Purchasers Rights Agreement [Amendment No. 1] - Birch Telecom Inc.
AMENDMENT NUMBER 1
TO THE
AMENDED AND RESTATED PURCHASERS RIGHTS AGREEMENT
Reference is made to the Amended and Restated Purchasers Rights
Agreement (the "Agreement"), dated as of August 5, 1999, by and among Birch
Telecom, Inc., a Delaware corporation (the "Company"), and certain purchasers of
the Company's Series B Preferred Stock, Series C Preferred Stock, Series D
Preferred Stock, Series E Preferred Stock and Series F Preferred Stock
(together, the "Series Preferred"), and of the Company's Common Stock (the
"Common Stock") (including the purchasers of the Common Shares), and certain
holders of stock options, each as set forth on Exhibit A to the Agreement.
Capitalized terms used herein but not otherwise defined shall have the meanings
assigned to them in the Agreement. This is the first amendment (the "Amendment")
to the Agreement.
WHEREAS, the Agreement may be amended or modified only upon the written
consent of the Company and the Purchasers holding (i) at least 50% of the Common
Shares, voting together as a single class, (ii) at least 50% of the Series B
Preferred Stock, voting together as a single class, (iii) at least 50% of the
Series C Preferred Stock, voting together as a single class, (iv) at least 50%
of the Series D Preferred Stock, voting together as a single class, (v) at least
50% of the Series E Preferred Stock, voting together as a single class and (vi)
at least 50% of the Series F Preferred Stock, voting together as a single class
(collectively, the "Amending Purchasers");
WHEREAS, the Amending Purchasers have determined that it is in the best
interests of the Company to increase the size of the Company's Board of
Directors to 11 members; and
WHEREAS, the Amending Purchasers wish to amend the Agreement as herein
provided;
NOW, THEREFORE, it is agreed:
1. Section 8.1 of the Agreement is hereby amended by deleting clause
(a) and inserting the following clause (a) in lieu thereof:
(a) SIZE. Commencing on March 23, 2000, the Company and the
Purchasers agree to take any actions necessary so that the Board will
be comprised of eleven (11) directors. The Company and the Purchasers
agree to take any actions necessary so that, as of March 23, 2000, the
Series F Directors shall consist of Adam H. Clammer, James H. Greene,
Jr., Henry R. Kravis, Alexander Navab, Jr. and George R. Roberts, the
Other Series Preferred Directors shall consist of Henry H. Bradley and
Thomas R. Palmer, the Common Director shall be David E. Scott, the
Other Directors shall be Mory Ejabat and Richard A. Jalkut, and there
shall be one vacancy. The Company and the Purchasers also agree to take
any actions necessary so that, as soon as practicable, an independent
director nominated by Mr. Scott and approved by the Series F Directors
(such approval not to be unreasonably withheld) is appointed or elected
to the Board.
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2. This Amendment may be executed in any number of counterparts, each
of which shall be an original, but all of which together shall constitute one
agreement. This Amendment may be executed by facsimile signature(s).
3. This Amendment, together with the Agreement and the exhibits
thereto, constitutes the full and entire understanding and agreement between the
parties with regard to the subjects hereof and thereof; PROVIDED that the
parties to this Amendment acknowledge and agree that the rights, restrictions
and obligations set forth in this Amendment and in the Agreement are in addition
to, and not in replacement of, the rights, restrictions and obligations set
forth in the Purchase Agreement, Restated Certificate and the Management
Stockholder Agreements.
<PAGE>
IN WITNESS WHEREOF, the undersigned has executed this Action by Written
Consent as of this 23rd day of March, 2000.
WHITE PINES LIMITED PARTNERSHIP I
By: /s/ AUTHORIZED SIGNATORY
-------------------------------
Name: _____________________________
Title: ____________________________
Number of shares held:
Common Stock: -0-
Series B Preferred Stock: 989,128
Series C Preferred Stock: -0-
Series D Preferred Stock: -0-
Series F Preferred Stock: -0-
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IN WITNESS WHEREOF, the undersigned has executed this Action by Written
Consent as of this 23rd day of March, 2000.
PACIFIC CAPITAL, L.P.
By: /s/ AUTHORIZED SIGNATORY
-------------------------------
Name: _____________________________
Title: ____________________________
Number of shares held:
Common Stock: -0-
Series B Preferred Stock: 1,219,925
Series C Preferred Stock: -0-
Series D Preferred Stock: -0-
Series F Preferred Stock: -0-
<PAGE>
IN WITNESS WHEREOF, the undersigned has executed this Action by Written
Consent as of this 23rd day of March, 2000.
