parties hereto mutually agree as follows:
Section 1. RTFC Representative on the ATN Board of Director.
(a) Simultaneously with the execution and delivery hereof and during
the term of this Agreement, RTFC shall be entitled to designate one of the three
Xxxxxx Directors to the Board of Directors of ATN (such Xxxxxx Director
designated by RTFC is hereinafter referred to as the "RTFC Director"), and the
Stockholders shall have taken such actions as may be necessary (including
obtaining the resignation of a member of the ATN Board of Directors) to cause
the individual designated in writing by RTFC as the RTFC Director to take the
place of the Xxxxxx Director designated in writing by Xxxxxx (or if no such
designation has been made by Xxxxxx, the Xxxxxx Director so designated by RTFC)
on ATN's Board of Directors.
(b) Thereafter, RTFC shall have the same rights with respect to the
RTFC Director as the Stockholders have with respect to directors that they are
presently entitled to designate under the Stockholders' Agreement, including but
not limited to the removal of directors and the filling of vacancies, and the
Stockholders will take such actions with respect to the RTFC Director as they
agree in the penultimate sentence of Section 1.01(b) of the Stockholders'
Agreement to take with respect to the election of directors nominated in
accordance with that Section.
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Section 2. RTFC's Right to Elect a Majority of the ATN Directors.
(a) The provisions of Section 1.01(b) of the Stockholders' Agreement
to the contrary notwithstanding, upon the occurrence of and during the
continuance of an Event of Default (as defined below), (i) RTFC shall be
entitled to designate a number of directors constituting a simple majority of
the Board of Directors of ATN, (ii) Xxxxxx shall be entitled to designate one
member of the Board of Directors of ATN and (iii) Xxxxxxx and Prior shall each
be entitled to designate one member of the Board of Directors of ATN so long as
Xxxxxxx or Prior, as the case may be, shall own at least ten percent of the
outstanding shares of ATN Common Stock.
(b) Promptly upon receipt from RTFC of notice of the occurrence of an
Event of Default, the Stockholders shall take such actions as may be necessary
(including, without limitation, obtaining resignations of members of the ATN
Board of Directors, voting their shares of ATN Common Stock and entering into
consents with respect thereto) to cause the membership of the ATN Board of
Directors to be reconstituted in accordance with the preceding sentence. The
ATN directors to be removed and the persons to be designated in their places in
accordance with the previous sentence shall be as set forth in writing by RTFC,
Xxxxxx, Xxxxxxx or Prior, as applicable; provided, that if any of Xxxxxx,
Xxxxxxx or Prior fails to make any such designation, RTFC shall be entitled to
make a designation on behalf of such party.
(c) Thereafter, until the termination of this Agreement, RTFC,
Xxxxxx, Xxxxxxx and Prior shall have the same rights with respect to the
respective directors to be designated by them pursuant to this Section as the
Stockholders presently have with respect to directors that they are entitled to
designate under Section 1.01(b) of the Stockholders' Agreement, including but
not limited to the removal of directors and the filling of vacancies, and the
Stockholders will take such actions with respect to the election of directors in
accordance with this Section 2 as they agree in the penultimate sentence of
Section 1.01(b) of the Stockholders' Agreement to take with respect to the
election of directors nominated in accordance with that Section.
(d) RTFC shall cause any director that it has designated to serve on
the ATN Board of Directors to resign from such Board at any time at which such
director is no longer entitled to serve pursuant to Section 1 or this Section 2,
pro-
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vided that the foregoing shall not preclude RTFC's designating additional
directors upon the subsequent occurrence of an Event of Default in accordance
with paragraph (a) hereof.
(e) For purposes of this Agreement, the term "Event of Default" shall
mean the occurrence of an event described in Section 8.02 or Section 8.04 of the
Loan Agreement (regardless of whether RTFC has exercised any remedy with respect
to any such event under the Loan Agreement).
Section 3. Cumulative Voting. The provisions of the last sentence of
Section 1.01(b) of the Stockholders' Agreement to the contrary notwithstanding,
the Stockholders will not take any action to provide for cumulative voting at
elections of directors during the term of this Agreement.
Section 4. Vitelco Board of Directors. (a) During the term of this
Agreement, the RTFC Director shall be entitled to receive notices of and to
attend (but, except as provided in paragraph (b) below, not vote at) all
meetings of the Vitelco Board of Directors, and the other parties hereto shall
use their best efforts to cause Vitelco to cooperate with and give effect to the
terms of this paragraph (a).
(b) The provisions of paragraph (a) above to the contrary
notwithstanding, upon the occurrence and during the continuance of an Event of
Default:
(i) the Stockholders and RTFC shall take whatever actions shall be
necessary to cause the Board of Directors of Vitelco to be restructured in
the same manner as is provided for the Board of Directors of ATN in Section
2(a) hereof, including by obtaining the resignations of the Stockholders'
designees on the Vitelco Board of Directors; and
(ii) the provisions of Section 1.05 of the Stockholders' Agreement
shall be suspended and of no force and effect.
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Section 5. Director Resignations. For purposes of enforcing the
provisions of Sections 1, 2 and 4 hereof, the Stockholders shall, concurrently
with the execution and delivery hereof, cause directors constituting at least a
majority of the members of each of the ATN and Vitelco Boards of Directors to
submit an undated letter of resignation of his position as a director to the
corporate secretary of ATN or Vitelco, respectively. Thereafter, ATN shall
cause its corporate secretary and the corporate secretary of Vitelco to date and
deliver any appropriate resignation (including resignations delivered in
accordance with the next sentence) to the ATN or Vitelco Board of Directors, as
the case may be, in order to give effect to the provisions of Section 1, 2 and 4
of this Agreement. At all times during the term of this Agreement, the
Stockholders will cause directors constituting a majority of the Board of
Directors of each of ATN and Vitelco to have on file with the appropriate
corporate secretary undated letters of resignation for disposition in accordance
with this Section 5.
Section 6. Transfers of ATN Common Stock Ownership. Notwithstanding
the provisions of Sections 2, 3, 4 and 5 of the Stockholders' Agreement to the
contrary, during the terms of this Agreement, none of the Stockholders shall
sell or otherwise transfer or dispose of any of his or its shares of ATN Common
Stock if any such sale, transfer or disposition would have the result of causing
Stockholders who are subject to the terms and conditions of the Stockholders'
Agreement to own, in the aggregate, beneficially and of record, 50% or less of
the outstanding shares of ATN Common Stock.
Section 7. Waiver of Section 2,02(d). By entering into this
Agreement, each of the parties hereto that is a party to the Stockholders'
Agreement hereby waives compliance by all the other parties thereto with the
provisions of Section 2.02(d) of the Stockholders' Agreement insofar as such
Section purports to prevent such parties from entering into an arrangement in
the nature of this Agreement.
Section 8. Termination of Stockholders' Agreement. Notwithstanding
the provisions of Section 12 of the Stockholders' Agreement to the contrary:
(a) the Stockholders' Agreement shall not terminate as set forth in
paragraph (d) of such Section 12 as long as this Agreement is in effect; and
(b) the parties to the Stockholders' Agreement agree that the ten
year term set forth in paragraph (e) of such Sec-
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tion 12 shall be renewed automatically and without any further action on their
parts through the date of the termination of this Agreement as provided in
paragraph (e) of Section 9 hereof.
Section 9. Miscellaneous.
(a) Further Assurances. The parties hereto shall perform any and all
such acts and execute and deliver any and all such documents as may be necessary
or appropriate to carry out fully the provisions of this Agreement, including
but not limited to causing the Articles of Incorporation or By-laws (or
comparable instruments) of ATN and Vitelco to be amended in such manner as RTFC
may reasonably request.
(b) Amendments to the Stockholders' Agreement. During the term of
this Agreement, each of the parties hereto that is a party to the Stockholders'
Agreement (i) will not enter into any amendment or supplement to the
Stockholders' Agreement, or into any other arrangement with any other person,
that would be contrary to or inconsistent with the provisions of this Agreement
and RTFC's rights hereunder, and (ii) will promptly give RTFC notice of any
amendment or supplement to the Stockholders' Agreement or any other arrangement
known to such party relating to or affecting the voting of shares of ATN Common
Stock.
(c) References to "this Agreement" in the Stockholders' Agreement.
Every reference in the Stockholders' Agreement to "this Agreement," as well as
any other reference therein to the Stockholders' Agreement through the use of
terms such as "herein" or "hereof," shall be deemed to refer to the
Stockholders' Agreement as amended, supplemented and otherwise affected by this
Agreement and any amendment or supplement hereto.
(d) Endorsement of Stock Certificates. In addition to the
endorsement to be affixed to certificates representing shares of ATN Common
Stock pursuant to Section 8 of the Stockholders' Agreement, each such
certificate shall also bear an endorsement substantially as follows:
"The shares represented by this certificate are also subject to
certain rights of Rural Telephone Finance Cooperative and certain
stockholders of the Corporation to designate directors of the Corporation
in accordance with the provisions of a Supplemental Stockholders' Agreement
dated as of December 29, 1987
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by and among Rural Telephone Finance Cooperative and the parties to the
aforementioned Stockholders' Agreement, a copy of which Supplemental
Stockholders' Agreement may be obtained from the Corporation or from the
holder of this certificate.".
(e) Termination. This Agreement shall terminate upon the earlier to
occur of (i) the payment to RTFC of all amounts outstanding under the Loan
Agreement and the satisfaction of all obligations owed to RTFC by ATN and
Vitelco thereunder and under the other documents referred to therein and (ii)
ATN having maintained both a DSC (as defined in the Loan Agreement) of at least
1.35 and a TIER (as defined in the Loan Agreement) of at least 1.5 in each of
five consecutive fiscal years (commencing with the fiscal year ended December
31, 1988) if at the end of such fifth year the consolidated stockholders' equity
of ATN and its Subsidiaries is at least equal to 40% of consolidated total
assets, in each case as set forth in ATN's audited financial statements for the
year then ended.
(f) Headings. Section headings are inserted herein for convenience
only and do not form a part of this Agreement.
(g) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(h) Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the parties and their respective successors, heirs
and permitted assigns. No party hereto may assign his or its obligations under
this Agreement except in accordance with a transfer of his or its shares of ATN
Common Stock in accordance with this Agreement and the Stockholders' Agreement,
except that RTFC may assign its rights and obligations hereunder to National
Rural Utilities Cooperative Finance Corporation in connection with the
assignment by RTFC of its rights and obligations under the Loan Agreement to
such entity.
(i) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
(j) Notices. RTFC shall be treated as a Stockholder for purposes of
the last sentence of Section 14.10 of the Stockholders' Agreement, and may
request the list of addresses
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referred to in such Section. For purposes hereof, notices to be given to RTFC
shall be addressed as follows:
Rural Telephone Finance Cooperative
X.X. Xxx 00000
Xxxxxxxxxx, X.X. 00000
Attention: Loan Officer
(k) Injunctive Relief. It is acknowledged that it will be impossible
to measure in money the damages that would be suffered if the parties fail to
comply with any of the obligations herein imposed on them and that, in the event
of any such failure, an aggrieved person will be irreparably damaged and will
not have an adequate remedy at law. Any such person shall, therefore, be
entitled to injunctive relief, including specific performance, to enforce such
obligations, and if any action should be brought in equity to enforce any of the
provisions of this Agreement, none of the parties hereto shall raise the defense
that there is an adequate remedy at law.
(l) Effectiveness of the Stockholders' Agreement. Except as
expressly modified hereby, the Stockholders' Agreement shall continue in full
force and effect.
/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
/s/ Xxxxxxxxx X. Prior, Jr.
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Xxxxxxxxx X. Prior, Jr.
X.X. XXXXXX LBO INC.
By /s/ W. Xxxxxx Xxxxxxxx
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Name: W. Xxxxxx Xxxxxxxx
Title: Senior Vice President
ATLANTIC TELE-NETWORK MANAGEMENT
COMPANY
By /s/ Xxxxxxxxx X. Prior, Jr.
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Name: Xxxxxxxxx X. Prior, Jr.
Title:
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ATLANTIC TELE-NETWORK CO.
By /s/ Xxxxxxxxx X. Prior, Jr.
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Name: Xxxxxxxxx X. Prior, Jr.
Title: President
RURAL TELEPHONE FINANCE
COOPERATIVE
By /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Assistant Secretary-
Treasurer
AMENDMENT NO. 1 TO SUPPLEMENTAL STOCKHOLDERS' AGREEMENT
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AGREEMENT dated as of April 30, 1991 by and among Xxxxxxx X. Xxxxxxx
("Xxxxxxx"), Xxxxxxxxx X. Prior, Jr. ("Prior"), Atlantic Tele-Network Inc. ("ATN
Inc."), Atlantic Tele-Network Co. ("ATN Co.") and Rural Telephone Finance
Cooperative ("RTFC").
RECITALS
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1. The parties hereto are parties (or successors to parties) to a
Supplemental Stockholders' Agreement dated as of December 29, 1987 (the
"Supplemental Stockholders' Agreement") by and among Xxxxxxx, Prior, X.X. Xxxxxx
LBO Inc. (which has assigned all of its rights thereunder to ATN Inc.), Atlantic
Tele-Network Management Company (a predecessor by merger of ATN Inc.), ATN Co.
and RTFC.
2. The parties hereto desire to amend the Supplemental Stockholders'
Agreement to the extent provided herein.
AGREEMENT
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In consideration of the premises and of the terms and conditions
hereunder contained, the parties hereto mutually agree as follows:
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1. Section 1(a) of the Supplemental Stockholders' Agreement is hereby
amended to provide that at all times during the term of said Supplemental
Stockholders' Agreement, RTFC shall be entitled to designate two directors to
the Board of Directors of ATN Co. and two directors of the Board of Directors of
Vitelco. All references in the Supplemental Stockholders' Agreement to the
"RFTC Director" shall refer to each and all of the directors so designated by
RTFC.
2. Except as expressly modified hereby, the Supplemental
Stockholders' Agreement shall continue in full force and effect.
/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
/s/ Xxxxxxxxx X. Prior, Jr.
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Xxxxxxxxx X. Prior, Jr.
ATLANTIC TELE-NETWORK INC.
By:/s/
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Title:
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ATLANTIC TELE-NETWORK CO.
By:/s/
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Title:
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RURAL TELEPHONE FINANCE
COOPERATIVE
By:/s/
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Title:
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