EXHIBIT 10.6
EXECUTION COPY
SECOND AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
THIS AGREEMENT ("This Agreement") is dated as of October 3, 1997, by and
between Centennial Communications Corp., a Delaware corporation, (the
"Company"), and each of the Investors listed on the Schedule of Investors
attached hereto (individually, an "Investor" and collectively, the "Investors").
Unless otherwise defined, capitalized terms used herein are defined in paragraph
6 hereof.
RECITALS
Certain of the Investors (the "June Investors") purchased shares of the
Company's Series A Preferred Stock, par value $.01 per share (the "Series A
Preferred"), pursuant to a Series A Purchase Agreement, dated June 27, 1996,
between the June Investors and the Company (as amended to the date hereof, the
"Series A Purchase Agreement").
In connection with the Series A Purchase Agreement, the June Investors and
the Company entered into a Stockholders Agreement, dated June 27, 1996, (the
"Stockholders Agreement").
Certain of the Investors (the "November Investors") purchased shares of the
Company's Series B Preferred Stock, par value $.01 per share (the "Series B
Preferred"), pursuant to a Series B Preferred Stock Purchase Agreement, dated
November 22, 1996, between the November Investors and the Company (as amended to
the date hereof, the "Series B Purchase Agreement").
In connection with the Series B Purchase Agreement, the November Investors
and the Company entered into an Amended and Restated Stockholders Agreement,
dated November 22, 1996 (as amended to the date hereof, the "Amended and
Restated Stockholders Agreement").
Certain of the Investors are purchasing Senior Secured Convertible Notes,
due 2002, of the Company (the "Notes") pursuant to the Purchase Agreement dated
as of the date hereof (the "Purchase Agreement").
One of the conditions to the purchase of the Notes pursuant to the Purchase
Agreement is that the Amended and Restated Stockholders Agreement be amended and
restated as set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties to this Agreement hereby agree as follows:
AGREEMENTS
1. Board of Directors.
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(a) From and after the Closing (as defined in the Purchase Agreement) and
until the provisions of this paragraph 1 cease to be effective, each Investor
shall vote all of its Stockholder Shares (as defined in paragraph 6 hereof) and
any other voting securities of the Company over which such Investor has voting
control and shall take all other necessary or desirable actions within its
control (whether in its capacity as a stockholder, director, member of a board
committee or officer of the Company or otherwise, and including, without
limitation, attendance at meetings in person or by proxy for purposes of
obtaining a quorum and execution of written consents in lieu of meetings), and
the Company shall take all necessary and desirable actions within its control
(including, without limitation, calling special board and stockholder meetings),
so that:
(i) the authorized number of directors on the Board shall be
established at eleven directors;
(ii) the following persons shall be elected to the Board:
(A) one representative designated by Centennial Fund IV, L.P.
("CIV") and one representative designated by Centennial Fund V, L.P. ("CV"),
(CIV and CV collectively are referred to as the "Centennial Funds"); provided
that until the next annual meeting of the Company's stockholders, Xxxx Xxxxxxx
shall serve as the representative of CIV and Xxxxx X. Xxxxxxxx shall serve as
the representative of CV;
(B) one representative designated by Telecom Partners, L.P.,
provided that until the next annual meeting of the Company's stockholders,
Xxxxxxx X. Xxxxxxx shall serve;
(C) one representative designated by Crest Funding Partners, L.P.
provided that until the next annual meeting of the Company's stockholders,
Xxxxxxx X. Xxxxxxx shall serve;
(D) one representative designated by the June Investors holding at
least 66 2/3% of the Underlying Common Stock represented by the Series A
Preferred and the Series B Preferred held by such Investors; provided that until
the next annual meeting of the Company's Stockholders, Xxxxxxx X. Xxxxxxxx shall
serve;
(E) one representative designated by the holders of a majority of
the Underlying Common Stock represented by the Notes or the Series C Preferred,
as the case may be; provided that so long as Prudential Securities Incorporated
and its Affiliates (collectively, "PSI") hold at least 15% of the Underlying
Common Stock represented by the Notes or the Series C Preferred, as the case may
be, such director shall be designated by PSI and its Affiliates; and provided,
further, that
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until the next annual meeting of the Company's Stockholders, Xxxx Xxxxxxx shall
serve; and provided that after a Public Offering, so long as PSI holds at least
7.5% of the Underlying Common Stock, the Company shall use its best efforts to
have the PSI designee nominated to the Board; and
(F) five representatives designated by the Board; provided
that until the next annual meeting of the Company's stockholders, Xxxx X.
Xxxxxx, Xxxxxx XxXxxxxx, Xxxx Xxxxxx, Xxxx Xxxxxxx and Xxxxxxx X. Xxxxxx shall
serve;
(iii) the composition of the board of directors of any of the
Company's subsidiaries (a "Sub Board") shall be as determined by the Board;
(iv) any executive committee or committee performing a similar
function of the Board or a Sub Board must include each representative designated
under (ii)(A), (B), (C) and (E) above;
(v) any compensation committee or committee performing a similar
function of the Board or a Sub Board must include each representative designated
under (ii)(A), (B), (C) and (E) above;
(vi) the removal from the Board or a Sub Board (with or without
cause) of any representative designated hereunder by one or more of the
Investors shall be at the written request of the Investor or Investors entitled
to designate such representative for election as such Board or Sub Board member,
respectively, but only upon such written request and under no other
circumstances (in each case, determined on the basis of the same vote required
to designate such representative);
(vii) in the event that any representative designated hereunder by
the Investors for any reason ceases to serve as a member of the Board or a Sub
Board during his term of office, the resulting vacancy on the Board or the Sub
Board shall be filled by, and the Investors shall vote for the election of, the
representative designated by the Investor or Investors that designated the
member of the Board or Sub Board whose vacancy is being filled.
(b) The Board shall meet at least six times during each calendar year in
accordance with a schedule to be agreed upon by the Board.
(c) If the Board has not done so already, then promptly after the
Closing, the Board will establish audit and compensation committees and shall
delegate to such committees those duties and powers as are customarily performed
by committees of such type. The audit committee shall not include any
representative's of the Company's management.
(d) The reasonable travel expenses of each director designated by an
Investor (an "Investor Director") incurred in attending or observing Board or
committee meetings shall be reimbursed by the Company. After a Public Offering
by the Company, if the Company adopts any plan or arrangement to compensate its
"outside" or
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"independent" directors generally for service as a director either with cash or
with stock options, then the Company will also extend the same compensation to
the Investor Directors and, in the case of stock options, such options shall be
freely transferable by the Investor Directors to their respective firms, subject
to applicable laws.
(e) The rights (but not the obligations) of each Investor under
paragraph 1(a) shall terminate at such time as such Investor and its Permitted
Transferees (as defined in paragraph 2(d) hereof) hold in the aggregate less
than 5% of the number of shares of Underlying Common Stock held by such Investor
and its Permitted Transferees on the date hereof.
(f) The provisions of this paragraph 1 shall terminate
automatically and be of no further force and effect upon the closing of a
Qualified Public Offering (as defined in paragraph 6 hereof).
(g) Each Investor represents that it has not granted and is not a
party to any proxy, voting trust or other agreement which is inconsistent with
or conflicts with the provisions of this Agreement, and no holder of Stockholder
Shares shall grant any proxy or become party to any voting trust or other
agreement which is inconsistent with or conflicts with the provisions of this
Agreement.
(h) The Company shall use its best efforts to obtain and keep in
place directors' and officers' liability insurance.
2. Restrictions on Transfer of Stockholder Shares.
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(a) Transfer of Stockholder Shares. No Investor shall sell,
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transfer, assign, pledge or otherwise dispose of (collectively, "Transfer") any
interest in any Preferred Stock, Underlying Common Stock or the Notes except
pursuant to (i) a Public Sale, a Sale of the Company or any redemption or
conversion provisions of the Certificate of Incorporation or the Notes (each, an
"Exempt Transfer") or (ii) the provisions of this paragraph 2. Each Investor
agrees not to consummate any Transfer (other than an Exempt Transfer) until 30
days after the delivery by the Investor to the Company and the other Investors
of such Investor's Offer Notice (as defined below), unless the parties to the
Transfer have been finally determined pursuant to this paragraph 2 prior to the
expiration of such 30-day period (the "Election Period").
(b) First Offer Right. At least 30 days prior to making any
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Transfer of any Preferred Stock, Underlying Common Stock or the Notes (other
than an Exempt Transfer) the transferring Investor (the "Transferring Investor")
shall deliver a written notice (the "Offer Notice") to the Company and the other
Investors (the "Other Investors"). The Offer Notice shall disclose in reasonable
detail the proposed terms and conditions of the Transfer. First, the Company may
elect to purchase all (but not less than all) of the Preferred Stock, Underlying
Common Stock or the Notes specified in the Offer Notice at the price and on the
terms specified therein by delivering written notice of such election to the
Transferring Investor and the Other Investors as soon as practical
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but in any event within ten days after the delivery of the Offer Notice. If the
Company has not elected to purchase all of the Preferred Stock, Underlying
Common Stock and the Notes within such ten-day period, each Other Investor may
elect to purchase all (but not less than all) of its Pro Rata Share (as defined
below) of the Preferred Stock, Underlying Common Stock and the Notes specified
in the Offer Notice at the price and on the terms specified therein by
delivering written notice of such election to the Transferring Investor as soon
as practical but in any event within 20 days after delivery of the Offer Notice.
