EXHIBIT 10.1
FIBERNET TELECOM GROUP, INC.
COMMON STOCK AND WARRANT
PURCHASE AGREEMENT
November 11, 2002
TABLE OF CONTENTS
Page
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1. Purchase and Sale of Stock................................................1
1.1. Sale and Issuance of Common Stock and Warrants......................1
1.2. Closing.............................................................2
2. Representations and Warranties of the Company.............................2
2.1. Organization, Good Standing and Qualification.......................2
2.2. Subsidiaries........................................................2
2.3. Capitalization and Voting Rights....................................2
2.4. Authorization.......................................................3
2.5. Valid Issuance of Common Stock......................................3
2.6. No Conflict with Laws or Other Instruments; Governmental
Consents............................................................4
2.7. Offering............................................................4
2.8. Returns and Complaints..............................................5
2.9. Litigation..........................................................5
2.10. Intellectual Property...............................................5
2.11. Compliance with Laws and Instruments................................5
2.12. Environmental Matters...............................................5
2.13. Business Plan.......................................................7
2.14. Registration Rights.................................................7
2.15. Corporate Documents.................................................7
2.16. Title to Property and Assets........................................8
2.17. Financial Statements................................................8
2.18. Absence of Certain Changes..........................................8
2.19. Absence of Undisclosed Liabilities..................................9
2.20. Tax Returns, Payments and Elections.................................9
2.21. Brokers............................................................10
2.22. Intentionally Omitted..............................................10
2.23. Private Placement..................................................10
3. Representations and Warranties of the Investors..........................10
3.1. Purchase Entirely for Own Account..................................10
3.2. Disclosure of Information..........................................10
3.3. Investment Experience..............................................11
3.4. Accredited Investor................................................11
3.5. Restricted Securities..............................................11
3.6. Further Limitations on Disposition.................................11
4. Conditions of Investor's Obligations at Closing..........................11
4.1. Representations and Warranties.....................................12
4.2. Performance; Material Adverse Change...............................12
4.3. Compliance Certificate.............................................12
4.4. Qualifications.....................................................12
4.5. Proceedings and Documents..........................................12
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4.6. Opinions of Company Counsel........................................12
4.7. Execution and Delivery of Transaction Documents; Issuance
of Warrants and Common Stock.......................................12
4.8. Eighth Amendment to the Amended and Restated Credit
Agreement and Loan Documents.......................................12
4.9. Intentionally Omitted..............................................13
4.10. Secretary's Certificate............................................13
4.11. Consents...........................................................13
4.12. Exchange of Certain Securities.....................................13
4.13. Final Credit Approval..............................................14
4.14. Company Indebtedness...............................................14
4.15. Additional Fundraising.............................................14
4.16. Waivers by Holders of Existing Warrants............................14
4.17. Material Adverse Change, Suits and Defaults........................14
5. Indemnification..........................................................14
5.1. Indemnification by the Company.....................................15
5.2. Indemnification Procedures.........................................15
6. Miscellaneous............................................................16
6.1. Survival of Representations and Warranties.........................16
6.2. Exercise of Warrants...............................................16
6.3. Successors.........................................................16
6.4. Governing Law......................................................16
6.5. Counterparts.......................................................16
6.6. Interpretation.....................................................16
6.7. Notices............................................................16
6.8. Finder's Fee.......................................................18
6.9. Expenses...........................................................18
6.10. Amendments and Waivers.............................................18
6.11. Severability.......................................................18
6.12. Aggregation of Stock...............................................18
6.13. Entire Agreement...................................................19
6.14. Publication........................................................19
6.15. Confidentiality....................................................19
6.16. Exculpation Among Investors........................................19
6.17. Register of Securities.............................................19
6.18. Replacement of Certificates........................................20
6.19. Interpretation of "Knowledge.".....................................20
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COMMON STOCK AND WARRANT
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PURCHASE AGREEMENT
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This Common Stock and Warrant Purchase Agreement (this "Agreement") is made
as of the 11th day of November 2002, by and among FiberNet Telecom Group, Inc.,
a Delaware corporation (the "Company"), and the investors listed on Schedule I
hereto (the "Investors").
WHEREAS, pursuant to a Purchase Agreement among the Company and the
Investors dated October 30, 2002 (the "Old Purchase Agreement"), the Investors
purchased from the Company, and the Company sold to the Investors, upon the
terms and subject to the conditions set forth therein, an aggregate of
440,000,000 shares of the Common Stock, par value $0.001 per share (the "Common
Stock"), and warrants of the Company to purchase an aggregate of 110,000,000
shares of Common Stock, for an aggregate purchase price of $66,000,000;
WHEREAS, the Investors wish to purchase from the Company, and the Company
wishes to sell to the Investors, upon the terms and subject to the conditions
set forth herein, an aggregate of 20,000,000 shares of the Common Stock and
warrants of the Company to purchase an aggregate of 20,000,000 shares of Common
Stock, for an aggregate purchase price of $2,000,000;
WHEREAS, in connection with the purchase and sale of Common Stock and
warrants pursuant to this Agreement, the Company and the Investors are amending
and restating the Investor's Rights Agreement, dated October 30, 2002, between
the Company and the Investors (the "Existing Rights Agreement"), and the
Stockholders Agreement, dated October 30, 2002, between the Company and certain
of the Investors (the "Existing Stockholders Agreement");
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. Purchase and Sale of Stock.
1.1. Sale and Issuance of Common Stock and Warrants. Upon the terms and
subject to the conditions of this Agreement, each Investor agrees, severally and
not jointly, to purchase at the Closing (as defined below), and the Company
agrees to sell and issue to each Investor at the Closing,
(a) that number of shares of Common Stock set forth opposite such
Investor's name on Schedule I hereto under the heading "Shares
Purchased," and
(b) warrants, in substantially the form attached hereto as Exhibit A (the
"Warrants"), to purchase that number of shares of Common Stock set
forth opposite such Investor's name on Schedule I under the heading
"Warrants"
for the aggregate purchase price set forth opposite such Investor's name under
the heading "Purchase Price" (as paid by means of the cancellation of accrued
interest on indebtedness, as indicated thereon, the "Purchase Price"). The
Warrants shall have an exercise price equal to $0.12 per share and shall be
immediately exercisable.
1.2. Closing. The purchase and sale of the Common Stock and Warrants (the
"Closing") shall take place at the offices of Xxxxxx & Xxxxxxx, 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 a.m., on the business day following
the date on which all of the conditions to closing set forth in Article 4 have
been satisfied or waived or at such other time and place as the Company and the
Investors may mutually agree (the "Closing Date"). At the time of the Closing,
the Company shall deliver to each Investor certificates representing the Common
Stock and Warrants that such Investor is purchasing, as set forth on Schedule I
attached hereto, against payment of the Purchase Price therefor.
