-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, PWFZwsYJJ3RiMnzQ9ob63gYvrXBAfCyuSOzwCz5/iwtNw7cYRhGWIyBrCND9oabi h2kgDcTzjtyclUP2Gh4rtw== 0000950123-02-011044.txt : 20021115 0000950123-02-011044.hdr.sgml : 20021115 20021115144838 ACCESSION NUMBER: 0000950123-02-011044 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 1 FILED AS OF DATE: 20021115 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: FIBERNET TELECOM GROUP INC\ CENTRAL INDEX KEY: 0001001868 STANDARD INDUSTRIAL CLASSIFICATION: TELEPHONE COMMUNICATIONS (NO RADIO TELEPHONE) [4813] IRS NUMBER: 133859938 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-56267 FILM NUMBER: 02829569 BUSINESS ADDRESS: STREET 1: 570 LEXINGTON AVENUE STREET 2: 3RD FLOOR CITY: NEW YORK STATE: NY ZIP: 10022 BUSINESS PHONE: 2124056200 MAIL ADDRESS: STREET 1: 570 LEXINGTON AVENUE STREET 2: 3RD FLOOR CITY: NEW YORK STATE: NY ZIP: 10022 FORMER COMPANY: FORMER CONFORMED NAME: DESERT NATIVE DESIGNS INC DATE OF NAME CHANGE: 19960517 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: TORONTO DOMINION TEXAS INC CENTRAL INDEX KEY: 0001204496 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 909 FRANNIN ST STREET 2: SUITE 1700 CITY: HOUSTON STATE: TX ZIP: 77010 BUSINESS PHONE: 7136538200 MAIL ADDRESS: STREET 1: 909 FRANKLIN ST STREET 2: SUITE 1700 CITY: HOUSTON STATE: TX ZIP: 77010 SC 13D/A 1 y65341dasc13dza.txt AMENDMENT #1 TO SCHEDULE 13D: FIBERNET/TORONTO DT UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D/A (RULE 13D-101) UNDER THE SECURITIES EXCHANGE ACT OF 1934 FIBERNET TELECOM GROUP, INC. (NAME OF ISSUER) Common Shares, par value $0.001 per share (TITLE OF CLASS OF SECURITIES) 315653105 (CUSIP NUMBER) Toronto Dominion (Texas), Inc. 909 Fannin, Suite 1700 Houston, Texas 77010 with a copy to: John Toufanian Latham & Watkins 885 Third Avenue New York, New York 10022 (212) 906-1200 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) October 30, 2002 (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-l(b)(3) or (4), check the following box [ ]. Note: Six copies of this statement, including all exhibits, should be filed with the Commission. See Rule l3d-l(a) for other parties to whom copies are to be sent. *The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The Information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). Page 2 of 6 - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Toronto Dominion (Texas), Inc. - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [X] (b) [ ] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS OO (See Item 3) - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER 85,219,943 (See Item 5) NUMBER OF ------------------------------------------------------------ SHARES BENEFICIALLY 8 SHARED VOTING POWER OWNED BY EACH 505,714,285 (See Item 5) REPORTING ------------------------------------------------------------ PERSON WITH 9 SOLE DISPOSITIVE POWER 85,219,943 (See Item 5) ------------------------------------------------------------ 10 SHARED DISPOSITIVE POWER 590,000,000 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 85,219,943 (See Item 5) - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 8.5% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* CO - -------------------------------------------------------------------------------- *SEE INSTRUCTIONS BEFORE FILLING OUT! INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION. Page 3 of 6 ITEM 1 SECURITY AND ISSUER. This statement relates to common shares, par value $.001 per common share (the "Common Stock"), of FiberNet Telecom Group, Inc., a Delaware corporation (NASDAQ SC:FTGX) ("FiberNet"). FiberNet has its principal executive offices at 570 Lexington Avenue, 3rd Floor, New York, New York 10022. ITEM 2 IDENTITY AND BACKGROUND. (a) This statement is filed by Toronto Dominion (Texas), Inc. (the "Reporting Person"). The Reporting Person is organized under the laws of the state of Delaware. (b) The principal business of the Reporting Person is set forth on Schedule 1. The name, business address and principal occupation or employment of the executive officers, directors, controlling persons and trustees, as applicable of the Reporting Person and each corporation and other person ultimately in control of the Reporting Person is set forth on Schedule 1. (c) No person described in Item 2(b) nor, to the best knowledge of the Reporting Person, any person listed on Schedule 1 during the past five years has been convicted in a criminal proceeding (excluding traffic violations and similar misdemeanors). (d) No person described in Item 2(b) nor, to the best knowledge of the Reporting Person, any person listed on Schedule 1 during the last five years has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. (e) Except as set forth on Schedule 1, each person listed on Schedule 1 is a U.S. citizen. ITEM 3 SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION. Pursuant to a Purchase Agreement dated October 30, 2002 ("October Purchase Agreement"), between FiberNet, the Reporting Person, Deutsche Bank AG New York Branch ("Deutsche Bank"), Wachovia Investors, Inc. ("Wachovia"), Bank One, N.A. ("Bank One"), Nortel Networks Inc. ("Nortel") and IBM Credit Corporation ("IBM" and together with the Reporting Person, Deutsche Bank, Wachovia, Bank One, and Nortel the "Bank Lenders"), each Bank Lender purchased from FiberNet, and FiberNet sold to such Bank Lender, upon the terms and subject to the conditions set forth therein, the total number of shares of Common Stock set forth below next to such Bank Lender's name under the heading "Shares Purchased," and immediately exercisable warrants to acquire that number of shares of Common Stock set forth below next to such Bank Lender's name under the heading "Warrants," in exchange for the conversion of that amount of principal indebtedness under the Credit Agreement (defined below) Page 4 of 6 set forth below opposite such Bank Lender's name under the heading "Purchase Price."
SHARES PURCHASE REPORTING PERSON PURCHASED WARRANTS PRICE - ---------------- --------- -------- ----- Deutsche Bank AG New York Branch 120,476,190 30,119,048 $18,071,428.57 Wachovia Investors, Inc. 110,000,000 27,500,000 $16,500,000.00 Bank One, N.A 41,904,762 10,476,190 $ 6,285,714.29 IBM Credit Corporation 41,904,762 10,476,190 $ 6,285,714.29 Toronto Dominion (Texas), Inc. 62,857,143 15,714,286 $ 9,428,571.43
Pursuant to a Purchase Agreement dated November 11, 2002 ("November Purchase Agreement" and together with the October Purchase Agreement, the "Purchase Agreements"), between FiberNet, the Reporting Person and each other Bank Lender, each Bank Lender purchased from FiberNet, and FiberNet sold to such Bank Lender, upon the terms and subject to the conditions set forth therein, the total number of shares of Common Stock set forth below next to such Bank Lender's name under the heading "Shares Purchased," and immediately exercisable warrants to acquire that number of shares of Common Stock set forth below next to such Bank Lender's name under the heading "Warrants," in exchange for the conversion of that amount of accrued interest under the Credit Agreement (defined below) set forth below opposite such Bank Lender's name under the heading "Purchase Price."
SHARES PURCHASE NAME OF INVESTOR PURCHASED WARRANTS PRICE - ---------------- --------- -------- ----- Deutsche Bank AG New York Branch 5,476,190 5,476,190 $547,619.05 Wachovia Investors, Inc. 5,000,000 5,000,000 $500,000.00 Bank One, N.A 1,904,762 1,904,762 $190,476.19 IBM Credit Corporation 1,904,762 1,904,762 $190,476.19 Nortel Networks Inc. 2,857,143 2,857,143 $285,714.29 Toronto Dominion (Texas), Inc. 2,857,143 2,857,143 $285,714.29
The indebtedness and accrued interest converted pursuant to the Purchase Agreements was indebtedness and accrued interest under FiberNet's Amended and Restated Credit Agreement, dated as of February 9, 2001 (as amended, supplemented, amended and restated or otherwise modified from time to time prior to the date hereof, the "Credit Agreement"), among FiberNet Operations, Inc., Devnet, L.L.C., the financial institutions from time to time parties Page 5 of 6 thereto as lenders, Deutsche Bank AG New York Branch, as administrative agent, Toronto Dominion (USA) Securities Inc., as syndication agent, and Wachovia Investors, Inc., as documentation agent. In addition to the foregoing acquisition, in consideration of prior amendments to and waivers of the terms of the Credit Agreement, (a) Deutsche Bank acquired immediately exercisable warrants to purchase an aggregate of 709,227 shares of Common Stock; (b) the Reporting Person acquired warrants to purchase an aggregate of 934,229 shares of Common Stock.; (c) Wachovia acquired immediately exercisable warrants to purchase an aggregate of 566,666 shares of Common Stock; (d) First Chicago Investment Corporation, an affiliate of Bank One, acquired immediately exercisable warrants to purchase an aggregate of 233,129 shares of Common Stock; and (e) IBM acquired immediately exercisable warrants to purchase an aggregate of 75,000 shares of Common Stock. ITEM 4 PURPOSE OF TRANSACTION. Each Bank Lender executed the Purchase Agreements, and acquired shares of Common Stock and warrants thereunder, in connection with the conversion of an aggregate principal amount of $66,000,000 of principal indebtedness and $2,000,000 of accrued interest under the Credit Agreement. In connection with the execution of the Purchase Agreements, each Bank Lender entered into an Investor's Rights Agreement, dated October 31, 2002, as amended and restated by the First Amended and Restated Investor's Rights Agreement, dated November 11, 2002, pursuant to which FiberNet granted to each Bank Lender certain registration and preemptive rights, and each Bank Lender consented to certain transfer restrictions on the shares of Common Stock and warrants issued pursuant to the Purchase Agreements and shares of Common Stock issuable upon exercise of such warrants. In connection with the execution of the Purchase Agreements, FiberNet and each Bank Lender (other than Nortel) entered into a Stockholders Agreement, dated October 31, 2002, as amended and restated by the First Amended and Restated Stockholders Agreement, dated November 11, 2002, pursuant to which the parties thereto agreed to take certain actions