Exhibit 4.8
WARRANT REGISTRATION RIGHTS AGREEMENT
between
KMC TELECOM HOLDINGS, INC.
and
XXXXXX XXXXXXX & CO. INCORPORATED
Dated as of January 26, 1998
WARRANT REGISTRATION RIGHTS AGREEMENT
WARRANT REGISTRATION RIGHTS AGREEMENT, dated as of January 26, 1998
(this "AGREEMENT"), between KMC TELECOM HOLDINGS, INC., a Delaware corporation
(the "COMPANY"), and Xxxxxx Xxxxxxx & Co. Incorporated (the "Initial
Purchaser").
Pursuant to the terms of a Purchase Agreement dated the date hereof
(the "PURCHASE AGREEMENT") between the Company and the Initial Purchaser, the
Company has agreed to issue and sell to the Initial Purchaser an aggregate of
460,800 warrants (each, a "WARRANT"), each Warrant initially entitling the
holder thereof to purchase 0.21785 shares of Common Stock (as defined below) of
the Company at an exercise price of $.01 per Common Share (as defined below), as
part of 460,800 units (each, a "Unit" and collectively, the "UNITS"), each Unit
consisting of one 121/2% Senior Discount Note due 2008 of the Company (each, a
"NOTE" and collectively, the "NOTES") to be issued pursuant to the provisions of
an Indenture (the "Indenture") dated as of the Closing Date (as defined below)
between the Company, as issuer, and The Chase Manhattan Bank, as trustee, and
one Warrant. The Note and the Warrant included in each Unit will become
separately transferable at the close of business upon the earliest to occur of
(i) the date that is six months after the Closing Date, (ii) the commencement of
an exchange offer with respect to the Notes undertaken pursuant to the Notes
Registration Rights Agreement (as defined below), (iii) the effectiveness of a
shelf registration statement with respect to resales of the Notes, (iv) the
commencement of an offer to purchase the Notes pursuant to the Indenture or (v)
the date which the Initial Purchaser, in its sole discretion, determines;
PROVIDED that, prior to such date, the Company mails notice of such
determination to the holders of the Warrants.
In consideration of the foregoing and of the mutual agreements
contained herein and in the Purchase Agreement, the Company and the Initial
Purchaser hereby agree as follows:
1. DEFINITIONS.
As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"Auditors" means, at any time, the independent auditors of the Company
at such time.
"Board" means the board of directors of the Company from time to
time.
"Closing Date" means January 29, 1998.
"Comfort Letter" has the meaning specified in Section 3 hereof.
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"Commission" means the United States Securities and Exchange
Commission.
"Common Shares" means the shares of the Common Stock of the Company.
"Common Stock" means the common stock, par value $.01 per share, of
the Company.
"Company" means KMC Telecom Holdings, Inc., a Delaware corporation.
"Company IPO Shares" has the meaning specified in Section 2 hereof.
"Cutback Notice" has the meaning specified in Section 2 hereof.
"Expiration Date" means the second anniversary of the Closing Date.
"Holders" means the record holders of the Warrants and the holders of
Common Shares (or other securities) received upon exercise thereof.
"Includible Secondary Shares" has the meaning specified in Section 2
hereof.
"Indenture" has the meaning specified in the recitals to this
Agreement.
"Initial Purchaser" has the meaning specified in the recitals to this
Agreement.
"managing underwriter" has the meaning specified in Section 2 hereof.
"Notes" has the meaning specified in the recitals to this Agreement.
"Notes Registration Rights Agreement" means the Registration Rights
Agreement dated the date hereof between the Company and the Initial Purchaser
relating to the Notes.
"Opinion" has the meaning specified in Section 3 hereof.
"Other IPO Shares" has the meaning specified in Section 2 hereof.
"Piggy-back Registration Rights" has the meaning specified in Section
2 hereof.
"Purchase Agreement" has the meaning specified in the recitals to this
Agreement.
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"Registration Statement" has the meaning specified in Section 2
hereof.
"Resale Shelf" has the meaning specified in Section 3 hereof.
"Securities Act" means the United States Securities Act of 1933, as
amended.
