0001019056-05-000058.txt : 20120703
0001019056-05-000058.hdr.sgml : 20120703
20050119155101
ACCESSION NUMBER: 0001019056-05-000058
CONFORMED SUBMISSION TYPE: SC 13D/A
PUBLIC DOCUMENT COUNT: 2
FILED AS OF DATE: 20050119
DATE AS OF CHANGE: 20050119
GROUP MEMBERS: ASPEN ADVISORS LLC
GROUP MEMBERS: ASPEN CAPITAL LLC
GROUP MEMBERS: NIKOS HECHT
FILED BY:
COMPANY DATA:
COMPANY CONFORMED NAME: ASPEN PARTNERS SERIES A
CENTRAL INDEX KEY: 0001237622
IRS NUMBER: 134118716
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: SC 13D/A
MAIL ADDRESS:
STREET 1: C/O ASPEN ADVISORS LLC
STREET 2: 152 W 57TH ST
CITY: NEW YORK
STATE: NY
ZIP: 10019
SUBJECT COMPANY:
COMPANY DATA:
COMPANY CONFORMED NAME: FIRST AVENUE NETWORKS INC
CENTRAL INDEX KEY: 0001010286
STANDARD INDUSTRIAL CLASSIFICATION: RADIO TELEPHONE COMMUNICATIONS [4812]
IRS NUMBER: 521869023
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: SC 13D/A
SEC ACT: 1934 Act
SEC FILE NUMBER: 005-49879
FILM NUMBER: 05536345
BUSINESS ADDRESS:
STREET 1: 230 COURT SQUARE
STREET 2: SUITE 202
CITY: CHARLOTTESVILLE
STATE: VA
ZIP: 22902
BUSINESS PHONE: 434 220 4988
MAIL ADDRESS:
STREET 1: 230 COURT SQUARE
STREET 2: SUITE 202
CITY: CHARLOTTESVILLE
STATE: VA
ZIP: 22902
FORMER COMPANY:
FORMER CONFORMED NAME: ADVANCED RADIO TELECOM CORP
DATE OF NAME CHANGE: 19960503
SC 13D/A
1
aspen_13da5.txt
SCHEDULE 13D/A
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
(RULE 13d-101)
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 5)*
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO
RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(a)
First Avenue Networks, Inc.
(Name of Issuer)
Common Stock, par value $0.001 per share
(Title of Class of Securities)
31865X106
(CUSIP Number)
Robert A. Grauman, Esq.
O'Melveny & Myers LLP
Times Square Tower
7 Times Square
New York, NY 10036
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
January 14, 2005
-------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following
box. [X]
NOTE: Schedules filed in paper format shall include a signed original
and five copies of the schedule, including all exhibits. See Rule
13d-7(b) 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).
CUSIP NO. 31865X106 13D
--------------------------------------------------------------------------------
1. NAMES OF REPORTING PERSONS:
Teligent, Inc.
