EXHIBIT 10.16
SUPPLEMENTAL STOCKHOLDERS' AGREEMENT
This Supplemental Stockholders' Agreement (this "Agreement"), dated as
of September 18, 2000, by and among Tellium, Inc., a Delaware corporation (the
"Company"), and the parties hereto listed in Schedule I hereto (the "Holders").
WHEREAS, the Holders collectively purchased 333,333 shares (the
"Private Shares") of the Company's common stock, par value $.001 per share (the
"Common Stock"), pursuant to the Stock Purchase Agreement between the Company
and the Holders dated as of the date hereof; and
WHEREAS, in connection with the Stock Purchase Agreement, the Company
has agreed to grant certain rights with respect to the Registrable Shares.
NOW, THEREFORE, in consideration of these premises and the mutual
agreements, provisions and covenants contained in this Agreement, the parties
hereby agree as follows:
1. Certain Definitions
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As used in this Agreement, the following terms shall have the
meanings set forth below:
"Common Stock" means the Common Stock, as such phrase is defined in
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recitals to this Agreement.
"Holders" means the parties hereto listed in Schedule I hereto.
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"Person" means any individual, corporation, limited liability company,
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limited or general partnership, joint venture, association, joint-stock company,
trust, unincorporated organization or government or any agency or political
subdivisions thereof.
"Private Shares" means the Private Shares as such phrase is defined
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in the recitals to this Agreement; provided, however, that Private Shares shall
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cease to be Private Shares (x) upon their sale pursuant to a registration
statement or Rule 144 under the Securities Act, (y) upon their sale pursuant to
Rule 144 under the Securities Act or (z) upon their sale in any manner to a
Person which is not entitled to the rights provided by this Agreement.
"Rule 144" means Rule 144 promulgated under the Securities Act or any
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successor rule thereto or any complementary rule thereto.
"Securities Act" means the Securities Act of 1933, as amended, and the
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rules and regulations of the Commission thereunder, all as the same shall be in
effect from time to time.
2. Holders' Agreements. Each Holder agrees that it will not transfer
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any Registrable Shares without complying with Section 7 of the Stock Purchase
Agreement.
3. Registration Rights
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3.1 General. Subject to Section 3.2, and in respect of their
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Private Shares, the parties to this Agreement shall be considered "Holders"
pursuant to Section 1.5(c) of the Amended and Restated Stockholders Agreement by
and among the Company and the other parties thereto dated as of September 18,
2000 (as amended from time to time) (the "Current Stockholders Agreement") with
respect to any Demand Registration, Piggyback Registration or S-3 Registration
and with respect to the Shelf Registration Statement (as each such term is
defined in the Current Stockholders Agreement), shall be accorded the rights, in
respect of Article VII, to which such "Holders" are entitled under Section 8.5
of the Current Stockholders Agreement, and agree to the obligations and other
duties to which such "Holders" have agreed under Article VII (and, in respect to
Article VII, under Section 8.5) of the Current Stockholders Agreement. Any
permitted assign of a party to this Agreement shall agree to this Section 3
prior to being accorded the rights hereunder.
3.2 Application. A Holder (as such term is defined in this
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Agreement) (i) shall not be entitled to the right to demand set forth in Section
7.2(a)(ii) of the Current Stockholders Agreement, (ii) shall not be entitled to
vote or consent in respect of adding one or more Persons to the Current
Stockholders Agreement, and (iii) shall be subject to the 90 day period related
to holders of the Company's Series E Preferred Stock (in lieu of the 180 day
period) referenced in Section 7.4 of the current Stockholders Agreement, without
regard to whether such Holder sells under the Shelf Registration Statement or
otherwise.
4. Miscellaneous Provisions
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4.1 Specific Performance, Etc. The Company and each Holder, in
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addition to being entitled to exercise all rights provided herein, in the
Company's Amended and Restated Certificate of Incorporation or granted by law,
including recovery of damages, shall be entitled to specific performance of its
rights under this Agreement. Each party agrees that monetary damages would not
be adequate compensation for any loss incurred by reason of a breach by it of
the provisions of this Agreement and hereby agrees to waive the defense in any
action for specific performance that a remedy at law would be adequate.
4.2 Notices. All notices, requests, demands and other
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communications which are required or may be given under this Agreement shall be
in writing and shall be deemed to have been duly given and received in
accordance with the applicable provision of the Stock Purchase Agreement to
which a Holder is a party.
4.3 Entire Agreement; Amendments and Waivers. This Agreement
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constitutes the entire agreement among the parties pertaining to the subject
matter hereof and supersedes all prior agreements, understandings, negotiations
and discussions, whether oral or written, of the parties hereto. The provisions
of this Agreement, including the provisions of this sentence, may
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not be amended, modified or supplemented, and waivers of or consents to
departures from the provisions hereof may not be given unless approved in
writing by the Company and Holders of at least 50% of the Registrable Shares. No
action taken pursuant to this Agreement, including, without limitation, any
investigation by or on behalf of any party, shall be deemed to constitute a
waiver by the party taking such action. The waiver by any party hereto of a
breach of any provision of this Agreement shall not operate or be construed as
waiver of any preceding or succeeding breach and no failure by any party to
exercise any right or privilege hereunder shall be deemed a waiver of such
party's rights or privileges hereunder or shall be deemed a waiver of such
party's rights to exercise the same at any subsequent time or times hereunder.
4.4 Termination. If not terminated sooner pursuant to the terms
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hereof, Section 3 of this Agreement (regarding registration rights) shall
terminate and cease to be of any further force or effect upon the Company's
merger with and into another corporation, or another corporation's merger with
and into the Company, where, in connection with the merger, the Registrable
Shares are exchanged exclusively for cash and/or shares of capital stock or
other securities that are registered under the Securities Act and publicly
traded on a national securities exchange or authorized for trading on the Nasdaq
National Market System.
4.5 Recapitalizations, Exchange, etc. Affecting the Company's Stock.
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The provisions of this Agreement shall apply, to the full extent set forth
herein with respect to the Registrable Shares, to any and all shares of capital
stock of the Company that may be issued in respect of, in exchange for, or in
substitution of the Registrable Shares and shall be appropriately adjusted for
any stock dividends, splits, reverse splits, combinations, recapitalizations and
the like occurring after the date hereof.
4.6 Multiple Counterparts. This Agreement may be executed any number
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of counterparts, and each such counterpart shall be deemed an original
instrument, but all such counterparts shall constitute but one agreement.
4.7 Headings. The headings of the sections of this Agreement have
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been inserted for convenience of reference only and shall not be deemed to be
part of this Agreement.
4.8 Governing Law. This Agreement shall be governed by and construed
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in accordance with the internal laws of the State of New York, without regard to
principles of conflict of laws thereof.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date set forth above.
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