"Stockholders Agreement" means the Amended and Restated Stockholders
Agreement, dated as of October 31, 1997, among the Company, Nassau Capital
Partners L.P., NAS Partners I L.L.C., Xxxxxx X. Xxxxxx, KMC Telecommunications
L.P., AT&T Credit Corporation, General Electric Capital Corporation, CoreStates
Bank, N.A. and CoreStates Holdings, Inc., as amended and supplemented from time
to time.
"Underlying Securities" means the Common Shares issuable upon exercise
of the Warrants or such other securities as shall be issuable upon the exercise
of the Warrants, pursuant to the Warrant Agreement.
"Units" has the meaning specified in the recitals to this Agreement.
"Warrant" has the meaning specified in the recitals to this Agreement.
"Warrant Agent" means The Chase Manhattan Bank, in its capacity as
Warrant Agent under the Warrant Agreement.
"Warrant Agreement" means the Warrant Agreement dated the Closing Date
between the Company and The Chase Manhattan Bank relating to the Warrants.
"Warrant Registration Statement" has the meaning specified in Section
3 hereof.
"Warrant Shares" has the meaning specified in Section 2 hereof.
2. PIGGY-BACK REGISTRATION RIGHTS.
(a) If, prior to the Expiration Date, the Company proposes to file a
Registration Statement with the Commission respecting an offering of any shares
of Common Stock (or other securities issuable upon exercise of the Warrants)
(other than (i) an offering registered solely on Form S-4 or S-8 or any
successor form thereto, or (ii) the initial public offering of shares of Common
Stock (or other securities issuable upon exercise of the Warrants) if no
shareholder of the Company participates therein), the Company shall give prompt
written notice to all the Holders of Warrants or Common Shares or such other
securities received upon exercise of Warrants, to the extent such Common Shares
or other securities would be (upon
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issuance) or are, as the case may be, subject to restrictions on transfer, at
least 30 days prior to the initial filing of the registration statement relating
to such offering (the "REGISTRATION STATEMENT"). Each such Holder shall have
the right, within 20 days after delivery of such notice, to request in writing
that the Company include all or a portion of such of the Common Shares issuable
upon exercise of such Holder's Warrants, such other securities as shall be
issuable upon the exercise of the Warrants, or the Common Shares or such other
securities received upon the exercise thereof, pursuant to the Warrant
Agreement, in each case to the extent that such Common Shares or other
securities would be (upon issuance) or are, as the case may be, subject to
restrictions on transfer, ("WARRANT SHARES") in such Registration Statement
("PIGGY-BACK REGISTRATION RIGHTS"). The Company shall include in the public
offering all of the Warrant Shares that a Holder has requested be included,
unless the underwriter for the public offering or the underwriter managing the
public offering (in either case, the "MANAGING UNDERWRITER") delivers a notice
(a "CUTBACK NOTICE") pursuant to Section 2(b) or 2(c) hereof. The managing
underwriter may deliver one or more Cutback Notices at any time prior to the
execution of the underwriting agreement for the public offering.
(b) If a proposed public offering includes both securities to be
offered for the account of the Company ("COMPANY IPO SHARES") and shares to be
sold by stockholders, the provisions of this Section 2(b) shall be applicable if
the managing underwriter delivers a Cutback Notice stating that, in its opinion,
the number of Common Shares (other than Warrant Shares to be sold by the
Holders) that selling stockholders propose to sell therein, whether or not such
selling stockholders have the right to include shares therein (the "OTHER IPO
SHARES"), plus the number of Warrant Shares that the Holders have requested to
be sold therein, plus the Company IPO Shares, exceeds the maximum number of
shares specified by the managing underwriter in such Cutback Notice that may be
distributed without adversely affecting the price, timing or distribution of the
Company IPO Shares. Such maximum number of shares that may be so sold,
excluding the Company IPO Shares, are referred to as the "INCLUDIBLE SHARES."