Any Preferred Stock, Underlying Common Stock or Notes not elected to be
purchased by the end of such 20-day period shall be reoffered for the ten-day
period prior to the expiration of the Election Period by the Transferring
Investor on a pro rata basis to the Other Investors who have elected to purchase
their Pro Rata Share. If the Company or any Other Investors have elected to
purchase Preferred Stock, Underlying Common Stock or Notes from the Transferring
Investor, the transfer of such interests shall be consummated as soon as
practical after the delivery of the election notices, but in any event within 15
days after the expiration of the Election Period. To the extent that the Company
and the Other Investors have not elected to purchase all of the Preferred Stock,
Underlying Common Stock and the Notes being offered, the Transferring Investor
may, within 90 days after the expiration of the Election Period, transfer such
Preferred Stock, Underlying Common Stock and Notes to one or more third parties
at a price no less than the price per share (or price, in respect of the Notes)
specified in the Offer Notice and on other terms no more favorable to the
transferees than offered to the Company and the Other Investors in the Offer
Notice. The purchase price specified in any Offer Notice shall be payable solely
in cash at the closing of the transaction or in installments over time. If the
Transferring Investor does not dispose of its Preferred Stock, Underlying Common
Stock and Notes within the 90-day period after the expiration of the Election
Period, it shall not subsequently dispose of its Preferred Stock, Underlying
Common Stock and Notes except in accordance with the provisions of this
paragraph 2. Each Investor's "Pro Rata Share" shall be based upon such
Investor's proportionate ownership of all Underlying Common Stock held by all
Investors (exclusive of the Underlying Common Stock held by the Transferring
Investor) on a fully-diluted basis.
(c) Participation Rights.
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(i) At least 30 days prior to any Transfer by the Centennial
Funds (or any Affiliate) of 25% or more (in the aggregate) of (A) the Series A
Preferred or Underlying Common Stock acquired pursuant to the Series A Purchase
Agreement, (B) the Series B Preferred or Underlying Common Stock acquired
pursuant to the Series B Purchase Agreement, (C) Common Stock acquired pursuant
to that certain Purchase Agreement dated December 8, 1996, or (D) any Series C
Preferred or Underlying Common Stock acquired pursuant to the Purchase Agreement
(collectively, the "Centennial Stockholder Shares") (other than a Public Sale or
a Transfer to the Company or the other Investors pursuant to paragraph 2(b)),
the Centennial Funds shall deliver a written notice (the "Centennial Sale
Notice") to the Company and the other Investors, specifying in reasonable detail
the identity of the prospective transferee(s) and the terms and conditions of
the Transfer. The other Investors may elect to
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participate in the contemplated Transfer by delivering written notice to the
Centennial Funds within 30 days after delivery of the Centennial Sale Notice. If
any other Investors have elected to participate in such Transfer, the Centennial
Funds (and any selling Affiliates) and such other Investors shall be entitled to
sell in the contemplated Transfer, at the same price and on the same terms, the
same percentage of total Stockholder Shares owned by each such Investor which is
being or has been sold by the Centennial Funds.
For example, if after selling 24% of their Centennial Stockholder
Shares, the Centennial Funds proposed to sell a number of additional
Centennial Stockholder Shares so that following such sale the
Centennial Funds would have sold more than 25% of the Centennial
Stockholder Shares, then each Investor electing to participate would
be entitled to sell a like percentage of its holdings; provided that
if the prospective transferee were not willing to purchase all of the
offered Stockholder Shares, then the Centennial Funds and each
participating Investor would reduce its number of Stockholder Shares
so that the percentages being sold were substantially the same.
To the extent the terms of this Section 2(c)(i) conflict with Section 1(c)
of the Amended and Restated Initial Stockholder Agreement, dated June 27,
1996, between the Company and certain of the Investors (the "Initial
Stockholders Agreement"), the term of this Section 2(c) shall control.
(ii) At least 30 days prior to any Transfer by one or more of the
Investors, other than PSI and its Affiliates, of 25% or more (in the aggregate)
in a single transaction or series of related transactions of any Series C
Preferred or Underlying Common Stock acquired pursuant to the Purchase Agreement
(the "Transferring Investors") (other than a Public Sale or a Transfer to the
Company or the other Investors pursuant to paragraph 2(b)), the Transferring
Investors shall deliver a written notice (the "Prudential Sale Notice") to the
Company and Prudential Securities Incorporated, specifying in reasonable detail
the identity of the prospective transferee(s) and the terms and conditions of
the Transfer. PSI and its Affiliates who are Investors may elect to participate
in the contemplated Transfer by delivering written notice to the Transferring
Investors within 30 days after delivery of the Prudential Sale Notice. If PSI
and/or such Affiliates, as the case may be, have elected to participate in such
Transfer, the Transferring Investors and PSI and/or such Affiliates, as the case
may be, shall be entitled to sell in the contemplated Transfer, at the same
price and on the same terms, the same percentage of total Stockholder Shares
owned by Prudential Securities Incorporated and/or such Affiliates, as the case
may be, which is being or has been sold by the Transferring Investors.
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(d) Permitted Transfers.
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(i) The restrictions contained in this paragraph 2 shall not
apply with respect to any Transfer of Preferred Stock, Underlying Common Stock
or Notes by (i) any Investor among its Affiliates, Family Group or pursuant to
applicable laws of descent and distribution (collectively referred to herein as
"Permitted Transferees"); provided that the restrictions contained in this
paragraph 2 shall continue to be applicable to the Preferred Stock, Underlying
Common Stock and the Notes after any such Transfer and provided further that, as
a condition to completing the transfer, the transferees of such Preferred Stock,
Underlying Common Stock or Notes shall agree in writing to be bound by the
provisions of this Agreement affecting the Preferred Stock, Underlying Common
Stock and the Notes so transferred. "Affiliate" of an Investor means any other
person, entity or investment fund controlling, controlled by or under common
control with the Investor and any partner of an Investor which is a partnership.
