<PAGE>
As filed with the Securities and Exchange Commission on January 18, 2001
Registration No. 333-43788
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
AMENDMENT NO.4
To
FORM S-1
On
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
FiberNet Telecom Group, Inc.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Delaware 4813 52-2255974
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
570 Lexington Avenue
New York, New York 10022
(212) 405-6200
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
Michael S. Liss
President and Chief Executive Officer
FiberNet Telecom Group, Inc.
570 Lexington Avenue
New York, New York 10022
(212) 405-6200
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copy To:
Gordon Caplan, Esq.
Mintz, Levin, Cohn, Ferris,
Glovsky and Popeo, P.C.
Chrysler Center
666 Third Avenue
New York, New York 10022
(212) 935-3000
Approximate date of commencement of proposed sale to public: From time
to time after the date on which this registration statement becomes effective.
If any of the securities being registered on this Form are being
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act, check the following box. [x]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
(continued on following page)
<PAGE>
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier registration statement for the
same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule
462(d) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier registration statement for the
same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [_]
The Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933, as amended, or until the Registration Statement
shall become effective on such date as the Securities and Exchange Commission,
acting pursuant to Section 8(a), may determine.
2
<PAGE>
EXPLANATORY NOTE
----------------
The purpose of this Amendment No. 4 to the Registration Statement is
solely to file certain exhibits to the Registration Statement, as set forth
below in Item 16 of Part II.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth an itemization of all estimated expenses,
all of which we will pay, in connection with the issuance and distribution of
the securities being registered:
SEC Registration Fee....................................... $ 39,563
Nasdaq National Market Additional Listing Fee.............. 25,000*
Printing and Engraving Fees................................ 150,000*
Legal Fees and Expenses.................................... 500,000*
Accounting Fees and Expenses............................... 250,000*
Blue Sky Fees and Expenses................................. 10,000*
Transfer Agent and Registrar Fees.......................... 10,000*
Miscellaneous.............................................. 115,437*
----------
1,100,000
Total...................................................... ==========
* Estimated
Item 15. Indemnification of Directors and Officers.
Our certificate of incorporation provides that we shall indemnify to the
fullest extent authorized by the Delaware General Corporation Law, each person
who is involved in any litigation or other proceeding because such person is or
was one of our directors or officers or is or was serving as an officer or
director of another entity at our request, against all expense, loss or
liability reasonably incurred or suffered in connection therewith.
Section 145 of the Delaware General Corporation Law permits a corporation
to indemnify any director or officer of the corporation against expenses,
including attorney's fees, judgments, fines and amounts paid in settlement
actually and reasonably incurred in connection with any action, suit or
proceeding brought by reason of the fact that such person is or was a director
or officer of the corporation, if such person acted in good faith and in a
manner that he reasonably believed to be in, or not opposed to, the best
interests of the corporation, and, with respect to any criminal action or
proceeding, if he or she had no reason to believe his or her conduct was
unlawful. In a derivative action, that is one brought by or on behalf of the
corporation, indemnification may be provided only for expenses actually and
reasonably incurred by any director or officer in connection with the defense or
settlement of such an action or suit if such person acted in good faith and in a
manner that he or she reasonably believed to be in, or not opposed to, the best
interests of the corporation, except that no indemnification shall be provided
if such person shall have been adjudged to be liable to the corporation, unless
and only to the extent that the court in which the action or suit was brought
shall determine that the defendant is fairly and reasonably entitled to
indemnity for such expenses despite such adjudication of liability.
Pursuant to Section 102(b)(7) of the Delaware General Corporation Law,
Article VII of our certificate of incorporation eliminates the liability of a
director to us or our stockholders for monetary damages for such a breach of
fiduciary duty as a director, except for liabilities arising:
. from any breach of the director's duty of loyalty to us or our
stockholders;
. from acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law;
. under Section 174 of the Delaware General Corporation Law; and
. from any transaction from which the director derived an improper
personal benefit.
58
<PAGE>
Our bylaws provide that we must indemnify our directors, officers, and
employees to the fullest extent permitted by law. We believe that
indemnification under our bylaws covers at least negligence and gross negligence
on the part of indemnified parties. Our bylaws also permit us to secure
insurance on behalf of any officer, director, employee or other agent for any
liability arising out of his or her actions in this capacity, regardless of
whether the bylaws would permit indemnification. We have purchased directors and
officers liability insurance, which provides coverage against specified
liabilities.
Item 16. Exhibits.
