Exh. 10.25
THIRD AMENDMENT TO
PURCHASE AGREEMENT DATED AS OF JUNE 22, 1995
THIS THIRD AMENDMENT TO PURCHASE 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. (successor to 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") and
Enterprises & Transcommunications, L.P. ("E&T," and collectively with CIBC,
Chase, Xxxxxxx Direct Fund IV, BT, Northwood Capital, Northwood Ventures, and
E&T, the "Original Purchasers"), and Fidelity Communications International,
Inc. ("FCI") and Fidelity Investors Limited Partnership ("FILP," and together
with FCI, "Fidelity").
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.
The Company and the Original Purchasers desire to amend the Purchase
Agreement, dated as of June 22, 1995, as amended to date (as so amended, the
"Purchase 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 Original Purchasers hold 66 2/3% of the outstanding Investor
Common Stock (as defined in the Purchase 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. Amendment of Section 3D.
(a) Each of FCI and FILP hereby agrees that by its execution of this
Amendment it shall become a party to and be bound by the terms and provisions of
Section
3D of the Purchase Agreement, as amended hereby, and the term "Purchasers" as
used in the Purchase Agreement, as amended hereby, shall be deemed to include
FCI and FILP solely for purposes of Section 3D and the definition of "Section 3D
Required Approval."
(b) The first clause of Section 3D is hereby amended and restated in its
entirety to read as follows:
"So long as any Purchaser holds any Investor Common Stock or any Investor
Preferred Stock, the Company shall not, without the Section 3D Required
Approval:"
2. Amendment of Section 8. Section 8 is hereby amended to add the
following definition immediately following the definition of "Xxxxxxxx
Agreement":
"Section 3D Required Approval" means the Company must have delivered a
written notice to the Purchasers stating the action proposed to be taken by the
Company and Purchasers holding at least 66 2/3% of the outstanding Common Stock
Equivalents held by the Purchasers must have approved such action by a written
approval delivered to the Company. "Common Stock Equivalents" shall mean the
total number of shares of the Company's common stock plus the number of shares
of common stock issuable upon conversion of the Company's 9.0% Cumulative
Convertible Pay-In-Kind Preferred Stock and 9.0% Cumulative Convertible Pay-In-
Kind Preferred Stock, Series A.
3. 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.
4. 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.
5. Descriptive Headings. The descriptive headings of this Amendment are
inserted for convenience only and do not constitute a part of this Amendment.
2
6. Effectiveness. The parties hereby acknowledge that pursuant to
Section 9E of the Purchase Agreement (as in effect immediately prior to this
Amendment), this Amendment shall become effective when executed by the holders
of 66 2/3% of the outstanding Investor Common Stock and upon the consummation of
the closing of the sale of Series A Preferred Stock to Fidelity.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
first written above.
3
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:
FIDELITY COMMUNICATIONS
INTERNATIONAL, INC.
By:
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Its:
FIDELITY INVESTORS LIMITED
PARTNERSHIP
By: Fidelity Investors Management
Corp., a general partner
By:
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Its:
