EXHIBIT 4.1
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Amended and Restated
STOCKHOLDERS AGREEMENT
AMONG
FIBERNET TELECOM GROUP, INC.
AND
CERTAIN STOCKHOLDERS
DATED AS OF JANUARY 31, 2001
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AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
("Agreement") dated as of January 31, 2001 between
FIBERNET TELECOM GROUP, INC. ("Company"), SIGNAL
EQUITY PARTNERS, L.P. (formerly known as Signal
Capital Partners, L.P.), as the Majority in
Interest of the Purchasers ("Signal"), and NORTEL
NETWORKS INC. ("Nortel") (each term as defined
herein), amending and restating the Stockholders
Agreement dated as of May 7, 1999 (as amended by
the Amendment dated as of June 30, 2000, the
Amendment dated July 28, 2000, and the Amendment
dated August 11, 2000 the "Stockholders
Agreement") by and among the Company and the
Stockholders (as defined in the Stockholders
Agreement).
Each Stockholder owns, on the date hereof, that number of
shares of Stock (as hereinafter defined) set forth opposite such Stockholder's
name on Annex I. It is deemed to be in the best interest of the Company and the
Stockholders that provision be made for the continuity and stability of the
business and policies of the Company, and, to that end, the Company and the
Stockholders hereby set forth their agreement with respect to the shares of
Stock owned by the Stockholders.
NOW, THEREFORE, in consideration of the premises and of the
mutual consents and obligations hereinafter set forth, the parties hereto hereby
agree as follows:
Section 1. Definitions.
Capitalized terms used and not otherwise defined herein shall
have the meanings ascribed to them in the Securities Purchase Agreement. As used
herein, the following terms shall have the following respective meanings:
"Affiliate" has the meaning ascribed thereto in the Securities
Purchase Agreement.
"all or substantially all" shall have the meaning ascribed to
such term in the Securities Purchase Agreement.
"Board" means the Board of Directors of the Company.
"Business Day" shall mean any day other than a Saturday or
Sunday or a day on which banks are authorized or required to be closed in New
York, New York.
"Charter" shall mean the Certificate of Incorporation of the
Company, as amended from time to time.
"Common Stock" shall mean the common stock, $.001 par value, of
the Company.
"Concordia" shall mean Concordia Telecom Management, L.L.C., a
Delaware limited liability company.
"Founders Shares" shall mean at any time the shares of Common
Stock, any securities which by their terms are exercisable or exchangeable for
or convertible into Common Stock, and any securities of the Company received in
respect thereof, which are held by the Founding Stockholders.
"Founding Stockholders" shall mean the Persons listed as
Stockholders under the heading "Founding Stockholders" in Annex I hereto, and
shall include any successor to, or assignee or transferee of, any of the
Founding Stockholders whether or not such Persons shall agree in writing to be
treated as a Founding Stockholder and to be bound by the terms and to comply
with the provisions of this Agreement.
"Group" shall mean:
(i) in the case of any Stockholder who is an individual,
(A) such Stockholder, (B) the spouse, lineal descendants and
adopted children of such Stockholder and (C) any trust for the
benefit of any of the foregoing; and
(ii) in the case of any Stockholder which is a corporation,
limited liability company or partnership, (A) such corporation,
limited liability company or partnership, (B) any corporation or
other business organization to which such corporation, limited
liability company or partnership shall sell or transfer all or
substantially all of its assets or with which it shall be merged,
(C) with respect to any limited liability company or partnership,
any partner (general or limited) or member thereof and (D) any
Affiliate of such corporation.
"Majority in Interest" has the meaning ascribed to such term in
the Securities Purchase Agreement.
"Nortel" shall mean Nortel Networks Inc., a Delaware
corporation.
"Operating Budget" has the meaning ascribed to such term in the
Securities Purchase Agreement.
"Person" shall mean any individual, partnership, corporation,
group, trust or other legal entity.
"Privately Negotiated Sale" shall mean a transaction between a
Stockholder and an unrelated party, negotiated on an arm's length basis other
than on a securities exchange, in the over the counter market or on the Nasdaq
National Market.
"Proportionate Percentage" shall mean:
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(i) for the purposes of Section 3, the pro rata percentage
of Stock being offered by a Selling Group pursuant to Section 3 that
each Stockholder (other than the Selling Group) shall be entitled to
purchase, which pro rata percentage, as to each such Stockholder,
shall be the percentage figure which expresses the ratio, on a Common
Stock equivalent basis (which for purposes of this Agreement shall
mean the conversion of all securities convertible into Common Stock
and the exercise of all options and warrants then exercisable for
Common Stock), between the number of shares of Stock owned by such
Stockholder and the aggregate number of shares of Stock owned by all
Stockholders (other than the Selling Group) at the date of
determination;
(ii) for the purposes of Section 4, the pro rata
percentage of the number of shares of Stock to which a Section 4
Offer relates that each Stockholder shall be entitled to Transfer
to the Section 4 Purchaser, which pro rata percentage, as to each
such Stockholder, shall be the percentage figure which expresses
the ratio, on a Common Stock equivalent basis, between the number
of shares of Stock owned by such Stockholder and the aggregate
number of shares of Stock owned by all Stockholders and the
Section 4 Offeree at the date of determination; and
(iii) for the purposes of Section 7, the pro rata
percentage of Stock subject to purchase pursuant to Section 7 that
each Stockholder shall be entitled to purchase, which pro rata
percentage, as to each such Stockholder, shall be the percentage
figure which expresses the ratio, on a Common Stock equivalent
basis, between the number of shares of Stock owned by such
Stockholder and the aggregate number of shares of Stock owned by
all Stockholders at the date of determination.
"Purchasers" shall mean the Persons listed as Stockholders
under the heading "Purchasers" in Annex I hereto, and shall include any
successor to, or assignee or transferee of, any of the Purchasers whether or not
such Persons shall agree in writing to be treated as a Purchaser and to be bound
by the terms and to comply with the provisions of this Agreement, each a
"Purchaser".
"Qualified Public Offering" shall mean (i) for purposes of the
Charter, the Proxy (as hereinafter defined), and Sections 2(a), 2(b), 4, 8 and 9
of this Agreement (together, the "Surviving Provisions"), a fully underwritten
public offering (underwritten by an underwriter of national reputation) of
shares of Common Stock registered pursuant to the Securities Act with proceeds
to the Company of at least $75,000,000 (net of underwriting discounts and
expenses) or otherwise on terms reasonably acceptable to the Majority in
Interest and Nortel, and (ii) solely for purposes of this Agreement
(specifically excluding any of the Surviving Provisions), any closing of any
offering of securities of the Company pursuant to that Amendment No. 4 to Form
S-1 on Form S-3 under the Securities Act ("S-3"), as filed with the Securities
and Exchange Commission on January 18, 2001, as such S-3 may be amended or
supplemented from time to time, with cash proceeds to the Company of at least
$10,000,000.
