[ATI LOGO]
ADVANCED TELECOMMUNICATIONS, INC.
ISSUANCE AND SALE OF
SERIES Cl PREFERRED STOCK
DECEMBER 13, 1999
AMENDMENT NO. 1
TO
SERIES C PREFERRED STOCK PURCHASE AGREEMENT
This Amendment No. 1 to Series C Preferred Stock Purchase Agreement (the
"AMENDMENT") is made as of December 13, 1999 by and among:
(i) Advanced Telecommunications, Inc., a Delaware corporation (the
"Company");
(ii) Xxxxxxxx, Xxxxxx & Xxxxx II, L.P. ("Xxxxxxxx");
(iii) Xxxx Capital Fund VI, L.P. ("Bain") and the other Persons who are
listed on the signature pages hereto as Bain Purchasers (the "BAIN
PURCHASERS");
(iv) X.X. Xxxxxx Ventures Corporation ("XX Xxxxxx");
(v) Mount Washington Associates L.L.C. ("MOUNT WASHINGTON");
(vi) Xxxxxx X. Xxxxx ("Xxxxx");
(vii) Xxxx Xxxx ("P._Cady");
(viii) Xxxxxx X. Xxxx and Xxxx Xxxxxx Xxxx ("X. Xxxx"); and
(ix) Xxxxx X. Xxxx and Xxx X. Xxxx ("XX Xxxx").
RECITALS
1. The Bain Purchasers, Xxxxxxxx, XX Xxxxxx, Mount Washington, Simon, X.
Xxxx, X. Xxxx and XX Xxxx (collectively, the "SUBSEQUENT PURCHASERS") have
agreed to purchase shares of the Company's Series Cl Preferred Stock, par value
$0.01 per share (the "SERIES Cl PREFERRED STOCK") on the conditions and subject
to the terms set forth in the Series C Preferred Stock Purchase Agreement dated
September 30, 1999 by and among the Company, the Bain Purchasers, Xxxxxxxx and
certain other Purchasers (the "STOCK PURCHASE AGREEMENT"), as amended by this
Amendment.
2. The Company and the Majority Purchasers, which includes the Majority
Bain Purchasers and Xxxxxxxx, desire to amend the Stock Purchase Agreement to
include XX Xxxxxx, Mount Washington, Simon, X. Xxxx, X. Xxxx and XX Xxxx as
parties thereto and to include the Series Cl Preferred Stock as Shares
thereunder. Capitalized terms used herein and not otherwise defined herein shall
have the meanings ascribed to them in the Stock Purchase Agreement.
AGREEMENT
Therefore, the parties hereto hereby agree as follows:
1. All references in the Stock Purchase Agreement and this Amendment to the
"STOCK PURCHASE AGREEMENT" or the "AGREEMENT" shall be deemed to mean the Stock
Purchase Agreement, as amended by this Amendment.
2. The defined term "SHARES" in the Stock Purchase Agreement shall be
deemed to include the shares of Series Cl Preferred Stock sold to the Subsequent
Purchasers pursuant to the Stock Purchase Agreement.
3. The defined term "STOCKHOLDERS AGREEMENT" shall be deemed to mean the
Stockholders Agreement, as amended by Amendment No. 1 to Amended and Restated
Stockholders Agreement dated as of the date hereof by and among the Company, the
Bain Purchasers, Xxxxxxxx and certain other stockholders of the Company (the
"AMENDMENT TO STOCKHOLDERS AGREEMENT").
4. Section 1.3 of the Stock Purchase Agreement is hereby amended by
replacing it in its entirety with the following:
"1.3. SALE OF SHARES AT SUBSEQUENT CLOSINGS.
1.3.1 SALE OF SHARES AT FIRST SUBSEQUENT CLOSING. The Company
shall adopt and file with the Secretary of State of Delaware on or
prior to the closing of the purchase of Series Cl Preferred Stock
hereunder on December 13, 1999 (the "FIRST SUBSEQUENT CLOSING") a
Second Amended and Restated Certificate of Incorporation in the form
attached hereto as EXHIBIT L (the "SECOND AMENDED CHARTER").
Subject to the terms and conditions contained herein, and based on the
representations and warranties contained herein, each Subsequent
Purchaser agrees, severally, to purchase, and the Company agrees to
issue and sell to each Subsequent Purchaser on January 4, 2000, that
number of shares of Series Cl Preferred Stock set forth in the column
First Subsequent Closing opposite each Subsequent Purchaser's name on
EXHIBIT A hereto at the per share purchase price of $6.00 (the "FIRST
SUBSEQUENT PURCHASE PRICE").
1.3.2 SALE OF SHARES AT OTHER SUBSEQUENT CLOSINGS. Subject to all
of the terms and conditions of this Agreement and based on the
representations and warranties contained herein, at any time after
March 31, 2000 and prior to September 30, 2001, at the option of the
Company and upon not less than ten Business Days prior written notice
to the Bain Purchasers, the Bain Purchasers will purchase at not more
than three subsequent closings (each, together with the First
Subsequent Closing, a "SUBSEQUENT CLOSING") at a per share purchase
price of $5.00 (or such other per share purchase price
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as shall be agreed to in writing by the Majority Bain Purchasers and a
majority of the disinterested members of the Company's board of
directors) a number of Shares not exceeding 6,000,000 shares; PROVIDED
that in addition to the conditions set forth in Section 4.4 hereof,
the following conditions have been met: (a) the Company shall have
achieved the operational and financial targets set forth on EXHIBIT C
hereto and (b) the CLEC Basket Market Value shall be greater than
11.2, as calculated on EXHIBIT D hereto (the "BASE MARKET VALUE");
PROVIDED, HOWEVER that in the event that one or more of the Designated
CLECs ceases to be a publicly traded company trading under the ticker
symbol under which it is trading as of Initial Closing, the Base
Market Value shall be recalculated in good faith to exclude such
Designated CLEC from the calculation."
5. Section 4.4 of the Stock Purchase Agreement is hereby amended by
renumbering it as Section 4.5.
6. Section 4.3 of the Stock Purchase Agreement is hereby amended by
replacing it in its entirety with the following:
"4.3. FIRST SUBSEQUENT CLOSING. The obligations of each of the
Subsequent Purchasers under Section 1 of this Agreement to purchase
Shares at the First Subsequent Closing are subject to the fulfillment
on or before the First Subsequent Closing of each of the following
conditions unless waived in accordance with Section 8.1:
4.3.1. REPRESENTATIONS AND WARRANTIES. The representations
and warranties of the Company contained in Section 2, as amended
by the amended Schedules attached hereto as EXHIBIT M (the
"AMENDED SCHEDULES"), shall be true and correct in all material
respects on and as of the date of the First Subsequent Closing
with the same effect as though such representations and
warranties had been made on and as of the date of such First
Subsequent Closing and the Subsequent Purchasers shall have
received a certificate of the Chief Executive Officer or Chief
Operating Officer of the Company to that effect.
4.3.2 PERFORMANCE. The Company shall have performed and
complied with all agreements, obligations, and conditions
contained in this Agreement and the Stockholders Agreement that
are required to be performed or complied with by it on or before
the First Subsequent Closing.
4.3.3 BOARD DETERMINATIONS. The board of directors of the
Company shall have approved all issuances of Shares at the First
Subsequent Closing and determined that the financing to be
provided by the issuance and sale of Shares at the First
Subsequent Closing is necessary or desirable in connection with
the funding of the business of the Company and its Subsidiaries.
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4.3.4 FILING OF SECOND AMENDED CHARTER. The Company shall
have filed with the Secretary of State of Delaware the Second
Amended Charter in the form attached hereto as EXHIBIT L and the
Second Amended Charter shall have become effective.
4.3.5 OUALIFICATIONS. All authorizations, approvals, or
permits, if any, of any governmental authority or regulatory body
of the United States or of any state that are required in
connection with the lawful issuance and sale of Shares to the
Subsequent Purchasers or the execution, delivery and performance
by the Company of this Agreement and the Stockholders Agreement
shall have been duly obtained and shall be effective on and as of
the First Subsequent Closing, other than those which are not
required to be obtained before the First Subsequent Closing.
4.3.6 AMENDMENT TO STOCKHOLDERS AGREEMENT. The Amendment to
Stockholders Agreement in the form attached hereto as EXHIBIT N
shall have been executed and delivered by the parties thereto
(other than the Purchasers in their capacity as such), no such
party shall be in breach or default thereof and the Amendment to
Stockholders Agreement shall be in full force and effect as of
the First Subsequent Closing.
4.3.7 CONTINUED FULFILLMENT. The conditions set forth in
Sections 4.1.4, 4.1.5 and 4.1.6 shall continue to have been
fulfilled at the First Subsequent Closing.
4.3.8 SECRETARY'S CERTIFICATE. The Secretary of the Company
shall have delivered to the Subsequent Purchasers at the First
Subsequent Closing a Certificate dated as of the First Subsequent
Closing, certifying: (a) that attached thereto is a true and
complete copy of the by-laws of the Company as in effect on the
date of such certification; (b) that attached thereto is a true
and complete copy of all resolutions adopted by the board of
directors of the Company authorizing the execution, delivery and
performance of this Amendment and the Amendment to Stockholders
Agreement and the issuance, sale and delivery of the Shares, and
that all such resolutions are in full force and effect and are
all the resolutions adopted in connection with the transactions
contemplated by this Agreement and the Stockholders Agreement;
(c) that attached thereto is a true and complete copy of the
charter of the Company as amended by the Second Amended Charter
and (d) to the incumbency and specimen signature of certain
officers of the Company.
4.3.9 OPINION OF COMPANY COUNSEL. The Subsequent Purchasers
shall have received from Xxxxx Xxxxxxx Xxxxxxx & Xxxxx LLP,
counsel for the Company, an opinion substantially in the form
(including, with respect to the Second Amended Charter, paragraph
3) attached hereto as EXHIBIT G.
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4.3.10 THIRD PARTY CONSENTS. The Company and each Subsidiary
shall have received all required third party consents necessary
to the consummation of the transactions contemplated by this
Agreement.
4.3.11 PROCEEDINGS AND DOCUMENTS. All instruments and legal,
governmental, administrative, corporate and partnership
proceedings in connection with the issuance of Shares, this
Agreement and the Amendment to Stockholders Agreement shall be
reasonably satisfactory in form and substance to the Subsequent
Purchasers, and the Subsequent Purchasers shall have received
copies of all documents, including, without limitation, records
of corporate or other proceedings, and any consents, licenses,
approvals, permits and orders required to be secured by the
Company in connection with the issuance of Shares, this Agreement
and the Amendment to Stockholders Agreement or which any
Purchaser may have reasonably requested in connection therewith.
4.4. OTHER SUBSEQUENT CLOSINGS. The obligations of each of the
Bain Purchasers under Section 1 of this Agreement to purchase Shares
at each Subsequent Closing other than the First Subsequent Closing are
subject to the fulfillment on or before each such Subsequent Closing
of each of the following conditions unless waived in accordance with
Section 8.1:
4.4.1. REPRESENTATIONS AND WARRANTIES. The representations
and warranties of the Company contained in Section 2 shall be
true and correct in all material respects on and as of the date
of each Subsequent Closing with the same effect as though such
representations and warranties had been made on and as of the
date of such Subsequent Closing and the Bain Purchasers shall
have received a certificate of the Chief Executive Officer or
Chief Operating Officer of the Company to that effect.
4.4.2 PERFORMANCE. The Company shall have performed and
complied with all agreements, obligations, and conditions
contained in this Agreement and the Stockholders Agreement that
are required to be performed or complied with by it on or before
such Subsequent Closing.
4.4.3 BOARD DETERMINATIONS. The board of directors of the
Company shall have approved all issuances of Shares at such
Subsequent Closing and determined that the financing to be
provided by the issuance and sale of Shares at such Subsequent
Closing is necessary or desirable in connection with the funding
of the business of the Company and its Subsidiaries.
