EXHIBIT 99.3
CONVERSION AGREEMENT
This Conversion Agreement (this "AGREEMENT"), dated as of
October 26, 2001, by and among Focal Communications Corporation, a Delaware
corporation (the "CORPORATION") and each of the Purchasers listed on the
SCHEDULE OF PURCHASERS attached hereto (each, a "PURCHASER" and collectively,
the "PURCHASERS"). Certain capitalized terms used herein are defined in SECTION
6 hereof.
WHEREAS, each of the Purchasers is party to that certain
Preferred Stock Purchase and Loan Commitment Agreement, dated as of August 9,
2001 (as amended by that certain Joinder and Amendment No. 1 to Purchase
Agreement, dated as of September 21, 2001, that certain Amendment No. 2 to
Purchase Agreement, dated as of October 11, 2001 and that certain Joinder
Agreement, dated as of October 23, 2001, the "PURCHASE AGREEMENT") by and among
the Corporation and the Purchasers, pursuant to which each Purchaser has agreed
to acquire shares of Series A Redeemable Voting Convertible Preferred Stock, par
value $.01 per share, of the Corporation (the "PREFERRED STOCK");
WHEREAS, pursuant to the Purchase Agreement, each of the
Purchasers has agreed, on the terms and subject to the conditions set forth in
the Purchase Agreement, to make secured loans to the Corporation in an aggregate
principal amount of not less than $100 million (together with interest thereon,
the "LOANS") as an incremental facility under the Corporation's Senior Credit
Agreement;
WHEREAS, it is a condition to the obligations of the
Purchasers to make the Loans and to acquire the Preferred Stock that the Loans
be convertible at the option of the Purchasers into shares of Common Stock on
the terms described herein and that the Purchasers be given the other rights and
benefits of this Agreement; and
WHEREAS, the Corporation desires to induce the Purchasers to
make the Loans and to acquire the Preferred Stock by giving the Purchasers the
rights and benefits specified herein.
NOW, THEREFORE, in consideration of the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
Section 1. CONVERSION.
1A. CONVERSION PROCEDURE.
(i) At any time and from time to time, any holder of Loans may
convert all or any portion of the Loans held by such holder into a number of
shares of Conversion Stock computed by dividing the sum of the principal amount
of the Loans being converted plus all accrued and unpaid interest thereon and
dividing the result by the Conversion Price then in effect.
(ii) Except as otherwise provided herein, each conversion of
Loans shall be deemed to have been effected as of the close of business on the
date on which the note or notes representing the Loans to be converted have been
surrendered for conversion at the principal office of the Corporation. At the
time any such conversion has been effected, the rights of the holder of the
Loans converted as a holder of Loans shall cease and the Person or Persons in
whose name or names any certificate or certificates for shares of Conversion
Stock are to be issued upon such conversion shall be deemed to have become the
holder or holders of record of the shares of Conversion Stock represented
thereby.
(iii) The conversion rights of any Loans subject to redemption
under the Senior Credit Agreement shall terminate on the date that the Loans
have been repaid in full (including all accrued but unpaid interest thereon)
unless the Corporation has failed to pay to the holder thereof all principal and
accrued and unpaid interest with respect to such Loans.
(iv) Notwithstanding any other provision hereof, if a
conversion of Loans is to be made in connection with a Public Offering, a Change
of Control or other transaction affecting the Corporation, the conversion of any
Loans may, at the election of the holder thereof, be conditioned upon the
consummation of such transaction, in which case such conversion shall not be
deemed to be effective until such transaction has been consummated.
(v) As soon as possible after a conversion has been effected
(but in any event within three business days in the case of subparagraph (a)
below), the Corporation shall deliver to the converting holder:
(a) a certificate or certificates representing the
number of shares of Conversion Stock issuable by reason of such
conversion in such name or names and such denomination or denominations
as the converting holder has specified; and
(b) a note (in identical form to the note so
converted, except with respect to the principal amount thereof)
representing any portion of the Loans which were represented by the
note or notes delivered to the Corporation in connection with such
conversion but which were not converted.
(vi) The issuance of certificates for shares of Conversion
Stock upon conversion of Loans shall be made without charge to the holders of
such Loans for any issuance tax in respect thereof or other cost incurred by the
Corporation in connection with such conversion and the related issuance of
shares of Conversion Stock. Upon conversion of any Loans, the Corporation shall
take all such actions as are necessary in order to insure that the Conversion
Stock issuable with respect to such conversion shall be validly issued, fully
paid and nonassessable, free and clear of all taxes, liens, charges and
encumbrances with respect to the issuance thereof.
(vii) The Corporation shall not close its books against the
transfer of Loans or of Conversion Stock issued or issuable upon conversion of
Loans in any manner which interferes with the timely conversion of Loans.
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(viii) The Corporation shall at all times reserve and keep
available out of its authorized but unissued shares of Conversion Stock, solely
for the purpose of issuance upon the conversion of the Loans, such number of
shares of Conversion Stock issuable upon the conversion of all outstanding
Loans. All shares of Conversion Stock which are so issuable shall, when issued,
be duly and validly issued, fully paid and nonassessable and free from all
taxes, liens and charges. The Corporation shall take all such actions as may be
necessary to assure that all such shares of Conversion Stock may be so issued
without violation of any applicable law or governmental regulation or any
requirements of any domestic securities exchange upon which shares of Conversion
Stock may be listed (except for official notice of issuance which shall be
immediately delivered by the Corporation upon each such issuance). The
Corporation shall not take any action which would cause the number of authorized
but unissued shares of Conversion Stock to be less than the number of such
shares required to be reserved hereunder for issuance upon conversion of the
Loans.
1B. CONVERSION PRICE.
(i) The initial Conversion Price shall be $0.99108459283. In
order to prevent dilution of the conversion rights granted under this Section 1,
the Conversion Price shall be subject to adjustment from time to time pursuant
to this paragraph 1B.
(ii) If and whenever the Corporation issues or sells, or in
accordance with paragraph 1C is deemed to have issued or sold, any shares of its
Common Stock for a consideration per share less than the Conversion Price
determined as of the date of such issue or sale or less than the Market Price of
one share of Common Stock determined as of such time, then immediately upon such
issue or sale or deemed issue or sale the Conversion Price shall be reduced to
the lesser of:
(a) the Conversion Price determined by multiplying the
Conversion Price in effect immediately prior to such issue or sale by a
fraction, the numerator of which shall be the sum of (1) the number of
shares of Common Stock Deemed Outstanding immediately prior to such
issue or sale multiplied by the Market Price determined as of the date
of such issuance or sale, plus (2) the consideration, if any, received
by the Corporation upon such issue or sale, and the denominator of
which shall be the product derived by multiplying the Market Price of
the Common Stock by the number of shares of Common Stock Deemed
Outstanding immediately after such issue or sale; and
(b) the Conversion Price determined by dividing (1) the sum of
(x) the product derived by multiplying the Conversion Price in effect
immediately prior to such issue or sale by the number of shares of
Common Stock Deemed Outstanding immediately prior to such issue or
sale, plus (y) the consideration, if any, received by the Corporation
upon such issue or sale, by (2) the number of shares of Common Stock
Deemed outstanding immediately after such issue or sale.