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"Securities Act" shall mean the Securities Act of 1933 together
with any applicable regulations, as the same may be amended from time to time.
"Securities Purchase Agreement" shall mean the Securities
Purchase Agreement dated as of May 7, 1999 among the Company and the purchasers
named therein.
"Selling Group" shall mean a Stockholder or a member of the
Group of a Stockholder proposing to Transfer its Stock, or which has delivered a
notice of intention to Transfer, pursuant to Section 3 or Section 4 hereof.
"Series C Preferred Stock" shall mean the Series C Convertible
Preferred Stock, par value $.001, of the Company.
"Series D Preferred Stock" shall mean the Series D Convertible
Preferred Stock, par value $.001, of the Company.
"Series E Preferred Stock" shall mean the Series E Convertible
Preferred Stock, par value $.001, of the Company.
"Series F Preferred Stock" shall mean the Series F Convertible
Preferred Stock, par value $.001, of the Company.
"Series H Preferred Stock" shall mean the Series H Convertible
Preferred Stock, par value $.001, of the Company.
"Series I Preferred Stock" shall mean the Series I Convertible
Preferred Stock, par value $.001, of the Company.
"Signal" shall mean Signal Equity Partners, L.P., a Delaware
limited partnership.
"Stock" shall mean (i) the presently issued and outstanding
shares of Common Stock, Series C Preferred Stock, Series D Preferred Stock,
Series E Preferred Stock, Series F Preferred Stock, Series H Preferred Stock and
Series I Preferred Stock, and any options, warrants or other instruments
exercisable therefor (which options, warrants or other instruments shall be
deemed to be that number of outstanding shares of Stock for which they are
exercisable), (ii) any additional shares of capital stock of the Company
hereafter issued and outstanding and (iii) any shares of capital stock of the
Company into which such shares may be converted or for which they may be
exchanged or exercised; provided, however, that any securities issued under the
S-3 shall not be considered Stock for purposes of this Agreement.
"Stockholders" shall mean those Persons identified on Annex I
and shall include any other person who agrees in writing with the parties hereto
to be bound by and to comply with all applicable provisions of this Agreement as
a Stockholder hereunder.
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"Transfer", as to any Stock shall mean to sell, or in any other
way transfer, assign, pledge, distribute, encumber or otherwise dispose of, such
Stock, either voluntarily or involuntarily and with or without consideration.
"Trident" shall mean Trident Telecom Partners LLC, a Delaware
limited liability company.
Section 2. Limitations on Transfers of Stock by Stockholders.
(a) The Stockholders shall not, at any time during the term of this
Agreement, Transfer any Stock without first complying with the provisions of
Sections 4 and 6; provided, that a Stockholder may Transfer Stock to another
member of the Group of such Stockholder without complying with Sections 4 and 6
if the recipient of such Stock shall agree in writing with the parties to this
Agreement to be bound by and to comply with all applicable provisions of this
Agreement and to be deemed a Stockholder. Any Transfer made or attempted to be
made in contravention of the terms of this Section 2 shall be null and void;
(b) Notwithstanding anything to the contrary in this Agreement, each
Stockholder hereby agrees that it shall not Transfer any Stock for a period of
one (1) year after June 30, 2000 (the "Company Lock-Up"); provided, however,
that (i) if a Stockholder enters into a lock-up agreement at the request of the
managing underwriter(s) (the "Managing Underwriter") of a Qualified Public
Offering (the "Underwriter Lock-Up Agreement"), and (ii) the Company's common
stock registered pursuant to the Qualified Public Offering commences trading on
the Nasdaq National Market, the Stock subject to the Underwriter Lock-Up
Agreement shall no longer be subject to the Company Lock-Up upon the termination
or release of that Stock from the Underwriter Lock-Up Agreement pursuant to the
terms of such Underwriter Lock-Up Agreement; and provided, further, that a
Stockholder may Transfer Stock to another member of the Group of such
Stockholder if the recipient of such stock shall agree in writing with the
parties to this Agreement to be bound by and comply with all applicable
provisions of this Agreement and be deemed to be a Stockholder;
(c) Each Stockholder agrees to enter into an Underwriter Lock-Up
Agreement upon the request of the Company or the Managing Underwriter (for a
period of time not to exceed 180 days); provided, however, the Stockholder shall
not be obligated to enter into such agreement unless all of the executive
officers and directors of the Company and each beneficial owner of more than 5%
of the outstanding Common Stock of the Company (as determined in accordance with
Rule 13d of the Securities Exchange Act of 1934), shall have entered into
similar agreements; and
(d) In the event that a Stockholder enters into an Underwriter Lock-Up
Agreement pursuant to Sections 2(b) or (c) above, the Company agrees that, at
the request of any such Stockholder, it will waive the Company Lock-Up for such
requesting Stockholder in connection with one sale, to be consummated prior to
September 30, 2000, of up to 30 % of such Stockholder's Stock in a Privately
Negotiated Sale; provided, however, that the Privately Negotiated Sale shall not
be effective unless (i) the Managing Underwriter shall have granted a waiver to
such Stockholder pursuant to the Underwriter Lock-Up Agreement in connection
with such sale, and (ii) the person or entity acquiring such Stock shall become
a party to the
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Stockholders Agreement (including, without limitation, the Company Lock-Up), the
Underwriter Lock-Up Agreement and the Registration Rights Agreement and shall
have all rights, and shall observe all obligations, then applicable to the
selling Stockholder in connection therewith.
Section 3. [Intentionally Omitted]
Section 4. Tag-along Right.
(a) In the event that any Stockholder or group of Stockholders acting
jointly ("Section 4 Offerors") desire to Transfer shares of Stock constituting
twenty percent (20%) or more of the Company's Common Stock, as determined on a
fully diluted basis assuming the full exercise and conversion of the outstanding
securities of the Company (the "Section 4 Offer") to a Person (the "Section 4
Purchaser"), the Section 4 Offerors shall promptly forward a notice (the
"Section 4 Offer Notice") to the Stockholders. Subject to Section 4(b), the
Section 4 Offerors shall not Transfer any Stock to the Section 4 Purchaser
unless the terms of the Section 4 Offer are extended to the Stockholders with
respect to their Proportionate Percentage of the aggregate number of shares of
Stock (on a Common Stock equivalent basis) to which the Section 4 Offer relates,
whereupon each Stockholder shall be entitled to Transfer to the Section 4
Purchaser pursuant to the Section 4 Offer the Stockholder's Proportionate
Percentage of the aggregate number of shares of Stock (on a Common Stock
equivalent basis) to which the Section 4 Offer relates by delivering a written
notice of acceptance to the Section 4 Offerors within 15 days after delivery of
the Section 4 Offer Notice.
(b) Anything contained herein to the contrary notwithstanding, any
purchaser of Stock pursuant to this Section 4 which is not then a Stockholder
shall agree in writing to be bound by all applicable provisions of this
Agreement and shall be deemed to be a Stockholder for all purposes of this
Agreement.
