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EXHIBIT 4.10
FIRST AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
THIS FIRST AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this
"Agreement") is made as of this day of January 2000, by and among
BroadbandNOW, Inc., a Delaware corporation (the "Company") and each of the
purchasers listed on SCHEDULE 1, attached hereto (collectively, the "Purchasers"
and each individually a "Purchaser").
W I T N E S S E T H:
WHEREAS, the Company assumed all of the obligations of BroadbandNOW
Texas, Inc. f/k/a I 3S, Inc., a Texas corporation ("BroadbandNOW Texas"), with
respect to a Registration Rights Agreement, dated as of June 25, 1999, between I
3S, Inc., Nortel Networks Inc., Ascend Communications, Inc., Blue Ridge
Investors II Limited Partnership, I3S Funding I, LLC and Blue Ridge Investors
Limited Partnership; a Registration Rights Agreement, dated as of October 29,
1999, between I 3S, Inc. and General Electric Capital Corp.; a Registration
Rights Agreement, dated November 2, 1999, between I 3S, Inc., Archstone
Communities Trust and Archstone Communities Investment LLC-I; a Registration
Rights Agreement, dated November 24, 1999, between I 3S, Inc. and Microsoft
Corporation; and a Registration Rights Agreement, dated January 6, 2000 between
I 3S, Inc. and Telecommunications Investments LLC, TeleNet Capital Group, LLC
and Summit Properties, Inc. (collectively, the "Previous Agreements") related to
the Company's Series A Convertible Preferred Stock, par value $0.001 per share
(the "Series A Convertible Preferred Stock");
WHEREAS, pursuant to a Stock Purchase Agreement, dated as of August 10,
1999, Paradigm/I3S, L.P. purchased a portion of the Series A Convertible
Preferred Stock owned by I3S Funding I, LLC and Blue Ridge Investors Limited
Partnership and obtained the rights granted to I3S Funding I, LLC and Blue Ridge
Investors Limited Partnership pursuant to the Previous Agreements; and
WHEREAS, Liberty BBandnow Holdings, LLC and the Company are parties to
that certain Series A Convertible Preferred Stock Purchase Agreement, dated as
of the date hereof (the "Purchase Agreement"), whereby Liberty BBandnow
Holdings, LLC shall purchase and the Company shall issue and sell 1,063,829
shares of Series A Convertible Preferred Stock; and
WHEREAS, the obligations of Liberty BBandnow Holdings, LLC under the
Purchase Agreement are conditioned among other things, upon the execution and
delivery of this Agreement by the Purchasers and the Company; and
WHEREAS, the Purchasers and the Company desire to amend and restate the
Previous Agreements to replace them with a single agreement; and
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WHEREAS, this Agreement will become effective upon the consent of at
least 66 2/3% of the outstanding shares of Series A Convertible Preferred Stock.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the undersigned parties hereto
agree that this Agreement supersedes the Previous Agreements in their entirety
and the parties hereto agree as follows:
1. DEFINITIONS. As used in this Agreement, the following terms shall
have the following respective meanings:
(a) "Commission" shall mean the United States Securities and
Exchange Commission, or any other federal agency at the time administering the
Securities Act.
(b) "Common Stock" shall mean the Company's Class A Common
Stock, par value $0.001 per share, as authorized on the date of this Agreement
or class of common stock issued in exchange therefor.
(c) "Conversion Shares" shall mean the shares of Common Stock
issued or issuable upon conversion of the Series A Convertible Preferred Stock.
(d) "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended, or any similar federal statute, and the rules and regulations
of the Commission thereunder, all as the same shall be in effect at the time.
(e) "Forms ▇-▇, ▇-▇ and S-3" shall mean the forms so
designated, promulgated by the Commission for registration of securities under
the Securities Act, and any forms succeeding to the functions of such forms,
whether or not bearing the same designation.
(f) "Holder" shall mean a holder of Registrable Securities
provided that anyone who acquires any Registrable Securities in a distribution
pursuant to a registration statement filed by the Company under the Securities
Act shall not thereby be deemed to be a "Holder".
(g) "Person" shall mean an individual, a corporation, a
partnership, a limited liability company, a joint venture, a trust, an estate,
an unincorporated organization, a government or any agency or political
subdivision thereof.
(h) "Recapitalization Events" shall mean an event described
under Section 2.5 of the Certificate of Designation (as hereinafter defined).
(i) "Register," "registered" and "registration" refers to a
registration effected by filing a registration statement in compliance with the
Securities Act and the declaration or ordering by the Commission of
effectiveness of such registration statement.
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(j) "Registrable Securities" shall mean (i) Conversion Shares
held by (x) a Purchaser, (y) a purchaser of Series A Convertible Preferred
Stock, or (z) a Person to whom registration rights have been properly
transferred, (ii) all shares of Common Stock issued by the Company in respect of
the Series A Convertible Preferred Stock, and (iii) all shares of Common Stock
which the Purchasers or a purchaser of the Company's Series A Convertible
Preferred Stock or BroadbandNOW Texas' Series A Convertible Preferred Stock may
purchase pursuant to their rights of first refusal.
(k) "Required Demand Amount" shall mean at least fifty-one
percent (51%) of the Registrable Securities then outstanding with respect to the
registration effected pursuant to Section 2 (assuming the full conversion of the
Series A Convertible Preferred Stock for this purpose).
