EXHIBIT 10.23
AMENDED AND RESTATED NOTE PURCHASE AGREEMENT
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This AMENDED AND RESTATED NOTE PURCHASE AGREEMENT (the "Agreement") is made
among NETWORK ACCESS SOLUTIONS CORPORATION, a Delaware corporation (the
"Company") and those investors set forth on Exhibit A hereto (each a "Purchaser"
and collectively, the "Purchasers"), dated as of March 31, 1999 and amended as
of May 11, 1999. In consideration of the recitals and the mutual covenants
contained herein, the parties hereby agree as follows:
1. General. This Agreement sets forth the terms upon which the Purchasers
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will purchase convertible promissory notes in the form attached hereto as
Exhibit B (the "Notes") from the Company, providing for loans to the Company in
an aggregate amount of $10,000,000.
2. Purchase Price and Payment.
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(a) The Notes. The Purchasers hereby purchase the Notes in the
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aggregate principal amount of $5,000,000 and in accordance with the allocation
set forth on Exhibit A.
(b) Subsequent Investment. Subject to the truth and accuracy of the
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representations and warranties set forth herein and if there are no Events
of Default (as defined in the Notes), the Purchasers hereby agree that they
will invest in the Company (in accordance with the allocation set forth on
Exhibit A) an additional $5,000,000 no later than May 17, 1999 in
consideration for the issuance of Notes in the form attached hereto as
Exhibit B.
3. Representations and Warranties of the Company. The Company hereby
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represents and warrants to the Purchasers that: (i) the Company is a corporation
duly organized and validly existing under the laws of the State of Delaware with
full corporate power and authority to execute, deliver and perform this
Agreement and the Notes; (ii) other than the authorization and issuance of the
shares of capital stock upon the conversion of the Notes, this Agreement has
been duly authorized by all necessary corporate action of the Company and
constitute legal, valid and binding obligations of the Company enforceable
against it in accordance with its terms; (iii) neither the execution and
delivery of this Agreement and the Notes nor the completion of the transactions
contemplated hereby or thereby will contravene or violate (a) any provision of
the organizational documents of the Company, or (b) any law or order of any
court or governmental agency applicable to the Company; and (iv) any consents,
approvals, authorizations or filings required on the part of the Company in
connection with the transactions contemplated hereby have been obtained.
4. Representations and Warranties of the Purchasers. Each of the Purchasers
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severally and not jointly represents and warrants to, and agrees with, the
Company that: (i) this Agreement constitutes its legal, valid and binding
obligation enforceable against it in accordance with its terms; (ii) the Note
and any shares of the Company's capital stock (such shares, the "New Shares") to
be acquired by the Purchasers in connection with the transactions contemplated
hereby to be acquired by it will be acquired for investment for its own account,
not as a nominee or agent, and not with a view to the distribution thereof; and
(iii) such Purchaser acknowledges that the Note and the New Shares have not been
registered under the Act.
5. Reservation of Shares. The Company agrees to use its best efforts to
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reserve an adequate number of shares of its capital stock for the conversion of
the Notes, whether or not such securities are currently authorized.
6. Miscellaneous. This Agreement amends and restates in its entirety that
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certain Note Purchase Agreement dated as of March 31, 1999 between the Company
and the Purchasers. The representations, warranties and covenants of the Company
and the Purchasers contained herein or made pursuant to this Agreement shall
survive the execution and delivery hereof and delivery of the Notes. The terms
and conditions of this Agreement shall inure to the benefit of and be binding
upon the respective successors and assigns of the parties. Nothing in this
Agreement, express or implied, is intended to confer upon any party other than
the parties hereto or their respective successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement. This Agreement shall be governed
by and construed under the internal laws of the State of Delaware as applied to
agreements entered into and to be performed entirely within the State of
Delaware. This Agreement, together with the Notes, constitutes the entire
agreement of the parties with respect to its subject matter. 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 Purchasers.
[signatures on next page]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first written above.
NETWORK ACCESS SOLUTIONS CORPORATION
By: /s/Xxxxxxxx X. Xxxx
________________________________
Its: CEO
________________________________
SPECTRUM EQUITY INVESTORS II, L.P.
By: Spectrum Equity Associates II, L.P.
Its: General Partner
By: /s/ Xxxxx X. Xxxxxxxxx
_________________________________
Its: Managing General Partner
_________________________________
FBR TECHNOLOGY VENTURE PARTNERS L.P.
By: FBR Venture Capital Managers, Inc.
Its: General Partner
By: /s/ Xxxx Xxxxxxxx
_________________________________
Its: Managing Director
_________________________________
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EXHIBIT A
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Initial Subsequent
Purchaser Investment Investment
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Spectrum Equity Investors II, L.P. $4,250,000 $4,250,000
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FBR Technology Venture Partners L.P. $ 750,000 $ 750,000
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EXHIBIT B
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Form of Convertible Promissory Note
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CONVERTIBLE NOTE
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$[_________] May ___, 1999
FOR VALUE RECEIVED, the undersigned, Network Access Solutions
Corporation, a Delaware corporation organized and existing under
the laws of the State of Delaware (the "Company"), hereby promises to pay to the
order of [______________________] (hereinafter, the "Holder"), at
[________________________], or at such other place or to such other party as the
holder of this Note may from time to time designate in writing, the principal
sum of [__________________ ($______________)] with simple interest on the
principal balance outstanding from time to time at the rate of interest (the
"Interest Rate") of 8% per annum. All payments hereunder shall be made in
lawful currency of the United States and in immediately available funds.
