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<P ALIGN="CENTER"><FONT SIZE=2><B>As filed with the Securities and Exchange Commission on August&nbsp;30, 2001  </B></FONT></P>

<P ALIGN="RIGHT"><FONT SIZE=2><B> Registration No.&nbsp;333-&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</B></FONT></P>

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<P ALIGN="CENTER"><FONT SIZE=5><B>SECURITIES AND EXCHANGE COMMISSION<BR>  </B></FONT><FONT SIZE=2><B>Washington, D.C. 20549  </B></FONT></P>

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<P ALIGN="CENTER"><FONT SIZE=5><B>FORM S-8<BR>  </B></FONT><FONT SIZE=2><B>REGISTRATION STATEMENT<BR>
Under<BR>
The Securities Act of 1933<BR>  </B></FONT></P>

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<P ALIGN="CENTER"><FONT SIZE=5><B>BIRCH TELECOM,&nbsp;INC.<BR>  </B></FONT><FONT SIZE=2>(Exact name of registrant as specified in its charter) </FONT></P>

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<TD WIDTH="49%" ALIGN="CENTER"><FONT SIZE=2><B>DELAWARE</B></FONT></TD>
<TD WIDTH="2%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="49%" ALIGN="CENTER"><FONT SIZE=2><B>43-1766929</B></FONT></TD>
</TR>
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<TD WIDTH="49%" ALIGN="CENTER"><FONT SIZE=2>(State of other jurisdiction<BR>
of incorporation or organization)</FONT></TD>
<TD WIDTH="2%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="49%" ALIGN="CENTER"><FONT SIZE=2>(I.R.S. Employer<BR>
Identification No.)</FONT></TD>
</TR>
<TR VALIGN="TOP">
<TD WIDTH="49%" ALIGN="CENTER"><FONT SIZE=2><BR>
&nbsp;</FONT></TD>
<TD WIDTH="2%"><FONT SIZE=2><BR>&nbsp;</FONT></TD>
<TD WIDTH="49%"><FONT SIZE=2><BR>
&nbsp;</FONT></TD>
</TR>
<TR VALIGN="TOP">
<TD WIDTH="49%" ALIGN="CENTER"><FONT SIZE=2><B>2020 Baltimore Avenue</B></FONT></TD>
<TD WIDTH="2%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="49%" ALIGN="CENTER"><FONT SIZE=2><B>64108</B></FONT></TD>
</TR>
<TR VALIGN="BOTTOM">
<TD WIDTH="49%" ALIGN="CENTER"><FONT SIZE=2><B>Kansas City, Missouri</B></FONT><FONT SIZE=2><BR>
(Address of principal<BR>
executive offices)</FONT></TD>
<TD WIDTH="2%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="49%" ALIGN="CENTER" VALIGN="TOP"><FONT SIZE=2>(Zip Code)</FONT></TD>
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<P ALIGN="CENTER"><FONT SIZE=2><B>BIRCH TELECOM, INC. 1998 STOCK OPTION PLAN<BR>
2000 EQUITY PARTICIPATION PLAN OF BIRCH TELECOM, INC.<BR>
2001 EQUITY PARTICIPATION PLAN OF BIRCH TELECOM, INC.<BR>  </B></FONT><FONT SIZE=2>(Full titles of the Plans) </FONT></P>

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<P ALIGN="CENTER"><FONT SIZE=2><B>Gregory C. Lawhon<BR>
Senior Vice President of Public Policy and General Counsel<BR>
2020 Baltimore Avenue<BR>
Kansas City, Missouri 64108<BR>
(816) 300-3000</B></FONT><FONT SIZE=2><BR>
(Name, address, including zip code, and telephone<BR>
number, including area code, of agent for service) </FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2>Copy
to: </FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2><B>Raymond Y. Lin, Esq.<BR>  </B></FONT><FONT SIZE=2>Latham &amp; Watkins<BR>
885 Third Avenue<BR>
New York, New York 10022<BR>
(212) 906-1200<BR>
(212) 751-4864 (fax) </FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2><A
NAME="ba4168_calculation_of_registration_fee"> </A>
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<BR></FONT><FONT SIZE=2><B>Calculation of Registration Fee    <BR>  </B></FONT></P>

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<TD WIDTH="35%" ALIGN="CENTER"><FONT SIZE=1><B>Title of Securities to be<BR>
Registered</B></FONT></TD>
<TD WIDTH="1%"><FONT SIZE=1>&nbsp;</FONT></TD>
<TD WIDTH="14%" ALIGN="CENTER" VALIGN="BOTTOM"><FONT SIZE=1><B>Amount<BR>
of Shares<BR>
to be<BR>
Registered(1)</B></FONT></TD>
<TD WIDTH="1%" VALIGN="BOTTOM"><FONT SIZE=1>&nbsp;</FONT></TD>
<TD WIDTH="14%" ALIGN="CENTER" VALIGN="BOTTOM"><FONT SIZE=1><B>Proposed<BR>
Maximum<BR>
Offering Price<BR>
Per Share(2)</B></FONT></TD>
<TD WIDTH="1%" VALIGN="BOTTOM"><FONT SIZE=1>&nbsp;</FONT></TD>
<TD WIDTH="19%" ALIGN="CENTER" VALIGN="BOTTOM"><FONT SIZE=1><B>Proposed<BR>
Maximum<BR>
Aggregate<BR>
Offering Price(2)</B></FONT></TD>
<TD WIDTH="1%" VALIGN="BOTTOM"><FONT SIZE=1>&nbsp;</FONT></TD>
<TD WIDTH="14%" ALIGN="CENTER" VALIGN="BOTTOM"><FONT SIZE=1><B>Amount of<BR>
Registration<BR>
Fee</B></FONT></TD>
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<TD WIDTH="35%"><FONT SIZE=2>Common Stock $0.001 par value</FONT></TD>
<TD WIDTH="1%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="14%" ALIGN="CENTER" VALIGN="BOTTOM"><FONT SIZE=2>150,847,718</FONT></TD>
<TD WIDTH="1%" VALIGN="BOTTOM"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="14%" ALIGN="CENTER" VALIGN="BOTTOM"><FONT SIZE=2>$1.08; $6.60; $1.19; $0.28</FONT></TD>
<TD WIDTH="1%" VALIGN="BOTTOM"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="19%" ALIGN="CENTER" VALIGN="BOTTOM"><FONT SIZE=2>$157,684,094.78</FONT></TD>
<TD WIDTH="1%" VALIGN="BOTTOM"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="14%" ALIGN="CENTER" VALIGN="BOTTOM"><FONT SIZE=2>$39,421.02</FONT></TD>
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<DL compact>
<DT><FONT SIZE=2>(1)</FONT></DT><DD><FONT SIZE=2>Represents
the maximum number of shares of Birch Telecom,&nbsp;Inc. common stock, par value $0.001 per share ("Common Stock"), that may be acquired under (a)&nbsp;the Birch Telecom,&nbsp;Inc.
1998 Stock Option Plan (the "1998 Plan"), (b)&nbsp;the 2000 Equity Participation Plan of Birch Telecom,&nbsp;Inc. (the "2000 Plan"), and (c)&nbsp;the 2001 Equity Participation Plan of Birch
Telecom,&nbsp;Inc. (the "2001 Plan").
<BR><BR></FONT></DD><DT><FONT SIZE=2>(2)</FONT></DT><DD><FONT SIZE=2>For
purposes of computing the registration fee only. Pursuant to Rule&nbsp;457(h) under the Securities Act of 1933, as amended, the Proposed Maximum Offering Price Per Share is
based upon (a)&nbsp;the weighted average exercise price per share ($1.08) of outstanding options to purchase 9,647,718 shares under the 1998 Plan, (b)&nbsp;the weighted average exercise price per
share ($6.60) of outstanding options to purchase 911,743 shares under the 2000 Plan, (c)&nbsp;the weighted average exercise price per share ($1.19) of outstanding options to purchase 112,622,245
shares under the 2001 Plan, and (d)&nbsp;for the remaining 27,666,012 shares, $0.28, the book value per share of Common stock as of June&nbsp;30, 2001. No additional options may be granted under
the 1998 Plan. </FONT></DD></DL>
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<P ALIGN="CENTER"><FONT SIZE=2><A
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<BR></FONT><FONT SIZE=2><B>PART I    <BR>  </B></FONT></P>

<P><FONT SIZE=2><A
NAME="de4168_item_1._plan_information"> </A>
<A NAME="toc_de4168_2"> </A></FONT> <FONT SIZE=2><B>Item 1.&nbsp;&nbsp;Plan Information    <BR>  </B></FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;Not required to be filed with this Registration Statement. </FONT></P>

<P><FONT SIZE=2><A
NAME="de4168_item_2._registration_informati__ite02726"> </A>
<A NAME="toc_de4168_3"> </A>
<BR></FONT><FONT SIZE=2><B>Item 2.&nbsp;&nbsp;Registration Information and Employee Plan Annual Information    <BR>  </B></FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;Not required to be filed with this Registration Statement. </FONT></P>

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NAME="de4168_part_ii"> </A>
<A NAME="toc_de4168_4"> </A>
<BR></FONT><FONT SIZE=2><B>PART II    <BR>  </B></FONT></P>

<P><FONT SIZE=2><A
NAME="de4168_item_3._incorporation_of_documents_by_reference"> </A>
<A NAME="toc_de4168_5"> </A></FONT> <FONT SIZE=2><B>Item 3.&nbsp;&nbsp;Incorporation of Documents by Reference    <BR>  </B></FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;The following documents filed with the Securities and Exchange Commission by Birch Telecom,&nbsp;Inc., a Delaware corporation (the "Company"), are
incorporated as of their respective dates in this Registration Statement by reference: </FONT></P>

<UL>
<DL compact>
<DT><FONT SIZE=2>A.</FONT></DT><DD><FONT SIZE=2>The
Company's Annual Report on Form&nbsp;10-K filed April&nbsp;2, 2001 (File No.&nbsp;333-62797), for the fiscal year ended December&nbsp;31, 2000.
<BR><BR></FONT></DD><DT><FONT SIZE=2>B.</FONT></DT><DD><FONT SIZE=2>The
Company's Quarterly Report on Form&nbsp;10-Q filed May&nbsp;15, 2001 (File No.&nbsp;333-62797), for the quarterly period ended March&nbsp;31,
2001.
<BR><BR></FONT></DD><DT><FONT SIZE=2>C.</FONT></DT><DD><FONT SIZE=2>The
Company's Quarterly Report on Form&nbsp;10-Q filed August&nbsp;14, 2001 (File No.&nbsp;333-62797), for the quarterly period ended June&nbsp;30,
2001. </FONT></DD></DL>
</UL>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;All
documents filed by the Company or by the Birch Telecom,&nbsp;Inc. 1998 Stock Option Plan, the 2000 Equity Participation Plan of Birch Telecom,&nbsp;Inc. or the 2001 Equity
Participation Plan of Birch Telecom,&nbsp;Inc. pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective amendment which indicates that
all securities offered have been sold or which deregisters all securities then remaining unsold are incorporated by reference in this Registration Statement and are a part hereof from the date of
filing such documents. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;Any
statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained herein or in any other subsequently filed document which is also or is deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. </FONT></P>

<P><FONT SIZE=2><A
NAME="de4168_item_4._description_of_securities"> </A>
<A NAME="toc_de4168_6"> </A>
<BR></FONT><FONT SIZE=2><B>Item 4.&nbsp;&nbsp;Description of Securities    <BR>  </B></FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;The following summary description of our capital stock is qualified in its entirety by reference to our Restated Certificate of Incorporation, as amended (the
"Certificate of Incorporation") and our Restated Bylaws (the "Bylaws"), copies of which are filed as exhibits to this Registration Statement. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;Our
authorized capital stock consists of: (i)&nbsp;850,000,000 shares of common stock, and (ii)&nbsp;400,000,000 shares of preferred stock, of which (a)&nbsp;8,750,000 shares
are designated series&nbsp;B preferred stock, (b)&nbsp;8,500,000 shares are designated series&nbsp;C preferred stock, (c)&nbsp;3,000,000 shares are designated series&nbsp;D preferred stock,
(d)&nbsp;30,000,000 shares are designated series&nbsp;F preferred stock, (e)&nbsp;329,000,000 shares are designated as series&nbsp;G preferred stock, (f)&nbsp;6,579,000 shares are designated
as series&nbsp;H preferred stock, and (g)&nbsp;2,223,000 shares are designated as series&nbsp;I preferred stock. As of August&nbsp;1, 2001, there were (i)&nbsp;8,641,631 shares of common
stock outstanding, (ii)&nbsp;7,558,826 shares of series&nbsp;B preferred stock outstanding, (iii)&nbsp;6,270,527 shares of series&nbsp;C preferred stock outstanding, (iv)&nbsp;2,109,843
shares of series&nbsp;D preferred stock outstanding, (v)&nbsp;23,596,492 shares of series&nbsp;F preferred stock outstanding, (vi)&nbsp;300,000,000 shares of series&nbsp;G preferred stock
outstanding, (vii)&nbsp;1,013,213 shares </FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2>2</FONT></P>