(iii) Notwithstanding the foregoing, there shall be no
adjustment to the Conversion Price hereunder with respect to issuances of Common
Stock (or of securities exchangeable or exercisable for
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or convertible into Common Stock) (a) to officers, directors, employees, or
consultants of the Corporation and its Subsidiaries pursuant to compensation
arrangements approved by the Corporation's board of directors, (b) to suppliers,
lessors, or lenders of the Corporation and its Subsidiaries issued in the
ordinary course of business or as approved by the Corporation's board of
directors in connection with (as applicable) their supply arrangements or lease
arrangements with, or loans to, the Corporation or any of its Subsidiaries, or
(c) upon the conversion of any Convertible Securities (including the Loans).
1C. EFFECT ON CONVERSION PRICE OF CERTAIN EVENTS. For purposes
of determining the adjusted Conversion Price under paragraph 1B, the following
shall be applicable:
(i) ISSUANCE OF RIGHTS OR OPTIONS. If the Corporation in any
manner grants or sells any Options and the price per share for which Common
Stock is issuable upon the exercise of such Options, or upon conversion or
exchange of any Convertible Securities issuable upon exercise of such Options,
is less than the Conversion Price determined as of such time or the Market Price
of the Common Stock determined as of such time, then the total maximum number of
shares of Common Stock issuable upon the exercise of such Options or upon
conversion or exchange of the total maximum amount of such Convertible
Securities issuable upon the exercise of such Options shall be deemed to be
outstanding and to have been issued and sold by the Corporation at the time of
the granting or sale of such Options for such price per share. For purposes of
this paragraph, the "price per share for which Common Stock is issuable" shall
be determined by dividing (a) the total amount, if any, received or receivable
by the Corporation as consideration for the granting or sale of such Options,
plus the minimum aggregate amount of additional consideration payable to the
Corporation upon exercise of all such Options, plus in the case of such Options
which relate to Convertible Securities, the minimum aggregate amount of
additional consideration, if any, payable to the Corporation upon the issuance
or sale of such Convertible Securities and the conversion or exchange thereof,
by (b) the total maximum number of shares of Common Stock issuable upon the
exercise of such Options or upon the conversion or exchange of all such
Convertible Securities issuable upon the exercise of such Options. No further
adjustment of the Conversion Price shall be made when Convertible Securities are
actually issued upon the exercise of such Options or when Common Stock is
actually issued upon the exercise of such Options or the conversion or exchange
of such Convertible Securities.
(ii) ISSUANCE OF CONVERTIBLE SECURITIES. If the Corporation in
any manner issues or sells any Convertible Securities and the price per share
for which Common Stock is issuable upon conversion or exchange thereof is less
than the Conversion Price determined as of such time or the Market Price of the
Common Stock determined as of such time, then the maximum number of shares of
Common Stock issuable upon conversion or exchange of such Convertible Securities
shall be deemed to be outstanding and to have been issued and sold by the
Corporation at the time of the issuance or sale of such Convertible Securities
for such price per share. For the purposes of this paragraph, the "price per
share for which Common Stock is issuable" shall be determined by dividing (a)
the total amount received or receivable by the Corporation as consideration for
the issue or sale of such Convertible Securities, plus the minimum aggregate
amount of additional consideration, if any, payable to the Corporation upon the
conversion or exchange thereof, by (b) the total maximum number of shares of
Common Stock issuable upon the conversion or exchange of all such Convertible
Securities. No further adjustment of the Conversion Price
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shall be made when Common Stock is actually issued upon the conversion or
exchange of such Convertible Securities, and if any such issue or sale of such
Convertible Securities is made upon exercise of any Options for which
adjustments of the Conversion Price had been or are to be made pursuant to other
provisions of this Section 1, no further adjustment of the Conversion Price
shall be made by reason of such issue or sale.
(iii) CHANGE IN OPTION PRICE OR CONVERSION RATE. If the
purchase price provided for in any Options, the additional consideration, if
any, payable upon the conversion or exchange of any Convertible Securities or
the rate at which any Convertible Securities are convertible into or
exchangeable for Common Stock changes at any time, the Conversion Price in
effect at the time of such change shall be immediately adjusted to the
Conversion Price which would have been in effect at such time had such Options
or Convertible Securities still outstanding provided for such changed purchase
price, additional consideration or conversion rate, as the case may be, at the
time initially granted, issued or sold; provided that if such adjustment would
result in an increase of the Conversion Price then in effect, such adjustment
shall not be effective until 30 days after written notice thereof has been given
by the Corporation to all holders of the Loans. For purposes of paragraph 1C, if
the terms of any Option or Convertible Security which was outstanding as of the
date of issuance of the Loans are changed in the manner described in the
immediately preceding sentence, then such Option or Convertible Security and the
Common Stock deemed issuable upon exercise, conversion or exchange thereof shall
be deemed to have been issued as of the date of such change; provided that no
such change shall at any time cause the Conversion Price hereunder to be
increased.
(iv) TREATMENT OF EXPIRED OPTIONS AND UNEXERCISED CONVERTIBLE
SECURITIES. Upon the expiration of any Option or the termination of any right to
convert or exchange any Convertible Security without the exercise of any such
Option or right, the Conversion Price then in effect hereunder shall be adjusted
immediately to the Conversion Price which would have been in effect at the time
of such expiration or termination had such Option or Convertible Security, to
the extent outstanding immediately prior to such expiration or termination,
never been issued; provided that if such expiration or termination would result
in an increase in the Conversion Price then in effect, such increase shall not
be effective until 30 days after written notice thereof has been given to all
holders of the Loans. For purposes of paragraph 1C, the expiration or
termination of any Option or Convertible Security which was outstanding as of
the date of issuance of the Loans shall not cause the Conversion Price hereunder
to be adjusted unless, and only to the extent that, a change in the terms of
such Option or Convertible Security caused it to be deemed to have been issued
after the date of issuance of the Loans.