Interest shall be calculated on the basis of the actual number of days elapsed
over a 360-day year. This Convertible Note (the "Note") is being issued
pursuant to the terms and conditions of that certain Amended and Restated Note
Purchase Agreement of even date herewith (the "Purchase Agreement").
1. Payments. Unless the entire principal and interest amount of this
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Note has been converted pursuant to the terms set forth in Section 4 below, the
entire unpaid amount of this Note, together with all accrued, but unpaid,
interest and all other fees, costs, and charges, if any, shall be due and
payable on May ___, 2004 (the "Maturity Date"). If any amounts due under this
Note are due on a day which is not a business day, then such amounts shall be
due on the next following day which is a regular business day.
2. Application of Payments. All payments on account of the
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indebtedness evidenced by this Note prior to the Maturity Date shall be applied
first, to any and all costs, expenses, or charges then owed the Holder by the
Company pursuant to this Note, second, to accrued and unpaid interest hereunder,
and third, to the unpaid principal balance hereof.
3. Costs of Collections. If all sums due under this Note are not
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paid, in full, when due, the Company agrees to pay, in addition to the sums due
hereunder, all reasonable costs of collection (including reasonable attorneys'
fees and expenses), whether or not suit is brought.
4. Conversion.
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(a) The then-outstanding principal and interest amount (the
"Conversion Amount") hereof may be converted into shares of the Company's Common
Stock upon the initial public offering of the Company's Common Stock pursuant to
a registration statement declared effective by the Securities and Exchange
Commission pursuant to the Securities Act of 1933, as amended (the "Act"),
having an aggregate offering price to the public of not less than $25,000,000,
based on a pre-money valuation of at least $200,000,000. Upon such conversion,
the Conversion Amount shall be converted into such number of shares of the
Company's Common Stock as shall be equal to the Conversion Amount divided by the
initial per share price to the public specified in the final prospectus with
respect to the offering. Before the Holder shall be entitled to convert this
Note pursuant to this Section, the Holder shall surrender this Note
duly endorsed, at the office of the Company. The Company shall, promptly
thereafter, issue and deliver to Holder at the address specified by Holder, or
to the nominee or nominees of Holder, a certificate or certificates for the
shares of Common Stock to which Holder shall be entitled.
(b) No fractional shares of Common Stock shall be issued upon
conversion of this Note and the number of shares of Common Stock to be issued
shall be rounded up to the nearest whole share.
5. Change of Control. All outstanding principal and interest amounts
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due hereunder shall become immediately due and payable without notice or demand
upon the occurrence of a Change of Control (as defined below). A "Change of
Control" shall mean a sale or transfer of all or substantially all of the
property or assets of the Company, the consolidation or merger of the Company
with or into one or more companies or another similar transaction in which the
Company shall not be the surviving entity.
6. Events of Default. This Note shall, at Holder's option, become
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immediately due and payable without notice or demand upon the occurrence of one
or more of any of the following events (herein, "Events of Default"): (a) the
Company shall fail to pay as and when due the principal and interest due on this
Note or any portion thereof, and such failure shall continue for a period of ten
days; (b) the Company shall be dissolved, make any assignment for the benefit of
creditors or commit any act of bankruptcy; (c) there shall be filed or brought
against the Company and either (i) adjudicated adversely to it, or (ii)
consented to or acquiesced in by it in any manner, or (iii) not dismissed within
90 days, any petition in bankruptcy or any insolvency, receivership,
trusteeship, reorganization, debt adjustment, arrangement, composition,
extension, debtor relief, relief, dissolution, liquidation, winding up or any
similar proceeding, or any proceeding in which its ability to discharge its
obligations as they become due, or its ability or right to continue in business
and in possession and management of its property as a going concern under the
control of its stockholders, is in issue; or (d) final judgment for the payment
of money shall be rendered against the Company and any judgment shall not be
discharged or appealed within 90 days with a stay of execution. Upon the
occurrence of any Event of Default, and at any time thereafter, Holder shall
have all of the rights and remedies provided herein and under applicable law.
7. Waivers. All parties to the transaction evidenced by this Note
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hereby jointly and severally waive all exemption rights, whether under any state
constitution, homestead exemption or otherwise, and also severally waive demand,
presentment for payment, notice of dishonor, valuation and appraisement and
expressly agree that the payment dates hereof may be extended from time to time
without in any way affecting the liability of the Company, any guarantor, surety
or endorser.
8. Assignment. This Note and the obligations hereunder may not be
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assigned by either party hereto without the consent of the other party. This
Note shall be binding upon the Company and its successors and assigns and shall
inure to the benefit of the Holder and its successors and assigns.
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9. Miscellaneous. This Note shall be governed by, and construed in
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accordance with, the laws of the State of Delaware. In the event any one or
more of the provisions contained in this Note shall, for any reason, be held to
be invalid, illegal, or unenforceable in any respect, such invalidity,
illegality, or unenforceability shall not affect any other provision of this
Note and this Note shall be construed as if such invalid, illegal, or
unenforceable provision had never been contained herein. This Note may not be
changed orally, but only by an agreement in writing signed by the parties
against whom enforcement of any waiver, change, modification or discharge is
sought.
IN WITNESS WHEREOF, the Company has duly executed this Note as of the
day and year first above written.
ATTEST: COMPANY:
NETWORK ACCESS SOLUTIONS
CORPORATION
_________________________ By:________________________(SEAL)
Name:______________________
Title:_____________________
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