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of series&nbsp;H preferred stock outstanding, (viii)&nbsp;758,695 shares of series&nbsp;I preferred stock outstanding, (ix)&nbsp;27,666,012 shares of common stock reserved for issuance upon
the exercise of authorized but unissued stock options to purchase shares of common stock under the 2000 Plan and the 2001 Plan,
(x)&nbsp;123,181,706 shares of common stock issuable upon the exercise of outstanding stock options, and (xi)&nbsp;2,530,473 shares issuable upon the exercise of outstanding warrants. </FONT></P>


<P><FONT SIZE=2><B>COMMON STOCK  </B></FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;Holders of our common stock are entitled to one vote for each share held on all matters submitted to a vote of stockholders. These voting rights are exercised
together with the rights of the preferred stock, except that the common stock has the right to elect one member of senior management to the Board of Directors so long as a certain number of shares of
preferred stock remain outstanding. The common stock does not have cumulative voting rights. Except as otherwise required by law, actions at Birch's stockholders' meetings require the affirmative vote
of a majority of the shares represented at the meeting and that a quorum be present. Holders of common stock are entitled, subject to the preferences of the preferred stock and restrictions imposed by
the terms of certain existing debt agreements of Birch (the "Debt Agreements"), to receive such dividends, if any, as may be declared by the Board out of funds legally available therefor. For a
discussion of the restrictions imposed by the Debt Agreements regarding the payment of dividends, see the section entitled "Description of the Exchange Notes&#151;Certain Covenants" in our
prospectus included in Registration Statement No.&nbsp;333-62797 on Form&nbsp;S-4, declared effective on February&nbsp;1, 1999, relating to certain of our debt securities
which is incorporated by reference herein. The holders of common stock have no preemptive, redemption, conversion or sinking fund rights. In the event of our liquidation, dissolution or winding up,
holders of common stock are entitled to share ratably in our assets which are legally available for distribution, if any, remaining after the payment of all our debts and liabilities and the
liquidation preference of any outstanding preferred stock. </FONT></P>

<P><FONT SIZE=2><B>PREFERRED STOCK  </B></FONT></P>

<P><FONT SIZE=2><I>Series&nbsp;B Preferred Stock  </I></FONT></P>

<P><FONT SIZE=2><I>&nbsp;&nbsp;&nbsp;&nbsp;Dividends.</I></FONT><FONT SIZE=2>&nbsp;&nbsp;The holders of series&nbsp;B preferred stock are entitled, subject to the restrictions imposed by the
terms of the Debt Agreements, to receive cumulative dividends at the rate of 15% per annum. The series&nbsp;B preferred stock ranks senior to the series&nbsp;C preferred stock and the common
stock, </FONT><FONT SIZE=2><I>pari passu </I></FONT><FONT SIZE=2>with the series&nbsp;D, series&nbsp;H, and series&nbsp;I preferred stock, and junior to the series&nbsp;F and series&nbsp;G
preferred stock as to dividends. Additional dividends will accrue on the accrued, unpaid dividends on the series&nbsp;B preferred stock. </FONT></P>

<P><FONT SIZE=2><I>&nbsp;&nbsp;&nbsp;&nbsp;Liquidation Preference.</I></FONT><FONT SIZE=2>&nbsp;&nbsp;Upon our liquidation, dissolution, or winding up, holders of series&nbsp;B preferred stock
will be entitled to a per share liquidation preference of $1.52 plus any accrued, unpaid dividends, subject to the prior payment in full of all of our debts and liabilities. The series&nbsp;B
preferred stock ranks senior to the series&nbsp;C preferred stock and the common stock, </FONT><FONT SIZE=2><I>pari passu </I></FONT><FONT SIZE=2>with the series&nbsp;H preferred stock, and
junior to the series&nbsp;D, series&nbsp;F, series&nbsp;G and series&nbsp;I preferred stock as to liquidation. </FONT></P>

<P><FONT SIZE=2><I>&nbsp;&nbsp;&nbsp;&nbsp;Conversion.</I></FONT><FONT SIZE=2>&nbsp;&nbsp;The shares of series&nbsp;B preferred stock may, at the option of the holder, be converted at any time
into fully paid and nonassessable shares of common stock. All outstanding shares of series B preferred stock will be automatically converted into shares of common stock immediately prior to the
closing of an initial public offering of the common stock meeting certain requirements. The number of shares of common stock to which a holder of series&nbsp;B preferred stock is entitled upon
conversion is the product obtained by multiplying the applicable preferred stock rate (as defined in the Certificate of Incorporation) then in effect by the number of shares of series&nbsp;B
preferred stock being converted. The preferred stock rate is subject to adjustment for stock dividends, combinations, splits and the like. In </FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2>3</FONT></P>

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addition, the preferred stock rate for the series&nbsp;B preferred stock is subject to adjustment upon the issuance of additional shares of common stock, subject to certain exceptions. </FONT></P>


<P><FONT SIZE=2><I>&nbsp;&nbsp;&nbsp;&nbsp;Voting Rights.</I></FONT><FONT SIZE=2>&nbsp;&nbsp;Subject to certain exceptions, the holders of series&nbsp;B preferred stock are entitled to cast one
vote for each share of series&nbsp;B preferred stock held by them on an as-converted to common stock basis. Such votes will be cast together with those cast by the holders of
series&nbsp;C, series&nbsp;D, series&nbsp;F, series&nbsp;G, series&nbsp;H, and series&nbsp;I preferred stock and common stock and not as a separate class, except as otherwise provided
herein or required by applicable law. The series&nbsp;B, series&nbsp;C, series&nbsp;D, series&nbsp;H, and series&nbsp;I preferred stock, voting as a single class, have the right to elect one
member of the Board of Directors so long as a certain number of shares of series&nbsp;B, series&nbsp;C, series&nbsp;D, series&nbsp;F, series&nbsp;G, series&nbsp;H, and series&nbsp;I
preferred stock remain outstanding. The series&nbsp;B preferred stock does not have cumulative voting rights. </FONT></P>

<P><FONT SIZE=2><I>Series&nbsp;C Preferred Stock  </I></FONT></P>

<P><FONT SIZE=2><I>&nbsp;&nbsp;&nbsp;&nbsp;Dividends.</I></FONT><FONT SIZE=2>&nbsp;&nbsp;The holders of series&nbsp;C preferred stock are entitled, subject to the restrictions imposed by the
terms of the Debt Agreements, to receive non-cumulative dividends at the rate of 10% per annum. The series&nbsp;C preferred stock ranks senior to the common stock and junior to the
series&nbsp;B, series&nbsp;D, series&nbsp;F, series&nbsp;G, series&nbsp;H, and series&nbsp;I preferred stock as to dividends. </FONT></P>

<P><FONT SIZE=2><I>&nbsp;&nbsp;&nbsp;&nbsp;Liquidation Preference.</I></FONT><FONT SIZE=2>&nbsp;&nbsp;Upon our liquidation, dissolution, or winding up, holders of series&nbsp;C preferred stock
will be entitled to a per share liquidation preference of $1.52 plus any declared, unpaid dividends, subject to the prior payment in full of all of our debts and liabilities. The series&nbsp;C
preferred stock ranks senior to the common stock and junior to the series&nbsp;B, series&nbsp;D, series&nbsp;F, series&nbsp;G, series&nbsp;H, and series&nbsp;I preferred stock as to
liquidation. </FONT></P>

<P><FONT SIZE=2><I>&nbsp;&nbsp;&nbsp;&nbsp;Conversion.</I></FONT><FONT SIZE=2>&nbsp;&nbsp;The shares of series&nbsp;C preferred stock may, at the option of the holder, be converted at any time
into fully paid and nonassessable shares of common stock. All outstanding shares of series&nbsp;C preferred stock will be automatically converted into shares of common stock immediately prior to the
closing of an initial public offering of the common stock meeting certain requirements. The number of shares of common stock to which a holder of series&nbsp;C preferred stock is entitled upon
conversion is the product obtained by multiplying the applicable preferred stock rate (as defined in the Certificate of Incorporation) then in effect by the number of shares of series&nbsp;C
preferred stock being converted. The preferred stock rate is subject to adjustment for stock dividends, combinations, splits and the like. In addition, the preferred stock rate for the series&nbsp;C
preferred stock is subject to adjustment upon the issuance of additional shares of common stock, subject to certain exceptions. </FONT></P>

<P><FONT SIZE=2><I>&nbsp;&nbsp;&nbsp;&nbsp;Voting Rights.</I></FONT><FONT SIZE=2>&nbsp;&nbsp;Subject to certain exceptions, the holders of series&nbsp;C preferred stock are entitled to cast one
vote for each share of series&nbsp;C preferred stock held by them on an as-converted to common stock basis. Such votes will be cast together with those cast by the holders of
series&nbsp;B, series&nbsp;D, series&nbsp;F, series&nbsp;G, series&nbsp;H, and series&nbsp;I preferred stock and common stock and not as a separate class, except as otherwise provided
herein or required by applicable law. The series&nbsp;B, series&nbsp;C, series&nbsp;D, series&nbsp;H, and series&nbsp;I preferred stock, voting as a single class, have the right to elect one
member of the Board of Directors so long as a certain number of shares of series&nbsp;B, series&nbsp;C, series&nbsp;D, series&nbsp;H, and series&nbsp;I preferred stock remain outstanding.
The series&nbsp;C preferred stock does not have cumulative voting rights. </FONT></P>

<P><FONT SIZE=2><I>Series&nbsp;D Preferred Stock  </I></FONT></P>

<P><FONT SIZE=2><I>&nbsp;&nbsp;&nbsp;&nbsp;Dividends.</I></FONT><FONT SIZE=2>&nbsp;&nbsp;The holders of series&nbsp;D preferred stock are entitled, subject to the restrictions imposed by the
terms of the Debt Agreements, to receive cumulative dividends at the rate of 15% per annum. The series&nbsp;D preferred stock ranks senior to the series&nbsp;C preferred stock and the common
stock, </FONT><FONT SIZE=2><I>pari passu </I></FONT><FONT SIZE=2>with the series&nbsp;B, series&nbsp;H, and series&nbsp;I preferred stock, and junior to the series&nbsp;F and </FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2>4</FONT></P>

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<P><FONT SIZE=2>
series&nbsp;G preferred stock as to dividends. Additional dividends will accrue on the accrued, unpaid dividends on the series&nbsp;D preferred stock. </FONT></P>


<P><FONT SIZE=2><I>&nbsp;&nbsp;&nbsp;&nbsp;Liquidation Preference.</I></FONT><FONT SIZE=2>&nbsp;&nbsp;Upon our liquidation, dissolution, or winding up, holders of series&nbsp;D preferred stock
will be entitled to a per share liquidation preference of the greater of (i)&nbsp;$4.50 plus any accrued, unpaid dividends or (ii)&nbsp;the amount the holders of series&nbsp;D preferred stock
would have received upon the liquidation, dissolution, or winding up had all shares of series&nbsp;D preferred stock and all shares of series&nbsp;F, series&nbsp;G, and series&nbsp;I preferred
stock been converted to common stock, subject to the prior payment in full of all of our debts and liabilities. The series&nbsp;D preferred stock ranks senior to the series&nbsp;B,
series&nbsp;H, and series&nbsp;C preferred stock and the common stock and </FONT><FONT SIZE=2><I>pari passu</I></FONT><FONT SIZE=2> with the series&nbsp;F, series&nbsp;G, and series&nbsp;I
preferred stock as to liquidation. </FONT></P>

<P><FONT SIZE=2><I>&nbsp;&nbsp;&nbsp;&nbsp;Conversion.</I></FONT><FONT SIZE=2>&nbsp;&nbsp;The shares of series&nbsp;D preferred stock may, at the option of the holder, be converted at any time
into fully paid and nonassessable shares of common stock. All outstanding shares of series&nbsp;D preferred stock will be automatically converted into shares of common stock immediately prior to the
closing of an initial public offering of the common stock meeting certain requirements. The number of shares of common stock to which a holder of series&nbsp;D preferred stock is entitled upon
conversion is the product obtained by multiplying the applicable preferred stock rate (as defined in the Certificate of Incorporation) then in effect by the number of shares of series&nbsp;D
preferred stock being converted. The preferred stock rate is subject to adjustment for stock dividends, combinations, splits and the like. In addition, the preferred stock rate for the series&nbsp;D
preferred stock is subject to adjustment upon the issuance of additional shares of common stock, subject to certain exceptions. </FONT></P>