"Family Group" means an Investor's spouse, and descendants (whether natural or
adopted) and any trust solely for the benefit of the Investor and/or the
Investor's spouse and/or descendants.
(ii) In the event that BancBoston Ventures Inc. ("BancBoston")
reasonably determines that it has a Regulatory Problem (as defined below),
BancBoston shall have the right to (A) transfer its Preferred Stock, Underlying
Common Stock and Notes to a party (also a "Permitted Transferee") other than the
Company and the other Investors, provided that the restrictions contained in
this paragraph 2 shall continue to be applicable to the Preferred Stock,
Underlying Common Stock and the Notes after any such Transfer and, provided,
further, that, as a condition to completing the Transfer, the of such Preferred
Stock, Underlying Common Stock or Notes shall agree in writing to be bound by
the provisions of this Agreement affecting the Preferred Stock, Underlying
Common Stock and Notes so transferred, or (B) exchange its Preferred Stock,
Underlying Common Stock and Notes for non-voting securities in the Company with
the same economic rights. The Company shall take all such actions as are
reasonably requested by BancBoston in order to (A) effectuate and facilitate any
such Transfer or (B) permit BancBoston to exchange for all or any portion of its
Preferred Stock, Underlying and Notes, on a share-for-share basis, for shares of
non-voting securities of the Company, which non-voting securities shall be
identical in all respects to the shares exchanged for them, except that such
exchanged securities shall be non-voting, shall be convertible into voting
securities on such terms as are reasonably requested by BancBoston in light of
regulatory considerations then prevailing, and shall not alter the economic
interests of the parties hereto. For purposes of this Agreement, a "Regulatory
Problem" means any set of facts or circumstances wherein it has been asserted by
any governmental authority, including the United States Small Business
Administration (the "SBA"), and any successor agency satisfactory to the Company
performing the functions thereof (or based on written advice of counsel
satisfactory to the Company and/or BancBoston that, based on its reasonable
belief, there is a substantial risk of such assertion), that, pursuant to the
Small Business Act of 1958, as amended, and the regulations issued by the SBA
thereunder, codified at Title 13 of the Code of Federal Regulations, Parts 107
and 121 (the "SBIC Regulations"), or pursuant
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to the Bank Holding Company Act, as amended, and the regulations issued
thereunder, BancBoston is not entitled to hold all or a portion of the Preferred
Stock, Underlying Common Stock or Notes held by it. Notwithstanding the above,
BancBoston will use reasonable efforts to transfer its Preferred Stock,
Underlying Common Stock and Notes to the Company and the Investors so long as
such Transfer does not adversely affect BancBoston's ability to maximize the
consideration it receives upon a transfer of its Preferred Stock, Underlying
Common Stock and Notes.
(e) Termination of Restrictions. The restrictions set forth in
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this paragraph 2 shall continue with respect to each share of Preferred Stock,
Underlying Common Stock and to each Note until the earlier of (i) the date on
which such Preferred Stock, Underlying Common Stock or Note has been transferred
in a Public Sale, (ii) the date on which such Preferred Stock, Underlying Common
Stock or Note has been transferred pursuant to this paragraph 2 (other than
subparagraph 2(d), (iii) the consummation of a Qualified Public Offering or (iv)
the consummation of a Sale of the Company.
3. Legend. Each certificate evidencing Stockholder Shares, each Note,
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and each certificate issued in exchange for or upon the transfer of any
Stockholder Shares (if such shares remain Stockholder Shares as defined herein
after such transfer) shall be stamped or otherwise imprinted with a legend in
substantially the following form:
"The securities represented by this certificate are subject to a
Stockholders Agreement dated as of October 3, 1997, among the issuer
of such securities (the "Company") and certain of the Company's
stockholders. A copy of such Stockholders Agreement will be furnished
without charge by the Company to the holder hereof upon written
request."
The Company shall imprint such legend on certificates evidencing Stockholder
Shares or on each Note outstanding prior to the date hereof. The legend set
forth above shall be removed from the certificates evidencing any shares which
cease to be Stockholder Shares or any Note in accordance with paragraph 2
hereof.
4. Transfer. Prior to transferring any Stockholder Shares
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(other than in an Exempt Transfer) to any person or entity, the transferring
Stockholder shall cause the prospective transferee to execute and deliver to the
Company and the other Stockholders a counterpart of this Agreement.
5. Assignment of First Refusal Right. The Company has (a) adopted its
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1996 Stock Option Plan, (b) granted Incentive Stock Options to certain of its
employees (the "Optionees"), and (c) entered into Early Exercise Stock Purchase
Agreements with the Optionees (the documents referred to in (a), (b) and (c) are
collectively defined as the "Stock Option Agreements"). The Stock Option
Agreements contain provisions granting the Company certain repurchase rights and
rights of first refusal with respect to Common Stock held by the Optionees. In
the event the Company elects not to exercise
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such repurchase rights and rights of first refusal, the Company agrees to assign
such unexercised rights to the Investors. Any unexercised right shall be
assigned at least 10 days prior to its expiration. The Investors shall be
permitted to purchase their Pro Rata Share of any Common Stock being offered and
the offer shall be conducted in accordance with the procedures set forth in
paragraph 2 of this Agreement. For purposes of this paragraph 5, "Pro Rata
Share" shall be based upon each Investor's proportionate ownership of all Common
Stock and Underlying Common Stock held by all Investors.
6. Definitions.
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"Affiliate" of any particular Person means any other Person controlling,
controlled by or under common control with such particular Person.
"Certificate of Incorporation" means the Company's Amended and Restated
Certificate of Incorporation setting forth the rights and preferences of the
Preferred Stock.
"Common Stock" means the Company's Common Stock, par value $.01 per share.
"Independent Third Party" means any person who, immediately prior to the
contemplated transaction, does not own in excess of 5% of the Company's Common
Stock, on a fully-diluted basis (a "5% Owner"), who is not controlling,
controlled by or under common control with any such 5% Owner and who is not the
spouse or descendent (by birth or adoption) of any such 5% Owner or a trust for
the benefit of such 5% Owner and/or such other persons.
"Permitted Transferee" shall have the meaning set forth in paragraph 2(c)
hereof.
"Person" means an individual, a partnership, a corporation, an association,
a joint stock company, a trust, a joint venture, a limited liability company, an
unincorporated organization and a governmental entity or any department, agency
or political subdivision thereof.
"Preferred Stock" means the Company's (i) Series A Convertible Preferred
Stock, par value $.01 per share, (ii) Series B Convertible Preferred Stock, par
value $.01 per share and (iii) Series C Convertible Preferred Stock, par value
$.01 per share.
"Public Offering" means any offering by the Company of its equity
securities to the public pursuant to an effective registration statement under
the Securities Act, or any comparable statement under any similar federal
statute then in force; provided that a Public Offering shall not include an
offering made in connection with a business acquisition or combination or an
employee benefit plan.
"Public Sale" means any sale of Stockholder Shares to the public pursuant
to an offering registered under the Securities Act or to the public through a
broker, dealer or market maker pursuant to the provisions of Rule 144 adopted
under the Securities Act.
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"Qualified Public Offering" means the sale, in an underwritten Public
Offering registered under the Securities Act, of shares of the Company's Common
Stock in which (i) the aggregate proceeds (after taking into account
underwriting discounts and commissions) received by the Company for the shares
is at least $20,000,000 and (ii) the price per share paid by the public is at
least $6.00 (as adjusted for stock splits, reverse stock splits, stock dividends
and similar recapitalizations).
"Sale of the Company" means the sale of the Company, in one transaction or
a series of related transactions, to an Independent Third Party or group of
Independent Third Parties pursuant to which such party or parties acquire (i)
capital stock of the Company possessing the voting power under normal
circumstances to elect a majority of the Company's board of directors (whether
by merger, consolidation or sale or transfer of the Company's capital stock) or
(ii) all or substantially all of the Company's assets determined on a
consolidated basis.
"Securities Act" means the Securities Act of 1933, as amended from time to
time.
"Stockholder Shares" means (i) any Common Stock purchased or otherwise
acquired by any Investor, (ii) any Preferred Stock purchased or otherwise
acquired by any Investor, (iii) any Notes which shall be entitled to vote with
the Common Stock and the Preferred Stock on an as-converted to Common Stock
basis until converted into shares of the Company's Series C Preferred or Common
Stock, (iv) any equity securities issued or issuable directly or indirectly with
respect to the Common Stock, Preferred Stock or Notes referred to in clause (i),
(ii) or (iii) above by way of stock dividend or stock split or in connection
with a combination of shares, recapitalization, merger, consolidation or other
reorganization, and (v) any other shares of any class or series of capital stock
of the Company held by an Investor. As to any particular shares constituting
Stockholder Shares, such shares will cease to be Stockholder Shares when they
have been (x) effectively registered under the Securities Act and disposed of in
accordance with the registration statement covering them or (y) sold to the
public through a broker, dealer or market maker pursuant to Rule 144 under the
Securities Act (or any similar provision then in force). In calculating the
number of Stockholder Shares, any Stockholder Shares represented by the
Preferred Stock shall equal the number of shares of Common Stock issuable upon
conversion of the Preferred Stock and any Stockholders Shares represented by the
Notes shall be equal to the number of shares of Common Stock issuable upon
conversion of the Notes.
"Underlying Common Stock" means (i) the Common Stock issued or issuable
upon conversion of the Series A Preferred, Series B Preferred and the Series C
Preferred or the Notes, as the case may be, and (ii) any Common Stock issued or
issuable with respect to the securities referred to in clause (i) above by way
of stock dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization. For purposes of
this Agreement, any Person who holds Preferred Stock or Notes shall be deemed to
be the holder of the Underlying Common Stock obtainable upon conversion of
Preferred Stock or the Notes, as the case
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may be, in connection with the transfer thereof or otherwise regardless of any
restriction or limitation on the conversion of the Preferred Stock or the Notes,
as the case may be.
