Exhibit 4.2
AMENDMENT NO. 1
TO FIRST AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT
Amendment No. 1 (this "Amendment") dated as of September 10, 2003 to the
First Amended and Restated Stockholders Agreement dated as of January 20, 1999
(such agreement being referred to herein as the "Stockholders Agreement") among
Centennial Communications Corp. (the "Company"), the several persons named in
Schedule I thereto (the "WCAS Purchasers"), the several persons named in
Schedule II thereto (the "Blackstone Purchasers"), the Signal Purchasers
referred to therein, the Management Purchasers referred to therein and the
Guayacan Purchasers referred to therein. Capitalized terms used but not defined
herein shall have the meanings assigned to them in the Stockholders Agreement.
WHEREAS, the Company and the Stockholders listed on the signature pages
hereto, representing a majority in interest of each of the WCAS Purchasers and
the Blackstone Purchasers as required by Section 20 of the Stockholders
Agreement, desire to amend the Stockholders Agreement as set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as set
forth below:
1. Section 1(a)(ii) of the Stockholders Agreement is hereby amended by
amending and restating in its entirety subclause (a) thereof to read in full as
set forth below:
"a) (1) one director designated by Welsh, Carson,
Xxxxxxxx & Xxxxx VII, L.P. so long as the WCAS Purchasers
own (in the aggregate) not less than 25% of the shares of
Common Stock owned by them on January 20, 1999;
(2) one director (and commencing on the day following
the Company's 2003 annual meeting of stockholders, two
directors) designated by Welsh, Carson, Xxxxxxxx & Xxxxx
VIII, L.P. so long as the WCAS Purchasers own (in the
aggregate) not less than 25% of the shares of Common Stock
owned by them on January 20, 1999; and
(3) one director designated by WCAS Capital Partners
III, L.P. (such director, collectively with the directors
designated pursuant to Sections 1(a)(ii)(a)(1) and
1(a)(ii)(a)(2), the "WCAS Designees") so long as the WCAS
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Purchasers own (in the aggregate) not less than 25% of the
shares of Common Stock owned by them on January 20, 1999;
and"
2. Section 1(a)(ii) of the Stockholders Agreement is hereby amended by
amending and restating in its entirety subclause (b) thereof to read in full as
set forth below:
"b) one director designated by the holders of a
majority of the Common Stock then held by all Blackstone
Purchasers (the "Blackstone Designee") so long as the
Blackstone Purchasers own (in the aggregate) not less than
33% of the shares of Common Stock owned by them on January
20, 1999; and"
3. Section 1(a)(ii) of the Stockholders Agreement is hereby amended by
amending and restating in its entirety subclause (c) thereof to read in full as
set forth below:
"c) the Chief Executive Officer of the Company;"
4. Section 1(b) of the Stockholders Agreement is hereby amended and
restated in its entirety to read in full as set forth below:
"(b) The three directors not designated pursuant to
clause (ii) of paragraph (a) above shall be directors that
shall be elected by the stockholders of the Company. In any
such election, the Stockholders shall vote their shares only
for persons that (x) are not employees or officers of (i)
the Company or any of its Subsidiaries or (ii) the
Stockholders or their respective stockholders, members or
partners and (y) otherwise qualify as "independent
directors" under the rules applicable to members of an audit
committee of the board of directors of any company whose
securities are traded on any exchange or quotation system on
which the Common Stock or any other securities of the
Company are then listed or traded and satisfy any other
requirements under the rules of any such exchange or
quotation system or applicable law."