to (a) cause two individuals approved by certain Bank Lenders to be elected to FiberNet's board of directors and (b) change the number of directors constituting the entire board of directors of FiberNet upon the request of certain Bank Lenders. The complete text of the Stockholders Agreement and Investor's Rights Agreement (each as amended and restated on November 11, 2002) is included in the exhibits hereto and incorporated herein by reference. ITEM 5 INTEREST IN SECURITIES OF THE ISSUER. (a) Pursuant to the terms of the Purchase Agreements, the Reporting Person acquired an aggregate of 65,714,286 shares of Common Stock, and warrants to purchase an aggregate of 18,571,429 shares of Common Stock. Together with the warrant to purchase 934,229 shares of Common Stock described in Item 3 such securities represent all of the equity securities of FiberNet held directly by the Reporting Person. Pursuant to information provided by FiberNet, such securities represent approximately 8.5% of the fully diluted number of issued and outstanding shares of FiberNet. Page 6 of 6 (b) Pursuant to the Shareholders Agreement (as amended and restated on November 11, 2002), the Reporting Person shares voting power with respect to the shares of Common Stock received by each Bank Lender (other than Nortel) pursuant to the Purchase Agreements and upon exercise of the warrants received by each such entity pursuant to the Purchase Agreements. Pursuant to the terms of the Investor's Rights Agreement (as amended and restated on November 11, 2002), each Bank Lender has agreed to certain transfer restrictions on the shares of Common Stock received it pursuant to the Purchase Agreements and upon exercise of the warrants received by it pursuant to the Purchase Agreements. The complete text of the Stockholders Agreement and Investor's Rights Agreement (each as amended and restated on November 11, 2002) is included in the exhibits hereto and is incorporated herein by reference. (c) not applicable. (d) not applicable. (e) not applicable. ITEM 6 CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS, OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER. Except as otherwise disclosed, there are no contracts, arrangements, understandings or relationships with respect to securities of FiberNet. For the complete text of each contract, arrangement, understanding and relationship with respect to securities of FiberNet see the Stockholders Agreement and Investor's Rights Agreement (each as amended and restated on November 11, 2002) attached hereto as exhibits. The text of each such agreement is incorporated herein by reference. ITEM 7 MATERIAL TO BE FILED AS EXHIBITS. - Purchase Agreement, dated October 30, 2002* - Purchase Agreement, dated November 11, 2002* - First Amended and Restated Stockholders Agreement, dated November 11, 2002* - First Amended and Restated Investor's Rights Agreement, dated November 11, 2002* - ------------ * Incorporated by reference to the Reporting Persons Form 13D filed November 12, 2002 (File No. 005-56267). After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. TORONTO DOMINION (TEXAS), INC. By: /s/ Jano Nixon ------------------------------------- Name: Jano Nixon Title: Vice President SCHEDULE 1 EXECUTIVE OFFICERS, DIRECTORS, CONTROLLING PERSONS AND TRUSTEES OF TORONTO DOMINION (TEXAS), INC. AND EACH PERSON ULTIMATELY IN CONTROL OF TORONTO DOMINION (TEXAS), INC. The principal business of Toronto Dominion (Texas), Inc. is providing financial services. The following individuals are directors of Toronto Dominion (Texas), Inc.
NAME BUSINESS ADDRESS/ PRINCIPAL OCCUPATION OR EMPLOYMENT - ---- ---------------------------------------------------- Thomas Spencer Vice Chair, The Toronto-Dominion Bank, 55 King Street, TD Tower, Toronto, Ontario, Canada M5K 1A2 Citizenship: Canadian Vic Huebner Managing Director, TD Securities (USA) Inc., 31 West 52nd Street, New York, NY 10019 Carole Clause Vice President and Director, The Toronto-Dominion Bank, Houston Agency, 909 Fannin Street, Houston, Texas 77010 Jano Nixon Vice President, The Toronto-Dominion Bank, Houston Agency, 909 Fannin Street, Houston, Texas 77010 Warren Finlay Vice President, The Toronto-Dominion Bank, Houston Agency, 909 Fannin Street, Houston, Texas 77010
The following individuals are executive officers of Toronto Dominion (Texas), Inc.
