Exhibit V
Right of First Offer Agreement
This Right of First Offer Agreement (the "Agreement"), dated as
of February 4, 2000, is by and among Spectrum Equity ▇▇▇▇▇▇▇▇▇
▇▇, ▇.▇., ▇▇▇ ▇▇▇▇ ▇▇, ▇.▇. (each of such entities is referred to
as "Spectrum"), 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 Spectrum, and
Spectrum wishes to grant to SBC and Telmex, a right of first
offer to acquire shares of capital stock of NAS held by Spectrum;
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, Spectrum 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
Telmex 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 Spectrum of
any shares of Common Stock or other securities of NAS (the
"TRANSFER SHARES") owned of record or beneficially by Spectrum on
or after the date hereof.
(a) In the event Spectrum proposes to sell any TRANSFER
SHARES, it shall give SBC, Telmex and any Transferees (as defined
in Section 3.5) written notice (the "Notice") of its intention
stating: (i) a description of the TRANSFER SHARES it proposes to
sell, (ii) the number of TRANSFER SHARES it proposes to sell, and
(iii) the price per share at which, and other terms on which, it
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
Spectrum 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 Spectrum to SBC and/or
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) Spectrum 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 Spectrum 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),
Spectrum 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, Spectrum
shall have the right to sell or otherwise transfer any TRANSFER
SHARES without compliance with any other provisions of this
Section 1 to any person or entity who is a general partner or
limited partner of Spectrum as of the date hereof (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
Spectrum represents and warranties to SBC and Telmex as
follows:
(a) Spectrum has all requisite power and authority to
execute, deliver and perform its obligations under this
Agreement. This Agreement has been duly executed and delivered
by Spectrum and is a legal, valid and binding obligation of
Spectrum enforceable in accordance with its terms, and does not
require the consent or approval of any third party
(b) 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 Spectrum 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
Col ▇▇▇▇▇▇▇▇▇▇
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If to Spectrum: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Managing General Partner
Spectrum Equity Investors
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With a copy (which shall
not constitute notice)
to:
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 Spectrum 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 Spectrum (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.
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.
SPECTRUM EQUITY INVESTORS II, L.P.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Managing General Partner
SBC COMMUNICATIONS INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name:__________________________
Title:_________________________
TELEFONOS DE MEXICO, S.A. DE C.V.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: CFO
NETWORK ACCESS SOLUTIONS CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇ ▇▇▇▇
Title: CEO
SEA 1998 II, L.P.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Managing General Partner