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
54-1866562
--------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS) (a) [ ]
(b) [X]
--------------------------------------------------------------------------------
3. SEC USE ONLY
--------------------------------------------------------------------------------
4. SOURCE OF FUNDS (SEE INSTRUCTIONS)
OO
--------------------------------------------------------------------------------
5. CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
--------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
--------------------------------------------------------------------------------
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
--------------------------------------------------------------------------------
7. SOLE VOTING POWER
0
--------------------------------------------------------------------------------
8. SHARED VOTING POWER
25,194,647
--------------------------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
0
--------------------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
25,194,647
--------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
25,194,647
--------------------------------------------------------------------------------
12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(SEE INSTRUCTIONS) [ ]
--------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
42.4%
--------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
CO
--------------------------------------------------------------------------------
2
CUSIP NO. 31865X106 13D
--------------------------------------------------------------------------------
1. NAMES OF REPORTING PERSONS:
Aspen Partners Series A, a series of Aspen Capital Partners, LP
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
13-4118716
--------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS) (a) [ ]
(b) [X]
--------------------------------------------------------------------------------
3. SEC USE ONLY
--------------------------------------------------------------------------------
4. SOURCE OF FUNDS (SEE INSTRUCTIONS)
WC
--------------------------------------------------------------------------------
5. CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
--------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
--------------------------------------------------------------------------------
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
--------------------------------------------------------------------------------
7. SOLE VOTING POWER
0
--------------------------------------------------------------------------------
8. SHARED VOTING POWER
3,771,463
--------------------------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
0
--------------------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
3,771,463
--------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,771,463
--------------------------------------------------------------------------------
12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(SEE INSTRUCTIONS) [ ]
--------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.2%
--------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
OO
--------------------------------------------------------------------------------
3
CUSIP NO. 31865X106 13D
--------------------------------------------------------------------------------
1. NAMES OF REPORTING PERSONS:
Aspen Capital LLC
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
13-4118715
--------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS) (a) [ ]
(b) [X]
--------------------------------------------------------------------------------
3. SEC USE ONLY
--------------------------------------------------------------------------------
4. SOURCE OF FUNDS (SEE INSTRUCTIONS)
AF
--------------------------------------------------------------------------------
5. CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
--------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
--------------------------------------------------------------------------------
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
--------------------------------------------------------------------------------
7. SOLE VOTING POWER
0
--------------------------------------------------------------------------------
8. SHARED VOTING POWER
3,771,463
--------------------------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
0
--------------------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
3,771,463
--------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,771,463
--------------------------------------------------------------------------------
12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(SEE INSTRUCTIONS) [ ]
--------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.2%
--------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
OO
--------------------------------------------------------------------------------
4
CUSIP NO. 31865X106 13D
--------------------------------------------------------------------------------
1. NAMES OF REPORTING PERSONS:
Aspen Advisors LLC
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
13-4118717
--------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS) (a) [ ]
(b) [X]
--------------------------------------------------------------------------------
3. SEC USE ONLY
--------------------------------------------------------------------------------
4. SOURCE OF FUNDS (SEE INSTRUCTIONS)
AF, OO
--------------------------------------------------------------------------------
5. CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
--------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
--------------------------------------------------------------------------------
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
--------------------------------------------------------------------------------
7. SOLE VOTING POWER
0
--------------------------------------------------------------------------------
8. SHARED VOTING POWER
30,653,905
--------------------------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
0
--------------------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
30,653,905
--------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
30,653,905
--------------------------------------------------------------------------------
12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(SEE INSTRUCTIONS) [ ]
--------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
50.2%
--------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
OO
--------------------------------------------------------------------------------
5
CUSIP NO. 31865X106 13D
--------------------------------------------------------------------------------
1. NAMES OF REPORTING PERSONS:
Nikos Hecht
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) N/A
--------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS) (a) [ ]
(b) [X]
--------------------------------------------------------------------------------
3. SEC USE ONLY
--------------------------------------------------------------------------------
4. SOURCE OF FUNDS (SEE INSTRUCTIONS)
AF, OO
--------------------------------------------------------------------------------
5. CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
--------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
United States
--------------------------------------------------------------------------------
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
--------------------------------------------------------------------------------
7. SOLE VOTING POWER
0
--------------------------------------------------------------------------------
8. SHARED VOTING POWER
30,653,905
--------------------------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
0
--------------------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
30,653,905
--------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
30,653,905
--------------------------------------------------------------------------------
12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(SEE INSTRUCTIONS) [ ]
--------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
50.2%
--------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
IN
--------------------------------------------------------------------------------
6
The Statement on Schedule 13D dated February 6, 2004 filed by Aspen
Partners Series A, a series of Aspen Capital Partners, LP ("Aspen Partners"),
Aspen Capital LLC ("Aspen Capital"), Aspen Advisors LLC ("Aspen Advisors"), and
Nikos Hecht (each a "Reporting Person," and, collectively the "Reporting
Persons") with respect to the Common Stock, par value $0.001 per share (the
"Common Stock"), of First Avenue Networks, Inc., a Delaware corporation (the
"Company"), and amended by Amendment No. 1 dated March 4, 2004, Amendment No. 2
dated July 8, 2004, Amendment No. 3 dated November 8, 2004 and Amendment No. 4
dated December 16, 2004, is hereby further amended with respect to the items set
forth below. Capitalized terms used without definition in this Schedule 13D
(Amendment No. 5) have the meanings set forth in the Reporting Persons' Schedule
13D, as originally filed.
