Exhibit H
Warrant Agreement Amendment
No. 2
This Warrant Agreement Amendment No. 2 (this "Amendment"), dated as of
January 10, 2003, is among FiberNet Telecom Group, Inc., a Delaware corporation
("FiberNet"), Bank One, N.A. ("Bank One"), Nortel Networks Inc. ("Nortel") and
Toronto Dominion (Texas), Inc. ("TD").
Recitals
Whereas, pursuant to a Purchase Agreement dated October 30, 2002
("October Purchase Agreement"), among FiberNet, Bank One, Nortel, TD and
Deutsche Bank AG New York Branch ("Deutsche Bank"), IBM Credit Corporation
("IBM") and Wachovia Investors, Inc. ("Wachovia" and together with Deutsche Bank
and IBM, the "Continuing Bank Lenders"), Bank One, Nortel and TD purchased from
FiberNet, and FiberNet sold to Bank One, Nortel and TD, upon the terms and
subject to the conditions set forth therein, shares of FiberNet's Common Stock
(the "Common Stock") and immediately exercisable warrants (the "October
Warrants") to purchase an aggregate of 41,904,762 shares of Common Stock;
Whereas, pursuant to a Purchase Agreement dated November 11, 2002
("November Purchase Agreement"), among FiberNet, Nortel, Bank One, TD and each
Continuing Bank Lender, Bank One, Nortel and TD purchased from FiberNet, and
FiberNet sold to Bank One, Nortel and TD, upon the terms and subject to the
conditions set forth therein, shares of Common Stock and immediately exercisable
warrants (the "November Warrants" and together with the October Warrants, the
"$0.12 Warrants") to purchase an aggregate of 7,619,048 shares of Common Stock;
Whereas, on October 30, 2002, FiberNet executed and delivered to Bank
One, Nortel and TD a certificate (each, an "October Warrant Certificate")
entitled "Warrant to Purchase Shares of Common Stock of Fibernet Telecom Group,
Inc." evidencing the October Warrants;
Whereas, on November 11, 2002, FiberNet executed and delivered to Bank
One, Nortel and TD a certificate (each, a "November Warrant Certificate" and
together with the October Warrant Certificates, the "Warrant Certificates")
entitled "Warrant to Purchase Shares of Common Stock of Fibernet Telecom Group,
Inc." evidencing the November Warrants;
Whereas, FiberNet has presented to each Bank Lender, including Bank
One, Nortel and TD, a copy of each agreement listed on Exhibit A hereto
(collectively, the "January Financing Agreements");
Whereas, as partial consideration for the transactions contemplated by
the January Financing Documents, FiberNet desires to lower the exercise price of
the $0.12 Warrants (the "Repriced Warrants") as provided for herein;
Agreement
Now Therefore, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Amendment.
a. Notwithstanding anything to the contrary in any Warrant
Certificate the Exercise Price of each Repriced Warrant shall be $0.001 per
share.
b. Promptly upon the delivery to FiberNet of either (i) each
Warrant Certificate held by Bank One, Nortel and TD or (ii) a certificate of
lost warrant certificate in the form attached hereto as Exhibit B, FiberNet will
issue to Bank One, Nortel and TD new certificates (the "New Warrant
Certificates") evidencing the adjustment in the Exercise Price of the Repriced
Warrants effected pursuant to this Amendment. Each New Warrant Certificate shall
contain the same terms as the Warrant Certificates surrendered, except as set
forth in the following table:
--------------------------------------------------------------------------------
Certificate Issued to Number of Exercise Price Per Share
Number Warrant Shares
--------------------------------------------------------------------------------
[__] Bank One 12,380,952 $0.001
--------------------------------------------------------------------------------
[__] Nortel 18,571,429 $0.001
--------------------------------------------------------------------------------
[__] TD 18,571,429 $0.001
--------------------------------------------------------------------------------
c. Promptly upon receipt of the New Warrant Certificates, but in no
event prior to the closing of the transactions contemplated by the January
Financing Agreements, Bank One, Nortel and TD each agree to exercise all
warrants held by such party that have an exercise price per share of $0.001.
2. Representations and Warranties. FiberNet represents and warrants to
each of Bank One, Nortel and TD as follows:
a. Authority. FiberNet has the requisite corporate power and
authority to execute and deliver this Amendment and to perform its obligations
hereunder. The execution, delivery and performance by FiberNet of this Amendment
and the transactions contemplated hereby have been duly approved by all
necessary corporate action of FiberNet and no other corporate proceedings on the
part of FiberNet are necessary to consummate such transactions.
b. Enforceability. This Amendment has been duly executed and
delivered by FiberNet. This Amendment is (i) the legal, valid and binding
obligation of FiberNet, enforceable against it in accordance with its terms, and
(ii) in full force and effect.
c. No Conflicts. Neither the execution and delivery of this
Amendment, nor the consummation of the transactions contemplated hereby, nor
performance of and compliance with the terms and provisions hereof by FiberNet
will, at the time of such performance, (i) violate or conflict with any
provision of its articles of incorporation or bylaws or other organizational or
governing documents of FiberNet, (ii) violate, contravene or conflict with any
law, regulation, order, writ, judgment, injunction,
2
decree or permit applicable to it, (iii) violate, contravene or conflict with
contractual provisions of, or cause an event of default under, any indenture,
loan agreement, mortgage, deed of trust, contract or other agreement or
instrument to which it is a party or by which it may be bound or (iv) require
FiberNet to obtain any consents, approvals, or authorizations or to make any
filings.
3. Reference to and Effect on Warrant Certificates.
a. Upon and after the effectiveness of this Amendment, each
reference in the Warrant Certificates to "this Warrant", "hereunder", "hereof"
or words of like import referring to the $0.12 Warrant, shall mean and be a
reference to the Warrant Certificate as modified hereby.
b. Except as specifically modified above, the Warrant Certificate
is and shall continue to be in full force and effect and is hereby in all
respects ratified and confirmed. This Amendment is made in modification of, but
not extinguishment of, the obligations set forth in the Warrant Certificates
and, except as specifically modified pursuant to the terms of this Amendment,
the terms and conditions of the Warrant Certificates remain in full force and
effect. Nothing herein shall limit in any way the rights and remedies of Bank
One, Nortel or TD under a Warrant Certificate.
4. Counterparts. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed to be an original and all
of which taken together shall constitute one and the same agreement. Delivery of
an executed counterpart of a signature page to this Amendment by facsimile shall
be effective as delivery of a manually executed counterpart of this Amendment.
5. Headings. Article and Section headings used herein are for convenience
of reference only, are not part of this Amendment and shall not affect the
construction of, or be taken into consideration in interpreting, this Amendment.
6. Further Assurances. Without limiting any party's obligations hereunder,
FiberNet hereby agrees to do all things and take all actions which may
reasonably be requested by Bank One, Nortel or TD to effectuate the provisions
of this Amendment.
8. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
[Signature Page Follows]
3
In Witness Whereof, the undersigned has executed this Warrant Agreement
Amendment No. 2 as of the date set forth in the first paragraph hereof.
Company
-------
FIBERNET TELECOM GROUP, INC.
By: _________________________
BANK ONE, N.A. NORTEL NETWORKS INC.
By: _________________________ By: _________________________
Name: Name:
Title: Title:
TORONTO DOMINION (TEXAS), INC.
By: _________________________
Name:
Title:
Exhibit A
January Financing Agreements
1. Debt Exchange Agreement, dated January 10, 2003, between FiberNet Telecom
Group, Inc. and Bank One, N.A.
2. Debt Exchange Agreement, dated January 10, 2003, between FiberNet Telecom
Group, Inc. and Nortel Networks Inc.
3. Debt Exchange Agreement, dated January 10, 2003, between FiberNet Telecom
Group, Inc. and TD Securities (USA) Inc.
4. Stock Purchase Agreement, dated January 10, 2003, between FiberNet Telecom
Group, Inc. and Bank One, N.A.
5. Stock Purchase Agreement, dated January 10, 2003, between FiberNet Telecom
Group, Inc. and Nortel Networks Inc.
6. Stock Purchase Agreement, dated January 10, 2003, between FiberNet Telecom
Group, Inc. and Toronto Dominion (Texas), Inc.
7. Common Stock Purchase Agreement, dated January 10, 2003 between FiberNet
Telecom Group, Inc. and the parties listed on Exhibit A thereto as
"Purchasers"
8. Registration Rights Agreement, , dated January 10, 2003 between FiberNet
Telecom Group, Inc. and the parties listed on Schedule I thereto as
"Purchasers"
9. Warrant to Purchase Shares of Common Stock of FiberNet Telecom Group, Inc.
between FiberNet Telecom Group, Inc. and each party listed on Exhibit A to
the Purchase Agreement referred to in paragraph 5 above as "Purchasers"
10. Warrant Agreement Amendment No. 1, dated January 10, 2003, among FiberNet
Telecom Group, Inc., Deutsche Bank AG New York Branch, IBM Credit
Corporation, and Wachovia Investors, Inc.
Exhibit B
Affidavit of Lost Warrant
The undersigned (the "Agent"), _______________, a duly authorized agent
of ______________ (the "Warrant Holder"), deposes and says that:
1. The Agent makes this affidavit on behalf of the Warrant Holder
with respect to warrant certificate ______ (the "Lost Certificate") issued to
the Warrant Holder on ______________, 2003, by FiberNet Telecom Group, Inc. (the
"Company").
2. The Warrant Holder does not now have possession of the Lost
Certificate. The Warrant Holder has made or caused to be made diligent efforts
to find and recover the Lost Certificate, but has been unable to do so, and
accordingly believes the Lost Certificate is lost or misplaced.
3. The Warrant Holder is the sole beneficial owner of the Lost
Certificate and has so been at all times since the Lost Certificate was issued,
and is entitled to the full and exclusive possession of the Lost Certificate.
The Lost Certificate has not been endorsed for transfer, and no instrument or
document authorizing the transfer of the Lost Certificate has been executed.
Neither the Lost Certificate nor the Warrant Holder's rights therein have, in
whole or in part, been assigned, transferred, hypothecated, pledged or otherwise
disposed of, in any manner whatsoever. No person or entity other than the
Warrant Holder has any right, title, claim, equity or interest in, to or
respecting the Lost Certificate or the proceeds thereof.
4. The Warrant Holder agrees that if the Lost Certificate shall
ever come into the custody and control of the Warrant Holder, the Warrant Holder
shall immediately and without consideration surrender the Lost Certificate to
the Company or its successors or transfer agents for cancellation.
IN WITNESS WHEREOF, the undersigned has executed this Affidavit this
___ day of __________, 2003.
By: ________________________
Name: ______________________
Address: ___________________
___________________
___________________