(l) "Securities Act" shall mean the Securities Act of 1933, as
amended, or any similar federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
2. REQUIRED REGISTRATION.
(a) Subject to the provisions of Section 4 hereof, the Holder
or Holders of an aggregate of at least the Required Demand Amount (such Holder
or Holders being herein called the "Initiating Holders") may request the Company
in writing to effect under the Securities Act a registration, stating the number
of shares of Registrable Securities to be disposed of by such Initiating Holders
and the intended method of disposition. Upon receipt of such request, the
Company will give prompt written notice thereof to all other Holders whereupon
such other Holders shall give written notice to the Company within 20 days after
the date of the Company's notice (the "Notice Period") if they propose to
dispose of any shares of Registrable Securities pursuant to such registration,
stating the number of shares of Registrable Securities to be disposed of by such
Holder or Holders and the intended method of disposition.
(b) The Company will use commercially reasonable efforts to
effect promptly after the Notice Period the registration under the Securities
Act of all shares of Registrable Securities specified in the requests of the
Initiating Holders and the requests of the other Holders, subject, however, to
the limitations set forth in Section 4 hereof.
3. REGISTRATION PROCEDURES. Whenever the Company is required by the
provisions of this Agreement to use commercially reasonable efforts to effect
promptly the registration of shares of Registrable Securities, the Company will
use commercially reasonable efforts to :
(a) prepare and file with the Commission a registration
statement with respect to such Registrable Securities and prepare and file with
the Commission such amendments and post-effective amendments to the registration
statement as may be necessary to keep the registration statement effective for
the period necessary to complete the proposed distribution; cause the prospectus
to be supplemented by any required prospectus supplement, and as so supplemented
to be filed pursuant to Rule 424 under the Securities Act, and to comply fully
with the applicable provisions of Rules 424 and 430A under the Securities Act in
a timely manner; and comply with the
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provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement during the applicable period
in accordance with the intended method or methods of distribution by the sellers
thereof set forth in such registration statement or supplement to the
prospectus;
(b) keep such registration statement continuously effective
for the period necessary to complete the proposed distribution but for no longer
than one hundred eighty (180) days subsequent to the effective date of such
registration; upon the occurrence of any event that would cause the registration
statement or the prospectus contained therein to contain a material misstatement
or omission, the Company shall file promptly an appropriate amendment to such
registration statement correcting any such misstatement or omission;
(c) advise the underwriter(s), if any, and selling Holders
promptly and, if requested by such Persons, to confirm such advice in writing,
(i) when the prospectus or any prospectus supplement or post-effective amendment
has been filed, and, with respect to the registration statement or any
post-effective amendment thereto, when the same has become effective, (ii) of
any request by the Commission for amendments to the registration statement or
amendments or supplements to the prospectus or for additional information
relating thereto, (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the registration statement under the Securities
Act or of the suspension by any state securities commission of the qualification
of the Registrable Securities for offering or sale in any jurisdiction, or the
initiation of any proceeding for any of the preceding purposes, and (iv) of the
existence of any fact or the happening of any event that makes any statement of
a material fact made in the registration statement, the prospectus, any
amendment or supplement thereto, or any document incorporated by reference
therein untrue, or that requires the making of any additions to or changes in
the registration statement or the prospectus in order to make the statements
therein not misleading. If at any time the Commission shall issue any stop order
suspending the effectiveness of the registration statement or any state
securities commission or other regulatory authority shall issue an order
suspending the qualification or exemption from qualification of the Registrable
Securities under state securities or blue sky laws, the Company shall use
commercially reasonable efforts to obtain the withdrawal or lifting of such
order at the earliest possible time;
(d) furnish to each of the selling Holders and each of the
underwriter(s), if any, before filing with the Commission, copies of the
registration statement or any prospectus included therein or any amendments or
supplements to any such registration statement or prospectus, and the Company
will not file the registration statement or prospectus or any amendment or
supplement to any registration statement or prospectus to which a selling Holder
of Registrable Securities covered by such registration statement or the
underwriter(s), if any, shall reasonably object within three (3) business days
after the receipt thereof;
(e) if requested by any selling Holders or the underwriter(s),
if any, incorporate in the registration statement or prospectus, pursuant to a
supplement or post-effective amendment if necessary, such information as such
selling Holders and underwriter(s), if any, may reasonably request to have
included therein, information with respect to the number of Registrable
Securities being sold to such underwriter(s), the purchase price being paid
therefor and any other terms of the
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offering of the Registrable Securities to be sold in such offering and make all
required filings of such prospectus supplement or post-effective amendment as
soon as practicable after the Company is notified of the matters to be
incorporated in such prospectus supplement or post-effective amendment;
(f) furnish to each selling Holder and each of the
underwriter(s), if any, without charge, at least one copy of the registration
statement, as first filed with the Commission, and of each amendment thereto,
including all documents incorporated by reference therein and all exhibits
(including exhibits incorporated therein by reference);
(g) deliver to each selling Holder and each of the
underwriter(s), if any, without charge, as many copies of the prospectus
(including each preliminary prospectus) and any amendment or supplement thereto
as such Persons reasonably may request; the Company hereby consents to the use
of the prospectus and any amendment or supplement thereto by each of the selling
Holders and each of the underwriter(s), if any, in connection with the offering
and the sale of the Registrable Securities covered by the prospectus or any
amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities,
the Company shall register or qualify the Registrable Securities under the
securities or blue sky laws of such jurisdictions as the selling Holders or
underwriter(s), if any, may request and do any and all other acts or things