7. Transfers in Violation of Agreement. Any Transfer or
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attempted Transfer of any Stockholder Shares in violation of any provision of
this Agreement shall be void, and the Company shall not record such Transfer on
its books or treat any purported transferee of such Stockholder Shares as the
owner of such shares for any purpose.
8. Amendment and Waiver. Except as otherwise provided herein, no
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modification, amendment or waiver of any provision of this Agreement shall be
effective against the Company or the Investors unless such modification,
amendment or waiver is approved in writing by the Company or the holders of a
majority of the Stockholder Shares, respectively; (i) provided that any
provision which requires a greater percentage for amendment or waiver may only
be amended or waived by the holders of such greater percentage and (ii)
provided, further, that any provision which is solely for the benefit of a
single Investor or group of Investors or imposes an obligation on a single
Investor or group of Investors may not be amended without the consent of that
Investor or the holders of a majority of the interests held by the group of
Investors, respectively. The failure of any party to enforce any of the
provisions of this Agreement shall in no way be construed as a waiver of such
provisions and shall not affect the right of such party thereafter to enforce
each and every provision of this Agreement in accordance with its terms. No
provision may be added to this Agreement to confer a benefit upon a single
Investor or group of Investors to the exclusion of the other Investors (the
"Other Investors"), without the consent of the holders of a majority of the
interests held by the Other Investors.
9. Severability. Whenever possible, each provision of this
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Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality, or unenforceability shall not affect
any other provision or any other jurisdiction, but this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
10. Integration. Except as otherwise expressly set forth herein,
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this Agreement together with the Purchase Agreement and the other documents
referred to therein sets forth the entire agreement between the Company and the
Investors with respect to the subject matter covered hereby and supersedes all
prior or contemporaneous oral or written agreements, arrangements, or
understandings, including the Amended and Restated Stockholders Agreement and
the Initial Stockholders Agreement, except as set forth in Sections 2(c)(i) and
16.
11. Successors and Assigns. Except as otherwise provided herein,
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this Agreement shall bind and inure to the benefit of and be enforceable by the
Company and its successors and assigns and the Investors and any subsequent
holders of Stockholder
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Shares and the respective successors and assigns of each of them, so long as
they hold Stockholder Shares.
12. Counterparts; Facsimile. This Agreement may be executed in
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separate counterparts each of which shall be an original and all of which taken
together shall constitute one and the same agreement. This Agreement may be
executed by facsimile.
13. Remedies. The Company and the Investors shall be entitled to
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enforce their rights under this Agreement specifically to recover damages by
reason of any breach of any provision of this Agreement and to exercise all
other rights existing in their favor. The parties hereto agree and acknowledge
that money damages may not be an adequate remedy for any breach of the
provisions of this Agreement and that the Company and any Investor may in its
sole discretion apply to any court of law or equity of competent jurisdiction
for specific performance and/or injunctive relief (without posting a bond or
other security) in order to enforce or prevent any violation of the provisions
of this Agreement.
14. Notices. Any notice provided for in this Agreement shall be
-------
in writing and shall be either personally delivered, or mailed first class mail
(postage prepaid) or sent by reputable overnight courier service (charges
prepaid) to the Company at the address set forth below and to any other
recipient at the address indicated on the Schedule of Investors attached hereto
and to any subsequent holder of Stockholder Shares subject to this Agreement at
such address as indicated by the Company's records, or at such address or to the
attention of such other person as the recipient party has specified by prior
written notice to the sending party. Notices will be deemed to have been given
hereunder when delivered personally, three days after deposit in the U.S. mail
and one day after deposit with a reputable overnight courier service. The
Company's address is:
Centennial Communications Corp.
0000 Xxxxxxx, Xxxxx 000
Xxxxxx Xxxxxxxx 00000
Attn: Chief Executive Officer
with copies to:
Holland & Xxxx LLP
000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx
15. Governing Law. The corporate law of the State of Delaware
-------------
shall govern all issues concerning the relative rights of the Company and its
stockholders. All other questions concerning the construction, validity and
interpretation of this Agreement shall be governed by the internal law, and not
the law of conflicts, of the State of Colorado.
-12-
16. Termination of Amended and Restated Stockholders Agreement.
----------------------------------------------------------
The Investors hereby agree that (i) the Amended and Restated Stockholders
Agreement shall be superseded by this Agreement and be of no further force and
effect and (ii) the Initial Stockholders Agreement, with the exception of
Section 1(c) of that agreement, which shall survive, shall be superseded by this
Agreement and be of no further force and effect.
17. Descriptive Headings. The descriptive headings of this
--------------------
Agreement are inserted for convenience only and do not constitute a part of this
Agreement.
18. Written Consent of Stockholders. The Investors, by their
-------------------------------
signature hereto, acting by written consent pursuant to Section 228 of the
Delaware General Corporation Law, hereby appoint Xxxx Xxxxxxx to serve on the
Board until the next annual meeting of the Company's Stockholders.
* * * * *
-13-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
CENTENNIAL COMMUNICATIONS CORP.