(v) CALCULATION OF CONSIDERATION RECEIVED. If any Common
Stock, Option or Convertible Security is issued or sold or deemed to have been
issued or sold for cash, the consideration received therefor shall be deemed to
be the amount received by the Corporation therefor (net of discounts,
commissions and related expenses). If any Common Stock, Option or Convertible
Security is issued or sold for a consideration other than cash, the amount of
the consideration other than cash received by the Corporation shall be the fair
value of such consideration, except where such consideration consists of
securities, in which case the amount of consideration received by the
Corporation shall be the Market Price thereof as of the date of receipt. If any
Common Stock, Option or Convertible Security is issued to the
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owners of the non-surviving entity in connection with any merger in which the
Corporation is the surviving corporation, the amount of consideration therefor
shall be deemed to be the fair value of such portion of the net assets and
business of the non-surviving entity as is attributable to such Common Stock,
Option or Convertible Security, as the case may be. The fair value of any
consideration other than cash and securities shall be determined jointly by the
Corporation and the holders of a majority of the outstanding Loans. If such
parties are unable to reach agreement within a reasonable period of time, the
fair value of such consideration shall be determined by an independent appraiser
experienced in valuing such type of consideration jointly selected by the
Corporation and the holders of a majority of the outstanding Loans. The
determination of such appraiser shall be final and binding upon the parties, and
the fees and expenses of such appraiser shall be allocated between the
Corporation, on the one hand, and the holders of Loans (pro rata among such
holders on the principal amount of Loans held by each such holder), on the other
hand, based upon the percentage which the portion of the contested amount not
awarded to each party bears to the amount actually contested by such party;
provided that at any time there are more than 10 record holders of Loans, the
Corporation shall pay all such expenses.
(vi) INTEGRATED TRANSACTIONS. In case any Option is issued in
connection with the issue or sale of other securities of the Corporation,
together comprising one integrated transaction in which no specific
consideration is allocated to such Option by the parties thereto, the Option
shall be deemed to have been issued for a consideration of $.01.
(vii) TREASURY SHARES. The number of shares of Common Stock
outstanding at any given time shall not include shares owned or held by or for
the account of the Corporation or any Subsidiary, and the disposition of any
shares so owned or held shall be considered an issue or sale of Common Stock.
(viii) RECORD DATE. If the Corporation takes a record of the
holders of Common Stock for the purpose of entitling them (a) to receive a
dividend or other distribution payable in Common Stock, Options or in
Convertible Securities or (b) to subscribe for or purchase Common Stock, Options
or Convertible Securities, then such record date shall be deemed to be the date
of the issue or sale of the shares of Common Stock deemed to have been issued or
sold upon the declaration of such dividend or upon the making of such other
distribution or the date of the granting of such right of subscription or
purchase, as the case may be.
1D. SUBDIVISION OR COMBINATION OF COMMON STOCK. If the
Corporation at any time subdivides (by any stock split, stock dividend,
recapitalization or otherwise) one or more classes of its outstanding shares of
Common Stock into a greater number of shares, the Conversion Price in effect
immediately prior to such subdivision shall be proportionately reduced, and if
the Corporation at any time combines (by reverse stock split or otherwise) one
or more classes of its outstanding shares of Common Stock into a smaller number
of shares, the Conversion Price in effect immediately prior to such combination
shall be proportionately increased.
1E. REORGANIZATION, RECLASSIFICATION, CONSOLIDATION, MERGER OR
SALE. Any recapitalization, reorganization, reclassification, consolidation,
merger, sale of all or substantially all of the
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Corporation's assets or other transaction, in each case which is effected in
such a manner that the holders of Common Stock are entitled to receive (either
directly or upon subsequent liquidation) stock, securities or assets with
respect to or in exchange for Common Stock, is referred to herein as an "Organic
Change." Prior to the consummation of any Organic Change, the Corporation shall
make appropriate provisions (in form and substance satisfactory to the holders
of a majority of the Loans then outstanding) to insure that each of the holders
of Loans shall thereafter have the right to acquire and receive, in lieu of or
in addition to (as the case may be) the shares of Conversion Stock immediately
theretofore acquirable and receivable upon the conversion of such holder's
Loans, such shares of stock, securities or assets as such holder would have
received in connection with such Organic Change if such holder had converted its
Loans immediately prior to such Organic Change. In each such case, the
Corporation shall also make appropriate provisions (in form and substance
satisfactory to the holders of a majority of the Loans then outstanding) to
insure that the provisions of this Section 1 and Sections 2 and 3 hereof shall
thereafter be applicable to the Loans (including, in the case of any such
consolidation, merger or sale in which the successor entity or purchasing entity
is other than the Corporation, an immediate adjustment of the Conversion Price,
and a corresponding immediate adjustment in the number of shares of Conversion
Stock acquirable and receivable upon conversion of the Loans, if the value so
reflected is less than the Conversion Price or Market Price determined as of the
date of such consolidation, merger or sale). The Corporation shall not effect
any such consolidation, merger or sale, unless prior to the consummation
thereof, the successor entity (if other than the Corporation) resulting from
consolidation or merger or the entity purchasing such assets assumes by written
instrument (in form and substance satisfactory to the holders of a majority of
the Loans then outstanding), the obligation to deliver to each such holder such
shares of stock, securities or assets as, in accordance with the foregoing
provisions, such holder may be entitled to acquire.
1F. CERTAIN EVENTS. If any event occurs of the type
contemplated by the provisions of this Section 1 but not expressly provided for
by such provisions (including, without limitation, the granting of stock
appreciation rights, phantom stock rights or other rights with equity features),
then the Corporation's Board of Directors shall make an appropriate adjustment
in the Conversion Price so as to protect the rights of the holders of Loans;
PROVIDED THAT no such adjustment shall increase the Conversion Price as
otherwise determined pursuant to this Section 1 or decrease the number of shares
of Conversion Stock issuable upon conversion of any Loan or any portion of any
Loan.
1G. NOTICES.
(i) Immediately upon any adjustment of the Conversion Price,
the Corporation shall give written notice thereof to all holders of Loans,
setting forth in reasonable detail and certifying the calculation of such
adjustment.
(ii) The Corporation shall give written notice to all holders
of Loans at least 20 days prior to the date on which the Corporation closes its
books or takes a record (a) with respect to any dividend or distribution upon
Common Stock, (b) with respect to any pro rata subscription offer to holders of
Common Stock or (c) for determining rights to vote with respect to any Organic
Change, dissolution or liquidation.
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(iii) The Corporation shall also give written notice to the
holders of Loans at least 30 days prior to the date on which any Change of
Control or Organic Change shall take place.