ADVANTAGE CAPITAL MISSOURI
PARTNERS I, L.P.
By: /s/ AUTHORIZED SIGNATORY
-------------------------------
Name: _____________________________
Title: ____________________________
Number of shares held:
Common Stock: -0-
Series B Preferred Stock: 1,318,750
Series C Preferred Stock: -0-
Series D Preferred Stock: 145,550
Series F Preferred Stock: -0-
<PAGE>
IN WITNESS WHEREOF, the undersigned has executed this Action by Written
Consent as of this 23rd day of March, 2000.
ADVANTAGE CAPITAL MISSOURI
PARTNERS II, L.P.
By: /s/ AUTHORIZED SIGNATORY
-------------------------------
Name: _____________________________
Title: ____________________________
Number of shares held:
Common Stock: -0-
Series B Preferred Stock: -0-
Series C Preferred Stock: -0-
Series D Preferred Stock: 417,450
Series F Preferred Stock: -0-
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IN WITNESS WHEREOF, the undersigned has executed this Action by Written
Consent as of this 23rd day of March, 2000.
/s/ BRADLEY A. MOLINE
-------------------------------
Bradley A. Moline
Number of shares held:
Common Stock: 297,932
Series B Preferred Stock: 69,234
Series C Preferred Stock: -0-
Series D Preferred Stock: -0-
Series F Preferred Stock: -0-
<PAGE>
IN WITNESS WHEREOF, the undersigned has executed this Action by Written
Consent as of this 23rd day of March, 2000.
NEWS-PRESS & GAZETTE COMPANY
By: /s/ AUTHORIZED SIGNATORY
-------------------------------
Name: _____________________________
Title: ____________________________
Number of shares held:
Common Stock: -0-
Series B Preferred Stock: 1,648,438
Series C Preferred Stock: 1,582,500
Series D Preferred Stock: 222,222
Series F Preferred Stock: -0-
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IN WITNESS WHEREOF, the undersigned has executed this Action by Written
Consent as of this 23rd day of March, 2000.
/s/ HENRY H. BRADLEY
----------------------------------------
Henry H. Bradley, as custodian for
Katherine Elizabeth Bradley under the
Missouri Uniform Transfers to Minors Act
Number of shares held:
Common Stock: -0-
Series B Preferred Stock: 32,969
Series C Preferred Stock: -0-
Series D Preferred Stock: 11,111
Series F Preferred Stock: -0-
<PAGE>
IN WITNESS WHEREOF, the undersigned has executed this Action by Written
Consent as of this 23rd day of March, 2000.
/s/ HENRY H. BRADLEY
-------------------------------------------
Henry H. Bradley, as custodian for Stephane
Suzanne Bradley under the Missouri
Uniform Transfers to Minors Act.
Number of shares held:
Common Stock: -0-
Series B Preferred Stock: 32,969
Series C Preferred Stock: -0-
Series D Preferred Stock: 11,111
Series F Preferred Stock: -0-
<PAGE>
IN WITNESS WHEREOF, the undersigned has executed this Action by Written
Consent as of this 23rd day of March, 2000.
/s/ HENRY H. BRADLEY
----------------------------------------
Henry H. Bradley, as custodian for David
Bradley, III under the Missouri Uniform
Transfers to Minors Act.
Number of shares held:
Common Stock: -0-
Series B Preferred Stock: 32,969
Series C Preferred Stock: -0-
Series D Preferred Stock: 11,111
Series F Preferred Stock: -0-
<PAGE>
IN WITNESS WHEREOF, the undersigned has executed this Action by Written
Consent as of this 23rd day of March, 2000.
BTI Ventures L.L.C.
By: /s/ AUTHORIZED SIGNATORY
-------------------------------
Name: _____________________________
Title: ____________________________
Number of shares held:
Common Stock: -0-
Series B Preferred Stock: -0-
Series C Preferred Stock: -0-
Series D Preferred Stock: -0-
Series F Preferred Stock 13,333,334
<PAGE>
IN WITNESS WHEREOF, the undersigned has executed this Action by Written
Consent as of this 23rd day of March, 2000.
BTI Ventures L.L.C.
By: /s/ AUTHORIZED SIGNATORY
-------------------------------
Name: _____________________________
Title: ____________________________
Number of shares held:
Common Stock: -0-
Series B Preferred Stock: -0-
Series C Preferred Stock: -0-
Series D Preferred Stock: -0-
Series F Preferred Stock 13,333,334
<PAGE>
IN WITNESS WHEREOF, the undersigned has executed this Action by Written
Consent as of this 23rd day of March, 2000.
/s/ DAVID E. SCOTT
------------------------------
David E. Scott
Number of shares held:
Common Stock: 1,190,768
Series B Preferred Stock: -0-
Series C Preferred Stock: 189,900
Series D Preferred Stock: -0-
Series F Preferred Stock: -0-
<PAGE>
IN WITNESS WHEREOF, the undersigned has executed this Action by Written
Consent as of this 23rd day of March, 2000.
/s/ DAVID W. VRANICAR
------------------------------
David W. Vranicar
Number of shares held:
Common Stock: 316,780
Series B Preferred Stock: 36,266
Series C Preferred Stock: -0-
Series D Preferred Stock: -0-
Series F Preferred Stock: -0-
<PAGE>
IN WITNESS WHEREOF, the undersigned has executed this Action by Written
Consent as of this 23rd day of March, 2000.
/s/ GREGORY C. LAWHON
----------------------------
Gregory C. Lawhon
Number of shares held:
Common Stock: 380,137
Series B Preferred Stock: -0-
Series C Preferred Stock: -0-
Series D Preferred Stock: -0-
Series F Preferred Stock: -0-
<PAGE>
IN WITNESS WHEREOF, the undersigned has executed this Action by Written
Consent as of this 23rd day of March, 2000.
/s/ JEFFREY D. SHACKELFORD
---------------------------------
Jeffrey D. Shackelford
Number of shares held:
Common Stock: 794,162
Series B Preferred Stock: -0-
Series C Preferred Stock: 126,600
Series D Preferred Stock: -0-
Series F Preferred Stock: -0-
<PAGE>
IN WITNESS WHEREOF, the undersigned has executed this Action by Written
Consent as of this 23rd day of March, 2000.
KCEP I, L.P.
By: /s/ AUTHORIZED SIGNATORY
-------------------------------
Name: _____________________________
Title: ____________________________
Number of shares held:
Common Stock: -0-
Series B Preferred Stock: 945,108
Series C Preferred Stock: -0-
Series D Preferred Stock: 111,111
Series F Preferred Stock: -0-
<PAGE>
IN WITNESS WHEREOF, the undersigned has executed this Action by Written
Consent as of this 23rd day of March, 2000.
KCEP VENTURES II, L.P.
By: /s/ AUTHORIZED SIGNATORY
-------------------------------
Name: _____________________________
Title: ____________________________
Number of shares held:
Common Stock: -0-
Series B Preferred Stock: -0-
Series C Preferred Stock: -0-
Series D Preferred Stock: 555,556
Series F Preferred Stock: -0-
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IN WITNESS WHEREOF, the undersigned has executed this Action by Written
Consent as of this 23rd day of March, 2000.
STEPHEN LOCKWOOD SAUDER REVOCABLE
TRUST DTD MARCH 1, 1976
/s/ STEPHEN L. SAUDER
----------------------------------
Stephen L. Sauder, Trustee
/s/ PAULA KAY FRIESEN SAUDER
----------------------------------
Paula Kay Friesen Sauder, Trustee
Number of shares held:
Common Stock: -0-
Series B Preferred Stock: -0-
Series C Preferred Stock: 1,544,788
Series D Preferred Stock: -0-
Series F Preferred Stock: -0-
<PAGE>
IN WITNESS WHEREOF, the undersigned has executed this Action by Written
Consent as of this 23rd day of March, 2000.
PAULA KAY FRIESEN SAUDER REVOCABLE
TRUST DTD MARCH 1, 1976
/s/ STEPHEN L. SAUDER
----------------------------------
Stephen L. Sauder, Trustee
/s/ PAULA KAY FRIESEN SAUDER
----------------------------------
Paula Kay Friesen Sauder, Trustee
Number of shares held:
Common Stock: -0-
Series B Preferred Stock: -0-
Series C Preferred Stock: 1,544,787
Series D Preferred Stock: -0-
Series F Preferred Stock: -0-
<PAGE>
IN WITNESS WHEREOF, the undersigned has executed this Action by Written
Consent as of this 23rd day of March, 2000.
/s/ STEPHEN L. SAUDER
-----------------------------
Stephen L. Sauder
Number of shares held:
Common Stock: -0-
Series B Preferred Stock: 19,781
Series C Preferred Stock: -0-
Series D Preferred Stock: -0-
Series F Preferred Stock: -0-