Item 2. Identity and Background
The information set forth under this item is hereby amended by the addition of
the following:
In addition to the Reporting Persons named in this Schedule 13D through
Amendment No. 4, commencing with this Schedule 13D (Amendment No. 5), the
Reporting Persons also include Teligent, Inc., a Delaware corporation
("Teligent"). Until the closing under the Amended and Restated Purchase
Agreement described in Item 6 below, Teligent was engaged in providing fixed
wireless broadband communications services. Teligent is currently engaged in
preparing to dissolve and wind up its business and to distribute the Company
Common Stock received pursuant to the Purchase Agreement to the shareholders of
Teligent. Teligent's address is 7925 Jones Branch Drive, Room 3226, McLean, VA
22102. During the last five years, neither Teligent nor, to the knowledge of the
Reporting Persons, any executive officer or director of Teligent, has been
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors) or been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of such proceeding
was or is subject to a judgment, decree or final order enjoining future
violations of, or prohibiting or mandating activities subject to, federal or
state securities laws or finding any violation with respect to such laws.
Aspen Partners and managed accounts of Aspen Advisors are the
beneficial owners of 41.8% and 25.4%, respectively, of the outstanding shares of
Teligent. Accordingly, Aspen Advisors and, through Aspen Advisors, Mr. Hecht may
be deemed to be the controlling persons of Teligent. The directors of Teligent
are Mr. Nikos Hecht, Mr. Neil Subin, and Dr. Rajendra Singh. The information
required by Item 2 and General Instruction C of Schedule 13D with respect to
Aspen Advisors, Mr. Hecht, and the other executive officers of Aspen Advisors
was set forth in the Schedule 13D dated February 6, 2004 filed by Aspen
Partners, Aspen Capital, Aspen Advisors and Mr. Hecht. The following table sets
forth the information required by Item 2 and General Instruction C of Schedule
13D with respect to the other directors and executive officers of Teligent.
7
Principal Place of Principal
Occupation or Occupation
Name Position at Teligent Employment or Employment
---- -------------------- ---------- -------------
Thomas A. Scott President, Chief President of Teligent, Inc.
Operating Officer Teligent 7925 Jones Branch Drive
and Secretary McLean VA 22102
Neil Subin Director Financial Trendex Capital Management
Consultant 8 Palm Court
Sewalls Point FL 34996
Dr. Rajendra Singh Director Chairman of Telecom Ventures LLC
Telecom Ventures 201 N. Union St., Ste. 360
LLC Alexandria VA 22314
Item 3. Source and Amount of Funds or Other Consideration
The information set forth under this item is hereby amended by the addition of
the following:
The shares of Common Stock beneficially owned by Teligent were acquired
in exchange for substantially all the assets of Teligent pursuant to the Amended
and Restated Purchase Agreement described in Item 6 below.
The Teligent Transaction Warrant described in Item 6 of this Schedule
13D (Amendment No. 5) was issued to Dr. Rajendra Singh in exchange for an option
to acquire Teligent common stock granted to Dr. Singh by Teligent.
Item 4. Purpose of Transaction
The information set forth under this item is hereby amended by the addition of
the following:
Reference is made to Item 4 of the Reporting Persons' Schedule 13D
(Amendment No. 3) for a statement of the Reporting Persons' purposes in
supporting the combination of Teligent with the Company. As previously disclosed
by the Reporting Persons, the Purchase Agreement contemplates that Teligent will
dissolve and liquidate as promptly as practicable after the closing thereunder
and distribute the Company Common Stock acquired pursuant to the Purchase
Agreement to its shareholders.