1H. NO AVOIDANCE. If the Corporation shall enter into any
transaction for the purpose of avoiding the application of the provisions of
this Section 1, the benefits of such provisions shall nevertheless apply and be
preserved.
Section 2. PURCHASE RIGHTS. If at any time the Corporation
grants, issues or sells any Options, Convertible Securities or rights to
purchase stock, warrants, securities or other property pro rata to the record
holders of any class of Common Stock (the "PURCHASE RIGHTS"), then each holder
of Loans shall be entitled to acquire, upon the terms applicable to such
Purchase Rights, the aggregate Purchase Rights which such holder could have
acquired if such holder had held the number of shares of Conversion Stock
acquirable upon conversion of such holder's Loans immediately before the date on
which a record is taken for the grant, issuance or sale of such Purchase Rights,
or if no such record is taken, the date as of which the record holders of Common
Stock are to be determined for the grant, issue or sale of such Purchase Rights.
Section 3. PARTICIPATING DIVIDENDS. In the event that the
Corporation declares or pays any dividends upon the Common Stock (whether
payable in cash, securities or other property) other than dividends payable
solely in shares of Common Stock, the Corporation shall also declare and pay to
the holders of the Loans at the same time that it declares and pays such
dividends to the holders of the Common Stock, the dividends which would have
been declared and paid with respect to the Common Stock issuable upon conversion
of the Loans had all of the outstanding Loans been converted immediately prior
to the record date for such dividend, or if no record date is fixed, the date as
of which the record holders of Common Stock entitled to such dividends are to be
determined.
Section 4. COVENANTS.
4A. CURRENT PUBLIC INFORMATION. The Corporation shall file all
reports required to be filed by it under the Securities Act and the Exchange Act
and the rules and regulations adopted by the SEC thereunder and shall take such
further action as any holder or holders of Restricted Securities may reasonably
request, all to the extent required to enable such holders to sell Restricted
Securities pursuant to (i) Rule 144 adopted by the SEC under the Securities Act
(as such rule may be amended from time to time) or any similar rule or
regulation hereafter adopted by the SEC or (ii) a registration statement on Form
S-2 or S-3 or any similar registration form hereafter adopted by the SEC. Upon
request in connection with a proposed transfer or registration, the Corporation
shall deliver to any holder of Restricted Securities a written statement as to
whether it has complied with such requirements. Promptly after execution of this
Agreement, the Corporation will file with NASDAQ/NMS the appropriate
notification form for the listing of additional shares in a form reasonably
acceptable to the Purchasers pursuant to the rules and regulations of the
NASDAQ/NMS in respect of the Common Stock issuable upon conversion of the Loans
and the Corporation shall at all times cause the Common Stock into which the
Loans are convertible to be listed on the NASDAQ/NMS.
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4B. LIMITED RIGHTS OF FIRST REFUSAL
(i) If the Corporation authorizes the issuance or sale of any
Common Stock (or any securities containing options or rights to acquire
any Common Stock), other than an Exempt Issuance (as defined below),
the Corporation shall first offer to sell to each holder of Purchaser
Securities a portion of the securities to be issued equal to the number
of securities to be issued MULTIPLIED BY the quotient obtained by
dividing (a) the number of Purchaser Securities held by such holder, by
(b) the sum of the total number of Purchaser Securities then in
existence plus the total number of shares of Common Stock (other than
Purchaser Securities) then outstanding (assuming exercise or conversion
of all convertible securities and rights to acquire Common Stock then
exercisable or convertible into Common Stock). Each such holder shall
be entitled to purchase such securities at the most favorable price and
on the most favorable terms as such securities are to be offered to any
other Persons; PROVIDED that if all Persons entitled to purchase or
receive such securities are required to also purchase other securities
of the Corporation, the holders exercising their rights pursuant to
this paragraph shall also be required to purchase the same strip of
securities (on the same terms and conditions) that such other Persons
are required to purchase. The purchase price for all securities offered
to such holders hereunder shall be payable in cash.
(ii) In order to exercise its purchase rights hereunder, a
holder of Purchaser Securities must within 15 business days after
receipt of written notice from the Corporation describing in reasonable
detail the securities being offered, the purchase price thereof, the
payment terms and such holder's percentage allotment, deliver a written
notice to the Corporation describing such holder's election hereunder.
If all of the securities offered to the holders of Purchaser Securities
are not fully subscribed, the remaining stock and securities shall be
reoffered by the Corporation to the holders purchasing their full
allotment upon the terms set forth in this paragraph, except that such
holders must exercise their rights within 5 business days after receipt
of such reoffer.
(iii) Upon the expiration of the offering periods described
above, the Corporation shall be entitled to sell such securities which
the holders of Purchaser Securities have not elected to purchase during
the 180 days following such expiration at a price not less and on other
terms and conditions no more favorable to the purchasers thereof than
that offered to such holders. Any securities offered or sold by the
Corporation after such 180-day period must be reoffered to the holders
of Purchaser Securities pursuant to the terms of this paragraph.
(iv) For purposes of this Agreement, "EXEMPT ISSUANCE" shall
mean any issuance (a) of Preferred Stock, Loans or Warrants at the
Closing as contemplated under this Agreement, (b) of Common Stock upon
conversion of the Preferred Stock or the Loans, upon exercise of the
Warrants or upon consummation of the Bond Exchanges, (c) of securities
to employees, consultants and directors of the Corporation and its
Subsidiaries pursuant to the terms of Qualifying Option Plans, (d) of
securities as consideration for the acquisition of another corporation
or business, (e) as a pro rata distribution with respect to the Common
Stock, (f) pursuant to any securities split, securities dividend,
recapitalization or reorganization that does not dilute the economic
interest of any holder of Common Stock, (g) of warrants or equity
securities issued to
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a lender in connection with its loan to the Corporation or any of its
Subsidiaries, or (h) pursuant to an offering to the public registered
under the Securities Act.
4C. SEC REPORTS. The Corporation shall file on a timely basis
all SEC Reports required to be filed by it with the SEC under the Exchange Act,
the Securities Act and the rules and regulations of the SEC under either of the
foregoing applicable to such SEC Reports, which SEC Reports shall comply in all
material respects with the requirements of the Exchange Act, the Securities Act
and the published rules and regulations of the SEC thereunder, each as
applicable to such SEC Reports.