<P><FONT SIZE=2><I>&nbsp;&nbsp;&nbsp;&nbsp;Voting Rights.</I></FONT><FONT SIZE=2>&nbsp;&nbsp;Subject to certain exceptions, the holders of series&nbsp;D preferred stock are entitled to cast one
vote for each share of series&nbsp;D preferred stock held by them on an as-converted to common stock basis. Such votes will be cast together with those cast by the holders of
series&nbsp;B, series&nbsp;C, series&nbsp;F, series&nbsp;G, series&nbsp;H, and series&nbsp;I preferred stock and common stock and not as a separate class, except as otherwise provided
herein or required by applicable law. The series&nbsp;B, series&nbsp;C, series&nbsp;D, series&nbsp;H, and series&nbsp;I preferred stock, voting as a single class, have the right to elect one
member of the Board of Directors so long as a certain number of shares of series&nbsp;B, series&nbsp;C, series&nbsp;D, series&nbsp;H, and series&nbsp;I preferred stock remain outstanding.
The series&nbsp;D preferred stock does not have cumulative voting rights. </FONT></P>


<P><FONT SIZE=2><I>Series&nbsp;F Preferred Stock  </I></FONT></P>

<P><FONT SIZE=2><I>&nbsp;&nbsp;&nbsp;&nbsp;Dividends.</I></FONT><FONT SIZE=2>&nbsp;&nbsp;The holders of series&nbsp;F preferred stock are entitled, subject to the restrictions imposed by the
terms of the Debt Agreements, to receive quarterly cumulative dividends at the rate of 15% per annum. The series&nbsp;F preferred stock ranks senior to the series&nbsp;B, series&nbsp;C,
series&nbsp;D, series&nbsp;H, and series&nbsp;I preferred stock and the common stock and </FONT><FONT SIZE=2><I>pari passu</I></FONT><FONT SIZE=2> with the series&nbsp;G preferred stock as to
dividends. Additional dividends will accrue on the accrued, unpaid dividends on the series&nbsp;F preferred stock. The series&nbsp;F preferred stock is entitled to receive the amount of any
dividends paid on the common stock, as if the shares of series&nbsp;F preferred stock had been converted to common stock. </FONT></P>

<P><FONT SIZE=2><I>&nbsp;&nbsp;&nbsp;&nbsp;Liquidation Preference.</I></FONT><FONT SIZE=2>&nbsp;&nbsp;Upon our liquidation, dissolution, or winding up, holders of series&nbsp;F preferred stock
will be entitled to a per share liquidation preference of the greater of (i)&nbsp;the purchase price per share plus any accrued, unpaid dividends on each share of series&nbsp;F preferred stock or
(ii)&nbsp;the amount the holders of series&nbsp;F preferred stock would have received upon the liquidation, dissolution, or winding up had all shares of series&nbsp;D, series&nbsp;F,
series&nbsp;G, and series&nbsp;I preferred stock been converted to common stock, subject to the prior payment in full of all of our debts and liabilities. The series&nbsp;F preferred stock ranks
senior to the series&nbsp;B, series&nbsp;C, and series&nbsp;H preferred stock and the common stock and </FONT><FONT SIZE=2><I>pari passu</I></FONT><FONT SIZE=2> with the series&nbsp;D,
series&nbsp;G, and series&nbsp;I preferred stock as to liquidation. </FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2>5</FONT></P>

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<P><FONT SIZE=2><I>&nbsp;&nbsp;&nbsp;&nbsp;Conversion.</I></FONT><FONT SIZE=2>&nbsp;&nbsp;The shares of series&nbsp;F preferred stock may, at the option of the holder, be converted at any time
into fully paid and nonassessable shares of common stock. All outstanding shares of series&nbsp;F preferred stock will be automatically converted into shares of common stock immediately prior to the
closing of an initial public offering of the common stock meeting certain requirements. The number of shares of common stock to which a holder of series&nbsp;F preferred stock is entitled upon
conversion is the product obtained by multiplying the applicable preferred stock rate (as defined in the Certificate of Incorporation) then in effect by the number of shares of series&nbsp;F
preferred stock being converted. The preferred stock rate is subject to adjustment for stock dividends, combinations, splits and the like. In addition, the preferred stock rate for the series&nbsp;F
preferred stock is subject to adjustment upon the issuance of additional shares of common stock, subject to certain exceptions. </FONT></P>

<P><FONT SIZE=2><I>&nbsp;&nbsp;&nbsp;&nbsp;Voting Rights.</I></FONT><FONT SIZE=2>&nbsp;&nbsp;Subject to certain exceptions, the holders of series&nbsp;F preferred stock are entitled to cast one
vote for each share of series&nbsp;F preferred stock held by them on an as-converted to common stock basis. Such votes will be cast together with those cast by the holders of
series&nbsp;B, series&nbsp;C, series&nbsp;D, series&nbsp;G, series&nbsp;H, and series&nbsp;I preferred stock and common stock and not as a separate class, except as otherwise provided
herein or required by applicable law. The series&nbsp;F has the right to elect a percentage of the members of the Board of Directors generally equal to the percentage of the common stock represented
by the series&nbsp;F preferred stock (assuming the conversion of all shares of preferred stock), rounding up so that the nominees of the holders of series&nbsp;F preferred stock will not represent
less than such proportionate interest. The series&nbsp;F preferred stock does not have cumulative voting rights. For as long as the outstanding shares of series&nbsp;F preferred stock represents
at least 5% or more of the outstanding shares of common stock (on an as converted basis), the approval of the holders of at least 75% of the then outstanding shares of series&nbsp;F preferred stock
is necessary for effecting or validating: (i)&nbsp;any amendment of the Certificate of Incorporation or Bylaws that adversely affects the rights of the series&nbsp;F preferred stock;
(ii)&nbsp;any authorization, increase in the authorized number or issuance of any capital stock ranking senior to or on parity with the series&nbsp;F preferred stock as to dividends, voting rights
or liquidation; (iii)&nbsp;any payment of dividends; (iv)&nbsp;subject to certain exceptions, the reclassification, combination, split or acquisition of any shares of our capital stock;
(v)&nbsp;any agreement regarding merger or sale of assets; (vi)&nbsp;subject to certain exceptions, the acquisition of assets or securities of any other person or entity, other than cash
acquisitions valued below a certain threshold; (vii)&nbsp;any joint venture or similar arrangement above a certain threshold; (viii)&nbsp;our liquidation, dissolution or winding up; or
(ix)&nbsp;any amendment of the above voting rights. </FONT></P>

<P><FONT SIZE=2><I>&nbsp;&nbsp;&nbsp;&nbsp;Redemption.</I></FONT><FONT SIZE=2>&nbsp;&nbsp;In the event of our breach of our Certificate of Incorporation or Bylaws or of the purchasers rights
agreement (as discussed below) which has a material adverse effect on the holders of the series&nbsp;F preferred stock, a majority in interest of the series&nbsp;F preferred stock may require the
redemption of all or any portion of the shares of series&nbsp;F preferred stock at a price equal to the amount of the liquidation preference of the series&nbsp;F preferred stock; provided,
however, that if the redemption would violate the terms of the Debt Agreements, a majority in interest of the series&nbsp;F preferred stock may elect to receive shares of common stock instead of
cash. </FONT></P>

<P><FONT SIZE=2><I>Series&nbsp;G Preferred Stock  </I></FONT></P>

<P><FONT SIZE=2><I>&nbsp;&nbsp;&nbsp;&nbsp;Dividends.</I></FONT><FONT SIZE=2>&nbsp;&nbsp;The holders of series&nbsp;G preferred stock are entitled, subject to the restrictions imposed by the
terms of the Debt Agreements, to receive quarterly cumulative dividends at the rate of 15% per annum. The series&nbsp;G preferred stock ranks senior to the series&nbsp;B, series&nbsp;C,
series&nbsp;D, series&nbsp;H, and series&nbsp;I preferred stock and the common stock and </FONT><FONT SIZE=2><I>pari passu</I></FONT><FONT SIZE=2> with the series&nbsp;F, preferred stock as
to dividends. Additional dividends will accrue on the accrued, unpaid dividends on the series&nbsp;G preferred stock. The series&nbsp;G preferred stock is entitled to receive the amount of any
dividends paid on the common stock, as if the shares of series&nbsp;G preferred stock had been converted to common stock. </FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2>6</FONT></P>

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<P><FONT SIZE=2><I>&nbsp;&nbsp;&nbsp;&nbsp;Liquidation Preference.</I></FONT><FONT SIZE=2>&nbsp;&nbsp;Upon our liquidation, dissolution, or winding up, holders of series&nbsp;G preferred stock
will be entitled to a per share liquidation preference of the greater of (i)&nbsp;$0.35 plus any accrued, unpaid dividends or (ii)&nbsp;the amount the holders of series&nbsp;G preferred stock
would have received upon the liquidation, dissolution, or winding up had all shares of series&nbsp;D, series&nbsp;F, series&nbsp;G, and series&nbsp;I preferred stock been converted to common
stock, subject to the prior payment in full of all of our debts and liabilities. The series&nbsp;G preferred stock ranks senior to the series&nbsp;B, series&nbsp;C, and series&nbsp;H preferred
stock and the common stock and </FONT><FONT SIZE=2><I>pari passu</I></FONT><FONT SIZE=2> with the series&nbsp;D, series&nbsp;F, and series&nbsp;I preferred stock as to liquidation. </FONT></P>

<P><FONT SIZE=2><I>&nbsp;&nbsp;&nbsp;&nbsp;Conversion.</I></FONT><FONT SIZE=2>&nbsp;&nbsp;The shares of series&nbsp;G preferred stock may, at the option of the holder, be converted at any time
into fully paid and nonassessable shares of common stock. All outstanding shares of series&nbsp;G preferred stock will be automatically converted into shares of common stock immediately prior to the
closing of an initial public offering of the common stock meeting certain requirements. The number of shares of common stock to which a holder of series&nbsp;G preferred stock is entitled upon
conversion is the product obtained by multiplying the applicable preferred stock rate (as defined in the Certificate of Incorporation) then in effect by the number of shares of series&nbsp;G
preferred stock being converted. The preferred stock rate is subject to adjustment for stock dividends, combinations, splits and the like. In addition, the preferred stock rate for the series&nbsp;G
preferred stock is subject to adjustment upon the issuance of additional shares of common stock, subject to certain exceptions. </FONT></P>

<P><FONT SIZE=2><I>&nbsp;&nbsp;&nbsp;&nbsp;Voting Rights.</I></FONT><FONT SIZE=2>&nbsp;&nbsp;Subject to certain exceptions, the holders of series&nbsp;G preferred stock are entitled to cast one
vote for each share of series&nbsp;G preferred stock held by them on an as-converted to common stock basis. Such votes will be cast together with those cast by the holders of
series&nbsp;B, series&nbsp;C, series&nbsp;D, series&nbsp;F, series&nbsp;H, and series&nbsp;I preferred stock and common stock and not as a separate class, except as otherwise provided
herein or required by applicable law. The series&nbsp;G has the right to elect a percentage of the members of the Board of Directors generally equal to the percentage of the common stock represented
by the series&nbsp;G preferred stock (assuming the conversion of all shares of preferred stock), rounding up so that the nominees of the holders of series&nbsp;G preferred stock will not represent
less than such proportionate interest. The series&nbsp;G preferred stock does not have cumulative voting rights. For as long as the outstanding shares of series&nbsp;G preferred stock represents
at least 5% or more of the outstanding shares of common stock (on an as converted basis), the approval of the holders of at least 75% of the then outstanding shares of series&nbsp;G preferred stock
is necessary for effecting or validating: (i)&nbsp;any amendment of the Certificate of Incorporation or Bylaws that adversely affects the rights of the series&nbsp;G preferred stock;
(ii)&nbsp;any authorization, increase in the authorized number or issuance of any capital stock ranking senior to or on parity with the series&nbsp;G preferred stock as to dividends, voting rights
or liquidation; (iii)&nbsp;any payment of dividends; (iv)&nbsp;subject to certain exceptions, the reclassification, combination, split or acquisition of any shares of our capital stock;
(v)&nbsp;any agreement regarding merger or sale of assets; (vi)&nbsp;subject to certain exceptions, the acquisition of assets or securities of any other person or entity, other than cash
acquisitions valued below a certain threshold; (vii)&nbsp;any joint venture or similar arrangement above a certain threshold; (viii)&nbsp;our liquidation, dissolution or winding up; or
(ix)&nbsp;any amendment of the above voting rights. </FONT></P>

<P><FONT SIZE=2><I>&nbsp;&nbsp;&nbsp;&nbsp;Redemption.</I></FONT><FONT SIZE=2>&nbsp;&nbsp;In the event of our breach of our Certificate of Incorporation or Bylaws or of the purchasers rights
agreement (as discussed below) which has a material adverse effect on the holders of the series&nbsp;G preferred stock, a majority in interest of the series&nbsp;G preferred stock may require the
redemption of all or any portion of the shares of series&nbsp;G preferred stock at a price equal to the amount of the liquidation preference of the series&nbsp;G preferred stock; provided,
however, that if the redemption would violate the terms of the Debt Agreements, a majority in interest of the series&nbsp;G preferred stock may elect to receive shares of common stock instead of
cash. </FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2>7</FONT></P>

