Exhibit I
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated as of January 10, 2003 (this "Agreement"),
by and among Bank One, N.A., a national banking association (the "Seller"), and
the purchasers listed on Exhibit A attached hereto (each, a "Purchaser" and
collectively, the "Purchasers").
The parties hereto agree as follows:
ARTICLE I.
Purchase and Sale of Stock
Section 1.1. Purchase and Sale of Stock. Upon the following terms and
conditions, and in consideration of and in express reliance upon such terms and
conditions and the representations, warranties and covenants of this Agreement,
the Seller shall sell to the Purchasers, and the Purchasers shall purchase from
the Seller, an aggregate of 90,715,938 shares of common stock, par value $.001
per share (the "Shares") at a price per share of $.03307, of FiberNet Telecom
Group, Inc., a Delaware corporation (the "Company"), in the amounts and at the
aggregate cash purchase prices (each a "Purchase Price") set forth opposite
their respective names on Schedule 1.1 hereto. The aggregate Purchase Price is
$3,000,000.
Section 1.2. Closing. The closing (the "Closing") of the purchase and sale
of the Shares to be acquired by the Purchasers from the Seller under this
Agreement shall take place at the offices of Jenkens & Xxxxxxxxx Xxxxxx Xxxxxx
LLP, The Chrysler Building, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at
10:00 a.m., New York time (i) on or before January 10, 2003, provided, that all
of the conditions set forth in Article IV hereof shall have been fulfilled or
waived in accordance herewith, or (ii) at such other time and place or on such
date as the Purchasers and the Seller may agree upon (such date on which the
Closing occurs, the "Closing Date"). At the Closing, the Seller shall deliver or
cause to be delivered to each Purchaser all certificates representing the number
of Shares that such Purchaser is purchasing pursuant to the terms hereof,
together with such stock powers duly endorsed in blank as the Purchasers may
request, and all other appropriate instruments of transfer. At the Closing, each
Purchaser shall deliver its Purchase Price by wire transfer to an account
designated by the Seller.
ARTICLE II.
Representations and Warranties
Section 2.1. Representations and Warranties of the Seller. The Seller
hereby represents and warrants to the Purchasers, as of the date hereof and the
Closing Date, as follows:
(a) Organization, Good Standing and Power. The Seller is a national banking
association duly incorporated, validly existing and in good standing under the
laws of the United States of America and has the requisite power to own, lease
and operate its properties and assets and to conduct its business as it is now
being conducted. The Seller is duly qualified as a foreign corporation to do
business and is in good standing in every jurisdiction in which the nature of
the business conducted or property owned by it makes such qualification
necessary except for any
jurisdictions (alone or in the aggregate) in which the failure to be so
qualified will not have a Material Adverse Effect. For the purposes of this
Agreement, "Material Adverse Effect" means any condition, circumstance, or
situation that would prohibit or hinder the Seller from executing this Agreement
and/or performing any of its obligations hereunder or thereunder in any material
respect.
(b) Authorization; Enforcement. The Seller has the requisite power and
authority to enter into and perform this Agreement and to sell the Shares in
accordance with the terms hereof. The execution, delivery and performance of
this Agreement by the Seller and the consummation by it of the transactions
contemplated hereby have been duly and validly authorized by all necessary
corporate action, and no further consent or authorization is required for the
Seller to effect the transactions contemplated by this Agreement. When executed
and delivered by the Seller, this Agreement shall constitute a valid and binding
obligation of the Seller, enforceable against the Seller in accordance with its
terms, except as such enforceability may be limited by applicable bankruptcy,
reorganization, moratorium, liquidation, conservatorship, receivership or
similar laws relating to, or affecting generally the enforcement of, creditor's
rights and remedies or by other equitable principles of general application.
