-----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, Ukhtpfp51TJEMacnQUsygywIOI7Z1J1mRStneaVQIhCqFOK0zzw9qpXMAOOADnqK nnjCbmYDoUszfFEzXiL5PA== 0001019056-06-000689.txt : 20060621 0001019056-06-000689.hdr.sgml : 20060621 20060621171240 ACCESSION NUMBER: 0001019056-06-000689 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20060621 DATE AS OF CHANGE: 20060621 GROUP MEMBERS: ASPEN ADVISORS LLC GROUP MEMBERS: ASPEN CAPITAL LLC GROUP MEMBERS: NIKOS HECHT 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: 06917931 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 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 SC 13D/A 1 aspen_13da9.txt SCHEDULE 13D, AMENDMENT NO. 9 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D (RULE 13d-101) UNDER THE SECURITIES EXCHANGE ACT OF 1934 (AMENDMENT NO. 9)* 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) Kathryn Sanders, Esq. O'Melveny & Myers LLP 400 South Hope Street Los Angeles, CA 90071 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) May 31, 2006 ------------------------------------------------------- (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: 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 12,856,919 --------------------------------------------------------------------------- 9 SOLE DISPOSITIVE POWER 0 --------------------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 12,856,919 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 12,856,919 - -------------------------------------------------------------------------------- 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS) [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 19.7% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON (SEE INSTRUCTIONS) OO - -------------------------------------------------------------------------------- 2 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 12,856,919 --------------------------------------------------------------------------- 9 SOLE DISPOSITIVE POWER 0 --------------------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 12,856,919 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 12,856,919 - -------------------------------------------------------------------------------- 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS) [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 19.7% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON (SEE INSTRUCTIONS) OO - -------------------------------------------------------------------------------- 3 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 22,396,359 --------------------------------------------------------------------------- 9 SOLE DISPOSITIVE POWER 0 --------------------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 14,525,839 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 22,396,359 - -------------------------------------------------------------------------------- 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS) [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 34.3% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON (SEE INSTRUCTIONS) OO - -------------------------------------------------------------------------------- 4 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 22,396,359 --------------------------------------------------------------------------- 9 SOLE DISPOSITIVE POWER 0 --------------------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 14,525,839 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 22,396,359 - -------------------------------------------------------------------------------- 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS) [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 34.3% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON (SEE INSTRUCTIONS) IN - -------------------------------------------------------------------------------- 5 CUSIP NO. 31865X106 13D - -------------------------------------------------------------------------------- 1 NAMES OF REPORTING PERSONS: EnterAspen Limited 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) OO - -------------------------------------------------------------------------------- 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Cayman Islands - -------------------------------------------------------------------------------- NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: --------------------------------------------------------------------------- 7. SOLE VOTING POWER 0 --------------------------------------------------------------------------- 8. SHARED VOTING POWER 8,302,186 --------------------------------------------------------------------------- 9 SOLE DISPOSITIVE POWER 7,870,520 --------------------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 431,666 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 8,302,186 - -------------------------------------------------------------------------------- 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS) [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 12.7% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON (SEE INSTRUCTIONS) CO - -------------------------------------------------------------------------------- 6 CUSIP NO. 31865X106 13D The Statement on Schedule 13D dated February 6, 2004 