EXHIBIT 10.22
AMENDMENT NO. 2 TO SHAREHOLDERS' AGREEMENT
AMENDMENT NO. 2 TO SHAREHOLDERS' AGREEMENT, dated as of February 4, 2000
(this "Amendment") to that certain Shareholders' Agreement dated as of April 23,
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1999, as amended by Amendment No. 1 dated February 2, 2000 ("Amendment No. 1"),
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between BROADVIEW NETWORKS HOLDINGS, INC. (f/k/a Coaxicom, Inc.), a Delaware
corporation (the "Company"), ▇▇▇▇▇ Communications Fund, L.P. ("▇▇▇▇▇"), ▇▇▇▇
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Gross, those parties listed on Schedule I to the (i) Series A Preferred Stock
Purchase Agreement, dated as of January 29, 1998, by and among the Company and
the Series A Holders, and (ii) the Series B Preferred Stock Purchase Agreement,
dated as of September 9, 1998, by and among the Company and the Series B
Holders, and each of the individuals listed on the signature pages thereto under
the heading "Founders", is made by and between the Company the other parties who
appear as signatories to this Amendment (collectively, the "Shareholders").
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WHEREAS, Section 3 of Amendment No. 1 contemplated ▇▇▇▇▇ assigning the
remainder of its option (the "▇▇▇▇▇ Option") to purchase shares of 8% Series D
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Convertible Redeemable Preferred Stock of the Company ("Series D Preferred
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Stock") to the State Treasurer of the State of Michigan, as Custodian of the
Michigan Public School Employees' Retirement System, State Employees' Retirement
System and Michigan State Police Retirement System (the "State of Michigan
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Retirement Systems") on or before February 4, 2000, conditional upon the State
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of Michigan Retirement Systems exercising their assigned option on or before
such date.
WHEREAS, ▇▇▇▇▇ now desires to assign the remainder of its option to the
State of Michigan Retirement Systems, and the State of Michigan Retirement
Systems desire to exercise their assigned option as of the date hereof, subject
to the terms of this Amendment, and the Company and the Purchasers desire to
approve and consent to such exercise; and
WHEREAS, the Shareholders have previously acknowledged that the State of
Michigan Retirement Systems are collectively a Permitted Transferee of ▇▇▇▇▇,
and waived any and all rights of first offer, tag along rights and preemptive
rights to which they may have been entitled under the Shareholders' Agreement
with respect to ▇▇▇▇▇'▇ assignment of portions of the ▇▇▇▇▇ Option or the
Company's issuance of Series D Preferred Stock; and
NOW, THEREFORE, in consideration of the premises and mutual covenants and
obligations hereinafter set forth, the Company and the Purchasers hereby agree
as follows:
SECTION 1. Definitions. Capitalized terms used but not otherwise defined
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herein shall have the meaning given to them in the Shareholders' Agreement or,
if not defined therein, in the Company's Certificate of Incorporation, as
amended.
SECTION 2. Amendments to Shareholders' Agreement. The Shareholders'
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Agreement is hereby amended as of the date hereof as follows:
(a) The first sentence is amended and restated in its entirety as follows:
"THIS SHAREHOLDERS' AGREEMENT (this "Agreement") is made and
entered into effective as of April 23, 1999 among Broadview Networks
Holdings, Inc. (f/k/a Coaxicom, Inc.), a Delaware corporation (the
"Company"), ▇▇▇▇▇ Communications Fund, L.P. ("▇▇▇▇▇"), the State
Treasurer of the State of Michigan, as Custodian of the Michigan
Public School Employees' Retirement System, State Employees'
Retirement System and Michigan State Police Retirement System (the
"State of Michigan Retirement Systems"), ▇▇▇▇ ▇▇▇▇▇, those parties
listed on Schedule I to the (i) Series A Preferred Stock Purchase
Agreement (the "Series A Holders"), dated as of January 29, 1998, by
and among the Company and the Series A Holders, and (ii) Series B
Preferred Stock Purchase Agreement (the "Series B Holders"), dated as
of September 9, 1998, by and among the Company and the Series B
Holders (the Series A Holders and the Series B Holders are
collectively referred to herein as, the "Holders"), and each of the
individuals listed on the signature pages hereto under the heading
"Founders" (collectively, the Founders, the Holders, ▇▇▇▇▇, the State
of Michigan Retirement Systems, ▇▇▇▇ ▇▇▇▇▇ and their respective
Permitted Transferees (as defined herein) are collectively referred to
herein, as the "Stockholders").
