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EXHIBIT 10.1
Amendment No.2
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to the
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Rights Agreement of
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Advanced Radio Telecom Corp.
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This Amendment No. 2, dated as of August 23, 2000, between Advanced Radio
Telecom Corp., a Delaware corporation (the "Company") and BankBoston, N.A., a
national banking association, as successor rights agent (the "Rights Agent"),
amends the Rights Agreement dated as of June 20, 1997 between the Company and
the Rights Agent, as amended to date (the "Rights Agreement"). Terms defined in
the Rights Agreement and not otherwise defined herein are used herein as so
defined.
WITNESSETH:
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WHEREAS, on June 20, 1997, the Board of Directors of the Company authorized
the issuance of Rights to purchase, on the terms and subject to the provisions
of the Rights Agreement, shares of the Company's Junior Preferred Stock or, in
certain circumstances, the Company's Common Stock;
WHEREAS, on June 20, 1997, the Board of Directors of the Company authorized
and declared a dividend distribution of one Right for every share of Common
Stock of the Company outstanding on the Dividend Record Date and authorized the
issuance of one Right (subject to certain adjustments) for each share of the
Common Stock of the Company issued between the Dividend Record Date and the
Distribution Date;
WHEREAS, the Distribution Date has not occurred; and
WHEREAS, pursuant to Section 27 of the Rights Agreement, the Board of
Directors has approved an amendment of certain provisions of the Rights
Agreement as set forth below;
NOW, THEREFORE, the Rights Agreement is hereby amended as follows:
1. Section 1(w-2) shall be amended to read in its entirety as follows:
"(w-2) "Exempt Person" shall mean (i) each of Oak Investment Partners VIII,
L.P., Oak VIII Affiliates Fund, L.P. or U.S. Telesource, Inc. (each, a "Large
Holder") and its respective Affiliates so long as such Large Holder, together
with its Affiliates, is not the Beneficial Owner of any Common Stock, other than
as a result of the ownership of equity securities of the Company either (1)
acquired by any Purchaser (as defined in the Stock Purchase Agreement), or an
Affiliate of any Purchaser, directly from the Company (x) pursuant to the Stock
Purchase Agreement (including pursuant to the exercise of such Person's rights
under Section 4.16 of the Stock Purchase Agreement) or (y) on the conversion of
convertible securities acquired by such Person directly from the Company
pursuant to the Stock Purchase Agreement and, in each case, Beneficially Owned
by such Large Holder solely as a result of the Stockholders Agreement (as
defined in the
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Standstill Agreement (as defined in the Stock Purchase Agreement)), (2) acquired
by such Large Holder, or an Affiliate of such Large Holder as a result of an
assignment to such Affiliate of rights of such Large Holder to acquire, directly
from the Company pursuant to the Stock Purchase Agreement (including pursuant to
the exercise of rights under Section 4.16 of the Stock Purchase Agreement) or
acquired by such Large Holder or an Affiliate of such Large Holder on the
conversion of convertible securities so acquired directly from the Company
pursuant to the Stock Purchase Agreement, (3) that are (x) Beneficially Owned by
any Purchaser, other than a Large Holder, that is a party to the Stockholders
Agreement, (y) not subject to the provisions of the Stockholders Agreement, and
(z) Beneficially Owned by such Large Holder solely as a result of the
Stockholders Agreement or (4) that are Beneficially Owned by U.S. Telesource,
Inc. or its Affiliates after the termination of the Standstill Agreement
pursuant to its terms so long as U.S. Telesource, Inc. and its Affiliates do not
Beneficially Own in the aggregate more than 19.9% of the Common Stock then
outstanding other than the Common Stock Beneficially Owned by U.S. Telesource,
Inc. or its Affiliates solely as a result of the Stockholders Agreement; (ii)
each Purchaser, other than a Large Holder, that is a party to the Stockholders
Agreement that would not be an Acquiring Person if such Purchaser were not a
party to the Stockholders Agreement. Notwithstanding anything to the contrary
contained herein, for purposes of this definition of "Exempt Person," any
amendment to the Stockholders Agreement that (x) modifies the rights of, or
procedures to be followed by, the Large Holders (as such rights or procedures
are provided in the Stockholders Agreement) without (y) increasing, or extending
the time period of, the control of either Large Holder (or any other Purchaser
or party thereto) over the acquisition, holding, voting or disposition of any
equity securities of the Company Beneficially Owned by another Purchaser or any
other holder of equity securities of the Company, will not constitute a new
agreement, arrangement or understanding (whether or not in writing) for the
purpose of acquiring, holding, voting or disposing of any equity securities of
the Company; and (iii) each BroadStream Entity so long as the BroadStream
Entities do not collectively Beneficially Own any Common Stock other than (a)
Common Stock issued pursuant to the BroadStream Agreement (including, without
limitation, Common Stock issued pursuant to Sections 1.3, 1.4 and 1.5 thereof)
or (b) warrants to purchase Common Stock, and Common Stock issued on exercise
thereof, held by a BroadStream Entity on the date of the BroadStream Agreement
2. Two new definitions are added after Section 1 (e) and before Section 1(f) as
follows:
"(e-2) "BroadStream Agreement" shall mean the Asset Purchase Agreement made as
of April 14, 2000 among the Company and certain of the BroadStream Entities
named therein.
(e-3) "BroadStream Entity" shall mean each of (i) BroadStream Corporation, a
Delaware corporation; (ii) BroadStream Communications Corporation, a Delaware
corporation; (iii) Commco, LLC, a Delaware limited liability company; (iv)
Commco Technology, L.L.C., a Delaware limited liability company; and (v) any
other Person that as of April 14, 2000 would have Beneficially Owned shares of
Common Stock issued to any of the Persons listed in the preceding clauses (i)
through (iv)."
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 2 to
the Rights Agreement to be duly executed as of the day and year first above
written.
ADVANCED RADIO TELECOM CORP.
By:_____________________________
Title:
Attest:
By: ______________________
Secretary
BANKBOSTON, N.A.
By::_____________________________
Title:
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