Waiver of IPO Purchase Rights Agreement between Advanced Switching Communications, Inc. and Investors (August 30, 2000)

Summary

Advanced Switching Communications, Inc. and several investment funds have agreed that the investors will temporarily waive their rights to purchase up to 5% of shares in the company's initial public offering (IPO), as previously granted under an earlier agreement. This waiver is valid only if the IPO is completed by November 30, 2000; if not, the investors' purchase rights are reinstated. The agreement is governed by Delaware law and is intended to help facilitate the company's IPO process.

EX-10.9A 2 w37770a3ex10-9a.txt WAIVER OF IPO PURCHASE RIGHTS, AUGUST 30, 2000 1 EXHIBIT 10.9A [ASC LETTERHEAD] August 30, 2000 New Enterprise Associates VIII, Limited Partnership NEA Presidents' Fund, L.P. NEA Ventures 1999, L.P. TCV III (GP) TCV III, L.P. TCV III (Q), L.P. TCV III Strategic Partners, L.P. Morgan Stanley Venture Partners III, L.P. Morgan Stanley Venture Investors III, L.P. The Morgan Stanley Venture Partners Entrepreneur Fund, L.P. Baker Communications Fund, L.P. Mostafa Venture Fund, LLC MCI Worldcom Venture Fund, Inc. RE: IPO Purchase Rights Reference is made to the Securities Purchase and Stockholder Agreement, dated as of September 10, 1999, as amended (the "Agreement"), among Advanced Switching Communications, Inc. (the "Corporation"), Asghar Mostafa and the other parties named therein (the "Investors") and the Letter regarding the Right to Participate in Initial Public Offering of the same date, between the Corporation and the Investors (the "Letter"). The Letter and Section 11.8 of the Agreement provide that, in the event of a Qualified Initial Public Offering by the Corporation, the holders of the Class C Preferred Shares and Class D Preferred Shares shall have the option, on a pro rata basis, to purchase up to 5%, in the aggregate, of the shares of capital stock offered by the Corporation ("IPO Purchase Right"). Capitalized terms not defined herein shall have the meaning assigned to them in the Agreement. In order to induce the Corporation to complete an initial public offering of its common stock, each of the undersigned Investors has agreed to waive its IPO Purchase 2 Rights, provided that the offering is completed by November 30, 2000. If the offering is not completed by November 30, 2000, all rights under Section 11.8 under the Agreement shall be reinstated. Whether or not the IPO actually occurs depends on a number of factors, including market conditions. This letter agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to principles of conflict of laws, and may be executed in counterparts, each of which shall be deemed to be an original but all of which together shall constitute one agreement. [signatures on following pages] 3 Please acknowledge your agreement with the foregoing by executing this letter in duplicate and returning one signed original to the Corporation as soon as possible. ADVANCED SWITCHING COMMUNICATIONS, INC. By: /s/ ASGHAR MOSTAFA ---------------------------------- Name: Asghar D. Mostafa Title: President + CEO Accepted and agreed as of August 10, 2000 NEW ENTERPRISE ASSOCIATES VIII, LIMITED PARTNERSHIP By: NEA Partners VIII, Limited Partnership By: /s/ ARTHUR MARKS ------------------------------- Name: Arthur Marks Title: NEW ENTERPRISE PRESIDENTS' FUND, L.P. By: NEA General Partnership, L.P. By: /s/ ARTHUR MARKS ------------------------------- Name: Arthur Marks Title: NEA VENTURES 1999, L.P. By: /s/ ARTHUR MARKS ------------------------------- Name: Arthur Marks Title: 4 TCV III (GP) By: Technology Crossover Management III, L.L.C. Its: General Partner By: /s/ CARLA S. NEWELL ------------------------------- Name: Carla S. Newell Title: Attorney-in-Fact TCV III, L.P. By: Technology Crossover Management III, L.L.C. Its: General Partner By: /s/ CARLA S. NEWELL ------------------------------- Name: Carla S. Newell Title: Attorney-in-Fact TCV III (Q), L.P. By: Technology Crossover Management III, L.L.C. Its: General Partner By: /s/ CARLA S. NEWELL ------------------------------- Name: Carla S. Newell Title: Attorney-in-Fact TCV III Strategic Partners, L.P. By: Technology Crossover Management III, L.L.C. Its: General Partner By: /s/ CARLA S. NEWELL ------------------------------- Name: Carla S. Newell Title: Attorney-in-Fact 5 MORGAN STANLEY VENTURE PARTNERS III, L.P. By: Morgan Stanley Venture Partners III, L.L.C. Its: General Partner By: Morgan Stanley Venture Capital III, Inc. Its: Institutional Managing-Member By: /s/ GHASSAN BEJJANI ------------------------------- Name: Ghassan Bejjani Title: Principal MORGAN STANLEY VENTURE INVESTORS III, L.P. By: Morgan Stanley Venture Partners III, L.L.C. Its: General Partner By: Morgan Stanley Venture Capital III, Inc. Its: General Partner By: /s/ GHASSAN BEJJANI ------------------------------- Name: Ghassan Bejjani Title: Principal MORGAN STANLEY VENTURE PARTNERS ENTREPRENEUR FUND, L.P. By: Morgan Stanley Venture Partners III, L.L.C. Its: General Partner By: Morgan Stanley Venture Capital III, Inc. Its: Institutional Managing Member By: /s/ GHASSAN BEJJANI ------------------------------- Name: Ghassan Bejjani Title: Principal 6 BAKER COMMUNICATIONS FUND, L.P. By: /s/ HENRY G. BAKER ------------------------------- Name: Henry G. Baker Title: Manager of Baker Capital Partners, LLC its General Partner MOSTAFA VENTURE FUND, LLC By: /s/ ASGHAR MOSTAFA ------------------------------- Name: Title: MCI WORLDCOM VENTURE FUND, INC. By: /s/ SUSAN MAYER ------------------------------- Name: Susan Mayer Title: President