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<P><FONT SIZE=2><I>Series&nbsp;H Preferred Stock  </I></FONT></P>

<P><FONT SIZE=2><I>&nbsp;&nbsp;&nbsp;&nbsp;Dividends.</I></FONT><FONT SIZE=2>&nbsp;&nbsp;The holders of series&nbsp;H preferred stock are entitled, subject to the restrictions imposed by the
terms of the Debt Agreements, to receive cumulative dividends at the rate of 15% per annum. The series&nbsp;H preferred stock ranks senior to the series&nbsp;C preferred stock and the common
stock, </FONT><FONT SIZE=2><I>pari passu </I></FONT><FONT SIZE=2>with the series&nbsp;D, series&nbsp;B, and series&nbsp;I preferred stock, and junior to the series&nbsp;F and series&nbsp;G
preferred stock as to dividends. Additional dividends will accrue on the accrued, unpaid dividends on the series&nbsp;H preferred stock. </FONT></P>

<P><FONT SIZE=2><I>&nbsp;&nbsp;&nbsp;&nbsp;Liquidation Preference.</I></FONT><FONT SIZE=2>&nbsp;&nbsp;Upon our liquidation, dissolution, or winding up, holders of series&nbsp;H preferred stock
will be entitled to a per share liquidation preference of $1.52 plus any accrued, unpaid dividends, subject to the prior payment in full of all of our debts and liabilities. The series&nbsp;H
preferred stock ranks senior to the series&nbsp;C preferred stock and the common stock, </FONT><FONT SIZE=2><I>pari passu </I></FONT><FONT SIZE=2>with the series&nbsp;B preferred stock, and
junior to the series&nbsp;D, series&nbsp;F, series&nbsp;G and series&nbsp;I preferred stock as to liquidation. </FONT></P>

<P><FONT SIZE=2><I>&nbsp;&nbsp;&nbsp;&nbsp;Conversion.</I></FONT><FONT SIZE=2>&nbsp;&nbsp;The shares of series&nbsp;H preferred stock may, at the option of the holder, be converted at any time
into fully paid and nonassessable shares of common stock. All outstanding shares of series&nbsp;H preferred stock will be automatically converted into shares of common stock immediately prior to the
closing of an initial public offering of the common stock meeting certain requirements. The number of shares of common stock to which a holder of series&nbsp;H preferred stock is entitled upon
conversion is the product obtained by multiplying the applicable preferred stock rate (as defined in the Certificate of Incorporation) then in effect by the number of shares of series&nbsp;H
preferred stock being converted. The preferred stock rate is subject to adjustment for stock dividends, combinations, splits and the like. In addition, the preferred stock rate for the series&nbsp;H
preferred stock is subject to adjustment upon the issuance of additional shares of common stock, subject to certain exceptions. </FONT></P>

<P><FONT SIZE=2><I>&nbsp;&nbsp;&nbsp;&nbsp;Voting Rights.</I></FONT><FONT SIZE=2>&nbsp;&nbsp;Subject to certain exceptions, the holders of series&nbsp;H preferred stock are entitled to cast one
vote for each share of series&nbsp;H preferred stock held by them on an as-converted to common stock basis. Such votes will be cast together with those cast by the holders of
series&nbsp;C, series&nbsp;D, series&nbsp;F, series&nbsp;G, series&nbsp;B, and series&nbsp;I preferred stock and common stock and not as a separate class, except as otherwise provided
herein or required by applicable law. The series&nbsp;B, series&nbsp;C, series&nbsp;D, series&nbsp;H, and series&nbsp;I preferred stock, voting as a single class, have the right to elect one
member of the Board of Directors so long as a certain number of shares of series&nbsp;B, series&nbsp;C, series&nbsp;D, series&nbsp;F, series&nbsp;G, series&nbsp;H, and series&nbsp;I
preferred stock remain outstanding. The series&nbsp;H preferred stock does not have cumulative voting rights. </FONT></P>


<P><FONT SIZE=2><I>Series&nbsp;I Preferred Stock  </I></FONT></P>

<P><FONT SIZE=2><I>&nbsp;&nbsp;&nbsp;&nbsp;Dividends.</I></FONT><FONT SIZE=2>&nbsp;&nbsp;The holders of series&nbsp;I preferred stock are entitled, subject to the restrictions imposed by the
terms of the Debt Agreements, to receive cumulative dividends at the rate of 15% per annum. The series&nbsp;I preferred stock ranks senior to the series&nbsp;C preferred stock and the common
stock, </FONT><FONT SIZE=2><I>pari passu </I></FONT><FONT SIZE=2>with the series&nbsp;B, series&nbsp;H, and series&nbsp;D preferred stock, and junior to the series&nbsp;F and series&nbsp;G
preferred stock as to dividends. Additional dividends will accrue on the accrued, unpaid dividends on the series&nbsp;I preferred stock. </FONT></P>

<P><FONT SIZE=2><I>&nbsp;&nbsp;&nbsp;&nbsp;Liquidation Preference.</I></FONT><FONT SIZE=2>&nbsp;&nbsp;Upon our liquidation, dissolution, or winding up, holders of series&nbsp;I preferred stock
will be entitled to a per share liquidation preference of the greater of (i)&nbsp;$4.50 plus any accrued, unpaid dividends or (ii)&nbsp;the amount the holders of series&nbsp;I preferred stock
would have received upon the
liquidation, dissolution, or winding up had all shares of series&nbsp;I preferred stock and all shares of series&nbsp;F, series&nbsp;G, and series&nbsp;D preferred stock been converted to
common stock, subject to the prior payment in full of all of our debts and liabilities. The series&nbsp;I preferred stock ranks senior </FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2>8</FONT></P>

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to the series&nbsp;B, series&nbsp;H, and series&nbsp;C preferred stock and the common stock and </FONT><FONT SIZE=2><I>pari passu</I></FONT><FONT SIZE=2> with the series&nbsp;F,
series&nbsp;G, and series&nbsp;D preferred stock as to liquidation. </FONT></P>

<P><FONT SIZE=2><I>&nbsp;&nbsp;&nbsp;&nbsp;Conversion.</I></FONT><FONT SIZE=2>&nbsp;&nbsp;The shares of series&nbsp;I preferred stock may, at the option of the holder, be converted at any time
into fully paid and nonassessable shares of common stock. All outstanding shares of series&nbsp;I preferred stock will be automatically converted into shares of common stock immediately prior to the
closing of an initial public offering of the common stock meeting certain requirements. The number of shares of common stock to which a holder of series&nbsp;I preferred stock is entitled upon
conversion is the product obtained by multiplying the applicable preferred stock rate (as defined in the Certificate of Incorporation) then in effect by the number of shares of series&nbsp;I
preferred stock being converted. The preferred stock rate is subject to adjustment for stock dividends, combinations, splits and the like. In addition, the preferred stock rate for the series&nbsp;I
preferred stock is subject to adjustment upon the issuance of additional shares of common stock, subject to certain exceptions. </FONT></P>

<P><FONT SIZE=2><I>&nbsp;&nbsp;&nbsp;&nbsp;Voting Rights.</I></FONT><FONT SIZE=2>&nbsp;&nbsp;Subject to certain exceptions, the holders of series&nbsp;I preferred stock are entitled to cast one
vote for each share of series&nbsp;I preferred stock held by them on an as-converted to common stock basis. Such votes will be cast together with those cast by the holders of
series&nbsp;B, series&nbsp;C, series&nbsp;F, series&nbsp;G, series&nbsp;H, and series&nbsp;D preferred stock and common stock and not as a separate class, except as otherwise provided
herein or required by applicable law. The series&nbsp;B, series&nbsp;C, series&nbsp;D, series&nbsp;H, and series&nbsp;I preferred stock, voting as a single class, have the right to elect one
member of the Board of Directors so long as a certain number of shares of series&nbsp;B, series&nbsp;C, series&nbsp;D, series&nbsp;H, and series&nbsp;I preferred stock remain outstanding.
The series&nbsp;I preferred stock does not have cumulative voting rights. </FONT></P>

<P><FONT SIZE=2><B>WARRANTS  </B></FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;We have outstanding warrants to purchase up to 2,530,473 shares of common stock at an exercise price of $0.006 per share. These warrants are currently
exercisable and expire on June&nbsp;15, 2008. The warrant agreement governing these warrants provides the holders of the warrants with customary antidilution protections. In addition, holders of
these warrants have demand and piggyback registration rights with respect to the exercise of their warrants and the resale of the underlying shares. Prior to exercising their warrants, the warrant
holders do not have any voting rights relating to our company. </FONT></P>

<P><FONT SIZE=2><B>PURCHASERS RIGHTS AGREEMENT  </B></FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;Our current stockholders are parties to the purchasers rights agreement, which provides that they vote their respective shares in a manner as to elect persons
specified in the agreement to serve as directors. The holders of series&nbsp;F preferred stock have agreed to vote their shares to elect James&nbsp;H. Greene,&nbsp;Jr., Clint Johnstone,
Henry&nbsp;R. Kravis and Adam&nbsp;H. Clammer. The holders of series&nbsp;G preferred stock have agreed to vote there shares to elect Mory Ejabat, Alexander Navab,&nbsp;Jr. and
George&nbsp;R. Roberts. In addition, the holders of series&nbsp;B preferred stock, series&nbsp;C preferred stock, series&nbsp;D preferred stock series&nbsp;H preferred stock and
series&nbsp;I preferred stock have agreed to vote their shares to elect either Henry&nbsp;H. Bradley or Thomas&nbsp;R. Palmer. The holders of common stock have agreed to vote their shares for
the election of David&nbsp;E. Scott. The stockholders have also agreed to vote these shares to elect Richard&nbsp;A. Jalkut and either, to the extent not elected by the holders of series&nbsp;B
preferred stock, series&nbsp;C preferred stock, series&nbsp;D preferred stock, series&nbsp;H preferred stock and series&nbsp;I preferred stock, Mr.&nbsp;Bradley or Mr.&nbsp;Palmer. So long
as the purchasers rights agreement is in effect, these investors will effectively control the election of our board of directors. </FONT></P>

<P><FONT SIZE=2><B>REGISTRATION RIGHTS  </B></FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;The parties to the purchasers rights agreement, subject to some conditions, have registration rights with respect to shares of common stock, including shares
of common stock issuable upon conversion or redemption of shares of series&nbsp;F preferred stock or series&nbsp;G preferred stock, or upon conversion of </FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2>9</FONT></P>

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shares of series&nbsp;B preferred stock, series&nbsp;C preferred stock, series&nbsp;D preferred stock, series&nbsp;H preferred stock or series&nbsp;I preferred stock. These purchasers have,
subject to some conditions, demand and "piggy-back" registration rights. The purchasers rights agreement provides that each purchaser of stock is subject to lock-up
restrictions in the event of a public offering of our securities. </FONT></P>


<P><FONT SIZE=2><B>RESTRICTIONS ON TRANSFER  </B></FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;Our outstanding common stock (including shares issued pursuant to options) and each series of preferred stock are subject to restrictions on transfer. Holders
of common stock and each series of preferred stock that are parties to the purchasers rights agreement, subject to some exceptions, may not transfer their shares without first giving us the
opportunity to purchase the shares. In addition, subject to some exceptions, the holders of common stock or any series of preferred stock that are parties to the purchasers rights agreement may not
transfer their shares without first giving the other purchasers under the purchasers rights agreement the opportunity to participate in the transfer. </FONT></P>


<P><FONT SIZE=2><B>PRE-EMPTIVE RIGHTS  </B></FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;Holders of our common stock and each series of preferred stock that are parties to the purchasers rights agreement have the right to purchase a pro rata
portion of any common stock or preferred stock that we propose to sell and issue, subject to some exceptions. </FONT></P>

<P><FONT SIZE=2><B>SIZE OF THE BOARD OF DIRECTORS  </B></FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;The purchasers rights agreement provides that so long as at least 6,666,667 shares of series&nbsp;F preferred stock remain outstanding, the holders of
series&nbsp;F preferred stock are entitled to elect and remove directors in accordance with our restated certificate of incorporation. In addition, so long as at least 42,379,182 shares of
series&nbsp;G preferred stock remain outstanding, the holders of series&nbsp;G preferred stock are entitled to elect and remove directors in accordance with our restated certificates of
incorporation. In the event that less than 6,666,667 shares of series&nbsp;F preferred stock or less than 6,666,667 shares of series&nbsp;G preferred stock remain outstanding, but BTI Ventures
L.L.C. and its affiliates, which include KKR, beneficially own at least 10% of our outstanding common stock, BTI has the right to nominate the number of persons to serve as members of the board
determined in accordance with a formula set forth in the purchasers rights agreement. Currently there are seven BTI nominees sitting on our eleven seat board of directors. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;For
so long as at least 15,000,000 shares of series&nbsp;B preferred stock, series&nbsp;C preferred stock series&nbsp;D preferred stock, series&nbsp;H preferred stock and
series&nbsp;I preferred stock remain outstanding, the holders of this stock, voting together as a class, are entitled to elect and remove directors pursuant to our restated certificate of
incorporation. </FONT></P>