(c) Anything contained herein to the contrary notwithstanding, (i)
any Transfer by Nortel of any of the shares of Stock held by Nortel shall not be
subject to the provisions of this Section 4 and (ii) Nortel shall be entitled to
Transfer shares of Stock held by Nortel to a Section 4 Purchaser pursuant to a
Section 4 Offer only in the event that such Section 4 Purchaser is purchasing at
least twenty percent (20%) of the Company's Common Stock, as determined on a
fully diluted basis assuming the full exercise and conversion of the outstanding
securities of the Company.
Section 5. Right of First Offer.
(a) In the event that Signal desires to propose to the Company to
Transfer to a Person all or substantially all of the then outstanding Stock
and/or substantially all of the stock and/or equity interests of the Company,
which includes more than fifty percent (50%) of the Stock owned or held by
Signal (the "Section 5 Offer"), Signal shall deliver a written notice to Trident
and the Founding Stockholders with respect to such Section 5 Offer, which shall
be irrevocable for a period of 10 days. Trident and the Founding Stockholders
shall have the right to offer (the "Section 5 Purchase Offer") to purchase that
number of shares of Stock owned or
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held by Signal included in the Section 5 Offer in any written notice delivered
to Signal within said 10-day period. Signal shall have the right to condition
its acceptance of the Section 5 Purchase Offer, and Trident and the Founding
Stockholders shall consent to such conditions, on only the following: (i)
approval by Signal of the Section 5 Purchase Offer and (ii) execution of all
agreements and documents in connection with the transactions contemplated by the
Section 5 Purchase Offer within 60 Business Days after Signal's delivery of
written notice to Trident and the Founding Stockholders ("Section 5 Offer
Acceptance Notice") accepting the Section 5 Purchase Offer.
(b) Notwithstanding anything contained herein to the contrary, if
either Trident and/or the Founding Stockholders shall not have made a Section 5
Purchase Offer pursuant to this Section 5 and/or (x) Trident and the Founding
Stockholders or (y) Trident or the Founding Stockholders shall not have received
a Section 5 Offer Acceptance Notice pursuant to Section 5(a), the terms and
provisions of this Section 5 shall be of no further effect, and the terms and
provisions of Section 6 shall apply to any subsequent Section 5 Offer.
Section 6. Drag Along Right.
Anything contained herein to the contrary notwithstanding, if at
any time after the terms and provisions of Section 5 shall not apply pursuant to
the terms of Section 5, the Board, with the consent of the director(s) to be
appointed to the Board of Directors of the Company by Signal, shall approve (i)
a bona fide arms length proposal from a Person for the Transfer, directly or
indirectly, of all or a majority of the Stock of the Company to such Person,
(ii) the merger or consolidation of the Company with or into another Person in
which the Stockholders will receive cash or securities of any other Person for
their shares or (iii) the sale by the Company of all or substantially all of its
assets to a Person, in each of the above cases for a specified price payable in
cash or otherwise and on specified terms and conditions (a "Sale Proposal"),
then the Board may deliver a notice (a "Required Sale Notice") with respect to
such Sale Proposal to each other Stockholder (as well as each other holder of
any shares of Stock) stating that Signal has approved the Sale Proposal, the
Company proposes to effect the Sale Proposal and providing the identity of the
Persons involved in such Sale Proposal and the terms thereof. Each such
Stockholder and the members of the Group thereof, upon receipt of a Required
Sale Notice, shall be obligated to sell their Stock and participate in the
transaction (a "Required Sale") contemplated by the Sale Proposal, vote their
shares of Stock in favor of such Sale Proposal at any meeting of Stockholders
called to vote on or approve such Sale Proposal and otherwise to take all
necessary action to cause the Company and the Stockholders to consummate such
Required Sale. Any such Required Sale Notice may be rescinded by the Board, with
the written consent of Signal, by delivering written notice thereof to all of
the Stockholders.
Section 7. Pre-emptive Rights.
(a) Except in the case of Excluded Securities, the Company shall not
issue, sell or exchange, agree to issue, sell or exchange, or reserve or set
aside for issuance, sale or exchange, any (i) Stock, (ii) any other equity
security of the Company, (iii) any debt security of the Company which by its
terms is convertible into or exchangeable for any equity security of the Company
or has any other equity feature, (iv) any security of the Company that is a
combination
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of a debt and equity security or (v) any option, warrant or other right to
subscribe for, purchase or otherwise acquire any security of the Company
specified in the foregoing clauses (i) through (iv), unless in each case the
Company shall have first offered to sell such securities to the Stockholders
(the "Offered Securities"), at each Stockholder's respective Proportionate
Percentage at a price and on such other terms and conditions as shall have been
specified by the Company in writing delivered to each Stockholder (the "Offer"),
which Offer by its terms shall remain open and irrevocable for a period of 30
days from the date it is delivered by the Company to the Stockholder.
(b) The Company may specify in the Offer that all or a minimum amount
of the Offered Securities must be sold in such offering (to the Stockholders
and/or any third parties pursuant to Section 7(d)), in which case any Notice of
Acceptance (as defined below) shall be deemed conditioned upon (i) receipt of
Notices of Acceptance of all or such minimum amount, as applicable, of the
Offered Securities and/or (ii) the sale of all, or such minimum amount, as
applicable, of the Offered Securities pursuant to Section 7(d).
(c) Notice of the Stockholder's intention to accept, in whole or in
part, an Offer shall be evidenced by a writing signed by such Stockholder and
delivered to the Company prior to the end of the 30-day period of such Offer,
setting forth such portion of the Offered Securities the Stockholders elect to
purchase (the "Notice of Acceptance").
(d) In the event that Notice of Acceptance is not given by the
Stockholders in respect of all the Offered Securities, the Company shall have
120 days from the expiration of the foregoing 30-day period to sell all or any
part of such Offered Securities as to which Notice of Acceptances have not been
given by the Stockholders (the "Refused Securities") to any other person or
persons, but only upon terms and conditions in all material respects, including,
without limitation, unit price and interest rates, which are no more favorable
to such other person or persons and no less favorable to the Company than those
set forth in the Offer. Upon the closing, which shall include full payment to
the Company, of the sale to such other person or persons of all the Refused
Securities, the Stockholders shall purchase from the Company, and the Company
shall sell to the Stockholders, the Offered Securities in respect of which
Notice of Acceptances were delivered to the Company by the Stockholders, at the
terms specified in the Offer.
(e) In each case, any Offered Securities not purchased by the
Stockholders or any other person or persons in accordance with Section 7(d) may
not be sold or otherwise disposed of until they are again offered to the
Stockholders under the procedures specified in Sections 7(a), (c) and (d).