filed by Aspen Partners Series A, a series of Aspen Capital Partners, LP, Aspen Capital LLC, Aspen Advisors LLC, and Nikos Hecht 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, as further amended by Amendment No. 5 dated January 19, 2005 filed by the Reporting Persons and Teligent, Inc. ("Teligent"), Amendment No. 6 dated February 25, 2005, Amendment No. 7 dated February 25, 2005 and Amendment No. 8 dated May 14, 2006 is hereby further amended with respect to the items set forth below. Capitalized terms used without definition in this Schedule 13D (Amendment No. 9) have the meanings set forth in the Reporting Persons' Schedule 13D, as originally filed. Item 2. Identity and Background The information set forth under parts a-c of this item are hereby amended and restated in their entirety as follows: This Statement is being 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"), EnterAspen Limited ("EnterAspen"), and Nikos Hecht (each a "Reporting Person", and, collectively "Reporting Persons"). The business address and principal office of Aspen Advisors are 152 West 57th Street, New York, NY, 10019. The business address and principal office of EnterAspen are Scotiabank Building, 6 Cardinall Avenue, P.O. Box 501GT, Cayman Islands. The business address and principal office of each of the other Reporting Persons are c/o Aspen Advisors LLC, 152 West 57th Street, New York, NY, 10019. Aspen Partners is a Delaware limited partnership and a private investment partnership, investing principally in securities of distressed companies. Aspen Capital is a Delaware limited liability company, the business of which is acting as the general partner of Aspen Partners. Aspen Advisors is a Delaware limited liability company, the business of which is investment management for affiliated partnerships and funds, including Aspen Partners, and a limited number of institutional and other large private investors. Such private investors include EnterAspen, a Cayman Islands exempted company. Mr. Hecht is the managing member of Aspen Advisors and is engaged, through Aspen Advisors, in the business of organizing private investment partnerships and providing investment management to such partnerships and other institutional and private investors. As the managing member and owner of a majority of the membership interest in Aspen Advisors and Aspen Capital, Mr. Hecht may be deemed to be the controlling person of Aspen Advisors and Aspen Capital and, through Aspen Capital, Aspen Partners. 7 CUSIP NO. 31865X106 13D The other executive officer of Aspen Advisors is Ms. Sharlene Louie, who serves as the Chief Financial Officer of Aspen Advisors. Ms. Louie's business address is c/o Aspen Advisors LLC, 152 West 57th Street, New York, NY, 10019. 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: (a), (b) As of the date of this Schedule 13D (Amendment No. 9), Aspen Partners is the beneficial owner of 12,856,919 shares of the Company's Common Stock, constituting approximately 19.7% of the outstanding shares of Common Stock, based on 65,249,850 shares of Common Stock outstanding as of May 12, 2006, as set forth in the Merger Agreement. Of the 12,856,919 shares of Company Common Stock beneficially owned by Aspen Partners, 1,672,140 shares were issued upon the exercise by Aspen Partners, on May 11, 2006, of warrants held by it. As the general partner of Aspen Partners, Aspen Capital may be deemed to share beneficial ownership of all such shares. Each of Aspen Partners, Aspen Capital, Aspen Advisors and Nikos Hecht share voting power and dispositive power with respect to the 12,856,919 shares of Company Common Stock beneficially owned by Aspen Partners. Aspen Partners and Aspen Capital disclaim any beneficial interest in the shares owned by the accounts managed by Aspen Advisors. As of the date of this Schedule 13D (Amendment No. 9), Aspen Advisors is the beneficial owner of 22,396,359 shares of the Company's Common Stock, constituting approximately 34.3% of the outstanding shares of Common Stock, based on 65,249,850 shares of Common Stock outstanding as of May 12, 2006, as set forth in the Merger Agreement. Of the 22,396,359 shares beneficially owned by Aspen Advisors (i) 12,856,919 shares are held by Aspen Partners, and (ii) 9,539,440 shares are beneficially owned by private client accounts of Aspen Advisors, including EnterAspen. Aspen Advisors, as investment manager for Aspen Partners and its private clients, has (i) voting authority over the Company Common Stock held by Aspen Partners and the private clients and (ii) dispositive authority over (A) all shares of Company Common Stock held by Aspen Partners and the private clients (excluding EnterAspen) and (B) 431,666 shares of Company Common Stock held by EnterAspen. Mr. Hecht is the managing member of Aspen Advisors and Aspen Capital, the general partner of Aspen Partners. Accordingly, Mr. Hecht may be deemed to be the beneficial owner of the Common Stock held by Aspen Partners and the private clients of Aspen Advisors. As of the date of this Schedule 13D (Amendment No. 9), EnterAspen is the beneficial owner of 8,302,186 shares of the Company's Common Stock, constituting approximately 12.7% of the outstanding shares of Common Stock, based on 65,249,850 shares of Common Stock outstanding as of May 12, 2006, as set forth in the Merger Agreement. EnterAspen has sole 8 CUSIP NO. 31865X106 13D dispositive authority with respect to 7,870,520 shares of Company Common Stock but otherwise shares dispositive authority with respect to the remaining 431,666 shares beneficially owned by it with Aspen Advisors. EnterAspen shares voting authority with respect to the 8,302,186 shares of Company Common Stock beneficially owned by it with Aspen Advisors. Aspen Advisors, as the investment manager for EnterAspen, may be deemed to share beneficial ownership of all such shares. Mr. Hecht is the managing member of Aspen Advisors and Aspen Capital, the general partner of Aspen Partners. Accordingly, Mr. Hecht may be deemed to be the beneficial owner of the Company Common Stock held by EnterAspen. (c) Effective on the date of this Schedule 13D (Amendment No. 9), Aspen Advisors and EnterAspen terminated EnterAspen's interest in an affiliated fund of Aspen Advisors and, in connection therewith, distributed cash and EnterAspen's pro rata share of Company Common Stock to EnterAspen. A total of 2,159,709 shares of Company Common Stock were received by EnterAspen in this distribution and placed in a subaccount of EnterAspen. EnterAspen maintains sole dispositive control over the shares of Company Common Stock in this subaccount. Aspen Advisors continues to share voting authority with respect to such shares with EnterAspen. Except as set forth in Item 5(a) and 5(c), during the 60 days preceding the filing of this Schedule 13D (Amendment No. 9), 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. (d) The various private accounts of which Aspen Advisors serves as investment manager have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, Company Common Stock. Except with respect to EnterAspen, no such interest beneficially owned by any private account relates to more than 5% of Company Common Stock. (e) Not applicable. Item 6. Contracts, Arrangements, Understandings, or Relationships with respect to Securities of the Issuer The information set forth under this item is hereby amended to include, at the end of the last paragraph contained therein, the following: Pursuant to an arrangement involving EnterAspen and Aspen Advisors, EnterAspen, effective on the date of this Schedule 13D (Amendment No. 9), segregated 5,710,811 shares of Company Common Stock into a separate subaccount. As with the Company Common Stock identified in Item 5(c) above, EnterAspen maintains sole dispositive control over the shares of Company Common Stock in this subaccount while Aspen Advisors continues to share voting authority with respect to such shares with EnterAspen. 9 CUSIP NO. 31865X106 13D In connection with the transactions identified in this Item 6 and in Item 5(c) above, EnterAspen and the Company entered into a Lock-Up Agreement pursuant to which EnterAspen agreed to be subject to certain restrictions on its ability to resell its shares of Common Stock of the Company. A copy of this Lock-Up Agreement is filed as Exhibit 7.04 to this Statement and is hereby incorporated by reference to this Item 6. Item 7. Material to be Filed as Exhibits EXHIBIT 7.04 ------------ Lock-Up Agreement dated June 19, 2006 by and among EnterAspen, the Company and FiberTower Corporation. 10 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: June 21, 2006 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 ENTERASPEN LIMITED By: ASPEN ADVISORS LLC Its Attorney-in-Fact By: /s/ NIKOS HECHT ------------------------------------- Name: Nikos Hecht Title: Managing Member 11 EX-7.04 2 ex7_04.txt EXHIBIT 7.04 Exhibit 7.04 LOCK-UP AGREEMENT June 19, 2006 First Avenue Networks, Inc. 7925 Jones Branch Drive, Suite 3300 McLean, Virginia 22102 FiberTower Corporation 185 Berry Street, Suite 4800 San Francisco, CA 94107 Ladies and Gentlemen: Reference is made to that certain Agreement and Plan of Merger, dated as of May 14, 2006 (the "Merger Agreement"), by and among First Avenue Networks, Inc., a Delaware corporation ("First Avenue"), Marlin Acquisition Corporation, a Delaware corporation and a direct and wholly-owned subsidiary of First Avenue ("Merger Sub"), and FiberTower Corporation, a Delaware corporation ("FiberTower"), which provides for, among other things, (i) the merger of Merger Sub with and into FiberTower, with FiberTower continuing as the surviving corporation (the "Merger") and (ii) the conversion of all issued and outstanding shares of capital stock of FiberTower into the right to receive shares of common stock, par value $0.001 per share, of First Avenue (the "First Avenue Common Shares") and cash payment in lieu of fractional shares. Terms not otherwise defined herein shall have the respective meanings ascribed to them in the Merger Agreement. The undersigned understands that the execution of this lock-up agreement (this "Lock-Up Agreement") is a condition to the closing of the transactions contemplated by the Merger Agreement (the "Closing"). The undersigned further understands that as a condition to the willingness of First Avenue and FiberTower to enter into the Merger Agreement, First Avenue and FiberTower have requested that the undersigned agree to be bound and the undersigned hereby