NAME BUSINESS ADDRESS/ PRINCIPAL OCCUPATION OR EMPLOYMENT - ---- ---------------------------------------------------- Carole Clause Chairman of the Board, Vice President and Director, The Toronto-Dominion Bank, Houston Agency 909 Fannin Street, Houston, Texas 77010 Warren Finlay Vice President, The Toronto-Dominion Bank, Houston Agency President, Toronto Dominion (Texas), Inc. 909 Fannin Street, Houston, Texas 77010 Tracie Whitacre Manager, The Toronto-Dominion Bank, Houston Agency Secretary and Treasurer, Toronto Dominion (Texas), Inc. 909 Fannin Street, Houston, Texas 77010
The following individuals are directors of the Toronto-Dominion Bank, the person ultimately in control of the Reporting Person.
NAME AND POSITION WITH OR RELATIONSHIP OF THE TORONTO- DOMINION BANK NAME AND ADDRESS OF EMPLOYER CITIZENSHIP Mr. A. Charles Baillie The Toronto-Dominion Bank Canadian Chairman & Chief Executive Officer P.O. Box 1 Toronto-Dominion Centre Toronto, Ontario M5K 1A2 Mr. W. Edmund Clark The Toronto-Dominion Bank Canadian President & Chief Operating Officer P.O. Box 1 Toronto-Dominion Centre Toronto, Ontario M5K 1A2 Ms. Eleanor R. Clitheroe Corporate Director Canadian Director 19 Lewes Crescent North York, Ontario M4N 3J1 Mr. Marshall A. Cohen, Q.C. Counsel Canadian Director Cassels Brock & Blackwell Scotia Plaza, Suite 2100 40 King Street West Toronto, Ontario M5H 3C2 Dr. Wendy K. Dobson Professor and Director Canadian Director Institute for International Business Joseph L. Rotman School of Management University of Toronto 105 St. George Street Toronto, Ontario M5S 3E6 Darren Entwistle President and Chief Executive Officer Canadian Director TELUS Corporation 8th Floor, 555 Robson St. Vancouver, BC V6B 3K9 Mr. Henry H. Ketcham Chairman of the Board, U.S. Director President and Chief Executive Officer West Freser Timber Co. Ltd. 1000-1100 Melville Street Vancouver, BC V6E 4A6 Mr. Pierre H. Lessard President & Chief Executive Officer Canadian Director Metro Inc. 11011, boul.Maurice-Duplessis Montreal, Quebec H1C 1V6 Mr. Brian F. MacNeill Chairman of the Board Canadian Director Petro-Canada C/o Enbridge Inc. 30th Floor, 425 1st Street S.W. Calgary, Alberta T2F 3L8 Mr. Roger Phillips Corporate Director Canadian and Director C/o IPSCO Inc. British P.O. Box 1670 Armour Road Regina, Saskatchewan S4P 3C7 Mr. Edward S. Rogers President & Chief Executive Officer Canadian Director Rogers Communications Inc. 333 Bloor Street East 10th Floor Toronto, Ontario M4W 1G9 Ms. Helen K. Sinclair Chief Executive Officer Canadian Director BankWorks Trading Inc. 20 Adelaide Street East, 8th Floor Toronto, Ontario M5C 2T6 Mr. Donald R. Sobey Chairman Canadian Director Empire Company Limited 115 King Street Stellarton, N.S. B0K 1S0 Dr. Michael D. Sopico Corporate Director Canadian Director 2240 Chaneery Lane Oakville, Ontario L6J 6A3 Mr. John M. Thompson Corporate Director Canadian Director C/o IBM Corporation New Orchard Road Armonk, NY USA 10504 Mr. Richard M. Thomson c/o The Toronto-Dominion Bank Canadian Director, Former Chairman & CEO P.O. Box 1 Toronto-Dominion Centre Toronto, Ontario M5K 1A2
The following individuals are executive officers of The Toronto-Dominion Bank, the person ultimately in control of the Reporting Person.
POSITION WITH OR RELATIONSHIP TO THE NAME TORONTO-DOMINION BANK CITIZENSHIP Daniel A. Marinangeti Executive Vice President and Canadian Chief Financial Officer Andrea S. Rosen Vice Chair USA and Canadian Thomas R. Spencer Vice Chair Canadian Fredric J. Tomczyk Vice Chair Canadian Donald A. Wright Deputy Chair Canadian
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