2. Representations and Warranties of the Company. As of the date hereof and
as of the Closing Date, the Company hereby represents and warrants to each
Investor that, except as specifically set forth in the Schedule of Exceptions
attached hereto as Schedule II (the "Schedule of Exceptions"), which exceptions
shall be deemed to be representations and warranties as if made hereunder:
2.1. Organization, Good Standing and Qualification. The Company is a
corporation duly incorporated, validly existing and in good standing under the
laws of the State of Delaware and has all requisite corporate power and
authority to carry on its business as now conducted and as presently proposed to
be conducted. The Company is duly qualified to transact business and is in good
standing in each jurisdiction in which the failure to so qualify would have a
material adverse effect on the business, condition (financial or otherwise),
projections or results of operations of the Company and its Subsidiaries (as
defined below), taken as a whole (a "Material Adverse Effect").
2.2. Subsidiaries. All of the subsidiaries of the Company (the
"Subsidiaries") are identified in Schedule 2.2 to the Schedule of Exceptions.
The equity interests of each of the Subsidiaries of the Company are identified
in Schedule 2.2 to the Schedule of Exceptions. Each of the Subsidiaries of the
Company identified in Schedule 2.2 to the Schedule of Exceptions is (i) a
corporation or limited liability company duly organized or formed, validly
existing and in good standing under the laws of its respective jurisdiction of
organization set forth therein, has all requisite corporate or limited liability
company power and authority to own and operate its properties and to carry on
its business as now conducted and as proposed to be conducted, and (ii) is
qualified to do business and is in good standing in every jurisdiction where its
assets are located and wherever necessary to carry out its business and
operations, except where the failure to be so qualified and in good standing
could not reasonably be expected to have a Material Adverse Effect. Schedule 2.2
to the Schedule of Exceptions completely and correctly sets forth the ownership
of each Subsidiary of the Company.
2.3. Capitalization and Voting Rights.
(a) As of the date hereof, the authorized capital of the Company consists
of 2,000,000,000 shares of Common Stock, 716,515,187 shares of which are
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issued and outstanding, and no shares of Preferred Stock. All of the outstanding
shares of Common Stock have been duly authorized, validly issued, fully paid and
are nonassessable.
(b) The Company has reserved 16,166,720 shares of Common Stock for issuance
to officers, directors, employees and consultants of the Company pursuant to its
Equity Incentive Plan and certain other stock option arrangements duly adopted
by the board of directors and approved by the stockholders of the Company (the
"Stock Plan"). Of such reserved shares of Common Stock, options to purchase
13,746,512 shares have been granted and are currently outstanding, and 2,420,208
shares remain available for issuance to officers, directors, employees and
consultants pursuant to the Stock Plan. 103,452 shares of Common Stock have been
issued pursuant to the Equity Incentive Plan.
(c) Except as set forth on Schedule 2.3(c) to the Schedule of Exceptions,
as of the date hereof, there are no outstanding options, warrants, rights
(including conversion or preemptive rights, rights of first refusal or similar
rights) or agreements, orally or in writing, for the purchase or acquisition
from the Company of any shares of its capital stock or other securities.
2.4. Authorization. All corporate action on the part of the Company and the
Subsidiaries and their respective officers, directors and stockholders (or in
the case of Devnet, L.L.C., FiberNet Equal Access, L.L.C., a New York limited
liability company ("Equal Access"), and Local Fiber, L.L.C., a New York limited
liability company ("Local Fiber"), its partners and members) necessary for the
authorization, execution and delivery of this Agreement, the Warrants, the First
Amended and Restated Investor's Rights Agreement, attached hereto as Exhibit B
(the "Rights Agreement"), the First Amended and Restated Stockholders Agreement,
attached hereto as Exhibit C, (the "Stockholders Agreement"), the Eighth
Amendment (as defined in Section 4.8), the Old Purchase Agreement, the Amended
and Restated Credit Agreement, dated as of February 9, 2001 (as amended prior to
the date hereof, the "Credit Agreement"), and any documents to be executed in
connection with the Credit Agreement (the "Loan Documents," collectively with
this Agreement, the Warrants, the Rights Agreement, the Credit Agreement, and
the Stockholders Agreement, the "Transaction Documents"), the performance of all
obligations of the Company hereunder and thereunder, and the authorization,
issuance, sale and delivery of the Common Stock and Warrants being sold
hereunder and securities issuable upon exercise of the Warrants has been taken
or will be taken prior to the Closing. Each of the Transaction Documents
constitutes or, when executed and delivered, will constitute, the Company's
valid and legally binding obligation, enforceable against the Company in
accordance with its terms, except (a) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other laws of general application
affecting enforcement of creditors' rights generally, (b) as limited by laws
relating to the availability of specific performance, injunctive relief or other
equitable remedies, and (c) to the extent the indemnification provisions
contained in any of the Transaction Documents may be limited by applicable
federal or state securities laws.
2.5. Valid Issuance of Common Stock. The Common Stock that is being
purchased by the Investors hereunder, when issued, sold and delivered in
accordance with the terms of this Agreement for the consideration expressed
herein, will be duly and validly issued, fully paid, nonassessable, free of
restrictions on transfer other than restrictions on transfer
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under the Transaction Documents and under applicable state and federal
securities laws and, assuming the accuracy of each Investor's representations
and warranties set forth in Article 3 of this Agreement, such Common Stock and
the Warrants will have been issued in compliance with all applicable state and
federal securities laws. The securities issuable upon exercise of the Warrants,
upon issuance in accordance with the terms of the Warrants, will be duly and
validly issued, fully paid, nonassessable, free of restrictions on transfer
other than restrictions on transfer under the Transaction Documents and under
applicable state and federal securities laws and will have been issued in
compliance with all applicable state and federal securities laws. The Company's
equity securities outstanding as of the date of this Agreement have been issued
in compliance with all applicable state and federal securities laws.
2.6. No Conflict with Laws or Other Instruments; Governmental Consents. The
execution, delivery and performance by the Company and its Subsidiaries of the
Transaction Documents to which each is a party and the consummation of the
transactions contemplated by this Agreement and the other Transaction Documents:
(a) will not require from the board of directors or stockholders of the Company
or any of the Subsidiaries (or in the case of Devnet, L.L.C., Equal Access and
Local Fiber, its partners or members) any consent or approval, except such as
shall have been obtained prior to the Closing; (b) will not require any
authorization, consent, approval, license, exemption of or filing or
registration with any court or governmental department, commission, board,
bureau, agency or instrumentality of government, except such filings as may be
required under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as
amended ("HSR"), and such other consents and approvals such as shall have been
obtained or made prior to the Closing and except as could not reasonably be
expected to have a Material Adverse Effect; (c) subject to the accuracy of the
Investors' representations and warranties contained in Article 3 of this
Agreement, will not cause the Company or any of the Subsidiaries to violate or
contravene (i) any provision of law presently in effect, (ii) any rule or
regulation presently in effect of any agency or government, (iii) any order,
writ, judgment, injunction, decree, determination or award presently in effect,
or (iv) any provision of its certificate of incorporation or bylaws or
equivalent organizational documents, except, in the case of clauses (i) and
(ii), as could not reasonably be expected to have a Material Adverse Effect; (d)
will not violate or be in conflict with, result in a breach of or constitute
(with or without notice or lapse of time or both) a default under, or require
any consent, approval or authorization under, any indenture, loan or credit
agreement, note agreement, deed of trust, mortgage, security agreement or other
agreement, lease, instrument, commitment or arrangement to which the Company or
any of the Subsidiaries is a party or by which the Company or any of the
Subsidiaries or any of their respective properties, assets or rights is bound,
in each case, that is material to the Company and its Subsidiaries, taken as a
whole; (e) will not result in the creation or imposition of any lien,
encumbrance or other restriction on any of the properties, assets or rights of
the Company or the Subsidiaries (in each case, other than pursuant to the terms
of the Transaction Documents), except as would not have a Material Adverse
Effect; and (f) will not result in the revocation, impairment, forfeiture or
nonrenewal of any Permit (as defined below), except as would not have a Material
Adverse Effect.