(c) No Conflicts. The execution, delivery and performance of this Agreement
by the Seller and the consummation by the Seller of the transactions
contemplated hereby do not and will not (i) violate any provision of the
Seller's Articles of Association or Bylaws, each as amended to date, (ii)
conflict with, or constitute a default (or an event which with notice or lapse
of time or both would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, any agreement,
mortgage, deed of trust, indenture, note, bond, license, lease agreement,
instrument or obligation to which the Seller is a party or by which any of the
Seller's properties or assets are bound, or (iii) result in a violation of any
federal, state, local or foreign statute, rule, regulation, order, judgment or
decree (including federal and state securities laws and regulations) applicable
to the Seller or by which any property or asset of the Seller is bound or
affected, in all cases, other than violations pursuant to clauses (i) or (iii)
(with respect to federal and state securities laws) above, except, for such
conflicts, defaults, terminations, amendments, acceleration, cancellations and
violations as would not, individually or in the aggregate, have a Material
Adverse Effect. The Seller is not required under federal, state, foreign or
local law, rule or regulation to obtain any consent, authorization or order of,
or make any filing or registration with, any court or governmental agency in
order for it to execute, deliver or perform any of its obligations under this
Agreement or issue and sell the Shares in accordance with the terms hereof.
(d) Title to Shares. The Seller has the right to transfer good, valid and
marketable title in and to all of the Shares, free and clear of any mortgages,
pledges, charges, liens, security interests or other encumbrances.
(e) Certain Fees. The Seller has not employed any broker or finder or
incurred any liability for any brokerage, investment banking, commission,
finders', structuring or financial advisory fees or other similar fees in
connection with this Agreement or the transactions contemplated hereby.
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(f) Offering. No form of general solicitation or general advertising (as
defined in Regulation D of the Securities Act of 1933, as amended) was used by
the Seller or any of its respective representatives in connection with the offer
and sale of the Shares 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 other meeting whose
attendees have been invited by any general solicitation or general advertising.
Section 2.2. Representations and Warranties of the Purchasers. Each
Purchaser hereby represents and warrants to the Seller with respect solely to
itself and not with respect to any other Purchaser, as of the date hereof and as
of the Closing Date, as follows:
(a) Organization and Standing of the Purchasers. If the Purchaser is an
entity, such Purchaser is a corporation, limited liability company or
partnership duly incorporated or organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation or
organization.
(b) Authorization and Power. The Purchaser has the requisite power and
authority to enter into and perform this Agreement and to purchase the Shares
being sold to it hereunder. The execution, delivery and performance of this
Agreement by the Purchaser and the consummation by it of the transactions
contemplated hereby have been duly authorized by all necessary corporate (or
other organizational) action, and no further consent or authorization is
required for such Purchaser to effect the transactions contemplated by this
Agreement. When executed and delivered by the Purchaser, this Agreement shall
constitute valid and binding obligations of each Purchaser enforceable against
such Purchaser in accordance with their terms, except as such enforceability may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium,
liquidation, conservatorship, receivership or similar laws relating to, or
affecting generally the enforcement of, creditor's rights and remedies or by
other equitable principles of general application.
(c) No Conflict. The execution, delivery and performance of this Agreement
by the Purchaser and the consummation by the Purchaser of the transactions
contemplated hereby do not and will not (i) violate any provision of the
Purchaser's charter or organizational documents, (ii) conflict with, or
constitute a default (or an event which with notice or lapse of time or both
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, any agreement, mortgage, deed of
trust, indenture, note, bond, license, lease agreement, instrument or obligation
to which the Purchaser is a party or by which the Purchaser's properties or
assets are bound, or (iii) result in a violation of any federal, state, local or
foreign statute, rule, regulation, order, judgment or decree (including federal
and state securities laws and regulations) applicable to the Purchaser or by
which any property or asset of the Purchaser is bound or affected, in all cases,
other than violations pursuant to clauses (i) or (iii) (with respect to federal
and state securities laws) above, except, for such conflicts, defaults,
terminations, amendments, acceleration, cancellations and violations as would
not, individually or in the aggregate, materially and adversely affect
Purchaser's ability to perform its obligations under this Agreement.
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(d) Acquisition for Investment. The Purchaser is purchasing the Shares
solely for its own account for the purpose of investment and not with a view to
or for sale in connection with any distribution. The Purchaser does not have a
present intention to sell any of the Shares, nor a present arrangement (whether
or not legally binding) or intention to effect any distribution of any of the
Shares, to or through any person or entity.
(e) Assessment of Risks. The Purchaser acknowledges that it (i) has such
knowledge and experience in financial and business matters that such Purchaser
is capable of evaluating the merits and risks of such Purchaser's investment in
the Company (by virtue of its purchase of Shares hereunder), (ii) is able to
bear the financial risks associated with an investment in the Shares and (iii)
has been given full access to such records of the Company and to the officers of
the Company as it has deemed necessary or appropriate to conduct its due
diligence investigation with respect to the Shares.
(f) No General Solicitation. The Purchaser acknowledges that the Shares
were not offered to such Purchaser by means of any form of general or public
solicitation or general advertising, or publicly disseminated advertisements or
sales literature, including (i) any advertisement, article, notice or other
communication published in any newspaper, magazine, or similar media or
broadcast over television or radio or (ii) any seminar or meeting to which such
Purchaser was invited by any of the foregoing means of communications.
(g) Accredited Investor. The Purchaser is an "accredited investor" (as
defined in Rule 501 of Regulation D under the Securities Act of 1933, as
amended).
(h) Legend. The Purchaser hereby acknowledges and agrees that the
certificates representing the Shares may contain the following, or a
substantially similar, legend, which legend shall be removed only upon receipt
by the Company of an opinion of its counsel, which opinion shall be satisfactory
to the Company, that such legend may be so removed:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE
(THE "SECURITIES") HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT") OR ANY STATE SECURITIES LAWS AND
MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED
OF UNLESS REGISTERED UNDER THE SECURITIES ACT AND
UNDER APPLICABLE STATE SECURITIES LAWS OR FIBERNET
TELECOM GROUP, INC. SHALL HAVE RECEIVED AN OPINION
OF ITS COUNSEL THAT REGISTRATION OF SUCH
SECURITIES UNDER THE SECURITIES ACT AND UNDER THE
PROVISIONS OF APPLICABLE STATE SECURITIES LAWS IS
NOT REQUIRED.
(i) Certain Fees. The Purchaser has not employed any broker or finder or
incurred any liability for any brokerage, investment banking, commission,
finders', structuring or financial
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advisory fees or other similar fees in connection with this Agreement or the
transactions contemplated hereby.
(j) Reliance on Representations. The Seller is hereby expressly permitted
to rely on the Purchaser's representations and warranties set forth in Sections
2.2(d) through (h), inclusive.
ARTICLE III.
Covenants of the Parties
Section 3.1. Covenants. The parties hereto hereby covenant with each other
as follows, which covenants are for the benefit of such parties and their
respective permitted assigns:
(a) Further Assurances. From and after the Closing Date, upon the request
of any Purchaser or the Seller, the Seller and each Purchaser shall execute and
deliver such instruments, documents and other writings as may be reasonably
necessary or desirable to confirm and carry out and to effectuate fully the
intent and purposes of this Agreement.
(b) Commercially Reasonable Efforts. Each party hereto will use
commercially reasonable efforts to take, or cause to be taken, all action, and
to do, or cause to be done, all things necessary, proper or advisable,
consistent with applicable law, to consummate and make effective in the most
expeditious manner practicable the transactions contemplated hereby, including
without limitation, making all regulatory and other filings required by
applicable law as promptly as practicable after the date hereof.
ARTICLE IV.
Conditions
Section 4.1. Conditions Precedent to the Obligation of the Seller to Close
and to Sell the Shares. The obligation hereunder of the Seller to close and sell
the Shares to the Purchasers at the Closing is subject to the satisfaction or
waiver, at or before the Closing of the conditions set forth below:
(a) Accuracy of the Purchasers' Representations and Warranties. The
representations and warranties of each Purchaser shall be true and correct in
all material respects as of the date when made and as of the Closing Date as
though made at that time, except for representations and warranties that are
expressly made as of a particular date, which shall be true and correct in all
material respects as of such date.
(b) Performance by the Purchasers. Each Purchaser shall have performed,
satisfied and complied in all material respects with all covenants, agreements
and conditions required by this Agreement to be performed, satisfied or complied
with by the Purchasers at or prior to the Closing.
(c) No Injunction, Statute or Rule. No statute, rule, regulation, executive
order, decree, ruling or injunction shall have been enacted, entered,
promulgated or endorsed by any court or
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governmental authority of competent jurisdiction which prohibits the
consummation of any of the transactions contemplated by this Agreement.
(d) Delivery of Purchase Price. The Purchase Price for the Shares shall
have been delivered to the Seller.
(e) Agreement, Limited Waiver and Ninth Amendment. The Agreement, Limited
Waiver and Ninth Amendment among the Company, Devnet L.L.C., and the lenders
under the Company's senior credit facility shall have been executed and
delivered to the Seller.
The conditions set forth in this Section 4.1 are for the Seller's sole benefit
and may be waived only by the Seller at any time in its sole discretion.
Section 4.2. Conditions Precedent to the Obligation of the Purchasers to
Close and to Purchase the Shares. The obligation hereunder of the Purchasers to
purchase the Shares and to consummate the transactions contemplated by this
Agreement is subject to the satisfaction or waiver, at or before the Closing, of
each of the conditions set forth below:
(a) Accuracy of the Seller's Representations and Warranties. Each of the
representations and warranties of the Seller in this Agreement shall be true and
correct in all material respects as of the Closing Date, except for
representations and warranties that speak as of a particular date, which shall
be true and correct in all material respects as of such date.
(b) Performance by the Seller. The Seller shall have performed, satisfied
and complied in all material respects with all covenants, agreements and
conditions required by this Agreement to be performed, satisfied or complied
with by the Seller at or prior to the Closing.
(c) No Injunction, Statute or Rule. No statute, rule, regulation, executive
order, decree, ruling or injunction shall have been enacted, entered,
promulgated or endorsed by any court or governmental authority of competent
jurisdiction which prohibits the consummation of any of the transactions
contemplated by this Agreement.
(d) Certificates. The Seller shall have delivered to the Purchasers
certificates representing the Shares being acquired by the Purchasers at the
Closing together with such stock powers duly endorsed in blank as the Purchasers
may request.
(e) Opinion of Counsel. At the Closing, the Purchaser shall have received
an opinion of counsel to the Seller, dated the date of the Closing, in the form
of Exhibit B hereto.
(f) Common Stock Purchase Agreement. The transactions contemplated by the
Common Stock Purchase Agreement by and among the Company and the Purchasers
shall have been consummated.
The conditions set forth in this Section 4.2 are for each Purchaser's sole
benefit and may be waived only by a Purchasers (only with respect to such
Purchaser) at any time in its sole discretion.
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ARTICLE V.
Miscellaneous
Section 5.1. Fees and Expenses. Each party hereto shall pay the fees and
expenses of its advisors, counsel, accountants and other experts, if any, and
all other expenses, incurred by such party incident to the negotiation,
preparation, execution, delivery and performance of this Agreement and the
transactions contemplated hereby.
Section 5.2. Entire Agreement; Amendment. This Agreement contains the
entire understanding and agreement (written or oral) of the parties hereto with
respect to the subject matter hereof and, except as specifically set forth
herein, neither the Seller nor any Purchaser make any representation, warranty,
covenant or undertaking with respect to such matters, and they supersede all
prior understandings and agreements with respect to said subject matter, all of
which are merged herein. No provision of this Agreement may be waived or amended
other than by a written instrument signed by each party hereto. Any amendment or
waiver effected in accordance with this Section 5.2 shall be binding upon each
such party and its permitted assigns.