4.4.4 CONTINUED FULFILLMENT. The conditions set forth in
Sections 4.1.4, 4.1.5 and 4.1.6 shall continue to have been
fulfilled at each such Subsequent Closing.
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4.4.5 SECRETARY'S CERTIFICATE. The Secretary of the Company
shall have delivered to the Bain Purchasers at such Subsequent
Closing a Certificate, dated as of such Subsequent Closing,
certifying: (a) that attached thereto is a true and complete copy
of the by-laws of the Company as in effect on the date of such
certification; (b) that attached thereto is a true and complete
copy of all resolutions adopted by the board of directors of the
Company authorizing the issuance, sale and delivery of the
Shares, and that all such resolutions are in full force and
effect and are all the resolutions adopted in connection with the
transactions contemplated by this Agreement and the Stockholders
Agreement; (c) that attached thereto is a true and complete copy
of the charter of the Company as amended by the Second Amended
Charter and (d) to the incumbency and specimen signature of
certain officers of the Company.
4.4.6 OUALIFICATIONS. All authorizations, approvals, or
permits, if any, of any governmental authority or regulatory body
of the United States or of any state that are required in
connection with the lawful issuance and sale of Shares to the
Bain Purchasers or the execution, delivery and performance by the
Company of this Agreement and the Stockholders Agreement shall
have been duly obtained and shall be effective on and as of each
Subsequent Closing, other than those which are not required to be
obtained before each Subsequent Closing.
4.4.7 OPINION OF COMPANY COUNSEL. The Purchasers shall have
received from Xxxxx Xxxxxxx Xxxxxxx & Xxxxx LLP, counsel for the
Company, an opinion substantially in the form (other than
paragraph 3) attached hereto as EXHIBIT C.
4.4.8 THIRD PARTY CONSENTS. The Company and each Subsidiary
shall have received all required third party consents necessary
to the consummation of the transactions contemplated by this
Agreement.
4.4.9 PROCEEDINGS AND DOCUMENTS. All instruments and legal,
governmental, administrative, corporate and partnership
proceedings in connection with the issuance of Shares, this
Agreement and the Stockholders Agreement shall be reasonably
satisfactory in form and substance to the Bain Purchasers, and
the Bain Purchasers shall have received copies of all documents,
including, without limitation, records of corporate or other
proceedings, and any consents, licenses, approvals, permits and
orders required to be secured by the Company in connection with
the issuance of Shares, this Agreement and the Stockholders
Agreement or which any Purchaser may have reasonably requested in
connection therewith."
7. Section 6.3 of the Stock Purchase Agreement is hereby amended by
replacing it in its entirety with the following:
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"OTHER PURCHASERS" shall mean BancBoston Xxxxxxxxx Xxxxxxxx Inc.,
Bayview 99 I, L.P., Bayview 99 II, L.P., Xxxxx Xxxxxxxxx, Xxxxxxx
Xxxxxxxxx, XX Xxxxxx, Mount Washington, Simon, X. Xxxx, X. Xxxx and XX
Xxxx."
8. Each of XX Xxxxxx, Mount Washington, Simon, X. Xxxx, X. Xxxx and XX Xxxx
shall become a party to the Stock Purchase Agreement by its execution of the
signature page hereto and shall be designated as a "Purchaser" thereunder.
9. EXHIBIT A to the Stock Purchase Agreement is hereby amended by replacing
it in its entirety with EXHIBIT A attached hereto.
10. The parties hereto acknowledge that Xxxxx X. Xxxxxx and Xxxxxx X.
Xxxxxx ("XXXXXX") have preemptive rights under the Stockholders Agreement in
connection with the issuance of Shares at the First Subsequent Closing which
they have not exercised to date. The number of shares of Series Cl Preferred
Stock authorized in the Second Amended Charter shall be sufficient to
accommodate the issuance of Shares to Xxxxxx in the event Xxxxxx exercises its
preemptive rights. In the event that Xxxxxx exercises its preemptive rights to
purchase shares of Series Cl Preferred Stock, the parties agree that Xxxxxx may
become a party to the Stock Purchase Agreement by executing a joinder agreement
and upon execution of such joinder agreement shall be designated as a
"Purchaser" under the Stock Purchase Agreement entitled to rights and subject to
obligations applicable to a Purchaser thereunder.
11. Except as specifically amended by this Amendment, the Stock Purchase
Agreement shall remain in full force and effect in accordance with its terms.
12. This Amendment may be executed in any number of counterparts, each of
which shall constitute an original, but all of which, taken together, shall
constitute one and the same agreement.
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IN WITNESS WHEREOF, each of the undersigned has duly executed this
Amendment as of the date first written above.
THE COMPANY: ADVANCED TELECOMMUNICATIONS, INC.
By: /s/ Xxxxxxxx X. Xxxxxxxx
-----------------------------------------
Xxxxxxxx X. Xxxxxxxx,
Chief Executive Officer
BAIN PURCHASERS: XXXX CAPITAL FUND VI, L.P.
By: Xxxx Capital Partners VI, L.P.,
its general partner
By: Xxxx Capital Investors VI, Inc.,
its general partner
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
BCIP ASSOCIATES II
BCIP TRUST ASSOCIATES II
BCIP ASSOCIATES II-B
BCIP TRUST ASSOCIATES II-B
BCIP ASSOCIATES II-C
By: Xxxx Capital, Inc.,
their Managing Partner
PEP INVESTMENTS PTY LTD.
By: Xxxx Capital, Inc.,
its attorney-in-fact
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
SANKATY HIGH YIELD ASSET PARTNERS, L.P.
By /s/ Xxxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Managing Director
RGTP, LLC
By:_____________________________________
Name:
Title:
BAIN PURCHASERS: XXXX CAPITAL FUND VI, L.P.
By: Xxxx Capital Partners VI, L.P.,
its general partner
By: Xxxx Capital Investors VI, Inc.,
its general partner
By:______________________________________
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
BCIP ASSOCIATES II
BCIP TRUST ASSOCIATES II
BCIP ASSOCIATES II-B
BCIP TRUST ASSOCIATES II-B
BCIP ASSOCIATES II-C
By: Xxxx Capital, Inc.,
their Managing Partner
PEP INVESTMENTS PTY LTD.
By: Xxxx Capital, Inc.,
its attorney-in-fact
By:_______________________________________
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
SANKATY HIGH YIELD ASSET PARTNERS, L.P.
By _______________________________________
Name:
Title: Managing Director
RGIP, LLC
By: /s/ X. Xxxxxxxx Malt
--------------------------------------
Name: X. Xxxxxxxx Malt
Title: Managing Member
XXXXXXXX: XXXXXXXX XXXXXX & XXXXX II, L.P.
A DELAWARE LIMITED PARTNERSHIP
BY: XXXXXXXX XXXXXX & XXXXX LLC,
GENERAL PARTNER
By: /s/
----------------------------------------
Name:
Title:
XX XXXXXX: X.X. XXXXXX VENTURES CORPORATION
By: /s/ Xxxx X. Xxxxx
----------------------------------------
Name: Xxxx X. Xxxxx
Title: Director
MOUNT WASHINGTON: MOUNT WASHINGTON ASSOCIATES L.L.C.
By: /s/ Xxxxx X. Xxxxxx, Xx.
----------------------------------------
Name: Xxxxx X. Xxxxxx, Xx.
Title: Managing Member
SIMON: /s/ Xxxxxx X. Xxxxx
-------------------------------------------
Xxxxxx X. Xxxxx
XXXX: /s/ Xxxx Xxxx
-------------------------------------------
Xxxx Xxxx
XX XXXX: /s/ Xxxxx X. Xxxx & Xxx X. Xxxx
-------------------------------------------
Xxxxx X. Xxxx & Xxx X. Xxxx,
as Joint Tenants
X. XXXX: /s/ Xxxxxx X. Xxxx & Xxxx Xxxxxx Xxxx
-------------------------------------------
Xxxxxx X. Xxxx & Xxxx Xxxxxx Xxxx,
as Joint Tenants