2.7. Offering. Subject to the truth and accuracy of each Investor's
representations set forth in Article 3 of this Agreement, the offer, sale and
issuance of the Common Stock and Warrants as contemplated by this Agreement and
the issuance of the securities issuable upon exercise of the Warrants are exempt
from the registration requirements
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of the Securities Act (as defined in Section 2.17), and neither the Company nor
any authorized agent acting on its behalf will take any action hereafter that
would cause the loss of such exemption.
2.8. Returns and Complaints. Except as it would not have a Material Adverse
Effect, none of the Company and its Subsidiaries has received any written
customer complaints concerning its products and/or services.
2.9. Litigation. Except as set forth in Schedule 2.9 of the Schedule of
Exceptions, there are no actions, suits, proceedings, arbitrations or
governmental investigations at law or in equity, or before or by any arbitrator
or governmental instrumentality, domestic or foreign (including any
environmental claims) that are, to the knowledge of the Company, pending or
threatened against or affecting the Company or any of its Subsidiaries or any
property of the Company or any of its Subsidiaries, which, if adversely
determined, could reasonably be expected to have a Material Adverse Effect.
Neither the Company nor any of its Subsidiaries (i) is in violation of any
applicable legal requirement (including environmental laws) which could
reasonably be expected to have a Material Adverse Effect or (ii) is subject to
or in default with respect to any final judgments, writs, injunctions, decrees,
rules or regulations of any court or any federal, state, municipal or other
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign, which could reasonably be expected to have a Material
Adverse Effect.
2.10. Intellectual Property. To the knowledge of the Company, the Company
and the Subsidiaries have obtained and hold in full force and effect the
intellectual property, free from burdensome restrictions, which is necessary for
the operation of its business as presently conducted except for that
intellectual property which the failure to own or license could not reasonably
be expected to have a Material Adverse Effect. To the knowledge of the Company,
no product, process, method, substance, part or other material presently sold or
employed by the Company or the Subsidiaries in connection with such business
infringes any intellectual property owned by any other person, except as could
not, individually and in the aggregate, reasonably be expected to have a
Material Adverse Effect. All of the material intellectual property owned or used
by the Company or the Subsidiaries as of the Closing Date is set forth in
Schedule 2.10 to the Schedule of Exceptions.
2.11. Compliance with Laws and Instruments. None of the Company and the
Subsidiaries is in violation or default (a) in any respect of any provision of
its certificate of incorporation or bylaws or its equivalent organizational
documents, or (b) in any material respect of any instrument, judgment, order,
writ, decree, contract or agreement to which it is a party or by which it is
bound, or (c) to the best of the Company's knowledge, of any provision of any
federal or state statute, rule or regulation applicable to the Company or the
Subsidiaries, as the case may be, which could reasonably be expected to have a
Material Adverse Effect.
2.12. Environmental Matters.
(a) The following terms shall be defined as follows:
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(i) "Environmental Laws" shall mean any and all current or future statutes,
ordinances, orders, rules, regulations, guidance documents, judgments,
governmental actions, or any other requirements of governmental authorities
relating to (i) environmental matters, including those relating to any Hazardous
Materials Activity(as defined in 2.12.(a)(ii) below), (ii) the generation, use,
storage, transportation or disposal of hazardous materials, or (iii)
occupational safety and health, industrial hygiene, land use or the protection
of human, plant or animal health or welfare, in any manner applicable to the
Company or the Subsidiaries or any Facility (as defined below), including the
Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C.
ss. 9601 et seq.), the Hazardous Materials Transportation Act (49 U.S.C. ss.
1801 et seq.), the Resource Conservation and Recovery Act (42 U.S.C. ss. 6901 et
seq.), the Federal Water Pollution Control Act (33 U.S.C. ss. 1251 et seq.), the
Clean Air Act (42 U.S.C. ss. 7401 et seq.), the Toxic Substances Control Act (15
U.S.C. ss. 2601 et seq.), the Federal Insecticide, Fungicide and Rodenticide Act
(7 U.S.C. ss.136 et seq.), the Occupational Safety and Health Act (29 U.S.C. ss.
651 et seq.), the Oil Pollution Act (33 U.S.C. ss. 2701 et seq.) and the
Emergency Planning and Community Right-to-Know Act (42 U.S.C. ss. 11001 et
seq.), each as amended or supplemented, any analogous present or future state or
local statutes or laws, and any regulations promulgated pursuant to any of the
foregoing.
(ii) "Hazardous Materials Activity" (i) any chemical, material or substance
at any time defined as or included in the definition of "hazardous substances,"
"hazardous wastes," "hazardous materials," "extremely hazardous waste," "acutely
hazardous waste," "radioactive waste," "biohazardous waste," "pollutant," "toxic
pollutant," "contaminant," "restricted hazardous waste," "infectious waste,"
"toxic substances," or any other term or expression intended to define, list or
classify substances by reason of properties harmful to health, safety or the
indoor or outdoor environment (including harmful properties such as
ignitability, corrosivity, reactivity, carcinogenicity, toxicity, reproductive
toxicity, "TCLP toxicity" or "EP toxicity" or words of similar import under any
applicable Environmental Laws); (ii) any oil, petroleum, petroleum fraction or
petroleum derived substance; (iii) any drilling fluids, produced waters and
other wastes associated with the exploration, development or production of crude
oil, natural gas or geothermal resources; (iv) any flammable substances or
explosives; (v) any radioactive materials; (vi) any asbestos-containing
materials; (vii) urea formaldehyde foam insulation; (viii) electrical equipment
which contains any oil or dielectric fluid containing polychlorinated biphenyls;
(ix) pesticides; and (x) any other chemical, material or substance, exposure to
which is prohibited, limited or regulated by any governmental authority or which
may or could pose a hazard to the health and safety of the owners, occupants or
any persons in the vicinity of any Facility or to the indoor or outdoor
environment.
(iii) "Facilities" shall mean any and all real property (including all
buildings, fixtures or other improvements located thereon) now, hereafter or
heretofore owned, leased, operated or used by the Company or the Subsidiaries or
any of their respective predecessors or affiliates.