Item 5. Interest in Securities of the Issuer
The information set forth under this item is hereby amended and restated in its
entirety as follows:
8
On January 14, 2005, Teligent and the Company consummated the sale of
substantially all of Teligent's assets to the Company pursuant to the Purchase
Agreement in consideration of the Company's issuance of 25,194,647 shares of
Common Stock as payment for the assets of Teligent. Such 25,194,647 shares
constitute approximately 42.4% of the outstanding Company Common Stock. Pursuant
to the Purchase Agreement, the Company also issued a warrant to purchase up to
2,519,464 shares of Company Common Stock (the "Teligent Transaction Warrant"
previously referred to in the Reporting Persons' Schedule 13D) to Dr. Rajendra
Singh, a director of Teligent.
As of the date of this Schedule 13D (Amendment No. 5), Aspen Partners
is the beneficial owner of 3,771,463 shares of the Company's Common Stock,
constituting approximately 6.2% of the outstanding shares of Common Stock. In
determining such percentage beneficial ownership, outstanding Common Stock has
been determined by adding the following shares of Company Common Stock to
21,288,016 shares of Common Stock outstanding (as set forth on the cover page to
the Company's Form 10-Q for the nine months ended September 30, 2004):
o 25,194,647 shares of Common Stock issued to Teligent
pursuant to the Purchase Agreement (the "Teligent Shares")
o 12,870,000 shares issued in a private placement completed by
the Company on December 14, 2004 (the "Private Placement
Shares")
o 1,174,383 shares issuable upon exercise of warrants held by
Aspen Partners.
Of the 3,771,463 shares beneficially owned by Aspen Partners, 2,597,080
shares are issued and outstanding, 762,279 shares are issuable upon exercise of
Class A Warrants held by Aspen Partners and 412,104 shares are issuable upon the
exercise of New Warrants held by Aspen Partners. As the general partner of Aspen
Partners, Aspen Capital may be deemed to share beneficial ownership of all such
shares. Aspen Partners and Aspen Capital disclaim any beneficial interest in the
shares owned by the accounts managed by Aspen Advisors.
In addition to such 3,771,463 shares, upon the dissolution and
liquidation of Teligent, Aspen Partners will be entitled to receive
approximately 10,534,512 Teligent Shares as a liquidating distribution by
Teligent in respect of Aspen Partners' ownership of 41.8% of the outstanding
common stock of Teligent. In such event, Aspen Partners would be the beneficial
owner of 14,305,975 shares of Company Common Stock, or 23.6% of the outstanding
Common Stock (with outstanding Common Stock computed as described above).
As of the date of this Schedule 13D (Amendment No. 5), Aspen Advisors
is the beneficial owner of 30,653,905 shares of the Company's Common Stock,
constituting approximately 50.2% of the outstanding shares of Common Stock. In
determining such percentage beneficial ownership, outstanding Common Stock has
9
been computed by adding to 21,288,016 shares of Common Stock outstanding
12,870,000 Private Placement Shares, all 25,194,647 Teligent Shares and
1,672,140 shares issuable upon exercise of warrants held by Aspen Partners and
private clients of Aspen Advisors. Of the 30,653,905 shares beneficially owned
by Aspen Advisors, 3,787,118 shares are issued and outstanding and held by Aspen
Partners and such private clients, 1,047,140 shares are issuable upon exercise
of Class A Warrants held by Aspen Partners and such clients, 625,000 shares are
issuable upon the exercise of New Warrants held by Aspen Partners and such
clients and 25,194,647 shares are held by Teligent. Aspen Advisors, as
investment manager for Aspen Partners and its private clients, has discretionary
investment authority over the Company Common Stock and warrants and the Teligent
common stock held by Aspen Partners and the private clients. Mr. Hecht is the
managing member of Aspen Capital, the general partner of Aspen Partners and of
Aspen Advisors. Accordingly, Mr. Hecht may be deemed to be the beneficial owner
of the Common Stock and warrants held by Aspen Partners and the private clients
of Aspen Advisors. Because Aspen Partners and private clients of Aspen Advisors
own a controlling interest in Teligent, Mr. Hecht may also be deemed the
beneficial owner of the Teligent Shares prior to the liquidation of Teligent and
distribution of the Teligent Shares to the stockholders of Teligent.