reasonably necessary or advisable to enable the disposition in such
jurisdictions of the Registrable Securities covered by the registration
statement; provided, however, that the Company shall not be required to register
or qualify as a foreign corporation where it is not now so qualified or to take
any action that would subject it to the service of process in suits or to
taxation, other than as to matters and transactions relating to the registration
statement, in any jurisdiction where it is not now so subject;
(i) cooperate with the selling Holders and the underwriter(s),
if any, to facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold and not bearing any restrictive
legends; and enable such Registrable Securities to be in such denominations and
registered in such names as the selling Holders or the underwriter(s), if any,
may request prior to any sale of Registrable Securities made by such
underwriter(s);
(j) if any fact or event contemplated by clause (c)(iv) above
shall exist or have occurred, prepare a supplement or post-effective amendment
to the registration statement or related prospectus or any document incorporated
therein by reference or file any other required document so that, as thereafter
delivered to the purchasers of Registrable Securities, the prospectus will not
contain an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein not misleading;
(k) cooperate and assist in any filings required to be made
with the National Association of Securities Dealers, Inc. ("NASD") and in the
performance of any due diligence investigation by any underwriter (including any
"qualified independent underwriter") that is required to be retained in
accordance with the rules and regulations of the NASD;
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(l) otherwise comply with all applicable rules and regulations
of the Commission, and make generally available to its security holders, as soon
as practicable, a consolidated earnings statement meeting the requirements of
the Securities Act and Rule 158 thereunder (which need not be audited) for the
twelve-month period (i) commencing at the end of any fiscal quarter in which
Registrable Securities are sold to underwriters in a firm or best efforts
underwritten offering or (ii) if not sold to underwriters in such an offering,
beginning with the first month of the Company's first fiscal quarter commencing
after the effective date of the registration statement;
(m) enter into such customary agreements (including an
underwriting agreement in customary form with provisions as may be reasonably
required by the managing underwriter retained by actions of the Holders of a
majority of the Registrable Securities being sold or the managing underwriter or
underwriters retained by Holders participating in an underwritten public
offering, if any, reasonably request in order to expedite or facilitate the
disposition of such Registrable Securities);
(n) make available for inspection by any Holder of Registrable
Securities included in such registration statement, any underwriter
participating in any disposition pursuant to such registration statement, and
any attorney, accountant or other agent retained by any such seller or
underwriter (collectively, the "Inspectors"), all financial and other records,
pertinent corporate documents and properties of the Company (collectively, the
"Records"), as shall be reasonably necessary to enable them to exercise their
due diligence responsibility, and cause the Company's officers, directors and
employees to supply all information reasonably requested by any such Inspector
in connection with such registration statement; provided that Records which the
Company determines, in good faith, to be confidential and which it notifies the
Inspectors are confidential shall not be disclosed by the Inspectors unless (i)
the disclosure of such Records is necessary to avoid or correct a misstatement
or omission in the registration statement or (ii) the release of such Records is
ordered pursuant to a subpoena or other order from a court of competent
jurisdiction; provided, further, each Holder of Registrable Securities agrees
that it will, upon learning that disclosure of such Records is sought in a court
of competent jurisdiction, give notice to the Company and allow the Company, at
its expense, to undertake appropriate action and to prevent disclosure of the
Records deemed confidential;
(o) obtain a cold comfort letter from the Company's
independent public accountants in customary form and covering such matters of
the type customarily covered by cold comfort letters as the Holders of a
majority of the Registrable Securities being sold reasonably request; and
(p) the Company will give the Holders of Registrable
Securities registered under such registration statement, their underwriters, if
any, and one counsel or firm of counsel and one accountant or firm of
accountants representing all the Holders of Registrable Securities to be
registered under such registration statement, the opportunity to participate in
the preparation of such registration statement, each prospectus included therein
or filed with the Commission, and each amendment thereof or supplement thereto,
and will give each of them such access to its books and records and such
opportunities to discuss the business of the Company with its officers and the
independent public accountants who have certified its financial statements as
shall be necessary in the
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opinion of such Holders' and such underwriters' respective counsel to conduct a
reasonable investigation within the meaning of the Securities Act.
4. LIMITATIONS ON REQUIRED REGISTRATIONS.
(a) The Company shall not be required to effect more than two
registrations pursuant to Section 2 hereof.
(b) The Company may not cause any other registration of
securities for sale for its own account (other than a registration effected
solely to implement an employee benefit plan) to be initiated after a
registration requested pursuant to Section 2 hereof and to become effective less
than ninety (90) days after the effective date of any registration requested
pursuant to Section 2 hereof.
(c) Whenever a requested registration is for an underwritten
offering, only shares which are to be included in the underwriting pursuant to
this Agreement or other agreements with the Company, or shares offered by the
Company may be included in the registration. Notwithstanding the provisions of
Sections 2(b) and 4(b) hereof, if the underwriter determines that (i) marketing
factors require a limitation of the total number of shares to be underwritten,
or (ii) the offering price per share would be reduced by the inclusion of the
shares in the underwriting, then the number of shares to be included in the
registration and underwriting shall be reduced in whole or in part by the
underwriter so long as such limitation is applied on a pro rata basis with
respect to all shares proposed or requested to be registered in the
underwriting. No stock excluded from the underwriting by reason of the
underwriter's marketing limitation shall be included in such registration. If
the Company disapproves of any such underwriting, the Company may elect to
withdraw its shares therefrom by written notice to the Initiating Holders and
the underwriter. The securities so withdrawn from such underwriting shall also
be withdrawn from such registration.
(d) If at the time of any request to register Registrable
Securities pursuant to Section 2 hereof, the Company is engaged, or has fixed
plans to engage within ninety (90) days of the time of the request, in a
registered public offering as to which the Holders have the right to include
such Registrable Securities pursuant to Section 5 hereof, then the Company may
at its option direct that such request be delayed for a period not in excess of
six months from the effective date of such offering.
(e) The Company shall not be required to effect a
registration pursuant to Section 2 hereof until the earlier to occur of: (i)
April 4, 2002, or (ii) one hundred eighty (180) days after an Approved Offering
(as such term is defined in the Certificate of Designations for the Series A
Convertible Preferred Stock (the "Certificate of Designation") that has been
filed with the Secretary of State of the State of Delaware).
(f) At the time of any request to register Registrable
Securities pursuant to Section 2 hereof, all prospective sellers shall select,
by a majority vote of the shares proposed to be sold in the offering, a
shareholder representative (the "Shareholder Representative") and advise the
Company at least ten (10) days in advance of the contemplated effective date of
the registration
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statement for such offering of the identity of the Shareholder Representative.
The Shareholder Representative shall have the authority to approve on behalf of
himself, if applicable, and the other prospective sellers all material terms of
the offering, including without limitation, price and underwriter's discounts
and commissions, which terms shall be subject to reasonable approval of the
Company.
5. INCIDENTAL REGISTRATION. At any time, commencing one hundred eighty
(180) days after an Approved Offering, if the Company proposes to register any
of its securities under the Securities Act (other than a registration effected
solely to implement an "employee benefit plan" as defined by Rule 405 or a
transaction to which Rule 145 or any successor provision promulgated under the
Securities Act ("Rule 145") is applicable), it will each such time give written
notice to all Holders of its intention so to do. Upon the written request of a
Holder or Holders given within 20 days after receipt of any such notice (stating
the number of shares of Registrable Securities to be disposed of by such Holder
or Holders and the intended method of disposition), the Company will use
commercially reasonable efforts to cause all shares of Registrable Securities to
be sold to be registered under the Securities Act so as to permit the
disposition (in accordance with the methods in said request) by such Holder or
Holders of the shares so registered, subject, however, to the limitations set
forth in Section 6 hereof.
6. LIMITATIONS ON INCIDENTAL REGISTRATION. If the registration of which
the Company gives notice pursuant to Section 5 hereof is for an underwritten
offering, only securities which are to be included in the underwriting may be
included in the registration. Notwithstanding any provision of Section 5 hereof,
if the underwriter determines that marketing factors require a limitation of the
number of shares to be underwritten, the underwriter may exclude or otherwise
limit the number of shares of Registrable Securities to be included in the
registration and underwriting. The Company shall so advise all Holders who have
indicated to the Company their decision to distribute any of their Registrable
Securities through such underwriting, and the number of shares of Registrable
Securities that may be included in the registration and underwriting shall be
reduced in whole or in part by the underwriter so long as such limitation is
applied on a pro rata basis with respect to all shares proposed or requested to
be registered in the underwriting. No Registrable Securities excluded from the
underwriting by reason of the underwriter's marketing limitation shall be
included in such registration. If any Holder disapproves of any such
underwriting, such Person may elect to withdraw therefrom by written notice to
the Company and the underwriter. The Registrable Securities and/or other
securities so withdrawn from such underwriting shall also be withdrawn from such
registration.
7. DESIGNATION OF UNDERWRITER. The Company shall have the right to
designate the managing underwriter in any underwritten offering.
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8. COOPERATION BY PROSPECTIVE SELLERS.
(a) Each prospective seller of Registrable Securities will
furnish to the Company such information as the Company may reasonably require
from such seller in connection with the registration statement (and the
prospectus included therein).
(b) Failure of a prospective seller of Registrable Securities
to furnish the information and agreements described in this Agreement shall not
affect the obligations of the Company under this Agreement to remaining sellers
who furnish such information and agreements unless, in the reasonable opinion of
counsel to the Company or the underwriters, such failure impairs or may impair
the viability of the offering or the legality of the registration statement or
the underlying offering.
(c) The Holders holding shares included in the registration
statement will not (until further notice) effect sales thereof after receipt of
telegraphic or written notice from the Company to suspend sales to permit the
Company to correct or update a registration statement or prospectus; but the
obligations of the Company with respect to maintaining any registration
statement current and effective shall be extended by a period of days equal to
the period such suspension is in effect unless (i) such extension would result
in the Company's inability to use the financial statements in the registration
statement initially filed pursuant to the Holder or Holders' request and (ii)
such correction or update did not result from the Company's acts or failures to
act. At the end of the period during which the Company is obligated to keep the
registration statement current and effective as described in Section 3(b) hereof
(and any extensions thereof required by the preceding sentence), the Holders
holding shares included in the registration statement shall discontinue sales of
shares pursuant to such registration statement upon receipt of notice from the
Company of its intention to remove from registration the shares covered by such
registration statement which remain unsold, and such Holders shall notify the
Company of the number of shares registered which remain unsold immediately upon
receipt of such notice from the Company.
(d) Each seller of Registrable Securities pursuant to a
registration which is not underwritten agrees to provide the Company with
written assurances that all sales of Registrable Securities made in connection
with such registration were made in compliance with all applicable securities
laws, including, without limitation, the prospectus delivery requirements of
Section 5 of the Securities Act or any successor provision and the restrictions
of Rules l0b-2, l0b-6 and l0b-7 of the Exchange Act or any successor provisions.
9. EXPENSES OF REGISTRATION. All expenses incurred in effecting any
registration pursuant to this Agreement including, without limitation, all
registration and filing fees, printing expenses, expenses of compliance with
blue sky laws, fees and disbursements of counsel for the Company and expenses of
any audits incidental to or required by any such registration, shall be borne by
the Company, except that (a) all expenses, fees and disbursements of any counsel
retained by the Holders and all underwriting discounts and commissions
attributable to Registrable Securities being sold by the Holders shall be borne
by the Holders holding the securities registered pursuant to such registration,
pro rata according to the quantity of their securities so registered and (b) the
Company shall be required to pay for any expenses of the initial registration
proceeding begun pursuant to Section 2 hereof even if such registration request
is subsequently withdrawn at the request of the Holders of a majority of the
Registrable Securities to be registered. In all subsequent registration requests
begun pursuant to
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Section 2 hereof that are subsequently withdrawn at the request of the Holders
of a majority of the Registrable Securities to be registered, participating
Holders shall bear the expenses of such registration, unless the Holders of a
majority of the Registrable Securities agree to forfeit their right to a demand
registration pursuant to Section 2 hereof. Notwithstanding the foregoing, in the
case of the registration requests in which the Company has agreed to pay the
Initiating Holders' expenses pursuant to this Section 9, the Company will pay up
to $10,000 per registration request, for expenses, fees and disbursements for
legal counsel for the Initiating Holders.
10. INDEMNIFICATION.
(a) To the extent permitted by law, the Company will indemnify
each Holder requesting or joining in a registration, each agent, officer and
director of such Holders, each Person controlling (within the meaning of Section
15 of the Securities Act or any successor provision) such Holder and each
underwriter and selling broker of the securities so registered (collectively,
"Indemnitees") against all claims, losses, damages and liabilities (or actions
in respect thereof) arising out of or based on any untrue statement (or alleged
untrue statement) of a material fact contained in any prospectus, offering
circular or other document incident to any registration, qualification or
compliance (or in any related registration statement, notification or the like)
or any omission (or alleged omission) to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading
in the light of the circumstances in which they were made, or any violation by
the Company of any rule or regulation promulgated under the Securities Act
applicable to the Company and relating to action or inaction required of the
Company in connection with any such registration, qualification or compliance,
and will reimburse each such Indemnitee for any legal and any other expenses
reasonably incurred in connection with investigating or defending any such
claim, loss, damage, liability or action; provided, however, that the Company
will not be liable in any such case to the extent that any such claim, loss,
damage or liability is caused by any untrue statement or alleged untrue
statement or omission or alleged omission so made in conformity with written
information furnished to the Company by an instrument duly executed by such
Indemnitees and stated to be specifically for use therein and except that the
foregoing indemnity agreement is subject to the condition that, insofar as it
relates to any such untrue statement (or alleged untrue statement) or omission
(or alleged omission) made in the preliminary prospectus but eliminated or
remedied in the amended prospectus on file with the Commission at the time the
registration statement becomes effective or in the amended prospectus filed with
the Commission pursuant to Rule 424(b) or any successor provision (the "Final
Prospectus"), such indemnity agreement shall not inure to the benefit of any
underwriter, or any Indemnitee if there is no underwriter, if a copy of the
Final Prospectus was not furnished to the Person asserting the loss, liability,
claim or damage at or prior to the time such furnishing is required by the
Securities Act, provided further, that this indemnity shall not be deemed to
relieve any underwriter of any of its due diligence obligations; provided,
further, that the indemnity agreement contained in this Section 10(a) shall not
apply to amounts paid in settlement of any such claim, loss, damage, liability
or action if such settlement is effected without the consent of the Company,
which consent shall not be unreasonably withheld.
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(b) To the extent permitted by law, each Holder requesting or
joining in a registration and each underwriter of the securities so registered
will indemnify the Company and its officers and directors and each Person, if
any, who controls the Company within the meaning of Section 15 of the Securities
Act or any successor provision and their respective successors against all
claims, losses, damages and liabilities (or actions in respect thereof) arising
out of or based on any untrue statement of a material fact contained in any
prospectus, offering circular or other document incident to any registration,
qualification or compliance (or in any related registration statement,
notification or the like) or any omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances in which they were made and will
reimburse the Company and each other Person indemnified pursuant to this Section
10(b) for any legal and any other expenses reasonably incurred in connection
with investigating or defending any such claim, loss, damage, liability or
action; provided, however, that this Section 10(b) shall apply only if (and only
to the extent that) such statement or omission was made in reliance upon and in
conformity with written information (including, without limitation, written
negative responses to inquiries) furnished to the Company by an instrument duly
executed by such Holder or underwriter and stated to be specifically for use in
such prospectus, offering circular or other document (or related registration
statement, notification or the like) or any amendment or supplement thereto
provided that the indemnity agreement contained in this Section 10(b) shall not
apply to amounts paid in settlement of any such claim, loss, damage, liability
or action if such settlement is effected without the consent of the Holder or
underwriter, as the case may be, which consent shall not be unreasonably
withheld.
