Exhibit 10.19
AMENDMENT NO. 2 TO SECURITIES PURCHASE AGREEMENT
AMENDMENT NO. 2 TO SECURITIES PURCHASE AGREEMENT, dated as of February 4,
2000 (this "Amendment") to that certain Securities Purchase Agreement dated as
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of April 23, 1999 between BROADVIEW NETWORKS HOLDINGS, INC. (f/k/a Coaxicom,
Inc.), a Delaware corporation (the "Company"), Xxxxx Communications Fund, L.P.
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("Xxxxx") and the holders of Series A Preferred Stock of the Company and Series
B Preferred Stock of the Company as listed on Schedule A of the Securities
Purchase Agreement, as amended by Amendment Xx. 0 ("Xxxxxxxxx Xx. 0") dated
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February 2, 2000 (the "Securities Purchase Agreement"), is made by and between
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the Company and the other parties who appear as signatories to this Amendment
(the "Purchasers").
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WHEREAS, Section 3 of Amendment No. 1 contemplated Xxxxx assigning the
remainder of its option (the "Xxxxx Option") to purchase shares of 8% Series D
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Convertible Redeemable Preferred Stock of the Company ("Series D Preferred
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Stock") to the State Treasurer of the State of Michigan, Custodian of the
Michigan Public School Employees' Retirement System, State Employees' Retirement
System and Michigan State Police Retirement System (the "State of Michigan
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Retirement Systems") on or before February 4, 2000, conditional upon the State
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of Michigan Retirement Systems exercising their assigned option on or before
such date.
WHEREAS, Xxxxx now desires to assign the remainder of its option to the
State of Michigan Retirement Systems, and the State of Michigan Retirement
Systems desire to exercise their assigned option as of the date hereof, subject
to the terms of this Amendment, and the Company and the Purchasers desire to
approve and consent to such exercise; and
NOW, THEREFORE, in consideration of the premises and mutual covenants and
obligations hereinafter set forth, the Company and the Purchasers hereby agree
as follows:
SECTION 1. Definitions. Capitalized terms used but not otherwise defined
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herein shall have the meaning given to them in the Securities Purchase Agreement
or, if not defined therein, in the Company's Certificate of Incorporation, as
amended.
SECTION 2. Amendments to Securities Purchase Agreement. The Securities
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Purchase Agreement is hereby amended as of the date hereof as follows:
(a) The first sentence is amended and restated in its entirety as follows:
"SECURITIES PURCHASE AGREEMENT, dated as of April 23, 1999 (this
"Agreement"), among Broadview Networks Holdings, Inc., a Delaware
corporation (the "Company"), Xxxxx Communications Fund, L.P.
("Xxxxx"), the State Treasurer of the State of Michigan, as Custodian
of the Michigan Public School Employees' Retirement System, State
Employees' Retirement System and
Michigan State Police Retirement System (the "State of Michigan
Retirement Systems"), Xxxx Xxxxx and the holders of Series A Preferred
Stock of the Company and Series B Preferred Stock of the Company
listed on Schedule A to this Agreement (the "Holders"; the Holders,
Xxxxx, the State of Michigan Retirement Systems and Xxxx Xxxxx being
collectively referred to herein as the "Purchasers").
(b) Section 2.3 is amended and restated in its entirety as follows:
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"The purchase price for Series D Preferred Shares shall be
$4.66126 per Series D Preferred Share or an aggregate of Twenty Eight
Million Dollars ($28,000,000) (the "Series D Purchase Price"). The
Series D Purchase Price shall be paid at a closing or closings as
described in Section 3.2 hereof by wire transfer of clearing house
funds or by such other method as may be reasonably acceptable to the
Company and the Purchasers, to the account of the Company as shall
have been designated in advance to the Purchasers by the Company."
(c) Section 6.5(b) is amended and restated in its entirety as follows:
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(b) The Purchasers (other than the State of Michigan Retirement
Systems) agree to indemnify, defend and hold harmless the Company (and
its directors, officers, members, stockholders, Employees, Affiliates,
agents and permitted assigns) from and against any and all Losses
based upon, arising out of or otherwise in respect of any inaccuracy
in or breach of any representations, warranties, covenants or
agreements of the Purchasers contained in this Agreement.
(d) Section 6.5 is amended to add the following as Section 6.5(c):
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(c) The Company is advised that as a result of an interpretation
of the constitution of the State of Michigan by the Attorney General
of the State of Michigan, the State of Michigan Retirement Systems are
prohibited from agreeing to the indemnification obligations set forth
in Section 6.5(b) of the Securities Purchase Agreement. The Company
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and the Purchasers agree that the State of Michigan Retirement Systems
will have no indemnification obligations under such Section 6.5(b);
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provided that the State of Michigan Retirement Systems acknowledge and
agree that, notwithstanding the release from the indemnification
obligation from such Section 6.5(b), the Company and its directors,
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officers, members, stockholders, Employees, Affiliates, agents and
permitted assigns shall be entitled to make a claim against the State
of Michigan Retirement Systems for any and all losses, claims,
liabilities, damages, deficiencies, costs or expenses (including
interest, penalties and reasonable attorneys' fees, disbursements and
related charges) based upon, arising out of or otherwise in respect of
any
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inaccuracy in or breach of any representations, warranties, covenants
or agreements of the State of Michigan Retirement Systems contained in
the Securities Purchase Agreement.
(e) Section 9.5(a) is amended and restated in its entirety as follows:
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(a) To the fullest extent permitted by applicable law and public
policy, the parties hereby irrevocably submit to the non-exclusive
jurisdiction of any federal or state court located within the Borough
of Manhattan, State of New York over any dispute arising or relating
to this Agreement or any of the transactions contemplated hereby and
each party hereby irrevocably agrees that all claims in respect of
such dispute or any suit, action or proceeding related thereto may be
heard and determined in such courts. The parties hereby irrevocably
waive, to the fullest extent permitted by applicable law and public
policy, any objection which they may now or hereafter have to the
laying of venue of any such dispute brought in such court or any
defense of inconvenient forum for the maintenance of such dispute.
Each of the parties hereto agrees that a judgment in any such dispute
may be enforced in other jurisdictions by suit on the judgment or in
any other manner provided by law.
(f) SCHEDULE B is amended and restated in its entirety as follows:
"Breakdown of Option to Purchase Series D Preferred Shares
Xxxxx Communications Fund, L.P. - 2,038,075
Xxxx Xxxxx - 214,534
The State of Michigan Retirement Systems - 2,038,075
The Holders - 1,716,275"
SECTION 3. Agreement to be Bound by Securities Purchase Agreement. Upon
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the State of Michigan Retirement Systems' execution of this Amendment, the
Securities Purchase Agreement shall be binding upon and inure to the benefit of
the State of Michigan Retirement Systems and their permitted assigns.
SECTION 4. No Implied Amendments. Except as herein amended, the
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Securities Purchase Agreement shall remain in full force and effect and is
ratified in all respects. On and after the effectiveness of this Amendment,
each reference in the Securities Purchase Agreement to "this Agreement",
"hereunder", "hereof", "herein" or words of like import, and each reference to
the Securities Purchase Agreement in any other agreements, documents or
instruments
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executed and delivered pursuant to the Securities Purchase Agreement, shall mean
and be a reference to the Securities Purchase Agreement, as amended by this
Amendment.
SECTION 5. Effective Date. This Amendment shall be effective as of the
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date hereof.
SECTION 6. Counterparts. This Amendment may be executed by the parties
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hereto in several counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
* * * *
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IN WITNESS WHEREOF, the parties hereto have executed, or have caused this
Amendment to be executed, by their respective officers thereunto duly
authorized, as of the date first written above.
BROADVIEW NETWORKS HOLDINGS, INC.
/s/ Xxxx Xxxxxxx
By:______________________________
Name:
Title:
XXXXX COMMUNICATIONS FUND, L.P.
By: Xxxxx Capital Partners, LLC
Its General Partner
/s/ Xxxxxx Xxxxx
By:______________________________
Name:
Title:
The State Treasurer of the State of Michigan,
as Custodian of the Michigan Public School
Employees' Retirement System, State Employees'
Retirement System and Michigan State Police
Retirement System
By:______________________________
Name:
Title:
XXXX XXXXX
______________________________
COMMUNICATIONS VENTURES II, L.P.
/s/ Xxxxxx Van der Meer
By:______________________________
Name:
Title:
COMMUNICATIONS VENTURES II
AFFILIATES FUND, L.P.
/s/ Xxxxxx Van der Meer
By:______________________________
Name:
Title:
NEW ENTERPRISE ASSOCIATES VII, L.P.
/s/ Xxxxx Xxxxxx
By:______________________________
Name:
Title:
WPG ENTERPRISE FUND III, L.L.C.
By: WPG VC Fund Adviser, LLC.,
Fund Investment Advisory Member
By:______________________________
Name: Xxxxx Xxxxxx
Title: Managing Member
XXXXX, XXXX & XXXXX VENTURE
ASSOCIATES IV, L.L.C.
By: WPG VC Fund Adviser, L.L.C.,
Fund Investment Advisory Member
By:________________________________
Name: Xxxxx Xxxxxx
Title: Managing Member
WPG INFORMATION SCIENCES
ENTREPRENEUR FUND, L.P.
By: WPG VC Fund Adviser, L.L.C.
General Partner
By:________________________________
Name: Xxxxx Xxxxxx
Title: Managing Member
XXXXX, XXXX & XXXXX VENTURE
ASSOCIATES IV CAYMAN, L.P.
By: WPG VC Fund Adviser, L.L.C.,
Fund Investment Advisory Partner
By:________________________________
Name: Xxxxx Xxxxxx
Title: Managing Member
