Exhibit 4.4
Execution Copy
AMENDMENT NO. 3 TO
THE AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
AMENDMENT NO. 3 dated as of February 25, 1998 to the Amended and
Restated Stockholders Agreement, dated as of October 31, 1997 (as heretofore
amended, the "Stockholders Agreement"), among KMC Telecom Holdings, Inc., Nassau
Capital Partners L.P., NAS Partners I L.L.C., Xxxxxx X. Xxxxxx, AT&T Credit
Corporation, General Electric Capital Corporation, CoreStates Bank, N.A., and
CoreStates Holdings, Inc.
W I T N E S S E T H
WHEREAS, the parties hereto desire to make certain amendments to the
Stockholders Agreement;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. DEFINED TERMS. Unless otherwise defined herein, all capitalized
terms defined in the Stockholders Agreement and used herein are so used as so
defined.
2. AMENDMENTS TO SECTIONS 6.1(A) AND (B) OF THE STOCKHOLDERS
AGREEMENT. Sections 6.1(a) and (b) of the Stockholders Agreement are amended to
read as follows:
6.1 DEMAND REGISTRATIONS.
(a) RIGHT TO DEMAND. At any time and from time to time following (i)
June 5, 2000 or (ii) the Demand Rights Commencement Date, as specified in
Section 6.1(b), each of Nassau, Kamine, AT&T and the Majority Series C Holders
(each of which is referred to in this Section 6 as a "Demand Holder") may
request the Company to register its Registrable Securities in the manner set
forth herein by written notice (the "REGISTRATION NOTICE") to the Company only
if a disposition of the Registrable Securities may not, in the opinion of the
Demand Holder, be effected in the public marketplace (as opposed to a private
transaction under the Securities Act) at equally favorable net terms to the
Demand Holder without registration of such shares under the Securities Act. In
the event that the Company receives a Registration Notice, the Company shall
effect a registration under the Securities Act of the number of Registrable
Securities determined in accordance with Section 6.1(c) on Form S-1 or any
similar long-form registration ("LONG-FORM REGISTRATIONS") or on Form S-2 or S-3
or any similar short-form registration ("SHORT-FORM REGISTRATIONS") if
available. All registrations requested pursuant to this Section
2
6.1(a) are referred to herein as "DEMAND REGISTRATIONS.
(b) NUMBER OF DEMAND REGISTRATIONS. Each of Nassau and Kamine will
be entitled following the earlier of June 5, 2000 and the Demand Rights
Commencement Date to obtain up to two (2) Long-Form Registrations and two (2)
Short-Form Registrations. So long as AT&T or any of its Affiliates shall hold
any Registrable Securities, then AT&T, or if AT&T and its Affiliates no longer
hold any Registrable Securities, then the holders of at least 50% of the
aggregate number of Registrable Securities transferred by AT&T which are
Registrable Securities on the date such request is being made, will be entitled
following the Demand Rights Commencement Date to obtain up to an aggregate of
two (2) Registrations (which may be Short-Form Registrations, at the Company's
option, if the Company is then eligible therefor). The Majority Series C
Holders (for themselves and on behalf of all Stockholders holding shares of
Common Stock into which shares of Series C Convertible Preferred Stock have
been, or may be, converted) will be entitled following the Demand Rights
Commencement Date to obtain up to an aggregate of two (2) Registrations (which
may be Short-Form Registrations, at the Company's option, if the Company is then
eligible therefor). A registration will not count as a Long-Form Registration
or Short-Form Registration, as the case may be, until such Demand Registration
has become effective and unless the Demand Holder is able to register and sell
at least 66 2/3% of the Registrable Securities requested to be included in such
registration. Demand Registrations will be Short-Form Registrations whenever
the Company is permitted to use any applicable short form. After the Company
has become subject to the reporting requirements of the Exchange Act, the
Company will use its best efforts to make Short-Form Registrations available for
the sale of Registrable Securities. The Company shall not be required to pay
for any expenses of any registration proceeding begun pursuant to this Section
6.1(b) (including the Company's internal costs in proceeding on such request, as
reasonably determined by the Company's Board of Directors) if the registration
request is subsequently withdrawn, unless the Demand Holder agrees to treat the
withdrawn request as a registration undertaken pursuant to this Section 6.1(b);
PROVIDED, that if the Demand Holder withdraws a request as a result of a
material adverse change in the condition, business or prospects of the Company
or in the market for the Company's securities from that known to the Demand
Holder at the time of its request, the Company, and not the Demand Holder, shall
be required to pay all the expenses relating to the proposed registration and
such request shall not be treated as a registration for purposes of this Section
6.1(b).
3
3. Except as expressly amended hereby, all of the provisions of the
Stockholders Agreement are hereby affirmed and shall continue in full force and
effect in accordance with their terms.
4. This Amendment shall be governed and construed in accordance with
the laws of the state of Delaware applicable to agreements made and to be
performed entirely within such state, without regard to the principles of
conflicts of laws thereof.
5. This Amendment may be executed in one or more counterparts, each of
which shall be deemed an original and all of which, taken together, shall
constitute one and the same instrument.
4
IN WITNESS WHEREOF, the undersigned have executed, or caused to be
executed, this Agreement as of the date first above written.
KMC TELECOM HOLDINGS, INC.
By: /s/ Xxxxxxx Xxxxxxx
----------------------------
Name: Xxxxxxx Xxxxxxx
Title:
NASSAU CAPITAL PARTNERS L.P.
By: Nassau Capital L.L.C., its General
Partner
By: /s/ Xxxx X. Xxxxxxx
----------------------------
Name: Xxxx X. Xxxxxxx
Title: Member
NAS PARTNERS I L.L.C.
By: /s/ Xxxx X. Xxxxxxx
----------------------------
Name: Xxxx X. Xxxxxxx
Title: Member
XXXXXX X. XXXXXX
/s/ Xxxxxx X. Xxxxxx
-------------------------------
AT&T CREDIT CORPORATION
By: /s/ Xxxxx X. Pishco
----------------------------
Name: Xxxxx X. Pishco
Title: Vice President
5
CORESTATES BANK, N.A.
By: /s/ Xxxxxxx Bienville Xxxxxx
------------------------------
Name: Xxxxxxx Bienville Xxxxxx
Title: Vice President
CORESTATES HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxxx XX
----------------------------
Name: Xxxxxxx X. Xxxxxx XX
Title: Vice President
GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s/ Xxxxxx Xxxxx Xxxxxxxx
----------------------------
Name: Xxxxxx Xxxxx Christie
Title: Manager-Operations
