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EXHIBIT 4.1
AMENDMENT ("Amendment") dated as of August
11, 2000 between FIBERNET TELECOM GROUP, INC.
("Company"), SIGNAL EQUITY PARTNERS, L.P.
(formerly known as Signal Capital Partners, L.P.),
as the Majority in Interest of the Purchasers
("Signal"), and NORTEL NETWORKS INC. ("Nortel")
(each term as defined herein), to the Stockholders
Agreement dated as of May 7, 1999 (as amended by
the Amendment dated as of June 30, 2000, and as
further amended by the Amendment dated as of July
28, 2000, the "Stockholders Agreement") by and
among the Company and the Stockholders (as defined
in the Stockholders Agreement) listed therein
("Stockholders").
WHEREAS, pursuant to Section 17 of the Stockholders Agreement, the
Company, Nortel and Signal, as the Majority in Interest, have the right to
modify the Stockholders Agreement; and
WHEREAS, the Company, Nortel and Signal, as the Majority in
Interest, wish to amend the Stockholders Agreement.
NOW, THEREFORE, the parties agree as follows:
Section 1. Definitions. Capitalized terms used and not otherwise defined
herein shall have the meanings ascribed to such terms in the Stockholders
Agreement.
Section 2. Agreement to Amend. Pursuant to Section 17 of the Stockholders
Agreement, the Company, Nortel and Signal hereby agree to amend the Stockholders
Agreement as provided herein.
Section 3. Amendments.
(a) Section 1 (Definitions) of the Stockholders Agreement shall be
amended as follows:
(i) The definition of the term "Stock" shall be amended and
restated in its entirety as follows:
"Stock" shall mean (i) the presently issued and outstanding
shares of Common Stock, Series C Preferred Stock, Series D
Preferred Stock, Series E Preferred Stock, Series F Preferred
Stock, Series H Preferred Stock and Series I Preferred Stock, and
any options, warrants or other instruments exercisable therefor
(which options, warrants or other
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instruments shall be deemed to be that number of outstanding
shares of Stock for which they are exercisable), (ii) any
additional shares of capital stock of the Company hereafter
issued and outstanding and (iii) any shares of capital stock of
the Company into which such shares may be converted or for which
they may be exchanged or exercised.
(ii) The following definition shall be added:
"Series I Preferred Stock" shall mean the Series I
Convertible Preferred Stock, par value $.001, of the Company.
(b) New subsection (f)(viii) shall be added to Section 7
(Pre-emptive Rights) of the Stockholders Agreement as follows:
"(viii) 62,500 shares of Series I Preferred Stock issued or to
be issued to Nortel Networks Inc. (and shares of Common Stock to be
issued upon conversion thereof)."
Section 4. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York (without regard
to principles of conflicts of laws).
Section 5. Successors and Assigns. This Amendment shall bind and inure to
the benefit of the parties and their respective successors and assigns,
transferees, legal representatives and heirs.
Section 6. Headings. The headings of this Amendment have been inserted
for convenience of reference only and shall not be deemed to be a part of this
Amendment.
Section 7. Entire Agreement. This Amendment, the Stockholders Agreement
and the other writings referred to herein or delivered pursuant hereto contain
the entire agreement among the parties hereto with respect to the subject matter
hereof and supersede all prior and contemporaneous agreements and understandings
with respect thereto.
Section 8. Counterparts. This Amendment may be executed in any number of
counterparts, and each such counterpart shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
* * * * *
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
first written above.
FIBERNET TELECOM GROUP, INC.
By: /s/ Michael S. Liss
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Name: Michael S. Liss
Title: President and Chief Executive Officer
SIGNAL EQUITY PARTNERS, L.P.
By: Signal Equity Advisors, L.P.
Its: General Partner
By: Signal Equity Advisors, Inc.
Its: General Partner
By: /s/ Timothy P. Bradley
---------------------------------
Name: Timothy P. Bradley
Title: Managing Partner
NORTEL NETWORKS INC.
By: /s/ Robert D. Beiter
---------------------------------
Name: Robert D. Beiter
Title: Director, Customer Finance
