EXHIBIT D
October 21, 1994
The Purchasers Under the
Investment Agreement Dated
October 21, 1994
c/o The Xxxx Alternative Income Fund, L.P.
00 Xxxxxxxx Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Gentlemen:
In order to induce you to consummate the closing under
the investment agreement dated October 21, 1994 among American
Communications Services, Inc. (the "Company") and you, the
undersigned agree as follows:
1. Co-Sale. If, at any time prior to the
consummation of a Qualifying Offering (as defined in the
certificate of resolution relating to the Company's 9% Series A
Convertible Preferred Stock), either of the undersigned or any of
the undersigned's affiliates (as that term is used in the rules
and regulations under the Securities Exchange Act of 1934 (the
"Securities Rules")) or associates (as that term is used in the
Securities Rules) (collectively, the "Section 1 Seller") sells or
agrees to sell any shares of common stock of the Company
beneficially owned (as that term is used in the Securities Rules)
by him or them to someone other than the Company or any of its
subsidiaries, the Section 1 Seller shall cause the purchaser to
offer to purchase from each of you, at a price per share not less
than the price per share at which the Section 1 Seller shall have
sold or agreed to sell his shares and otherwise on the same terms
as those on which the Section 1 Seller shall have sold or agreed
to sell his shares, a number of shares equal to the fraction of
the number of shares of which you acquire beneficial ownership
under the Investment Agreement referred to above determined by
dividing the number of shares the Section 1 Seller is selling by
the total number of shares the Section 1 Seller beneficially owns
on the date of this letter agreement.
2. First Refusal. If, at any time prior to the
consummation of a Qualifying Offering, either of the undersigned
or any of the undersigned's affiliates or associates
(collectively, the "Section 2 Seller") receives from a third
party, and wishes to accept, a bona fide offer to purchase shares
of common stock of the Company the Section 2 Seller beneficially
owns (but excluding shares acquired in open-market purchases
after the date of this letter agreement) (the "Offered Shares"),
the Section 2 Seller shall give notice to each of you (stating
the number of Offered Shares, the name and address of the offeror
and the terms and conditions of the offer) and you shall have the
option to purchase, on the same terms as those offered by the
third party, all (but not fewer than all) the Offered Shares (in
such proportions among you as you shall agree, or, absent an
agreement, in the proportions in which each of you that wishes to
purchase the Offered Shares acquires beneficial ownership of
shares of common stock of the Company under the Investment
Agreement referred to above). This option shall be exercisable
by notice given to the Section 2 Seller within 10 days after the
date of receipt of the notice to each of you. If you do not
exercise the option to purchase all the Offered Shares, at any
time within 60 days after the expiration of the option, the
Section 2 Seller may transfer all (but not fewer than all) the
Offered Shares to the third party offeror at the price and on the
terms and conditions stated in the offer (but, if the transfer to
the third party is not made within that 60-day period, those
shares shall again be subject to this section 2). Your rights
under this section 2 shall be in addition to, and shall not
limit, your rights under section 1.
3. Family Transfers. Nothing in this letter
agreement shall be deemed to restrict the transfer of any
securities by the undersigned or the undersigned's affiliates or
associates to their respective family members (within the meaning
of the Securities Rules) or the transfer of any securities by
will or the laws of descent and distribution, as long as the
transferee agrees in writing to be bound by the provisions of
this agreement as if the transferee were one of the undersigned.
4. Legend. At all times prior to the consummation of
a Qualifying Offering, each certificate representing shares of
common stock of the Company the undersigned beneficially own
shall bear the following legend:
"The shares represented by this certificate
are subject to an agreement dated October 21,
1994, a copy of which is on file at the
office of the Company."
Prior to the consummation of a Qualifying Offering, the Company
shall not issue any certificate evidencing any such shares that
does not bear that legend.
5. Notices. Any notices and other communications
under this letter agreement shall be in writing and may be given
by any of the following methods: (a) personal delivery; (b)
facsimile transmission; (c) registered or certified mail, postage
prepaid, return receipt requested; or (d) overnight delivery
service. Notices shall be sent to the appropriate party at its
address or facsimile number given below (or at such other address
or facsimile number for such party as shall be specified by
notice given under this letter agreement):
(a) if to the Company or one of the undersigned,
to that party at:
000 Xxxxxx Xxxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxxxx 00000
Fax No. (000) 000-0000
with a copy to:
Xxxx & Xxxxxxx
Park Avenue Tower
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-3215
Attention: Xxxxx X. Xxxxxxx, Esq.
Fax No. (000) 000-0000
(b) if to you, to you at:
c/o The Xxxx Alternative Income Fund, L.P.
00 Xxxxxxxx Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Fax No. (000) 000-0000
Attention: Xx. Xxxxx X. Xxxxxxxx
All such notices and communications shall be deemed received upon
(a) actual receipt thereof by the addressee, (b) actual delivery
thereof to the appropriate address or (c) in the case of a
facsimile transmission, upon transmission thereof by the sender
and issuance by the transmitting machine of a confirmation slip
confirming that the number of pages constituting the notice have
been transmitted without error. In the case of notices sent by
facsimile transmission, the sender shall contemporaneously mail a
copy of the notice to the addressee at the address provided for
above. However, such mailing shall in no way alter the time at
which the facsimile notice is deemed received.
6. Governing Law. This letter agreement shall be
governed by and construed in accordance with the law of the state
of New York applicable to agreements made and to be performed
wholly in New York.
7. Equitable Relief. The parties acknowledge that
the remedy at law for breach of this letter agreement may be
inadequate and that, in addition to any other remedy a party may
have for a breach of this agreement, that party may be entitled
to an injunction restraining any such breach or threatened
breach, or a decree of specific performance, without posting any
bond or security. The remedy provided in this section 6 is in
addition to, and not in lieu of, any other rights or remedies a
party may have.
8. Entire Agreement. This letter agreement contains
a complete statement of all the arrangements among the parties
with respect to its subject matter, supersedes all existing
agreements among them with respect to that subject matter, may
not by changed or terminated orally and any amendment or
modification must be in writing and signed by the party to be
charged.
Please acknowledge your agreement with the foregoing by
executing this letter agreement in the spaces provided below.
/s/ Xxxxxxx X. Xxxxxxxxx
Xxxxxxx X. Xxxxxxxxx
/s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
Xxxxxx to and accepted as
to the second sentence of
section 4 only:
AMERICAN COMMUNICATIONS
SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
Agreed to and accepted:
THE XXXX ALTERNATIVE
INCOME FUND, L.P.
By: WRH PARTNERS, L.L.C.
General Partner
By: PALADIN COURT CO., INC.
General Manager
*
By:
Xxxxxxx X. Xxxx
President
* By: /s/ Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxx
Attorney-in-Fact