4D. INTEREST. Notwithstanding any terms of the Senior Credit
Agreement to the contrary, prior to the fifth anniversary of the closing of the
transactions contemplated under the Purchase Agreement, the Corporation will not
pay any interest on the Loans in cash without the consent of the holders of a
majority in principal amount of the Loans and such accrued and unpaid interest
shall become part of the principal amount of the Loans. After the fifth
anniversary of the closing of the transactions contemplated hereby, the
Corporation may elect to have the interest that has accrued after such date
continue to accrue and become part of the principal amount outstanding under the
Loans or be paid in cash. If a Change of Control occurs prior to the fifth
anniversary of the closing under the Purchase Agreement, then in connection with
any repayment of the Loans as a result of such Change of Control, interest on
the Loans shall, for all purposes (including conversion), be calculated as
though such Change of Control occurred on the fifth anniversary of the closing
date.
4E. USE OF PROCEEDS. The Corporation shall use the proceeds of
the Loans only for working capital and general corporate purposes.
4F. NOTICE BEFORE PREPAYMENT. The Corporation agrees to give
each holder of Loans at least 30 days' prior written notice before making any
prepayment of the Loans or any portion of the Loans, whether as a result of a
Change of Control or any other mandatory or optional prepayment provision of the
Senior Credit Agreement.
4G. COVENANTS FOR CONVERSION. The Corporation shall assist and
cooperate with any holder of Loans required to make any governmental filings or
obtain any governmental approval prior to or in connection with any conversion
of Loans hereunder (including, without limitation, making any filings required
to be made by the Corporation) and shall pay for and hold each Purchaser
harmless against liability for any expenses in connection therewith. Without
limiting the generality of the foregoing, the Corporation and any holder of
Loans, to the extent required to do so in connection with the conversion of the
Loans, shall prepare and file the notifications required under the Xxxx Xxxxx
Xxxxxx Antitrust Improvements Act of 1976, as amended, in connection with the
transactions contemplated by this Agreement. The Corporation and the holder of
Loans shall respond as promptly as practicable to (i) any inquiries or requests
received from the Federal Trade Commission or the Department of Justice for
additional information or documentation and (ii) any inquiries or requests
received from any state attorney general or other governmental body in
connection with antitrust or related matters. The Corporation and such Purchaser
shall (A) give the other parties prompt notice of the commencement of any
action, suit, litigation, arbitration, preceding or investigation by or before
any governmental body with respect to the
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transactions contemplated by this Agreement, (B) keep the other parties informed
as to the status of any such action, suit, litigation, arbitration, preceding or
investigation, and (C) promptly inform the other parties of any communication to
or from the Federal Trade Commission, the Department of Justice or any other
governmental body regarding the transactions contemplated by this Agreement.
Section 5. TRANSFER OF RESTRICTED SECURITIES.
5A. GENERAL PROVISIONS. Restricted Securities are transferable
only pursuant to (i) Rule 144 or Rule 144A of the SEC (or any similar rule or
rules then in force) if such rule is available, (ii) public offerings registered
under the Securities Act, (iii) in-kind distributions by any holder that is an
investment fund to its partners or members in connection with a distribution of
freely tradeable securities and (iv) any other legally available means of
transfer.
5B. RULE 144A. Upon the request of any Purchaser, the
Corporation shall promptly supply to such Purchaser or its prospective
transferees all information regarding the Corporation required to be delivered
in connection with a transfer pursuant to Rule 144A of the SEC.
5C. LEGEND REMOVAL. If any Restricted Securities become
eligible for sale pursuant to Rule 144(k), the Corporation shall, upon the
request of the holder of such Restricted Securities, remove the legend set forth
in paragraph 5D from the certificates for such Restricted Securities. In
addition, if in connection with any transfer the holder of Restricted Securities
delivers to the Corporation an opinion of Xxxxxxxx & Xxxxx or other counsel
which (to the Corporation's reasonable satisfaction) is knowledgeable in
securities law matters to the effect that no subsequent transfer of such
Restricted Securities shall require registration under the Securities Act, then
the Corporation promptly upon such contemplated transfer shall deliver new
certificates for such Restricted Securities that do not bear the Securities Act
legend set forth in paragraph 5D.
5D. LEGEND. Such Purchaser understands that the Restricted
Securities shall bear a restrictive legend substantially in the following form:
"The securities represented by this certificate were
originally issued on __________ ___, ____, and have not been
registered under the Securities Act of 1933, as amended. The
transfer of the securities represented by this certificate is
subject to the conditions specified in the Conversion
Agreement, dated as of October 26, 2001, and as amended and
modified from time to time, between the issuer (the "Company")
and certain investors, and the Company reserves the right to
refuse the transfer of such securities until such conditions
have been fulfilled with respect to such transfer. A copy of
such conditions shall be furnished by the Company to the
holder hereof upon written request and without charge."
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Whenever any particular securities cease to be Restricted Securities, the holder
thereof shall be entitled to receive from the Corporation, without expense, new
securities of like tenor not bearing a Securities Act legend of the character
set forth in this paragraph.
Section 6. DEFINITIONS.
"BOARD" means the Corporation's Board of Directors.
"BOND EXCHANGES" has the meaning given to such term in the
Purchase Agreement.
"CHANGE OF CONTROL" shall be deemed to occur one day after the
occurrence of a "Change of Control" as defined in the Senior Credit Agreement
(as in effect on October 26, 2001, without regard to subsequent amendment
thereof); PROVIDED that for so long as the use of the foregoing definition would
cause the issuance or existence of the Preferred Stock to be prohibited under
the Indentures or would cause the Preferred Stock to be treated as "Disqualified
Stock" under the Indentures, a "CHANGE OF CONTROL" shall be deemed to occur one
day after the occurrence of a "Change of Control" under the Indentures (as in
effect on October 26, 2001, without regard to subsequent amendment thereof).
"COMMON STOCK" means the Corporation's Common Stock, par value
$.01 per share, and any capital stock of any class of the Corporation hereafter
authorized which is not limited to a fixed sum or percentage of par or stated
value in respect to the rights of the holders thereof to participate in
dividends or in the distribution of assets upon any liquidation, dissolution or
winding up of the Corporation.
"COMMON STOCK DEEMED OUTSTANDING" means, at any given time,
the number of shares of Common Stock actually outstanding at such time, plus the
number of shares of Common Stock deemed to be outstanding pursuant to
subparagraphs 1C(i) and 1C(ii) hereof whether or not the Options or Convertible
Securities are actually exercisable at such time.
"CONVERSION STOCK" means shares of the Corporation's Common
Stock, par value $0.01 per share; PROVIDED THAT if there is a change such that
the securities issuable upon conversion of the Loans are issued by an entity
other than the Corporation or there is a change in the type or class of
securities so issuable, then the term "Conversion Stock" shall mean one share of
the security issuable upon conversion of the Loans if such security is issuable
in shares, or shall mean the smallest unit in which such security is issuable if
such security is not issuable in shares.