agrees to be bound, effective as of the Effective Time, by the terms as follows: 1. Without prior written consent and waiver, the undersigned will not, during the period commencing on the date of the Closing (the "Closing Date") and ending on the earlier of (i) the first anniversary of the Closing Date and (ii) the closing of a debt or equity financing with proceeds to First Avenue of at least $100,000,000 and the expiration of the duration of any lock-up requested by the underwriters, placement agents or investors in such financing (the "Lock-Up Period"), for each three month period beginning on the Closing and on each of the three, six and nine month anniversaries of the Closing (each, a "Quarterly Period") (a) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend or otherwise transfer or dispose of, directly or indirectly, an aggregate number of First Avenue Common Shares or any securities convertible into or exercisable or exchangeable for First Avenue Common Shares held by the undersigned as a result of the Merger that exceed [___] times [to be determined based upon the respective fully diluted share holdings in First Avenue as of the Closing Date of the holders listed on Schedule 4.25 of the First Avenue Disclosure Letter dated as of the date of the Merger Agreement, so that each such holder is allocated its pro rata portion of 3 times the average weekly trading volume] the average weekly trading volume of First Avenue Common Shares for the four calendar weeks preceding the commencement of a Quarterly Period (the "Sale Volume Restriction"), or (b) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of First Avenue Common Shares held by the undersigned as a result of the Merger that exceed the Sale Volume Restriction, whether any such transaction described in clause (a) or (b) above is to be settled by delivery of First Avenue Common Shares or such other securities, in cash or otherwise. 2. The undersigned may transfer his/her/its First Avenue Common Shares during the Lock-Up Period (i) as a bona fide gift or gifts, (ii) to an immediate family member of the undersigned or to any trust for the direct or indirect benefit of the undersigned or an immediate family member of the undersigned, or (iii) to an Affiliate of the undersigned; provided, in each case, that any such transferee agrees to be bound in writing by the terms of this Lock-Up Agreement prior to such transfer. For purposes of this Lock-up Agreement, "immediate family" shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. 3. Notwithstanding Paragraphs 1 and 2, without prior written consent and waiver, the undersigned may not transfer any First Avenue Common Shares during the Lock-Up Period on any day when the trading price of First Avenue Common Shares is less than $6.00 per share (as adjusted for any stock split, subdivision, reverse stock split, stock dividend or stock distribution, recapitalization, or reclassification of First Avenue Common Shares). 4. Notwithstanding Paragraphs 1 and 2, the Sale Volume Restriction shall not apply: (i) to private sales of First Avenue Common Shares not effected through The Nasdaq National Market, any stock exchange or other securities market by the undersigned; provided, that, the private purchaser agrees to be bound in writing by the terms of this Lock-Up Agreement prior to such private sale, with such restriction to the volume of sales by such private purchaser being equal to the Sale Volume Restriction multiplied by the percentage of the total First Avenue Common Shares held by the undersigned immediately prior to such sale that are sold by the undersigned to the private purchaser in the private sale, and the restriction to the volume of sales by the undersigned shall be reduced by such amount; (ii) at any time during a trading day when the trading price of the First Avenue Common Shares exceeds $12.00 per share (as adjusted for any stock split, subdivision, reverse stock split, stock dividend or stock distribution, recapitalization, or reclassification of First Avenue Common Shares); provided, however, that in the event the trading price per First Avenue Common Share subsequently decreases below $12.00 (as so adjusted) per share, all shares sold above $12.00 per share (as so adjusted) in that Quarterly Period 2 shall be included in calculating the number of additional First Avenue Common Shares, if any, that may be sold pursuant to Paragraph 1 in such Quarterly Period; and (iii) to 18.5% of the First Avenue Common Shares (calculated pursuant to Section 5 below) held by the undersigned as of the Closing Date sold in transactions made during the last 90 days prior to the first anniversary of the Closing Date. 5. For purposes of this Lock-Up Agreement, First Avenue Common Shares held by the undersigned as a result of the Merger shall consist of (i) all First Avenue Common Shares held by the undersigned and (ii) all shares of First Avenue Common Shares issuable upon conversion, exercise or exchange of any securities convertible into or exercisable or exchangeable for First Avenue Common Shares held by or issued to the undersigned immediately prior to the Effective Time with respect to which the undersigned has dispositive control. 