The foregoing computations of Aspen Advisors' and Mr. Hecht's
beneficial ownership amounts and percentages prior to a liquidation of Teligent
attribute to them beneficial ownership of 100% of the Teligent Shares. However,
the Purchase Agreement contemplates that Teligent will dissolve and liquidate as
promptly as practicable after the closing thereunder and distribute the Teligent
Shares to its stockholders. Upon the dissolution and liquidation of Teligent,
Aspen Partners will be entitled to receive 10,534,512 Teligent Shares as a
liquidating distribution by Teligent in respect of Aspen Partners' ownership of
41.8% of the outstanding common stock of Teligent, and private accounts managed
by Aspen Advisors will be entitled to receive approximately 6,402,589 Teligent
Shares as a liquidating distribution by Teligent in respect of such accounts'
ownership of 25.4% of the outstanding common stock of Teligent. The remaining
Teligent Shares would be distributed to the other stockholders of Teligent. Such
distributions would reduce Aspen Advisors' and Mr. Hecht's beneficial ownership
of Company Common Stock to 22,396,359 shares, or 36.7% of the Company's
outstanding Common Stock.
By virtue of the contemplated dissolution and liquidation of Teligent,
the Reporting Persons (other than Teligent) disclaim any beneficial interest in
the Teligent Shares in excess of the shares distributable to them with respect
to their respective shareholdings in Teligent.
As of the date of this Schedule 13D (Amendment No. 5), the directors
and executive officers of Teligent (other than Mr. Hecht, whose beneficial
ownership is included in the beneficial ownership of the Reporting Persons set
forth above), are the beneficial owners of the following shares of Company
Common Stock:
10
Number of Nature of Beneficial Percentage
Name Shares Ownership Interest
---- ------ --------- --------
Dr. Rajendra Singh 2,519,464 shares issuable upon 4.1%*
exercise of the Teligent
Transaction Warrant
---------------
* Calculated by adding to 21,288,016 outstanding shares the Teligent
Shares, the Private Placement Shares and the shares issuable upon exercise of
the Teligent Transaction Warrant.
Except as set forth in this Item 5, during the 60 days preceding the
filing of this Schedule 13D (Amendment No. 5), none of the Reporting Persons
and, to their knowledge, none of the executive officers and directors of the
Reporting Persons, has engaged in any transactions in Company Common Stock.
Item 6. Contracts, Arrangements, Understandings or Relationships With
Respect to Securities of the Issuer.
The information set forth under this item is hereby amended by the addition of
the following:
Immediately prior to the closing under the Purchase Agreement, the
Purchase Agreement was amended and restated to restructure the acquisition by
providing for a separate purchase by a Company subsidiary of certain assets from
a subsidiary of Teligent. The restructuring did not affect the number of shares
of Company Common Stock issued to Teligent. A copy of the amended and restated
purchase agreement is an exhibit to this Schedule 13D (Amendment No. 5).
In connection with the closing under the Purchase Agreement and the
issuance of the Teligent Shares, the Company, Teligent, Aspen Partners, Dr.
Rajendra Singh and certain other holders of the Company's Common Stock entered
into a Third Amended and Restated Registration Rights Agreement dated as of
January 14, 2005 (the "Third Registration Agreement"). Pursuant to the Third
Registration Agreement, holders of Registrable Securities (defined by the Third
Registration Agreement as including Common Stock issued under the Company's plan
of reorganization, Common Stock issuable upon exercise of the Class A Warrants
and the New Warrants, the Teligent Shares and Common Stock issuable upon
exercise of the Teligent Transaction Warrant) are entitled to require the
Company to register their Common Stock under the Securities Act of 1933, as
amended (the "Securities Act") at any time, provided that (i) registration is
requested by the holders of at least 30% of the Registrable Securities, (ii) not
more than one such registration demand may be made in any 12-month period and
(iii) not more than three such registration demands may be made in total. A
registration demand is not counted for purposes of the foregoing totals unless
certain conditions set forth in the Third Registration Agreement are met,
including effectiveness of the required registration statement. If the
registration statement is to be filed for an underwritten offering, no other
holders of securities may include their securities in the registration statement
11
unless the managing underwriter advises the stockholders requesting registration
that such inclusion would not adversely affect the price or success of the
offering. Holders of Registrable Securities also received the right to include
their Common Stock in registration statements filed by the Company (subject to
certain underwriters' cutbacks based on the type and amount of securities being
offered in connection with underwritten offerings) and, upon the Company
becoming eligible to utilize Form S-3 under the Securities Act, to require the
Company to file a shelf-registration statement for the sale of their Registrable
Securities on such form and to maintain the effectiveness of the shelf
registration statement for up to 270 days (plus any period during which sales
under the shelf registration statement must be suspended as provided in the
Third Registration Agreement). The Company is not required to effect more than
two (2) shelf registrations in any 12-month period or to take any action to
effect any shelf registration within 90 days immediately following the effective
date of any registration statement pertaining to an underwritten public offering
of securities of the Company for its own account. Registrable Securities cease
to be such when they are sold pursuant to an effective registration statement
under the Securities Act in accordance with the plan of distribution set forth
therein or pursuant to Rule 144 under the Securities Act, when they cease to be
outstanding or when such securities may be distributed to the public free from
any restrictions imposed by Rule 144 and without the requirement of the filing
of a registration statement under the Securities Act covering such securities.
The Third Registration Agreement also contains provisions for lockups by holders
of Registrable Securities and indemnification of the selling security holders by
the Company and of the Company by the selling security holders. Registration
expenses in connection with registrations effected pursuant to the Third
Registration Agreement are generally payable by the Company.
In connection with the closing under the Purchase Agreement, the
Company also issued the Teligent Transaction Warrant to Dr. Rajendra Singh. The
warrant is exercisable for the purchase of up to 2,519,464 shares of Company
Common Stock until June 28, 2009 at an exercise price that increases over the
life of the warrant, as set forth therein. The exercise price of the option to
purchase Teligent common stock that Dr. Singh surrendered in exchange for the
Teligent Transaction Warrant also increased over the life of the option, and the
increasing exercise price of the Teligent Transaction Warrant is intended to
provide Dr. Singh with the right to purchase the number of shares of Company
Common Stock that he would have received had he exercised his Teligent option at
the respective exercise prices of that option immediately prior to the closing
under the Purchase Agreement.
The exercise price of the Teligent Transaction Warrant is payable in
cash or on a "cashless exercise" basis by issuance to the holder of the number
of shares of Common Stock otherwise issuable upon such exercise less a number of
shares of Common Stock having a fair market value (as determined in accordance
with the Teligent Transaction Warrant) equal to the aggregate exercise price for
the number of shares of Common Stock for which the warrant is exercised. The
exercise price and the number of shares of Common Stock issuable upon exercise
of the Teligent Transaction Warrant will be adjusted for stock dividends, stock
splits, reverse splits, and certain extraordinary transactions, including any
12
capital reorganization or reclassification of the capital stock of the Company
or any consolidation or merger of the Company with another corporation, or the
sale of all or substantially all of the Company's assets to another corporation.
The shares issuable upon exercise of the Teligent Transaction Warrant are
Registrable Securities under the Third Registration Agreement.
The descriptions of the Amended and Restated Purchase Agreement, the
Third Registration Agreement and the Teligent Transaction Warrant set forth in
this Item 6 are summaries only, do not purport to be complete and are qualified
in their entirety by the full text of such documents. Such documents have been
filed by the Company as exhibits to its periodic reports filed pursuant to the
Securities Exchange Act of 1934, as amended, and have been incorporated by
reference from such reports as exhibits to this Schedule 13D (Amendment No. 5),
as set forth in Item 7, below.
Item 7. Material to be Filed as Exhibits
Exhibit Document
------- --------
10. Amended and Restated Joint Filing Agreement among the
Reporting Persons
11. Amended and Restated Asset Purchase Agreement dated
as of January 13, 2005, by and among the Company,
Teligent Services Acquisition, Inc., Teligent
Services, Inc. and Teligent, Inc. (incorporated by
reference to Exhibit 10.1 to the Company's Current
Report on Form 8-K filed January 18, 2005).
12. Stock Purchase Warrant dated January 14, 2005 issued
to Dr. Rajendra Singh (incorporated by reference to
Exhibit 4.1 to the Company's Current Report on Form
8-K filed January 18, 2005).
13. Third Amended and Restated Registration Rights
Agreement dated as of January 14, 2005 among the
Company and the security holders named therein
(incorporated by reference to Exhibit 10.2 to the
Company's Current Report on Form 8-K filed January
18, 2005).
13
SIGNATURES
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information in this statement is true, complete and correct.
Dated: January 19, 2005
ASPEN PARTNERS, SERIES A, a series of
ASPEN CAPITAL PARTNERS, LP
By: ASPEN CAPITAL LLC,
its general partner
By: /s/ NIKOS HECHT
------------------------------------
Name: Nikos Hecht
Title: Managing Member
ASPEN CAPITAL LLC
By: /s/ NIKOS HECHT
------------------------------------
Name: Nikos Hecht
Title: Managing Member
ASPEN ADVISORS LLC
By: /s/ NIKOS HECHT
------------------------------------
Name: Nikos Hecht
Title: Managing Member
/s/ NIKOS HECHT
------------------------------------
Nikos Hecht
TELIGENT, INC.
By: /s/ THOMAS A. SCOTT
------------------------------------
Name: Thomas A. Scott
Title: President and CEO
EX-10
2
ex_10.txt
EXHIBIT 10
EXHIBIT 10
AMENDED AND RESTATED JOINT FILING AGREEMENT
The Joint Filing Agreement dated as of February 6, 2004 among Aspen
Capital Partners, LP, Aspen Capital LLC, Aspen Advisors LLC, and Nikos Hecht is
hereby amended and restated as follows:
In accordance with Rule 13d-1(k) promulgated under the Securities
Exchange Act of 1934, as amended, the undersigned hereby agree to the joint
filing with all other Reporting Persons (as such term is defined in the Schedule
13D referred to below) on behalf of each of them of a statement on Schedule 13D
(including amendments thereto) with respect to the common stock of First Avenue
Networks, Inc., a Delaware corporation, and that this Agreement may be included
as an exhibit to such joint filing. This Joint Filing Agreement may be executed
in any number of counterparts, all of which taken together shall constitute one
and the same instrument.
IN WITNESS WHEREOF, the undersigned hereby execute this Agreement as of
the 19 day of January, 2005.
ASPEN PARTNERS, SERIES A, a series of
ASPEN CAPITAL PARTNERS, LP
By: ASPEN CAPITAL LLC,
its general partner
By: /s/ NIKOS HECHT /s/ NIKOS HECHT
---------------------------------- -----------------------------------
Name: Nikos Hecht Nikos Hecht
Title: Managing Member
ASPEN CAPITAL LLC TELIGENT, INC.
By: /s/ NIKOS HECHT By: /s/ THOMAS A. SCOTT
---------------------------------- -------------------------------
Name: Nikos Hecht Name: Thomas A. Scott
Title: Managing Member Title: President and CEO
ASPEN ADVISORS LLC
By: /s/ NIKOS HECHT
----------------------------------
Name: Nikos Hecht
Title: Managing Member