If the managing underwriter delivers such Cutback Notice, (i) the
Company shall be entitled to include all of the Company IPO Shares in the public
offering, (ii) each stockholder who has requested the inclusion of Other IPO
Shares in the public offering pursuant to Section 6.1 or 6.2 of the Stockholders
Agreement shall be entitled to include all of its Other IPO Shares in priority
to the inclusion of any Warrant Shares requested to be included by Holders and
(iii) except as otherwise provided in clause (ii), above each requesting Holder
shall be entitled to include in the public offering up to its pro rata portion
of the Includible Shares in priority to the inclusion (except as otherwise
provided in clause (ii) above) of any Other IPO Shares that are proposed to be
sold in such public offering.
(c) If a proposed public offering is entirely a secondary offering,
the provisions of this Section 2(c) shall be applicable if the managing
underwriter delivers a
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Cutback Notice stating that, in its opinion, the aggregate number of Warrant
Shares and Other IPO Shares proposed to be sold therein exceeds the maximum
number of shares (the "INCLUDIBLE SECONDARY SHARES") specified by the managing
underwriter in such Cutback Notice that may be distributed without adversely
affecting the price, timing or distribution of the Common Shares being
distributed. If the managing underwriter delivers such Cutback Notice, (i) each
stockholder who has requested the inclusion of Other IPO Shares in the public
offering pursuant to Section 6.1 or 6.2 of the Stockholders Agreement shall be
entitled to include all of its Other IPO Shares in priority to the inclusion of
any Warrant Shares requested to be included by Holders and (ii) except as
otherwise provided in clause (i) above, each requesting Holder shall be entitled
to include in the public offering up to its pro rata portion of the Includible
Secondary Shares in priority to the inclusion (except as set forth in clause
(i)) of any Other IPO Shares that are proposed to be sold in such public
offering.
(d) The underwriting agreement for such public offering shall provide
that each requesting Holder shall have the right to sell its Warrant Shares
(other than Warrant Shares excluded from such public offering pursuant to a
Cutback Notice and the terms of Section 2(b) or 2(c)) to the underwriters and
that the underwriters shall purchase the Warrant Shares at the price paid by the
underwriters for the Common Shares sold by the Company and/or other selling
stockholders, as the case may be.
3. SHELF REGISTRATION.
(a) If only the Company sells Common Shares in an initial public
offering or all of the Warrant Shares have not been sold in a public offering,
the Company shall use its reasonable best efforts to cause to be filed pursuant
to Rule 415 under the Securities Act a shelf registration statement on the
appropriate form (the "WARRANT REGISTRATION STATEMENT") covering the issuance of
the Warrant Shares upon exercise of the Warrants and shall use its reasonable
best efforts to cause the Warrant Registration Statement to become effective
under the Securities Act within 180 days after the closing date of the initial
public offering; PROVIDED, HOWEVER, that (1) in no event may the Warrant
Registration Statement be declared effective prior to the first anniversary of
the Closing Date and (2) if the Commission shall request that the Company
register the resale of the Warrant Shares instead of the issuance thereof, the
Warrant Registration Statement shall register such resale as opposed to such
issuance. The Company shall use reasonable efforts to keep the Warrant
Registration Statement continuously effective until the earlier of (i) such time
as all Warrants have been exercised or, in the case of clause (2), until such
time as all Warrant Shares have been resold or (ii) the Expiration Date. Prior
to filing the Warrant Registration Statement or any amendment thereto, the
Company shall provide a copy thereof to the Initial Purchaser and its counsel
and afford them a reasonable time to comment thereon.
