EXHIBIT 10.18
AMENDMENT NO. 1 TO SECURITIES PURCHASE AGREEMENT
AMENDMENT NO. 1 TO SECURITIES PURCHASE AGREEMENT, dated as of February
2, 200O (this "Amendment") to that certain Securities Purchase Agreement dated
as of April 23, 1999 between BROADVIEW NETWORKS HOLDINGS, INC. (f/k/a Coaxicom,
Inc.), a Delaware corporation (the "Company"), ▇▇▇▇▇ Communications Fund, L.P.
("▇▇▇▇▇") and the holders of Series A Preferred Stock of the Company and Series
B Preferred Stock of the Company as listed on Schedule A of the Securities
Purchase Agreement (the "Purchasers"), is made by and between the Company and
the Purchasers.
WHEREAS, ▇▇▇▇▇ desires to assign portions of its option (the "▇▇▇▇▇
Option") to purchase 4,290,685 shares of 8% Series D Convertible Redeemable
Preferred Stock of the Company ("Series D Preferred Stock") to ▇▇▇▇ ▇▇▇▇▇ and
to certain other parties, (together with ▇▇▇▇ ▇▇▇▇▇ the "Assignees") and the
Company and the Purchasers desire to approve and consent to such assignment; and
WHEREAS, the Company and the Purchasers desire to delete the provisions
in Section 1.2 of the Securities Purchase Agreement providing for an adjustment
to the price of the Company's 8% Series C Convertible Redeemable Preferred Stock
in the event the Company fails to meet a certain "Performance Benchmark";
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 herein shall have the meaning given to them in the Securities Purchase
Agreement or, if not defined therein, in the Company's Certificate of
Incorporation, as amended.
SECTION 2. Amendments to Securities Purchase Agreement. The Securities
Purchase Agreement is hereby amended as of the date hereof as follows:
(a) The first sentence is amended and restated in its entirety as
follows:
"SECURITIES PURCHASE AGREEMENT, dated as of April 23,
1999 (this "Agreement"), among Broadview Networks Holdings,
Inc., a Delaware corporation (the "Company"), ▇▇▇▇▇
Communications Fund, L. P. ("▇▇▇▇▇"), ▇▇▇▇▇'▇ Permitted
Transferees who appear as signatories to this Agreement, ▇▇▇▇
▇▇▇▇▇ and the holders of Series A Preferred Stock of the
Company and Series B Preferred Stock of the Company listed on
Schedule A to this Agreement (the "Holders"; the Holders,
▇▇▇▇▇, ▇▇▇▇▇'▇ Permitted Transferees and ▇▇▇▇ ▇▇▇▇▇ being
collectively referred to herein as, the "Purchasers").
(b)Section 1.2 is amended and restated in its entirety as follows:
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"Subject to the terms and conditions of this
Agreement, the Series D Preferred Shares shall have the
rights, preferences and designations set forth in the Amended
and Restated Certificate of Incorporation. The initial
conversion price applicable to the conversion of the Series D
Preferred Shares into Common Stock of the Company shall be set
forth in the Amended and Restated Certificate of
Incorporation, except that the initial conversion price shall
be subject to adjustment for anti-dilutive events occurring
prior to the purchase of the Series D Preferred Shares, in
accordance with the anti-dilution provisions contained in
paragraph 5 of Section (E) of the Amended and Restated
Certificate of Incorporation which shall apply as if the
Series D Preferred Shares were outstanding as of the date of
such anti-dilutive events. The Purchasers shall have the right
to transfer all or a portion of their option to purchase
Series D Preferred Shares to one or more of their respective
Affiliates."
(c)Section 2.3 is amended and restated in its entirety as follows:
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"The purchase price for Series D Preferred Shares
shall be $4.66126 per Series D Preferred Share or an aggregate
of Twenty Eight Million Dollars ($28,000,000) (the "Series D
Purchase Price"). The Series D Purchase Price shall be paid at
a closing as described in Section 3.2 hereof by wire transfer
of clearing house funds or by such other method as may be
reasonably acceptable to the Company and the Purchasers, to
the account of the Company as shall have been designated in
advance to the Purchasers by the Company."