(c) Each party entitled to indemnification hereunder (the
"indemnified party") shall give notice to the party required to provide
indemnification (the "indemnifying party") promptly after such indemnified party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the indemnifying party (at its expense) to assume the defense of any
claim or any litigation resulting therefrom, provided that counsel for the
indemnifying party, who shall conduct the defense of such claim or litigation,
shall be reasonably satisfactory to the indemnified party, and the indemnified
party may participate in such defense at such party's expense, and provided,
further, that the omission by any indemnified party to give notice as provided
herein shall not relieve the indemnifying party of its obligations under this
Section 10 except to the extent that the omission results in a failure of actual
notice to the indemnifying party and such indemnifying party is damaged solely
as a result of the failure to give notice. No indemnifying party, in the defense
of any such claim or litigation, shall, except with the consent of each
indemnified party, consent to entry of any judgment or enter into any settlement
which does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such indemnified party of a release from all liability
in respect to such claim or litigation.
(d) The reimbursement required by this Section 10 shall be
made by periodic payments during the course of the investigation or defense, as
and when bills are received or expenses incurred.
(e) The obligation of the Company under this Section 10 shall
survive the conversion, if any, of the Series A Convertible Preferred Stock, the
completion of any offering of Registrable Securities in a registration statement
under this Agreement, or otherwise.
-11-
12
11. RIGHTS WHICH MAY BE GRANTED TO SUBSEQUENT INVESTORS.
(a) Within the limitations prescribed by this Section 11(a),
but not otherwise, the Company may grant to subsequent investors (other than
purchasers of Series A Convertible Preferred Stock pursuant to Section 1 of the
Certificate of Designation which may be granted registration rights pari passu
herewith) in the Company rights of incidental registration (such as those
provided in Section 5 hereof). Such rights may only pertain to shares of Common
Stock, including shares of Common Stock into which any other securities may be
converted. Such rights may be granted with respect to (i) registrations actually
requested by Initiating Holders pursuant to Section 2 hereof, but only in
respect of that portion of any such registration as remains after inclusion of
all Registrable Securities requested by Holders and (ii) registrations initiated
by the Company, but only in respect of that portion of such registration as is
available under the limitations set forth in Section 6 hereof (which limitations
shall apply pro rata to all Holders) and such rights shall be limited in all
cases to sharing pro rata in the available portion of the registration in
question with Holders, such sharing to be based on the number of shares of
Common Stock held by the respective Holders and held by such other investors,
plus the number of shares of Common Stock into which other securities held by
the Holders and such other investors are convertible, which are entitled to
registration rights. With respect to registrations which are for underwritten
public offerings, "available portion" means the portion of the underwritten
shares which is available as specified in clauses (i) and (ii) of the third
sentence of this Section 11(a). Shares not included in such underwriting shall
not be registered.
(b) The Company may not grant to subsequent investors in the
Company (other than purchasers of Series A Convertible Preferred Stock pursuant
to Section 1 of the Certificate of Designation which may be granted registration
rights pari passu herewith) rights of registration upon request (such as those
provided in Section 2 hereof) unless (i) such rights are limited to shares of
Common Stock issued by the Company to such investors or to shares of Common
Stock issuable by the Company upon the conversion of other securities issued by
the Company to such investors, (ii) all Holders are given enforceable
contractual rights to participate in registrations requested by such subsequent
investors, such participation to be on a pro rata basis, and subject to the
limitations, described in the final three sentences of Section 11(a) hereof,
(iii) such rights shall not become effective prior to ninety (90) days after the
effective date of the registration pursuant to Section 2 hereof and (iv) such
rights shall not be more favorable than those granted to the Holders.
12. TRANSFER OF REGISTRATION RIGHTS. The registration rights granted to
the Purchasers under this Agreement may be transferred only:
(a) if, at the time of transfer, the transferee executes a
counterpart of this Agreement and agrees to be bound by the agreements,
representations and warranties herein; and only
(b)(i) to a transferee who shall acquire not less than 250,000
shares of Series A Convertible Preferred Stock or 250,000 shares of Registrable
Securities (as adjusted for Recapitalization Events); or
-12-
13
(ii) in connection with the distribution by a Purchaser of
Series A Convertible Preferred Stock or of Registrable Securities to the
beneficial owners (including, without limitation, to partners of a general or
limited partnership, stockholders of a corporation and beneficiaries of a trust)
of securities of the Purchaser.
Notwithstanding any provision of this Section 12, the registration
rights granted to the Purchasers under this Agreement may not be assigned to any
Person which, in the Company's reasonable judgment, is a competitor of the
Company.