(f) The rights of the Stockholders under this Section 7 shall not
apply to the following securities (the "Excluded Securities"):
(i) (A) up to 10,000,000 shares (as adjusted equitably for
stock dividends, stock splits, combinations, etc.) of Common Stock
issuable upon exercise of stock options granted to officers,
employees or directors of the Company or its subsidiaries pursuant
to and in accordance with any Employee Plan duly authorized by the
Board and/or the appropriate committee thereof, (B)
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shares of Common Stock issued upon conversion of shares of Series
C Preferred Stock, Series D Preferred Stock, Series E Preferred
Stock and Series F Preferred Stock and (C) shares of Common Stock
issued upon exercise of the Warrants, including in the case of
(A), (B) and (C), any additional shares of Common Stock as may be
issued by virtue of antidilution provisions, if any, applicable to
such options or shares, as the case may be;
(ii) Stock issued as a stock dividend or upon any stock
split or other subdivision or combination of shares of Stock;
(iii) Stock issued as part of a Qualified Public Offering;
(iv) Common Stock issued upon conversion of convertible
securities outstanding on the date of this Agreement and disclosed
on the appropriate Schedule to the Securities Purchase Agreement;
(v) Common Stock or other equity securities or instruments
exercisable for or convertible into equity securities issued as
part of a strategic arrangement or alliance by the Company or its
Subsidiaries to building licensors or landlords, carriers, joint
venture partners, vendors (other than equipment vendors and
software vendors), consultants, lessors or lenders, and securities
or instruments issued in connection with acquisitions, as each
such transaction is approved by the Board of the Company;
provided, that such issuances do not, in the aggregate, involve
the issuance of securities accounting for in excess of five
percent (5%) of the fully diluted outstanding Common Stock of the
Company;
(vi) 426,333 shares of Series H Preferred Stock issued or
to be issued to Nortel Networks Inc. (and shares of Common Stock
to be issued upon conversion thereof); and
(vii) 62,500 shares of Series I Preferred Stock issued or to
be issued to Nortel Networks Inc. (and shares of Common Stock to be
issued upon conversion thereof).
Section 8. Irrevocable Proxy.
(a) Each Founding Stockholder hereby grants to the Managing
Purchasers and their assignees an irrevocable proxy coupled with an interest
(the "Proxy") attached hereto as Exhibit B to vote the Founders Shares at each
and all meetings of the stockholders of the Company, to execute and otherwise to
exercise any consensual rights with respect to such Founders Shares to the same
extent and with the same effect as each of the Founding Stockholders could do
under any applicable agreement or instrument or any applicable laws or
regulations governing the rights and powers of stockholders of the Company
(collectively, the "Proxy Rights"); provided, that the exercise of any Proxy
Rights requires the consent of the majority of the Managing Purchasers unless,
in the sole judgment of the Majority in Interest that in order to protect its
investment, the Majority in Interest requires the sole right to exercise the
Proxy Rights in which case the Majority in Interest shall upon 10 days written
notice to each
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other Managing Purchaser have the sole right to exercise the Proxy Rights until
the Majority in Interest, in its sole discretion, shall deem otherwise. Anything
contained in the preceding sentence to the contrary notwithstanding, the Proxy
shall automatically terminate without further action upon the earliest to occur
of (i) the valid and enforceable Transfer of all Stock owned by such
Stockholder, (ii) the valid and enforceable Transfer of any Stock owned by such
Stockholder in a Privately Negotiated Sale pursuant to the provisions of Section
2(d) of this Agreement (a "Permitted Privately Negotiated Sale"); provided,
that, contemporaneously with such Permitted Privately Negotiated Sale, such
Stockholder shall grant to the Managing Purchasers and their assignees the Proxy
attached hereto as Exhibit B with respect to the Proxy Rights of any and all
Founders Shares not Transferred by such Stockholder in such Permitted Privately
Negotiated Sale, (ii) a Qualified Public Offering or (iii) three years from the
date hereof. The Managing Purchasers shall have the right to assign the Proxy to
any of their Affiliates.
(b) If the Proxy granted pursuant to Section 8(a) is not valid or is
otherwise ineffective for any reason, then each Founding Stockholder shall vote
all of his respective Founders Shares in the same manner as the Majority in
Interest votes any shares of Stock owned by the Majority in Interest at any and
all meetings of the stockholders of the Company, by written consent in lieu
thereof and otherwise in connection with any exercise of any consensual rights
with respect to such Founders Shares.
Section 9. Voting Agreement.
(a) Each Stockholder shall vote all of his or its Shares (by Proxy if
applicable) and shall take all other necessary or desirable actions within his
or its control (whether in such Stockholder's capacity as a stockholder of the
Company or otherwise, and including, without limitation, attendance at meetings
in person or by proxy for purposes of obtaining a quorum and execution of
written consents in lieu of meetings), and the Company shall take all necessary
and desirable actions within its control (including, without limitation, calling
special Board and stockholder meetings), so that:
(i) the authorized number of directors on the Board of the
Company shall be established at no less than six (6) directors;
and
(ii) one Person designated by the Majority in Interest and
one Person designated by Trident shall have the right to observe
and attend all meetings, whether held by teleconference or
otherwise, of the Board of the Company and to receive all
information and notices received by directors on the Board of the
Company.
(b) The consent of the director(s) designated by each of Signal and
Trident to the Board will be necessary for (i) any material change or
modification of the Company's business plan as agreed upon by the Managing
Purchasers as of the date hereof (the "Business Plan"), (ii) the redemption of
any capital stock, (iii) the issuance of securities senior to or on a parity
with the Preferred Stock, (iv) the authorization or issuance of securities
convertible into such senior or parity securities or (v) the amendment of the
Certificate of Incorporation of the Company. The consent of the director(s)
designated by Signal to the Board will be necessary for (i) any
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transactions with an Affiliate or related party to the Company, (ii) any merger
or consolidation of the Company or any Subsidiary of the Company with any other
entity, (iii) the sale of all or substantially all of the assets of the Company
or its Subsidiaries, (iv) the approval or authorization of any liquidation, (v)
the removal of any senior executive of the Company, (vi) the incurrence of any
fund Indebtedness in excess of $500,000, (vii) the incurrence of any capital
expenditures in any 12-month period in excess of $100,000, which such capital
expenditures were not authorized in or by the Company's Business Plan or
Operating Budget or (viii) any changes to or removal of the Company's auditor.
Section 10. Covenants.
The Company and the Stockholders shall take any and all necessary
actions to make Exchange Act Filings (as defined in the Securities Purchase
Agreement) immediately after the Closing.
Section 11. Legend on Stock Certificates.
Each certificate representing shares of Stock shall bear a legend
containing the following words (in addition to any other legend required by law
or applicable agreement):
"THE SALE, TRANSFER, ASSIGNMENT, PLEDGE OR ENCUMBRANCE OF THE
SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS
AND CONDITIONS OF AN AMENDED AND RESTATED STOCKHOLDERS AGREEMENT DATED
AS OF JANUARY 31, 2001, BY AND AMONG FIBERNET TELECOM GROUP, INC. AND
CERTAIN HOLDERS OF THE OUTSTANDING CAPITAL STOCK OF SUCH CORPORATION
(AS SUCH MAY BE AMENDED OR AMENDED AND RESTATED). 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 SUCH
CORPORATION."
Section 12. Additional Shares of Stock; Etc.
In the event additional shares of Stock are issued by the Company
to a Stockholder of the Company at any time during the term of this Agreement,
either directly or upon the exercise or exchange of securities of the Company
exercisable for or exchangeable into shares of Stock, the Company shall cause
such additional shares of Stock, as a condition to such issuance, to become
subject to the terms and provisions of this Agreement.
Section 13. Duration of Agreement; Compliance.
The rights and obligations of each Stockholder under this
Agreement shall terminate upon the valid and enforceable Transfer of all Stock
owned by such Stockholder. Notwithstanding anything contained herein to the
contrary, the only sections of this Agreement that shall survive a Qualified
Public Offering (as such is term defined in clause (ii) of the definition in
Section 1 hereof) are Sections 1, 2(a), 2(b), 2(c), 4, 8, 9, 11, 12, 13, 14, 15,
16, 17,
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18, 19, 20 and 21. Moreover, notwithstanding anything to the contrary contained
herein, the only sections of this Agreement that shall survive a Qualified
Public Offering (as such term is defined in clause (i) of the definition in
Section 1 hereof) are Sections 2(b), 11, 13, 14, 15, 16, 18, 19, 20 and 21,
which sections shall survive for a period of nine (9) months following such
Qualified Public Offering, at which time this Agreement shall terminate.
Section 14. Severability; Governing Law.
If any provision of this Agreement shall be determined to be
illegal and unenforceable by any court of law, the remaining provisions shall be
severable and enforceable in accordance with their terms. This Agreement shall
be governed by and construed and enforced in accordance with the laws of the
State of New York (without regard to principles of conflicts of laws), except to
the extent that this Agreement relates to the internal laws of the Company,
which shall be governed by and construed and enforced in accordance with the
laws of the State of New York.
Section 15. Successors and Assigns.
This Agreement shall bind and inure to the benefit of the parties
and their respective successors and assigns, transferees, legal representatives
and heirs.
Section 16. Notices.
All notices, requests, consents and other communications
hereunder to any party shall be deemed to be sufficient if contained in a
written instrument delivered in person or by telecopy or sent by nationally-
recognized overnight courier or first class registered or certified mail, return
receipt requested, postage prepaid, addressed to such party at the address set
forth below or at such other address as may hereafter be designated in writing
by such party to the other parties:
if to the Company, to:
FiberNet Telecom Group, Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: President
with a copy to:
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxx Xxxxxx, Esq.
if to Nortel, to:
12
Nortel Networks, Inc.
GMS 991 15 A40
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxx X. Day, Vice President
Customer Finance North America
Facsimile: (000) 000-0000
with a copy to:
Jenkens & Xxxxxxxxx, a Professional Corporation
0000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
if to the Stockholders, to their respective addresses set forth on
Annex I hereto
All such notices, requests, consents and other communications
shall be deemed to have been delivered (a) in the case of personal delivery or
delivery by telecopy, on the date of such delivery, (b) in the case of dispatch
by nationally-recognized overnight courier, on the next business day following
such dispatch and (c) in the case of mailing, on the third business day after
the posting thereof.
Section 17. Modification.
Except as otherwise provided herein, neither this Agreement nor
any provisions hereof can be modified, changed, discharged or terminated except
by an instrument in writing signed by the Company and a Majority in Interest of
the Purchasers; provided, however, that any modification or amendment which
relates to the rights and obligations of Nortel under this Stockholders
Agreement shall also require Nortel to execute such instrument in writing;
provided, further, that no modification or amendment shall discriminate against
any Stockholder without the consent of such Stockholder; provided, further, that
any modification or amendment to Section 2(b) of this Agreement or this proviso,
shall require the (i) Company, (ii) Nortel (or its successor) and (iii) at least
two of Concordia (or its successor), Signal (or its successor) or Trident (or
its successor), to execute such instrument in writing.
Section 18. Headings.
The headings of the sections of this Agreement have been inserted
for convenience of reference only and shall not be deemed to be a part of this
Agreement.
13
Section 19. Nouns and Pronouns.
Whenever the context may require, any pronouns used herein shall
include the corresponding masculine, feminine or neuter forms, and the singular
form of names and pronouns shall include the plural and vice versa.
Section 20. Entire Agreement.
This Agreement and the other writings referred to herein or
delivered pursuant hereto contain the entire agreement among the parties hereto
with respect to the subject matter hereof and supersede all prior and
contemporaneous agreements and understandings with respect thereto. The parties
hereto acknowledge that Sections 3, 5, 6, 8, 9 and 10 of this Agreement shall
not apply to Nortel and Nortel shall have no rights or obligations under these
sections.
Section 21. Counterparts.
This Agreement may be executed in any number of counterparts, and
each such counterpart hereof shall be deemed to be an original instrument, but
all such counterparts together shall constitute but one agreement.
14
IN WITNESS WHEREOF, the parties hereto have executed this
Stockholders Agreement on the date first above written.
FIBERNET TELECOM GROUP, INC.
By: /s/ Xxxxxxx X. Xxxx
----------------------------------------
Name: Xxxxxxx X. Xxxx
Title: President
SIGNAL EQUITY PARTNERS, L.P.
By: Signal Equity Advisors, L.P.
Its: General Partner
By: Signal Equity Advisors, Inc.
Its: General Partner
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
NORTEL NETWORKS INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Director, Customer Finance
For Purpose of Section 17 only:
TRIDENT TELECOM PARTNERS, LLC
By: Trident Telecom Management LLC
Its: Managing Member
By: Xxxxxxx Capital Management, Inc.
Its: Managing Member
By: /s/ Xxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxx X. Xxxxx
Title: President
ANNEX I
-------
FIBERNET TELECOM GROUP, INC.