(b) Section 26(a) is hereby amended and restated in its entirety as
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follows:
(a) To the fullest extent permitted by applicable law and public
policy, the parties hereby irrevocably submit to the non-exclusive
jurisdiction of any federal or state court located within the Borough
of Manhattan, State of New York over any dispute arising or relating
to this Agreement or any of the transactions contemplated hereby and
each party hereby irrevocably agrees that all claims in respect of
such dispute or any suit, action or proceeding related thereto may be
heard and determined in such courts. The parties hereby irrevocably
waive, to the fullest extent permitted by applicable law and public
policy, any objection which they may now or hereafter have to the
laying of venue of any such dispute brought in such court or any
defense of inconvenient forum for the maintenance of such dispute.
Each of the parties hereto agrees that a judgment in any such dispute
may be enforced in other jurisdictions by suit on the judgment or in
any other manner provided by law.
SECTION 3. Agreement to be Bound by Shareholders' Agreement. Upon the
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State of Michigan Retirement Systems' execution of this Amendment, the
Shareholders' Agreement shall be binding upon and inure to the benefit of the
State of Michigan Retirement Systems and their permitted assigns.
SECTION 4. Capitalization. The Company hereby represents and warrants to
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the Shareholders that the authorized and issued capital stock of the Company
immediately prior to and immediately after the February 2, 2000 and February 4,
2000 closings of the sale of shares of Series D Preferred Stock is set forth in
Schedule A attached hereto.
2
SECTION 5. Waiver of Preemptive Rights. Each Shareholder hereby waives
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any preemptive rights to which he or it may be entitled under the Stockholders
Agreement with respect to all issuances of capital stock or other securities by
the Company prior to the date hereof that are reflected in Schedule A.
SECTION 6. No Implied Amendments. Except as herein amended, the
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Shareholders' Agreement shall remain in full force and effect and is ratified in
all respects. On and after the effectiveness of this Amendment, each reference
in the Shareholders' Agreement to "this Agreement", "hereunder", "hereof",
"herein" or words of like import, and each reference to the Shareholders'
Agreement in any other agreements, documents or instruments executed and
delivered pursuant to the Securities Purchase Agreement, shall mean and be a
reference to the Shareholders' Agreement, as amended by this Amendment.
SECTION 7. Effective Date. This Amendment shall be effective as of the
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date hereof.
SECTION 8. Counterparts. This Amendment may be executed by the parties
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hereto in several counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
* * * *
3
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
first written above.
BROADVIEW NETWORKS HOLDING, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President and CEO
▇▇▇▇▇ COMMUNICATIONS FUND, L.P.
By: ▇▇▇▇▇ Capital Partners, LLC
Its General Partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: General Partner
The State Treasurer of the State of Michigan, as
Custodian of the Michigan Public School Employees'
Retirement System, State Employees' Retirement
System and Michigan State Police Retirement System
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Administrator, Alternative
Investments Division
▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇
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COMMUNICATIONS VENTURES II, L.P.
By its General Partner ComVenII, LLC
By: /s/ ▇▇▇▇▇▇ ▇. Van der Meer
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Name: ▇▇▇▇▇▇ ▇. Van der Meer
Title: Member
COMMUNICATIONS VENTURES II
AFFILIATES FUND, L.P.
By: /s/ ▇▇▇▇▇▇ ▇. Van der Meer
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Name: ▇▇▇▇▇▇ ▇. Van der Meer
Title: Member
NEW ENTERPRISE ASSOCIATES VII, L.P.
By: NEA Partners VII, L.P.,
General Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name:
Title:
NEA PRESIDENTS FUND
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name:
Title:
NEA VENTURES 1998, L.P.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name:
Title:
WPG ENTERPRISE FUND III, L.L.C.
By: WPG VC Fund Adviser, LLC.,
Fund Investment Advisory Member
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Member
▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇ VENTURE
ASSOCIATES IV, L.L.C.
By: WPG VC Fund Adviser, L.L.C.,
Fund Investment Advisory Member
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Member
WPG INFORMATION SCIENCES
ENTREPRENEUR FUND, L.P.
By: WPG VC Fund Adviser, L.L.C.
General Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Member
▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇ VENTURE
ASSOCIATES IV CAYMAN, L.P.
By: WPG VC Fund Adviser, L.L.C.,
Fund Investment Advisory Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Member
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇
