-----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, Vz80AWUVR4i15EW/RDhqlz/ra2mxqBUt/2B8nC8rwigq3CF7cM3iHIldd39rQYSB jJxOUTnmWENBiAzTqs6Gkw== 0000950131-03-000124.txt : 20030115 0000950131-03-000124.hdr.sgml : 20030115 20030115122601 ACCESSION NUMBER: 0000950131-03-000124 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20030115 GROUP MEMBERS: BANK ONE, NATIONAL ASSOCIATION 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: 03514544 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: BANK ONE CORP CENTRAL INDEX KEY: 0001067092 STANDARD INDUSTRIAL CLASSIFICATION: NATIONAL COMMERCIAL BANKS [6021] IRS NUMBER: 310738296 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 1 BANK ONE PLAZA CITY: CHICAGO STATE: IL ZIP: 60670 BUSINESS PHONE: 3127324000 MAIL ADDRESS: STREET 1: ONE FIRST NATIONAL PLAZA CITY: CHICAGO STATE: IL ZIP: 60670 SC 13D/A 1 dsc13da.txt AMENDMENT #1 TO SCHEDULE 13D UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D/A Under the Securities Exchange Act of 1934 (Amendment No. 1)* FiberNet Telecom Group, Inc ................................................................................. (Name of Issuer) Common Shares, par value $0.001 per share ................................................................................. (Title of Class of Securities) 315653 10 5 ................................................................................. (CUSIP Number) Laurence Goldman, Esq. Sharon A. Renchof, Esq. 1 Bank One Plaza Chicago, Illinois 60670 (312) 732-3565 (312) 732-8362 ................................................................................. (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) January 10, 2003 ................................................................................. (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 that is the subject of this Schedule 13D, and is filing this schedule because of Sections 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box, [_]. Note: Schedules filed in paper format shall include a signed original and five copies of this schedule, including all exhibits. See Rule 240.13d-7 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). SCHEDULE 13D CUSIP No. 315653 10 5 Page 2 of 13 Pages - -------------------------------------------------------------------------------- 1) NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON.................... BANK ONE CORPORATION 31-0738296 - -------------------------------------------------------------------------------- 2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [X] (b) [_] - -------------------------------------------------------------------------------- 3) SEC USE ONLY......................................................... - -------------------------------------------------------------------------------- 4) SOURCE OF FUNDS* OO - -------------------------------------------------------------------------------- 5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [_]............................................... Not Applicable - -------------------------------------------------------------------------------- 6) CITIZENSHIP OF PLACE OF ORGANIZATION................................. Delaware - -------------------------------------------------------------------------------- (7) SOLE VOTING POWER......................... Number of Shares 233,129 Shares (See Item 5) Beneficially Owned by Each Reporting Person ---------------------------------------------------- With (8) SHARED VOTING POWER....................... 0 Shares ---------------------------------------------------- (9) SOLE DISPOSITIVE POWER.................... 233,129 Shares (See Item 5) ---------------------------------------------------- (10) SHARED DISPOSITIVE POWER.................. 0 Shares ----------------------------------------------- 11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 233,129 Shares (See Item 5) - -------------------------------------------------------------------------------- 12) CHECK BOX IF THE AGGREGATE AMOUNT OWNED IN ROW (11) EXCLUDES CERTAIN SHARES* [_] - -------------------------------------------------------------------------------- 13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)................... Less than 0.1% (See Item 5) - -------------------------------------------------------------------------------- 14) TYPE OF REPORTING PERSON*............................................ CO, HC - -------------------------------------------------------------------------------- SCHEDULE 13D CUSIP No. 315653 10 5 Page 3 of 13 Pages - -------------------------------------------------------------------------------- 7) NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON.................... Bank One, National Association - -------------------------------------------------------------------------------- 8) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [X] (c) [_] - -------------------------------------------------------------------------------- 9) SEC USE ONLY......................................................... - -------------------------------------------------------------------------------- 10) SOURCE OF FUNDS*..................................................... BK - -------------------------------------------------------------------------------- 11) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [_]..................................................... Not Applicable - -------------------------------------------------------------------------------- 12) CITIZENSHIP OF PLACE OF ORGANIZATION................................. United States -------------------------------------------------------------------------- (7) SOLE VOTING POWER......................... Number of Shares 0 Shares (See Item 5) Beneficially Owned by Each Reporting Person ---------------------------------------------------- With (8) SHARED VOTING POWER....................... 0 Shares (See Item 5) ---------------------------------------------------- (11) SOLE DISPOSITIVE POWER.................... 0 Shares (See Item 5) ---------------------------------------------------- (12) SHARED DISPOSITIVE POWER.................. 0 Shares (See Item 5) - -------------------------------------------------------------------------------- 12) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 0 Shares (See Item 5) - -------------------------------------------------------------------------------- 12) CHECK BOX IF THE AGGREGATE AMOUNT OWNED IN ROW (11) EXCLUDES CERTAIN SHARES* [_] - -------------------------------------------------------------------------------- 15) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)................... 0% (See Item 5) - -------------------------------------------------------------------------------- 16) TYPE OF REPORTING PERSON*............................................ BK - -------------------------------------------------------------------------------- This Amendment No. 1 amends and supplements the Statement on Schedule 13D filed with the Securities and Exchange Commission on November 12, 2002 (the "Statement"). Capitalized terms used and not defined herein shall have the meanings assigned to such terms in the Statement. Item 3. Source and Amount of Funds or Other Consideration. The first paragraph of Item 3 is hereby amended by replacing the first paragraph in its entirety with the following: "No personal funds were expended by the Reporting Persons on the acquisition of the shares of Common Stock and warrants in FiberNet taking place on October 30, 2002 and November 11, 2002 (the "2002 Financing"). As more fully described in Item 4, the Reporting Persons directly or indirectly received shares of Common Stock and warrants in FiberNet in exchange for the conversion of a portion of the indebtedness owed to the Bank by FiberNet. In addition, no personal funds were expended by the Reporting Persons in connection with the acquisition of 34,628,636 shares of Common Stock on January 10, 2003 (the "January Shares"). As more fully described in Item 4, the Reporting Persons directly or indirectly received the January Shares in exchange for the conversion of certain indebtedness owed to the Bank by FiberNet. In connection with the exercise of 12,380,952 warrants on January 10, 2003, by the Bank into 12,277,778 shares of FiberNet Common Stock (the "Converted Warrant Shares"), no personal funds were used. The warrants were exercised on a "cashless" basis whereby the Bank received the net number of shares of Common Stock for such exercise taking into account the exercise price. See Item 4 for a more complete description of the cashless exercise transaction." Item 3 is further amended by adding the following after the last paragraph in Item 3: " On January 10, 2003, the Bank and FiberNet entered into a Debt Exchange Agreement (the "Exchange Agreement") whereby the Bank agreed to exchange indebtedness (including principal and accrued interest) in the amount of $ 3,345,697.48 owed to it by FiberNet into 34,628,636 shares of Common Stock. The Bank also entered into an Assignment Agreement dated January 10, 2003, whereby the Bank assigned to Deutsche Bank its entire unfunded revolving loan commitment to FiberNet under the Credit Agreement (the "Assignment"). In addition, the Bank also entered into an agreement dated as of January 10, 2003, with FiberNet whereby the terms of the warrants issued to the Bank in -4- connection with the 2002 Financing were modified to reduce the exercise price for all such warrants to $0.001 per share (the "Amended Warrant Agreement"). The Amended Warrant Agreement also provided for the exercise of all such warrants upon the closing of the January Financings (as defined below). The Bank also entered into a Stock Purchase Agreement dated as of January 10, 2003 with the purchasers listed therein (the "Bank One Purchasers") whereby the Bank sold 90,715,938 shares of Common Stock at a price of $0.03307 per share to the purchasers for an aggregate sales price of $ 3,000,000 (the "Stock Purchase Agreement"). The shares sold by the Bank constitute all shares of Common Stock received by the Bank from FiberNet in the 2002 Financing, along with the Converted Warrant Shares and the January Shares. In order for the Bank to enter into the Debt Exchange Agreement, the Amended Warrant Agreement, the Assignment and the Stock Purchase Agreement and for certain other Investors to enter into similar agreements, the Credit Agreement was amended by an Agreement, Limited Waiver and Ninth Amendment dated as of January 10, 2003 (the "Ninth Amendment"). FiberNet and the Investors also entered into an Amendment and Waiver dated as of January 10, 2003 (the "Waiver Agreement") in order to permit the January Financings (as defined below) to be consummated. The transactions taking place in January 2003, including the exchange of FiberNet indebtedness to the Bank into shares of Common Stock, the repricing and exercise of the warrants held by the Bank, the entering into the Assignment and the sale of shares of Common Stock to the Bank One Purchasers under the Stock Purchase Agreement and similar transactions between FiberNet and certain other Investors are referred to herein collectively as the "January Financings"." Item 4. Purpose of Transaction. Item 4 is hereby amended by replacing Item 4 in its entirety with the following: "The Investors, including the Bank, executed the Purchase Agreement, 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 owed by FiberNet to the Investors under the Credit Agreement. The Investors, including the Bank, executed the November Purchase Agreement, and acquired shares of Common Stock and warrants thereunder, in connection with the conversion of accrued interest in the amount of $2,000,000 owed by FiberNet to the Investors under the Credit Agreement. -5- In connection with the execution of the Purchase Agreement and the November Purchase Agreement, each Investor, including the Bank, entered into an Investor's Rights Agreement and a First Amended and Restated Investor's Rights Agreement, respectively, pursuant to which FiberNet granted to each Investor certain registration and preemptive rights, and each Investor consented to certain transfer restrictions on the shares of Common Stock and warrants issued pursuant to the Purchase Agreement and the November Purchase Agreement and shares of Common Stock issuable upon exercise of such warrants. Additionally, in connection with the execution of the Purchase Agreement and the November Purchase Agreement, FiberNet, Wachovia, the Bank, IBM and TD entered into a Stockholders Agreement and a First Amended and Restated Stockholders Agreement, respectively, pursuant to which the parties thereto agreed to take certain actions to (a) cause two individuals approved by certain Investors to be elected to FiberNet's board of directors and (b) change the number of directors constituting the entire board upon the request of certain Investors. The complete text of the Stockholders Agreement, the First Amended and Restated Stockholders Agreement, the Investor's Rights Agreement and the First Amended and Restated Investor's Rights Agreement is included in the exhibits hereto and incorporated herein by reference. In connection with the January Financings, the Bank sold all of its shares of Common Stock (including the Converted Warrant Shares) and assigned to Deutsche Bank all of its remaining funding obligations under the Credit Agreement. As part of the January Financings, the Bank entered into the following transactions: (1) the Bank exchanged $ 3,345,697.48 in aggregate indebtedness (including principal and accrued interest) owed to it by FiberNet into 34,628,636 shares of Common Stock of FiberNet; (2) the Bank exercised the 12,380,952 warrants obtained in connection with the 2002 Financings into 12,277,778 shares of Common Stock pursuant to the Amended Warrant Agreement; the Bank exercised the warrants through a cashless exercise whereby the Bank received the net number of shares of Common Stock from such exercise taking into account the exercise price of the warrants ($.001 per share); (3) the Bank assigned all of its remaining funding commitments under the Credit Agreement to Deutsche Bank pursuant to the Assignment; (4) the Bank, along with the other Investors and FiberNet, entered into the Ninth Amendment that provided, among other things, that the Bank agreed -6- that all of FiberNet's obligations to it under the Credit Agreement were satisfied in full upon the completion of the January Financings; (5) the Bank, along with the other Investors and FiberNet, entered into the Waiver Agreement whereby the other Investors waived any provisions contained in the documentation for the 2002 Financings which would have prohibited the January Financings and agreed to remove all references to the Bank as an Investor under such documentation; and (6) the Bank sold 90,715,938 shares of Common Stock to the Bank One Purchasers under the Stock Purchase Agreement. Upon the consummation of the January Financings, the Bank was no longer a creditor of FiberNet under the Credit Agreement and had no continuing rights under the Investor's Rights Agreement, the First Amended and Restated Investor's Rights Agreement, the Stockholders Agreement or the First Amended and Restated Stockholders Agreement. At the conclusion of the January Financing, the Reporting Persons may be deemed to indirectly own only the 233,129 warrants held by FCIC (as defined below). Except as set forth above or as set forth in Item 6 in this Statement, the Reporting Persons have no present plans or proposals which may relate to or would result in any of the following: (a) The acquisition by any person of any additional securities of FiberNet, or the disposition of securities of FiberNet; (b) An extraordinary corporate transaction, such as a merger, reorganization or liquidation, involving FiberNet or any of its subsidiaries; (c) A sale or transfer of a material amount of assets of FiberNet or any of its subsidiaries; (d) Any change in the present FiberNet Board or management of FiberNet, including any plans or proposals to change the number or term of directors or to fill any existing vacancies on the FiberNet Board; (e) Any material change in the present capitalization or dividend policy of FiberNet; (f) Any other material change in FiberNet's business or corporate structure including but not limited to, if the issuer is a registered closed-end investment company, any plans or proposals to make any changes in its investment policy for which a vote is required by section 13 of the Investment Company Act of 1940; -7- (g) Changes in FiberNet's charter, bylaws or instruments corresponding thereto or other actions which may impede the acquisition of control of FiberNet by any person; (h) Causing a class of securities of FiberNet to be delisted from a national securities exchange or to cease to be authorized to be quoted in an inter-dealer quotation system of a registered national securities association; (i) A class of equity securities of FiberNet becoming eligible for termination of registration pursuant to Section 12(g)(4) of the Securities Exchange Act of 1934; or (j) Any action similar to any of those enumerated above." Item 5. Interest in Securities of the Issuer. Item 5 is hereby amended by replacing Item 5 in its entirety with the following: " (a) Pursuant to the terms of the Purchase Agreement, the Bank acquired an aggregate of 41,904,762 shares of Common Stock, and warrants to purchase an aggregate of 10,476,190 shares of Common Stock. Pursuant to the terms of the November Purchase Agreement, the Bank acquired an aggregate of 1,904,762 shares of Common Stock, and warrants to purchase an aggregate of 1,904,762 shares of Common Stock. As of November 12, 2002, such securities represented all of the equity securities of FiberNet held directly by the Bank. First Chicago Investment Corporation ("FCIC"), an affiliate of Bank One, owns warrants of the Company to purchase an aggregate of 233,129 shares of Common Stock. Bank One may have been deemed to own the shares of Common Stock and warrants held by the Bank and FCIC solely through its ownership of the Bank and FCIC. Pursuant to information provided by FiberNet in the November Purchase Agreement, the securities held by the Reporting Persons on November 12, 2002, represented approximately 6.0% of the number of issued and outstanding shares of FiberNet calculated pursuant to Exchange Act Rule 13d-3, on the basis of the following assumptions : (a) immediately prior to the consummation of the transactions contemplated in the November Purchase Agreement, FiberNet had 911,653,482 shares of Common Stock issued and outstanding; (b) FiberNet issued 20,000,000 shares of Common Stock in connection with the November Purchase Agreement transactions; and (c) the exercise of all 12,614,081 warrants held by the Bank and FCIC into 12,614,081 shares of Common Stock. -8- Pursuant to the terms of the Purchase Agreement, Wachovia acquired an aggregate of 110,000,000 shares of Common Stock, and warrants to purchase an aggregate of 27,500,000 shares of Common Stock. Pursuant to the terms of the November Purchase Agreement, Wachovia acquired an aggregate of 5,000,000 shares of Common Stock, and warrants to purchase an aggregate of 5,000,000 shares of Common Stock. First Union Investors, Inc., an affiliate of Wachovia, owns warrants of the Company to purchase an aggregate of 566,000 shares of Common Stock. Pursuant to the terms of the Purchase Agreement, Deutsche Bank acquired an aggregate of 120,476,190 shares of Common Stock, and warrants to purchase an aggregate of 30,119,048 shares of Common Stock. Pursuant to the November Purchase Agreement, Deutsche Bank acquired an aggregate of 5,476,190 shares of Common Stock, and warrants to purchase an aggregate of 5,476,190 shares of Common Stock. Deutsche Bank owns warrants to purchase an aggregate of 709,227 shares of Common Stock. Pursuant to the terms of the Purchase Agreement, IBM acquired an aggregate of 41,904,762 shares of Common Stock, and warrants to purchase an aggregate of 10,476,190 shares of Common Stock. Pursuant to the terms of the November Purchase Agreement, IBM acquired an aggregate of 1,904,762 shares of Common Stock, and warrants to purchase an aggregate of 1,904,762 shares of Common Stock. Pursuant to the terms of the Purchase Agreement, TD acquired an aggregate of 62,857,143 shares of Common Stock, and warrants to purchase an aggregate of 15,714,286 shares of Common Stock. Pursuant to the terms of the November Purchase Agreement, TD acquired an aggregate of 2,857,143 shares of Common Stock, and warrants to purchase an aggregate of 2,857,143 shares of Common Stock Pursuant to the terms of the Purchase Agreement, Nortel owns an aggregate of 62,857,143 shares of Common Stock, and warrants to purchase an aggregate of 15,714,286 shares of Common Stock. Pursuant to the terms of the November Purchase Agreement, Nortel owns an aggregate of 2,857,143 shares of Common Stock, and warrants to purchase an aggregate of 2,857,143 shares of Common. The Reporting Persons have no knowledge as to whether the holding listed above for any parties other than the Reporting Persons are still identical as of the date hereof. -9- As part of the January Financings, the Bank entered into the following transactions: (1) the Bank exchanged $ 3,345,697.48 in aggregate indebtedness (including principal and accrued interest) owed to it by FiberNet into shares of Common Stock of FiberNet; (2) the Bank exercised the 12,380,952 warrants obtained in connection with the 2002 Financings into 12,277,778 shares of Common Stock pursuant to the Amended Warrant Agreement; the Bank exercised the warrants through a cashless exercise whereby the Bank received the net number of shares of Common Stock from such exercise taking into account the exercise price of the warrants ($.001 per share); (3) the Bank assigned all of its remaining funding commitments under the Credit Agreement to Deutsche Bank pursuant to the Assignment; (4) the Bank, along with the other Investors and FiberNet, entered into the Ninth Amendment that provided, among other things, that the Bank agreed that all of FiberNet's obligations to it under the Credit Agreement were satisfied in full upon the completion of the January Financings; (5) the Bank, along with the other Investors and FiberNet, entered into the Waiver Agreement whereby the other Investors waived any provisions contained in the documentation for the 2002 Financings which would have prohibited the January Financings and agreed to remove all references to the Bank as an Investor under such documentation; and (6) the Bank sold 90,715,938 shares of Common Stock to the Purchasers under the Stock Purchase Agreement. On January 10, 2003, after giving effect to the January Financings, the Reporting Persons no longer own any shares of Common Stock of FiberNet and Bank One only may be deemed indirectly to hold 233,129 warrants held by FCIC. (b) Pursuant to the Stockholders Agreement and the First Amended and Restated Stockholders Agreement, Deutsche Bank, Wachovia, Bank One, IBM and TD shared voting power with respect to the shares of Common Stock received by each such entity pursuant to the Purchase Agreement and November Purchase Agreement and upon exercise of the warrants received by each such entity pursuant to those purchase agreements. Nortel has sole voting power of the shares of Common Stock it received pursuant to the Purchase Agreement and November Purchase Agreement and upon exercise of the warrants it received pursuant to such purchase agreements. Pursuant to the terms of the Investor's Rights Agreement and the First Amended and Restated Investor's Rights Agreement, each Investor has agreed to certain transfer restrictions on the shares of Common Stock received it pursuant to the two purchase agreements and upon exercise of the warrants received by it pursuant to such purchase agreements. -10- The complete text of the Stockholders Agreement, the First Amended and Restated Stockholders Agreement, the Investor's Rights Agreement and the First Amended and Restated Investor's Rights Agreement were previously filed as exhibits hereto and are incorporated herein by reference. After the consummation of the January Financings, the Bank no longer holds any shares of Common Stock or warrants which are subject to the Stockholders Agreement, the First Amended and Restated Stockholders Agreement, the Investor's Rights Agreement or the First Amended and Restated Investor's Agreement. As of January 10, 2003, Bank One may be deemed to indirectly own the 233,129 warrants held by FCIC. See also Items 7-10 on pages two and three with respect to each Reporting Person. Each Reporting Person expressly declares that the filing of this Statement shall not be construed as an admission that each such Reporting Person is, for the purposes of Section 13(d) or 13(g) of the Securities Exchange Act of 1934, as amended (the "Act"), the beneficial owner of any securities covered by this Statement other than those shares of common stock in which such Reporting Person has a pecuniary interest as set forth in this Item 5. No Reporting Person has a pecuniary interest in shares of Common Stock or warrants held by any other Investor. (c) See Items 3 and 4 above for a description of the transactions of the Reporting Person since the original filing of this Statement. (e) Not applicable. (d) The Reporting Persons ceased to be the beneficial owner of more than five percent of the outstanding Common Stock of FiberNet on January 10, 2003." Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer. Item 6 is hereby amended by replacing Item 6 in its entirety with the following: "Except as otherwise disclosed herein, there are no contracts, arrangements, understandings or relationships with respect to securities -11- of FiberNet by or involving the Reporting Persons. For the complete text of each contract, arrangement, understanding and relationship with respect to securities of FiberNet, see the Purchase Agreement, the November Purchase Agreement, the Stockholders Agreement, the First Amended and Restated Stockholders Agreement, the Investor's Rights Agreement and the First Amended and Restated Investor's Rights Agreement which have previously been filed as exhibits. In addition, see the Debt Exchange Agreement, the Amended Warrant Agreement, the Waiver Agreement and the Stock Purchase Agreement, which are being filed as exhibits to this Statement. The text of each such agreement is incorporated herein by reference. Item 7. Material to be Filed as Exhibits. Item 7 is hereby amended by the addition of the following exhibits: Exhibit G: Debt Exchange Agreement Exhibit H: Warrant Agreement Amendment No. 2 Exhibit I: Stock Purchase Agreement Exhibit J: Amendment and Waiver -12- SIGNATURES After reasonable inquiry and to the best of our knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct. Dated: January 15, 2003 BANK ONE, N. A. By: /s/ Jacqueline P. Yardley ----------------------------- Senior Vice President BANK ONE CORPORATION By: /s/ Sharon A. Renchof ----------------------------- Assistant Secretary -13- EX-99.G 3 dex99g.txt DEBT EXCHANGE AGREEMENT Exhibit G DEBT EXCHANGE AGREEMENT DEBT EXCHANGE AGREEMENT, dated as of January 10, 2003 (this "Agreement"), by and between FiberNet Telecom Group, Inc., a Delaware corporation (the "Company"), and Bank One, N.A., a national banking association (the "Purchaser"). R E C I T A L S WHEREAS, pursuant to the Amended and Restated Credit Agreement dated as of February 9, 2001 by and among FiberNet Operations, Inc., Devnet L.L.C., the Purchaser and certain other lenders, FiberNet Operations, Inc. and Devnet L.L.C. owe $3,345,697.48 to the Purchaser (the "Bank One Debt"); WHEREAS, the Company has agreed that, pursuant to this Agreement, it will issue to the Purchaser, in exchange for the Bank One Debt, an aggregate of 34,628,636 shares of common stock, par value $.001 per share, of the Company (the "Shares"); and WHEREAS, the Company and the Purchaser desire to enter into this Agreement to set forth certain matters relating to such exchange. NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the parties hereto hereby agree as follows: ARTICLE I. Exchange Section 1.1. Exchange of Bank One Debt for Shares. Upon the following terms and conditions, and in consideration of and in express reliance upon such terms and conditions and the representations, warranties and covenants of this Agreement, the Purchaser shall release the Company of all obligations owing in respect of the Bank One Debt and shall surrender to the Company for exchange all documents evidencing the Bank One Debt, together with all appropriate instruments of transfer, and, in exchange therefor, the Company shall issue to the Purchaser the Shares. The exchange described in this Section 1.1 is referred to herein as the "Exchange". Section 1.2. Closing. The closing (the "Closing") of the Exchange under this Agreement shall take place at the offices of Jenkens & Gilchrist Parker Chapin LLP, The Chrysler Building, 405 Lexington Avenue, New York, New York 10174 at 10:00 a.m., New York time (i) on or before January 10, 2003, provided, that all of the conditions set forth in this Agreement shall have been fulfilled or waived in accordance herewith, or (ii) at such other time and place or on such date as the Purchaser and the Company may agree upon (such date on which the Closing occurs, the "Closing Date"). At the Closing, the Purchaser shall deliver or cause to be delivered to the Company the Bank One Debt that the Purchaser is exchanging pursuant to the terms hereof, together with all appropriate instruments of transfer. At the Closing, the Company shall deliver the Shares to the Purchaser. ARTICLE II. Representations and Warranties Section 2.1. Representations and Warranties of the Company. The Company hereby represents and warrants to the Purchaser, as of the date hereof and the Closing Date, as follows: (a) Organization, Good Standing and Power. The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware and has the requisite power to own, lease and operate its properties and assets and to conduct its business as it is now being conducted. The Company is duly qualified as a foreign corporation to do business and is in good standing in every jurisdiction in which the nature of the business conducted or property owned by it makes such qualification necessary except for any jurisdictions (alone or in the aggregate) in which the failure to be so qualified will not have a Material Adverse Effect. For the purposes of this Agreement, "Material Adverse Effect" means any condition, circumstance, or situation that would prohibit or hinder the Company from executing this Agreement and/or performing any of its obligations hereunder or thereunder in any material respect. (b) Authorization; Enforcement. The Company has the requisite power and authority to enter into and perform this Agreement and to consummate the Exchange. The execution, delivery and performance of this Agreement by the Company have been duly and validly authorized by all necessary corporate action, and no further consent or authorization is required for the Company to effect the transactions contemplated hereby. When executed and delivered by the Company, the Agreement shall constitute a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, reorganization, moratorium, liquidation, conservatorship, receivership or similar laws relating to, or affecting generally the enforcement of, creditor's rights and remedies or by other equitable principles of general application. (c) Issuance of Shares. The Shares have been duly authorized by all necessary corporate action and, when issued in accordance with the terms hereof upon surrender of the Bank One Debt in the Exchange, the Shares shall be validly issued and outstanding, fully paid and non-assessable, free of restrictions on transfer other than as described herein and under applicable state and federal securities laws, and assuming the accuracy of the Purchaser's representations and warranties set forth in Section 2.2 hereof, such Shares will have been issued in compliance with all applicable state and federal securities laws. (d) No Conflicts. The execution, delivery and performance of this Agreement by the Company and the consummation by the Company of the transactions contemplated hereby does not and will not (i) violate any provision of the Company's Certificate of Incorporation or Bylaws, each as amended to date, (ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, mortgage, deed of trust, indenture, note, bond, license, lease agreement, instrument or obligation to which the Company is a party or by which any of the Company's properties or assets are bound, or (iii) 2 result in a violation of any federal, state, local or foreign statute, rule, regulation, order, judgment or decree (including federal and state securities laws and regulations) applicable to the Company or by which any property or asset of the Company is bound or affected, except, in all cases, other than violations pursuant to clauses (i) or (iii) (with respect to federal and state securities laws) above, except, for such conflicts, defaults, terminations, amendments, acceleration, cancellations and violations as would not, individually or in the aggregate, have a Material Adverse Effect. The Company is not required under federal, state, foreign or local law, rule or regulation to obtain any consent, authorization or order of, or make any filing or registration with, any court or governmental agency in order for it to execute, deliver or perform any of its obligations under this Agreement or consummate the Exchange in accordance with the terms hereof (other than any filings, consents and approvals which may be required to be made by the Company under applicable state and federal securities laws, rules or regulations, or the rules of the Nasdaq SmallCap Market, prior to or subsequent to the Closing). (e) Offering. No form of general solicitation or general advertising (as defined in Regulation D of the Securities Act of 1933, as amended) was used by the Company or any of its respective representatives in connection with the offer and sale of the Shares hereby, including, but not limited to, articles, notices or other communications published in any newspaper, magazine or similar medium or broadcast over television or radio, or any seminar or other meeting whose attendees have been invited by any general solicitation or general advertising. Except as set forth in any schedule attached to or made part of either the Common Stock and Warrant Purchase Agreement dated October 30, 2002 or November 11, 2002 between the Company and the investors listed in each respective contract, no securities of the same class as the Shares have been issued and sold by the Company within the six-month period immediately prior to the date hereof. Section 2.2. Representations and Warranties of the Purchaser. The Purchaser hereby represents and warrants to the Company, as of the date hereof and as of the Closing Date, as follows: (a) Organization and Standing of the Purchaser. The Purchaser is a national banking association duly organized, validly existing and in good standing under the laws of the United States of America. (b) Authorization and Power. The Purchaser has the requisite power and authority to enter into and perform this Agreement and to consummate the Exchange. The execution, delivery and performance of this Agreement the Purchaser and the consummation by it of the transactions contemplated hereby have been duly authorized by all necessary organizational action, and no further consent or authorization is required for the Purchaser to effect the transactions contemplated hereby. When executed and delivered by the Purchaser, this Agreement shall constitute valid and binding obligations of the Purchaser enforceable against the Purchaser in accordance with their terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, liquidation, conservatorship, receivership or similar laws relating to, or affecting generally the enforcement of, creditor's rights and remedies or by other equitable principles of general application. 