"CONVERTIBLE SECURITIES" means any stock or securities
directly or indirectly convertible into or exchangeable for Common Stock.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, or any similar federal law then in force.
"INDENTURES" means (i) that certain Indenture, dated as of
February 18, 1998 by and between the Corporation and Xxxxxx Trust and Savings
Bank, as trustee, with respect to the Corporation's 12.125% Senior Discount
Notes due 2008, as amended by that Supplemental Indenture, dated as of October
26, 2001 and (ii) that Indenture, dated as of January 12, 2000, by and between
the Corporation
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and Xxxxxx Trust and Savings Bank, as trustee, with respect to the Corporation's
11.875% Senior Notes due 2010, as amended by that Supplemental Indenture, dated
as of October 26, 2001.
"MARKET PRICE" of any security means the average, over a
period of 15 days consisting of the day as of which "Market Price" is being
determined and the 14 consecutive trading days prior to such day, of the closing
prices of such security's sales on the principal securities exchange on which
such security may at the time be listed, or, if there has been no sales on such
exchange on any day, the average of the highest bid and lowest asked prices on
such exchange at the end of such day, or, if on any day such security is not so
listed, the average of the representative bid and asked prices quoted in the
Nasdaq National Market System as of 4:00 P.M., New York time, or, if on any day
such security is not quoted in the Nasdaq National Market System, the average of
the highest bid and lowest asked prices on such day in the domestic
over-the-counter market as reported by the National Quotation Bureau,
Incorporated, or any similar successor organization. If at any time such
security is not listed on any securities exchange or quoted in the Nasdaq
National Market System or the over-the-counter market, the "Market Price" shall
be the fair value thereof determined jointly by the Corporation and the holders
of a majority of the Loans. If such parties are unable to reach agreement within
a reasonable period of time, such fair value shall be determined by an
independent appraiser experienced in valuing securities jointly selected by the
Corporation and the holders of a majority of the Loans. The determination of
such appraiser shall be final and binding upon the parties, and the fees and
expenses of such appraiser shall be allocated between the Corporation, on the
one hand, and the holders of Loans (pro rata among such holders on the principal
amount of Loans held by each such holder), on the other hand, based upon the
percentage which the portion of the contested amount not awarded to each party
bears to the amount actually contested by such party; PROVIDED that at any time
there are more than 10 record holders of Loans, the Corporation shall pay all
such expenses.
"NASDAQ/NMS" means the National Association of Securities
Dealers, Inc. Automated Quotation/National Market System.
"OPERATIVE DOCUMENTS" has the meaning given to such term in
the Purchase Agreement.
"OPTIONS" means any rights, warrants or options to subscribe
for or purchase Common Stock or Convertible Securities.
"PERSON" means an individual, a partnership, a corporation, a
limited liability company, a limited liability, an association, a joint stock
company, a trust, a joint venture, an unincorporated organization and a
governmental entity or any department, agency or political subdivision thereof.
"PUBLIC OFFERING" means any offering by the Corporation of its
capital stock or equity securities to the public pursuant to an effective
registration statement under the Securities Act of 1933, as then in effect, or
any comparable statement under any similar federal statute then in force.
"PURCHASER SECURITIES" means (i) the Loans issued to the
Purchasers hereunder, (ii) any Loans issued or issuable upon conversion of the
Preferred Stock referred to in clause (i) and (iii) any securities issued
directly or indirectly with respect to any of the foregoing securities by way of
a stock split,
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stock dividend or other division of securities, or in connection with a
combination of securities, recapitalization, merger, consolidation or other
reorganization. As to any particular securities constituting Purchaser
Securities, such securities shall cease to be Purchaser Securities when they
have been (a) effectively registered under the Securities Act and disposed of in
accordance with the registration statement covering them, (b) distributed to the
public through a broker, dealer or market maker pursuant to Rule 144 under the
Securities Act (or any similar provision then in force) or (c) repurchased or
otherwise acquired by the Corporation. Any reference herein to a "majority of
the Purchaser Securities" or the "number of Purchaser Securities" or words of
like effect for purposes of comparison or calculation shall refer, with respect
to any particular Purchaser Securities, to the number of shares of Common Stock
(or equivalent common equity securities of the Corporation) then represented by
such Purchaser Securities (on a fully diluted, as-converted basis).
"QUALIFYING OPTION PLANS" means stock option plans approved by
the Board.
"RESTRICTED SECURITIES" means (i) the Common Stock issued upon
conversion of the Loans and (ii) any securities issued directly or indirectly
with respect to any of the foregoing securities by way of a stock split, stock
dividend or other division of securities, or in connection with a combination of
securities, recapitalization, merger, consolidation or other reorganization. As
to any particular Restricted Securities, such securities shall cease to be
Restricted Securities when they have been (a) effectively registered under the
Securities Act and disposed of in accordance with the registration statement
covering them, (b) distributed to the public through a broker, dealer or market
maker pursuant to Rule 144 (or any similar provision then in force) under the
Securities Act or become eligible for sale pursuant to Rule 144(k) (or any
similar provision then in force) under the Securities Act or (c) otherwise
transferred and new certificates for them not bearing the Securities Act legend
set forth in paragraph 5D have been delivered by the Corporation.
"SEC" means the Securities and Exchange Commission and any
governmental body, commission or agency succeeding to the functions thereof.
"SEC REPORTS" shall have the meaning given to such term in the
Purchase Agreement.
"SECURITIES ACT" means the Securities Act of 1933, as amended,
or any similar federal law then in force.
"SENIOR CREDIT AGREEMENT" means that certain amended and
restated Credit and Guaranty Agreement, dated as of October 26, 2001, by and
among the Corporation, Focal Financial Services, certain Subsidiaries of the
Corporation, various lenders, Xxxxxxx Sachs Credit Partners L.P., Xxxxxxx Xxxxx
Xxxxxx Inc., Citicorp USA, Inc. Bank of America, N.A. with respect to
$325,000,000 Senior Secured Credit Facilities.
"SUBSIDIARY" means, with respect to any Person, any
corporation, limited liability company, partnership, association or other
business entity of which (i) if a corporation, a majority of the total voting
power of shares of stock entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof
is at the time owned or controlled, directly or indirectly,
- 14 -
by that Person or one or more of the other Subsidiaries of that Person or a
combination thereof, or (ii) if a limited liability company, partnership,
association or other business entity, a majority of the partnership or other
similar ownership interest thereof is at the time owned or controlled, directly
or indirectly, by any Person or one or more Subsidiaries of that person or a
combination thereof. For purposes hereof, a Person or Persons shall be deemed to
have a majority ownership interest in a limited liability company, partnership,
association or other business entity if such Person or Persons shall be
allocated a majority of limited liability company, partnership, association or
other business entity gains or losses or shall be or control the managing
general partner of such limited liability company, partnership, association or
other business entity. For purposes of this Certificate of Designation, if the
context does not otherwise specify in respect of which Person the term
"Subsidiary" is used, the term "Subsidiary" shall refer to a Subsidiary of the
Corporation.