(b) If the Warrant Registration Statement shall register the resale
of the
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Warrant Shares (a "RESALE SHELF") as provided in Section 3(a)(2) above, the
Company agrees to:
(i) make available for inspection by a representative of the
Holders, any underwriter participating in any disposition pursuant to such
Resale Shelf and attorneys and accountants designated by the Holders, at
reasonable times and in a reasonable manner, financial and other records,
documents and properties of the Company that are pertinent to the conduct
of due diligence customary for an underwritten offering, and cause the
officers, directors and employees of the Company to supply all information
reasonably requested by any such representative, underwriter, attorney or
accountant in connection with a Resale Shelf; PROVIDED, HOWEVER, that such
persons shall first agree in writing with the Company to use such
information only in connection with the transaction for which such
information was obtained and that any information that is reasonably and in
good faith designated by the Company in writing as confidential at the time
of delivery of such information shall be kept confidential by such persons,
unless and to the extent that disclosure of such information is required by
law or such information becomes generally available to the public other
than as a result of a disclosure or failure to safeguard such information
by such person;
(ii) use its reasonable best efforts to cause all Warrant Shares
sold under a Resale Shelf to be listed on any securities exchange or any
automated quotation system on which securities of the same class issued by
the Company are then listed if requested by the Holders of Warrant Shares
representing a majority of the Warrants originally issued, to the extent
such Warrant Shares satisfy applicable listing requirements;
(iii) provide at a reasonable date, a reasonable number of copies of
the prospectus included in such Resale Shelf to Holders that are selling
Warrant Shares pursuant to such Resale Shelf;
(iv) cause to be provided to the Warrant Agent, on behalf of the
Holders and beneficial owners of Warrant Shares, upon the effectiveness of
such Resale Shelf, a customary "10b-5" opinion of independent counsel (an
"OPINION") and a customary "cold comfort" letter of independent auditors (a
"COMFORT LETTER");
(v) cause to be provided to Holders and beneficial owners of
Warrant Shares an Opinion and Comfort Letter with respect to each Form 10-K
and Form 10-Q, including any amendments thereto, that is incorporated by
reference in such Resale Shelf; and
(vi) notify the Warrant Agent, for distribution to the Holders, (A)
when the Resale Shelf has become effective and when any post-effective
amendment thereto has
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been filed and becomes effective, (B) of any request by the Commission or
any state securities authority for amendments and supplements to the Resale
Shelf or of any material request by the Commission or any state securities
authority for additional information after the Resale Shelf has become
effective, (C) of the issuance by the Commission or any state securities
authority of any stop order suspending the effectiveness of the Resale
Shelf or the initiation of any proceedings for that purpose, (D) if,
between the effective date of the Resale Shelf and the closing of any sale
of Warrant Shares covered thereby, the representations and warranties of
the Company contained in any underwriting agreement, securities sales
agreement or other similar agreement, including this Agreement, relating to
disclosure cease to be true and correct in all material respects or if the
Company receives any notification with respect to the suspension of the
qualification of the Warrant Shares for sale in any jurisdiction or the
initiation of any proceeding for such purpose, (E) of the happening of any
event during the period the Resale Shelf is effective such that such Resale
Shelf or the related prospectus contains an untrue statement of a material
fact or omits to state a material fact required to be stated therein or
necessary to make statements therein not misleading and (F) of any
determination by the Company that a post-effective amendment to a
Registration Statement would be appropriate. The Holders hereby agree to
suspend the use of the prospectus contained in any Resale Shelf upon
receipt of such notice under clause (C), (E) or (F) above until, in the
case of clause (C), such stop order is removed or rescinded or, in the case
of clauses (E) and (F), the Company has amended or supplemented such
prospectus to correct such misstatement or omission.
4. SUSPENSION.
Notwithstanding the foregoing, in addition to any suspension
contemplated by clauses (C), (E) or (F) of Section 3(b)(vi), during any
consecutive 365-day period, the Company shall have the privilege to suspend
availability of the Warrant Registration Statement and the related prospectus
for (i) up to two 30-consecutive-day periods, except for the 30 days immediately
prior to the Expiration Date, if the Board determines in good faith that there
is a valid purpose for such suspension and (ii) five additional, non-consecutive
three-day periods, except for the 30 days immediately prior to the Expiration
Date, if the Board determines in good faith that the Company cannot provide
adequate disclosure during such period due to circumstances beyond its control.
Notice of such suspension shall be given promptly to the Warrant Agent.