13. "STAND-OFF" AGREEMENT. In consideration for the Company performing
its obligations under this Agreement, each Purchaser severally agrees to enter
into an agreement providing that for a period of time (not to exceed one hundred
eighty (180) days) from the effective date of any registration (other than a
registration effected solely to implement an "employee benefit plan" as defined
by Rule 405 or any successor provision or a transaction to which Rule 145 or any
successor provision applies) of Common Stock (or derivatives thereof) of the
Company (upon request of the Company or of the underwriters managing the
underwritten offering covered by such registration), such Purchaser shall not
sell, make any short sale of, loan, grant any option for the purchase of, or
otherwise dispose of any Registrable Securities, other than shares of
Registrable Securities included in the registration, without the prior written
consent of the Company or such underwriters, as the case may be; provided,
however, such Purchaser shall not be obligated to enter into such agreement
unless all executive officers and directors of the Company and each holder of
more than 5% of the outstanding Common Stock (and each holder of the Company's
Class B Common Stock and Class C Common Stock that has the right to convert such
shares into more than 5% of the Company's outstanding Common Stock), shall have
entered into similar agreements.
14. DELAY OF REGISTRATION. The Purchasers shall have no right to take
any action to restrain, enjoin, or otherwise delay any registration as the
result of any controversy that might arise with respect to the interpretation or
implementation of this Agreement.
15. TERMINATION OF REGISTRATION RIGHTS. Unless the registration rights
granted in this Agreement are terminated earlier, the registration rights shall
terminate on the earlier of:
(a) June 2, 2006; or
(b) with respect to any given Holder, or permissible
transferee or assignee of such rights, at such time when such Holder, transferee
or assignee owns less than the number of shares of Registrable Securities that
could be sold within a single three-month period pursuant to Rule 144.
16. RULE 144 REQUIREMENTS. If the Company becomes subject to the
reporting requirements of the Exchange Act, the Company will file with the
Commission such information as the Commission may require to make available Rule
144 under the Securities Act (or any successor exemptive rule).
-13-
14
17. NOTICES. All notices, requests, consents and other communications
herein (except as stated in the last sentence of this Section 17) shall be in
writing and shall be mailed by first class or certified mail, postage prepaid,
sent by a nationally recognized overnight delivery service, or personally
delivered, as follows:
(a) If to the Company:
BroadbandNOW, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇., President
with a copy which shall not constitute notice to:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
(b) If to the Purchasers at the address set forth on
SCHEDULE 1 hereto.
or such other addresses as each of the parties hereto may provide from time to
time in writing to the other parties.
18. MODIFICATIONS; WAIVER. Neither this Agreement nor any provision
hereof may be changed, waived, discharged or terminated orally or in writing,
except that any provision of this Agreement may be amended and the observance of
any such provision may be waived (either generally or in a particular instance
and either retroactively or prospectively) with (but only with) the written
consent of (a) the Company, and (b) holders of at least 66 2/3 % of the
outstanding shares of the Series A Convertible Preferred Stock (or the
Conversion Shares if applicable) acting together as a single class.
19. REPLACEMENT AGREEMENT. This Agreement contains the entire agreement
between the parties with respect to the registration rights contemplated hereby,
and supersedes all negotiations, agreements, representations, warranties and
commitments relating to the registration rights contemplated hereby, whether in
writing or oral, prior to the date hereof, including without limitation the
Previous Agreements.
20. SUCCESSORS AND ASSIGNS. The Company may not assign or delegate any
of its rights or duties under this Agreement. Except as otherwise provided in
this Agreement, all of the terms of this Agreement including the agreements,
representations and warranties set forth herein shall be binding upon and inure
to the benefit of and be enforceable by the respective successors and assigns of
the parties hereto, except that the rights set forth in this Agreement may only
be transferred in accordance with Section 12 hereof.
-14-
15
21. ENFORCEMENT.
(a) Remedies at Law or in Equity. If any party shall default
in any of its obligations under this Agreement or if any representation
or warranty made by or on behalf of such party in this Agreement or in
any certificate, report or other instrument delivered under or pursuant
to any term hereof shall be untrue or misleading in any material
respect as of the date of this Agreement or as of the date it was made,
furnished or delivered, any party damaged may proceed to protect and
enforce its rights by suit in equity or action at law, whether for the
specific performance of any term contained in this Agreement or the
Certificate of Incorporation of the Company (including the Certificate
of Designation) or for an injunction against the breach of any such
term or in furtherance of the exercise of any power granted in this
Agreement or such Certificate (including the Certificate of
Designation), or to enforce any other legal or equitable right of such
party or to take any one or more of such actions. The prevailing party
in such dispute shall be entitled to recover from the losing party all
fees, costs and expenses of enforcing any right of such prevailing
party under or with respect to this Agreement or the Certificate of
Incorporation (including the Certificate of Designation) of the
Company, including without limitation reasonable fees and expenses of
attorneys and accountants, which shall include, without limitation, all
fees, costs and expenses of appeals.
(b) Remedies Cumulative; Waiver. No remedy referred to herein
is intended to be exclusive, but each shall be cumulative and in
addition to any other remedy referred to above or otherwise available
at law or in equity. No express or implied waiver of any default shall
be a waiver of any future or subsequent default. The failure or delay
in exercising any rights granted hereunder shall not constitute a
waiver of any such right and any single or partial exercise of any
particular right shall not exhaust the same or constitute a waiver of
any other right provided herein.
22. EXECUTION AND COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which when so executed and delivered shall be
deemed an original, and such counterparts together shall constitute one
instrument. Each party shall receive a duplicate original of the counterpart
copy or copies executed by it and by the Company.