3 (c) No Conflict. The execution, delivery and performance of this Agreement by the Purchaser and the consummation by the Purchaser of the transactions contemplated hereby does not and will not (i) violate any provision of the Purchaser's organizational documents, (ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, mortgage, deed of trust, indenture, note, bond, license, lease agreement, instrument or obligation to which the Purchaser is a party or by which the Purchaser's properties or assets are bound, or (iii) result in a violation of any federal, state, local or foreign statute, rule, regulation, order, judgment or decree (including federal and state securities laws and regulations) applicable to the Purchaser or by which any property or asset of the Purchaser is bound or affected, except, in all cases, other than violations pursuant to clauses (i) or (iii) (with respect to federal and state securities laws) above, except, for such conflicts, defaults, terminations, amendments, acceleration, cancellations and violations as would not, individually or in the aggregate, materially and adversely affect Purchaser's ability to perform its obligations hereunder. (d) Acquisition for Investment. The Purchaser is acquiring the Shares solely for its own account and not with a view to or for sale in connection with any distribution. (e) Assessment of Risks. The Purchaser acknowledges that it (i) has such knowledge and experience in financial and business matters that such Purchaser is capable of evaluating the merits and risks of such Purchaser's investment in the Company (by virtue of its purchase of Shares hereunder), (ii) is able to bear the financial risks associated with an investment in the Shares and (iii) has been given full access to such records of the Company and to the officers of the Company as it has deemed necessary or appropriate to conduct its due diligence investigation with respect to the Shares. (f) No General Solicitation. The Purchaser acknowledges that the Shares were not offered to the Purchaser by means of any form of general or public solicitation or general advertising, or publicly disseminated advertisements or sales literature, including (i) any advertisement, article, notice or other communication published in any newspaper, magazine, or similar media or broadcast over television or radio or (ii) any seminar or meeting to which the Purchaser was invited by any of the foregoing means of communications. (g) Accredited Investor. The Purchaser is an "accredited investor" (as defined in Rule 501 of Regulation D under the Securities Act of 1933, as amended). (h) Legend. The Purchaser hereby acknowledges and agrees that the certificates or other documents representing the Shares may contain the following, or a substantially similar, legend, which legend shall be removed only upon receipt by the Company of an opinion of its counsel, which opinion shall be satisfactory to the Company, that such legend may be so removed: THE SECURITIES REPRESENTED HEREBY (THE "SECURITIES") HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR ANY STATE SECURITIES LAWS 4 AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES ACT AND UNDER APPLICABLE STATE SECURITIES LAWS OR FIBERNET TELECOM GROUP, INC. SHALL HAVE RECEIVED AN OPINION OF ITS COUNSEL THAT REGISTRATION OF SUCH SECURITIES UNDER THE SECURITIES ACT AND UNDER THE PROVISIONS OF APPLICABLE STATE SECURITIES LAWS IS NOT REQUIRED. (i) Certain Fees. The Purchaser has not employed any broker or finder or incurred any liability for any brokerage, investment banking, commission, finders', structuring or financial advisory fees or other similar fees in connection with this Agreement or the transactions contemplated hereby. ARTICLE III. Covenants of the Parties Section 3.1. Covenants. The parties hereto hereby covenant with each other as follows, which covenants, as applicable, are for the benefit of such parties and their respective permitted assigns: (a) Further Assurances. From and after the Closing Date, upon the request of the Purchaser or the Company, the Company and the Purchaser shall execute and deliver such instruments, documents and other writings as may be reasonably necessary or desirable to confirm and carry out and to effectuate fully the intent and purposes of this Agreement, including, without limitation, authorizing the Company's transfer agent to issue shares of the Company's common stock to the purchasers of the Shares sold by the Purchaser. (b) Commercially Reasonable Efforts. Each party hereto will use commercially reasonable efforts to take, or cause to be taken, all action, and to do, or cause to be done, all things necessary, proper or advisable, consistent with applicable law, to consummate and make effective in the most expeditious manner practicable the transactions contemplated hereby, including without limitation, making all required regulatory and other filings required by applicable law as promptly as practicable after the date hereof. ARTICLE IV. Conditions Section 4.1. Conditions Precedent to the Obligation of the Company to Close. The obligation hereunder of the Company to close and effect the Exchange at the Closing is subject to the satisfaction or waiver, at or before the Closing of the conditions set forth below: 5 (a) Accuracy of the Purchaser's Representations and Warranties. The representations and warranties of the Purchaser shall be true and correct in all material respects as of the date when made and as of the Closing Date as though made at that time, except for representations and warranties that are expressly made as of a particular date, which shall be true and correct in all material respects as of such date. (b) Performance by the Purchaser. The Purchaser shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Purchaser at or prior to the Closing. (c) No Injunction, Statute or Rule. No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction which prohibits the consummation of any of the transactions contemplated by this Agreement. (d) Surrender of Bank One Debt. The Purchaser shall have released and surrendered to the Company all documents evidencing the Bank One Debt together with all appropriate instruments of transfer. (e) Agreement, Limited Waiver and Ninth Amendment. FiberNet Operations, Inc. and Devnet L.L.C. shall have executed and delivered to the Purchaser the Agreement, Limited Waiver and Ninth Amendment among FiberNet Operations, Inc., Devnet L.L.C., and the lenders under the Company's senior credit facility. The conditions set forth in this Section 4.1 are for the Company's sole benefit and may be waived only by the Company at any time in its sole discretion. Section 4.2. Conditions Precedent to the Obligation of the Purchaser to Close. The obligation hereunder of the Purchaser to close and effect the Exchange is subject to the satisfaction or waiver, at or before the Closing, of each of the conditions set forth below: (a) Accuracy of the Company's Representations and Warranties. Each of the representations and warranties of the Company in this Agreement shall be true and correct in all material respects as of the Closing Date, except for representations and warranties that speak as of a particular date, which shall be true and correct in all material respects as of such date. (b) Performance by the Company. The Company shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Company at or prior to the Closing. (c) No Injunction, Statute or Rule. No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction which prohibits the consummation of any of the transactions contemplated by this Agreement. 6 (d) Certificates. The Company shall have delivered to the Purchaser certificates representing the Shares (in such denominations as the Purchaser may request) being acquired by the Purchaser at the Closing. The conditions set forth in this Section 4.2 are for the Purchaser's sole benefit and may be waived only by the Purchaser at any time in its sole discretion. ARTICLE V. Miscellaneous Section 5.1. Fees and Expenses. Each party hereto shall pay the fees and expenses of its advisors, counsel, accountants and other experts, if any, and all other expenses, incurred by such party incident to the negotiation, preparation, execution, delivery and performance of this Agreement. Section 5.2. Entire Agreement; Amendment. This Agreement contains the entire understanding and agreement (written or oral) of the parties hereto with respect to the subject matter hereof and, except as specifically set forth herein, neither the Company nor the Purchaser make any representation, warranty, covenant or undertaking with respect to such matters, and they supersede all prior understandings and agreements with respect to said subject matter, all of which are merged herein. No provision of this Agreement may be waived or amended other than by a written instrument signed by each party hereto. Any amendment or waiver effected in accordance with this Section 5.2 shall be binding upon each such party and its permitted assigns. Section 5.3. Notices. Any notice, demand, request, waiver or other communication required or permitted to be given hereunder shall be in writing and shall be effective (a) upon hand delivery by telecopy or facsimile at the address or number designated below (if delivered on a business day during normal business hours where such notice is to be received), or the first business day following such delivery (if delivered other than on a business day during normal business hours where such notice is to be received) or (b) on the second business day following the date of mailing by express courier service, fully prepaid, addressed to such address, or upon actual receipt of such mailing, whichever shall first occur. The addresses for such communications shall be: If to the Company: FiberNet Telecom Group, Inc. 570 Lexington Avenue New York, New York 10022 Attention: President Fax No.: (212) 421-8860 with copies (which copies shall not constitute notice to the Company) to: Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. Chrysler Center 666 Third Avenue 7 New York, New York 10022 Attention: Todd Mason Fax No.: (212) 983-3115 If to the Purchaser: Bank One, N.A. Bank One Plaza Chicago, IL 60670 Attn: Judith L. Chaisiri Fax No.: (312) 732-1775 Any party hereto may from time to time change its address for notices by giving written notice of such changed address to the other party hereto. Section 5.4. Waivers. No waiver by either party of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of any party to exercise any right hereunder in any manner impair the exercise of any such right accruing to it thereafter. Section 5.5. Headings. The article, section and subsection headings in this Agreement are for convenience only and shall not constitute a part of this Agreement for any other purpose and shall not be deemed to limit or affect any of the provisions hereof. Section 5.6. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and assigns. Neither party hereto may assign its rights or obligations under this Agreement (by operation of law or otherwise) without the prior written consent of each other party hereto, and any attempted assignment without such consent shall be void ab initio. Section 5.7. No Third Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective permitted successors and assigns and is not for the benefit of, nor may any provision hereof be enforced by, any other person or entity. Section 5.8. Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York, without giving effect to the choice of law provisions thereof. This Agreement shall not be interpreted or construed with any presumption against the party causing this Agreement to be drafted. Section 5.9. Counterparts. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument and shall become effective when counterparts have been signed by each party and delivered to the other parties hereto, it being understood that all parties need not sign the same counterpart. Section 5.10. Severability. The provisions of this Agreement are severable and, in the event that any court of competent jurisdiction shall determine that any one or more of the provisions or part of the provisions contained in this Agreement shall, for any reason, be held to 8 be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision or part of a provision of this Agreement and this Agreement shall be reformed and construed as if such invalid or illegal or unenforceable provision, or part of such provision, had never been contained herein, so that such provisions would be valid, legal and enforceable to the maximum extent possible. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 9 IN WITNESS WHEREOF, the parties hereto have caused this Debt Exchange Agreement to be duly executed by their respective authorized officers as of the date first above written. FIBERNET TELECOM GROUP, INC. By:_____________________________________________ Name: Michael S. Liss Title: President and CEO FIBERNET OPERATIONS, INC. By:_____________________________________________ Name: Title: DEVNET L.L.C. By:_____________________________________________ Name: Title: BANK ONE, N.A. By:_____________________________________________ Name: Title: EX-99.H 4 dex99h.txt WARRANT AGREEMENT AMENDMENT NO. 2 Exhibit H Warrant Agreement Amendment No. 2 This Warrant Agreement Amendment No. 2 (this "Amendment"), dated as of January 10, 2003, is among FiberNet Telecom Group, Inc., a Delaware corporation ("FiberNet"), Bank One, N.A. ("Bank One"), Nortel Networks Inc. ("Nortel") and Toronto Dominion (Texas), Inc. ("TD"). Recitals Whereas, pursuant to a Purchase Agreement dated October 30, 2002 ("October Purchase Agreement"), among FiberNet, Bank One, Nortel, TD and Deutsche Bank AG New York Branch ("Deutsche Bank"), IBM Credit Corporation ("IBM") and Wachovia Investors, Inc. ("Wachovia" and together with Deutsche Bank and IBM, the "Continuing Bank Lenders"), Bank One, Nortel and TD purchased from FiberNet, and FiberNet sold to Bank One, Nortel and TD, upon the terms and subject to the conditions set forth therein, shares of FiberNet's Common Stock (the "Common Stock") and immediately exercisable warrants (the "October Warrants") to purchase an aggregate of 41,904,762 shares of Common Stock; Whereas, pursuant to a Purchase Agreement dated November 11, 2002 ("November Purchase Agreement"), among FiberNet, Nortel, Bank One, TD and each Continuing Bank Lender, Bank One, Nortel and TD purchased from FiberNet, and FiberNet sold to Bank One, Nortel and TD, upon the terms and subject to the conditions set forth therein, shares of Common Stock and immediately exercisable warrants (the "November Warrants" and together with the October Warrants, the "$0.12 Warrants") to purchase an aggregate of 7,619,048 shares of Common Stock; Whereas, on October 30, 2002, FiberNet executed and delivered to Bank One, Nortel and TD a certificate (each, an "October Warrant Certificate") entitled "Warrant to Purchase Shares of Common Stock of Fibernet Telecom Group, Inc." evidencing the October Warrants; Whereas, on November 11, 2002, FiberNet executed and delivered to Bank One, Nortel and TD a certificate (each, a "November Warrant Certificate" and together with the October Warrant Certificates, the "Warrant Certificates") entitled "Warrant to Purchase Shares of Common Stock of Fibernet Telecom Group, Inc." evidencing the November Warrants; Whereas, FiberNet has presented to each Bank Lender, including Bank One, Nortel and TD, a copy of each agreement listed on Exhibit A hereto (collectively, the "January Financing Agreements"); Whereas, as partial consideration for the transactions contemplated by the January Financing Documents, FiberNet desires to lower the exercise price of the $0.12 Warrants (the "Repriced Warrants") as provided for herein; Agreement Now Therefore, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. Amendment. a. Notwithstanding anything to the contrary in any Warrant Certificate the Exercise Price of each Repriced Warrant shall be $0.001 per share. b. Promptly upon the delivery to FiberNet of either (i) each Warrant Certificate held by Bank One, Nortel and TD or (ii) a certificate of lost warrant certificate in the form attached hereto as Exhibit B, FiberNet will issue to Bank One, Nortel and TD new certificates (the "New Warrant Certificates") evidencing the adjustment in the Exercise Price of the Repriced Warrants effected pursuant to this Amendment. Each New Warrant Certificate shall contain the same terms as the Warrant Certificates surrendered, except as set forth in the following table: - -------------------------------------------------------------------------------- Certificate Issued to Number of Exercise Price Per Share Number Warrant Shares - -------------------------------------------------------------------------------- [__] Bank One 12,380,952 $0.001 - -------------------------------------------------------------------------------- [__] Nortel 18,571,429 $0.001 - -------------------------------------------------------------------------------- [__] TD 18,571,429 $0.001 - -------------------------------------------------------------------------------- c. Promptly upon receipt of the New Warrant Certificates, but in no event prior to the closing of the transactions contemplated by the January Financing Agreements, Bank One, Nortel and TD each agree to exercise all warrants held by such party that have an exercise price per share of $0.001. 2. Representations and Warranties. FiberNet represents and warrants to each of Bank One, Nortel and TD as follows: a. Authority. FiberNet has the requisite corporate power and authority to execute and deliver this Amendment and to perform its obligations hereunder. The execution, delivery and performance by FiberNet of this Amendment and the transactions contemplated hereby have been duly approved by all necessary corporate action of FiberNet and no other corporate proceedings on the part of FiberNet are necessary to consummate such transactions. b. Enforceability. This Amendment has been duly executed and delivered by FiberNet. This Amendment is (i) the legal, valid and binding obligation of FiberNet, enforceable against it in accordance with its terms, and (ii) in full force and effect. c. No Conflicts. Neither the execution and delivery of this Amendment, nor the consummation of the transactions contemplated hereby, nor performance of and compliance with the terms and provisions hereof by FiberNet will, at the time of such performance, (i) violate or conflict with any provision of its articles of incorporation or bylaws or other organizational or governing documents of FiberNet, (ii) violate, contravene or conflict with any law, regulation, order, writ, judgment, injunction, 2 decree or permit applicable to it, (iii) violate, contravene or conflict with contractual provisions of, or cause an event of default under, any indenture, loan agreement, mortgage, deed of trust, contract or other agreement or instrument to which it is a party or by which it may be bound or (iv) require FiberNet to obtain any consents, approvals, or authorizations or to make any filings. 3. Reference to and Effect on Warrant Certificates. a. Upon and after the effectiveness of this Amendment, each reference in the Warrant Certificates to "this Warrant", "hereunder", "hereof" or words of like import referring to the $0.12 Warrant, shall mean and be a reference to the Warrant Certificate as modified hereby. b. Except as specifically modified above, the Warrant Certificate is and shall continue to be in full force and effect and is hereby in all respects ratified and confirmed. This Amendment is made in modification of, but not extinguishment of, the obligations set forth in the Warrant Certificates and, except as specifically modified pursuant to the terms of this Amendment, the terms and conditions of the Warrant Certificates remain in full force and effect. Nothing herein shall limit in any way the rights and remedies of Bank One, Nortel or TD under a Warrant Certificate. 4. Counterparts. This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Amendment by facsimile shall be effective as delivery of a manually executed counterpart of this Amendment. 5. Headings. Article and Section headings used herein are for convenience of reference only, are not part of this Amendment and shall not affect the construction of, or be taken into consideration in interpreting, this Amendment. 6. Further Assurances. Without limiting any party's obligations hereunder, FiberNet hereby agrees to do all things and take all actions which may reasonably be requested by Bank One, Nortel or TD to effectuate the provisions of this Amendment. 8. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York. [Signature Page Follows] 3 In Witness Whereof, the undersigned has executed this Warrant Agreement Amendment No. 2 as of the date set forth in the first paragraph hereof. Company - ------- FIBERNET TELECOM GROUP, INC. By: _________________________ BANK ONE, N.A. NORTEL NETWORKS INC. By: _________________________ By: _________________________ Name: Name: Title: Title: TORONTO DOMINION (TEXAS), INC. By: _________________________ Name: Title: Exhibit A January Financing Agreements 1. Debt Exchange Agreement, dated January 10, 2003, between FiberNet Telecom Group, Inc. and Bank One, N.A. 2. Debt Exchange Agreement, dated January 10, 2003, between FiberNet Telecom Group, Inc. and Nortel Networks Inc. 3. Debt Exchange Agreement, dated January 10, 2003, between FiberNet Telecom Group, Inc. and TD Securities (USA) Inc. 4. Stock Purchase Agreement, dated January 10, 2003, between FiberNet Telecom Group, Inc. and Bank One, N.A. 5. Stock Purchase Agreement, dated January 10, 2003, between FiberNet Telecom Group, Inc. and Nortel Networks Inc. 6. Stock Purchase Agreement, dated January 10, 2003, between FiberNet Telecom Group, Inc. and Toronto Dominion (Texas), Inc. 7. Common Stock Purchase Agreement, dated January 10, 2003 between FiberNet Telecom Group, Inc. and the parties listed on Exhibit A thereto as "Purchasers" 8. Registration Rights Agreement, , dated January 10, 2003 between FiberNet Telecom Group, Inc. and the parties listed on Schedule I thereto as "Purchasers" 9. Warrant to Purchase Shares of Common Stock of FiberNet Telecom Group, Inc. between FiberNet Telecom Group, Inc. and each party listed on Exhibit A to the Purchase Agreement referred to in paragraph 5 above as "Purchasers" 10. Warrant Agreement Amendment No. 1, dated January 10, 2003, among FiberNet Telecom Group, Inc., Deutsche Bank AG New York Branch, IBM Credit Corporation, and Wachovia Investors, Inc. Exhibit B Affidavit of Lost Warrant The undersigned (the "Agent"), _______________, a duly authorized agent of ______________ (the "Warrant Holder"), deposes and says that: 1. The Agent makes this affidavit on behalf of the Warrant Holder with respect to warrant certificate ______ (the "Lost Certificate") issued to the Warrant Holder on ______________, 2003, by FiberNet Telecom Group, Inc. (the "Company"). 2. The Warrant Holder does not now have possession of the Lost Certificate. The Warrant Holder has made or caused to be made diligent efforts to find and recover the Lost Certificate, but has been unable to do so, and accordingly believes the Lost Certificate is lost or misplaced. 3. The Warrant Holder is the sole beneficial owner of the Lost Certificate and has so been at all times since the Lost Certificate was issued, and is entitled to the full and exclusive possession of the Lost Certificate. The Lost Certificate has not been endorsed for transfer, and no instrument or document authorizing the transfer of the Lost Certificate has been executed. Neither the Lost Certificate nor the Warrant Holder's rights therein have, in whole or in part, been assigned, transferred, hypothecated, pledged or otherwise disposed of, in any manner whatsoever. No person or entity other than the Warrant Holder has any right, title, claim, equity or interest in, to or respecting the Lost Certificate or the proceeds thereof. 4. The Warrant Holder agrees that if the Lost Certificate shall ever come into the custody and control of the Warrant Holder, the Warrant Holder shall immediately and without consideration surrender the Lost Certificate to the Company or its successors or transfer agents for cancellation. IN WITNESS WHEREOF, the undersigned has executed this Affidavit this ___ day of __________, 2003. By: ________________________ Name: ______________________ Address: ___________________ ___________________ ___________________ EX-99.I 5 dex99i.txt STOCK PURCHASE AGREEMENT Exhibit I STOCK PURCHASE AGREEMENT STOCK PURCHASE AGREEMENT, dated as of January 10, 2003 (this "Agreement"), by and among Bank One, N.A., a national banking association (the "Seller"), and the purchasers listed on Exhibit A attached hereto (each, a "Purchaser" and collectively, the "Purchasers"). The parties hereto agree as follows: ARTICLE I. Purchase and Sale of Stock Section 1.1. Purchase and Sale of Stock. Upon the following terms and conditions, and in consideration of and in express reliance upon such terms and conditions and the representations, warranties and covenants of this Agreement, the Seller shall sell to the Purchasers, and the Purchasers shall purchase from the Seller, an aggregate of 90,715,938 shares of common stock, par value $.001 per share (the "Shares") at a price per share of $.03307, of FiberNet Telecom Group, Inc., a Delaware corporation (the "Company"), in the amounts and at the aggregate cash purchase prices (each a "Purchase Price") set forth opposite their respective names on Schedule 1.1 hereto. The aggregate Purchase Price is $3,000,000. Section 1.2. Closing. The closing (the "Closing") of the purchase and sale of the Shares to be acquired by the Purchasers from the Seller under this Agreement shall take place at the offices of Jenkens & Gilchrist Parker Chapin LLP, The Chrysler Building, 405 Lexington Avenue, New York, New York 10174 at 10:00 a.m., New York time (i) on or before January 10, 2003, provided, that all of the conditions set forth in Article IV hereof shall have been fulfilled or waived in accordance herewith, or (ii) at such other time and place or on such date as the Purchasers and the Seller may agree upon (such date on which the Closing occurs, the "Closing Date"). At the Closing, the Seller shall deliver or cause to be delivered to each Purchaser all certificates representing the number of Shares that such Purchaser is purchasing pursuant to the terms hereof, together with such stock powers duly endorsed in blank as the Purchasers may request, and all other appropriate instruments of transfer. At the Closing, each Purchaser shall deliver its Purchase Price by wire transfer to an account designated by the Seller. ARTICLE II. Representations and Warranties Section 2.1. Representations and Warranties of the Seller. The Seller hereby represents and warrants to the Purchasers, as of the date hereof and the Closing Date, as follows: (a) Organization, Good Standing and Power. The Seller is a national banking association duly incorporated, validly existing and in good standing under the laws of the United States of America and has the requisite power to own, lease and operate its properties and assets and to conduct its business as it is now being conducted. The Seller is duly qualified as a foreign corporation to do business and is in good standing in every jurisdiction in which the nature of the business conducted or property owned by it makes such qualification necessary except for any jurisdictions (alone or in the aggregate) in which the failure to be so qualified will not have a Material Adverse Effect. For the purposes of this Agreement, "Material Adverse Effect" means any condition, circumstance, or situation that would prohibit or hinder the Seller from executing this Agreement and/or performing any of its obligations hereunder or thereunder in any material respect. (b) Authorization; Enforcement. The Seller has the requisite power and authority to enter into and perform this Agreement and to sell the Shares in accordance with the terms hereof. The execution, delivery and performance of this Agreement by the Seller and the consummation by it of the transactions contemplated hereby have been duly and validly authorized by all necessary corporate action, and no further consent or authorization is required for the Seller to effect the transactions contemplated by this Agreement. When executed and delivered by the Seller, this Agreement shall constitute a valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, reorganization, moratorium, liquidation, conservatorship, receivership or similar laws relating to, or affecting generally the enforcement of, creditor's rights and remedies or by other equitable principles of general application. (c) No Conflicts. The execution, delivery and performance of this Agreement by the Seller and the consummation by the Seller of the transactions contemplated hereby do not and will not (i) violate any provision of the Seller's Articles of Association or Bylaws, each as amended to date, (ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, mortgage, deed of trust, indenture, note, bond, license, lease agreement, instrument or obligation to which the Seller is a party or by which any of the Seller's properties or assets are bound, or (iii) result in a violation of any federal, state, local or foreign statute, rule, regulation, order, judgment or decree (including federal and state securities laws and regulations) applicable to the Seller or by which any property or asset of the Seller is bound or affected, in all cases, other than violations pursuant to clauses (i) or (iii) (with respect to federal and state securities laws) above, except, for such conflicts, defaults, terminations, amendments, acceleration, cancellations and violations as would not, individually or in the aggregate, have a Material Adverse Effect. The Seller is not required under federal, state, foreign or local law, rule or regulation to obtain any consent, authorization or order of, or make any filing or registration with, any court or governmental agency in order for it to execute, deliver or perform any of its obligations under this Agreement or issue and sell the Shares in accordance with the terms hereof. (d) Title to Shares. The Seller has the right to transfer good, valid and marketable title in and to all of the Shares, free and clear of any mortgages, pledges, charges, liens, security interests or other encumbrances. (e) Certain Fees. The Seller has not employed any broker or finder or incurred any liability for any brokerage, investment banking, commission, finders', structuring or financial advisory fees or other similar fees in connection with this Agreement or the transactions contemplated hereby. 2 (f) Offering. No form of general solicitation or general advertising (as defined in Regulation D of the Securities Act of 1933, as amended) was used by the Seller or any of its respective representatives in connection with the offer and sale of the Shares hereby, including, but not limited to, articles, notices or other communications published in any newspaper, magazine or similar medium or broadcast over television or radio, or any seminar or other meeting whose attendees have been invited by any general solicitation or general advertising. Section 2.2. Representations and Warranties of the Purchasers. Each Purchaser hereby represents and warrants to the Seller with respect solely to itself and not with respect to any other Purchaser, as of the date hereof and as of the Closing Date, as follows: (a) Organization and Standing of the Purchasers. If the Purchaser is an entity, such Purchaser is a corporation, limited liability company or partnership duly incorporated or organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization. (b) Authorization and Power. The Purchaser has the requisite power and authority to enter into and perform this Agreement and to purchase the Shares being sold to it hereunder. The execution, delivery and performance of this Agreement by the Purchaser and the consummation by it of the transactions contemplated hereby have been duly authorized by all necessary corporate (or other organizational) action, and no further consent or authorization is required for such Purchaser to effect the transactions contemplated by this Agreement. When executed and delivered by the Purchaser, this Agreement shall constitute valid and binding obligations of each Purchaser enforceable against such Purchaser in accordance with their terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, liquidation, conservatorship, receivership or similar laws relating to, or affecting generally the enforcement of, creditor's rights and remedies or by other equitable principles of general application. (c) No Conflict. The execution, delivery and performance of this Agreement by the Purchaser and the consummation by the Purchaser of the transactions contemplated hereby do not and will not (i) violate any provision of the Purchaser's charter or organizational documents, (ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, mortgage, deed of trust, indenture, note, bond, license, lease agreement, instrument or obligation to which the Purchaser is a party or by which the Purchaser's properties or assets are bound, or (iii) result in a violation of any federal, state, local or foreign statute, rule, regulation, order, judgment or decree (including federal and state securities laws and regulations) applicable to the Purchaser or by which any property or asset of the Purchaser is bound or affected, in all cases, other than violations pursuant to clauses (i) or (iii) (with respect to federal and state securities laws) above, except, for such conflicts, defaults, terminations, amendments, acceleration, cancellations and violations as would not, individually or in the aggregate, materially and adversely affect Purchaser's ability to perform its obligations under this Agreement. 