5. BLUE SKY.
The Company shall use its reasonable best efforts to register or
qualify the Underlying Securities proposed to be sold or issued pursuant to the
Registration Statement or the Warrant Registration Statement under all
applicable securities or "blue sky" laws of all
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jurisdictions in the United States in which any Holder of Warrants may or may be
deemed to purchase Underlying Securities upon the exercise of Warrants or resale
of the Warrant Shares, as the case may be, and shall use its reasonable best
efforts to maintain such registration or qualification through the earlier of
(A) in the case of a Registration Statement, the date upon which all of the
Warrant Shares have been sold or such other sale as shall be required by
applicable law, (B) the date upon which all Warrants have been exercised or all
Warrant Shares have been resold, as the case may be, under the Warrant Shelf
Registration Statement and (C) the Expiration Date; PROVIDED, HOWEVER, that the
Company shall not be required to (i) qualify as a foreign corporation or as a
broker or a dealer in securities in any jurisdiction where it would not
otherwise be required to qualify but for this Section 5, (ii) file any general
consent to service of process or (iii) subject itself to taxation in any
jurisdiction if it is not otherwise so subject.
6. ACCURACY OF DISCLOSURE.
The Company (and its successors) represents and warrants to each
Holder (and each beneficial owner of a Warrant or Warrant Share) and agrees for
the benefit of each Holder (and each beneficial owner of a Warrant or Warrant
Share) that, except during any period in which the availability of the Warrant
Registration Statement has been suspended, (i) the Warrant Registration
Statement and the documents incorporated by reference therein will not contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein not misleading; and (ii) the prospectus
delivered to such Holder upon its exercise of Warrants or pursuant to which such
Holder sells its Warrant Shares, as the case may be, and the documents
incorporated by reference therein will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; provided, however, that representations, warranties and agreements
set forth in this Section 6 do not apply to statements or omissions in the
Warrant Registration Statement or any such prospectus based upon information
relating to any Holder furnished to the Company (or its successors) in writing
by such Holder expressly for use therein.
7. INDEMNITY.
The Company hereby agrees to indemnify each beneficial owner of a
Warrant and each person, if any, who controls any beneficial owner of a Warrant
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Securities Exchange Act of 1934 (the "EXCHANGE ACT"), or is under common
control with, or is controlled by, any beneficial owner of a Warrant (whether or
not it is, at the time the indemnity provided for in this Section 7 is sought,
such a beneficial owner), from and against all losses, damages or liabilities
which such beneficial owner or any such controlling or affiliated person suffers
as a result of any breach, on the date of any exercise of a Warrant by such
beneficial owner or the resale of any
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Warrant Share by such Holder, in either case pursuant to the Warrant
Registration Statement, of the representations, warranties or agreements
contained in Section 6 hereof. Each beneficial owner of a Warrant Share sold
pursuant to a Resale Shelf, by accepting its beneficial ownership of a Warrant,
hereby (i) agrees to provide the Company with information with respect to it
that the Company reasonably requests in connection with any Resale Shelf and
(ii) agrees, severally and not jointly, to indemnify the Company, its directors
and officers and each person, if any, who controls the Company within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act against any liability incurred by it or such controlling person as a result
of any misstatement of information provided by such beneficial owner to the
Company in writing expressly for inclusion in the Resale Shelf or any omission
of a material fact from any such information provided by such beneficial owner
to the Company.
8. EXPENSES.
All expenses incident to the Company's performance of or compliance
with its obligations under this Agreement will be borne by the Company,
regardless of whether a Registration Statement or Warrant Registration Statement
becomes effective, including without limitation (i) all Commission or National
Association of Securities Dealers, Inc. registration and filing fees, (ii) all
reasonable fees and expenses incurred in connection with compliance with state
securities or "blue sky" laws, (iii) all reasonable expenses of any persons
incurred by or on behalf of the Company in preparing or assisting in preparing,
word processing, printing and distributing any registration statement, any
prospectus, any amendments or supplements thereto and other documents relating
to the performance of and compliance with this Agreement, (iv) the reasonable
fees (including reasonable legal fees and expenses) and disbursements of the
Warrant Agent, (v) the reasonable fees and disbursements of counsel for the
Company and (vi) the fees and disbursements, if any, of the Auditors; but
excluding any and all fees, expenses and disbursements of the Holders (not
specifically included above), including, without limitation, (x) fees and
disbursements of counsel retained by the participating Holders and (y) the
Holder's share of underwriting discounts and commissions.
9. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. Each of the Company and the
Initial Purchaser represent to the other that it has not entered into, and
agrees that on or after the date of this Agreement it will not enter into, any
agreement which is materially inconsistent with the rights granted to the
Holders of Warrants or Warrant Shares in this Agreement or otherwise materially
conflicts with the provisions hereof. The Company represents that the rights
granted to the Holders hereunder do not in any material way conflict with and
are not materially inconsistent with the rights granted to the holders of the
Company's other issued and
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outstanding securities under any agreements.
(b) AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company and the Warrant Agent have obtained the
written consent of Holders of at least a majority of the outstanding Warrants
affected by such amendment, modification, supplement, waiver or consent;
PROVIDED that any amendment, modification or supplement to this Agreement which,
in the good faith opinion of the Board (and evidenced by a resolution of such
board), does not adversely affect any Holder, shall not be subject to such
requirement for written consent.
(c) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (i) if to a Holder, at the most current address given by such Holder to
the Company by means of a notice given in accordance with the provisions of this
Section 9(c); (ii) if to the Company, initially at the Company's address set
forth in the Purchase Agreement and thereafter at such other address, notice of
which is given in accordance with the provisions of this Section 9(c); and
(iii) if to the Initial Purchaser, initially at the Initial Purchaser's address
set forth in the Purchase Agreement and thereafter at such other address, notice
of which is given in accordance with the provisions of this Section 9(c).
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt is acknowledged, if telecopied; and on
the next business day if timely delivered to an air courier guaranteeing
overnight delivery.
(d) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of each
of the parties, including, without limitation, subsequent Holders; PROVIDED that
nothing herein shall be deemed to permit any assignment, transfer or other
disposition of Warrants in violation of the terms of the Purchase Agreement or
the Warrant Agreement. If any transferee of any Holder shall acquire Warrants,
in any manner, whether by operation of law or otherwise, such Warrants shall be
held subject to all of the terms of this Agreement and the Warrant Agreement,
and by taking and holding such Warrants such person shall be conclusively deemed
to have agreed to be bound by and to perform all of the terms and provisions of
this Agreement and the Warrant Agreement and such person shall be entitled to
receive the benefits hereof.
(e) PURCHASES AND SALES OF WARRANTS. The Company shall not, and
shall use its reasonable best efforts to cause its affiliates (as defined in
Rule 405 under the Securities
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Act) not to, purchase and then resell or otherwise transfer any Warrants other
than Warrants acquired and cancelled.
(f) THIRD PARTY BENEFICIARY. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company and the
Initial Purchaser, and each Holder shall have the right to enforce such
agreements directly to the extent it deems such enforcement necessary or
advisable to protect its rights or the rights of Holders hereunder.
(g) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) HEADINGS. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(i) GOVERNING LAW. This Agreement shall be governed by the laws
of the State of New York.
(j) SEVERABILITY. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
(k) WAIVER OF IMMUNITY. To the extent that the Company has or
hereafter may acquire any immunity from jurisdiction of any court or from any
legal process (whether through service of notice, attachment prior to judgement,
attachment in aid of execution, execution or otherwise) with respect to itself
or its property, it hereby irrevocably waives such immunity in respect of its
obligations under this Agreement to the fullest extent permitted by law.
(l) INITIAL PUBLIC OFFERING. Notwithstanding anything to the
contrary herein contained, if the Company conducts an initial public offering of
equity securities (other than nonconvertible preferred shares), the Company will
give the Holders the opportunity to convert such Warrants into warrants to
purchase such equity securities (other than nonconvertible preferred shares) and
such Warrant Shares into such equity securities (other than nonconvertible
preferred shares). Such conversion opportunity will be on terms and conditions
determined to be fair and reasonable by the Company's Board.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
KMC TELECOM HOLDINGS, INC.
By
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Name:
Title:
XXXXXX XXXXXXX & CO. INCORPORATED
By
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Name:
Title:
