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EXHIBIT 10.38
AMENDED AND RESTATED
AGREEMENT AMONG SHAREHOLDERS
AMONG
KNOLOGY HOLDINGS, INC.
AND
CERTAIN SHAREHOLDERS THEREOF
DATED AS OF JULY 28, 1997
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TABLE OF CONTENTS
Page
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1. DIRECTORS OF THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
1.1. Century Telephone Director . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
1.2. AT&T Director . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
2. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
3. TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
4. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
4.1. Corporate Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
4.2. Ownership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
5. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
5.1. Legend . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
5.2. Additional Actions and Documents . . . . . . . . . . . . . . . . . . . . . . . . . .4
5.3. Additional Parties to Stockholder Agreement . . . . . . . . . . . . . . . . . . . .4
5.4. Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
5.5. Transfer of Equity Securities; Assignment . . . . . . . . . . . . . . . . . . . . .5
5.6. Entire Agreement; Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
5.7. Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
5.8. Limitation on Benefit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
5.9. Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
5.10. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
5.11. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
5.12. Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
5.13. Execution in Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
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AMENDED AND RESTATED AGREEMENT AMONG SHAREHOLDERS
THIS AMENDED AND RESTATED AGREEMENT AMONG SHAREHOLDERS (the
"Agreement") is entered into as of July 28, 1997 by and among KNOLOGY Holdings,
Inc., a Delaware corporation, formerly known as CyberNet Holding, Inc. (the
"Company"), and the undersigned shareholders of the Company (the "Original
Shareholders"), together with the shareholders of the Company who execute and
deliver to the Company a copy of Appendix 1 pursuant to SECTION 5.3
(collectively, the "Shareholders" and individually, a "Shareholder").
WHEREAS, the Company and the Original Shareholders are parties
to that certain Agreement Among Shareholders (the "Agreement") dated as of May
15, 1996; and
WHEREAS, the Company and the Original Shareholders desire to
amend and restate the Agreement as set forth herein.
NOW THEREFORE, in consideration of the foregoing and of the
mutual covenants and agreements hereinafter set forth, the parties hereto
hereby amend and restate the Agreement as follows:
1. DIRECTORS OF THE COMPANY
1.1 CENTURY TELEPHONE DIRECTOR
The Company and each Shareholder (for so long as such
Shareholder owns any capital stock of the Company) shall take or cause to be
taken all such action within their respective power and authority as may be
required, for so long as Century Telephone Enterprises, Inc. ("CENTURY
TELEPHONE") and its Affiliates, together, shall own Equity Securities with a
combined voting power in excess of 5% of the aggregate voting power of all
outstanding Equity Securities:
(1) to cause to be elected to the Board of Directors of
the Company one (1) director designated by Century Telephone (the "CENTURY
TELEPHONE DIRECTOR"); provided, however, that for so long as Century Telephone
and its Affiliates, together, own Equity Securities with a combined voting
power of 5% or less of the aggregate voting power of all outstanding Equity
Securities, Century Telephone shall not have the right under this SECTION 1.1
to have one person designated by such Shareholder to be elected as a director
of the Company; and
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(2) to remove forthwith any Century Telephone Director
when (and only when) such removal is requested for any reason, with or without
cause, by Century Telephone, and in the case of death, resignation, or other
removal as herein provided of such a director, to elect another director
designated by Century Telephone (if, at the time such vacancy occurs, Century
Telephone shall have the right to have a person designated by Century Telephone
elected as a director of the Company pursuant to SECTION 1.1. hereof).
1.2. AT&T DIRECTOR
The Company and each Shareholder (for so long as such
Shareholder owns any capital stock of the Company) shall take or cause to be
taken all such action within their respective power and authority as may be
required, for so long as Venture Fund I, L.P., formerly known as AT&T Ventures
Company, L.P. ("AT&T"), and its Affiliates, together, shall own Equity
Securities with a combined voting power in excess of 5% of the aggregate voting
power of all outstanding Equity Securities:
(1) to cause to be elected to the Board of Directors of
the Company one (1) director designated by AT&T (the "AT&T DIRECTOR");
provided, however, that for so long as AT&T and its Affiliates, together, own
Equity Securities with a combined voting power of 5% or less of the aggregate
voting power of all outstanding Equity Securities, AT&T shall not have the
right under this SECTION 1.2 to have one person designated by such Shareholder
to be elected as a director of the Company; and
(2) to remove forthwith any AT&T Director when (and only
when) such removal is requested for any reason, with or without cause, by AT&T,
and in the case of death, resignation, or other removal as herein provided of
such a director, to elect another director designated by AT&T (if, at the time
such vacancy occurs, AT&T shall have the right to have a person designated by
AT&T elected as a director of the Company pursuant to SECTION 1.2 hereof).
2. DEFINITIONS
Capitalized terms used in this Agreement shall have the
meaning ascribed to them as follows:
"Act" shall mean the Securities Act of 1933, as amended.
An "Affiliate" of an entity shall mean any person or entity
that directly or, through one or more intermediaries, indirectly controls, or
is controlled by, or is under common control with, such entity.
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This "Agreement" shall mean this Shareholders' Agreement.
"Control" (including the terms "controlling," "controlled by"
and "under common control with") shall mean possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies of
a person or entity, whether through the ownership of voting securities, by
contract or otherwise.
The "Company" shall mean KNOLOGY Holdings, Inc., a Delaware
corporation, formerly known as CyberNet Holding, Inc.
"Equity Securities" shall mean any share of any class or
series of capital stock of the Company or any right or option to acquire any
share of capital stock of the Company, and shall include the Preferred Stock.
"Initial Public Offering" shall mean the first public sale of
any securities of the Company pursuant to the registration provisions of
Section 5 of, or the provisions of Regulation A under, the Act, with an
aggregate public offering price of at least $5,000,000.
"Preferred Stock" shall mean the Preferred Stock of the
Company, with the rights, privileges, and preferences set forth in the
Certificate of Incorporation of the Company.
3. TERMINATION
The rights and obligations of the parties under this Agreement
shall irrevocably terminate on the occurrence of any of the following events:
(i) the voluntary or involuntary dissolution of the Company; (ii) the
consummation of an Initial Public Offering by the Company; (iii) an
acquisition, consolidation, or merger of the Company into or with another
corporation that results in the Shareholders owning publicly traded securities;
(iv) such date on which neither Century Telephone and its Affiliates nor AT&T
and its Affiliates own Equity Securities with a combined voting power in excess
of 5% of the aggregate voting power of all outstanding Equity Securities; or
(v) May 15, 2001.
4. REPRESENTATIONS AND WARRANTIES
4.1. CORPORATE AUTHORITY
Each of the parties hereto represents and warrants that it has
the requisite corporate power and authority to enter into this Agreement and to
perform its obligations hereunder as contemplated by this Agreement, that the
execution, delivery and performance of this Agreement by it have been duly
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authorized by all necessary corporate or partnership action, and that this
Agreement has been duly executed and delivered by it and constitutes a valid
and binding obligation enforceable against it in accordance with its terms.
4.2. OWNERSHIP
The Company represents and warrants that, as of the date
hereof, the parties to this Agreement collectively own in excess of 75% of the
voting power of all issued and outstanding Equity Securities.
5. MISCELLANEOUS
5.1. LEGEND
The certificates or other evidence representing the Equity
Securities now or hereinafter owned by the parties hereto shall bear a legend
(the "Legend") in substantially the following form:
The shares represented by this certificate have not
been registered under the Securities Act of 1933 (the
"Act") or state securities laws and cannot be
offered, sold or otherwise transferred in the absence
of registration or the availability of an exemption
from registration under the Act and regulations
promulgated thereunder and applicable state
securities laws. The voting rights with respect to,
and sale or other disposition of the securities
represented by this certificate are restricted by and
subject to the provisions of an Amended and Restated
Agreement Among Shareholders dated as of July 28,
1996, a copy of which is available for inspection at
the offices of the Company.
5.2. ADDITIONAL ACTIONS AND DOCUMENTS
Each of the parties hereto hereby agrees to use its good faith
best efforts to bring about the consummation of this Agreement, and to take or
cause to be taken such further actions, to execute, deliver and file or cause
to be executed, delivered and filed such further documents and instruments, and
to obtain such consents, as may be necessary or as may be reasonably requested
in order to fully effectuate the purposes, terms and conditions of this
Agreement, whether on or after the date of this Agreement.
5.3. ADDITIONAL PARTIES TO STOCKHOLDER AGREEMENT
The Shareholders shall not be required to enter into an
amendment to this Agreement in order to add additional parties hereto. Any
person or entity
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acquiring Equity Securities as provided by this Agreement, or as otherwise
required or approved by the Company, shall become a party to this Agreement,
and shall be bound by all of the provisions of this Agreement, upon executing a
copy of Appendix 1 hereto and delivering such originally executed appendix to
the Company.
5.4. EXPENSES
Each party shall pay his or its own expenses incident to the
preparation and negotiation of this Agreement and the transactions contemplated
hereunder, including all legal and accounting fees and disbursements.
5.5. TRANSFER OF EQUITY SECURITIES; ASSIGNMENT
None of the Shareholders shall transfer (as defined below) any
Equity Securities now or hereinafter held or acquired by such Shareholder to
any individual or entity except after the party desiring to make such transfer
shall have first caused the transferee to execute and deliver this Agreement to
the Company. All such transferees shall hold such Equity Securities subject to
the terms of this Agreement and, as a condition precedent to such transfers,
shall be required to execute and deliver this Agreement. Thereafter, such
transferees shall be deemed to be Shareholders for purposes of this Agreement,
and Equity Securities in the hands of the transferees shall be subject to the
provisions of this Agreement. For purposes of this SECTION 5.5, "transfer"
shall include a sale, gift, exchange, assignment or other disposition,
including a disposition under judicial order, legal process, execution,
attachment or enforcement of an encumbrance, but shall not include a pledge
prior to enforcement of the encumbrance created by such pledge.
Neither the Company nor any Shareholder shall assign this
Agreement, in whole or in part, whether by operation of law or otherwise,
unless such assignment is in connection with a transfer of Equity Securities
described in this SECTION 5.5. Any purported assignment of this Agreement
contrary to the terms hereof shall be null and void and of no force and effect.
5.6. ENTIRE AGREEMENT; AMENDMENT
This Agreement, including the Appendix hereto, constitutes the
entire agreement among the parties hereto with respect to the transactions
contemplated herein, and it supersedes all prior oral or written agreements,
commitments or understandings with respect to the matters provided for herein.
No amendment, modification or discharge of this Agreement shall be valid or
binding unless set forth in writing and duly executed by the party against whom
enforcement of the amendment, modification, or discharge is sought.
5.7. WAIVER
No delay or failure on the part of any party hereto in
exercising any right, power or privilege under this Agreement or under any
other instruments
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given in connection with or pursuant to this Agreement shall impair any such
right, power or privilege or be construed as a waiver of any default or any
acquiescence therein. No single or partial exercise of any such right, power
or privilege shall preclude the further exercise of such right, power or
privilege, or the exercise of any other right, power or privilege. No waiver
shall be valid against any party hereto unless made in writing and signed by
the party against whom enforcement of such waiver is sought and then only to
the extent expressly specified therein.
5.8. LIMITATION ON BENEFIT
It is the explicit intention of the parties hereto that no
person or entity other than the parties hereto is or shall be entitled to bring
any action to enforce any provision of this Agreement against any of the
parties hereto, and the covenants, undertakings and agreements set forth in
this Agreement shall be solely for the benefit of, and shall be enforceable
only by, the parties hereto or their respective successors, heirs, executors,
administrators, legal representatives and permitted assigns.
5.9. BINDING EFFECT
This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors, heirs,
executors, administrators, legal representatives and permitted assigns.
5.10. GOVERNING LAW
This Agreement, the rights and obligations of the parties
hereto, and any claims or disputes relating thereto, shall be governed by and
construed in accordance with the laws of Delaware (excluding the choice of law
rules thereof).
5.11. NOTICES
All notices, demands, requests, or other communications which
may be or are required to be given, served, or sent by any party to any other
party pursuant to this Agreement shall be in writing and shall be hand
delivered, sent by overnight courier or mailed by first-class, registered or
certified mail, return receipt requested, postage prepaid, or transmitted by
telegram, telecopy or telex, addressed as set forth on the signature pages
hereof or on Appendix 1, as appropriate.
Each party may designate by notice in writing a new address
to which any notice, demand, request or communication may thereafter be so
given, served or sent. Each notice, demand, request, or communication which
shall be hand delivered, sent, mailed, telecopied or telexed in the manner
described above, or which shall be delivered to a telegraph company, shall be
deemed sufficiently given, served, sent, received or delivered for all purposes
at such time as it is delivered to the addressee (with the return receipt, the
delivery receipt, or (with respect to a telecopy or telex) the answer back being
deemed conclusive, but not exclusive,
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evidence of such delivery) or at such time as delivery is refused by the
addressee upon presentation.
5.12. HEADINGS
Section headings contained in this Agreement are inserted for
convenience of reference only, shall not be deemed to be a part of this
Agreement for any purpose, and shall not in any way define or affect the
meaning, construction or scope of any of the provisions hereof.
5.13. EXECUTION IN COUNTERPARTS
To facilitate execution, this Agreement may be executed in as
many counterparts as may be required; and it shall not be necessary that the
signatures of, or on behalf of, each party, or that the signatures of all
persons required to bind any party, appear on each counterpart; but it shall be
sufficient that the signature of, or on behalf of, each party, or that the
signatures of the persons required to bind any party, appear on one or more of
the counterparts. All counterparts shall collectively constitute a single
agreement. It shall not be necessary in making proof of this Agreement to
produce or account for more than a number of counterparts containing the
respective signatures of, or on behalf of, all of the parties hereto.
IN WITNESS WHEREOF, the undersigned have duly executed this
Agreement, or have caused this Agreement to be duly executed on their behalf,
as of the day and year first hereinabove set forth.
KNOLOGY HOLDINGS, INC.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:
Title: CEO: President
Address:
▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
{page one of three signature pages}
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THE ORIGINAL SHAREHOLDERS:
ITC HOLDING COMPANY, INC.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III
------------------------------------------
By:
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III
Title: President
▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III
SOUTH ATLANTIC VENTURE FUND III,
LIMITED PARTNERSHIP
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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By: South Atlantic Venture Fund
III, L.P.
Name: By South Atlantic Venture
Partners III, L.P.
Title: By Its General Partner
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General
Partner
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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CENTURY TELEPHONE ENTERPRISES,
INC.
/s/ ▇▇▇▇ ▇. Post, III
---------------------------------------------------
By:
Name: ▇▇▇▇ ▇. Post, III
Title: President and CEO
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
VENTURE FUND I, L.P.,
formerly known as
AT&T Ventures Company, L.P.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------------
By:
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Partner
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
AT&T VENTURE FUND II, L.P.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------------
By:
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Partner
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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APPENDIX 1
SUPPLEMENTAL SIGNATURE PAGE
The following hereby agrees to become a party to the Amended and
Restated Agreement Among Shareholders by and among KNOLOGY Holdings, Inc., a
Delaware corporation, and certain stockholders thereof, dated as of July 28,
1997, as amended, and to be bound by all of the terms and conditions thereof.
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(Name)
By:
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(Authorized Representative)
Name:
-------------------------------------
Title:
------------------------------------
Address:
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Attention:
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