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EXHIBIT I
REGISTRATION RIGHTS AGREEMENT dated
as of May 7, 1999 (the "Agreement"), by and
among FIBERNET TELECOM GROUP, INC., a Nevada
corporation (the "Company"), the Purchasers
listed on Annex I hereto (the "Purchasers")
and certain stockholders listed under the
heading "Founding Stockholders" on Annex I
hereto (the "Founding Stockholders" and,
together with the Purchasers, the
"Stockholders").
Pursuant to the Securities Purchase Agreement (as defined below), the
Purchasers have the right to purchase or otherwise acquire shares of Common
Stock (as defined below) of the Company. The Company and the Stockholders deem
it to be in their respective best interests to set forth the rights of the
Stockholders in connection with public offerings and sales of the Common Stock.
Accordingly, the Company and the Stockholders agree as follows:
ARTICLE I
DEFINITIONS
Capitalized terms used and not otherwise defined herein shall have the
meanings ascribed to them in the Securities Purchase Agreement. As used in this
Agreement, the following terms shall have the following meanings:
"Commission" means the Securities and Exchange Commission or any other
Federal agency at the time administering the Securities Act.
"Common Stock" means the common stock, $.001 par value, of the Company.
"Concordia" means Concordia Telecom Management LLC, a Delaware limited
liability company.
"Exchange Act" means the Securities Exchange Act of 1934 or any successor
Federal statute, and the rules and regulations of the Commission promulgated
thereunder, all as the same shall be in effect from time to time.
"Founders Shares" means 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 and which have not
been previously sold to the public pursuant to a registration statement under
the Securities Act.
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"Other Shares" means at any time those shares of Common Stock which do not
constitute Primary Shares, Registrable Shares or Registrable Founders
Shares.
"Primary Shares" means at any time the authorized but unissued shares of
Common Stock or shares of Common Stock held by the Company in its treasury.
"Registrable Founders Shares" means at any time the Founders Shares of
Common Stock held by the Founding Stockholders.
"Registrable Shares" means at any time the Restricted Shares of Common
Stock held by the Purchasers.
"Registration Date" means the first date after the date hereof on which
any registration statement pursuant to which the Company shall have registered
shares of Common Stock under the Securities Act (other than on Form S-4 or S-8
promulgated under the Securities Act) for sale to the public shall have been
declared effective.
"Restricted Shares" means 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 Purchasers and which have not previously
been sold to the public pursuant to a registration statement under the
Securities Act.
"Rule 144" means Rule 144 promulgated under the Securities Act or any
successor rule thereto.
"Securities Act" means the Securities Act of 1933 or any successor Federal
statute, and the rules and regulations of the Commission thereunder, all as the
same shall be in effect from time to time.
"Securities Purchase Agreement" means the Securities Purchase Agreement
dated as of the date hereof among the Company and the Purchasers.
"Signal" means Signal Capital Partners, L.P., a Delaware limited
partnership.
"Total Registrable Shares" means the Registrable Shares and the
Registrable Founders Shares.
"Total Restricted Shares" means the Restricted Shares and the Founders
Shares.
"Transfer" means any disposition of any Restricted Shares or of any
interest therein which would constitute a sale thereof within the meaning of the
Securities Act, other than any such disposition pursuant to an effective
registration statement under the Securities Act and complying with all
applicable state securities and "blue sky" laws.
"Trident" means Trident Telecom Management LLC, a Delaware limited
liability company.
