Exhibit 10.21
FIRST AMENDMENT TO
AMENDED AND RESTATED REGISTRATION AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED REGISTRATION AGREEMENT (the
"Amendment") is made as of October 17, 1997, by and among USN Communications,
Inc. (formerly known as United USN, Inc.) (the "Company"), CIBC Wood Gundy
Ventures, Inc. ("CIBC"), Chase Venture Capital Associates, L.P. (formerly known
as Chemical Venture Capital Associates) ("Chase"), Xxxxxxx Venture Partners IV -
Direct Fund L.P. ("Xxxxxxx Direct Fund IV"), BT Capital Partners, Inc. ("BT"),
Northwood Capital Partners LLC ("Northwood Capital"), Northwood Ventures LLC
("Northwood Ventures"), Enterprises & Transcommunications, L.P. ("E&T"), Xxxxxxx
Venture Partners V - Direct Fund L.P. ("Xxxxxxx Direct Fund V"), Prime VIII, LP
("Prime VIII") and Fidelity Communications International, Inc. ("FCI") and
Fidelity Investors Limited Partnership ("FILP," and together with FCI,
"Fidelity"). Fidelity, CIBC, Chase, Xxxxxxx Direct Fund IV, BT, Northwood
Capital, Northwood Ventures, E&T, Xxxxxxx Direct Fund V and Prime VIII are
herein referred to as the "Investors".
Fidelity will purchase shares of the Company's 9.0% Cumulative Convertible
Pay-In-Kind Preferred Stock, Series A, par value $1.00 per share (the "Series A
Preferred Stock"), pursuant to a Purchase Agreement (the "Fidelity Purchase
Agreement"), dated as of October 17, 1997, between the Company and Fidelity.
Prime VIII and Xxxxxxx Direct Fund V have purchased shares of Series A
Preferred Stock.
The Company and the Investors desire to amend the Amended and Restated
Registration Agreement, dated as of June 22, 1995 (the "Registration
Agreement"), by and among the Company, CIBC, Chase, Xxxxxxx Direct Fund IV, BT,
Northwood Capital, Northwood Ventures and E&T as set forth below. The
undersigned Investors hold all of the Registrable Securities (as defined in the
Registration Agreement). The execution and delivery of this Amendment is a
condition to Fidelity's purchase of Series A Preferred Stock pursuant to the
Fidelity Purchase Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties to this Amendment hereby agree as follows:
1. Investors. Each of Xxxxxxx Direct Fund V, Prime VIII and Fidelity
hereby agrees that by its execution of this Amendment it shall become a party to
and be bound by the terms and provisions of the Registration Agreement, as
amended hereby, and the term "Investors" as used in the Registration Agreement,
as amended hereby, shall be deemed to include Xxxxxxx Direct Fund V, Prime VIII
and Fidelity.
2. Amendment of Paragraph 8. The first sentence of Paragraph 8 of the
Amended and Restated Registration Agreement is amended and restated as follows:
"Registrable Securities" means (i) any Class A Common Stock, par value $.01
per share, of the Company (the "Class A Common Stock") owned by the Investors,
(ii) any Class A Common Stock issued to the Investors upon the conversion of the
Series A Preferred Stock, (iii) any Class A Common Stock issued to the Investors
upon the conversion of the 9.0% Cumulative Convertible Pay-In-Kind Preferred
Stock, par value $1.00 per share, of the Company and (iv) any Class A Common
Stock issued or issuable with respect to the securities referred to in clause
(i), (ii) or (iii) by way of a stock dividend or stock split or in connection
with a combination of shares, recapitalization, merger, consolidation or other
reorganization.
3. Waiver of Section 2. The Investors hereby agree to waive any rights
pursuant to Section 2 of the Registration Agreement in connection with an
initial public offering of the Company's Common Stock.
4. Severability. Whenever possible, each provision of this Amendment
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Amendment is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Amendment.
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 Amendment.
6. Descriptive Headings. The descriptive headings of this Amendment are
inserted for convenience only and do not constitute a part of this Amendment.
7. Effectiveness. The parties hereby acknowledge that pursuant to
Section 9(e) of the Registration Agreement (as in effect immediately prior to
this Amend-
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ment), this Amendment shall become effective when executed by the holders of
Registrable Securities and upon the consummation of the closing of the sale of
Series A Preferred Stock to Fidelity.
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
first written above.
USN COMMUNICATIONS, INC.
By:
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Its:
CIBC WOOD GUNDY VENTURES, INC.
By:
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Its:
CHASE VENTURE CAPITAL ASSOCIATES, L.P.
By:
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Its:
XXXXXXX VENTURE PARTNERS IV DIRECT -
FUND L.P.
By: Back Bay Partners XII L.P.
By: Xxxxxxx Venture Partners, Inc.
By:
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Its:
BT CAPITAL PARTNERS, INC.
By:
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Its:
NORTHWOOD CAPITAL PARTNERS LLC
By:
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Its:
NORTHWOOD VENTURES LLC
By:
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Its:
ENTERPRISES & TRANSCOMMUNICATIONS L.P.
By: Prime Enterprises, L.P.
By: Prime New Ventures Management, L.P.
By: Prime II Management, L.P.
By: Prime II Management, Inc.
By:
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Its:
XXXXXXX VENTURE PARTNERS V -
DIRECT FUND L.P.
By: HVP V - Direct Associates L.L.C.
By: HVP Partners, LLC,
its Managing Member
By:
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Its:
PRIME VIII, LP
By: Prime SKA-I, LLC
General Partner
By:
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Its:
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FIDELITY COMMUNICATIONS
INTERNATIONAL, INC.
By:
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Its:
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FIDELITY INVESTORS LIMITED
PARTNERSHIP
By: Fidelity Investors Management Corp.,
general partner
By:
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Its:
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