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxx
------------------------------------
Title: CEO
------------------------------------
PRUDENTIAL SECURITIES INCORPORATED
By: /s/ Xxxxxx Xxxx
--------------------------------------
Name: Xxxxxx Xxxx
------------------------------------
Title: Managing Director
------------------------------------
THE ROMAN ARCH FUND, L.P.
By: /s/ Xxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxx
------------------------------------
Title: MD
------------------------------------
THE ROMAN ARCH FUND II, L.P.
By: /s/ Xxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxx
------------------------------------
Title: MD
-----------------------------------
PRUDENTIAL BACHE CAPITAL PARTNERS II, L.P.
By:
--------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
CENTENNIAL FUND IV, L.P.
By: Centennial Holdings IV, L.P.
Its: General Partner
By: /s/ Xxxx Xxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxx
---------------------------------
Title: General Partner of Centennial Holdings
----------------------------------------
IV, L.P.
---------------------------------
-14-
TELECOM PARTNERS, L.P.
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Title: Managing Member of the General
Partner
CENTENNIAL ENTREPRENEURS FUND V, L.P.
By: Centennial Holdings V, L.P.
Its: General Partner
By: /s/ Xxxx Xxxxxxx
---------------------------------
Name: Xxxx Xxxxxxx
---------------------------------
Title: General Partner of Centennial Holdings
--------------------------------------
V, L.P.
-------------------------------
CENTENNIAL FUND V, L.P.
By: Centennial Holdings V, L.P.
Its: General Partner
By: /s/ Xxxx Xxxxxxx
---------------------------------
Name: Xxxx Xxxxxxx
---------------------------------
Title: General Partner of Centennial
--------------------------------
Holdings V, L.P.
--------------------------------
MGVF II, LTD.
By: /s/ [illegible signature]
---------------------------------
General Partner
CREST FUNDING PARTNERS, L.P.
By Crest Partner I, its General Partner
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxx
---------------------------------
Title: Managing Member
--------------------------------
TRAILHEAD VENTURES, L.P.
By: Wind River Partners
By: /s/ [illegible signature]
---------------------------------
Name:
---------------------------------
Title: General Partner
BOULDER VENTURES, L.P.
-15-
By: /s/ Xxxx Xxxxxxx
---------------------------
Name: Xxxx Xxxxxxx
---------------------------
Title: Partner
--------------------------
GC&H INVESTMENTS
By: /s/ Xxxx X. Xxxxxxx
----------------------------
Name: Xxxx X. Xxxxxxx
--------------------------
Title: Executive Partner
-------------------------
/s/ Xxxxxxx Xxxxxx
-------------------------------
Xxxxxxx Xxxxxx
/s/ Xxxxxx XxXxxxxx
-------------------------------
Xxxxxx XxXxxxxx
-------------------------------
Xxxx X. Xxxxxx
CENTENNIAL HOLDINGS, INC.
By:/s/ Xxxx Xxxxxxx
----------------------------
Name: Xxxx Xxxxxxx
--------------------------
Title: Senior Vice President
-------------------------
CENTENNIAL HOLDINGS I, LLC
By:/s/ Xxxx Xxxxxxx
----------------------------
Name: Xxxx Xxxxxxx
--------------------------
Title: Senior Vice President
-------------------------
CREST SMR, L.L.C.
By: CREST PARTNERS (I) LLC
Its: Managing Member
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxx
--------------------------
Title: Managing Director
-------------------------
-16-
XXXX XXXXXXX*
By: /s/ Xxxx Xxxxxxx
--------------------------------
*as attorney in fact for the following
Purchasers:
Xxxxx Xxxxx
Jurassic Ltd.
Xxxx Xxxxxx
Xxxxx Xxxxx
Will's Wei Corp.
Xxxxxx Xxxxx
Xxxxxxxxx Family LLC
Xxx Xxxxxx
Xxxxx 1990 Living Trust
Groupe Xxxxxxxxx Securities
JLS LLC
Xxxx Xxxxx
Trisun Financial, LLC
Xxxx Xxxxxx
Xxxxx, Inc.
250 Venture Capital Associates
BANCBOSTON VENTURES INC.
By: /s/ Xxxx X. Xxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxx
-------------------------------
Title: Vice President
-------------------------------
/s/ Xx Xxxxxxxx
-------------------------------------
Xx Xxxxxxxx
/s/ Xxxxxxx Xxxxxxxxxx
-------------------------------------
Xxxxxxx Xxxxxxxxxx
/s/ Xxxx Xxxxxxx
-------------------------------------
Xxxx Xxxxxxx
/s/ Xxxx Xxxxx
-------------------------------------
Xxxx Xxxxx
/s/ Matt Zuschalg
-------------------------------------
Xxxx Xxxxxxxx
/s/ Xxxx Xxxx
-------------------------------------
Xxxx Xxxx
-17-
/s/ Xxxxxxx Xxxxxx
-------------------------------
Xxxxxxx Xxxxxx
/s/ Xxxxxxx Xxxxxx
-------------------------------
Xxxxxxx Xxxxxx
-18-
SCHEDULE OF INVESTORS
---------------------
Telecom Partners, L.P. Centennial Fund IV, L.P.
0000 00xx Xxxxxx 0000 00xx Xxxxxx
Xxxxxx, XX 00000 Xxxxxx, XX 00000
Centennial Holdings, Inc. Centennial Fund V, L.P.
0000 00xx Xxxxxx 0000 00xx Xxxxxx
Xxxxxx, XX 00000 Xxxxxx, XX 00000
Centennial Entrepreneurs Fund V, L.P. Xxxx X. Xxxxxx
0000 00xx Xxxxxx 0000 Xxxxxxx, Xxxxx 000
Xxxxxx, XX 00000 Xxxxxx, XX 00000
Xxxxxx XxXxxxxx Xxxxxxx Xxxxxx
00 Xxxxxxx Xxxxxx 00 Xxxxxxxx Xxxxx
Xxxxxx XX 00000 Xxxxxxxxx, XX 00000
Trailhead Ventures, L.P. MGVF II, Ltd.
000 00xx Xxxxxx, Xxxxx 000 2400 Banc Xxx Xxxxxx
Xxxxxx, XX 00000 000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Boulder Ventures, L.P. Crest Funding Partners, L.P.
0000 Xxxxxx Xxxxxx, Xxxxx 000 000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000 Xxx Xxxx, XX 00000
Crest SMR, L.L.C. Xxxxx Xxxxx
000 Xxxx Xxxxxx, 00xx Xxxxx x/x Xxxx Xxxxxxx
Xxx Xxxx, XX 00000 0000 Xxxxxx Xx., Xxxxx 000
Xxxxxxx, XX 00000
Jurassic Ltd. Xxxx Xxxxxx
c/o Xxxx Xxxxxxx c/o Xxxx Xxxxxxx
0000 Xxxxxx Xx., Xxxxx 000 0000 Xxxxxx Xx., Xxxxx 000
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Xxxxx Xxxxx Will's Wei Corp.
c/o Xxxx Xxxxxxx c/o Xxxx Xxxxxxx
0000 Xxxxxx Xx., Xxxxx 000 0000 Xxxxxx Xx., Xxxxx 000
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Centennial Holdings I, LLC
0000 00xx Xxxxxx
Xxxxxx, XX 00000
Xxxxxx Xxxxx Xxxxxxxxx Family LLC
c/o Xxxx Xxxxxxx c/o Xxxx Xxxxxxx
0000 Xxxxxx Xx., Xxxxx 000 0000 Xxxxxx Xx., Xxxxx 000
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Xxx Xxxxxx Xxxxx 1990 Living Trust
c/o Xxxx Xxxxxxx c/o Xxxx Xxxxxxx
0000 Xxxxxx Xx., Xxxxx 000 0000 Xxxxxx Xx., Xxxxx 000
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Groupe Xxxxxxxxx Securities JLS LLC
c/o Xxxx Xxxxxxx c/o Xxxx Xxxxxxx
0000 Xxxxxx Xx., Xxxxx 000 0000 Xxxxxx Xx., Xxxxx 000
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Xxxx Xxxxx Trisun Financial, LLC
c/o Xxxx Xxxxxxx c/o Xxxx Xxxxxxx
0000 Xxxxxx Xx., Xxxxx 000 0000 Xxxxxx Xx., Xxxxx 000
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Xxxx Xxxxxx Xxxxx, Inc.
c/o Xxxx Xxxxxxx c/o Xxxx Xxxxxxx
0000 Xxxxxx Xx., Xxxxx 000 0000 Xxxxxx Xx., Xxxxx 000
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
250 Venture Capital Assoc. BancBoston Ventures Incorporated
c/o Xxxx Xxxxxxx 000 Xxxxxxx Xx., 00xx Xxxxx
0000 Xxxxxx Xx., Xxxxx 000 Xxxxxx XX 00000
Xxxxxxx, XX 00000
Xx Xxxxxxxx Xxxxxxx Xxxxxx
00000 X. Xxxxxxxxx Xxx., Xxxxx 000 1610 Xxxxxxx, Suite 300
Englewood, CO 80112 Xxxxxx, XX 00000
Xxxxxxx Xxxxxxxxxx Xxxx Xxxxxxx
0000 Xxxxxxx, Xxxxx 000 1610 Wynkoop, Suite 300
Xxxxxx, XX 00000 Xxxxxx, XX 00000
Xxxx Xxxxxxxx Xxxx Xxxx
0000 Xxxxxxx, Suite 300 1610 Wynkoop, Suite 300
Xxxxxx, XX 00000 Xxxxxx, XX 00000
2
Xxxx Xxxxx
0000 Xxxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Xxxxxxx Xxxxxx Prudential Securities Incorporated
1610 Wynkoop, Suite 000 Xxx Xxx Xxxx Xxxxx, 00xx Xxxxx
Xxxxxx, XX 00000 Xxx Xxxx, XX 00000-0000
The Roman Arch Fund, L.P. The Roman Arch Fund II, L.P.
Prudential Securities Incorporated Prudential Securities Incorporated
One New York Plaza, 18th Floor Xxx Xxx Xxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000 Xxx Xxxx, XX 00000-0000
GC&H Investments
0 Xxxxxxxx Xxxxx
00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000-0000
3