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ARTICLE II
REQUIRED REGISTRATIONS
2.1 Demand Registration.
If the Company shall be requested by (i) Signal and Concordia, (ii)
Trident and Concordia or (iii) Trident and Signal (i) having obtained the
written consent of (a) Signal and Concordia or (b) Trident and Concordia, as
applicable (the "Consent"), or (ii) having obtained a written waiver of such
Consent ("Waiver") at any time to effect the registration under the Securities
Act of Registrable Shares (a "Demand Registration"), the Company shall promptly
give written notice of such proposed registration to all holders of Restricted
Shares and shall offer to include in such proposed registration any Registrable
Shares requested to be included in such proposed Demand Registration by the
holders of Restricted Shares who shall respond in writing to the Company's
notice within 30 days after delivery of such notice (which response shall
specify the number of Registrable Shares proposed to be included in such
registration). If the Purchasers request a Demand Registration pursuant to this
Section, the Company shall promptly give written notice of such Demand
Registration to all holders of Founders Shares and shall offer to include in
such proposed registration any Registrable Founders Shares requested to be
included in such Demand Registration by the holders of Restricted Shares who
shall respond in writing to the Company's notice within 20 days after delivery
of such notice (which response shall specify the number of Registrable Founders
Shares proposed to be included in such Demand Registration). The Company shall
promptly use its best efforts to effect such registration under the Securities
Act of the Registrable Shares and Registrable Founder Shares which the Company
has been so requested to register and to have the registration statement filed
by the Company hereunder declared effective by the Commission within 90 days of
any requested filing (the "Demand Date") and make any other subsequent filings
to keep such registration statement effective; provided, however, that the
Company shall not be obligated to effect any registration under the Securities
Act except in accordance with the following provisions:
(a) the Company shall not be obligated to use its best efforts to
file and cause to become effective (i) more than two registration statements
initiated pursuant to this Section, (ii) any registration statement during any
period in which any other registration statement (other than on Form S-4 or Form
S-8 promulgated under the Securities Act or any successor forms thereto)
pursuant to which Primary Shares are to be or were sold has been filed and not
withdrawn or has been declared effective within the prior 90 days, or (iii) any
registration within twelve months of any other registration required under this
Section;
(b) the Company may delay the filing or effectiveness of any
registration statement for a period of up to 90 days after the date of a request
for registration pursuant to this Section if at the time of such request the
Company is engaged, or has fixed plans to engage within 60 days of the time of
such request, in a firm commitment underwritten public offering of Primary
Shares in which the holders of Restricted Shares or holders of Founders Shares
may include Registrable Shares or Registrable Founders Shares respectively
pursuant to Section 2.2; and
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(c) with respect to any registration pursuant to this Section, the
Company may include in such registration any Primary Shares or Other Shares;
provided, however, that if any managing underwriter for the public offering
contemplated by such registration advises the Company that the inclusion of all
Total Registrable Shares, Primary Shares and Other Shares proposed to be
included in such registration would interfere with the successful marketing
(including pricing) of all such securities, then the number of Total Registrable
Shares, Primary Shares and Other Shares proposed to be included in such
registration shall be included in the following order:
(i) first, the Total Registrable Shares, pro rata based upon
the number of Total Restricted Shares (based upon Common Stock
equivalents) owned by each holder thereof at the time of such
registration; and
(ii) second, the Primary Shares and the Other Shares.
A requested registration under this Section may be rescinded by written
notice to the Company by the Purchasers initiating such request. Such rescinded
registration shall not count as a registration statement initiated pursuant to
this Section for purposes of paragraph (a) above.
(d) The Purchasers requesting a registration pursuant to this
Section may, in the notice delivered pursuant to paragraph (a) above, elect,
with the consent of Signal and Trident, that such registration cover an
underwritten offering. Upon such election, such Purchasers shall select one or
more nationally recognized firms of investment banks to act as the managing
underwriters and shall select any additional investment banks to be used in
connection with such offering, provided that such investment banks must be
reasonably satisfactory to the Company, which selections shall be approved of by
Signal and Trident. The Company shall, together with all Purchasers and Founding
Stockholders proposing to sell Registrable Shares and Registrable Founders
Shares, respectively, in such offering, enter into a customary underwriting
agreement with such underwriters.
2.2 Piggyback Registration.
If the Company proposes for any reason to register Primary Shares or Other
Shares under the Securities Act (other than on Form S-4 or Form S-8 promulgated
under the Securities Act or any successor forms thereto), it shall promptly give
written notice to each Purchaser and Founding Stockholder of its intention so to
register the Primary Shares or Other Shares. Upon the written request, given
within 30 days after delivery of any such notice by the Company, of any
Purchaser (i) having obtained the Consent or (ii) a Waiver prior thereto, or any
Founding Stockholder to include in such registration Registrable Shares or
Registrable Founders Shares (which request shall specify the number of
Registrable Shares or Registrable Founders Shares proposed to be included in
such registration), the Company shall use its best efforts to cause all such
Total Registrable Shares to be included in such registration on the same terms
and conditions as the securities otherwise being sold in such registration;
provided, however, that if any managing underwriter for the public offering
contemplated by such registration advises the Company that the inclusion of all
Total Registrable Shares or Other Shares proposed to be included in such
registration would interfere with the successful marketing (including pricing)
of the Primary Shares proposed to be registered by the Company, then the number
of Primary
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Shares, Total Registrable Shares and Other Shares proposed to be included in
such registration shall be included in the following order:
(a) first, the Primary Shares;
(b) second, the Total Registrable Shares, pro rata based upon the
number of Restricted Shares and Founders Shares (based upon Common Stock
equivalents) respectively owned by each holder thereof at the time of such
registration; and
(c) third, the Other Shares.
2.3 Registration on Form S-3.
Anything contained in Section 2.1 to the contrary notwithstanding, at such
time as the Company shall have qualified for the use of Form S-3 promulgated
under the Securities Act or any successor form thereto, any Purchaser or group
of Purchasers, having obtained Consent or a Waiver, shall have the right to
request in writing an unlimited number of registrations on Form S-3 or such
successor form of Registrable Shares, which request or requests shall (i)
specify the number of Registrable Shares intended to be sold or disposed of,
(ii) state the intended method of disposition of such Registrable Shares, and
(iii) relate to Registrable Shares having an anticipated aggregate offering
price of at least $1,000,000; provided, however, that no Purchaser shall make
any request under this Section 2.3 if at such time all Registrable Shares held
by the Purchasers are freely tradeable under Rule 144. A requested registration
on Form S-3 or any such successor form in compliance with this Section shall not
count as a registration statement demanded pursuant to Section 2.1, but shall
otherwise be treated as a registration initiated pursuant to and shall, except
as otherwise expressly provided in this Section, be subject to Section 2.1. No
Purchaser or group of Purchasers shall exercise its or their rights under this
Section 2.3 more than two times in any twelve month period.
ARTICLE III
REGISTRATION OF SECURITIES
3.1 Preparation and Filing.
If and whenever the Company is under an obligation pursuant to the
provisions of this Agreement to use its best efforts to effect the registration
of any Total Registrable Shares, the Company shall, as expeditiously as
practicable:
(a) use its commercially reasonable efforts to cause a registration
statement that registers such Total Registrable Shares to become and remain
effective for a period of 180 days or until all of such Total Registrable Shares
have been disposed of (if earlier);
(b) furnish, at least five business days before filing a
registration statement that registers such Total Registrable Shares, a
prospectus relating thereto or any amendments or supplements relating to such a
registration statement or prospectus, to one counsel selected by the Majority in
Interest (the "Selling Purchasers' Counsel"), copies of all such documents
proposed to be filed (it being understood that such five-business-day period
need not apply to
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successive drafts of the same document proposed to be filed so long as such
successive drafts are supplied to such counsel in advance of the proposed filing
by a period of time that is customary and reasonable under the circumstances);
(c) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective for
at least a period of 180 days or until all of such Total Registrable Shares have
been disposed of (if earlier) and to comply with the provisions of the
Securities Act with respect to the sale or other disposition of such Total
Registrable Shares;
(d) notify in writing the Selling Purchasers' Counsel promptly (i)
of the receipt by the Company of any notification with respect to any comments
by the Commission with respect to such registration statement or prospectus or
any amendment or supplement thereto or any request by the Commission for the
amending or supplementing thereof or for additional information with respect
thereto, (ii) of the receipt by the Company of any notification with respect to
the issuance by the Commission of any stop order suspending the effectiveness of
such registration statement or prospectus or any amendment or supplement thereto
or the initiation or threatening of any proceeding for that purpose and (iii) of
the receipt by the Company of any notification with respect to the suspension of
the qualification of such Total Registrable Shares for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purposes;
(e) use its commercially reasonable efforts to register or qualify
such Total Registrable Shares under such other securities or blue sky laws of
such jurisdictions as any seller of Total Registrable Shares reasonably requests
and do any and all other acts and things which may be reasonably necessary or
advisable to enable such seller of Total Registrable Shares to consummate the
disposition in such jurisdictions of the Total Registrable Shares owned by such
seller; provided, however, that the Company will not be required to qualify
generally to do business, subject itself to general taxation or consent to
general service of process in any jurisdiction where it would not otherwise be
required so to do but for this paragraph (e);
(f) furnish to each seller of such Total Registrable Shares such
number of copies of a summary prospectus or other prospectus, including a
preliminary prospectus, in conformity with the requirements of the Securities
Act, and such other documents as such seller of Total Registrable Shares may
reasonably request in order to facilitate the public sale or other disposition
of such Total Registrable Shares;
(g) use its commercially reasonable efforts to cause such Total
Registrable Shares to be registered with or approved by such other governmental
agencies or authorities as may be necessary by virtue of the business and
operations of the Company to enable the seller or sellers thereof to consummate
the disposition of such Total Registrable Shares;
