EXHIBIT 10.15
AMENDMENT NO. 10
TO
TRANSACTION AGREEMENT
This Amendment No. 10 ("AMENDMENT") to the Transaction Agreement dated
as of July 8, 1998, as amended by Amendment No. 1 dated as of December 18, 1998,
by Amendment No. 2 dated as of February 18, 1999, by Amendment No. 3 dated as of
May 14, 1999, by Amendment No. 4 dated as of June 30, 1999, by Amendment No. 5
dated as of June 30, 1999, by Amendment No. 6 dated as of November 18, 1999, by
Amendment No. 7 dated as of August 1, 2000, by Amendment No 8 dated as of
December 20, 2000, and by Amendment No. 9 dated as of March 13, 2001 (as so
amended, the "ORIGINAL AGREEMENT"), is made as of November 9, 2001, among
Choice One Communications Inc. (the "CORPORATION"), the other parties to the
Original Agreement and Xxxxxx Xxxxxxx & Co. Incorporated, First Union Investors,
Inc. and CIBC Inc. (collectively, the "LENDERS").
WHEREAS, the parties desire to amend the Original Agreement to add the
Lenders as a party to the Original Agreement but only with respect to the
tag-along and drag-along rights described in Sections 6.05 and Section 6.06 of
the Original Agreement;
NOW, THEREFORE, the parties hereto hereby agree as follows:
SECTION 1. Definitions. Section 8.01 of the Original Agreement
is hereby amended to add the following defined terms:
"DESIGNATED TRANSFER" means any Transfer of Warrants or Warrant Shares
by any Warrant Holder (i) in connection with a Transfer by such Warrant Holder
of (x) any loans outstanding under the Bridge Financing Agreement dated as of
August 1, 2000 among the Corporation, the Lenders and Xxxxxx Xxxxxxx Senior
Funding, Inc., as Administrative Agent (as amended from time to time), or (y)
any notes held by such Warrant Holder and issued in exchange for, or the
proceeds of which have been applied to repay, any such loans, or (ii) effected
pursuant to a merger, consolidation or sale of all or substantially all of the
assets of such Warrant Holder or its direct or indirect parent.
"WARRANT HOLDERS" means any Person who holds Warrants or Warrant
Shares.
"WARRANT SHARES" means any shares of Common Stock issued pursuant to
the Warrants.
"WARRANTS" means the warrants of the Corporation dated November 9, 2001
originally issued to the Lenders.
SECTION 2. Application of Sections 6.01, 6.05, 6.06 and 6.03(b) to
Warrant Holders. Sections 6.01, 6.05 and 6.06 of the Original Agreement shall
apply to the Warrant Holders, the Warrants and the Warrant Shares on the terms
and conditions, and subject to the exceptions, set forth in this Section 2. To
effect such application:
(a) Any Transfer of Warrants or Warrant Shares must be made in
compliance with Section 6.01, except that (i) any restrictions set forth in the
Executive Purchase Agreements, the LLC Agreement and the Registration Rights
Agreement shall not be applicable to any Transfer of Warrants or Warrant Shares,
(ii) the requirement set forth in clause (i) of Section 6.01(a) that a public
offering comply with the Registration Rights Agreement shall not be applicable
to any Transfer of Warrants or Warrant Shares and (iii) the requirement set
forth in Section 6.01(b) shall not apply to any Transfer of Warrants or Warrant
Shares to any Person who is a "Qualified Institutional Buyer" as such term is
defined in Rule 144A promulgated under the Securities Act (or any similar
provision then in force), so long as such Transfer is effected after an initial
private placement of the Warrants (or, if the Warrants have been exercised, the
Warrant Shares) in reliance on such Rule 144A has been completed. The Warrants
and Warrant Shares shall be treated as Restricted Securities until they would
cease to be Restricted Securities in accordance with the definition of
Restricted Securities as in effect on the date hereof.