5. Sections 1(c)(i) through 1(c)(iii) of the Stockholders Agreement
are hereby amended and restated in their entirety to read in full as set forth
below:
"(i) a Compensation Committee of the Board of Directors
consisting of three directors, two of whom shall be WCAS
Designees, if any then exist, and the third of whom shall be a
Blackstone Designee, if any then exist (provided that if at any
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time such composition is not then permitted under the applicable
rules of any exchange or quotation system on which the Common
Stock or any other securities of the Company are then listed or
traded, such composition shall be modified to be consistent with
such rules, such modification to approximate as closely as
possible, to the extent permissible under such rules, the
composition set forth above), which Compensation Committee shall
(x) approve all grants of stock options to employees of the
Company, all increases in compensation of officers of the
Company, all annual bonuses granted to officers of the Company
and all other employee benefits (including, without limitation,
vacation policy, benefit plans, company automobiles and
insurance) granted to officers of the Company, (y) have such
other duties and responsibilities as may be required by the rules
of any exchange or quotation system on which the Common Stock or
any other securities of the Company are then listed or traded or
by any applicable law and (z) have such other duties and
responsibilities as the Board of Directors may from time to time
determine;
(ii) an Audit Committee of the Board consisting of at least
three directors, one of whom shall be a WCAS Designee, if any
then exist (provided that if at any time such composition is not
then permitted under the applicable rules of any exchange or
quotation system on which the Common Stock or other securities of
the Company are then listed or traded, such composition shall be
modified to be consistent with such rules, such modification to
approximate as closely as possible, to the extent permissible
under such rules, the composition set forth above; provided,
further, that if such rules do not permit a WCAS Designee to be a
member of the Audit Committee of the Board, a WCAS Designee shall
be entitled to attend meetings of the Audit Committee of the
Board as a non-voting observer, to the extent permissible under
such rules (provided that the Audit Committee of the Board may as
it deems appropriate exclude such non-voting observer from its
meetings)), which Audit Committee shall (x) review and approve
the financial statements of the Company as audited by the
Company's independent certified public accountants, (y) have such
other duties and responsibilities as may be required by the rules
of any exchange or quotation system on which the Common Stock or
any other securities of the Company are then listed or traded or
by any applicable law and (z) have such other duties and
responsibilities as the Board may from time to time determine;
and
(iii) such other committees as the Board shall from time to
time deem appropriate, consisting of at least three directors, at
least two of whom shall be WCAS Designees, if any then exist, and
at least one of whom shall be a Blackstone Designee, if any then
exist (provided that (x) if at any time such composition of any
such committee is not then permitted under the applicable rules
of any exchange or quotation system on which the Common Stock or
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any other securities of the Company are then listed or traded or
applicable law, such composition of such committee shall be
modified to be consistent with such rules, such modification to
approximate as closely as possible, to the extent permissible
under such rules, the composition set forth above and (y) in the
event that any such committee is an ad hoc committee formed to
evaluate a transaction or other matter involving the Company in
which any director has an interest or would otherwise, in the
judgment of the Board, not be disinterested with respect to such
transaction or matter, the composition of such committee shall be
as determined by the Board; provided that such interested
director shall not be a member of such committee), which
committees shall have such duties and responsibilities as the
Board may from time to time determine."
6. Section 1 of the Stockholders Agreement is hereby amended by adding
a new Section 1(e) at the end of Section 1 to read as follows:
"(e) The Blackstone Purchasers shall be entitled to
designate one non-voting observer to the Board for so long as the
Blackstone Purchasers have the right to designate a Blackstone
Designee pursuant to Section 1(a)(ii)(b). Such observer shall
have the right to attend all meetings of the Board; provided that
the observer shall not be entitled to attend any portion of any
meeting or receive any notice, document or financial information
relating to any privileged matter if counsel to the Company
advises (after taking into account any mitigating factors,
including any relationship to any stockholder of the Company)
that such attendance or receipt of information would reasonably
be expected to jeopardize any privilege otherwise available to
the Company with respect thereto, and the Company notifies the
Blackstone Purchasers of such advice prior to such meeting or
delivery of such information to the members of the Board of the
Company."
7. The Stockholders Agreement is hereby amended by replacing each
reference therein to "Blackstone Designees" with a reference to "Blackstone
Designee".
8. Section 9 of the Stockholders Agreement is hereby amended by adding
the phrase "(or 10% in the case of any Blackstone Purchaser or WCAS Purchaser)"
after the phrase "at least 25%" on the second line of such Section.
9. Section 11(b) of the Stockholders Agreement is hereby amended by
adding a proviso to the end of such Section to read as follows:
"; provided, however, that the provisions of Section 1, 10,
11(b) and 15 through 25 shall terminate only as to the
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Blackstone Purchasers upon delivery of written notice by the
Blackstone Purchasers to the other parties to this Agreement
following any date on which the Blackstone Purchasers and
their affiliates collectively own less than five million
shares of Common Stock (as adjusted for any stock dividend,
stock split or similar event)."