(iv) "Property" shall mean all real property leased or owned by the Company
or any Subsidiary either currently or in the past, excluding Rights of Way.
Except as set forth in Schedule 2.12 to the Schedule of Exceptions:
6
(v) neither the Company nor the Subsidiaries nor any of their respective
Facilities are subject to any outstanding written order, consent decree or
settlement agreement with any person relating to (a) any Environmental Law or
(b) any Hazardous Materials Activity;
(vi) neither the Company nor the Subsidiaries has received any letter or
request for information under Section 104 of the Comprehensive Environmental
Response, Compensation, and Liability Act (42 U.S.C. ss. 9604) or any comparable
state law;
(vii) there are and, to the Company's knowledge, have been, no conditions,
occurrences, or Hazardous Materials Activities on any Facility which could
reasonably be expected to form the basis of an environmental claim against the
Company or the Subsidiaries;
(viii) neither the Company nor the Subsidiaries nor, to the Company's
knowledge, any predecessor of the Company or the Subsidiaries has filed any
notice under any Environmental Law indicating past or present treatment of
Hazardous Materials Activities at any Facility, and neither the Company's nor
the Subsidiaries' operations involves the generation, transportation, treatment,
storage or disposal of hazardous waste, as defined under 40 C.F.R. Parts 260-270
or any state equivalent; and
(ix) compliance with all current requirements pursuant to or under
Environmental Laws could not, individually or in the aggregate, reasonably be
expected to give rise to a Material Adverse Effect.
Notwithstanding anything in Schedule 2.12 to the Schedule of Exceptions to
the contrary, no event or condition has occurred or is occurring with respect to
the Company or the Subsidiaries relating to any Environmental Law or any
Hazardous Materials Activity, including any matter disclosed on Schedule 2.12 to
the Schedule of Exceptions, which individually or in the aggregate has had or
could reasonably be expected to have a Material Adverse Effect.
2.13. Business Plan. The business plan as amended, supplemented and
previously delivered to each Investor (the "Business Plan") is a true and
accurate copy of the Business Plan adopted by the Company. With respect to
projections contained in the Business Plan, the Company represents only that
such projections were prepared in good faith and that the Company reasonably
believes there is a reasonable basis for such projections.
2.14. Registration Rights. Except as set forth on Schedule 2.14 to the
Schedule of Exceptions, the Company has not granted or agreed to grant any
registration rights, including piggyback rights, to any person or entity.
2.15. Corporate Documents. Except for amendments necessary to satisfy
representations and warranties or conditions contained herein (the forms of
which amendments have been approved by the Investors), the certificate of
incorporation and the bylaws of the Company are in the form previously provided
to special counsel for the Investors.
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2.16. Title to Property and Assets. Each of the Company and the
Subsidiaries has (i) good marketable and insurable fee simple title to (in the
case of fee interests in real property), (ii) valid leasehold interests in (in
the case of leasehold interests in real or personal property), or (iii) good
title to (in the case of all other personal property), all of their respective
material properties and assets reflected in the financial statements referred to
in Section 2.17 except for assets disposed of since the date of such financial
statements in the ordinary course of business. Except as permitted by this
Agreement and set forth on Schedule 2.16 to the Schedule of Exceptions, all such
properties and assets are held free and clear of liens.
2.17. Financial Statements. The Company has timely filed all forms,
statements and documents (the "SEC Documents") required to be filed by it with
the Securities and Exchange Commission (the "SEC") and The Nasdaq SmallCap
Market since September 30, 2001. All documents required to be filed as exhibits
to the SEC Documents have been so filed, and all material contracts so filed as
exhibits are in full force and effect, except those which have expired in
accordance with their terms, and none of the Company and its Subsidiaries is in
material default thereunder. As of their respective filing dates, the SEC
Documents complied in all material respects with the requirements of the
Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder (collectively, the "Exchange Act"), and the Securities
Act of 1933, as amended, and the rules and regulations promulgated thereunder
(collectively, the "Securities Act"). The financial statements of the Company,
including the notes thereto, included in the SEC Documents (the "Company
Financial Statements") complied as to form and substance in all material
respects with applicable accounting requirements and with the published rules
and regulations of the SEC with respect thereto as of their respective dates,
and were prepared in accordance with United States generally accepted accounting
principles ("GAAP") applied on a basis consistent throughout the periods
indicated and consistent with each other (except as may be indicated in the
notes thereto or, in the case of unaudited statements included in Quarterly
Reports on Form 10-Q, as permitted by Form 10-Q of the SEC). The Company
Financial Statements fairly present in all material respects the consolidated
financial condition and operating results of Company and its Subsidiaries at the
dates and during the periods indicated therein (subject, in the case of
unaudited statements, to normal, recurring year-end adjustments). Except as
disclosed in the Company's periodic reports filed with the SEC, there has been
no change in Company accounting policies since September 30, 2001. Except as set
forth in the Company Financial Statements, the Company and its Subsidiaries have
no material liabilities, contingent or otherwise, other than (a) liabilities
incurred in the ordinary course of business subsequent to September 30, 2001 and
(b) obligations under contracts and commitments incurred in the ordinary course
of business and not required under GAAP to be reflected in the Company Financial
Statements, which, in both cases, individually or in the aggregate, would not
have a Material Adverse Effect. Except as disclosed in the Company Financial
Statements, none of the Company and the Subsidiaries is a guarantor or
indemnitor of any indebtedness of any other person, firm or corporation.
2.18. Absence of Certain Changes. From December 31, 2001 (the "Company
Balance Sheet Date") to the date of this Agreement, the Company and its
Subsidiaries have conducted their businesses in the ordinary course consistent
with past practice and, except as disclosed in the Company's periodic reports
filed with the SEC, there has not occurred: (a) any change, event or condition
(whether or not covered by insurance) that has resulted in, or might reasonably
be expected to result in, a Material Adverse Effect; (b) any acquisition, sale
or
8
transfer of any material asset of the Company or any of its Subsidiaries other
than in the ordinary course of business and consistent with past practice; (c)
any change in accounting methods or practices (including any change in
depreciation or amortization policies or rates) by the Company or any
revaluation by the Company of any of its or any of its Subsidiaries' assets; (d)
any declaration, setting aside, or payment of a dividend or other distribution
with respect to the shares of the Company or any Subsidiary, or any direct or
indirect redemption, purchase or other acquisition by the Company or any
Subsidiary of any of its shares of capital stock; (e) except as set forth on
Schedule 2.18 to the Schedule of Exceptions, the entering into of any material
contract or any material amendment by the Company or any Subsidiary, other than
in the ordinary course of business and as provided to the Investors; (f) any
termination of, or default under, any material contract to which Company or any
Subsidiary is a party or by which it is bound; (g) any amendment or change to
the certificate of incorporation or bylaws or equivalent organizational
documents of the Company or any Subsidiary; (h) any material change in any
compensation arrangement or agreement with any employee of the Company or any
Subsidiary; (i) any damage, destruction or loss, whether or not covered by
insurance, materially and adversely affecting the assets, properties, financial
condition, operating results, prospects or business of the Company (as such
business is presently conducted and as it is proposed to be conducted) and its
Subsidiaries, taken as a whole; (j) any waiver by the Company or any Subsidiary
of a valuable right or of a material debt owed to it; (k) any satisfaction or
discharge of any lien, claim or encumbrance, or payment of any obligation by the
Company or any Subsidiary, except in the ordinary course of business and that is
not material to the assets, properties, financial condition, operating results
or business of the Company (as such business is presently conducted and as it is
proposed to be conducted); (l) any sale, assignment or transfer of any patents,
trademarks, copyrights, trade secrets or other intangible assets; (m) any
mortgage, pledge, transfer of a security interest in, or lien, created by the
Company or any Subsidiary, with respect to any of its material properties or
assets, except for Permitted Liens (as defined in the Credit Agreement); or (n)
any agreement or commitment by the Company or any Subsidiary to do any of the
things described in this Section 2.18.
2.19. Absence of Undisclosed Liabilities.
The Company has no material obligations or liabilities of any nature
(matured or unmatured, fixed or contingent) other than (a) those set forth or
adequately provided for in the consolidated balance sheet and the notes thereto
as of December 31, 2001 (the "Company Balance Sheet Date") included in the
Company Financial Statements (the "Company Balance Sheet"), (b) those incurred
in the ordinary course of business and not required to be set forth in the
Company Balance Sheet under GAAP, (c) those incurred in the ordinary course of
business since the Company Balance Sheet Date and not reasonably likely to have
a Material Adverse Effect; (d) those incurred in connection with the execution
of the Transaction Documents, and (e) those disclosed in the Company's periodic
reports filed with the SEC.
2.20. Tax Returns, Payments and Elections. All tax returns and reports of
the Company and the Subsidiaries required to be filed by any such member have
been timely filed, and all taxes required to be paid with respect to such tax
returns to be due and payable and all material assessments, fees and other
governmental charges upon the Company and the Subsidiaries and upon their
respective properties, assets, income, businesses and franchises which are due
and payable have been paid when due and payable. The Company does not know
9
of any proposed tax assessment against the Company or the Subsidiaries which
could reasonably be expected to have a Material Adverse Effect that is not being
actively contested by the Company and the Subsidiaries in good faith and by
appropriate proceedings and for which reserves or other appropriate provisions,
if any, as shall be required in conformity with GAAP shall not have been made or
provided therefor.
2.21. Brokers. None of the Company and its Subsidiaries has any contract,
arrangement or understanding with any broker, finder or similar agent with
respect to the transactions contemplated by this Agreement.
2.22. Intentionally Omitted.
2.23. Private Placement. No form of general solicitation or general
advertising (as defined in Regulation D under the Securities Act) was used by
the Company or any of its respective representatives (other than the Investors,
as to whom the Company makes no representation) in connection with the offer and
sale of the Common Stock and Warrants hereby, including, but not limited to,
articles, notices or other communications published in any newspaper, magazine,
or similar medium or broadcast over television or radio, or any seminar or
meeting whose attendees have been invited by any general solicitation or general
advertising. Except as set forth on Schedule 2.23 to the Schedule of Exceptions,
no securities of the same class as the Common Stock or Warrants have been issued
and sold by the Company within the six-month period immediately prior to the
date hereof.
3. Representations and Warranties of the Investors. Each Investor hereby
represents and warrants that:
3.1. Purchase Entirely for Own Account. This Agreement is made by the
Company with such Investor in reliance upon such Investor's representation to
the Company, which by such Investor's execution of this Agreement such Investor
hereby confirms, that the Common Stock and Warrants to be received by such
Investor pursuant to this Agreement (collectively, the "Securities") will be
acquired for investment for such Investor's own account, not as a nominee or
agent, and not with a view to the resale or distribution of any part thereof,
and that such Investor has no present intention of selling, granting any
participation in, or otherwise distributing the same, except in compliance with
applicable federal or state securities laws. By executing this Agreement, such
Investor further represents that such Investor does not have any contract,
undertaking, agreement or arrangement with any person to sell, transfer or grant
participations to such person or to any third person, with respect to any of the
Securities.
3.2. Disclosure of Information. Such Investor believes it has received all
the information it considers necessary and appropriate for deciding whether to
purchase the Securities. Such Investor further represents that it has had an
opportunity to ask questions and receive answers from the Company regarding the
terms and conditions of the offering of the Common Stock and Warrants and the
business, properties, prospects and financial condition of the Company. The
foregoing, however, does not limit or modify the representations and warranties
of the Company in this Agreement or the right of the Investors to rely thereon.
10
3.3. Investment Experience. Such Investor can bear the economic risk of its
investment, and has such knowledge and experience in financial or business
matters that it is capable of evaluating the merits and risks of its investment
in the Common Stock and Warrants. If other than an individual, Investor also
represents that it has not been organized for the purpose of acquiring the
Securities.
3.4. Accredited Investor. Such Investor is an "accredited investor" within
the meaning of SEC Rule 501 of Regulation D, as presently in effect.
3.5. Restricted Securities. Such Investor understands that the Securities
it is purchasing are characterized as "restricted securities" under the federal
securities laws inasmuch as they are being acquired from the Company in a
transaction not involving a public offering and that under such laws and
applicable regulations such Securities may not be resold without registration
under the Securities Act, except in certain limited circumstances. In this
connection, such Investor represents that it is familiar with SEC Rule 144, as
presently in effect, and understands the resale limitations imposed thereby and
by the Act.
3.6. Further Limitations on Disposition. Without in any way limiting the
representations set forth above, such Investor further agrees not to make any
disposition of all or any portion of the Securities unless and until either,
(a) there is then in effect a Registration Statement under the Securities
Act covering such proposed disposition and such disposition is made in
accordance with such Registration Statement; or
(b) (i) such Investor shall have notified the Company of the proposed
disposition and shall have furnished the Company with a detailed statement of
the circumstances surrounding the proposed disposition, (ii) if reasonably
requested by the Company, such Investor shall have furnished the Company an
opinion of counsel, in form and substance reasonably satisfactory to the
Company, that such disposition will not require registration of such shares
under the Act, and (iii) the transferee has agreed in writing to be bound by
this Article 3, the Rights Agreement and the Stockholders Agreement (with
respect to the Stockholders Agreement and the Rights Agreement to the extent
that the transferor was so bound). It is agreed that the Company will not
require opinions of counsel pursuant to this Section 3.6(b) for transactions
made pursuant to Rule 144, provided that it receives appropriate representations
from the seller with regard to compliance with Rule 144, except in unusual
circumstances.
Notwithstanding the provisions of paragraphs (a) and (b) above, no such
registration statement or opinion of counsel shall be required by the Company
for (i) a transfer to a Permitted Transferee (as defined in the Rights
Agreement), or (ii) a transfer by an Investor to any entity directly or
indirectly controlled by or controlling the Investor.
