Amendment No. 2 to Rights Agreement between Advanced Radio Telecom Corp. and BankBoston, N.A.

Summary

This amendment, dated August 23, 2000, updates the Rights Agreement between Advanced Radio Telecom Corp. and BankBoston, N.A. as rights agent. It revises the definition of "Exempt Person" to clarify which shareholders and entities are excluded from certain restrictions, and adds definitions related to the BroadStream Agreement and BroadStream Entities. The amendment is intended to reflect changes in company ownership and related agreements, ensuring the Rights Agreement remains accurate and enforceable.

EX-10.1 2 0002.txt AMEND. NO. 2 TO THE RIGHTS AGREEMENT EXHIBIT 10.1 Amendment No.2 -------------- to the ------ Rights Agreement of ------------------- Advanced Radio Telecom Corp. ---------------------------- 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: ----------- 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 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)." -2- 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: -3-