<P><FONT SIZE=2><B>BTI DRAG-ALONG RIGHTS  </B></FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;For so long as BTI or any of its affiliates beneficially own at least 20% of our outstanding common stock (assuming conversion into common stock of all shares
of our series preferred stock), holders of common stock and each series of preferred stock that are parties to the purchasers rights agreement are required to sell their shares in the event that BTI
Ventures L.L.C. or its affiliates agree to sell or transfer their shares, or to sell all or substantially all of our assets, to a third party. </FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2>10</FONT></P>

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<P><FONT SIZE=2><B>BTI VETO RIGHTS  </B></FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;The purchasers rights agreement provides that for so long as BTI or any of its affiliates beneficially owns at least 10% of the outstanding shares of our
common stock (assuming conversion into common stock of all shares of our series preferred stock) or the aggregate outstanding shares of our series&nbsp;F preferred stock and series&nbsp;G
preferred stock on an as converted basis, the approval of at least one BTI nominee on our board will be required for our board of directors to approve and authorize any of the following: any changes
in our capital structure, such as increases or decreases in the total authorized shares of our common stock and issuances of our capital stock; any payment of dividends or distributions on our capital
stock; subject to limited exceptions, any reclassification, combination, split, redemption or other acquisition of any shares of our capital stock; any individual incurrence of indebtedness exceeding
$25.0&nbsp;million; any change in the size or composition of our board or any board committee or creation of any board committee; subject to limited exceptions, any affiliate transaction; any hiring
or termination of a chief executive officer; any adoption or modification of our annual budget and business plan; any amendment or modification of any material provision of our senior notes indenture,
senior credit facility or any other material contract; any adoption, renewal or material modification of any material compensation or benefit plan or arrangement; any authorization of entering into a
new line of business; any consolidation, reorganization, recapitalization, merger or similar transaction; any transfer of our assets, including by pledge, in excess of $25.0&nbsp;million; subject to
limited exceptions, any acquisition of assets or securities for $25.0&nbsp;million or greater; any amendment to our certificate of incorporation or bylaws; any voting or similar arrangement
regarding our capital stock; any payment, discharge or satisfaction of any material claim or liability or the commencement of a material suit; any joint venture involving material assets or the
payment or receipt of more than $25.0&nbsp;million; any material license, contract or agreement; or any liquidation, dissolution or winding up of our company. </FONT></P>

<P><FONT SIZE=2><A
NAME="dg4168_item_5._interests_of_named_experts_and_counsel"> </A>
<A NAME="toc_dg4168_1"> </A>
<BR></FONT><FONT SIZE=2><B>Item 5.&nbsp;&nbsp;Interests of Named Experts and Counsel    <BR>  </B></FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;Not applicable. </FONT></P>

<P><FONT SIZE=2><A
NAME="dg4168_item_6._indemnification_of_directors_and_officers"> </A>
<A NAME="toc_dg4168_2"> </A>
<BR></FONT><FONT SIZE=2><B>Item 6.&nbsp;&nbsp;Indemnification of Directors and Officers    <BR>  </B></FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;The Company is a Delaware corporation. Reference is made to Section&nbsp;102(b)(7) of the Delaware General Corporation Law (the "DGCL"), which
enables a corporation in its original certificate of incorporation or an amendment thereto to eliminate or limit the personal liability of a director for violations of the director's fiduciary duty,
except (i)&nbsp;for any breach of the director's duty of loyalty to the corporation or its stockholders, (ii)&nbsp;for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii)&nbsp;pursuant to Section&nbsp;174 of the DGCL (providing for liability of directors for unlawful payments of dividends of unlawful stock
purchase or redemptions), or (iv)&nbsp;for any transaction from which a director derived an improper personal benefit. Reference is also made to Section&nbsp;145 of the DGCL, which provides that a
corporation may indemnify any person, including an officer or director, who is, or is threatened to be made, party to any threatened, pending or completed legal action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in the right of such corporation), by reason of the fact that such person was an officer, director, employee or agent of
such corporation or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation or enterprise. The indemnity may include expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, provided such officer, director,
employee or agent acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the corporation's best interest and, for criminal proceedings, had no reasonable cause to
believe that his conduct was unlawful. A Delaware corporation may indemnify any officer or director in an action by or in the right of the corporation </FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2>11</FONT></P>

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<A NAME="page_dg4168_1_12"> </A>

<P><FONT SIZE=2>
under the same conditions, except that no indemnification is permitted without judicial approval if the officer or director is adjudged to be liable to the corporation. Where an officer or director is
successful on the merits or otherwise in the defense of any action referred to above, the corporation must indemnify him against the expenses that such officer or director actually and reasonably
incurred. The Company's Restated Articles of Incorporation (filed as Exhibit&nbsp;4(a)) provide for indemnification of the officers and directors to the full extent permitted by applicable law. </FONT></P>


<P><FONT SIZE=2><A
NAME="dg4168_item_7._exemption_from_registration_claimed"> </A>
<A NAME="toc_dg4168_3"> </A>
<BR></FONT><FONT SIZE=2><B>Item 7.&nbsp;&nbsp;Exemption from Registration Claimed    <BR>  </B></FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;Not applicable. </FONT></P>

<P><FONT SIZE=2><A
NAME="dg4168_item_8._exhibits"> </A>
<A NAME="toc_dg4168_4"> </A>
<BR></FONT><FONT SIZE=2><B>Item 8.&nbsp;&nbsp;Exhibits    <BR>  </B></FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;See the Exhibit Index on Page 16. </FONT></P>


<P><FONT SIZE=2><A
NAME="dg4168_item_9._undertakings"> </A>
<A NAME="toc_dg4168_5"> </A>
<BR></FONT><FONT SIZE=2><B>Item 9.&nbsp;&nbsp;Undertakings    <BR>  </B></FONT></P>

<UL>
<DL compact>
<DT><FONT SIZE=2>(a)</FONT></DT><DD><FONT SIZE=2>The
undersigned Registrant hereby undertakes:
<BR><BR></FONT>
<DL compact>
<DT><FONT SIZE=2>(1)</FONT></DT><DD><FONT SIZE=2>To
file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
<BR><BR></FONT>
<DL compact>
<DT><FONT SIZE=2>(i)</FONT></DT><DD><FONT SIZE=2>To
include any prospectus required by Section&nbsp;10(a)(3) of the Securities Act;
<BR><BR></FONT></DD><DT><FONT SIZE=2>(ii)</FONT></DT><DD><FONT SIZE=2>To
reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement;
<BR><BR></FONT></DD><DT><FONT SIZE=2>(iii)</FONT></DT><DD><FONT SIZE=2>To
include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement; </FONT></DD></DL>
</DD></DL>
</DD></DL>
</UL>
<UL>
<UL>
<UL>

<P><FONT SIZE=2><I>provided, however,</I></FONT><FONT SIZE=2> that paragraphs (a)(1)(i)&nbsp;and (a)(1)(ii)&nbsp;shall not apply to information contained in periodic reports filed by the
Registrant pursuant to Section&nbsp;13 or Section&nbsp;15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"); that are incorporated by reference in this Registration
Statement. </FONT></P>

</UL>
<DL compact>
<DT><FONT SIZE=2>(2)</FONT></DT><DD><FONT SIZE=2>That,
for the purpose of determining any liability under the Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
<BR><BR></FONT></DD><DT><FONT SIZE=2>(3)</FONT></DT><DD><FONT SIZE=2>To
remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. </FONT></DD></DL>
</UL>
</UL>
<BR>
<UL>
<DL compact>
<DT><FONT SIZE=2>(b)</FONT></DT><DD><FONT SIZE=2>The
undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant's Annual Report pursuant to
section&nbsp;13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section&nbsp;15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
<BR><BR></FONT></DD><DT><FONT SIZE=2>(c)</FONT></DT><DD><FONT SIZE=2>Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the
foregoing </FONT></DD></DL>
</UL>
<P ALIGN="CENTER"><FONT SIZE=2>12</FONT></P>

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<A NAME="page_dg4168_1_13"> </A>
<UL>
<UL>

<P><FONT SIZE=2>provisions,
or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer
or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. </FONT></P>

</UL>
</UL>
<P ALIGN="CENTER"><FONT SIZE=2>13</FONT></P>

<HR NOSHADE>
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<UL>
<UL>
</UL>
</UL>
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NAME="page_jc4168_1_14"> </A> </FONT></P>

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<P ALIGN="CENTER"><FONT SIZE=2><A
NAME="jc4168_signatures"> </A>
<A NAME="toc_jc4168_1"> </A>
<BR></FONT><FONT SIZE=2><B>SIGNATURES    <BR>  </B></FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;Pursuant to the requirements of the Securities Act the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for
filing on Form&nbsp;S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of Kansas City, State of
Missouri on August&nbsp;30, 2001. </FONT></P>

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<TR VALIGN="TOP">
<TD WIDTH="46%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD COLSPAN=3><FONT SIZE=2><B>BIRCH TELECOM,&nbsp;INC.</B></FONT></TD>
</TR>
<TR VALIGN="TOP">
<TD WIDTH="46%"><FONT SIZE=2><BR>
&nbsp;</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2><BR>&nbsp;</FONT></TD>
<TD WIDTH="5%"><FONT SIZE=2><BR>
By:</FONT></TD>
<TD WIDTH="1%"><FONT SIZE=2><BR>&nbsp;</FONT></TD>
<TD WIDTH="45%" ALIGN="CENTER"><FONT SIZE=2><BR>
/s/&nbsp;</FONT><FONT SIZE=2>GREGORY C. LAWHON</FONT><FONT SIZE=2>&nbsp;&nbsp;&nbsp;</FONT><HR NOSHADE><FONT SIZE=2> Gregory C. Lawhon<BR>
Senior Vice President of Public Policy<BR>
and General Counsel</FONT></TD>
</TR>
</TABLE>
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<P ALIGN="CENTER"><FONT SIZE=2><A
NAME="jc4168_power_of_attorney"> </A>
<A NAME="toc_jc4168_2"> </A>
<BR></FONT><FONT SIZE=2><B>POWER OF ATTORNEY    <BR>  </B></FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below, hereby constitutes and appoints Gregory C. Lawhon his true and lawful
attorney-in-fact and agent, with full power of substitution and reimbursement, for him and in his name, place and stead, in any and all capacities, to sign any or all
amendments or supplements to this Registration Statement and to file the same with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or appropriate to be done with respect to this
Registration Statement or any amendments or supplements hereto in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all
that said attorney-in-fact and agent, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;Pursuant
to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the date
indicated. </FONT></P>

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<TH WIDTH="46%" ALIGN="CENTER"><FONT SIZE=1><B>Signature</B></FONT><HR NOSHADE></TH>
<TH WIDTH="3%"><FONT SIZE=1>&nbsp;</FONT></TH>
<TH WIDTH="28%" ALIGN="CENTER"><FONT SIZE=1><B>Title</B></FONT><HR NOSHADE></TH>
<TH WIDTH="3%"><FONT SIZE=1>&nbsp;</FONT></TH>
<TH WIDTH="22%" ALIGN="CENTER"><FONT SIZE=1><B>Date Signed</B></FONT><HR NOSHADE></TH>
</TR>
<TR VALIGN="BOTTOM">
<TD WIDTH="46%" ALIGN="CENTER"><FONT SIZE=2><BR>
&nbsp;</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2><BR>&nbsp;</FONT></TD>
<TD WIDTH="28%" VALIGN="CENTER"><FONT SIZE=2><BR>
&nbsp;</FONT></TD>
<TD WIDTH="3%" VALIGN="CENTER"><FONT SIZE=2><BR>&nbsp;</FONT></TD>
<TD WIDTH="22%" VALIGN="CENTER"><FONT SIZE=2><BR>
&nbsp;</FONT></TD>
</TR>
<TR VALIGN="BOTTOM">
<TD WIDTH="46%" ALIGN="CENTER"><FONT SIZE=2>/s/&nbsp;</FONT><FONT SIZE=2>RICHARD A. JALKUT</FONT><FONT SIZE=2>&nbsp;&nbsp;&nbsp;</FONT><HR NOSHADE><FONT SIZE=2> Richard A. Jalkut</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="28%" VALIGN="CENTER"><FONT SIZE=2>Chairman of the Board</FONT></TD>
<TD WIDTH="3%" VALIGN="CENTER"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="22%" ALIGN="CENTER" VALIGN="CENTER"><FONT SIZE=2>August 22, 2001</FONT></TD>
</TR>
<TR VALIGN="TOP">
<TD WIDTH="46%" ALIGN="CENTER"><FONT SIZE=2><BR>
/s/&nbsp;</FONT><FONT SIZE=2>DAVID E. SCOTT</FONT><FONT SIZE=2>&nbsp;&nbsp;&nbsp;</FONT><HR NOSHADE><FONT SIZE=2> David E. Scott</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2><BR>&nbsp;</FONT></TD>
<TD WIDTH="28%" VALIGN="CENTER"><FONT SIZE=2><BR>
President, Chief Executive Officer, Chief Operating Officer and Director (Principal Executive Officer)</FONT></TD>
<TD WIDTH="3%" VALIGN="CENTER"><FONT SIZE=2><BR>&nbsp;</FONT></TD>
<TD WIDTH="22%" ALIGN="CENTER" VALIGN="CENTER"><FONT SIZE=2><BR>
August 30, 2001</FONT></TD>
</TR>
</TABLE>
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<P ALIGN="CENTER"><FONT SIZE=2>14</FONT></P>

