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EXHIBIT 4.4
AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT
AMONG
GABRIEL COMMUNICATIONS, INC.
AND
ITS STOCKHOLDERS
DATED AS OF MARCH 31, 2000
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TABLE OF CONTENTS
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PAGE
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ss.1. DEFINITIONS...................................................................................................1
ss.2. CERTAIN REGISTRATION RIGHTS...................................................................................4
ss.3. PREEMPTIVE RIGHTS.............................................................................................4
3.1 Anti-Dilution Provision................................................................................4
3.2 Stockholders' Exercise of Right........................................................................5
3.3 Company's Exercise of Right............................................................................5
3.4 Compliance with Securities Purchase Agreement and Applicable Law.......................................5
ss.4. BOARD OF DIRECTORS............................................................................................5
4.1 [Intentionally Omitted]................................................................................5
4.2 Supermajority Voting of Directors for Certain Corporate Action.........................................5
4.3 Supermajority Voting of Stockholders...................................................................6
4.4 Proxy.................................................................................................7
4.5 Action by Stockholders.................................................................................7
ss.5. TRANSFERS OF STOCK............................................................................................7
ss.6. AMENDMENT AND WAIVER..........................................................................................9
ss.7. SEVERABILITY..................................................................................................9
ss.8. ENTIRE AGREEMENT..............................................................................................9
ss.9. SUCCESSORS AND ASSIGNS.......................................................................................10
ss.10. SECURITIES LAWS.............................................................................................10
ss.11. COUNTERPARTS................................................................................................11
ss.12. REMEDIES....................................................................................................11
ss.13. EMPLOYMENT..................................................................................................11
ss.14. NOTICES.....................................................................................................11
ss.15. TERMINATION.................................................................................................12
ss.16. GOVERNING LAW...............................................................................................12
ss.17. DESCRIPTIVE HEADINGS........................................................................................12
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AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT
This Amended and Restated Stockholders' Agreement dated as of
March 31, 2000 (this "Agreement") is among Gabriel Communications, Inc., a
Delaware corporation (the "Company"), and the stockholders of the Company that
are signatory hereto or that have executed an Instrument of Accession in the
form of Schedule 1 hereto.
W I T N E S S E T H:
WHEREAS, pursuant to a Securities Purchase Agreement dated as
of the date hereof (as amended and in effect from time to time, the "Series B
Purchase Agreement") among the Company and the Purchasers named therein (the
"Purchasers"), the Purchasers are purchasing and committing to purchase shares
of the Series B Preferred Stock (as hereinafter defined) of the Company, as more
specifically set forth on Exhibit A attached to the Series B Purchase Agreement;
and
WHEREAS, certain parties to the Securities Purchase Agreement
dated as of November 18, 1998, as amended as of December 14, 1998 (the "Series A
Purchase Agreement"), providing for the purchase of shares of Series A Preferred
Stock (as hereinafter defined) of the Company, and certain other stockholders of
the Company who are not also parties to the Series B Purchase Agreement desire
to amend and restate the Stockholders' Agreement dated as of November 18, 1998,
as amended as of December 14, 1998 and July 20, 1999;
WHEREAS, the execution and delivery of this Agreement is a
condition to the purchase by the Purchasers of such shares of Series B Preferred
Stock pursuant to the Series B Purchase Agreement.
NOW, THEREFORE, the parties to this Agreement hereby agree as
follows:
ss.1. DEFINITIONS. For all purposes of this Agreement, the
following terms shall have the meanings set forth below (capitalized terms not
otherwise defined herein shall have the meanings set forth in the Series B
Purchase Agreement for such terms):
AFFILIATE. Affiliate shall mean, with respect to any Person,
any other Person directly or indirectly controlling, controlled by or under
direct or indirect common control with such Person and, in addition, if such
Person is a partnership, any limited or general partner of such partnership.
APPROVED SALE. Approved Sale shall have the meaning specified
in Section 4.3 hereof.
CHARTER. Charter shall include the articles or certificate of
incorporation, statute, constitution, joint venture or partnership agreement or
articles or other organizational document of any Person other than an
individual, each as from time to time amended or modified.
COMMON STOCK. Common Stock shall mean (a) the Common Stock,
$.01 par value per share ("Common Stock"), of the Company and (b) any shares of
any other class of capital stock of
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the Company hereafter issued which is (i) not preferred in the Company's Charter
as to dividends or assets over any class of stock of the Company, (ii) not
subject to redemption in the Company's Charter, or (iii) issued to the holders
of shares of Common Stock upon any reclassification thereof.
FOUNDER'S SHARES. Founder's Shares shall mean the 2,000,000
shares of Common Stock held by the Founding Stockholder on the date hereof.
FOUNDING STOCKHOLDER. Founding Stockholder shall mean Brooks
Investments, L.P.
INSTITUTIONAL DIRECTORS. Institutional Directors shall mean
those directors of the Company's Board of Directors who are not also executive
officers of the Company.