3 (d) Acquisition for Investment. The Purchaser is purchasing the Shares solely for its own account for the purpose of investment and not with a view to or for sale in connection with any distribution. The Purchaser does not have a present intention to sell any of the Shares, nor a present arrangement (whether or not legally binding) or intention to effect any distribution of any of the Shares, to or through any person or entity. (e) Assessment of Risks. The Purchaser acknowledges that it (i) has such knowledge and experience in financial and business matters that such Purchaser is capable of evaluating the merits and risks of such Purchaser's investment in the Company (by virtue of its purchase of Shares hereunder), (ii) is able to bear the financial risks associated with an investment in the Shares and (iii) has been given full access to such records of the Company and to the officers of the Company as it has deemed necessary or appropriate to conduct its due diligence investigation with respect to the Shares. (f) No General Solicitation. The Purchaser acknowledges that the Shares were not offered to such Purchaser by means of any form of general or public solicitation or general advertising, or publicly disseminated advertisements or sales literature, including (i) any advertisement, article, notice or other communication published in any newspaper, magazine, or similar media or broadcast over television or radio or (ii) any seminar or meeting to which such Purchaser was invited by any of the foregoing means of communications. (g) Accredited Investor. The Purchaser is an "accredited investor" (as defined in Rule 501 of Regulation D under the Securities Act of 1933, as amended). (h) Legend. The Purchaser hereby acknowledges and agrees that the certificates representing the Shares may contain the following, or a substantially similar, legend, which legend shall be removed only upon receipt by the Company of an opinion of its counsel, which opinion shall be satisfactory to the Company, that such legend may be so removed: THE SECURITIES REPRESENTED BY THIS CERTIFICATE (THE "SECURITIES") HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES ACT AND UNDER APPLICABLE STATE SECURITIES LAWS OR FIBERNET TELECOM GROUP, INC. SHALL HAVE RECEIVED AN OPINION OF ITS COUNSEL THAT REGISTRATION OF SUCH SECURITIES UNDER THE SECURITIES ACT AND UNDER THE PROVISIONS OF APPLICABLE STATE SECURITIES LAWS IS NOT REQUIRED. (i) Certain Fees. The Purchaser has not employed any broker or finder or incurred any liability for any brokerage, investment banking, commission, finders', structuring or financial 4 advisory fees or other similar fees in connection with this Agreement or the transactions contemplated hereby. (j) Reliance on Representations. The Seller is hereby expressly permitted to rely on the Purchaser's representations and warranties set forth in Sections 2.2(d) through (h), inclusive. ARTICLE III. Covenants of the Parties Section 3.1. Covenants. The parties hereto hereby covenant with each other as follows, which covenants are for the benefit of such parties and their respective permitted assigns: (a) Further Assurances. From and after the Closing Date, upon the request of any Purchaser or the Seller, the Seller and each Purchaser shall execute and deliver such instruments, documents and other writings as may be reasonably necessary or desirable to confirm and carry out and to effectuate fully the intent and purposes of this Agreement. (b) Commercially Reasonable Efforts. Each party hereto will use commercially reasonable efforts to take, or cause to be taken, all action, and to do, or cause to be done, all things necessary, proper or advisable, consistent with applicable law, to consummate and make effective in the most expeditious manner practicable the transactions contemplated hereby, including without limitation, making all regulatory and other filings required by applicable law as promptly as practicable after the date hereof. ARTICLE IV. Conditions Section 4.1. Conditions Precedent to the Obligation of the Seller to Close and to Sell the Shares. The obligation hereunder of the Seller to close and sell the Shares to the Purchasers at the Closing is subject to the satisfaction or waiver, at or before the Closing of the conditions set forth below: (a) Accuracy of the Purchasers' Representations and Warranties. The representations and warranties of each Purchaser shall be true and correct in all material respects as of the date when made and as of the Closing Date as though made at that time, except for representations and warranties that are expressly made as of a particular date, which shall be true and correct in all material respects as of such date. (b) Performance by the Purchasers. Each Purchaser shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Purchasers at or prior to the Closing. (c) No Injunction, Statute or Rule. No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or 5 governmental authority of competent jurisdiction which prohibits the consummation of any of the transactions contemplated by this Agreement. (d) Delivery of Purchase Price. The Purchase Price for the Shares shall have been delivered to the Seller. (e) Agreement, Limited Waiver and Ninth Amendment. The Agreement, Limited Waiver and Ninth Amendment among the Company, Devnet L.L.C., and the lenders under the Company's senior credit facility shall have been executed and delivered to the Seller. The conditions set forth in this Section 4.1 are for the Seller's sole benefit and may be waived only by the Seller at any time in its sole discretion. Section 4.2. Conditions Precedent to the Obligation of the Purchasers to Close and to Purchase the Shares. The obligation hereunder of the Purchasers to purchase the Shares and to consummate the transactions contemplated by this Agreement is subject to the satisfaction or waiver, at or before the Closing, of each of the conditions set forth below: (a) Accuracy of the Seller's Representations and Warranties. Each of the representations and warranties of the Seller in this Agreement shall be true and correct in all material respects as of the Closing Date, except for representations and warranties that speak as of a particular date, which shall be true and correct in all material respects as of such date. (b) Performance by the Seller. The Seller shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Seller at or prior to the Closing. (c) No Injunction, Statute or Rule. No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction which prohibits the consummation of any of the transactions contemplated by this Agreement. (d) Certificates. The Seller shall have delivered to the Purchasers certificates representing the Shares being acquired by the Purchasers at the Closing together with such stock powers duly endorsed in blank as the Purchasers may request. (e) Opinion of Counsel. At the Closing, the Purchaser shall have received an opinion of counsel to the Seller, dated the date of the Closing, in the form of Exhibit B hereto. (f) Common Stock Purchase Agreement. The transactions contemplated by the Common Stock Purchase Agreement by and among the Company and the Purchasers shall have been consummated. The conditions set forth in this Section 4.2 are for each Purchaser's sole benefit and may be waived only by a Purchasers (only with respect to such Purchaser) at any time in its sole discretion. 6 ARTICLE V. Miscellaneous Section 5.1. Fees and Expenses. Each party hereto shall pay the fees and expenses of its advisors, counsel, accountants and other experts, if any, and all other expenses, incurred by such party incident to the negotiation, preparation, execution, delivery and performance of this Agreement and the transactions contemplated hereby. Section 5.2. Entire Agreement; Amendment. This Agreement contains the entire understanding and agreement (written or oral) of the parties hereto with respect to the subject matter hereof and, except as specifically set forth herein, neither the Seller nor any Purchaser make any representation, warranty, covenant or undertaking with respect to such matters, and they supersede all prior understandings and agreements with respect to said subject matter, all of which are merged herein. No provision of this Agreement may be waived or amended other than by a written instrument signed by each party hereto. Any amendment or waiver effected in accordance with this Section 5.2 shall be binding upon each such party and its permitted assigns. Section 5.3. Notices. Any notice, demand, request, waiver or other communication required or permitted to be given hereunder shall be in writing and shall be effective (a) upon hand delivery by telecopy or facsimile at the address or number designated below (if delivered on a business day during normal business hours where such notice is to be received), or the first business day following such delivery (if delivered other than on a business day during normal business hours where such notice is to be received) or (b) on the second business day following the date of mailing by express courier service, fully prepaid, addressed to such address, or upon actual receipt of such mailing, whichever shall first occur. The addresses for such communications shall be: If to the Seller: Bank One, N.A. Bank One Plaza Chicago, IL 60670 Attn: Judith L. Chaisiri Fax No.: (312) 732-1775 If to any Purchaser: At the address of such Purchaser set forth on Exhibit A attached hereto. Any party hereto may from time to time change its address for notices by giving written notice of such changed address to the other party hereto. Section 5.4. Waivers. No waiver by either party of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of any party to exercise any right hereunder in any manner impair the exercise of any such right accruing to it thereafter. 7 Section 5.5. Headings. The article, section and subsection headings in this Agreement are for convenience only and shall not constitute a part of this Agreement for any other purpose and shall not be deemed to limit or affect any of the provisions hereof. Section 5.6. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and assigns. Neither party hereto may assign its rights or obligations under this Agreement (by operation of law or otherwise) without the prior written consent of each other party hereto, and any attempted assignment without such consent shall be void ab initio. Section 5.7. No Third Party Beneficiaries. Except as provided in Section 2.2(j) hereof, this Agreement is intended for the benefit of the parties hereto and their respective permitted successors and assigns and is not for the benefit of, nor may any provision hereof be enforced by, any other person or entity. Section 5.8. Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York, without giving effect to the choice of law provisions thereof. This Agreement shall not be interpreted or construed with any presumption against the party causing this Agreement to be drafted. Section 5.9. Counterparts. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument and shall become effective when counterparts have been signed by each party and delivered to the other parties hereto, it being understood that all parties need not sign the same counterpart. Section 5.10. Severability. The provisions of this Agreement are severable and, in the event that any court of competent jurisdiction shall determine that any one or more of the provisions or part of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision or part of a provision of this Agreement and this Agreement shall be reformed and construed as if such invalid or illegal or unenforceable provision, or part of such provision, had never been contained herein, so that such provisions would be valid, legal and enforceable to the maximum extent possible. Section 5.11. Waiver of Jury Trial. EACH PARTY HERETO HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, IN ANY ACTION, PROCEEDING OR LITIGATION OF ANY TYPE BROUGHT BY ANY SUCH PARTY AGAINST ANY OTHER PARTY HERETO, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS OR OTHERWISE. EACH PARTY HERETO HEREBY AGREES THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. THE AGREEMENT OF EACH PARTY HERETO TO THIS PROVISION IS A MATERIAL INDUCEMENT FOR EACH OTHER PARTY HERETO TO ENTER INTO THIS AGREEMENT. 