FIRST AMENDMENT TO
STOCKHOLDERS AGREEMENT
THIS FIRST AMENDMENT TO STOCKHOLDERS AGREEMENT (the "Amendment") is made as
of June 10, 1994, by and among United USN, Inc., a Delaware corporation (the
"Company"), CIBC Wood Gundy Ventures, Inc., a Delaware corporation ("CIBC"),
Chemical Venture Capital Associates, a California limited partnership
("Chemical"), Xxxxxxx Venture Partners IV - Direct Fund L.P., a Delaware limited
partnership ("Xxxxxxx" and, collectively with CIBC and Chemical, the
"Investors"), and the United Stockholders (as defined in that certain
Stockholders Agreement dated as of April 20, 1994 (the "Stockholders Agreement")
by and among the Company, CIBC, Chemical and the United Stockholders), and
amends the Stockholders Agreement.
Xxxxxxx will purchase shares of the Company's Common Stock, par value $.01
per share, and Series A 10% Senior Cumulative Preferred Stock, par value $1.00
per share, pursuant to a First Amendment to Purchase Agreement between the
Investors and the Company dated as of the date hereof.
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 Amendment hereby agree as follows:
1. Xxxxxxx hereby agrees that by its execution of this Amendment it shall
become a party to and be bound by the terms and provisions of the Stockholders
Agreement, as amended hereby, and the term "Investors" as used in the
Stockholders Agreement, as amended hereby, shall be deemed to include Xxxxxxx.
2. Paragraph l(a)(ii)(A) of the Stockholders Agreement is amended and
restated as follows:
(A) three representatives designated by the holders of Investor Common
Stock, determined by a vote of the holders of 66 2/3% of the outstanding
Investor Common Stock (the "Investor Directors"); and
3. Paragraph l(a)(iv) of the Stockholders Agreement is amended and
restated as follows:
(iv) any representatives the Company is entitled to designate to the
board of directors of any subsidiary of the Company other than Network (the
"Sub Directors") shall be designated by the holders of Investor Common
Stock, determined by a vote of the holders of 66 2/3% of the outstanding
Investor Common Stock.
4. Paragraph l(a)(v) of the Stockholders Agreement is amended and restated
as follows:
(v) the removal from the Board or the Network Board (with or without
cause) of any representative designated hereunder by the holders of
Investor Common Stock or by Xxxxxxxxxxx shall be at the written request of
holders of 66 2/3% of the Investor Common Stock or Xxxxxxxxxxx,
respectively, but only upon such written request and under no other
circumstances (in the case of the Investor Common Stock, determined on the
basis of a vote of the holders of 66 2/3% of the outstanding Investor
Common Stock), provided that if any director elected pursuant to (ii)(B)
above ceases to be an employee of the Company and its subsidiaries, such
director shall be removed as a director promptly after his employment
ceases;
5. Paragraph l(a)(vi) of the Stockholders Agreement is amended and
restated as follows:
(vi) the removal of a Sub Director shall be at the written request of
holders of 66 2/3% of the Investor Common Stock, but only upon such written
request and under no other circumstances, determined on the basis of a vote
of the holders of 66 2/3% of the outstanding Investor Common Stock;
6. Paragraph l(a)(vii) of the Stockholders Agreement is amended and
restated as follows:
(vii) in the event that any representative designated hereunder by the
holders of Investor Common Stock or Xxxxxxxxxxx for any reason ceases to
serve as a member of the Board or the Network Board during such director's
term of office, the resulting vacancy on the Board or the Network Board
shall be filled by a representative designated by the holders of 66 2/3% of
the outstanding Investor Common Stock or Xxxxxxxxxxx, respectively, as
provided hereunder;
7. Paragraph l(a)(viii) of the Stockholders Agreement is amended and
restated as follows:
(viii) in the event a Sub Director for any reason ceases to serve as a
member of such director's respective board of directors, the resulting
vacancy shall be filled by a representative designated by the holders of
66 2/3% of the outstanding Investor Common Stock as provided hereunder; and
8. Paragraph l(g) of the Stockholders Agreement is amended and restated as
follows:
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(g) Notwithstanding anything to the contrary contained in this
paragraph 1, in the event a Third Party Purchaser (as defined in the
Purchase Agreement) participates in a Tranche II Closing (as defined in the
Purchase Agreement), paragraph l(a)(i) shall provide that the authorized
number of directors on the Board shall be established at seven directors
and paragraph l(a)(ii)(A) shall provide for five representatives designated
by the holders of Investor Common Stock, determined by a vote of the
holders of 66 2/3% of the outstanding Investor Common Stock, to be elected
to the Board. All other provisions of paragraph 1 shall remain in full
force and effect.
9. The following Paragraph l(i) is added to the Stockholders Agreement:
(i) Notwithstanding the provisions in this paragraph 1, if the
authorized number of directors on the Board is increased, the persons
filling such Board positions shall be designated by the holders of Investor
Common Stock, determined by a vote of the holders of 66 2/3% of the
outstanding Investor Common Stock.
10. Paragraph 9 of the Stockholders Agreement is amended and restated as
follows:
9. Sale of the Company. If the Board and the holders of 66 2/3% of
the shares of Investor Common Stock then outstanding approve a sale of all
or substantially all of the Company's assets determined on a consolidated
basis or a sale of all or substantially all of the Company's outstanding
capital stock (whether by merger, recapitalization, consolidation,
reorganization, combination or otherwise) to any other person or entity
(collectively an "Approved Sale"), each Stockholder shall vote for, consent
to and raise no objections against such Approved Sale. If the Approved Sale
is structured as a (i) merger or consolidation, each Stockholder shall
waive any dissenters rights, appraisal rights or similar rights in
connection with such merger or consolidation or (ii) sale of stock, each
Stockholder shall agree to sell all of his shares of Common Stock and
rights to acquire shares of Common Stock on the terms and conditions
approved by the Board and the holders of 66 2/3% of the Investor Common
Stock then outstanding. Each Stockholder shall take all necessary or
desirable actions in connection with the consummation of the Approved Sale
as requested by the Company.
11. Paragraph 10 of the Stockholders Agreement is amended and restated as
follows:
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10. Amendment and Waiver. Except as otherwise provided herein, no
modification, amendment or waiver of any provision of this Agreement shall
be effective against the Company or the Stockholders unless such
modification, amendment or waiver is approved in writing by the Company,
the holders of 66 2/3% of the outstanding Investor Common Stock and the
holders of a majority of the Stockholder Shares which are not Investor
Common Stock. 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.
12. The Schedule of Investors attached to the Stockholders Agreement is
amended and restated as attached hereto.
13. The parties hereby acknowledge that pursuant to Section 10 of the
Stockholders Agreement (as in effect immediately prior to this Amendment) this
Amendment shall become effective when executed by the holders of a majority of
the outstanding Investor Common Stock and the holders of a majority of the
Stockholder Shares which are not Investor Common Stock.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment on the
day and year first above written.
UNITED USN, INC.
/s/ Xxxxxx X. Xxxxxxxxxxx
-----------------------------------------
By: Xxxxxx X. Xxxxxxxxxxx
Its: Chief Executive Officer
CIBC WOOD GUNDY VENTURES, INC.
/s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
By: Xxxxxxx X. Xxxxxx
Its: President
CHEMICAL VENTURE CAPITAL ASSOCIATES
/s/ Xxxxxx X. Xxxxxxx, Xx.
-----------------------------------------
By:
--------------------------------------
Its:
-------------------------------------
XXXXXXX VENTURE PARTNERS IV - DIRECT
FUND L.P.
By: BACK BAY PARTNERS XII L.P.
By: XXXXXXX VENTURE PARTNERS, INC.
-----------------------------------------
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------
Its: SVP
-------------------------------------
/s/ XXXXXX X. XXXXXXXXXXX
-----------------------------------------
XXXXXX X. XXXXXXXXXXX
/s/ XXXXXX X. XXXXXXXXXXX
-----------------------------------------
XXXXXX X. XXXXXXXXXXX, as Trustee
for Xxxxx X. Xxxxxxxxx
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FIRST CONTINENTAL CAPITAL
CORPORATION
/s/ X. X. Xxxxxxxxx
-----------------------------------------
By: X. X. Xxxxxxxxx
--------------------------------------
Its: President
-------------------------------------
/s/ Xxxxx Xxxxxxx, Attorney in Fact
/s/ Xxxxx Xxxxxxxxx, Attorney in Fact
-----------------------------------------
XXXXX XXXXXXX
/s/ Xxxxx Xxxxxxx, Attorney in Fact
/s/ Xxxxx Xxxxxxxxx, Attorney in Fact
-----------------------------------------
XXXXXX XXXXXXX
/s/ Xxxxx Xxxxxxx, Attorney in Fact
/s/ Xxxxx Xxxxxxxxx, Attorney in Fact
-----------------------------------------
XXXXXX XXXXXXXXX
/s/ Xxxxx Xxxxxxx, Attorney in Fact
/s/ Xxxxx Xxxxxxxxx, Attorney in Fact
-----------------------------------------
XXXXX XXXXXXXX
/s/ Xxxxx Xxxxxxx, Attorney in Fact
/s/ Xxxxx Xxxxxxxxx, Attorney in Fact
-----------------------------------------
XXXXXX XXXXXX
/s/ Xxxxx Xxxxxxx, Attorney in Fact
/s/ Xxxxx Xxxxxxxxx, Attorney in Fact
-----------------------------------------
XXX XXXXXXXXXX
/s/ Xxxxx Xxxxxxx, Attorney in Fact
/s/ Xxxxx Xxxxxxxxx, Attorney in Fact
-----------------------------------------
AL DENTALE, JR.
/s/ Xxxxx Xxxxxxx, Attorney in Fact
/s/ Xxxxx Xxxxxxxxx, Attorney in Fact
-----------------------------------------
DEMO CERVELLI
/s/ XXXXX XXXXXXX
-----------------------------------------
XXXXX XXXXXXX
/s/ XXXXX XXXXXXXXX
-----------------------------------------
XXXXX XXXXXXXXX
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SCHEDULE OF INVESTORS
---------------------
CIBC Wood Gundy Ventures, Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxx, President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Chemical Venture Capital Associates
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxx, Xx.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Xxxxxxx Venture Partners IV - Direct Fund L.P.
Xxx Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