"WARRANTS" has the meaning given to such term in the Purchase
Agreement.
Section 7.
7A. INDEMNIFICATION OF PURCHASERS. In consideration of each
Purchaser's execution and delivery of this Agreement and making the Loans and in
addition to all of the Corporation's other obligations under this Agreement and
the other Operative Documents, the Corporation shall defend, protect, indemnify
and hold harmless each Purchaser, each other holder of Purchaser Securities and
each Person, if any, who controls any Purchaser within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act, and all of their
officers, directors, employees and agents (including, without limitation, those
retained in connection with the transactions contemplated by this Agreement)
(collectively, the "INDEMNITEES") from and against any and all actions, causes
of action, suits, claims, losses, diminution of value, costs, penalties, fees,
liabilities and damages, and expenses in connection therewith (irrespective of
whether any such Indemnitee is a party to the action for which indemnification
hereunder is sought), and including reasonable attorneys' fees and disbursements
and expenses incurred in the investigation or defense of any of the same or in
asserting, preserving or enforcing any of their respective rights hereunder (the
"INDEMNIFIED LIABILITIES"), incurred by the Indemnitees or any of them as a
result of, or arising out of, or relating to (i) the execution, delivery,
performance or enforcement of this Agreement, the other Operative Documents and
any other instrument, certificate, document or agreement executed pursuant
hereto by any of the Indemnitees or (ii) any breach of any covenant, agreement,
representation or warranty of the Corporation under this Agreement, any other
Operative Document or any other instrument, certificate, document or agreement
contemplated hereby to which the Corporation is a party. To the extent that the
foregoing undertaking by the Corporation may be unenforceable for any reason,
the Corporation shall make the maximum contribution to the payment and
satisfaction of each of the Indemnified Liabilities which is permissible under
applicable law.
7B. ACTIONS AGAINST PARTIES; NOTIFICATION. Each indemnified
party shall give notice as promptly as reasonably practicable to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability hereunder to
the extent it is not materially prejudiced as a result thereof, and in any event
shall not relieve it from any liability which it may have otherwise than on
- 15 -
account of this indemnity agreement. An indemnifying party may participate at
its own expense in the defense of such action; provided, however, that counsel
to the indemnifying party shall not (except with the consent of the indemnified
party) also be counsel to the indemnified party. In no event shall the
indemnifying parties be liable for fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any investigation
or proceeding by any Governmental Entity, commenced or threatened, or any claim
whatsoever in respect to which indemnification or contribution could be sought
under this Section 7 (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
Section 8. MISCELLANEOUS.
8A. CONSENT TO AMENDMENTS. Except as otherwise expressly
provided herein, the provisions of this Agreement may be amended or modified and
the Corporation may take any action herein prohibited, or omit to perform any
act herein required to be performed by it, only if the holders of a majority of
the Loans outstanding at the time the amendment, modification or waiver becomes
effective; provided that if any such amendment, modification or waiver would
adversely affect any Purchaser or any holder of Loans relative to the Purchasers
or the holders of Loans voting in favor of such amendment, modification, or
waiver, such amendment, modification or waiver shall also require the written
consent of such Purchasers adversely affected or the holders of a majority of
the outstanding Loans held by all holders so adversely affected; provided
further that if any such amendment, modification or waiver is to a provision in
this Agreement that requires a specific vote to take an action thereunder or to
take an action with respect to the matters described therein, such amendment,
modification or waiver shall not be effective unless such vote is obtained with
respect to such amendment, modification or waiver. No other course of dealing
between the Corporation and any Purchaser or the holder of any Loans or any
delay in exercising any rights hereunder shall operate as a waiver of any rights
of any such holders. For purposes of this Agreement, Loans held by the
Corporation or any Subsidiaries shall not be deemed to be outstanding.
8B. SUCCESSORS AND ASSIGNS. Except as otherwise expressly
provided herein, all covenants and agreements contained in this Agreement by or
on behalf of any of the parties hereto shall bind and inure to the benefit of
the respective successors and assigns of the parties hereto whether so expressed
or not. In addition, and whether or not any express assignment has been made,
the provisions of this Agreement which are for any Purchaser's benefit as a
purchaser or holder of Loans are also for the benefit of, and enforceable by,
any subsequent holder of such Loans.
8C. SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this
- 16 -
Agreement is held to be prohibited by or invalid under applicable law, such
provision shall be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of this Agreement.
8D. COUNTERPARTS. This Agreement may be executed
simultaneously in two or more counterparts, any one of which need not contain
the signatures of more than one party, but all such counterparts taken together
shall constitute one and the same Agreement.
8E. DESCRIPTIVE HEADINGS; INTERPRETATION. The descriptive
headings of this Agreement are inserted for convenience only and do not
constitute a substantive part of this Agreement. Whenever required by the
context, any pronoun used in this Agreement shall include the corresponding
masculine, feminine or neuter forms, and the singular forms of nouns, pronouns,
and verbs shall include the plural and vice versa. Words such as "herein,"
"hereunder," "hereof" and the like shall be deemed to refer to this Agreement as
a whole and not to any particular document or article, Section, paragraph or
other portion of a document. The use of the words "include" or "including" in
this Agreement shall be by way of example rather than by limitation. The use of
the words "or," "either" or "any" shall not be exclusive.
8F. NO STRICT CONSTRUCTION. The parties hereto have
participated jointly in the negotiation and drafting of this Agreement. In the
event an ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by the parties hereto, and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any of the provisions of this Agreement.
8G. DELIVERY BY FACSIMILE. This Agreement, the agreements
referred to herein, and each other agreement or instrument entered into in
connection herewith or therewith or contemplated hereby or thereby, and any
amendments hereto or thereto, to the extent signed and delivered by means of a
facsimile machine, shall be treated in all manner and respects as an original
agreement or instrument and shall be considered to have the same binding legal
effect as if it were the original signed version thereof delivered in person. At
the request of any party hereto or to any such agreement or instrument, each
other party hereto or thereto shall reexecute original forms thereof and deliver
them to all other parties. No party hereto or to any such agreement or
instrument shall raise the use of a facsimile machine to deliver a signature or
the fact that any signature or agreement or instrument was transmitted or
communicated through the use of a facsimile machine as a defense to the
formation or enforceability of a contract and each such party forever waives any
such defense.