Stockholder List
----------------
Founding Stockholders Shares
--------------------- ------
Xxxxx Xxxxxxx 259,162
0000 Xxxx Xxxx Xxxx
Xxxxxxxxx, XX 00000
(000) 000-0000 (H)
-----------------------------------------------------------------------
LPS Consultants, Inc. 763,890
c/x Xxxxxxxxxx Communications Company
00-00 Xxxxxx Xxxxx Xxxxx
Xxxx Xxxxxx Xxxx, XX 00000
(000) 000-0000 (O)
-----------------------------------------------------------------------
LTJ Group, Inc. 4,381,690
c/o New Horizons
0000 Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxxxx
(000) 000-0000 (O)
-----------------------------------------------------------------------
SMFS, Inc. 6,700,000
c/x Xxxxxxxxxx Communications Company
00-00 Xxxxxx Xxxxx Xxxxx
Xxxx Xxxxxx Xxxx, XX 00000
(000) 000-0000 (O)
-----------------------------------------------------------------------
Total: 12,104,742
-----------------------------------------------------------------------
Institutional Purchasers Shares
------------------------ ------
Adirondack Capital Partners Inc. 25,855
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
-----------------------------------------------------------------------
Alexander Enterprise Holdings Corp. 1,077,611
c/o Island Capital Management
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X'Xxxxxxx
(000) 000-0000 (O)
-----------------------------------------------------------------------
-----------------------------------------------------------------------
Allspace International Corp 49,288
000 Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
(000) 000-0000 (O)
(000) 000-0000 (F)
-----------------------------------------------------------------------
Anniston Capital, Inc. 35,379
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxx
(000) 000-0000 (O)
-----------------------------------------------------------------------
Birdie Capital Corp. 143,526
0000 Xxxx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxx Xxxxxxxxxx
(000) 000-0000
-----------------------------------------------------------------------
Burden Direct Investment Fund III 1,565,286
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxx
(000) 000-0000 (O)
(000) 000-0000 (F)
-----------------------------------------------------------------------
Concordia Telecom Management, L.L.C. 1,485,754
c/o FiberNet Telecom Group, Inc.
000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxx
(000) 000-0000 (O)
(000) 000-0000 (F)
-----------------------------------------------------------------------
Cycad Limited 92,986
c/o Xxx Xxxxx
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
-----------------------------------------------------------------------
Cytra Corporation 58,864
-----------------------------------------------------------------------
D&DF WaterView Partners, L.P. 1,469
Carnegie Hall Tower
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxxx
(000) 000-0000 (O)
(000) 000-0000 (F)
-----------------------------------------------------------------------
-----------------------------------------------------------------------
Delta Opportunity Fund (Institutional), LLC 147,170
c/o Diaz & Altschul Advisors, LLC
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxx, Xx.
(000) 000-0000 (O)
(000) 000-0000 (F)
-----------------------------------------------------------------------
Delta Opportunity Fund, Ltd. 220,750
c/o Diaz & Altschul Advisors, LLC
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxx, Xx.
(000) 000-0000 (O)
(000) 000-0000 (F)
with copies to:
c/o International Fund Administration, Ltd.
48 Par La Xxxxx Xxxx, Xxxxx 000
Xxxxxxxx XX 00, Xxxxxxx, X.X.X.
(000) 000-0000 (O)
(000) 000-0000 (F)
-----------------------------------------------------------------------
Emral Holdings Limited 108,041
C/o The Zanett Group
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xx. Xxxxxxxx
(000) 000-0000 (O)
-----------------------------------------------------------------------
Exeter Capital Partners IV, L.P. 551,900
c/o The Exeter Group
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxxxxx
(000) 000-0000 (O)
-----------------------------------------------------------------------
Exeter Equity Partners, L.P. 183,970
c/o The Exeter Group
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxxxxx
(000) 000-0000 (O)
-----------------------------------------------------------------------
Fiber Island, LLC 183,970
c/o Island Capital Management
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X'Xxxxxxx
(000) 000-0000 (O)
-----------------------------------------------------------------------
-----------------------------------------------------------------------
Hamaayan Institute 23,317
00 Xxxxxxx Xxxx
Xxxxxx, XX 00000
(000) 000-0000 (F)
-----------------------------------------------------------------------
Hi-Tel Group, Inc. 128,321
0000 Xxxx Xxxxxxxxxx Xxxx. #000
Xx. Xxxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxx
(000) 000-0000
-----------------------------------------------------------------------
Interim Advantage Fund, LLC 140,117
Address Unknown
-----------------------------------------------------------------------
King Street Capital LP 288,429
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxx Xxxxx
(000) 000-0000 (O)
(000) 000-0000 (F)
-----------------------------------------------------------------------
King Street Capital Ltd. 266,239
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxx Xxxxx
(000) 000-0000 (O)
(000) 000-0000 (F)
-----------------------------------------------------------------------
Lancer Offshore, Inc. 868,884
c/o 000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxx
(000) 000-0000 (O)
-----------------------------------------------------------------------
Lancer Partners, L.P. 245,438
c/o 000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxx
(000) 000-0000 (O)
with copies to:
c/o 000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
-----------------------------------------------------------------------
Madison Investment Partners II, L.P. 183,970
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxx
(000) 000-0000 (O)
(000) 000-0000 (F)
-----------------------------------------------------------------------
-----------------------------------------------------------------------
Nortel Networks Inc. 4,888,330
0000 Xxxxxxxx Xxxx.
Xxxxxxxx 000-00-X00
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxx
(000) 000-0000 (O)
(000) 000-0000 (F)
-----------------------------------------------------------------------
The Orbiter Fund, Ltd. 40,684
c/o Lancer Partners L.P.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxx
(000) 000-0000 (O)
-----------------------------------------------------------------------
Overbrook Fund I, LLC 91,980
c/o Overbrook Management Corporation
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx X. Xxxxxx
(000) 000-0000 (O)
-----------------------------------------------------------------------
Pacific Alliance Limited, L.L.C. 144,054
0000 Xxxxx Xxxxxx, Xxxxx 00X
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxx
(000) 000-0000 (O)
-----------------------------------------------------------------------
Xxxxx Xxxx Partners, L.P. 923,972
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx Xx.
(000) 000-0000 (O)
(000) 000-0000 (F)
-----------------------------------------------------------------------
Pequot Scout Fund, LP 1,109,356
000 Xxxxx Xxxx Xxxx
Xxxxxxxx, XX 00000
Attn: Xxxx Xxxxxx
(000) 000-0000 (O)
(000) 000-0000 (F)
-----------------------------------------------------------------------
Xxxxxxxxxx Industries, Inc. 338,796
c/x Xxxxxxxxxx Communications Company
00-00 Xxxxxx Xxxxx Xxxxx
Xxxx Xxxxxx Xxxx, XX 00000
(000) 000-0000 (O)
-----------------------------------------------------------------------
-----------------------------------------------------------------------
Portugal Investment Group, Inc. 185,974
0000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxxx
(000) 000-0000
-----------------------------------------------------------------------
Prism Partners I, L.P. 272,210
c/x Xxxxxxxxx Capital Management
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxx XxXxxxxx
(000) 000-0000 (O)
(000) 000-0000 (F)
-----------------------------------------------------------------------
The Raptor Global Portfolio Ltd. 551,900
00 Xxxxx Xxxxx, 0xx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxx Xxxxxx
(000) 000-0000 (O)
(000) 000-0000 (F)
-----------------------------------------------------------------------
Signal Equity Management Corp. 33,333
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxxx
(000) 000-0000 (O)
(000) 000-0000 (F)
-----------------------------------------------------------------------
Signal Equity Partners, L.P. 6,027,726
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxxx
(000) 000-0000 (O)
(000) 000-0000 (F)
-----------------------------------------------------------------------
Taurus Telecommunications, Inc. 119,736
0000 Xxxxx Xxx
Xxxxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxx
(000) 000-0000 (H)
(000) 000-0000 (F)
-----------------------------------------------------------------------
Tishman Speyer FiberNet Investment Assoc. 1,000,000
c/o Tishman Speyer Properties, L.P.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxx
(000) 000-0000 (O)
(000) 000-0000 (F)
-----------------------------------------------------------------------
-----------------------------------------------------------------------
Tishman Speyer Properties, et al. 1,579,835
c/o Tishman Speyer Properties, L.P.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxx
(000) 000-0000 (O)
(000) 000-0000 (F)
-----------------------------------------------------------------------
Trident Telecom Partners LLC 1,068,557
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxxx
(000) 000-0000 (O)
(000) 000-0000 (F)
-----------------------------------------------------------------------
The Viator Fund, Ltd. 437,925
c/o 000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxx
(000) 000-0000 (O)
-----------------------------------------------------------------------
WaterView Partners, LP 391,527
Carnegie Hall Tower
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxxx
(000) 000-0000 (O)
(000) 000-0000 (F)
-----------------------------------------------------------------------
West Plus One, LLC 201,703
c/o Griggs Resource Group
000 Xxx Xxxxx Xxxx Xxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx, Manager
(000) 000-0000 (O)
(000) 000-0000 (F)
-----------------------------------------------------------------------
Winall Industries 23,248
c/x Xxxxxxx Capital
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxxx
(000) 000-0000 (O)
(000) 000-0000 (F)
-----------------------------------------------------------------------
Total: 27,507,380
-----------------------------------------------------------------------
Individual Purchasers Shares
--------------------- ------
-----------------------------------------------------------------------
-----------------------------------------------------------------------
Xxxxxxx Xxxxxx 55,180
x/x 000 Xxxxx Management
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
(000) 000-0000
-----------------------------------------------------------------------
Xxxxx Xxxxxxxx 3,254
0000 Xxxxxxx Xxxxxx, #X-0
Xxxxxxxx, XX 00000
(000) 000-0000 (H)
-----------------------------------------------------------------------
Xxxxxx Xxxx 477,061
c/o Anniston Capital, Inc.
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
(000) 000-0000 (O)
-----------------------------------------------------------------------
Xxxxxxx X. Xxxx 451,390
c/o Anniston Capital, Inc.
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
(000) 000-0000 (O)
-----------------------------------------------------------------------
Xxxxxxx Xxxxx 36,800
c/o Bank of America Securities
000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
(000) 000-0000 (O)
(000) 000-0000 (F)
-----------------------------------------------------------------------
Xxxxxx X. Xxxxxx 23,317
00 Xxxxxxx Xxxx Xxxx
Xxxxxxxxx Xxxx, XX 00000
(000) 000-0000 (H)
-----------------------------------------------------------------------
Xxxxxxx Xxxxxxx 23,248
0 Xxxxxxxxx Xxx
Xxxxxxxx, XX 00000
(Telephone number unpublished)
-----------------------------------------------------------------------
Xxxxxx X. Xxxxxxxxx 3,670
X'Xxxxxxxx Graev & Karabell, LLP
00 Xxxxxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
(000) 000-0000 (O)
(000) 000-0000 (F)
-----------------------------------------------------------------------
Xxxxxxxx X. Black 48,603
One S.W. Columbia St., #1200
Xxxxxxxx, XX 00000
(000) 000-0000
-----------------------------------------------------------------------
-----------------------------------------------------------------------
Xxxxxx X. Xxxxxx 3,379
c/o Mintz, Xxxxx
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
(000) 000-0000 (O)
(000) 000-0000 (F)
-----------------------------------------------------------------------
Xxxxxxx Xxxxx 33,994
00 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
(000) 000-0000 (H)
-----------------------------------------------------------------------
Xxxxxx X. Xxxxxx 8,448
c/o Mintz, Xxxxx
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
(000) 000-0000 (O)
(000) 000-0000 (F)
-----------------------------------------------------------------------
Eve Chrust 4,649
000 Xxxxxx Xxxx Xxxx
Xxxxxxxx, XX 00000
-----------------------------------------------------------------------
Xxxx Xxxxxx 4,649
000 Xxxxxx Xxxx Xxxx
Xxxxxxxx, XX 00000
-----------------------------------------------------------------------
Xxxxxx X. Xxxxxx 184,390
000 Xxxxxx Xxxx Xxxx
Xxxxxxxx, XX 00000
-----------------------------------------------------------------------
Xxxxxxx Xxxxxxx 57,606
-----------------------------------------------------------------------
Xxxxxxxx Xxxxxxxx 11,624
000 Xxxx 00xx Xxxxxx, #00X
Xxx Xxxx, XX 00000
(000) 000-0000
-----------------------------------------------------------------------
Xxxxxxxx X. Xxxx 9,190
000 Xxxx 00xx Xxxxxx, #0X
Xxx Xxxx, XX 00000
(000) 000-0000 (H)
(000) 000-0000 (F)
-----------------------------------------------------------------------
A. Xxxxx and Xxxxxxxx Xxxxxxx 69,741
000 Xxxxx Xxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
(000) 000-0000 (H)
(000) 000-0000 (F)
-----------------------------------------------------------------------
Xxx Xxxxxx 23,248
0000 X Xxxxxx, X.X., Xxxxx 0000
Xxxxxxxxxx, XX 00000
(000) 000-0000 (H)
-----------------------------------------------------------------------
-----------------------------------------------------------------------
Xxxxxxxx Xxxxxxxx 77,582
c/o Credit Suisse First Boston
00 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
(000) 000-0000
-----------------------------------------------------------------------
Xxxxx Xxxxxxxx 84,254
c/o The Zanett Group
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
(000) 000-0000 (O)
with copies to:
x/x Xxxxxx Xxxxxxxxx, Xxx.