INSTITUTIONAL STOCK. Institutional Stock shall mean (a) the
shares of Preferred Stock held by the Institutional Stockholders, (b) all shares
of Common Stock issued upon the conversion of such Preferred Stock, (c) all
other shares of Common Stock and Preferred Stock of the Company now owned or
hereafter acquired by any Institutional Stockholder and (d) all shares of Common
Stock or Preferred Stock issued with respect to the foregoing by way of stock
dividend or stock split or in connection with any merger, consolidation,
recapitalization or other reorganization affecting the Common Stock or Preferred
Stock. Institutional Stock will continue to be Institutional Stock in the hands
of any subsequent holder thereof (provided that the transfer to such subsequent
holder is permitted by this Agreement and the Securities Purchase Agreements)
and each such subsequent holder will succeed to the rights and obligations of a
holder of Institutional Stock hereunder, provided that shares of Institutional
Stock will cease to be shares of Institutional Stock when transferred (i)
pursuant to a Public Sale or (ii) to the Company or any of its Subsidiaries.
INSTITUTIONAL STOCKHOLDERS. Institutional Stockholders shall
mean the Stockholders, other than the Founding Stockholder or the Management
Stockholders, for so long as they hold shares of Institutional Stock.
INSTRUMENT OF ACCESSION. Instrument of Accession shall mean an
Instrument of Accession in the form of Schedule 1 hereto.
MANAGEMENT STOCKHOLDERS. Management Stockholders shall mean
the Stockholders identified as such on the signature pages to this Agreement.
PARTICIPATING STOCKHOLDER. Participating Stockholder shall
have the meaning specified in Section 5(c) hereof.
PERSON. Person shall mean an individual, partnership,
corporation, association, trust, joint venture, unincorporated organization, or
any government, governmental department or agency or political subdivision
thereof.
PREFERRED STOCK. Preferred Stock shall mean (a) the Series A
Preferred Stock, the Series A-1 Preferred Stock, and the Series B Preferred
Stock and (b) any shares of any other class or series of preferred stock of the
Company hereafter issued, including any shares which are issued to the holders
of shares of Preferred Stock upon any reclassification thereof.
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PUBLIC SALE. Public Sale shall mean any sale of Restricted
Securities to the public pursuant to a public offering registered under the
Securities Act or to the public through a broker or market-maker pursuant to the
provisions of Rule 144 (or any successor rule) adopted under the Securities Act.
PURCHASERS. Purchasers shall mean the Persons identified as
such on the signature pages to this Agreement.
REQUISITE INVESTORS. Requisite Investors shall have the
meaning specified in Section 4.3 hereof.
RESTRICTED SECURITIES. Restricted Securities shall mean at any
particular time all of the Company's then outstanding shares of Stock, and all
shares of Stock issuable upon exercise of outstanding options or warrants, or
conversion of outstanding securities convertible therefor which have not been
sold in a Public Sale, or which are not able to be sold in a Public Sale
pursuant to the provisions of Rule 144 of the Securities Act.
SECURITIES ACT. Securities Act shall mean the Securities Act
of 1933, as amended, or any successor federal statute, and the rules and
regulations of the Securities and Exchange Commission thereunder, all as the
same may be in effect at the time.
SECURITIES PURCHASE AGREEMENTS. Securities Purchase Agreements
shall mean the Series A Purchase Agreement, the Series A-1 Purchase Agreement
and the Series B Purchase Agreement.
SELLING STOCKHOLDER. Selling Stockholder shall have the
meaning given to such term in Section 5(b) hereof.
SERIES A PREFERRED STOCK. Series A Preferred Stock shall mean
the Series A Convertible Preferred Stock, $.01 par value per share, of the
Company.
SERIES A PURCHASE AGREEMENT. Series A Purchase Agreement shall
have the meaning specified in the recitals hereof.
SERIES A-1 PREFERRED STOCK. Series A-1 Preferred Stock shall
mean the Series A-1 Convertible Preferred Stock, $.01 par value per share, of
the Company.
SERIES A-1 PURCHASE AGREEMENT. Series A-1 Purchase Agreement
shall mean the Securities Purchase Agreement dated as of December 13, 1999 by
and among the Company and the purchasers named therein providing for the
purchase of the Series A-1 Preferred Stock.
SERIES B PREFERRED STOCK. Series B Preferred Stock shall mean
the Series B Convertible Preferred Stock, $.01 par value per share, of the
Company.
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SERIES B PURCHASE AGREEMENT. Series B Purchase Agreement shall
have the meaning specified in the recitals hereof.
STOCK. Stock shall mean all shares of Common Stock or
Preferred Stock now or hereafter owned by the Stockholders. Stock will continue
to be Stock in the hands of any subsequent holder thereof (provided that the
transfer to such subsequent holder is permitted by this Agreement and the
Securities Purchase Agreements) and, except as otherwise expressly provided
herein, each such subsequent holder will succeed to the rights and obligations
of a holder of Stock hereunder, provided that shares of Stock will cease to be
shares of Stock when transferred (i) pursuant to a Public Sale or (ii) to the
Company or any of its Subsidiaries.
STOCKHOLDERS. Stockholders shall mean, initially, the
Institutional Stockholders, the Founding Stockholder, and the Management
Stockholders of the Company listed on the signature pages to this Agreement, and
thereafter any Person who becomes a party to this Agreement by executing an
Instrument of Accession in connection with the transfer to or acquisition by
such Person of any Stock from the Company or any Stockholder or any subsequent
transferee of a Stockholder; provided that a Person shall cease to be a
Stockholder hereunder at such time as such Person ceases to own Restricted
Securities.