(d)SCHEDULE B is amended and restated in its entirety as follows:
"Breakdown of Option to Purchase Series D Preferred Shares
▇▇▇▇▇ Communications Fund, L.P. - 2,038,075
▇▇▇▇ ▇▇▇▇▇ - 214,534
▇▇▇▇▇ Permitted Transferees - 2,038,075
The Holders - 1,716,275
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SECTION 3. Unexercised Portion of ▇▇▇▇▇ Option. The Company and the
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Purchasers hereby approve and consent to ▇▇▇▇▇'▇ assignment of its option to
purchase 2,038,075 shares of Series D Preferred Stock of the Company to the
State Treasurer of the State of Michigan, Custodian of the Michigan Public
School Employees' Retirement System, State Employees' Retirement System and
Michigan State Police Retirement System (the "State of Michigan") on or before
February 4, 2000, conditional upon the State of Michigan exercising its assigned
option on or before such date. ▇▇▇▇▇ agrees that any portion of such option that
remains unexercised after such date will be exercised within two business days
by ▇▇▇▇▇.
SECTION 4. Agreement to be Bound by Securities Purchase Agreement.
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Upon the Assignees' execution of this Amendment, the Securities Purchase
Agreement shall be binding upon and inure to the benefit of each of them and
their permitted assigns.
SECTION 5. No Implied Amendments. Except as herein amended, the
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Securities Purchase Agreement shall remain in full force and effect and is
ratified in all respects. On and after the effectiveness of this Amendment, each
reference in the Securities Purchase Agreement to "this Agreement", "hereunder",
"hereof", "herein" or words of like import, and each reference to the Securities
Purchase Agreement in any other agreements, documents or instruments executed
and delivered pursuant to the Securities Purchase Agreement, shall mean and be a
reference to the Securities Purchase Agreement, as amended by this Amendment.
SECTION 6. Effective Date. This Amendment shall be effective as of the
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date hereof.
SECTION 7. Counterparts. This Amendment may be executed by the parties
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hereto in several counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
* * * *
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IN WITNESS WHEREOF, the parties hereto have executed, or have caused
this Agreement to be executed, by their respective officers thereunto duly
authorized, as of the date first written above.
BROADVIEW NETWORKS HOLDING, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
Name:
Title:
Amendment No. 1 to Securities Purchase Agreement
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▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇
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Amendment No. 1 to Securities Purchase Agreement
5
WPG ENTERPRISE FUND III, L.L.C.
By: WPG VC Fund Adviser, L.L.C.,
Fund Investment Advisory Member
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Member
▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇ VENTURE
ASSOCIATES IV, L.L.C.
By: WPG VC Fund Adviser, L.L.C.
Fund Investment Advisory
Member
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Member
WPG INFORMATION SCIENCES
ENTREPENEUR FUND, L.P.
By: WPG VC Fund Adviser, L.L.C.
General Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Member
▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇ VENTURE
ASSOCIATES IV CAYMAN, L.P.
By: WPG VC Fund Adviser, L.L.C.,
Fund Investment Advisory
Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Member
Amendment No. 1 to Securities Purchase Agreement
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NEW ENTERPRISE ASSOCIATES VII, L.P.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: General Partner
Amendment No. 1 to Securities Purchase Agreement
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COMMUNICATIONS VENTURES II, L.P.
By its General Partner ComVen II, LLC
By: /s/ ▇▇▇▇▇▇ ▇. Van der Meer
--------------------------
Name: ▇▇▇▇▇▇ ▇. Van der Meer
Title: Member
COMMUNICATIONS VENTURE II
AFFILIATES FUND, L.P.
By its General Partner ComVen II, LLC
By: /s/ ▇▇▇▇▇▇ ▇. Van der Meer
--------------------------
Name: ▇▇▇▇▇▇ ▇. Van der Meer
Title: Member
Amendment No. 1 to Securities Purchase Agreement
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▇▇▇▇▇ COMMUNICATIONS FUND, L.P.
By: ▇▇▇▇▇ Capital Partners, LLC
Its General Partner
By: /s/
----------------------------
Name:
Title:
Amendment No. 1 to Securities Purchase Agreement
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