00 Xxxx 00xx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
(000) 000-0000
-----------------------------------------------------------------------
Xxxx X. Xxxxxx 116,234
00 Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
-----------------------------------------------------------------------
Xxxxxxxx X. Xxxxx 18,213
c/o Xxxxxxx X. Xxxxx
000 Xxxxx Xxxxxx, #X0000
Xxx Xxxx, XX 00000
(000) 000-0000 (O)
-----------------------------------------------------------------------
Xxxxxxx X. Xxxxx 18,213
000 Xxxxx Xxxxxx, #X0000
Xxx Xxxx, XX 00000
(000) 000-0000 (O)
-----------------------------------------------------------------------
Xxxxxxx X. Xxxxx 36,427
c/o Xxxxxxx X. Xxxxx
000 Xxxxx Xxxxxx, #X0000
Xxx Xxxx, XX 00000
(000) 000-0000 (O)
-----------------------------------------------------------------------
Xxxxx Xxx 4,184
000 Xxxx 00xx Xxxxxx, #00X
Xxx Xxxx, XX 00000
(000) 000-0000
-----------------------------------------------------------------------
Xxxxxx X. and Xxxxxxx X. Xxxxx 9,056
-----------------------------------------------------------------------
Xxxxxxx Xxxxx 115,054
c/o 000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxx
(000) 000-0000 (O)
-----------------------------------------------------------------------
-----------------------------------------------------------------------
Xxxxx X. Xxx 26,222
c/o Sandler Capital Management
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
(000) 000-0000 (O)
-----------------------------------------------------------------------
Resources Trust FBO Xxxx Xxxxxxxxxx 6,288
-----------------------------------------------------------------------
Xxxxxxxx X. Xxxxxx 334,220
c/o Signal Equity Partners
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
(000) 000-0000 (O)
-----------------------------------------------------------------------
Xxxxxxx X. Xxxxx 34,211
-----------------------------------------------------------------------
Xxxxxxx X. Xxxxxxx 26,222
c/o Sandler Capital Management
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
-----------------------------------------------------------------------
Xxxx X. Xxxxxxx 48,353
000 Xxxx 00xx Xxxxxx, Xxx #00X
Xxx Xxxx, XX 00000
Address from Joinder:
0000 XX 00xx Xxxxxx
Xxxxxxx Xxxxx, XX 00000
-----------------------------------------------------------------------
Xxxx X. Xxxxxxx 31,193
-----------------------------------------------------------------------
Xxxxx X. Xxxxxxxxxx 11,068
-----------------------------------------------------------------------
Xxxx X. Xxxxxxx 23,394
-----------------------------------------------------------------------
Xxxxx Xxxx 11,624
000 Xxxx 00xx Xxxxxx, #00X
Xxx Xxxx, XX 00000
(Telephone number unpublished)
-----------------------------------------------------------------------
Xxxxxxx X. Xxxxxx 26,222
0 Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
-----------------------------------------------------------------------
Xxxxxxx X. Xxxxxxxx 302,382
0000 Xxxxxxxx Xxxx
Xxxx Xxxxx, XX 00000
(000) 000-0000 (H)
-----------------------------------------------------------------------
Xxxxxxx X. Xxxxxx 414,481
0000 Xxxxx Xxx
Xxxxxxxxxxx, XX 00000
(000) 000-0000 (H)
(000) 000-0000 (F)
-----------------------------------------------------------------------
Xxxxxxx X. Xxxxxxx 78,666
000 Xxxx Xxxxxx, #0X
Xxx Xxxx, XX 00000
(000) 000-0000 (H)
-----------------------------------------------------------------------
-----------------------------------------------------------------------
Xxxxxx Xxxxxx 26,222
00 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
(000) 000-0000
-----------------------------------------------------------------------
Xxxx Xxxxxx 45,893
00 Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
(000) 000-0000 (H)
(000) 000-0000
-----------------------------------------------------------------------
Xxxxx X. Xxxxx 120,244
-----------------------------------------------------------------------
Xxxxxxxx X. Xxxxxxx 26,222
00 Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
(000) 000-0000 (H)
-----------------------------------------------------------------------
Xxxxx Xxxxxxx 71,493
c/x Xxxxxxxx & Co.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
(000) 000-0000 (O)
(000) 000-0000 (F)
-----------------------------------------------------------------------
Xxxxxx X. Xxxxxxx 104,888
0000 Xxxx Xxxxxx, #0X
Xxx Xxxx, XX 00000
(000) 000-0000
-----------------------------------------------------------------------
Xxxxx Xxxxxxx 1,860
00 Xxxxx Xxxx
Xxxxxxx, XX 00000
-----------------------------------------------------------------------
Xxxxx X. Xxxxxx 26,222
c/o Deutsche Bank Capital Partners
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
(000) 000-0000
-----------------------------------------------------------------------
Xxxx X. Xxxxxxxxx 262,986
0000 Xxxxx Xxxxx
Xxxxxxx, XX 00000
(000) 000-0000
-----------------------------------------------------------------------
Total: 4,073,234
-----------------------------------------------------------------------
GRAND TOTAL: 43,486,375
-----------------------------------------------------------------------
EXHIBIT A
Joinder
-------
By execution of this Purchaser Joinder, the undersigned agrees to
become a party to that certain Amended and Restated Stockholders Agreement dated
as of January 31, 2001 attached hereto, among FiberNet Telecom Group, Inc., a
Delaware corporation, and certain of its stockholders. The undersigned shall
have all the rights, and shall observe all of the obligations, applicable to a
Stockholder.
Name:
----------------------------------
Address for Notices: With copies to:
---------------------------------- ------------------------------
---------------------------------- ------------------------------
---------------------------------- ------------------------------
Signature:
-------------------
Date:
------------------------
A-1
EXHIBIT B
IRREVOCABLE PROXY
FIBERNET TELECOM GROUP, INC.
The undersigned, _________________, hereby irrevocably and
unconditionally appoints the Managing Purchasers (as such term is defined in the
Securities Purchase Agreement) the attorney and proxy of the undersigned, with
full power of substitution, to vote, with respect to (i) the election of
directors and any and all matters presented at any and all meetings of the
stockholders of the Company and (ii) the Transfer of Stock (as such terms are
defined in the Stockholders Agreement hereinafter referred to) in such manner as
such attorneys and proxy shall, in their sole discretion, deem proper, all of
the shares of Stock of FiberNet Telecom Group, Inc., a Nevada corporation (the
"Company"), standing in the name of the undersigned (including shares of Stock
acquired after the date hereof in respect of shares of Stock held on the date
hereof) at such time (the "Proxy Shares"), including the giving of any and all
stockholder consents (such rights, collectively with the rights listed in
clauses (i) and (ii) herein, the "Proxy Rights"); provided, that the exercise of
any Proxy Rights requires the consent of the majority of the Managing Purchasers
unless, in the sole judgment of the Majority in Interest that in order to
protect its investment, the Majority in Interest requires sole right to exercise
the Proxy Rights, in which case the Majority in Interest shall upon 10 days
written notice to each other Managing Purchaser have sole control of the Proxy
Rights until the Majority in Interest, in its sole discretion, shall deem
otherwise. This is an irrevocable proxy coupled with an interest and shall
become and remain valid and irrevocable until the automatic termination hereof
pursuant to the provisions of an Amended and Restated Stockholders Agreement,
dated as of January 31, 2001 among the undersigned, the Company and certain
stockholders of the Company, as the same may be amended from time to time. The
granting of this proxy shall revoke all prior proxies given by the undersigned
at any time with respect to all Stock (and Proxy Shares) owned or controlled by
the undersigned and no subsequent proxies will be given with respect thereto by
the undersigned, except pursuant to the provisions of such Stockholders
Agreement.
Dated: __________ __, 2001.
By:__________________________________
B-1