23. GOVERNING LAW AND SEVERABILITY. THIS AGREEMENT SHALL BE GOVERNED BY
THE LAWS OF THE STATE OF TEXAS AS APPLIED TO AGREEMENTS ENTERED INTO AND TO BE
PERFORMED ENTIRELY WITHIN TEXAS. To the maximum extent practicable, this
Agreement will be deemed to call for performance in Dallas County, Texas. In the
event any provision of this Agreement or the application of any such provision
to any party shall be held by a court of competent jurisdiction to be contrary
to law, the remaining provisions of this Agreement shall remain in full force
and effect.
24. HEADINGS. The descriptive headings of the Sections hereof and the
Schedules hereto are inserted for convenience only and do not constitute a part
of this Agreement.
-15-
16
IN WITNESS WHEREOF, the parties hereto have caused this Registration
Rights Agreement to be duly executed as of the date first set forth above.
THE COMPANY
BROADBANDNOW, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.,
-----------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇., President
[PURCHASERS SIGNATURES ON FOLLOWING PAGE]
17
THE PURCHASERS:
TELENET CAPITAL GROUP, LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇, Manager
TELECOMMUNICATIONS INVESTMENTS, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Manager
SUMMIT PROPERTIES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Senior Vice President
MICROSOFT CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Assistant Secretary
ARCHSTONE COMMUNITIES TRUST
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
---------------------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., Senior Vice President & CFO
18
ARCHSTONE COMMUNITIES INVESTMENT
LLC-I
By: Archstone Communities Trust, its Manager
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
---------------------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., Senior Vice President
CFE, INC.
By: /s/ J. ▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------------------------------
J. ▇▇▇▇▇▇ ▇▇▇▇▇, Vice President
NORTEL NETWORKS INC.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Vice President
LUCENT TECHNOLOGIES INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------------
Title: Managing Director
--------------------------------------------------
BLUE RIDGE INVESTORS II LIMITED PARTNERSHIP
By: Blue Ridge Investors Group II, L.L.C.,
its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, General Partner
19
I3S FUNDING I, LLC
By: Geneva Associates, L.L.C., its Manager
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Manager
BLUE RIDGE INVESTORS LIMITED PARTNERSHIP
By: Blue Ridge Investors Group, Inc.,
its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Manager
LIBERTY BBANDNOW HOLDINGS, LLC
BY: Liberty BBandnow, Inc.
its sole member
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President and Chief Operating
Officer
PARADIGM/I3S L.P.
By: Paradigm Group, LLC,
Its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Chairman
20
SCHEDULE I
THE PURCHASERS
No. of
Shares of
Series A
Convertible
Preferred Copy of Notices
Name of Purchasers Notice Address Stock Must be sent to
------------------------ ------------------------------------- ------------ ----------------------------------
Liberty BBandnow ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇. 1,063,829 ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.C.
Holdings, LLC ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇: General Counsel ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Summit Properties, Inc. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 53,191 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq. Attn: ▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
General Counsel
Telecommunications ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ 68,916
Investments, LLC ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Manager
TeleNet Capital Group, LLC ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ 53,191 ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP
Suite 450 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇, Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Manager
Microsoft Corporation Chief Financial Officer 1,063,829 General Counsel,
Microsoft Corporation Finance and Operations
One Microsoft Way, 8S/2055 Microsoft Corporation
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇/▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Archstone Communities Trust ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 372,340 ▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇
Suite 100 ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Archstone Communities ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 17,294 ▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇
Investment LLC-I Suite 100 ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
21
No. of
Shares of
Series A
Convertible
Preferred Copy of Notices
Name of Purchasers Notice Address Stock Must be sent to
------------------------ ------------------------------------- ------------ ----------------------------------
CFE, Inc. CFE, Inc. 265,957 Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
c/o GE Capital Corporation LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇.▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇, Esq.
Attn.: ▇▇▇ ▇▇▇▇▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
General Electric Capital Corp.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Nortel Networks Inc. Nortel Networks Inc. 1,063,829 Jenkens & ▇▇▇▇▇▇▇▇▇, a Professional
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
Attention: Vice President, Finance, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Carrier Packet Solutions Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
And E-Mail: ▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
Nortel Networks Inc.
GMS 991 15 A40
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Vice President, Customer
Finance North America
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Ascend Ascend Communications, Inc. 531,915 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ & Freidenrich LLP
Communications Inc. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, General Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Counsel Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ E-Mail: ▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇
Blue Ridge Investors II Blue Ridge Investors II 47,341 ▇▇▇▇▇▇, Pierce, McLendon,
Limited Partnership Limited Partnership ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P.
▇.▇. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail: mbishop@
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22
No. of
Shares of
Series A
Convertible
Preferred Copy of Notices
Name of Purchasers Notice Address Stock Must be sent to
------------------------ ------------------------------------- ------------ ----------------------------------
I3S Funding I, LLC I3S Funding I, LLC 47,341 ▇▇▇▇▇▇, Pierce, McLendon,
P.O. Box 21962 ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇ 2000 Renaissance Tower
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail: mbishop@
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Blue Ridge Investors Blue Ridge Investors 11,702 ▇▇▇▇▇▇, Pierce, McLendon,
Limited Partnership Limited Partnership ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P.
▇.▇. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail: mbishop@
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Paradigm/I3S L.P. Paradigm/I3S L.P. 159,574
c/o Paradigm Group LLC
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