(b) Any Transfer of Warrants or Warrant Shares to a third party
in a Private Tag Transaction (other than a Designated Transfer) must be effected
in compliance with Section 6.05 of the Original Agreement. Warrant Holders will
be subject to the "drag along" restrictions and obligations contained in Section
6.06 of the Original Agreement; provided, that the agreements set forth in
Section 6.06(a) shall apply to each Warrant Holder only in its capacity as a
holder of Warrants or Warrant Shares (and not in its capacity as a debt holder
or any other capacity).
(c) For purposes of the application of Sections 6.05 and 6.06 of
the Original Agreement to the Warrant Holders, Warrants and Warrant Shares, and
notwithstanding anything to the contrary in the Original Agreement: (i) Warrants
and Warrant Shares shall be treated as Investor Equity, (ii) Warrant Holders
shall be treated as holders of Investor Equity (and therefore as Securityholders
for purposes of Section 6.06), (iii) the Warrant Holders shall be deemed to own
the Warrant Shares issuable upon exercise of the Warrants for all allocation
purposes (subject to clause (v) below), (iv) the consideration payable for each
Warrant, if any, included in a Tag-Along Sale shall be the amount attributable
to each share of Common Stock in such Tag-Along Sale minus the exercise price of
such Warrant, and (v) for purposes of clause (ii) of Section 6.06(a) and the
proviso thereto, the Warrants shall be treated in the same manner as options
granted by the Corporation to any officer of the Corporation and Warrant Shares
shall be treated in the same manner as Management Equity.
(d) Unless after giving effect to the applicable Transfer, the
Warrants or Warrant Shares would cease to be Investor Equity in accordance with
the definition of Investor Equity as in effect on the date hereof if they were
Investor Equity, the applicable transferee or transferees of the Warrants or
Warrant Shares must, as a condition to the valid Transfer thereof, execute and
deliver to the Corporation an instrument (acceptable to the Corporation)
agreeing to be bound by the provisions of the Original Agreement applicable to
Warrant Holders pursuant to this Amendment; provided that, in the case of an
Exempt Transferee holding Warrants or Warrant Shares, such agreement to be bound
shall be only as to paragraph 2(a) of this Amendment.
(e) Section 6.03(b) shall apply to Warrants and Warrant Shares
as if the Warrants and Warrant Shares were Investor Equity.
SECTION 3. Termination; Amendment. Sections 2(b) and 2(c) of this
Amendment shall terminate when (i) the holders of Investor Equity and Management
Equity immediately prior to the initial Public Offering cease to hold in the
aggregate at least 30% of the aggregate Common Stock (on a fully diluted basis),
or (ii) Sections 6.05 and 6.06 are terminated by the parties to the Original
Agreement pursuant to Section 9.04 of the Original Agreement. Except for the
termination effected pursuant to clause (ii) above, nothing in this Amendment
shall be amended without both (x) the approval required by Section 9.04 of the
Original Agreement, and (y) the approval of Warrant Holders holding a majority
of the outstanding Warrant Shares (assuming for this purpose that all Warrants
have been exercised). Nothing in this Amendment shall modify the provisions of
Section 9.04 as they relate to the Original Agreement or any amendments thereto
other than this Amendment.
SECTION 4. Effectiveness; Effect of Amendment; Governing Law. Except as
amended hereby, the Original Agreement shall remain unchanged. Except as
provided herein, (i) no provision of the Original Agreement shall apply to the
Warrant Holders, the Warrants or the Warrant Shares, and (ii) the Warrant
Holders shall have no rights or obligations under the Original Agreement. The
Original Agreement, as amended hereby, shall remain in full force and effect.
This Amendment shall be governed by, and construed under, the laws of the State
of Delaware, all rights and remedies being governed by said laws, without regard
to conflict of laws principles.
SECTION 5. Counterparts. This Amendment may be executed simultaneously
in two or more counterparts, any one of which need not contain the signatures of
more than one party, but all such counterparts taken together shall constitute
one and the same agreement.
[Remainder of Page Intentionally Blank]
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first written above.