8H. GOVERNING LAW. All issues and questions concerning the
construction, validity, enforcement and interpretation of this Agreement and the
exhibits and schedules hereto shall be governed by, and construed in accordance
with, the laws of the State of Delaware, without giving effect to any choice of
law or conflict of law rules or provisions (whether of the State of Delaware or
any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Delaware.
8I. REPLACEMENT. Upon receipt of evidence reasonably
satisfactory to the Corporation (an affidavit of the registered holder shall be
satisfactory) of the ownership and the loss, theft, destruction or mutilation of
any note evidencing the Loans, and in the case of any such loss, theft or
destruction, upon
- 17 -
receipt of indemnity reasonably satisfactory to the Corporation (PROVIDED THAT
if the holder is a financial institution or other institutional investor its own
agreement shall be satisfactory), or, in the case of any such mutilation upon
surrender of such certificate, the Corporation shall (at its expense) execute
and deliver in lieu of such note a new note of like kind representing the
principal amount represented by such lost, stolen, destroyed or mutilated note
and dated the date of such lost, stolen, destroyed or mutilated note, and
interest shall accrue on the Loans represented by such new note from the date to
which interest has been fully paid on such lost, stolen, destroyed or mutilated
note.
8J. NOTICES. All notices, demands or other communications to
be given or delivered under or by reason of the provisions of this Agreement
shall be in writing and shall be deemed to have been given when delivered
personally to the recipient, telecopied to the recipient (with hard copy sent by
overnight courier in the manner provided hereunder) if sent prior to 4:00 p.m.
Chicago time on a business day (and otherwise, on the immediately succeeding
business day), one business day after being sent to the recipient by reputable
overnight courier service (charges prepaid) or three business days after being
mailed to the recipient by certified or registered mail, return receipt
requested and postage prepaid. Such notices, demands and other communications
shall be sent (i) to the Corporation, at its principal executive offices and
(ii) to any holder of Loans, at such holder's address as it appears in the
records of the Corporation (unless otherwise indicated by any such holder).
* * * * *
- 18 -
IN WITNESS WHEREOF, each of the parties hereto has duly
executed this agreement as of the date first written above.
FOCAL COMMUNICATIONS CORPORATION
By: /s/ Xxxxx Xxxxxxx
Its:
----------------------------------------
[SIGNATURE PAGE TO CONVERSION AGREEMENT]
IN WITNESS WHEREOF, each of the parties hereto has duly
executed this agreement as of the date first written above.
GREAT HILL EQUITY PARTNERS LIMITED PARTNERSHIP
By: Great Hill Partners GP, LLC
Its: General Partner
By: /s/ Xxxx X. Xxxxx
A Manager
GREAT HILL INVESTORS, LLC
By: /s/ Xxxx X. Xxxxx
A Manager
GREAT HILL EQUITY PARTNERS II
LIMITED PARTNERSHIP
By: Great Hill Partners XX XX, LLC
Its: General Partner
By: /s/ Xxxx X. Xxxxx
A Manager
GREAT HILL AFFILIATE PARTNERS II
LIMITED PARTNERSHIP
By: Great Hill Partners XX XX, LLC
Its: General Partner
By: /s/ Xxxx X. Xxxxx
A Manager
[SIGNATURE PAGE TO CONVERSION AGREEMENT]
IN WITNESS WHEREOF, each of the parties hereto has duly
executed this agreement as of the date first written above.
MADISON DEARBORN CAPITAL PARTNERS IV, L.P.
By: Madison Dearborn Partners IV, L.P.
Its: General Partner
By: Madison Dearborn Partners, L.L.C.
Its: General Partner
By: /s/ Xxxxx Xxxxx
Its:
------------------------------------------
[SIGNATURE PAGE TO CONVERSION AGREEMENT]
IN WITNESS WHEREOF, each of the parties hereto has duly
executed this agreement as of the date first written above.
FRONTENAC VIII LIMITED PARTNERSHIP
By: Frontenac VIII Partners, L.P.
Its: General Partner
By: Frontenac Company VIII, L.L.C.
Its: General Partner
By: /s/ Xxxxx X. Xxxxxxxx
Its:
------------------------------------------
FRONTENAC MASTERS VIII LIMITED PARTNERSHIP
By: Frontenac VIII Partners, L.P.
Its: General Partner
By: Frontenac Company VIII, L.L.C.
Its: General Partner
By: /s/ Xxxxx X. Xxxxxxxx
Its:
------------------------------------------
[SIGNATURE PAGE TO CONVERSION AGREEMENT]
IN WITNESS WHEREOF, each of the parties hereto has duly
executed this agreement as of the date first written above.
BATTERY VENTURES III, L.P.
By: Battery Partners III, L.P.
Its: General Partner
By: /s/ Xxxx Xxxxxxx
Its:
------------------------------------------
BATTERY VENTURES VI, L.P.
By: Battery Partners VI, LLC
Its: General Partner
By: /s/ Xxxx Xxxxxxx
Its:
------------------------------------------
BATTERY INVESTMENT PARTNERS VI, LLC
By: /s/ Xxxx Xxxxxxx
Its:
------------------------------------------
[SIGNATURE PAGE TO CONVERSION AGREEMENT]
SCHEDULE OF PURCHASERS
Madison Dearborn Capital Partners IV, L.P.
Three First Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Special Co-Invest Partners I
Three First Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Frontenac VIII Limited Partnership
000 X. XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Frontenac Masters VIII Limited Partnership
000 X. XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Battery Ventures III, L.P.
00 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Battery Ventures VI, L.P.
00 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Battery Investment Partners VI, LLC
00 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Great Hill Equity Partners Limited Partnership
c/o Great Hill Partners
0 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxx Xxxxx
Telephone: 000-000-0000
Telecopy: ____________
Great Hill Investors, LLC
c/o Great Hill Partners
0 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxx Xxxxx
Telephone: 000-000-0000
Telecopy: ____________
Great Hill Equity Partners II Limited Partnership
c/o Great Hill Partners
0 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxx Xxxxx
Telephone: 000-000-0000
Telecopy: ____________
Great Hill Affiliate Partners II Limited Partnership
c/o Great Hill Partners
0 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxx Xxxxx
Telephone: 000-000-0000
Telecopy: ____________
Xxxxxxxx Street Partners III
c/o Kirkland & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxx, P.C.
Telephone: 000-000-0000
Telecopy: 000-000-0000