(h) notify on a timely basis each seller of such Total Registrable
Shares at any time when a prospectus relating to such Total Registrable Shares
is required to be delivered under the Securities Act within the appropriate
period mentioned in paragraph (a) of this Section, of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not
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misleading in light of the circumstances then existing and, at the request of
such seller, prepare and furnish to such seller a reasonable number of copies of
a supplement to or an amendment of such prospectus as may be necessary so that,
as thereafter delivered to the offerees of such shares, such prospectus shall
not include an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing;
(i) make available for inspection by any seller of such Total
Registrable Shares, any underwriter participating in any disposition pursuant to
such registration statement and any attorney, accountant or other agent retained
by any such seller or underwriter (collectively, the "Inspectors"), all
pertinent financial and other records, pertinent corporate documents and
properties of the Company (collectively, the "Records"), as shall be reasonably
necessary to enable them to exercise their due diligence responsibility, and
cause the Company's officers, directors and employees to supply all information
(together with the Records, the "Information") reasonably requested by any such
Inspector in connection with such registration statement. Any of the Information
which the Company determines in good faith to be confidential, and of which
determination the Inspectors are so notified, shall not be disclosed by the
Inspectors unless (i) the disclosure of such Information is necessary to avoid
or correct a misstatement or omission in the registration statement, (ii) the
release of such Information is ordered pursuant to a subpoena or other order
from a court of competent jurisdiction or (iii) such Information has been made
generally available to the public. The seller of Total Registrable Shares agrees
that it will, upon learning that disclosure of such Information is sought in a
court of competent jurisdiction, give notice to the Company and allow the
Company, at the Company's expense, to undertake appropriate action to prevent
disclosure of the Information deemed confidential;
(j) use its commercially reasonable efforts to obtain from its
independent certified public accountants "cold comfort" letters in customary
form and at customary times and covering matters of the type customarily covered
by cold comfort letters;
(k) use its commercially reasonable efforts to obtain from its
counsel an opinion or opinions in customary form;
(l) provide a transfer agent and registrar (which may be the same
entity and which may be the Company) for such Total Registrable Shares;
(m) issue to any underwriter, which underwriter shall be chosen by
the Company subject to the approval of a Majority in Interest of the Purchasers,
to which any seller of Total Registrable Shares may sell shares in such offering
certificates evidencing such Total Registrable Shares;
(n) list such Total Registrable Shares on any national securities
exchange or national automated quotation system on which any shares of the
Common Stock are listed or, if the Common Stock is not so listed, use its
commercially reasonable efforts to qualify such Registrable Shares for inclusion
on the automated quotation system of the National Association of Securities
Dealers, Inc. (the "NASD") or such national securities exchange as the Company
shall reasonably determine;
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(o) otherwise use its commercially reasonable efforts to comply with
all applicable rules and regulations of the Commission and make available to its
securityholders, as soon as reasonably practicable, earnings statements (which
need not be audited) covering a period of 12 months beginning within three
months after the effective date of the registration statement, which earnings
statements shall satisfy the provisions of Section 11(a) of the Securities Act;
and
(p) use its commercially reasonable efforts to take all other steps
necessary to effect the registration of such Total Registrable Shares
contemplated hereby.
3.2 Information by Holder.
Each holder of Total Registrable Shares to be included in any registration
shall furnish to the Company such written information regarding such holder and
the distribution proposed by such holder as the Company may reasonably request
in writing and as shall be reasonably required in connection with any
registration, qualification or compliance referred to in this Agreement.
3.3 Exchange Act Compliance.
From and after the Registration Date or such earlier date as a
registration statement filed by the Company pursuant to the Exchange Act
relating to any class of the Company's securities shall have become effective,
the Company shall comply with all of the reporting requirements of the Exchange
Act and shall comply with all other public information reporting requirements of
the Commission which are conditions to the availability of Rule 144 for the sale
of shares of Common Stock. The Company shall cooperate with each Purchaser in
supplying such information as may be necessary for such Purchaser to complete
and file any information reporting forms presently or hereafter required by the
Commission as a condition to the availability of Rule 144.