4. Conditions of Investor's Obligations at Closing. The obligations of each
Investor under Section 1.1 of this Agreement are subject to the fulfillment on
or before the Closing Date of each of the following conditions, the waiver of
which shall not be effective against any Investor who does not consent in
writing thereto:
11
4.1. Representations and Warranties. The representations and warranties of
the Company contained in Article 2 shall be true in all material respects
(except for such representations and warranties that are qualified by their
terms by a reference to materiality, which representation and warranties as so
qualified shall be true and correct in all respects) on and as of the Closing
Date as though such representations and warranties had been made on and as of
the Closing Date.
4.2. Performance; Material Adverse Change. The Company shall have performed
and complied in all material respects with all agreements, obligations and
conditions contained in this Agreement that are required to be performed or
complied with by it on or before the Closing Date. There shall not have occurred
a Material Adverse Effect.
4.3. Compliance Certificate. The Chief Executive Officer or the Chief
Financial Officer of the Company shall deliver to each Investor at the Closing a
certificate on behalf of the Company stating that the conditions specified in
Sections 4.1 and 4.2 of this Agreement have been fulfilled.
4.4. Qualifications. All authorizations, approvals, waivers, consents or
permits, if any, of any governmental authority or regulatory body of the United
States or of any state or self regulatory agency that are required in connection
with the lawful issuance and sale of the Securities pursuant to this Agreement,
including such as may be required under the Securities Act, under state Blue Sky
laws and under HSR, shall have been duly obtained by and effective as of the
Closing.
4.5. Proceedings and Documents. Receipt of all governmental, shareholder
and third party consents and approvals necessary in connection with the issuance
of the Common Stock and Warrants hereunder, and the related financings and other
transactions contemplated hereby and expiration of all applicable waiting
periods without any action being taken by any competent authority that could
restrain, prevent or impose any materially adverse conditions on the issuance of
the Common Stock and Warrants hereunder and no such law or regulation shall be
applicable which in the reasonable judgment of the Administrative Agent under
the Credit Agreement could reasonably be expected to have any such effect.
4.6. Opinions of Company Counsel. Each Investor shall have received from
outside counsel for the Company, an opinion, dated as of the Closing Date, in
substantially the form attached hereto as Exhibit D.
4.7. Execution and Delivery of Transaction Documents; Issuance of Warrants
and Common Stock. Each Investor shall have received a duly executed copy of each
Transaction Document executed by each other party thereto, and the Company shall
have issued and delivered to each Investor certificates representing the shares
of Common Stock and Warrants acquired by such Investor pursuant to this
Agreement.
4.8. Eighth Amendment to the Amended and Restated Credit Agreement and Loan
Documents. Each of the Borrowers (as defined in the Credit Agreement) and the
Lenders (as defined in the Credit Agreement) shall have entered into the Eighth
Amendment to the Amended and Restated Credit Agreement in substantially the form
attached
12
as Exhibit E (the "Eighth Amendment"), and any Loan Documents to which it is a
party, in each case, with such changes as the authorized officers of the parties
thereto shall have approved. Consents to the approval of the Credit Agreement
and the Loan Documents shall have been executed and delivered by each lender
whose consent is required under the terms of the Credit Agreement.
4.9. Intentionally Omitted.
4.10. Secretary's Certificate. The Company shall have delivered to the
Company a certificate issued by the Secretary of the Company certifying as to
the Company's certificate of incorporation and bylaws and resolutions and/or
consents of the Company's board of directors and stockholders.
4.11. Consents. The Company shall have delivered to the Investors
satisfactory evidence of the consent, approval or waiver of those parties whose
consent, approval or waiver shall be necessary or advisable in connection with
the execution of any Transaction Document and the performance of obligations
thereunder, including pursuant to the contracts set forth on Schedule 2.6 to the
Schedule of Exceptions.
4.12. Exchange of Certain Securities. The Company shall have consummated
the transactions contemplated by each of the Nortel Note Exchange Agreement, the
SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the
Series J Share Exchange Agreement, including the conversion of the entire
aggregate principal amount, all accrued and unpaid interest thereon and all
other amounts payable in respect of the Promissory Note of the Company to Nortel
Networks Inc. ("Nortel"), dated December 7, 2001 (the "Nortel Note"), into
9,002,040 shares of Common Stock.
For purposes of this Agreement, the "Nortel Note Exchange Agreement" means
the Note Exchange Agreement, dated as of October 30, 2002, by and between the
Company and SDS Merchant Fund, L.P. as in effect on the date hereof, pursuant to
which the promissory note issued by the Company to Nortel Networks Inc on
December 7, 2001, will be surrendered to the Company in exchange for 9,002,040
shares of Common Stock; the "SDS Note Exchange Agreement" means the Note
Exchange Agreement, dated as of November 11, 2002, by and between the Company
and SDS Merchant Fund, L.P. as in effect on the date hereof, providing for the
conversion of the entire aggregate principal amount, all accrued and unpaid
interest thereon and all other amounts payable in respect of the promissory note
issued by the Company to SDS Merchant Fund, L.P. on March 14, 2002 in an initial
principal amount of $2,000,000; the "Series H Share Exchange Agreement" means
the Share Exchange Agreement, dated as of October 30, 2002, by and among the
Company and each of the purchasers whose names appear on the signature pages
thereto, pursuant to which the Company will issue approximately 104,581,425
shares of Common Stock in exchange for all of its issued and outstanding shares
of Series H Preferred Stock; and the "Series J Share Exchange Agreement" means
the Series J-1 Share Exchange Agreement, dated as of October 30, 2002, by and
among the Company and each of the purchasers whose names appear on the signature
pages thereto, pursuant to which the Company will issue 60,600,000 shares of
Common Stock in exchange for all of its issued and outstanding shares of Series
J-1 Preferred Stock.
13
4.13. Final Credit Approval. Each of the Investors and each affiliate of
the investors shall have received final credit approval to enter into this
Agreement and the documents contemplated by this Agreement (including the Credit
Agreement and the Eighth Amendment) and perform each of its obligations under
each such agreement.
4.14. Company Indebtedness. The Company shall have (a) no indebtedness
other than (1) $41 million of loans under the Credit Agreement, (2) $700,000 of
capital lease obligations, and (3) $2,080,000 of indebtedness outstanding under
the Promissory Note of the Company to SDS Merchant Fund, L.P., dated March 14,
2002, and (b) only one class of capital stock outstanding, which shall be the
Common Stock.
4.15. Additional Fundraising. The receipt by the Company of at least $3.3
million of net proceeds from the issuance of additional Common Stock and
Warrants of the same class and series as, and otherwise identical to, the Common
Stock and Warrants issued hereunder on terms satisfactory to the Investors (the
"Required Equity"). The Company shall not utilize the proceeds of the Required
Equity to fund the purchase of securities held by Nortel (including the Nortel
Note and the Company's Series H Preferred Stock).