<HR NOSHADE>
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<A NAME="page_jc4168_1_15"> </A>
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<TABLE WIDTH="100%" BORDER=0 CELLSPACING=0 CELLPADDING=0>
<TR VALIGN="TOP">
<TD WIDTH="46%" ALIGN="CENTER"><BR><HR NOSHADE><FONT SIZE=2> Henry H. Bradley</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2><BR>&nbsp;</FONT></TD>
<TD WIDTH="28%" VALIGN="CENTER"><FONT SIZE=2><BR>
Director</FONT></TD>
<TD WIDTH="3%" VALIGN="CENTER"><FONT SIZE=2><BR>&nbsp;</FONT></TD>
<TD WIDTH="22%" ALIGN="CENTER" VALIGN="CENTER"><FONT SIZE=2><BR>
August&nbsp;&nbsp;&nbsp;, 2001</FONT></TD>
</TR>
<TR VALIGN="BOTTOM">
<TD WIDTH="46%" ALIGN="CENTER"><FONT SIZE=2><BR>
/s/&nbsp;</FONT><FONT SIZE=2>ADAM H. CLAMMER</FONT><FONT SIZE=2>&nbsp;&nbsp;&nbsp;</FONT><HR NOSHADE><FONT SIZE=2> Adam H. Clammer</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2><BR>&nbsp;</FONT></TD>
<TD WIDTH="28%" VALIGN="CENTER"><FONT SIZE=2><BR>
Director</FONT></TD>
<TD WIDTH="3%" VALIGN="CENTER"><FONT SIZE=2><BR>&nbsp;</FONT></TD>
<TD WIDTH="22%" ALIGN="CENTER" VALIGN="CENTER"><FONT SIZE=2><BR>
August 21, 2001</FONT></TD>
</TR>
<TR VALIGN="BOTTOM">
<TD WIDTH="46%" ALIGN="CENTER"><FONT SIZE=2><BR>
/s/&nbsp;</FONT><FONT SIZE=2>MORY EJABAT</FONT><FONT SIZE=2>&nbsp;&nbsp;&nbsp;</FONT><HR NOSHADE><FONT SIZE=2> Mory Ejabat</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2><BR>&nbsp;</FONT></TD>
<TD WIDTH="28%" VALIGN="CENTER"><FONT SIZE=2><BR>
Director</FONT></TD>
<TD WIDTH="3%" VALIGN="CENTER"><FONT SIZE=2><BR>&nbsp;</FONT></TD>
<TD WIDTH="22%" ALIGN="CENTER" VALIGN="CENTER"><FONT SIZE=2><BR>
August 20, 2001</FONT></TD>
</TR>
<TR VALIGN="BOTTOM">
<TD WIDTH="46%" ALIGN="CENTER"><FONT SIZE=2><BR>
/s/&nbsp;</FONT><FONT SIZE=2>JAMES H. GREENE, JR.</FONT><FONT SIZE=2>&nbsp;&nbsp;&nbsp;</FONT><HR NOSHADE><FONT SIZE=2> James H. Greene, Jr.</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2><BR>&nbsp;</FONT></TD>
<TD WIDTH="28%" VALIGN="CENTER"><FONT SIZE=2><BR>
Director</FONT></TD>
<TD WIDTH="3%" VALIGN="CENTER"><FONT SIZE=2><BR>&nbsp;</FONT></TD>
<TD WIDTH="22%" ALIGN="CENTER" VALIGN="CENTER"><FONT SIZE=2><BR>
August 21, 2001</FONT></TD>
</TR>
<TR VALIGN="BOTTOM">
<TD WIDTH="46%" ALIGN="CENTER"><FONT SIZE=2><BR>
/s/&nbsp;</FONT><FONT SIZE=2>CLINT JOHNSTONE</FONT><FONT SIZE=2>&nbsp;&nbsp;&nbsp;</FONT><HR NOSHADE><FONT SIZE=2> Clint Johnstone</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2><BR>&nbsp;</FONT></TD>
<TD WIDTH="28%" VALIGN="CENTER"><FONT SIZE=2><BR>
Director</FONT></TD>
<TD WIDTH="3%" VALIGN="CENTER"><FONT SIZE=2><BR>&nbsp;</FONT></TD>
<TD WIDTH="22%" ALIGN="CENTER" VALIGN="CENTER"><FONT SIZE=2><BR>
August 21, 2001</FONT></TD>
</TR>
<TR VALIGN="BOTTOM">
<TD WIDTH="46%" ALIGN="CENTER"><FONT SIZE=2><BR>
/s/&nbsp;</FONT><FONT SIZE=2>HENRY R. KRAVIS</FONT><FONT SIZE=2>&nbsp;&nbsp;&nbsp;</FONT><HR NOSHADE><FONT SIZE=2> Henry R. Kravis</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2><BR>&nbsp;</FONT></TD>
<TD WIDTH="28%" VALIGN="CENTER"><FONT SIZE=2><BR>
Director</FONT></TD>
<TD WIDTH="3%" VALIGN="CENTER"><FONT SIZE=2><BR>&nbsp;</FONT></TD>
<TD WIDTH="22%" ALIGN="CENTER" VALIGN="CENTER"><FONT SIZE=2><BR>
August 21, 2001</FONT></TD>
</TR>
<TR VALIGN="TOP">
<TD WIDTH="46%" ALIGN="CENTER"><BR><HR NOSHADE><FONT SIZE=2> Alexander Navab, Jr.</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2><BR>&nbsp;</FONT></TD>
<TD WIDTH="28%" VALIGN="CENTER"><FONT SIZE=2><BR>
Director</FONT></TD>
<TD WIDTH="3%" VALIGN="CENTER"><FONT SIZE=2><BR>&nbsp;</FONT></TD>
<TD WIDTH="22%" ALIGN="CENTER" VALIGN="CENTER"><FONT SIZE=2><BR>
August&nbsp;&nbsp;&nbsp;, 2001</FONT></TD>
</TR>
<TR VALIGN="TOP">
<TD WIDTH="46%" ALIGN="CENTER"><BR><HR NOSHADE><FONT SIZE=2> Thomas R. Palmer</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2><BR>&nbsp;</FONT></TD>
<TD WIDTH="28%" VALIGN="CENTER"><FONT SIZE=2><BR>
Director</FONT></TD>
<TD WIDTH="3%" VALIGN="CENTER"><FONT SIZE=2><BR>&nbsp;</FONT></TD>
<TD WIDTH="22%" ALIGN="CENTER" VALIGN="CENTER"><FONT SIZE=2><BR>
August&nbsp;&nbsp;&nbsp;, 2001</FONT></TD>
</TR>
<TR VALIGN="BOTTOM">
<TD WIDTH="46%" ALIGN="CENTER"><FONT SIZE=2><BR>
/s/&nbsp;</FONT><FONT SIZE=2>GEORGE R. ROBERTS</FONT><FONT SIZE=2>&nbsp;&nbsp;&nbsp;</FONT><HR NOSHADE><FONT SIZE=2> George R. Roberts</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2><BR>&nbsp;</FONT></TD>
<TD WIDTH="28%" VALIGN="CENTER"><FONT SIZE=2><BR>
Director</FONT></TD>
<TD WIDTH="3%" VALIGN="CENTER"><FONT SIZE=2><BR>&nbsp;</FONT></TD>
<TD WIDTH="22%" ALIGN="CENTER" VALIGN="CENTER"><FONT SIZE=2><BR>
August 21, 2001</FONT></TD>
</TR>
</TABLE>
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<P ALIGN="CENTER"><FONT SIZE=2>15</FONT></P>

<HR NOSHADE>
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NAME="page_ka4168_1_16"> </A> </FONT></P>

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<P ALIGN="CENTER"><FONT SIZE=2><A
NAME="ka4168_exhibit_index"> </A>
<A NAME="toc_ka4168_1"> </A>
<BR></FONT><FONT SIZE=2><B>Exhibit Index    <BR>  </B></FONT></P>

<P><FONT SIZE=2>Item
8.&nbsp;&nbsp;Exhibits </FONT></P>

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<TR VALIGN="BOTTOM">
<TH WIDTH="5%" ALIGN="CENTER"><FONT SIZE=1>&nbsp;</FONT><BR></TH>
<TH WIDTH="3%"><FONT SIZE=1>&nbsp;</FONT></TH>
<TH WIDTH="6%" ALIGN="LEFT"><FONT SIZE=1>&nbsp;</FONT><BR></TH>
<TH WIDTH="3%"><FONT SIZE=1>&nbsp;</FONT></TH>
<TH WIDTH="84%" ALIGN="LEFT"><FONT SIZE=1>&nbsp;</FONT><BR></TH>
</TR>
<TR VALIGN="TOP">
<TD WIDTH="5%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="6%" ALIGN="RIGHT"><FONT SIZE=2>4.1</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="84%"><FONT SIZE=2>Form of Restated Articles of Incorporation of the Company (incorporated by reference to the exhibits in the Company's Quarterly Report on Form 10-Q as filed on August 14, 2001, File No. 333-62797, for the quarterly period
ended June 30, 2001).</FONT></TD>
</TR>
<TR VALIGN="TOP">
<TD WIDTH="5%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="6%" ALIGN="RIGHT"><FONT SIZE=2>4.2</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="84%"><FONT SIZE=2>Form of Restated By-Laws of the Company (incorporated by reference to the exhibits in the Company's Quarterly Report on Form 10-Q as filed on May 15, 2001, File No. 333-62797, for the quarterly period ended March 31,
2001).</FONT></TD>
</TR>
<TR VALIGN="TOP">
<TD WIDTH="5%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="6%" ALIGN="RIGHT"><FONT SIZE=2>4.3</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="84%"><FONT SIZE=2>Birch Telecom, Inc. 1998 Stock Option Plan (incorporated by reference to the exhibits in the Company's annual report on Form 10-K/A as filed on May 7, 1999, File No. 333-62797, for the fiscal year ended December 31,
1998).</FONT></TD>
</TR>
<TR VALIGN="TOP">
<TD WIDTH="5%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="6%" ALIGN="RIGHT"><FONT SIZE=2>4.4</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="84%"><FONT SIZE=2>2000 Equity Participation Plan of Birch Telecom, Inc. (incorporated by reference to the exhibits in the Company's registration statement on Form S-1/A as filed on March 31, 2000, File No. 333-33156).</FONT></TD>
</TR>
<TR VALIGN="TOP">
<TD WIDTH="5%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="6%" ALIGN="RIGHT"><FONT SIZE=2>4.5</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="84%"><FONT SIZE=2>2001 Equity Participation Plan of Birch Telecom, Inc. (incorporated by reference to the exhibits in the Company's Quarterly Report on Form 10-Q as filed on August 14, 2001, File No. 333-62797, for the quarterly period
ended June 30, 2001).</FONT></TD>
</TR>
<TR VALIGN="TOP">
<TD WIDTH="5%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="6%" ALIGN="RIGHT"><FONT SIZE=2>5.1</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="84%"><FONT SIZE=2>Opinion of Counsel regarding the legality of the Common Stock being registered.</FONT></TD>
</TR>
<TR VALIGN="TOP">
<TD WIDTH="5%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="6%" ALIGN="RIGHT"><FONT SIZE=2>23.1</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="84%"><FONT SIZE=2>Consent of Independent Auditors.</FONT></TD>
</TR>
<TR VALIGN="TOP">
<TD WIDTH="5%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="6%" ALIGN="RIGHT"><FONT SIZE=2>23.2</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="84%"><FONT SIZE=2>Consent of Counsel (included in Exhibit 5.1).</FONT></TD>
</TR>
<TR VALIGN="TOP">
<TD WIDTH="5%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="6%" ALIGN="RIGHT"><FONT SIZE=2>24.1</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="84%"><FONT SIZE=2>Power of Attorney (included on signature page).</FONT></TD>
</TR>
</TABLE>
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<P ALIGN="CENTER"><FONT SIZE=2>16</FONT></P>

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<BR>
<P><br><A NAME="01CHI4168_1">QuickLinks</A><br></P><!-- TOC_BEGIN -->
<FONT SIZE=2><A HREF="#toc_ba4168_1">Calculation of Registration Fee</A></FONT><BR>
<!-- TOC_BEGIN -->
<FONT SIZE=2><A HREF="#toc_de4168_1">PART I</A></FONT><BR>
<UL>
<FONT SIZE=2><A HREF="#toc_de4168_2">Item 1. Plan Information</A></FONT><BR>
<FONT SIZE=2><A HREF="#toc_de4168_3">Item 2. Registration Information and Employee Plan Annual Information</A></FONT><BR>
</UL>
<FONT SIZE=2><A HREF="#toc_de4168_4">PART II</A></FONT><BR>
<UL>
<FONT SIZE=2><A HREF="#toc_de4168_5">Item 3. Incorporation of Documents by Reference</A></FONT><BR>
<FONT SIZE=2><A HREF="#toc_de4168_6">Item 4. Description of Securities</A></FONT><BR>
</UL>
<!-- TOC_BEGIN -->
<UL>
<FONT SIZE=2><A HREF="#toc_dg4168_1">Item 5. Interests of Named Experts and Counsel</A></FONT><BR>
<FONT SIZE=2><A HREF="#toc_dg4168_2">Item 6. Indemnification of Directors and Officers</A></FONT><BR>
<FONT SIZE=2><A HREF="#toc_dg4168_3">Item 7. Exemption from Registration Claimed</A></FONT><BR>
<FONT SIZE=2><A HREF="#toc_dg4168_4">Item 8. Exhibits</A></FONT><BR>
<FONT SIZE=2><A HREF="#toc_dg4168_5">Item 9. Undertakings</A></FONT><BR>
</UL>
<!-- TOC_BEGIN -->
<FONT SIZE=2><A HREF="#toc_jc4168_1">SIGNATURES</A></FONT><BR>
<FONT SIZE=2><A HREF="#toc_jc4168_2">POWER OF ATTORNEY</A></FONT><BR>
<!-- TOC_BEGIN -->
<FONT SIZE=2><A HREF="#toc_ka4168_1">Exhibit Index</A></FONT><BR>
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[{"type": "S-8", "sequence": "1", "filename": "a2058421zs-8.htm", "description": "FORM S-8", "secsgml_size_bytes": 82311}]
{"company-data": {"conformed-name": "BIRCH TELECOM INC /MO", "cik": "0001057523", "assigned-sic": "4813", "irs-number": "431766929", "state-of-incorporation": "DE", "fiscal-year-end": "1231"}, "filing-values": {"form-type": "S-8", "act": "33", "file-number": "333-68692", "film-number": "1728006"}, "business-address": {"street1": "2020 BALTIMORE AVE", "city": "KANSAS CITY", "state": "MO", "zip": "64108", "phone": "8163003000"}, "mail-address": {"street1": "2020 BALTIMORE AVE", "city": "KANSAS CITY", "state": "MO", "zip": "64108"}}
Prepared by MERRILL CORPORATION
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As filed with the Securities and Exchange Commission on August 30, 2001
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
BIRCH TELECOM, INC.
(Exact name of registrant as specified in its charter)
DELAWARE
43-1766929
(State of other jurisdiction
of incorporation or organization)
(I.R.S. Employer
Identification No.)
2020 Baltimore Avenue
64108
Kansas City, Missouri
(Address of principal
executive offices)
(Zip Code)
BIRCH TELECOM, INC. 1998 STOCK OPTION PLAN
2000 EQUITY PARTICIPATION PLAN OF BIRCH TELECOM, INC.
2001 EQUITY PARTICIPATION PLAN OF BIRCH TELECOM, INC.
(Full titles of the Plans)
Gregory C. Lawhon
Senior Vice President of Public Policy and General Counsel
2020 Baltimore Avenue
Kansas City, Missouri 64108
(816) 300-3000
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copy
to:
Raymond Y. Lin, Esq.
Latham & Watkins
885 Third Avenue
New York, New York 10022
(212) 906-1200
(212) 751-4864 (fax)
Calculation of Registration Fee
Title of Securities to be
Registered
Amount
of Shares
to be
Registered(1)
Proposed
Maximum
Offering Price
Per Share(2)
Proposed
Maximum
Aggregate
Offering Price(2)
Amount of
Registration
Fee
Common Stock $0.001 par value
150,847,718
$1.08; $6.60; $1.19; $0.28
$157,684,094.78
$39,421.02
(1)
Represents
the maximum number of shares of Birch Telecom, Inc. common stock, par value $0.001 per share ("Common Stock"), that may be acquired under (a) the Birch Telecom, Inc.
1998 Stock Option Plan (the "1998 Plan"), (b) the 2000 Equity Participation Plan of Birch Telecom, Inc. (the "2000 Plan"), and (c) the 2001 Equity Participation Plan of Birch
Telecom, Inc. (the "2001 Plan").
(2)
For
purposes of computing the registration fee only. Pursuant to Rule 457(h) under the Securities Act of 1933, as amended, the Proposed Maximum Offering Price Per Share is
based upon (a) the weighted average exercise price per share ($1.08) of outstanding options to purchase 9,647,718 shares under the 1998 Plan, (b) the weighted average exercise price per
share ($6.60) of outstanding options to purchase 911,743 shares under the 2000 Plan, (c) the weighted average exercise price per share ($1.19) of outstanding options to purchase 112,622,245
shares under the 2001 Plan, and (d) for the remaining 27,666,012 shares, $0.28, the book value per share of Common stock as of June 30, 2001. No additional options may be granted under
the 1998 Plan.
PART I
Item 1.  Plan Information
Not required to be filed with this Registration Statement.
Item 2.  Registration Information and Employee Plan Annual Information
Not required to be filed with this Registration Statement.
PART II
Item 3.  Incorporation of Documents by Reference
The following documents filed with the Securities and Exchange Commission by Birch Telecom, Inc., a Delaware corporation (the "Company"), are
incorporated as of their respective dates in this Registration Statement by reference:
A.
The
Company's Annual Report on Form 10-K filed April 2, 2001 (File No. 333-62797), for the fiscal year ended December 31, 2000.
B.
The
Company's Quarterly Report on Form 10-Q filed May 15, 2001 (File No. 333-62797), for the quarterly period ended March 31,
2001.
C.
The
Company's Quarterly Report on Form 10-Q filed August 14, 2001 (File No. 333-62797), for the quarterly period ended June 30,
2001.
All
documents filed by the Company or by the Birch Telecom, Inc. 1998 Stock Option Plan, the 2000 Equity Participation Plan of Birch Telecom, Inc. or the 2001 Equity
Participation Plan of Birch Telecom, Inc. pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective amendment which indicates that
all securities offered have been sold or which deregisters all securities then remaining unsold are incorporated by reference in this Registration Statement and are a part hereof from the date of
filing such documents.
Any
statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained herein or in any other subsequently filed document which is also or is deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Item 4.  Description of Securities
The following summary description of our capital stock is qualified in its entirety by reference to our Restated Certificate of Incorporation, as amended (the
"Certificate of Incorporation") and our Restated Bylaws (the "Bylaws"), copies of which are filed as exhibits to this Registration Statement.
Our
authorized capital stock consists of: (i) 850,000,000 shares of common stock, and (ii) 400,000,000 shares of preferred stock, of which (a) 8,750,000 shares
are designated series B preferred stock, (b) 8,500,000 shares are designated series C preferred stock, (c) 3,000,000 shares are designated series D preferred stock,
(d) 30,000,000 shares are designated series F preferred stock, (e) 329,000,000 shares are designated as series G preferred stock, (f) 6,579,000 shares are designated
as series H preferred stock, and (g) 2,223,000 shares are designated as series I preferred stock. As of August 1, 2001, there were (i) 8,641,631 shares of common
stock outstanding, (ii) 7,558,826 shares of series B preferred stock outstanding, (iii) 6,270,527 shares of series C preferred stock outstanding, (iv) 2,109,843
shares of series D preferred stock outstanding, (v) 23,596,492 shares of series F preferred stock outstanding, (vi) 300,000,000 shares of series G preferred stock
outstanding, (vii) 1,013,213 shares
2
of series H preferred stock outstanding, (viii) 758,695 shares of series I preferred stock outstanding, (ix) 27,666,012 shares of common stock reserved for issuance upon
the exercise of authorized but unissued stock options to purchase shares of common stock under the 2000 Plan and the 2001 Plan,
(x) 123,181,706 shares of common stock issuable upon the exercise of outstanding stock options, and (xi) 2,530,473 shares issuable upon the exercise of outstanding warrants.
COMMON STOCK
Holders of our common stock are entitled to one vote for each share held on all matters submitted to a vote of stockholders. These voting rights are exercised
together with the rights of the preferred stock, except that the common stock has the right to elect one member of senior management to the Board of Directors so long as a certain number of shares of
preferred stock remain outstanding. The common stock does not have cumulative voting rights. Except as otherwise required by law, actions at Birch's stockholders' meetings require the affirmative vote
of a majority of the shares represented at the meeting and that a quorum be present. Holders of common stock are entitled, subject to the preferences of the preferred stock and restrictions imposed by
the terms of certain existing debt agreements of Birch (the "Debt Agreements"), to receive such dividends, if any, as may be declared by the Board out of funds legally available therefor. For a
discussion of the restrictions imposed by the Debt Agreements regarding the payment of dividends, see the section entitled "Description of the Exchange Notes—Certain Covenants" in our
prospectus included in Registration Statement No. 333-62797 on Form S-4, declared effective on February 1, 1999, relating to certain of our debt securities
which is incorporated by reference herein. The holders of common stock have no preemptive, redemption, conversion or sinking fund rights. In the event of our liquidation, dissolution or winding up,
holders of common stock are entitled to share ratably in our assets which are legally available for distribution, if any, remaining after the payment of all our debts and liabilities and the
liquidation preference of any outstanding preferred stock.
PREFERRED STOCK
Series B Preferred Stock
Dividends.
The holders of series B preferred stock are entitled, subject to the restrictions imposed by the
terms of the Debt Agreements, to receive cumulative dividends at the rate of 15% per annum. The series B preferred stock ranks senior to the series C preferred stock and the common
stock,
pari passu
with the series D, series H, and series I preferred stock, and junior to the series F and series G
preferred stock as to dividends. Additional dividends will accrue on the accrued, unpaid dividends on the series B preferred stock.
Liquidation Preference.
Upon our liquidation, dissolution, or winding up, holders of series B preferred stock
will be entitled to a per share liquidation preference of $1.52 plus any accrued, unpaid dividends, subject to the prior payment in full of all of our debts and liabilities. The series B
preferred stock ranks senior to the series C preferred stock and the common stock,
pari passu
with the series H preferred stock, and
junior to the series D, series F, series G and series I preferred stock as to liquidation.
Conversion.
The shares of series B preferred stock may, at the option of the holder, be converted at any time
into fully paid and nonassessable shares of common stock. All outstanding shares of series B preferred stock will be automatically converted into shares of common stock immediately prior to the
closing of an initial public offering of the common stock meeting certain requirements. The number of shares of common stock to which a holder of series B preferred stock is entitled upon
conversion is the product obtained by multiplying the applicable preferred stock rate (as defined in the Certificate of Incorporation) then in effect by the number of shares of series B
preferred stock being converted. The preferred stock rate is subject to adjustment for stock dividends, combinations, splits and the like. In
3
addition, the preferred stock rate for the series B preferred stock is subject to adjustment upon the issuance of additional shares of common stock, subject to certain exceptions.
Voting Rights.
Subject to certain exceptions, the holders of series B preferred stock are entitled to cast one
vote for each share of series B preferred stock held by them on an as-converted to common stock basis. Such votes will be cast together with those cast by the holders of
series C, series D, series F, series G, series H, and series I preferred stock and common stock and not as a separate class, except as otherwise provided
herein or required by applicable law. The series B, series C, series D, series H, and series I preferred stock, voting as a single class, have the right to elect one
member of the Board of Directors so long as a certain number of shares of series B, series C, series D, series F, series G, series H, and series I
preferred stock remain outstanding. The series B preferred stock does not have cumulative voting rights.
Series C Preferred Stock
Dividends.
The holders of series C preferred stock are entitled, subject to the restrictions imposed by the
terms of the Debt Agreements, to receive non-cumulative dividends at the rate of 10% per annum. The series C preferred stock ranks senior to the common stock and junior to the
series B, series D, series F, series G, series H, and series I preferred stock as to dividends.
Liquidation Preference.
Upon our liquidation, dissolution, or winding up, holders of series C preferred stock
will be entitled to a per share liquidation preference of $1.52 plus any declared, unpaid dividends, subject to the prior payment in full of all of our debts and liabilities. The series C
preferred stock ranks senior to the common stock and junior to the series B, series D, series F, series G, series H, and series I preferred stock as to
liquidation.
Conversion.
The shares of series C preferred stock may, at the option of the holder, be converted at any time
into fully paid and nonassessable shares of common stock. All outstanding shares of series C preferred stock will be automatically converted into shares of common stock immediately prior to the
closing of an initial public offering of the common stock meeting certain requirements. The number of shares of common stock to which a holder of series C preferred stock is entitled upon
conversion is the product obtained by multiplying the applicable preferred stock rate (as defined in the Certificate of Incorporation) then in effect by the number of shares of series C
preferred stock being converted. The preferred stock rate is subject to adjustment for stock dividends, combinations, splits and the like. In addition, the preferred stock rate for the series C
preferred stock is subject to adjustment upon the issuance of additional shares of common stock, subject to certain exceptions.
Voting Rights.
Subject to certain exceptions, the holders of series C preferred stock are entitled to cast one
vote for each share of series C preferred stock held by them on an as-converted to common stock basis. Such votes will be cast together with those cast by the holders of
series B, series D, series F, series G, series H, and series I preferred stock and common stock and not as a separate class, except as otherwise provided
herein or required by applicable law. The series B, series C, series D, series H, and series I preferred stock, voting as a single class, have the right to elect one
member of the Board of Directors so long as a certain number of shares of series B, series C, series D, series H, and series I preferred stock remain outstanding.