SUBSIDIARY. Subsidiary shall mean any Person of which the
Company or other specified Person now or hereafter shall at the time own
directly or indirectly through a Subsidiary at least a majority of the
outstanding capital stock (or other shares of beneficial interest) entitled to
vote generally.
TRANSFEREE. Transferee shall have the meaning given to such
term in Section 5(b) hereof.
ss.2. CERTAIN REGISTRATION RIGHTS. Each of the parties to
this Agreement, contemporaneously with the execution and delivery hereof, has
executed and delivered an Amended and Restated Registration Rights Agreement
which entitles the Stockholders to certain registration rights in respect of
Restricted Securities as provided therein.
ss.3. PREEMPTIVE RIGHTS.
3.1 ANTI-DILUTION PROVISION. Subject to the terms of the
Securities Purchase Agreements and except for the issuance or sale of Stock (or
securities convertible into or containing options or rights to acquire shares of
Stock) (i) pursuant to a Public Sale, (ii) upon the exercise of any outstanding
warrants or options or the conversion of any outstanding convertible securities
the issuance of which does not violate the provisions of this Section 3, (iii)
pursuant to the Option Plan as permitted under the Securities Purchase
Agreements, (iv) in an Acquisition approved by the Board of Directors as
provided in Section 4.2 hereof and (v) pursuant to the Securities Purchase
Agreements, if, after the date hereof, the Company authorizes the issuance and
sale of any equity securities or any securities convertible into or containing
options or rights to acquire any equity securities, the Company will first offer
to sell to the Stockholders an aggregate of not less than eighty percent (80%)
of such securities. Each of the Stockholders shall be entitled to purchase that
portion of such securities equal to the percentage determined by dividing (A)
the sum of (1) the number of shares of Common Stock
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held by such Stockholder and (2) the number of shares of Common Stock then
purchasable by, or issuable to, such Stockholder upon the exercise of all
outstanding options, warrants and other purchase rights and the conversion or
exchange of all outstanding convertible or exchangeable securities held by such
Stockholder, by (B) the sum of (x) the number of shares of Common Stock held by
all Stockholders and (y) the number of shares of Common Stock then purchasable
or issuable upon exercise of all outstanding options, warrants and other
purchase rights and the conversion or exchange of all outstanding convertible or
exchangeable securities held by all Stockholders. In the event the parties to
that certain Shareholders Agreement dated as of August 14, 1998, as amended, do
not fully exercise any of their respective options under Section 3, 4 or 5
thereof, each of the Stockholders will be entitled to purchase its applicable
percentage (calculated as aforesaid) of any shares of Common Stock not so
purchased, in the same manner and upon the same terms as provided in Section 3
of said Shareholders Agreement, within ten (10) days after the expiration of the
option periods specified therein. Each Stockholder will be entitled to purchase
all or part of such stock or securities at the same price and on the same terms
as such stock or securities are to be offered to any other Person.
3.2 STOCKHOLDERS' EXERCISE OF RIGHT. Each Stockholder
must exercise such Stockholder's purchase rights hereunder within 35 days after
receipt of written notice from the Company describing in reasonable detail the
stock or securities being offered, the purchase price thereof, the payment terms
and such Stockholder's percentage allotment. If all of the stock or securities
offered to the Stockholders are not fully subscribed by the Stockholders, the
stock or securities which are not so subscribed for will be reoffered to the
Stockholders purchasing their full allotment upon the terms set forth in this
Section 3, except that such Stockholders must exercise their purchase rights
within ten (10) days after receipt of such reoffer.
3.3 COMPANY'S EXERCISE OF RIGHT. Upon the expiration of
the offering periods described above, the Company will be free to sell such
stock or securities which the Stockholders have not elected to purchase during
the 135 days following such expiration on terms and conditions no more favorable
to the purchasers thereof than those offered to the Stockholders. Any stock or
securities offered or sold by the Company after such 135-day period must be
reoffered to the Stockholders pursuant to the terms of this Section.
3.4 COMPLIANCE WITH SECURITIES PURCHASE AGREEMENTS AND
APPLICABLE LAW. The Company and each Stockholder hereby acknowledges and agrees
that, notwithstanding anything contained in this Section 3, the Company will not
issue or sell any shares of Common Stock or any securities convertible into or
containing options or rights to acquire any shares of Common Stock except in
accordance with the provisions of the Securities Purchase Agreements, the
Securities Act and applicable state blue sky laws and except to Stockholders and
Persons who execute Instruments of Accession in accordance with Section 5(d)
hereof.
ss.4. BOARD OF DIRECTORS.
4.1 [Intentionally Omitted]
4.2 SUPERMAJORITY VOTING OF DIRECTORS FOR CERTAIN
CORPORATE ACTION.
(a) The affirmative vote of at least a
majority of the directors of the Company present at any meeting at which a
quorum is present shall be required to take any action by
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the Board of Directors not specifically addressed in subsections (b) below. As
set forth in the by-laws of the Company, a quorum shall consist of a majority of
the members of the Board of Directors of which at least three must be
Institutional Directors.
(b) Until the date of the consummation of the
Public Sale of the Common Stock pursuant to which all shares of Series A
Preferred Stock are automatically converted into shares of Common Stock pursuant
to the Company's Charter, the affirmative vote of at least 66-2/3% of the
directors of the Company present at any meeting at which a quorum is present,
which vote shall include the affirmative vote of at least four Institutional
Directors if there are five Institutional Directors present at the meeting at
which such vote occurs or three Institutional Directors if there are four or
three Institutional Directors present at the meeting at which such vote occurs,
shall be required for any of the following corporate actions:
(i) any Capital Transaction;
(ii) any material Acquisition;
(iii) the approval of annual budgets of
the Company and its Subsidiaries;
(iv) any amendment to the Charter or
By-Laws of the Company;
(v) any action requiring such vote under
Section 7.20 of each of the Securities Purchase Agreements;
(vi) any increase in the number of shares
available for grants under the Option Plan and the
determination of the prices of Awards granted thereunder and
the adoption of any other employee benefit plan authorizing
the issuance of or the grant of Awards based on Stock;
(vii) any transaction with any Affiliate
(other than Subsidiaries) except for transactions contemplated
by the Related Agreements but including any amendments to any
Related Agreement;
(viii) the selecting of investment bankers
to underwrite the sale of securities of the Company; and
(ix) the purchase by the Company of any
shares of Common Stock held by any of the Management
Stockholders.
(c) The Board of Directors voting provisions
provided for in this Section 4 shall terminate upon consummation of the Public
Sale of shares of Common Stock pursuant to which all shares of Preferred Stock
are automatically converted into shares of Common Stock pursuant to the
Company's Charter.
4.3 SUPERMAJORITY VOTING OF STOCKHOLDERS. The affirmative
vote of the holders of 66-2/3% of the outstanding Common Stock and Preferred
Stock, voting as a single class (the
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"Requisite Investors"), shall be required for (i) the authorization of any
additional class of capital stock or increase in the number of shares of
authorized capital stock from that set forth in Section 4.5 of the Series B
Purchase Agreement, and (ii) the approval of a sale of the Company, whether by
means of a merger, consolidation, sale of stock or assets or otherwise (an
"Approved Sale"). In the event of an Approved Sale, each Stockholder, whether or
not such Stockholder voted to approve such Approved Sale, shall consent to and
raise no objections against the Approved Sale; provided that the terms of the
Approved Sale do not provide that the Stockholders would receive less than the
amount that would be distributed to such Stockholders in the event the proceeds
of the Approved Sale were distributed in accordance with the Company's Amended
and Restated Certification of Incorporation. If such Approved Sale is structured
as a merger or consolidation of the Company, or a sale of all or substantially
all of the Company's assets, then each Stockholder shall waive any dissenter's
rights, appraisal rights or similar rights in connection with such merger,
consolidation or asset sale. If such Approved Sale is structured as a sale of
the stock of the Company, then each Stockholder shall agree to sell his
respective Stock on the terms and conditions approved by the Requisite
Investors. The Stockholders shall take all necessary and desirable actions
approved by the Requisite Investors in connection with the consummation of the
Approved Sale, including the execution of such agreements and instruments and
the taking of such other actions reasonably necessary to (i) provide the
representations and warranties as to their title and ownership of their Stock,
and (ii) effectuate the allocation and distribution of the aggregate
consideration upon consummation of the Approved Sale.
4.4 PROXY. IN THE EVENT OF ANY BREACH BY ANY STOCKHOLDER
OF ITS OBLIGATIONS UNDER THE VOTING AGREEMENT CONTAINED HEREIN, SUCH STOCKHOLDER
HEREBY GRANTS TO THE NON-BREACHING STOCKHOLDERS ACTING THROUGH A MAJORITY IN
INTEREST OF NON-BREACHING STOCKHOLDERS AN IRREVOCABLE PROXY, COUPLED WITH AN
INTEREST, TO VOTE ALL SHARES OF SUCH STOCKHOLDER'S STOCK, INCLUDING THE RIGHT TO
VOTE TO REMOVE SUCH STOCKHOLDER'S DESIGNEE AS DIRECTOR, TO THE EXTENT NECESSARY
TO CARRY OUT THE PROVISIONS OF SECTIONS 4.1, 4.3 AND 4.5.
4.5 ACTION BY STOCKHOLDERS. Each Stockholder further
agrees that such Stockholder will not vote any shares owned by such Stockholder
or over which such Stockholder has voting control, or take any action by written
consent, or take any other action as a stockholder of the Company, to circumvent
the voting arrangements required by Sections 4.1, 4.3 and this Section 4.5. Each
Stockholder further agrees to vote or cause to be voted all shares owned by such
Stockholder or over which such Stockholder has voting control to carry out any
provisions of the Securities Purchase Agreements, as they may apply to such
shares, requiring a stockholder vote, including without limitation, Section 8.2
thereof.
ss.5. TRANSFERS OF STOCK.
(a) The Founding Stockholder hereby agrees that
it will not sell, assign, pledge, encumber or otherwise transfer any of its
Founder's Shares (except to an Affiliate that agrees to be bound by the
provisions of this Section 5(a)) for so long as any shares of Institutional
Stock are outstanding, other than pursuant to a Public Sale or a Capital
Transaction.
(b) In the event any holder of Preferred Stock
(or of any shares of Stock issued upon conversion thereof or with respect
thereto) desires to sell, assign, pledge, encumber or
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otherwise transfer any of its shares of such Stock (other than to an Affiliate
or pursuant to a Public Sale or a Capital Transaction or in a distribution to
its partners, members or stockholders), such holder (a "Selling Stockholder")
shall so notify the Company and the other Stockholders in writing and shall
negotiate in good faith with the Company concerning the sale of such shares of
Stock to the Company or the other Stockholders during the 30 day period
following the receipt of such notice. If, after the expiration of such 30 day
period, the Company or the other Stockholders and such holder have not agreed to
the terms of the sale of such shares of Stock to the Company (or its designees),
such holder shall be entitled for a period of 90 days thereafter to sell such
shares of Stock to any Person (a "Transferee") on terms no less favorable to the
Selling Stockholder than those offered to the Company and the other
Stockholders, so long as the Transferee executes an Instrument of Accession and
agrees in writing that it will not acquire additional shares of the capital
stock of the Company (other than such shares of capital stock which such
Transferee may be entitled to acquire or receive pursuant to the terms of this
Agreement, the Company's Charter or in a transaction (such as a stock split or
dividend) in which such Transferee is treated equally with other shareholders
holding the same class of capital stock as such Transferee) without the prior
approval of the Board of Directors. Any right of the Selling Stockholder to
attend meetings of the Board of Directors of the Company pursuant to Section 7.5
of the Securities Purchase Agreements will not inure (a) to the benefit of the
Transferee without the affirmative vote of the Board of Directors or (b) to any
partner, member or stockholder of an Institutional Stockholder who receives such
Stock in a distribution from such Institutional Stockholder.
(c) In the event that any Stockholder or group
of Stockholders shall desire to sell not less than fifty-one percent (51%) of
the Stock then issued and outstanding and shall have received a bona fide
written offer for the purchase thereof, they shall furnish written notice, in
accordance with paragraph (b) of this Section 5 to the Corporation and the other
Stockholders of their intention to sell. Each other Stockholder (a
"Participating Stockholder") may elect to participate in the contemplated sale
by delivering written notice to each Selling Stockholder and to the Corporation
not more than twenty-five (25) days after the date of the notice provided by the
Selling Stockholder(s). Each Selling Stockholder and each Participating
Stockholder shall be entitled to sell in the contemplated sale, at the same
price and on the same terms, a number of shares of Stock equal to the product
of (a) the number of shares of Stock to be sold in the contemplated sale, and
(b) a fraction, the numerator of which is the number of shares of Stock held by
such person and the denominator of which is the aggregate number of shares of
Stock held by all Stockholders participating in the contemplated sale. Each
Selling Stockholder agrees to use its best efforts to obtain the agreement of
the prospective transferee(s) to the participation of the Participating
Stockholders and agrees not to transfer any shares of Stock to the prospective
transferee(s) if such transferee(s) decline to allow the participation of the
Participating Stockholders in accordance with the terms of this Section 5(c).
(d) Every Stockholder shall become a party to
this Agreement by signing or causing to be signed on its behalf and delivering
to the Company an Instrument of Accession if such Person is not already a party
to this Agreement. Except as set forth herein, no Person shall become an owner
of record of any shares of Stock of the Company through subsequent transfer from
any Stockholder unless and until the Company has received an Instrument of
Accession signed by such Person, and no transfer of shares of Stock shall be
effective for any purpose unless and until recorded on the Company's record of
Stockholders upon surrender of the certificates representing such Stock, duly
endorsed for transfer. Stock shall be issued and recorded only in the name of
the beneficial owner thereof or in the name or name(s) of the trustee or nominee
or trustees or nominees holding legal title thereto for such beneficial owner on
a fully disclosed basis.
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(e) All certificates representing shares of
Stock issued on or after the date hereof shall be endorsed with the following
statement:
"THE SALE, TRANSFER, ASSIGNMENT, PLEDGE, ENCUMBRANCE
AND VOTING OF THE SECURITIES REPRESENTED BY THIS
CERTIFICATE ARE SUBJECT TO THE TERMS AND CONDITIONS OF
AN AMENDED AND RESTATED STOCKHOLDERS AGREEMENT DATED AS
OF MARCH 31, 2000, AMONG GABRIEL COMMUNICATIONS, INC.
AND HOLDERS OF THE STOCK OF SUCH CORPORATION. COPIES OF
SUCH AGREEMENT MAY BE OBTAINED AT NO COST BY WRITTEN
REQUEST MADE BY THE HOLDER OF RECORD OF THIS
CERTIFICATE TO THE SECRETARY OF GABRIEL COMMUNICATIONS,
INC."
Each Stockholder, by signing this Agreement or causing it to be signed,
represents and warrants to the Company that such Stockholder is acquiring or has
acquired its or his shares of Stock for its or his own account for investment
and not with a view to, or for resale in connection with, the distribution
thereof.
(f) Notwithstanding the foregoing, this
Section 5 shall not apply to a Person acquiring shares of Stock in a Public
Sale, and such Persons shall not be bound by this Agreement on account of any
such purchase.
ss.6. AMENDMENT AND WAIVER. No modification, amendment or
waiver of any provision of this Agreement will be effective against the Company
or the Stockholders unless such modification, amendment or waiver is approved in
writing by the holders of at least 66-2/3% of the total number of outstanding
shares of Stock; provided, however, that no amendment, modification or waiver of
any provision of this Agreement that affects one particular group of
Stockholders party to this Agreement (e.g., the Founding Stockholder, the
Institutional Stockholders and the Management Stockholders, without limitation)
in a manner different from any other group of Stockholders shall be effective
against such group of Stockholders without the approval in writing of 66-2/3% of
such group of Stockholders, and no modification, amendment or waiver of any
provision of this Agreement that affects only one party shall be effective
against such party without the approval in writing of such party. The failure of
any party to enforce any of the provisions of this Agreement will in no way be
construed as a waiver of such provisions and will not affect the right of such
party thereafter to enforce each and every provision of this Agreement in
accordance with its terms.
ss.7. SEVERABILITY. Whenever possible, each provision of
this Agreement will be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement is held to be
invalid, illegal or unenforceable in any respect under any applicable law or
rule in any jurisdiction, such invalidity, illegality or unenforceability will
not affect any other provision or other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
ss.8. ENTIRE AGREEMENT. Except as otherwise expressly set
forth herein and in the Securities Purchase Agreements and the Related
Agreements and except for the Shareholders
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Agreement made as of August 14, 1998, as amended as of November 18, 1998, by and
between the Company and the parties named therein, this document embodies the
complete agreement and understanding among the parties hereto with respect to
the subject matter hereof and thereof and supersedes and preempts any prior
understandings, agreements or representations by or among the parties, written
or oral, which may have related to the subject matter hereof in any way.
ss.9. SUCCESSORS AND ASSIGNS. This Agreement will bind and
inure to the benefit of and be enforceable by (i) the Company and its successors
and assigns and (ii) the Stockholders and, subject to the provisions of Sections
5 and 10 hereof, any subsequent holders of Restricted Securities and the
respective successors and permitted assigns of each of them so long as they hold
Restricted Securities.
ss.10. SECURITIES LAWS. (a) Prior to any transfer of any
shares of Stock which are not registered under an effective registration
statement under the Securities Act (other than a transfer pursuant to Rule 144
or any comparable rule under the Securities Act), the holder thereof will give
written notice to the Company of such holder's intention to effect such transfer
and to comply in all other respects with this Section 10. Each such notice (i)
shall describe the manner and circumstances of the proposed transfer in
sufficient detail to enable counsel to render the opinion referred to below, and
(ii) shall designate independent counsel for the holder giving such notice
(which counsel shall be experienced in securities law matters and may be outside
counsel for such holder). The holder giving such notice will submit a copy
thereof to the counsel designated in such notice. The following provisions shall
then apply:
(i) If in the written opinion of such counsel
addressed to the Company and reasonably satisfactory in form
and substance to the Company, the proposed transfer may be
effected without registration, such holder shall thereupon be
entitled to transfer such security in accordance with the
terms of the notice delivered by such holder to the Company.
Each certificate, if any, or other evidence of ownership
issued upon or in connection with such transfer shall bear the
restrictive legend set forth in Article V of the Securities
Purchase Agreements unless, in the opinion of counsel to the
Company, such legend is no longer required to insure
compliance with the Securities Act.
(ii) If the condition set forth in clause (i) is not
satisfied (unless waived in writing by the Company), such
holder shall not be entitled to transfer such security (other
than in a transfer pursuant to Rule 144 or any comparable rule
under the Securities Act) until the conditions specified in
clause (a) of this Section 10 shall be satisfied or until
registration of such security under the Securities Act has
become effective.
The holder of the Stock will pay the reasonable fees and
disbursements of its counsel in connection with all opinions rendered pursuant
to this Section 10.
(b) The restrictions imposed by this Section
10 upon the transferability of the shares of Stock shall cease and terminate
as to any particular security (i) when such securities shall have been
effectively registered under the Securities Act and disposed of in accordance
with the registration statement covering such securities, or (ii) when, in the
written opinion of counsel for the Company or counsel to any Stockholder
reasonably satisfactory to the Company addressed to the
10
<PAGE> 13
Company and reasonably satisfactory in form and substance to the Company such
restrictions are no longer required in order to assure compliance with the
Securities Act. Whenever such restrictions shall terminate as to any securities,
the holder thereof shall be entitled to receive from the Company, without
expense (other than transfer taxes, if any), new securities of like tenor not
bearing the legend set forth in Article V of the Securities Purchase Agreements.
ss.11. COUNTERPARTS. This Agreement may be executed in
separate counterparts each of which will be an original and all of which taken
together will constitute one and the same agreement.
ss.12. REMEDIES. The Stockholders will be entitled to
enforce their rights under this Agreement specifically (without posting a bond
or other security), to recover damages by reason of any material breach of any
provision of this Agreement and to exercise all other rights existing in their
favor. The parties hereto agree and acknowledge that money damages may not be an
adequate remedy for any breach of the provisions of this Agreement and that any
Stockholder may in its sole discretion apply to any court of law or equity of
competent jurisdiction for specific performance and/or injunctive relief in
order to enforce or prevent any violation of the provisions of this Agreement.
In the event of any dispute involving the terms of this Agreement, the
prevailing party shall be entitled to collect reasonable fees and expenses
incurred by the prevailing party in connection with such dispute from the other
parties to such dispute.
ss.13. EMPLOYMENT. Nothing contained in this Agreement is
intended to create for any Stockholder who is employed by the Company a right to
continued employment with the Company or employment in the same position or on
the same terms as those currently in effect.
ss.14. NOTICES. Any notice or other communication in
connection with this Agreement, any Related Agreement or the Stock shall be
deemed to be delivered and received if in writing (or in the form of a telex or
telecopy) addressed as provided below (a) when actually delivered, in person,
(b) when telexed or telecopied to said address, confirmed by registered or
certified mail, or (c) in the case of delivery by mail, three business days
shall have elapsed after the same shall have been deposited in the United States
mails, postage prepaid and registered or certified:
(i) If to the Company, at its principal
executive offices, to the attention of the Chief Executive
Officer (FAX: 314/530-7850), or at such other address as the
Company shall have specified by notice actually received by
the addressor,
with copies to:
Brooks Investments, L.P.
16650 Chesterfield Grove Road
Suite 110
Chesterfield, Missouri 63006
Attention: Robert A. Brooks
FAX: 314/530-7850
11
<PAGE> 14
and to:
Bryan Cave LLP
One Metropolitan Square
211 North Broadway, Suite 3600
St. Louis, Missouri 63102
Attention: Nick H. Varsam, Esq.
FAX: 314/259-2020
(ii) If to any purchaser of Series A Preferred
Stock, Series A-1 Preferred Stock or Series B Preferred Stock,
then to its address set forth on Exhibit A to the
corresponding Securities Purchase Agreement, or at such other
address as such purchaser shall have specified by notice
actually received by the addressor, with a copy as provided on
said Exhibit A; and
(iii) If to any other holder of record of any
Stock, to it at its address set forth in the stock records of
the Company.
SS.15. TERMINATION. This Agreement will terminate upon the
earliest to occur of (i) the date on which no Institutional Stock remains
outstanding, (ii) upon consummation of the initial Public Sale of the Common
Stock pursuant to which all shares of Series A Preferred Stock are automatically
converted into shares of Common Stock pursuant to the Company's Charter, or
(iii) the completion of any voluntary or involuntary liquidation or dissolution
of the Company. The voting provisions of Section 4 of this Agreement will
terminate upon the termination of this Agreement pursuant to the preceding
sentence.
ss.16. GOVERNING LAW. ALL QUESTIONS CONCERNING THE
CONSTRUCTION, VALIDITY AND INTERPRETATION OF THIS AGREEMENT WILL BE GOVERNED BY
THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAW EXCEPT THAT ALL MATTERS OF CORPORATE GOVERNANCE OF THE COMPANY SHALL BE
GOVERNED BY THE GENERAL CORPORATION LAW OF THE STATE OF DELAWARE.
ss.17. DESCRIPTIVE HEADINGS. The descriptive headings of
this Agreement are inserted for convenience only and do not constitute a part of
this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
Amended Stockholders' Agreement as of the day and year first above written.
THE COMPANY:
GABRIEL COMMUNICATIONS, INC.
By:
------------------------------------------------
Title: Vice Chairman and Chief Executive Officer
----------------------------------------------
12
<PAGE> 15
PURCHASERS:
<TABLE>
<S> <C>
BROOKS INVESTMENTS, L.P. RAB PARTNERSHIP, L.P.
By: Brooks Investments, Inc. By:
-------------------------------
Its: General Partner Robert A. Brooks
General Partner
By:
-------------------------------
Robert A. Brooks,
President
ONELIBERTY FUND IV, L.P. ONELIBERTY ADVISORS FUND IV, L.P.
By: OneLiberty Partners IV, L.L.C. By: OneLiberty Partners IV, L.L.C.
Its: General Partner Its: General Partner
By: By:
------------------------------- -------------------------------
GS CAPITAL PARTNERS III, L.P. GS CAPITAL PARTNERS III
OFFSHORE, L.P.
By: GS Advisors III, L.P. By: GS Advisors III (Cayman), L.P.
Its: General Partner Its: General Partner
By: GS Advisors III, L.L.C. By: GS Advisors III, L.L.C.
Its: General Partner Its: General Partner
By: By:
------------------------------ -------------------------------
GOLDMAN, SACHS & CO. STONE STREET FUND 2000, L.P.
VERWALTUNGS GmbH By: Stone Street 2000, L.L.C.
Its: General Partner
By:
------------------------------ By:
Managing Director -------------------------------
By:
------------------------------
Registered Agent
</TABLE>
15
<PAGE> 16
<TABLE>
<S> <C>
STONE STREET FUND 1998, L.P. BRIDGE STREET FUND 1998,
L.P.
By: Stone Street Advantage Corp. By: Stone Street Advantage Corp.
Its: General Partner Its: General Partner
By: By:
------------------------------------ -----------------------------
BRIDGE STREET SPECIAL OPPORTUNITIES
FUND 2000, L.P.
By: Bridge Street Special Opportunities 2000, L.L.C.
Its: General Partner
By:
------------------------------------------------
J. H. WHITNEY III, L.P. WHITNEY STRATEGIC PARTNERS III,
By: L.P.
Its: General Partner By:
Its: General Partner
By:
----------------------------- By:
---------------------------
J. H. WHITNEY IV, L.P. CENTENNIAL FUND V, L.P.
By: J. H. Whitney Equity Partners IV, LLC By: Centennial Holdings V, L.P.
Its: General Partner Its: General Partner
By: By:
----------------------------- -----------------------------
Steven C. Halstedt
A General Partner
CHASE VENTURE CAPITAL ASSOCIATES, NORWEST EQUITY PARTNERS VI, L.P.
L.P.
By: By:
Its: General Partner Its: General Partner
By: By:
----------------------------- -----------------------------
TELECOM PARTNERS II, L.P. DON INVESTMENT GROUP, L.P.
By: Telecom Management II, L.L.C., By: BGC Investors, Inc.
Its: General Partner Its: General Partner
</TABLE>
16
<PAGE> 17
<TABLE>
<S> <C>
By: By:
-------------------------------- --------------------------------
Name and Title: Name and Title:
-------------------- --------------------
17
</TABLE>
<PAGE> 18
<TABLE>
<S> <C>
CENTENNIAL ENTREPRENEURS FUND V, L.P. MERITAGE ENTREPRENEURS FUND, L.P.
By: Centennial Holdings V, L.P. By: Meritage Investment Partners, LLC
Its: General Partner Its: General Partner
By: By:
----------------------------- -----------------------------
Steven C. Halstedt
A General Partner
MERITAGE PRIVATE EQUITY FUND, L.P. MERITAGE PRIVATE EQUITY PARALLEL
FUND, L.P.
By: Meritage Investment Partners, LLC By: Meritage Investment Partners, LLC
Its: General Partner Its: General Partner
By: By:
----------------------------- -----------------------------
</TABLE>
18
<PAGE> 19
MANAGEMENT STOCKHOLDERS:
<TABLE>
<S> <C>
----------------------------------- -------------------------------------
Ross Bopp Larry W. Britt
Brian L. Butler and Susan L. Butler
Joint Caring Trust dated July 7, 1988
-----------------------------------
Robert A. Brooks By:
----------------------------------
Trustee
----------------------------------- -------------------------------------
Edward Cadieux Barbara A. Clements
----------------------------------- -------------------------------------
John P. Denneen Gary W. Eaves
Thomas P. Erickson Revocable Trust Marguerite A. Forrest Revocable Trust
U/T/A dated April 6, 1998 U/T/A dated August 11, 1998
By: By:
--------------------------------- ----------------------------------
Trustee Trustee
----------------------------------- -------------------------------------
Jennifer Garner Gerard J. Howe
----------------------------------- -------------------------------------
Jeffrey M. Jay Dale Kammerich
----------------------------------- -------------------------------------
Kevin J. Keaveny Brett Kirby
----------------------------------- -------------------------------------
Ivan Kuhn Bobby Maddox
----------------------------------- -------------------------------------
Gregory P. Pace John Presley
</TABLE>
19
<PAGE> 20
<TABLE>
<S> <C>
----------------------------------- -------------------------------------
Richard Scott Richard G. Sikora
Tettambel Investments LLC
-----------------------------------
David L. Solomon By:
----------------------------------
Name:
Title:
----------------------------------- -------------------------------------
Christopher A. Thornton Gregory H. Truitt
Tettambel Irrevocable Family Trust
----------------------------------- Dated March 7, 2000
Janet M. Wendel
Keaveny Family Millenium Trust
Dated March 10, 2000 By:
----------------------------------
Trustee
By:
-------------------------------
Trustee
Catherine B. Howe Irrevocable Trust U/T/A
By: Dated November 17, 1998
-------------------------------
Trustee
By:
----------------------------------
Trustee
Margaret A. Howe Irrevocable Trust U/T/A By:
Dated November 17, 1998 ----------------------------------
Trustee
By:
-------------------------------
Trustee
Thomas P. Erickson Individual Retirement
Account
By:
------------------------------
Trustee By:
----------------------------------
Name:
Title:
</TABLE>
20
<PAGE> 21
Schedule 1
to Stockholders' Agreement
Instrument of Accession
Reference is made to that certain Amended and Restated
Stockholders' Agreement dated as of March 31, 2000, a copy of which is attached
hereto (as amended and in effect from time to time, the "Stockholders'
Agreement"), among Gabriel Communications, Inc., a Delaware corporation (the
"Company"), and the Stockholders of the Company (as defined therein).
The undersigned, in order to become the owner or
holder of shares (the "Shares") of $.01 par
value per share, of the Company, hereby agrees that by the undersigned's
execution hereof (a) the undersigned is [an Institutional] [a] Stockholder party
to the Stockholders' Agreement subject to all of the restrictions, conditions
and obligations applicable to [Institutional] Stockholders set forth in the
Stockholders' Agreement and the Securities Purchase Agreements (as defined in
the Stockholders' Agreement), and (b) all of the Shares (and any and all shares
of stock of the Company issued in respect thereof) constitute Restricted
Securities subject to all the rights, restrictions, conditions and obligations
applicable to Restricted Securities as set forth in the Stockholders' Agreement
and such Securities Purchase Agreements. This Instrument of Accession shall take
effect and shall become a part of said Stockholders' Agreement immediately upon
execution.
Executed as of the date set forth below under the laws of the
State of Delaware.
Signature:
----------------------------------
Address:
------------------------------------
------------------------------------
Date:
--------------------------------------
Accepted:
GABRIEL COMMUNICATIONS, INC.
By:
-------------------------------
Date:
-----------------------------