10. Clause (1) of Section 19 of the Stockholders Agreement is hereby
amended and restated in its entirety to read in full as set forth below:
"(1) if to the Company, to it at:
0000 Xxxxx 000
Xxxx, Xxx Xxxxxx 00000
Fax: (000) 000-0000
Tel: (000) 000-0000
Attention: Chief Financial Officer
General Counsel"
11. The Blackstone Purchasers agree to take all actions necessary to
cause the resignation or removal of one Director affiliated with Blackstone
Management Associates, L.L.C. no later than the day following the Company's 2003
annual meeting of stockholders such that, after such resignation or removal,
only one Blackstone Designee remains on the Board.
12. This Amendment has been executed as of the date first above
written and will automatically and without further action of the parties become
effective as of the consummation of the firm portion of the registered public
offering by the Company of at least 27,000,000, and (without the consent of
Welsh, Carson, Xxxxxxxx & Xxxxx VIII, L.P. and Blackstone Management Associates
III, L.P., which consent may be withheld in the sole discretion of the
consenting party) no more than 30,000,000, shares of Common Stock pursuant to a
registration statement that becomes effective no later than September 30, 2003;
provided that such offering includes an over-allotment option (whether or not
exercised) of at least 15% of the shares of Common Stock included in the firm
portion of the registered public offering, which shares will be sold by the
Blackstone Purchasers.
13. This Amendment shall not constitute an amendment or modification
of any provision of, or schedule to, the Stockholders Agreement not expressly
referred to herein. Except as expressly amended or modified herein, the
provisions and schedules of the Stockholders Agreement are and shall remain in
full force and effect. Each reference to "hereof", "hereunder", "herein" and
"hereby" and each other similar reference and each reference to "this Agreement"
and each other similar reference contained in the Stockholders Agreement shall
refer to the Stockholders Agreement as amended hereby.
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14. This Amendment may be executed by one or more of the parties
hereto on any number of separate counterparts and all such counterparts shall be
deemed to be one and the same instrument. Each party hereto confirms that any
facsimile copy of such party's executed counterpart of this Amendment shall be
deemed to be an executed original thereof.
15. This Amendment shall be governed by, enforceable under and
construed in accordance with the laws of the State of Delaware, without regard
to the principles of conflicts of law.
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IN WITNESS WHEREOF, the Company and the Stockholders listed below have
each caused this Amendment to be duly executed as of the date first above
written.
CENTENNIAL COMMUNICATIONS
CORP.
By: /s/ XXXXXX X. XXXXXXXXXXX
----------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
Title:
WELSH, CARSON, XXXXXXXX &
XXXXX VII, L.P.
By: WCAS VII Partners, L.P.,
General Partner
By: /s/ XXXXXXXX X. RATHER
--------------------------
General Partner
WELSH, CARSON, XXXXXXXX &
XXXXX VIII, L.P.
By: WCAS VIII Associates,
L.L.C., General Partner
By: /s/ XXXXXXXX X. RATHER
--------------------------
Managing Member
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WCAS CAPITAL PARTNERS III, L.P.
By: WCAS CP III Associates,
L.L.C., General Partner
By: /s/ XXXXXXXX X. RATHER
--------------------------
Managing Member
WCAS INFORMATION PARTNERS, L.P.
By: /s/ XXXXXXXX X. RATHER
--------------------------
General Partner
Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxxx
Xxxxx X. Xxxxxxxx
Xxxxxx X. XxXxxxxxx
Xxxxxx X. Xxxxxxxxx
Xxxxxxx X. xx Xxxxxx
Xxxx X. Xxxxxxx
D. Xxxxx Xxxxxxx
Xxxx Xxxxx
Xxxxx X. Xxxxxxxx
Xxxxxx Xxxxx
Xxxxxxxx X. Rather
By: /s/ XXXXXXXX X. RATHER
--------------------------
Xxxxxxxx X. Rather
Individually and as
Attorney-in-fact
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BLACKSTONE CCC CAPITAL
PARTNERS L.P.
By: Blackstone Management
Associates III L.L.C.,
Its general partner
By: /s/ XXXXXXXX X. XXXXXX
--------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Member
BLACKSTONE CCC OFFSHORE
CAPITAL PARTNERS L.P.
By: Blackstone Management
Associates III L.L.C.,
Its general partner
By: /s/ XXXXXXXX X. XXXXXX
--------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Member
BLACKSTONE FAMILY INVESTMENT
PARTNERSHIP III L.P.
By: Blackstone Management
Associates III L.L.C.,
Its general partner
By: /s/ XXXXXXXX X. XXXXXX
--------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Member
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