Section 5.3. Notices. Any notice, demand, request, waiver or other
communication required or permitted to be given hereunder shall be in writing
and shall be effective (a) upon hand delivery by telecopy or facsimile at the
address or number designated below (if delivered on a business day during normal
business hours where such notice is to be received), or the first business day
following such delivery (if delivered other than on a business day during normal
business hours where such notice is to be received) or (b) on the second
business day following the date of mailing by express courier service, fully
prepaid, addressed to such address, or upon actual receipt of such mailing,
whichever shall first occur. The addresses for such communications shall be:
If to the Seller: Bank One, N.A.
Bank Xxx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxx
Fax No.: (000) 000-0000
If to any Purchaser: At the address of such Purchaser set forth on
Exhibit A attached hereto.
Any party hereto may from time to time change its address for notices by giving
written notice of such changed address to the other party hereto.
Section 5.4. Waivers. No waiver by either party of any default with respect
to any provision, condition or requirement of this Agreement shall be deemed to
be a continuing waiver in the future or a waiver of any other provision,
condition or requirement hereof, nor shall any delay or omission of any party to
exercise any right hereunder in any manner impair the exercise of any such right
accruing to it thereafter.
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Section 5.5. Headings. The article, section and subsection headings in this
Agreement are for convenience only and shall not constitute a part of this
Agreement for any other purpose and shall not be deemed to limit or affect any
of the provisions hereof.
Section 5.6. Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties and their successors and assigns.
Neither party hereto may assign its rights or obligations under this Agreement
(by operation of law or otherwise) without the prior written consent of each
other party hereto, and any attempted assignment without such consent shall be
void ab initio.
Section 5.7. No Third Party Beneficiaries. Except as provided in Section
2.2(j) hereof, this Agreement is intended for the benefit of the parties hereto
and their respective permitted successors and assigns and is not for the benefit
of, nor may any provision hereof be enforced by, any other person or entity.
Section 5.8. Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York, without
giving effect to the choice of law provisions thereof. This Agreement shall not
be interpreted or construed with any presumption against the party causing this
Agreement to be drafted.
Section 5.9. Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and shall become effective when counterparts have been signed by each
party and delivered to the other parties hereto, it being understood that all
parties need not sign the same counterpart.
Section 5.10. Severability. The provisions of this Agreement are severable
and, in the event that any court of competent jurisdiction shall determine that
any one or more of the provisions or part of the provisions contained in this
Agreement 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 or part of a provision of this Agreement and this Agreement
shall be reformed and construed as if such invalid or illegal or unenforceable
provision, or part of such provision, had never been contained herein, so that
such provisions would be valid, legal and enforceable to the maximum extent
possible.
Section 5.11. Waiver of Jury Trial. EACH PARTY HERETO HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT TO A TRIAL BY JURY OF ANY CLAIM
OR CAUSE OF ACTION BASED UPON, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR
THE TRANSACTIONS CONTEMPLATED HEREBY, IN ANY ACTION, PROCEEDING OR LITIGATION OF
ANY TYPE BROUGHT BY ANY SUCH PARTY AGAINST ANY OTHER PARTY HERETO, WHETHER WITH
RESPECT TO CONTRACT CLAIMS, TORT CLAIMS OR OTHERWISE. EACH PARTY HERETO HEREBY
AGREES THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL
WITHOUT A JURY. THE AGREEMENT OF EACH PARTY HERETO TO THIS PROVISION IS A
MATERIAL INDUCEMENT FOR EACH OTHER PARTY HERETO TO ENTER INTO THIS AGREEMENT.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the date first above
written.
BANK ONE, N.A.
By:___________________________________
Name:
Title:
PURCHASERS:
________________________________
By:___________________________________
Name:
Title:
________________________________
By:___________________________________
Name:
Title:
