Exhibit IV
Right of First Offer Agreement
This Right of First Offer Agreement (the "Agreement"), dated as
of February 4, 2000, is by and among ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ("Aust"),
SBC Communications Inc., a Delaware corporation ("SBC"),
Telefonos de Mexico, S.A. de C.V. ("Telmex") and Network Access
Solutions Corporation, a Delaware corporation ("NAS").
WHEREAS, SBC and Telmex wish to acquire from Aust, and Aust
wishes to grant to SBC and Telmex, a right of first offer to
acquire shares of capital stock of NAS held by Aust;
NOW THEREFORE, in consideration of the mutual covenants
contained herein, the parties agree as follows:
Section 1. RIGHT OF FIRST OFFER
1.1 Right of First Offer
Subject to the terms and conditions specified in this
Agreement, Aust hereby grants to SBC and Telmex, as long as SBC
and Telmex own all of the shares of Series B Preferred Stock
issued to them upon the closing under the Stock Purchase
Agreements of even date herewith between SBC and NAS and between
Telemex and NAS (the "Preferred Shares") or all of the shares of
Common Stock issued upon conversion of such Preferred Shares (or
a greater number of shares of Preferred Stock or shares of Common
Stock than originally issued upon such closing or conversion), a
right of first offer with respect to future sales by Aust of any
shares of Common Stock or other securities of NAS (the "TRANSFER
SHARES") owned of record or beneficially by Aust on or after the
date hereof.
(a) In the event Aust proposes to sell any TRANSFER SHARES,
he shall give SBC, Telmex and any Transferees (as defined in
Section 3.5) written notice (the "Notice") of his intention
stating: (i) a description of the TRANSFER SHARES he proposes to
sell, (ii) the number of TRANSFER SHARES he proposes to sell, and
(iii) the price per share at which, and other terms on which, he
proposes to sell such TRANSFER SHARES.
(b) Within 10 Business Days after the Notice is given, SBC,
Telmex and the Transferees may elect to purchase, at the price
specified in the Notice, up to the number of shares of the
TRANSFER SHARES proposed to be sold. An election to purchase
(the "Election") shall be made in writing and must be given to
Aust within such 10 Business Day period. Unless otherwise agreed
by SBC, Telmex and the Transferees, if more than one of SBC,
Telmex and any Transferee desires to purchase TRANSFER SHARES and
there are insufficient TRANSFER SHARES to accommodate all
proposed purchases, the SBC, Telmex and Transferee purchases
shall be on a pro rata basis based on the number of shares of NAS
Preferred Stock and NAS Common Stock they own at such time. The
closing of the sale of TRANSFER SHARES by Aust to SBC, Telmex
and/or any Transferee shall take place within 30 days after the
Election is made, provided that the 30 day period shall be
extended to the extent necessary to accommodate the receipt of
any necessary regulatory approvals for the sale.
(c) Aust shall have 90 days after the last date on which
SBC's and Telmex's right of first offer lapsed to enter into an
agreement (pursuant to which the sale of TRANSFER SHARES covered
thereby shall be closed, if at all, within 45 days from the
execution thereof) to sell the TRANSFER SHARES which SBC, Telmex
and the Transferees did not elect to purchase under this
Agreement, at or above the price and upon terms not materially
more favorable to the purchasers of such securities than the
terms specified in the initial Notice given in connection with
such sale. In the event Aust has not entered into an agreement
to sell the TRANSFER SHARES within such 90 day period (or sold
and issued the TRANSFER SHARES in accordance with the foregoing
within 45 days from the date of such agreement), Aust shall not
thereafter issue or sell any TRANSFER SHARES without first
offering such TRANSFER SHARES to SBC, Telmex and the Transferees
in the manner provided in this Agreement.
(d) Notwithstanding any other provision hereof, Aust shall
have the right to sell or otherwise transfer any TRANSFER SHARES
without compliance with any other provisions of this Section 1 to
(i) Aust's spouse, children, grandchildren, siblings, aunts,
uncles, cousins, nieces, nephews, parents and/or grandparents, or
(ii) to a trust for the benefit of Aust or any one or more of the
foregoing (each of such persons or entities, a "Permitted
Transferee") who or which agrees to be bound by the provisions
hereof.
Section 2. REPRESENTATIONS, WARRANTIES AND COVENANTS
▇▇. ▇▇▇▇ represents and warranties to SBC and Telmex as
follows:
Aust has all requisite power and authority to execute,
deliver and perform his obligations under this Agreement. This
Agreement has been duly executed and delivered by Aust and is a
legal, valid and binding obligation of Aust enforceable in
accordance with its terms, and does not require the consent or
approval of any third party
The TRANSFER SHARES are not subject to any contractual right
of first refusal or other right in favor of any person or entity
or any encumbrance, and Aust covenants not to enter into any
agreement that would make the TRANSFER SHARES subject to any such
right or encumbrance or which would be inconsistent with this
Agreement.
Section 3. MISCELLANEOUS
3.1 Rights and Remedies
Unless otherwise provided herein, the rights and remedies of
the parties hereunder shall not be mutually exclusive, and the
exercise of one or more provisions of this Agreement shall not
preclude the exercise of any other provisions. Each of the
parties confirms that damages at law may be an inadequate remedy
for a breach or threatened breach of any provision hereof. The
respective rights and obligations hereunder shall be enforceable
by specific performance, injunction or other suitable remedy, it
being the intention of this Section to make clear the agreement
of the parties that the respective rights and obligations of the
parties hereunder shall be enforceable in equity as well as at
law or otherwise.
3.2 Counterparts
This Agreement may be executed in one or more counterparts,
each of which shall for all purposes be deemed to be an original
and all of which shall constitute the same instrument.
3.3 Notices
Any notice, request, instruction or other document to be
given hereunder by any party hereto to any other party shall be
in writing (and, in addition to such writing, the text of any
such notice, request, instruction or other document also shall be
sent by electronic mail to the e-mail addresses specified below)
and shall be deemed received (i) upon receipt if delivered either
personally or by telex or facsimile (provided that such telex or
facsimile is confirmed in writing by express mail), (ii) on the
next day if by express mail or (iii) on the date that is three
days after being sent by registered or certified mail, return
receipt requested, postage prepaid to the following addresses (or
at such other address for a party as shall be specified by like
notice provided that such notice shall be effective only after
receipt thereof):
If to SBC: ▇▇▇▇▇ ▇▇▇▇▇
Senior Vice President -
Corporate Development
SBC Communications Inc.
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Fax: ▇▇▇-▇▇▇-▇▇▇▇
Voice: ▇▇▇-▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇@▇▇▇▇.▇▇▇.▇▇▇
With a copy (which shall ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
not constitute notice) General Attorney
to: SBC Communications Inc.
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Fax: ▇▇▇-▇▇▇-▇▇▇▇
Voice: ▇▇▇-▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇@▇▇▇▇.▇▇▇.▇▇▇
If to Telmex: Parque Via 198, Oficina 701
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If to Aust: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
President and Chief Executive
Officer
Network Access Solutions
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Fax: ▇▇▇-▇▇▇-▇▇▇▇
Voice: ▇▇▇-▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇@▇▇▇-▇▇▇▇.▇▇▇
With a copy (which shall Worth ▇. ▇▇▇▇▇▇▇▇▇
not constitute notice) Vice President, Legal and Strategic
to: Planning
Network Access Solutions
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Fax: ▇▇▇-▇▇▇-▇▇▇▇
Voice: ▇▇▇-▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇▇▇▇▇@▇▇▇-▇▇▇▇.▇▇▇
3.4 Governing Law
This Agreement shall be construed in accordance with and
governed by the laws of the State of Delaware applicable to
agreements made and to be performed wholly within such
jurisdiction.
3.5 Assignment
This Agreement (i) may not be assigned by Aust without SBC's
and Telmex's consent (which consent shall not be unreasonably
withheld) except to a Permitted Transferee, that agrees to be
bound by all of the terms hereof and (ii) may not be assigned by
SBC or Telmex without the consent of Aust (which consent shall
not be unreasonably withheld) except to any Wholly-Owned
Subsidiary of SBC or Telmex (as hereafter defined) that agrees to
be bound by all of the terms hereof (any permitted assignee
described in this clause (ii), a "Transferee"), and provided that
no such permitted assignment shall relieve the assigning party of
any liability for a breach of this Agreement by such party or its
assignee. In the event that SBC or Telmex shall assign its right
of first offer pursuant to this Agreement with respect to less
than all of the TRANSFER SHARES, SBC or Telmex shall retain its
right of first offer to the extent not assigned. For purposes
hereof, "Wholly-Owned Subsidiary of SBC or Telmex" means any
corporation, limited liability company, general or limited
partnership, limited liability partnership, joint venture, trust
or other entity of which the outstanding capital stock is wholly
owned directly or indirectly by SBC or Telmex and which is formed
for business purposes that are unrelated to the ability of such
entity to receive any rights or interests hereunder or associated
herewith. This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective heirs
or successors in interest.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have signed this
Agreement, or have caused this Agreement to be signed in their
respective names by an officer, hereunto duly authorized, on the
date first above written.
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
SBC COMMUNICATIONS INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name:_________________________
Title:________________________
TELEFONOS DE MEXICO, S.A. DE C.V.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: C.F.O.
NETWORK ACCESS SOLUTIONS
CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇ ▇▇▇▇
Title: CEO