6. The undersigned agrees and consents to the entry of stop-transfer instructions with First Avenue's transfer agent and registrar against the transfer of the undersigned's First Avenue Common Shares except in compliance with the foregoing restrictions. 7. First Avenue and FiberTower hereby agree that no consent or waiver shall be granted with respect to the transfer of any securities that are subject to any lock-up in connection with the Merger unless the undersigned is: (i) provided with reasonable notice of such consent or waiver, and (ii) entitled to transfer a corresponding percentage of First Avenue Common Shares held by the undersigned as a result of the Merger (or any securities issuable upon conversion, exercise or exchange of such securities) granted to the recipient of such waiver or consent. 8. Any notice or other communication required or permitted to be delivered under this Lock-Up Agreement shall be in writing and shall be deemed properly delivered, given and received when delivered (by hand, by registered mail, by courier or express delivery service or by facsimile confirmation) to the address or facsimile number set forth beneath the name of such party below (or to such other address or facsimile number as such party shall have specified in a written notice given to the other party): If to First Avenue: First Avenue Networks, Inc. 7925 Jones Branch Drive, Suite 3300 McLean, Virginia 22102 Facsimile: (917) 591-4212 Attn: Thomas A. Scott 3 If to FiberTower: FiberTower Corporation 185 Berry Street, Suite 4800 San Francisco, California 94107 Facsimile: (415) 659-0007 Attn: Scott Brady If to the undersigned: At the address or facsimile number set forth below the undersigned's signature on the signature page hereof. 9. The parties hereto acknowledge that First Avenue and FiberTower will be irreparably harmed and that there will be no adequate remedy at law for a violation of any of the covenants or agreements of the undersigned set forth herein. Therefore, it is agreed that, in addition to any other remedies that may be available to First Avenue or FiberTower upon any such violation of this Lock-Up Agreement, First Avenue and FiberTower shall have the right to enforce such covenants and agreements by specific performance, injunctive relief or by any other means available to First Avenue and FiberTower at law or in equity, and the undersigned hereby waives any and all defenses that could exist in his/her/its favor in connection with such enforcement and waives any requirement for the security or posting of any bond in connection with such enforcement. 10. In the event that any action, suit or other proceeding is instituted concerning or arising out of this Lock-Up Agreement or any transaction contemplated hereunder for a violation of this Lock-Up Agreement, the prevailing party shall recover all of such party's costs and attorneys' fees incurred in each such action, suit or other proceeding, including any and all appeals or petitions therefrom. 11. This Lock-Up Agreement constitutes and contains the entire agreement and understanding of the parties with respect to the subject matter hereof and supersedes any and all prior negotiations, correspondence, agreements, understandings, duties or obligations between the parties respecting the subject matter hereof. In the event of any conflict between this Lock-Up Agreement and the Merger Agreement, the terms of this Lock-Up Agreement shall control. 12. This Lock-Up Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware without regard to conflicts of law principles. 13. The provisions of this Lock-Up Agreement shall inure to the benefit of, and shall be binding upon, the successors and permitted assigns of the parties hereto. 14. This Lock-Up Agreement shall not be modified or amended, or any right waived or any obligations excused except by a written agreement signed by all parties. 15. If one or more provisions of this Lock-Up Agreement are held to be unenforceable under applicable law, then such provision(s) shall be excluded from this Lock-Up Agreement and the remainder of this Lock-Up Agreement shall be interpreted as if such provision(s) were so excluded and shall be enforceable in accordance with its terms. 4 16. This Lock-Up Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one instrument. Delivery of an executed counterpart of this Lock-Up Agreement by facsimile shall be effective to the fullest extent permitted by applicable law. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 5 IN WITNESS WHEREOF, the undersigned executes this Lock-Up Agreement as of the date first above written. Very truly yours, ENTERASPEN LIMITED By: Aspen Advisors LLC, its attorney-in-fact By: /s/ NIKOS HECHT ------------------------------------- Name: Nikos Hecht Title: Managing Member Address: 152 West 57th Street, 46th floor New York, NY 10019 Facsimile: 212-698-8040 ACKNOWLEDGED AND AGREED TO BY: - ----------------------------- FIRST AVENUE NETWORKS, INC. By: /s/ THOMAS A. SCOTT ---------------------------------- Name: Thomas A. Scott Title: Chief Financial Officer FIBERTOWER CORPORATION By: /s/ SCOTT BRADY ---------------------------------- Name: Scott Brady Title: Chief Executive Officer [SIGNATURE PAGE TO LOCK-UP AGREEMENT] 6 -----END PRIVACY-ENHANCED MESSAGE-----