8 [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 9 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the date first above written. BANK ONE, N.A. By:___________________________________ Name: Title: PURCHASERS: ________________________________ By:___________________________________ Name: Title: ________________________________ By:___________________________________ Name: Title: EX-99.J 6 dex99j.txt AMENDMENT AND WAIVER Exhibit J Execution Copy Amendment and Waiver This Amendment and Waiver is made as of January 10, 2003, by and among FiberNet Telecom Group, Inc., a corporation organized under the laws of Delaware ("FiberNet"), and each party listed on the signature page hereto under the heading "Bank Lenders." Recitals Whereas, pursuant to a Purchase Agreement dated October 30, 2002 ("October Purchase Agreement"), among FiberNet, Deutsche Bank AG New York Branch ("Deutsche Bank"), IBM Credit LLC, formerly IBM Credit Corporation ("IBM"), Wachovia Investors, Inc. ("Wachovia"), Bank One, N.A. ("Bank One"), Nortel Networks Inc. ("Nortel"), and Toronto Dominion (Texas), Inc. ("TD" and together with Deutsche Bank, IBM, Wachovia, Bank One and Nortel, the "Bank Lenders"), the Bank Lenders purchased from FiberNet, and FiberNet sold to the Bank Lenders, upon the terms and subject to the conditions set forth therein, an aggregate of 440,000,000 shares of FiberNet's Common Stock (the "Common Stock") and immediately exercisable warrants to purchase an aggregate of 110,000,000 shares of Common Stock; Whereas, pursuant to a Purchase Agreement dated November 11, 2002 ("November Purchase Agreement" and together with the October Purchase Agreement, the "Purchase Agreements"), among FiberNet and each Bank Lender, the Bank Lenders purchased from FiberNet, and FiberNet sold to the Bank Lenders, upon the terms and subject to the conditions set forth therein, an aggregate of 20,000,000 shares of Common Stock and immediately exercisable warrants to purchase an aggregate of 20,000,000 shares of Common Stock; Whereas, on November 11, 2002, FiberNet and each Bank Lender entered into the First Amended and Restated Investor's Rights Agreement (the "Rights Agreement") pursuant to which each Bank Lender agreed to certain transfer restrictions on the shares of Common Stock received by it pursuant to the Purchase Agreements and upon exercise of warrants received by it pursuant to the Purchase Agreements; Whereas, on November 11, 2002, FiberNet and each Bank Lender (other than Nortel) entered into the First Amended and Restated Shareholders Agreement (the "Shareholders Agreement") pursuant to which (a) FiberNet agreed to certain covenants restricting its ability to enter into agreements with any existing or future investor and (b) each Bank Lender a party thereto agreed to share voting power with respect to the shares of Common Stock received by it pursuant to the Purchase Agreements and upon exercise of warrants received by it pursuant to the Purchase Agreements; Whereas, FiberNet has presented to each Bank Lender a copy of each agreement listed on Exhibit A (collectively, the "January Financing Agreements") pursuant to which, (a) Bank One, TD and Nortel will convert into 138,514,536 shares of Common Stock (the "Converted Shares"), at a conversion price of $0.09662 per share an aggregate of $13,382,789.92 of principal indebtedness and accrued interest owed to such Bank Lenders under FiberNet's Amended and Restated Credit Agreement, dated as of February 9, 2001, among FiberNet Operations, Inc., Devnet, L.L.C., the financial institutions from time to time parties 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; and (b) the exercise price of (1) warrants held by Bank One to purchase an aggregate of 12,380,952 shares of Common Stock, (2) warrants held by TD to purchase an aggregate of 18,571,429 shares of Common Stock, and (3) warrants held by Nortel to purchase an aggregate of 18,571,429 shares of Common Stock will each be reduced to $0.001 per share, and Bank One, TD and Nortel will each exercise in full each such warrant (the "Warrant Shares"); and (c) Nortel will sell 101,942,950 shares of Common Stock held by it to a group of investors (the "New Equity Investors") for an aggregate purchase price of $3.0 million; and (d) Bank One will sell 90,715,938 shares of Common Stock held by it to the New Equity Investors for an aggregate purchase price of $3.0 million; and (e) TD will sell 101,942,950 shares of Common Stock held by it to the New Equity Investors for an aggregate purchase price of $3.0 million; and (f) the exercise price of one third of the warrants held by each Bank Lender, other than Bank One, TD and Nortel, will be reduced to $0.001 per share, and each such Bank Lender will exercise in full each repriced warrant; and (g) FiberNet will establish material rights and provide material benefits to the New Equity Investors that have not been received by the Bank Lenders under Stockholders Agreement, the Rights Agreement, or either Purchase Agreement; Whereas, unless waived, the terms of the Stockholders Agreement and Rights Agreement would prevent FiberNet, Bank One, TD and Nortel from consummating the transactions contemplated by January Financing Agreements to occur on the date hereof (the "January Financing"); Whereas, pursuant to the terms of Section III.I of the Stockholders Agreement, any term of the Stockholders Agreement may be amended or waived only with the written consent of FiberNet and Bank Lenders (other than Nortel) holding at least 75% of the shares of Common Stock (on a fully-diluted basis) issued pursuant to the Purchase Agreements and then held by such Bank Lenders, provided that, if in any particular instance a party's obligations or rights under the Stockholders Agreement are adversely affected in a disproportionately adverse manner from that in which other parties are affected by application of Section III.I of such agreement, the consent of such party shall also be required in such instance; Whereas, pursuant to the terms of Section 4.5 of the Rights Agreement, (a) any term of Section 2 of the Rights Agreement may be amended or waived only with the written consent of FiberNet and the holders of at least 75% of the Registrable Securities (as defined in the Rights Agreement) then outstanding and (b) any other term of the Rights Agreement may be amended or waived only with the written consent of Bank Lenders holding at least 75% of the Common Stock (on a fully-diluted basis) issued pursuant to the Purchase Agreements and then held by all Bank Lenders, provided that, if in any particular instance a party's obligations or rights under the Rights Agreement are adversely affected in a disproportionately adverse manner from that in which other parties are affected by application of Section 4.5 of such agreement, the consent of such party shall also be required in such instance; Whereas, the undersigned Bank Lenders hold a sufficient number of shares of Common Stock and Registrable Securities to amend or waive any term of the Rights Agreement or the Stockholders Agreement and wish to waive the application of the terms of each such agreement to the extent necessary to consummate the January Financing; Agreement Now, Therefore, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: I. Amendment and Waiver. Each party hereto (a) consents to the consummation of the January Financing and waives any and all rights such party may have under the Stockholders Agreement or the Rights Agreement with respect to the consummation of the January Financing and (b) agrees that each of the Stockholders Agreement and the Rights Agreement is hereby amended to remove each and every reference to Bank One, TD and Nortel, if any, as an "Investor" thereunder. II. Miscellaneous. A. Successors and Assigns. Except as otherwise expressly provided herein, the provisions hereof shall inure to the benefit of, and be binding upon, the successors, assigns, heirs, executors and administrators of the parties hereto. B. Entire Agreement; Titles and Subtitles. This Amendment and Waiver, together with the Rights Agreement and Stockholders Agreement, constitutes the full and entire understanding and agreement between the parties with regard to the subjects hereof and thereof. The titles of the paragraphs and subparagraphs of this Amendment and Waiver are for convenience of reference only and are not to be considered in construing or interpreting this Amendment and Waiver. Except as specifically set forth in Section I, the terms of the Stockholders Agreement and Rights Agreement shall not be changed by this Amendment and Waiver and shall remain in full force and effect. C. Governing Law. The validity, construction and effect of this Amendment and Waiver shall be governed by the with the laws of the State of New York, without giving effect to principles of conflicts of laws. D. Counterparts; Effectiveness. This Amendment and Waiver may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Each party to this Amendment and Waiver may rely on a facsimile signature on this Amendment and Waiver, and each party shall, if the other party so requests, provide an originally signed copy of this Amendment and Waiver to the other party. In Witness Whereof, the undersigned has executed this Amendment and Waiver as of the date set forth in the first paragraph hereof. Company FIBERNET TELECOM GROUP, INC. By: _________________________ Bank Lenders DEUTSCHE BANK AG IBM CREDIT LLC NEW YORK BRANCH By: _________________________ By: _________________________ Name: Name: Title: Title: By: _________________________ Name: Title: WACHOVIA INVESTORS, INC. NORTEL NETWORKS INC. By: _________________________ By: _________________________ Name: Name: Title: Title: BANK ONE, NA TORONTO DOMINION (TEXAS), INC. By: _________________________ By: _________________________ Name: Name: Title: Title: Exhibit A January Financing Agreements 1. Debt Exchange Agreement, dated January 10, 2003, between FiberNet Telecom Group, Inc. and Bank One, NA 2. Debt Exchange Agreement, dated January 10, 2003, between FiberNet Telecom Group, Inc. and Nortel Networks Inc. 3. Debt Exchange Agreement, dated January 10, 2003, between FiberNet Telecom Group, Inc. and TD Securities (USA) Inc. 4. Stock Purchase Agreement, dated January 10, 2003, between Bank One, NA and the purchasers listed on Exhibit A thereto 5. Stock Purchase Agreement, dated January 10, 2003, between Nortel Networks Inc. and the purchasers listed on Exhibit A thereto 6. Stock Purchase Agreement, dated January 10, 2003, between Toronto Dominion (Texas), Inc. and the purchasers listed on Exhibit A thereto 7. Common Stock Purchase Agreement, dated January 10, 2003 between FiberNet Telecom Group, Inc. and the parties listed on Exhibit A thereto as "Purchasers" 8. Registration Rights Agreement, dated January 10, 2003 between FiberNet Telecom Group, Inc. and the parties listed on Schedule I thereto as "Purchasers" 9. Warrant to Purchase Shares of Common Stock of FiberNet Telecom Group, Inc. between FiberNet Telecom Group, Inc. and each party listed on Exhibit A to the Purchase Agreement referred to in paragraph 7 above as "Purchasers" 10. Warrant Agreement Amendment No. 2, dated January 10, 2003, among FiberNet Telecom Group, Inc., Toronto Dominion (Texas), Inc., Nortel Networks Inc., and Bank One, N.A. 11. Warrant Agreement Amendment No. 1, dated January 10, 2003, among FiberNet Telecom Group, Inc., Deutsche Bank AG New York Branch, IBM Credit LLC, Wachovia Investors, Inc., and TD Securities (USA) Inc. -----END PRIVACY-ENHANCED MESSAGE-----