4.16. Waivers by Holders of Existing Warrants. The Company shall have
obtained waivers from holders of its warrants outstanding immediately prior to
the Closing Date (the "Pre-Existing Warrants") as required to provide that the
number of shares of Common Stock acquirable under the terms thereof shall not
increase as a result of the transactions contemplated by this Agreement, the
Nortel Note Exchange Agreement, the SDS Note Exchange Agreement, the Series H
Share Exchange Agreement and the Series J Share Exchange Agreement.
4.17. Material Adverse Change, Suits and Defaults. There shall have
occurred no material adverse change in the business, assets, condition
(financial or otherwise), operations, performance, properties, prospects or
projections of the Company since the end of the most recently ended fiscal year
for which audited financial statements have been provided to the Investors or in
the facts and information as represented to date.
There shall exist no action, suit, investigation, litigation or proceeding
pending or threatened in any court or before any arbitrator or governmental
instrumentality that purports to materially and adversely affect the issuance of
the Common Stock or Warrants hereunder or that could reasonably be expected to
have a Material Adverse Effect.
There shall exist no default under the Transaction Documents or event that,
with notice and/or the passage of time, could become an event of default.
There shall exist no facts, events or circumstances which come to the
attention of any Investor, which, in its good faith determination, materially
adversely affect the business, assets, condition (financial or otherwise),
operations, performance, properties prospects and projections of the Company.
5. Indemnification.
14
5.1. Indemnification by the Company. Subject to the provisions of this
Article 5, the Company agrees to indemnify the Investors and their respective
officers, partners, employees, agents or representatives (collectively,
"Investor-indemnified parties") against and to hold each Investor-indemnified
party harmless from any and all damages, losses, liabilities and expenses
(including reasonable expenses of investigation and reasonable attorneys' fees
and expenses in connection with any action, claim, suit or proceeding)
(collectively, "Damages") incurred or suffered by any Investor-indemnified party
arising from or in connection with (a) any inaccuracy in any representation or
the breach of any warranty of the Company or any Subsidiary under a Transaction
Document, (b) the failure of the Company or any Subsidiary duly to perform or
observe any term, provision, covenant or agreement to be performed or observed
by the Company or any Subsidiary pursuant to this Agreement or the Warrants, (c)
the assertion by any person not a party to this Agreement of any claim against
an Investor-indemnified Party in connection with the matters or transactions
that are the subject of or contemplated by this Agreement or any of the other
Transaction Documents, or (d) the status of any Investor-indemnified Party as a
holder of equity interests in the Company or the existence or exercise of the
rights and powers of such Investor-indemnified Party relating thereto.
5.2. Indemnification Procedures.
(a) If the indemnified parties shall seek indemnification pursuant to this
Article 5, the indemnified parties shall give prompt notice to the Company (as
such, the "indemnifying party") of the assertion of any claim, or the
commencement of any action, suit or proceeding, in respect of which indemnity
may be sought hereunder and will give the indemnifying party such information
with respect thereto as the indemnifying party may reasonably request, but no
failure to give such notice shall relieve the indemnifying party of any
liability hereunder, except to the extent of actual prejudice or damages
suffered as a result thereof. The indemnifying party may, at its expense,
participate in or assume the defense of any such action, suit or proceeding
involving a third party with counsel reasonably acceptable to the indemnified
party. The indemnified party will have the right to employ its counsel in any
such action, but the fees and expenses of such counsel will be at the expense of
such indemnified party unless (i) the employment of counsel by the indemnified
party has been authorized in writing by the indemnifying party, (ii) named
parties include both the indemnified party and the indemnifying party, and such
counsel has advised the indemnified party that there may be legal defenses
available to it that are different from or in addition to those available to the
indemnifying party (in which case the indemnifying party will not have the right
to direct the defense of such action on behalf of the indemnified party) or
(iii) the indemnifying party has not in fact employed counsel to assume the
defense of such action within a reasonable time after receiving notice of the
commencement of the action, in each of which cases the reasonable fees and
expenses of counsel will be at the expense of the indemnifying party, and the
indemnifying party shall reimburse or pay such fees and expenses as they are
incurred. Whether or not the indemnifying party chooses to defend or prosecute
any claim involving a third party, all the parties hereto shall cooperate in the
defense or prosecution thereof and shall furnish such records, information and
testimony, and attend such conferences, discovery proceedings, hearings, trials
and appeals, as may be reasonably requested in connection therewith.
(b) The indemnifying party shall not be liable under this Article 5 for any
settlement effected without its consent of any claim, litigation or proceedings
15
by a third party in respect of which indemnity may be sought hereunder, unless
the indemnifying party refuses to acknowledge liability for indemnification
under this Section 5.2 and/or declines to defend the indemnified party in such
claim, litigation or proceeding.
6. Miscellaneous.
6.1. Survival of Representations and Warranties. Except as otherwise set
forth in this Section 6.1, the representations and warranties of the Company and
the Subsidiaries shall survive any investigation at any time made by or on
behalf of the parties hereto and consummation of the transactions contemplated
by this Agreement.
6.2. Exercise of Warrants. The Company shall use its reasonable best
efforts to cause by February 1, 2003, each holder of its Pre-Existing Warrants
to agree that, upon the request of the Company, such holder will agree to the
repricing of the exercise price of such securities to $0.001 per share of Common
Stock and that immediately following such repricing, such holder will exercise
such securities.
6.3. Successors. This Agreement shall bind and inure to the benefit of the
respective successors and permitted assigns of each of the parties under the
Stockholders Agreement and hereunder.
6.4. Governing Law. This Agreement shall be governed by and construed under
the laws of the State of New York, without regard to the principles of conflicts
of law thereof.
6.5. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
6.6. Interpretation. . The titles and subtitles used in this Agreement are
used for convenience only and are not to be considered in construing or
interpreting this Agreement. When used in this Agreement, the terms "include,"
"including," "includes" and other derivations of such word shall be deemed to be
followed by the phrase "without limitation."
6.7. Notices. All notices required or permitted hereunder shall be in
writing and shall be deemed effectively given: (a) upon personal delivery to the
party to be notified; (b) when sent by confirmed telex or facsimile if sent
during normal business hours of the recipient, if not, then on the next business
day; (c) 5 days after having been sent by registered or certified mail, return
receipt requested, postage prepaid; or (d) 1 day after deposit with a nationally
recognized overnight courier, specifying next day delivery, with written
verification of receipt. All communications shall be sent to the address as set
forth below or at such other address as such party may designate by 10 days
advance written notice to the other parties hereto:
(i) if to the Company, to:
FiberNet Telecom Group, Inc.
16
000 Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxx Xxxx & Xxxxxxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
(ii) if to Investors, to:
Deutsche Bank AG New York Branch
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxx Xxxxxxx
Telecopy: (000) 000-0000
Wachovia Investors, Inc.
000 X. Xxxxxxx Xx.
XX0 XX0000
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxx
Telecopy: (000) 000-0000
Bank One, N.A.
55 West Monroe, 17th floor
Mail Code XX0-0000
Xxxxxxx IL 60670-0502
IBM Credit Corporation
Xxxxx Xxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Manager, Special Handling
Nortel Networks Inc.
MS 991-15-A40
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxxxxx, Xxxxx 00000
Attention: Customer Finance
Telecopy: 000-000-0000
Toronto Dominion (Texas), Inc.
17
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn : Xxxx Xxxxx, Vice President
with a copy to:
Xxxxxx & Xxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxxx, Esq.
Facsimile: (000) 000-0000
6.8. Finder's Fee. Except as disclosed in the Schedule of Exceptions, each
party represents that it neither is nor will be obligated for any finders' fee
or commission in connection with this transaction. Each party agrees to
indemnify and to hold harmless from any liability for any commission or
compensation in the nature of a finders' fee (and the costs and expenses of
defending against such liability or asserted liability) for which such party or
any of its officers, partners, employees, or representatives is responsible,
each other party and such other party's officers, partners, employees or
representatives.
6.9. Expenses. Irrespective of whether the Closing is effected, the Company
shall pay all costs and expenses incurred by it, its affiliates and the
Investors with respect to the negotiation, execution, delivery and performance
of this Agreement, including the reasonable fees and expenses of Xxxxxx &
Xxxxxxx, counsel to the Investors.
6.10. Amendments and Waivers. Any term of this Agreement may be amended and
the observance of any term of this Agreement may be waived (either generally or
in a particular instance and either retroactively or prospectively), only with
the written consent of the Company and the holders of more than 75% of the
Common Stock (on a fully-diluted basis) issued or issuable hereunder. Any
amendment or waiver effected in accordance with this paragraph shall be binding
upon each holder of any Securities purchased under this Agreement at the time
outstanding (including Securities into which such Securities are convertible),
each future holder of all such Securities, and the Company. Notwithstanding the
foregoing, if in any particular instance a party's obligations or rights under
this Agreement are adversely affected thereby in a disproportionately adverse
manner from that in which other parties are affected by application of this
Section, the consent of such party shall also be required in such instance.
6.11. Severability. If one or more provisions of this Agreement are held to
be unenforceable under applicable law, such provision shall be excluded from
this Agreement and the balance of the Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
6.12. Aggregation of Stock. All shares of the Common Stock and all Warrants
held or acquired by affiliated entities or persons shall be aggregated together
for the purpose of determining the availability of any rights under this
Agreement.
18
6.13. Entire Agreement. This Agreement and the documents referred to herein
constitute the entire agreement among the parties and no party shall be liable
or bound to any other party in any manner by any warranties, representations, or
covenants except as specifically set forth herein or therein.
6.14. Publication. No party hereto shall use any other party's name or
refer to any other party directly or indirectly in any advertisement, news
release or professional or trade publication, or in any other manner, unless
otherwise required by law or with such party's prior written consent, or
pursuant to this Section 6.14. None of the parties to any of the Transaction
Documents shall issue any press release or other public statement relating to
this Agreement or the transactions contemplated hereby unless advised by counsel
that such disclosure is required by law and, in any case, without first giving
the other parties the opportunity to review and comment upon such statement
unless not reasonably practicable under the circumstances.
6.15. Confidentiality. Each party hereto agrees that, except with the prior
written permission of the other parties, or as permitted by Section 6.14 of this
Agreement, it shall at all times keep confidential and not divulge, furnish or
make accessible to anyone any confidential information, knowledge or data
concerning or relating to the business or financial affairs of the other parties
to which such party has been or shall become privy by reason of this Agreement,
discussions or negotiations relating to this Agreement, the performance of its
obligations hereunder or the ownership of Common Stock and Warrants purchased
hereunder. In addition, the Company agrees it will not disclose, and will not
include in any public announcement, the name of the Investors, unless expressly
agreed to by the Investors or unless and until such disclosure is required by
law or applicable regulation, and then only to the extent of such requirement.
The provisions of this Section 6.15 shall be in addition to, and not in
substitution for, the provisions of any separate nondisclosure agreement
executed by the parties hereto with respect to the transactions contemplated
hereby.
6.16. Exculpation Among Investors. Each Investor acknowledges that it is
not relying upon any person, firm or corporation, other than the Company and its
officers and directors, in making its investment or decision to invest in the
Company. Each Investor agrees that no Investor nor the respective controlling
persons, officers, directors, partners, agents, or employees of any Investor
shall be liable to any other Investor for any action heretofore or hereafter
taken or omitted to be taken by any of them in connection with the purchase of
the Securities.
6.17. Register of Securities. The Company or its duly appointed agent shall
maintain a separate register for the shares of Common Stock in which it shall
register the issue and sale of all such shares. All transfers of securities
shall be recorded on the register. The Company shall be entitled to regard the
registered holder of its securities as the holder of such securities so
registered for all purposes until the Company or its agent is required to record
a transfer of such securities on its register. The Company or its agent shall be
required to record a transfer when it receives the security to be transferred
duly and properly endorsed by the registered holder thereof or by its attorney
duly authorized in writing.
19
6.18. Replacement of Certificates. Upon receipt of a lost instrument
certificate with indemnity provisions reasonably satisfactory to the Company of
the loss, theft, destruction or mutilation of any certificate representing any
Company securities, the Company shall issue a new certificate representing such
securities in lieu of such lost, stolen, destroyed or mutilated certificate.
6.19. Interpretation of "Knowledge." Statements herein that are qualified
as to the "knowledge of the Company" or similar statements shall mean the actual
knowledge of the executive officers of the Company, after reasonable inquiry;
provided that any statement qualified as to the "actual knowledge" of the
Company shall mean the actual knowledge of the executive officers of the
Company, without inquiry.
20
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
FIBERNET TELECOM GROUP, INC.
By: /s/ Xxxxxxx X. Xxxx
------------------------------
Name: Xxxxxxx X. Xxxx
Title: President and Chief
Executive Officer
DEUTSCHE BANK AG NEW YORK BRANCH
By: /s/ Xxxxx X. Xxxx
------------------------------
Name: Xxxxx X. Xxxx
Title: Director
By: /s/ Xxxxxxxxx Xxxxxxx
------------------------------
Name: Xxxxxxxxx Xxxxxxx
Title: Vice President
WACHOVIA INVESTORS, INC.
By: /s/ Xxxxxxx Xxxx
------------------------------
Name: Xxxxxxx Xxxx
Title: Authorized Officer
BANK ONE, NA
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Assistant Vice President
IBM CREDIT CORPORATION
By: /s/ Xxx Xxxxxx
------------------------------
Name: Xxx Xxxxxx
Title: Director, Credit Operations
NORTEL NETWORKS INC.
By: /s/ Xxxxx Xxxxxx
------------------------------
Name: Xxxxx Xxxxxx
Title: Director, Customer Finance
TORONTO DOMINION (TEXAS), INC.
By: /s/ Xxxx Xxxxx
------------------------------
Name: Xxxx Xxxxx
Title: Vice President