CHOICE ONE COMMUNICATIONS INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------------
Xxxxx X. Xxxxxx
Chairman and Chief Executive Officer
MANAGEMENT MEMBERS
/s/ Xxxxx X. Xxxxxx
-------------------------------
Xxxxx X. Xxxxxx, as a Management
Member and as Chief Executive Officer of Choice One
Communications Inc.
/s/ Xxx Xxxxxx-Xxx
---------------------------
Xxx Xxxxxx-Xxx
/s/ Xxxxx Xxxxxxx
---------------------------
Xxxxx Xxxxxxx
/s/ Xxxxxx Xxxxxx
---------------------------
Xxxxxx Xxxxxx
/s/ Xxxx Xxxxxxxxx
---------------------------
Xxxx Xxxxxxxxx
INVESTOR MEMBERS
XXXXXX XXXXXXX CAPITAL PARTNERS III, L.P.
By MSCP III, LLC, its general partner
By Xxxxxx Xxxxxxx Capital Partners III, Inc., its Member
By /s/ Xxxx X. Xxxxxxxxxx
-----------------------------------------------
Its Managing Director
MSCP III 892 INVESTORS, L.P.
By MSCP III, LLC, its general partner
By Xxxxxx Xxxxxxx Capital Partners III, Inc., its Member
By /s/ Xxxx X. Xxxxxxxxxx
-----------------------------------------------
Its Managing Director
XXXXXX XXXXXXX CAPITAL INVESTORS, L.P.
By MSCP III, LLC, its general partner
By Xxxxxx Xxxxxxx Capital Partners III, Inc., its Member
By /s/ Xxxx X. Xxxxxxxxxx
-----------------------------------------------
Its Managing Director
XXXXXX XXXXXXX XXXX XXXXXX CAPITAL PARTNERS IV, L.P.
By MSDW Capital Partners IV, LLC, its
general partner
By MSDW Capital Partners IV, Inc., its Member
By /s/ Xxxx X. Xxxxxxxxxx
-----------------------------------------------
Its Managing Director
MSDW IV 892 INVESTORS, L.P.
By MSDW Capital Partners IV, LLC, its general partner
By MSDW Capital Partners IV, Inc., its Member
By /s/ Xxxx X. Xxxxxxxxxx
-----------------------------------------------
Its Managing Director
XXXXXX XXXXXXX XXXX XXXXXX CAPITAL INVESTORS IV, L.P.
By MSDW Capital Partners IV LLC, its
general partner
By MSDW Capital Partners IV, Inc., its Member
By /s/ Xxxx X. Xxxxxxxxxx
-----------------------------------------------
Its Managing Director
XXXXXXXX PARTNERS III, L.P.
By Silverado III, L.P., its General Partner
By Silverado III Corp., its General Partner
By /s/ Xxxxxx X. Xxx Xxxxx
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Xxxxxx X. Xxx Xxxxx
Chairman & CEO
XXXXXXX PLAZA PARTNERS
By /s/ Xxxxxx X. Xxx Xxxxx
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Xxxxxx X. Xxx Xxxxx
Managing General Partner
FLEET VENTURE RESOURCES, INC.
By /s/ Xxxxxx X. Xxx Xxxxx
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Xxxxxx X. Xxx Xxxxx
Chairman & CEO
FLEET EQUITY PARTNERS VI, L.P.
By Fleet Growth Resources II, Inc., its
General Partner
By /s/ Xxxxxx X. Xxx Xxxxx
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Xxxxxx X. Xxx Xxxxx
Chairman & CEO
XXXXXX-XXXXXX MEDIA PARTNERS, L.P.
By Xxxxxx Xxxxxx Media, L.L.C. its general partner
By /s/ Xxxxx Xxxxxxxxx
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Xxxxx Xxxxxxxxx
Chief Executive Officer
LENDERS
XXXXXX XXXXXXX & CO. INCORPORATED
By /s/ Xxxxxxxxx X. Xxxxxxxx
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Title Managing Director
FIRST UNION INVESTORS, INC.
By /s/ Xxxx X. Xxxxxx
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Title Managing Director
CIBC INC.
By /s/ Xxxxxxx Xxxxxxx
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Title Managing Director