The following exhibits are filed with this registration statement:
Exhibit
-------
Number Description of Exhibit
-------- ----------------------------------------------------
2.1 Agreement and Plan of Reorganization, dated as of June 2, 2000, by
and among us, FiberNet Holdco, Inc., FiberNet Merger Sub, Inc.,
Devnet Merger Sub, LLC, Devnet L.L.C. and FP Enterprises L.L.C.
(excluding the annexes, schedules and exhibits thereto)
(incorporated by reference to Exhibit 2.1 to our Form 8-K filed on
June 8, 2000).
*4.1 Form of certificate for our Common Stock.
*4.2 Form of Warrant to purchase our Common Stock at a purchase price of
$0.67 per share, issued in connection with a private placement on
May 7, 1999.
*4.3 Form of Warrant to purchase our Common Stock at a purchase price of
$1.50 per share, issued in connection with a private placement on
May 7, 1999.
4.4 Stockholders Agreement, dated as of May 7, 1999 by and among us and
the stockholders listed therein (incorporated by reference to
Exhibit H of Schedule 13D, filed on May 17, 1999 with respect to
our Common Stock).
4.5 Registration Rights Agreement, dated as of May 7, 1999 by and among
us and the stockholders listed therein (incorporated by reference
to Exhibit I of Schedule 13D filed on May 17, 1999 with respect to
our Common Stock).
*4.6 Amendment, dated as of June 30, 1999, between FiberNet Telecom
Group, Inc. and Signal Capital Partners, L.P. (currently known as
Signal Equity Partners, L.P.), as the Majority in Interest of the
Purchasers, to the Stockholders Agreement dated as of May 7, 1999
by and among FiberNet Telecom Group, Inc. and the Stockholders
listed therein.
4.7 Second Amendment, dated as of June 30, 2000, between FiberNet
Telecom Group, Inc., Signal Equity Partners, L.P. (formerly known
as Signal Capital Partners, L.P.), as the Majority in Interest of
the Purchasers, and Nortel Networks Inc., to the Stockholders
Agreement dated as of May 7, 1999 by and among FiberNet Telecom
Group, Inc. and the Stockholders listed therein (incorporated by
reference to Exhibit 4.2 to our Form 8-K filed on July 11, 2000).
59
<PAGE>
Exhibit
-------
Number Description of Exhibit
-------- ----------------------------------------------------
4.8 Third Amendment, dated as of July 28, 2000, between FiberNet
Telecom Group, Inc., Signal Equity Partners, L.P. (formerly known
as Signal Capital Partners, L.P.), as the Majority in Interest of
the Purchasers, and Nortel Networks Inc., to the Stockholders
Agreement dated as of May 7, 1999 by and among FiberNet Telecom
Group, Inc. and the Stockholders listed therein (incorporated by
reference to Exhibit 4.1 to our Form 8-K filed on August 4, 2000).
4.9 Fourth Amendment, dated as of August 11, 2000, between FiberNet
Telecom Group, Inc., Signal Equity Partners, L.P. (formerly known
as Signal Capital Partners, L.P.), as the Majority in Interest of
the Purchasers, and Nortel Networks Inc., to the Stockholders
Agreement dated as of May 7, 1999 by and among FiberNet Telecom
Group, Inc. and the Stockholders listed therein. (incorporated by
reference to Exhibit 4.1 to our Form 8-K filed on August 15, 2000).
*4.10 Fifth Amendment, dated as of August 28, 2000, between FiberNet
Telecom Group, Inc., Signal Equity Partners, L.P. (formerly known
as Signal Capital Partners, L.P.), as the Majority of Interest of
the Purchasers, and Nortel Networks Inc., to the Stockholders
Agreement dated as of May 7, 1999 by and among FiberNet Telecom
Group, Inc. and the Stockholders listed therein.
4.11 Warrant Agreement, dated as of April 11, 2000 by and among us,
Deutsche Bank Securities Inc. and Toronto Dominion (Texas), Inc.
(incorporated by reference to Exhibit 4.2 of our Form 10-QSB filed
on May 15, 2000).
*4.12 Warrant Agreement, dated as of July 31, 2000 by and among us and
First Union National Bank.
4.13 Warrant Escrow Agreement, dated as of April 11, 2000 by and among
us, Deutsche Bank Securities Inc., Toronto Dominion (Texas), Inc.
and Bankers Trust Company (incorporated by reference to Exhibit 4.3
of our Form 10-QSB filed on May 15, 2000).
4.14 Registration Rights Agreement, dated as of June 30, 2000, between
FiberNet Telecom Group and Nortel Networks Inc. (incorporated by
reference to Exhibit 4.1 to our Form 8-K filed on July 11, 2000).
*4.15 Form of Senior Indenture
*4.16 Form of Subordinated Indenture
+4.17 Form of Warrant.
+4.18 Form of Certificate of Designation of Preferred Stock.
**5.1 Opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. with
respect to the legality of Securities being registered.
60
<PAGE>
Exhibit
-------
Number Description of Exhibit
------- --------------------------------------------------------------
*10.1 Master Purchase Agreement dated as of December 31, 1999, between us
and Nortel Networks Inc.
*10.2 Employment Agreement, dated as of January 18, 2000 between us and
Lance L. Mickel.
*10.3 Note in favor of First Union National Bank dated as of July 31, 2000.
*10.4 Employment Agreement dated as of May 23, 2000 between us and Allan
Zendle.
*10.5 Employment Agreement dated as of June 17, 2000 between us and Warren
Miller.
*10.6 First Amendment and Consent to the Credit Agreement, dated as of July
14, 2000 by and among us, FiberNet Operations, the institutions party
thereto from time to time as lenders, Deutsche Bank AG New York
Branch, Deutsche Bank Securities Inc. and Toronto Dominion (Texas),
Inc.
*10.7 Second Amendment to the Credit Agreement, dated as of July 28, 2000 by
and among us, FiberNet Operations, the institutions party thereto from
time to time as lenders, Deutsche Bank AG New York Branch, Deutsche
Bank Securities Inc. and Toronto Dominion (Texas), Inc.
*10.8 First Amendment to Borrower Pledge Agreement, dated as of August 7,
2000, between FiberNet Operations, Inc., and Deutsche Bank AG New York
Branch.
*10.9 Subsidiary Security Agreement, dated as of August 7, 2000, by and
between Devnet L.L.C. and Deutsche Bank AG New York Branch.
*10.10 Subsidiary Guaranty Agreement, dated as of August 7, 2000, by and
between Devnet L.L.C. and Deutsche Bank AG New York Branch.
*10.11 Pledge Agreement, dated as of August 7, 2000, by and between us and
Deutsche Bank AG New York Branch.
*10.12 Pledge Agreement, dated as of August 7, 2000, by and between us and
Deutsche Bank AG New York Branch.
*10.13 Guaranty Agreement, dated as of July 14, 2000, by and between us and
Deutsche Bank AG New York Branch.
*10.14 Security Agreement, dated as of July 14, 2000, by and between us and
Deutsche Bank AG New York Branch.
61
<PAGE>
Exhibit
-------
Number Description of Exhibit
------- --------------------------------------------------------------
*10.15 Assignment and Assumption Agreement, dated as of August 11, 2000, by
and between us and FiberNet Operations, Inc.
*10.16 Amendment Number 1 to Master Purchase Agreement, effective as of June
22, 2000, between us and Nortel Networks Inc.
**23.1 Consent of Arthur Andersen LLP.
**23.2 Consent of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
included in Exhibit 5.1.
**23.3 Consent of Mendelsohn Kary Bell & Natoli, P.C., Certified Independent
Auditors.
*24.1 Powers of Attorney.
* Previously filed.
** Filed herewith.
+ To be filed by amendment or subsequently incorporated by reference into this
registration statement.
Item 17. Undertakings
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, repres ent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or any decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Form S-3, Form S-8 or Form F-
3, and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
with or furnished to the Commission by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in the registration statement.
62
<PAGE>
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section 15(d)
of the Securities Exchange Act of 1934 that is incorporated by reference in
the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons
of the Registrant, the Registrant has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is against
public policy as expressed in the Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other
than the payment by the Registrant of expenses incurred or paid by a
director, officer or controlling person of the Registrant in the successful
defense of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the
final adjudication of such issue.
(d) The undersigned registrant hereby undertakes to file an application for
the purpose of determining the eligibility of the trustee to act under
Subsection (a) of Section 310 of the Trust Indenture Act in accordance with
the rules and regulations prescribed by the Commission under Section
305(b)(2) of the Trust Indenture Act.
63
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 4 to
the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in New York, New York on January 18, 2001.
FiberNet Telecom Group, Inc.
/s/ Michael S. Liss
By:
Michael S. Liss
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 4 to the Registration Statement has been signed by the following persons in
the capacities held on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------------------------- ----------------------------- ------------------
<S> <C> <C>
/s/ Michael S. Liss President, Chief Executive January 18, 2001
Officer, and Director
(principal executive officer)
Michael S. Liss
/s/ Jon A. DeLuca Chief Financial Officer January 18, 2001
(principal financial and
accounting officer)
Jon A. DeLuca
/s/ Roy (Trey) D. Farmer III Chief Operating Officer, January 18, 2001
Executive Vice President and
Roy (Trey) D. Farmer III Director
* Director January 18, 2001
Timothy P. Bradley
</TABLE>
64
<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
------------------------------- ------------------------------- --------------------
<S> <C> <C>
* Director January 18, 2001
Steven G. Chrust
* Director January 18, 2001
Philip L. DiGennaro
* Director January 18, 2001
Charles J. Mahoney
* Director January 18, 2001
Richard E. Sayers
* Director January 18, 2001
William Vrattos
</TABLE>
* By executing his name hereto, Michael S. Liss is signing this document on
behalf of the persons indicated above pursuant to the powers of attorney duly
executed by such persons and filed with the Securities and Exchange
Commission.
/s/ Michael S. Liss
By:
Michael S. Liss
Attorney-in-fact
65
<PAGE>
EXHIBIT INDEX
The following exhibits are filed with this registration statement:
Exhibit
-------
Number Description of Exhibit
------- --------------------------------------------------------------
2.1 Agreement and Plan of Reorganization, dated as of June 2, 2000, by
and among us, FiberNet Holdco, Inc., FiberNet Merger Sub, Inc.,
Devnet Merger Sub, LLC, Devnet L.L.C. and FP Enterprises L.L.C.
(excluding the annexes, schedules and exhibits thereto)
(incorporated by reference to Exhibit 2.1 to our Form 8-K filed on
June 8, 2000).
*4.1 Form of certificate for our Common Stock.
*4.2 Form of Warrant to purchase our Common Stock at a purchase price of
$0.67 per share, issued in connection with a private placement on
May 7, 1999.
*4.3 Form of Warrant to purchase our Common Stock at a purchase price of
$1.50 per share, issued in connection with a private placement on
May 7, 1999.
4.4 Stockholders Agreement, dated as of May 7, 1999 by and among us and
the stockholders listed therein (incorporated by reference to
Exhibit H of Schedule 13D, filed on May 17, 1999 with respect to
our Common Stock).
4.5 Registration Rights Agreement, dated as of May 7, 1999 by and among
us and the stockholders listed therein (incorporated by reference
to Exhibit I of Schedule 13D filed on May 17, 1999 with respect to
our Common Stock).
*4.6 Amendment, dated as of June 30, 1999, between FiberNet Telecom
Group, Inc. and Signal Capital Partners, L.P. (currently known as
Signal Equity Partners, L.P.), as the Majority in Interest of the
Purchasers, to the Stockholders Agreement dated as of May 7, 1999
by and among FiberNet Telecom Group, Inc. and the Stockholders
listed therein.
4.7 Second Amendment, dated as of June 30, 2000, between FiberNet
Telecom Group, Inc., Signal Equity Partners, L.P. (formerly known
as Signal Capital Partners, L.P.), as the Majority in Interest of
the Purchasers, and Nortel Networks Inc., to the Stockholders
Agreement dated as of May 7, 1999 by and among FiberNet Telecom
Group, Inc. and the Stockholders listed therein (incorporated by
reference to Exhibit 4.2 to our Form 8-K filed on July 11, 2000).
4.8 Third Amendment, dated as of July 28, 2000, between FiberNet
Telecom Group, Inc., Signal Equity Partners, L.P. (formerly known
as Signal Capital Partners, L.P.), as the Majority in Interest of
the Purchasers, and Nortel Networks Inc., to the Stockholders
Agreement dated as of May 7, 1999 by and among FiberNet Telecom
Group, Inc. and the Stockholders listed therein (incorporated by
reference to Exhibit 4.1 to our Form 8-K filed on August 4, 2000).
66
<PAGE>
Exhibit
-------
Number Description of Exhibit
------- --------------------------------------------------------------
4.9 Fourth Amendment, dated as of August 11, 2000, between FiberNet
Telecom Group, Inc., Signal Equity Partners, L.P. (formerly known
as Signal Capital Partners, L.P.), as the Majority in Interest of
the Purchasers, and Nortel Networks Inc., to the Stockholders
Agreement dated as of May 7, 1999 by and among FiberNet Telecom
Group, Inc. and the Stockholders listed therein. (incorporated by
reference to Exhibit 4.1 to our Form 8-K filed on August 15, 2000).
*4.10 Fifth Amendment, dated as of August 28, 2000, between FiberNet
Telecom Group, Inc., Signal Equity Partners, L.P. (formerly known
as Signal Capital Partners, L.P.), as the Majority of Interest of
the Purchasers, and Nortel Networks Inc., to the Stockholders
Agreement dated as of May 7, 1999 by and among FiberNet Telecom
Group, Inc. and the Stockholders listed therein.
4.11 Warrant Agreement, dated as of April 11, 2000 by and among us,
Deutsche Bank Securities Inc. and Toronto Dominion (Texas), Inc.
(incorporated by reference to Exhibit 4.2 of our Form 10-QSB filed
on May 15, 2000).
*4.12 Warrant Agreement, dated as of July 31, 2000 by and among us and
First Union National Bank.
4.13 Warrant Escrow Agreement, dated as of April 11, 2000 by and among
us, Deutsche Bank Securities Inc., Toronto Dominion (Texas), Inc.
and Bankers Trust Company (incorporated by reference to Exhibit 4.3
of our Form 10-QSB filed on May 15, 2000).
4.14 Registration Rights Agreement, dated as of June 30, 2000, between
FiberNet Telecom Group and Nortel Networks Inc. (incorporated by
reference to Exhibit 4.1 to our Form 8-K filed on July 11, 2000).
*4.15 Form of Senior Indenture
*4.16 Form of Subordinated Indenture
+4.17 Form of Warrant.
+4.18 Form of Certificate of Designation of Preferred Stock.
**5.1 Opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. with
respect to the legality of Securities being registered.
*10.1 Master Purchase Agreement dated as of December 31, 1999, between us
and Nortel Networks Inc.
*10.2 Employment Agreement, dated as of January 18, 2000 between us and
Lance L. Mickel.
*10.3 Note in favor of First Union National Bank dated as of July 31,
2000.
67
<PAGE>
Exhibit
-------
Number Description of Exhibit
------- --------------------------------------------------------------
*10.4 Employment Agreement dated as of May 23, 2000 between us and Allan
Zendle.
*10.5 Employment Agreement dated as of June 17, 2000 between us and Warren
Miller.
*10.6 First Amendment and Consent to the Credit Agreement, dated as of
July 14, 2000 by and among us, FiberNet Operations, the institutions
party thereto from time to time as lenders, Deutsche Bank AG New
York Branch, Deutsche Bank Securities Inc. and Toronto Dominion
(Texas), Inc.
*10.7 Second Amendment to the Credit Agreement, dated as of July 28, 2000
by and among us, FiberNet Operations, the institutions party thereto
from time to time as lenders, Deutsche Bank AG New York Branch,
Deutsche Bank Securities Inc. and Toronto Dominion (Texas), Inc.
*10.8 First Amendment to Borrower Pledge Agreement, dated as of August 7,
2000, between FiberNet Operations, Inc., and Deutsche Bank AG New
York Branch.
*10.9 Subsidiary Security Agreement, dated as of August 7, 2000, by and
between Devnet L.L.C. and Deutsche Bank AG New York Branch.
*10.10 Subsidiary Guaranty Agreement, dated as of August 7, 2000, by and
between Devnet L.L.C. and Deutsche Bank AG New York Branch.
*10.11 Pledge Agreement, dated as of August 7, 2000, by and between us and
Deutsche Bank AG New York Branch.
*10.12 Pledge Agreement, dated as of August 7, 2000, by and between us and
Deutsche Bank AG New York Branch.
*10.13 Guaranty Agreement, dated as of July 14, 2000, by and between us
and Deutsche Bank AG New York Branch.
*10.14 Security Agreement, dated as of July 14, 2000, by and between us
and Deutsche Bank AG New York Branch.
*10.15 Assignment and Assumption Agreement, dated as of August 11, 2000,
by and between us and FiberNet Operations, Inc.
*10.16 Amendment Number 1 to Master Purchase Agreement, effective as of
June 22, 2000, between us and Nortel Networks Inc.
68
<PAGE>
Exhibit
-------
Number Description of Exhibit
------ ------------------------------------------------------------
**23.1 Consent of Arthur Andersen LLP.
**23.2 Consent of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.,
included in Exhibit 5.1.
**23.3 Consent of Mendelsohn Kary Bell & Natoli, P.C., Certified
Independent Auditors.
*24.1 Powers of Attorney.
* Previously filed.
** Filed herewith.
+ To be filed by amendment or subsequently incorporated by reference into this
registration statement.
69