3.4 Expenses.
All expenses incurred by the Company in complying with this Article,
including, without limitation, all registration and filing fees (including all
expenses incident to filing with the NASD), fees and expenses of complying with
securities and blue sky laws, printing expenses, fees and expenses of the
Company's counsel and accountants, and reasonable fees and expenses of the
Selling Purchasers' Counsel, shall be paid by the Company; provided, however,
that all underwriting discounts and selling commissions applicable to the Total
Registrable Shares shall be borne by the sellers thereof, in proportion to the
number of Total Registrable Shares sold by such sellers.
ARTICLE IV
INDEMNIFICATION
4.1 Indemnification.
(a) In connection with any registration of any Total Registrable
Shares under the Securities Act pursuant to this Agreement, the Company shall
indemnify and hold harmless the
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seller of such Total Registrable Shares, each underwriter, broker or any other
person acting on behalf of such seller and each other person, if any, who
controls any of the foregoing persons within the meaning of the Securities Act
against any losses, claims, damages or liabilities, joint or several, (or
actions in respect thereof) to which any of the foregoing persons may become
subject under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in the registration statement under which such Total Registrable
Shares were registered under the Securities Act, any preliminary prospectus or
final prospectus contained therein or otherwise filed with the Commission, any
amendment or supplement thereto or any document incident to registration or
qualification of any Total Registrable Shares, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading or,
with respect to any prospectus, necessary to make the statements therein in
light of the circumstances under which they were made not misleading, or any
violation by the Company of the Securities Act or state securities or blue sky
laws applicable to the Company and relating to action or inaction required of
the Company in connection with such registration or qualification under such
state securities or blue sky laws; and shall reimburse such seller, such
underwriter, such broker or such other person acting on behalf of such seller
and each such controlling person for any legal or other expenses reasonably
incurred by any of them in connection with investigating or defending any such
loss, claim, damage, liability or action; provided, however, that the Company
shall not be liable in any such case to the extent that any such loss, claim,
damage, liability or action arises out of or is based upon an untrue statement
or alleged untrue statement or omission or alleged omission made in said
registration statement, preliminary prospectus, final prospectus, amendment,
supplement or document incident to registration or qualification of any Total
Registrable Shares in reliance upon and in conformity with written information
furnished to the Company through an instrument duly executed by such seller or
underwriter specifically for use in the preparation thereof.
(b) In connection with any registration of Total Registrable Shares
under the Securities Act pursuant to this Agreement, each seller of Total
Registrable Shares shall indemnify and hold harmless (in the same manner and to
the same extent as set forth in the preceding paragraph of this Section) the
Company, each director of the Company, each officer of the Company who shall
sign such registration statement, each underwriter, broker or other person
acting on behalf of such seller, each person who controls any of the foregoing
persons within the meaning of the Securities Act and each other seller of Total
Registrable Shares under such registration statement with respect to any
statement or omission from such registration statement, any preliminary
prospectus or final prospectus contained therein or otherwise filed with the
Commission, any amendment or supplement thereto or any document incident to
registration or qualification of any Total Registrable Shares, if such statement
or omission was made in reliance upon and in conformity with written information
furnished to the Company or such underwriter through an instrument duly executed
by such seller specifically for use in connection with the preparation of such
registration statement, preliminary prospectus, final prospectus, amendment,
supplement or document; provided, however, that the maximum amount of liability
in respect of such indemnification shall be limited, in the case of each seller
of Total Registrable Shares, to an amount equal to the net proceeds actually
received by such seller from the sale of Total Registrable Shares effected
pursuant to such registration.
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(c) Promptly after receipt by an indemnified party of notice of the
commencement of any action involving a claim referred to in the preceding
paragraphs of this Section, such indemnified party will, if a claim in respect
thereof is made against an indemnifying party, give written notice to the latter
of the commencement of such action. In case any such action is brought against
an indemnified party, the indemnifying party will be entitled to participate in
and to assume the defense thereof, jointly with any other indemnifying party
similarly notified to the extent that it may wish, with counsel reasonably
satisfactory to such indemnified party, and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be responsible for any legal or other
expenses subsequently incurred by the latter in connection with the defense
thereof; provided, however, that if any indemnified party shall have reasonably
concluded that there may be one or more legal or equitable defenses available to
such indemnified party which are additional to or conflict with those available
to the indemnifying party, or that such claim or litigation involves or could
have an effect upon matters beyond the scope of the indemnity agreement provided
in this Section, the indemnifying party shall not have the right to assume the
defense of such action on behalf of such indemnified party and such indemnifying
party shall reimburse such indemnified party and any person controlling such
indemnified party for that portion of the fees and expenses of any counsel
retained by the indemnified party which is reasonably related to the matters
covered by the indemnity agreement provided in this Section.
(d) If the indemnification provided for in this Section is held by a
court of competent jurisdiction to be unavailable to an indemnified party with
respect to any loss, claim, damage, liability or action referred to herein, then
the indemnifying party, in lieu of indemnifying such indemnified party
hereunder, shall contribute to the amounts paid or payable by such indemnified
party as a result of such loss, claim, damage, liability or action in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party on the one hand and of the indemnified party on the other in connection
with the statements or omissions which resulted in such loss, claim, damage or
liability as well as any other relevant equitable considerations. The relative
fault of the indemnifying party and of the indemnified party shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the indemnifying party or by
the indemnified party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
4.2 Underwriting Agreement.
Notwithstanding the provisions of Sections 3.1, 3.4, and 4.1, to the
extent that the Purchasers and/or Founding Stockholders selling Registrable
Shares or Registrable Founders Shares, respectively, in a proposed registration
shall enter into an underwriting or similar agreement, and such agreement
contains provisions covering one or more issues addressed in such Sections, the
provisions contained in such agreement shall supersede the provisions of
Sections 3.1, 3.4, and 4.1.
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ARTICLE V
MISCELLANEOUS
5.1 Termination.
This Agreement shall terminate and be of no further force or effect when
the Purchasers cease to hold any Restricted Shares.
5.2 Successors and Assigns.
This Agreement shall bind and inure to the benefit of the Company and the
Purchasers and, subject to Section 5.3, their respective successors and assigns.
5.3 Assignment.
Each Purchaser or Founding Stockholder may assign its respective rights
hereunder to any other person or entity to whom Restricted Shares or Founders
Shares of such Purchaser or such Founding Stockholder, respectively, have been
sold or otherwise transferred.
5.4 Entire Agreement.
This Agreement contains the entire agreement among the parties with
respect to the subject matter hereof and supersedes all prior arrangements or
understandings with respect hereto.
5.5 No Conflict of Rights.
The Company represents and warrants to the Stockholders that the
registration rights granted to the Stockholders hereby do not conflict with any
other registration rights granted by the Company. The Company shall not, after
the date hereof, grant any registration rights which conflict with or impair the
registration rights granted hereby.
5.6 Notices.
All notices, claims, certificates, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if personally delivered or if sent by nationally-recognized overnight
courier, by telecopy, or by registered or certified mail, return receipt
requested and postage prepaid, addressed as follows:
if to the Company:
FiberNet Telecom Group, Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
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Attention: President
if to any Stockholder, to its or his address set forth on Annex I;
or to such other address as the party to whom notice is to be given may have
furnished to the other parties in writing in accordance herewith. Any such
notice or communication shall be deemed to have been received (i) in the case of
personal delivery, on the date of such delivery, (ii) in the case of
nationally-recognized overnight courier, on the next business day after the date
when sent, (iii) in the case of telecopy transmission, when received, and (iv)
in the case of mailing, on the third business day following that on which the
piece of mail containing such communication is posted.
5.7 Modifications; Amendments; Waivers.
The terms and provisions of this Agreement may not be modified or amended,
except pursuant to a writing signed by the Company and the Majority in Interest
of the Purchasers.
5.8 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.
5.9 Headings.
The headings of the various sections of this Agreement have been inserted
for convenience of reference only and shall not be deemed to be a part of this
Agreement.
5.10 Severability.
It is the desire and intent of the parties that the provisions of this
Agreement be enforced to the fullest extent permissible under the law and public
policies applied in each jurisdiction in which enforcement is sought.
Accordingly, if any provision of this Agreement would be held in any
jurisdiction to be invalid, prohibited or unenforceable for any reason, such
provision, as to such jurisdiction, shall be ineffective, without invalidating
the remaining provisions of this Agreement or affecting the validity or
enforceability of such provision in any other jurisdiction. Notwithstanding the
foregoing, if such provision could be more narrowly drawn so as not to be
invalid, prohibited or unenforceable in such jurisdiction, it shall, as to such
jurisdiction, be so narrowly drawn, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of such
provision in any other jurisdiction.
5.11 GOVERNING LAW; SUBMISSION TO JURISDICTION.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK. EACH OF THE OBLIGORS HEREBY SUBMITS TO THE
NON-EXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK AND OF ANY NEW YORK STATE COURT FOR PURPOSES OF ALL LEGAL
12
13
PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY. EACH OF THE OBLIGORS IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH COURT AND ANY CLAIM
THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. EACH OF THE PARTIES HERETO IRREVOCABLY CONSENTS TO SERVICE
OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 5.6. NOTHING IN THIS
AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY TO THIS AGREEMENT TO SERVE PROCESS
IN ANY OTHER MANNER PERMITTED BY LAW.
* * * * *
13
14
IN WITNESS WHEREOF, the parties have executed and delivered this
Registration Rights Agreement on the date first above written.
FIBERNET TELECOM GROUP, INC.
By:
-----------------------------------------
Name:
Title:
SIGNAL CAPITAL PARTNERS, L.P.
By: Signal Capital Advisors, L.P.
Its: General Partner
By: Signal Capital Advisors, Inc.
Its: General Partner
By:
-----------------------------------------
Name:
Title:
TRIDENT TELECOM PARTNERS LLC
By: Trident Telecom Management LLC
Its: Managing Member
By: Xxxxxxx Management, Inc.
Its: Managing Member
CONCORDIA TELECOM MANAGEMENT, L.L.C.
By:
-----------------------------------------
Name:
Title:
15
BURDEN DIRECT INVESTMENT FUND III
By: Xxxxxxx A.M. Burden & Co., L.P.
Its: Managing General Partner
By: Burden Brothers, Inc.
Its: Sole General Partner
By:
-----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President and CEO
PEQUOT SCOUT FUND, LP
By:
-----------------------------------------
Name:
Title:
XXXXX XXXX PARTNERS, L.P.
By: Xxxxx Xxxx Associates, L.P.
Its: General Partner
By: Xxxxx Xxxx, Inc.
Its: General Partner
By:
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx, Xx.
Title: Chairman, Xxxxx Xxxx, Inc.
LANCER OFFSHORE, INC.
By:
-----------------------------------------
Name:
Title:
16
ALEXANDER ENTERPRISE HOLDINGS CORP.
By:
-----------------------------------------
Name:
Title:
KING STREET CAPITAL LTD.
By:
-----------------------------------------
Name:
Title:
KING STREET CAPITAL LP
By:
-----------------------------------------
Name:
Title:
TAURUS TELECOMMUNICATION, INC.
By:
-----------------------------------------
Name:
Title:
SMFS, INC.
By:
-----------------------------------------
Name:
Title:
17
LPS CONSULTANTS INC.
By:
-----------------------------------------
Name:
Title:
LTJ GROUP, INC.
By:
-----------------------------------------
Name:
Title:
--------------------------------------------
Xxxxx Xxxxxxx
18
Annex I
PURCHASERS AND CERTAIN STOCKHOLDERS
PURCHASERS
Signal Capital Partners, L.P.
00 X. 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Trident Telecom Partners LLC
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Concordia Telecom Management, L.L.C.
c/o FiberNet Telecom Group, Inc.
000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Burden Direct Investment Fund III
00 X. 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Pequot Scout Fund, LP
000 Xxxxx Xxxx Xxxx
Xxxxxxxx, XX 00000
Attn: Xxxx Xxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Xxxxx Xxxx Partners, L.P.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx Xx.
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
19
Lancer Offshore, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Alexander Enterprise Holdings Corp.
c/o Alpha Investment Inc.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X'Xxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
King Street Capital Ltd.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxx Xxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
King Street Capital LP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxx Xxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Taurus Telecommunication, Inc.
0000 Xxxxx Xxx
Xxxxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
FOUNDING STOCKHOLDERS
SMFS, Inc.
c/x Xxxxxxxxxx Communications Company
00-00 00xx Xxxxxx
Xxxx Xxxxxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxxxxx, Xx.
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
20
LPS Consultants, Inc.
c/x Xxxxxxxxxx Communications Company
00-00 00xx Xxxxxx
Xxxx Xxxxxx Xxxx, XX 00000
Attn: Xxxxxxxx X. Xxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
LTJ Group, Inc.
c/o FiberNet Telecom Group, Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Xxxxx Xxxxxxx
0000 Xxxx Xxxx Xxxx
Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