The series C preferred stock does not have cumulative voting rights.
Series D Preferred Stock
Dividends.
The holders of series D preferred stock are entitled, subject to the restrictions imposed by the
terms of the Debt Agreements, to receive cumulative dividends at the rate of 15% per annum. The series D preferred stock ranks senior to the series C preferred stock and the common
stock,
pari passu
with the series B, series H, and series I preferred stock, and junior to the series F and
4
series G preferred stock as to dividends. Additional dividends will accrue on the accrued, unpaid dividends on the series D preferred stock.
Liquidation Preference.
Upon our liquidation, dissolution, or winding up, holders of series D preferred stock
will be entitled to a per share liquidation preference of the greater of (i) $4.50 plus any accrued, unpaid dividends or (ii) the amount the holders of series D preferred stock
would have received upon the liquidation, dissolution, or winding up had all shares of series D preferred stock and all shares of series F, series G, and series I preferred
stock been converted to common stock, subject to the prior payment in full of all of our debts and liabilities. The series D preferred stock ranks senior to the series B,
series H, and series C preferred stock and the common stock and
pari passu
with the series F, series G, and series I
preferred stock as to liquidation.
Conversion.
The shares of series D preferred stock may, at the option of the holder, be converted at any time
into fully paid and nonassessable shares of common stock. All outstanding shares of series D preferred stock will be automatically converted into shares of common stock immediately prior to the
closing of an initial public offering of the common stock meeting certain requirements. The number of shares of common stock to which a holder of series D preferred stock is entitled upon
conversion is the product obtained by multiplying the applicable preferred stock rate (as defined in the Certificate of Incorporation) then in effect by the number of shares of series D
preferred stock being converted. The preferred stock rate is subject to adjustment for stock dividends, combinations, splits and the like. In addition, the preferred stock rate for the series D
preferred stock is subject to adjustment upon the issuance of additional shares of common stock, subject to certain exceptions.
Voting Rights.
Subject to certain exceptions, the holders of series D preferred stock are entitled to cast one
vote for each share of series D preferred stock held by them on an as-converted to common stock basis. Such votes will be cast together with those cast by the holders of
series B, series C, series F, series G, series H, and series I preferred stock and common stock and not as a separate class, except as otherwise provided
herein or required by applicable law. The series B, series C, series D, series H, and series I preferred stock, voting as a single class, have the right to elect one
member of the Board of Directors so long as a certain number of shares of series B, series C, series D, series H, and series I preferred stock remain outstanding.
The series D preferred stock does not have cumulative voting rights.
Series F Preferred Stock
Dividends.
The holders of series F preferred stock are entitled, subject to the restrictions imposed by the
terms of the Debt Agreements, to receive quarterly cumulative dividends at the rate of 15% per annum. The series F preferred stock ranks senior to the series B, series C,
series D, series H, and series I preferred stock and the common stock and
pari passu
with the series G preferred stock as to
dividends. Additional dividends will accrue on the accrued, unpaid dividends on the series F preferred stock. The series F preferred stock is entitled to receive the amount of any
dividends paid on the common stock, as if the shares of series F preferred stock had been converted to common stock.
Liquidation Preference.
Upon our liquidation, dissolution, or winding up, holders of series F preferred stock
will be entitled to a per share liquidation preference of the greater of (i) the purchase price per share plus any accrued, unpaid dividends on each share of series F preferred stock or
(ii) the amount the holders of series F preferred stock would have received upon the liquidation, dissolution, or winding up had all shares of series D, series F,
series G, and series I preferred stock been converted to common stock, subject to the prior payment in full of all of our debts and liabilities. The series F preferred stock ranks
senior to the series B, series C, and series H preferred stock and the common stock and
pari passu
with the series D,
series G, and series I preferred stock as to liquidation.
5
Conversion.
The shares of series F preferred stock may, at the option of the holder, be converted at any time
into fully paid and nonassessable shares of common stock. All outstanding shares of series F preferred stock will be automatically converted into shares of common stock immediately prior to the
closing of an initial public offering of the common stock meeting certain requirements. The number of shares of common stock to which a holder of series F preferred stock is entitled upon
conversion is the product obtained by multiplying the applicable preferred stock rate (as defined in the Certificate of Incorporation) then in effect by the number of shares of series F
preferred stock being converted. The preferred stock rate is subject to adjustment for stock dividends, combinations, splits and the like. In addition, the preferred stock rate for the series F
preferred stock is subject to adjustment upon the issuance of additional shares of common stock, subject to certain exceptions.
Voting Rights.
Subject to certain exceptions, the holders of series F preferred stock are entitled to cast one
vote for each share of series F preferred stock held by them on an as-converted to common stock basis. Such votes will be cast together with those cast by the holders of
series B, series C, series D, series G, series H, and series I preferred stock and common stock and not as a separate class, except as otherwise provided
herein or required by applicable law. The series F has the right to elect a percentage of the members of the Board of Directors generally equal to the percentage of the common stock represented
by the series F preferred stock (assuming the conversion of all shares of preferred stock), rounding up so that the nominees of the holders of series F preferred stock will not represent
less than such proportionate interest. The series F preferred stock does not have cumulative voting rights. For as long as the outstanding shares of series F preferred stock represents
at least 5% or more of the outstanding shares of common stock (on an as converted basis), the approval of the holders of at least 75% of the then outstanding shares of series F preferred stock
is necessary for effecting or validating: (i) any amendment of the Certificate of Incorporation or Bylaws that adversely affects the rights of the series F preferred stock;
(ii) any authorization, increase in the authorized number or issuance of any capital stock ranking senior to or on parity with the series F preferred stock as to dividends, voting rights
or liquidation; (iii) any payment of dividends; (iv) subject to certain exceptions, the reclassification, combination, split or acquisition of any shares of our capital stock;
(v) any agreement regarding merger or sale of assets; (vi) subject to certain exceptions, the acquisition of assets or securities of any other person or entity, other than cash
acquisitions valued below a certain threshold; (vii) any joint venture or similar arrangement above a certain threshold; (viii) our liquidation, dissolution or winding up; or
(ix) any amendment of the above voting rights.
Redemption.
In the event of our breach of our Certificate of Incorporation or Bylaws or of the purchasers rights
agreement (as discussed below) which has a material adverse effect on the holders of the series F preferred stock, a majority in interest of the series F preferred stock may require the
redemption of all or any portion of the shares of series F preferred stock at a price equal to the amount of the liquidation preference of the series F preferred stock; provided,
however, that if the redemption would violate the terms of the Debt Agreements, a majority in interest of the series F preferred stock may elect to receive shares of common stock instead of
cash.
Series G Preferred Stock
Dividends.
The holders of series G preferred stock are entitled, subject to the restrictions imposed by the
terms of the Debt Agreements, to receive quarterly cumulative dividends at the rate of 15% per annum. The series G preferred stock ranks senior to the series B, series C,
series D, series H, and series I preferred stock and the common stock and
pari passu
with the series F, preferred stock as
to dividends. Additional dividends will accrue on the accrued, unpaid dividends on the series G preferred stock. The series G preferred stock is entitled to receive the amount of any
dividends paid on the common stock, as if the shares of series G preferred stock had been converted to common stock.
6
Liquidation Preference.
Upon our liquidation, dissolution, or winding up, holders of series G preferred stock
will be entitled to a per share liquidation preference of the greater of (i) $0.35 plus any accrued, unpaid dividends or (ii) the amount the holders of series G preferred stock
would have received upon the liquidation, dissolution, or winding up had all shares of series D, series F, series G, and series I preferred stock been converted to common
stock, subject to the prior payment in full of all of our debts and liabilities. The series G preferred stock ranks senior to the series B, series C, and series H preferred
stock and the common stock and
pari passu
with the series D, series F, and series I preferred stock as to liquidation.
Conversion.
The shares of series G preferred stock may, at the option of the holder, be converted at any time
into fully paid and nonassessable shares of common stock. All outstanding shares of series G preferred stock will be automatically converted into shares of common stock immediately prior to the
closing of an initial public offering of the common stock meeting certain requirements. The number of shares of common stock to which a holder of series G preferred stock is entitled upon
conversion is the product obtained by multiplying the applicable preferred stock rate (as defined in the Certificate of Incorporation) then in effect by the number of shares of series G
preferred stock being converted. The preferred stock rate is subject to adjustment for stock dividends, combinations, splits and the like. In addition, the preferred stock rate for the series G
preferred stock is subject to adjustment upon the issuance of additional shares of common stock, subject to certain exceptions.
Voting Rights.
Subject to certain exceptions, the holders of series G preferred stock are entitled to cast one
vote for each share of series G preferred stock held by them on an as-converted to common stock basis. Such votes will be cast together with those cast by the holders of
series B, series C, series D, series F, series H, and series I preferred stock and common stock and not as a separate class, except as otherwise provided
herein or required by applicable law. The series G has the right to elect a percentage of the members of the Board of Directors generally equal to the percentage of the common stock represented
by the series G preferred stock (assuming the conversion of all shares of preferred stock), rounding up so that the nominees of the holders of series G preferred stock will not represent
less than such proportionate interest. The series G preferred stock does not have cumulative voting rights. For as long as the outstanding shares of series G preferred stock represents
at least 5% or more of the outstanding shares of common stock (on an as converted basis), the approval of the holders of at least 75% of the then outstanding shares of series G preferred stock
is necessary for effecting or validating: (i) any amendment of the Certificate of Incorporation or Bylaws that adversely affects the rights of the series G preferred stock;
(ii) any authorization, increase in the authorized number or issuance of any capital stock ranking senior to or on parity with the series G preferred stock as to dividends, voting rights
or liquidation; (iii) any payment of dividends; (iv) subject to certain exceptions, the reclassification, combination, split or acquisition of any shares of our capital stock;
(v) any agreement regarding merger or sale of assets; (vi) subject to certain exceptions, the acquisition of assets or securities of any other person or entity, other than cash
acquisitions valued below a certain threshold; (vii) any joint venture or similar arrangement above a certain threshold; (viii) our liquidation, dissolution or winding up; or
(ix) any amendment of the above voting rights.
Redemption.
In the event of our breach of our Certificate of Incorporation or Bylaws or of the purchasers rights
agreement (as discussed below) which has a material adverse effect on the holders of the series G preferred stock, a majority in interest of the series G preferred stock may require the
redemption of all or any portion of the shares of series G preferred stock at a price equal to the amount of the liquidation preference of the series G preferred stock; provided,
however, that if the redemption would violate the terms of the Debt Agreements, a majority in interest of the series G preferred stock may elect to receive shares of common stock instead of
cash.
7
Series H Preferred Stock
Dividends.
The holders of series H preferred stock are entitled, subject to the restrictions imposed by the
terms of the Debt Agreements, to receive cumulative dividends at the rate of 15% per annum. The series H preferred stock ranks senior to the series C preferred stock and the common
stock,
pari passu
with the series D, series B, and series I preferred stock, and junior to the series F and series G
preferred stock as to dividends. Additional dividends will accrue on the accrued, unpaid dividends on the series H preferred stock.
Liquidation Preference.
Upon our liquidation, dissolution, or winding up, holders of series H preferred stock
will be entitled to a per share liquidation preference of $1.52 plus any accrued, unpaid dividends, subject to the prior payment in full of all of our debts and liabilities. The series H
preferred stock ranks senior to the series C preferred stock and the common stock,
pari passu
with the series B preferred stock, and
junior to the series D, series F, series G and series I preferred stock as to liquidation.
Conversion.
The shares of series H preferred stock may, at the option of the holder, be converted at any time
into fully paid and nonassessable shares of common stock. All outstanding shares of series H preferred stock will be automatically converted into shares of common stock immediately prior to the
closing of an initial public offering of the common stock meeting certain requirements. The number of shares of common stock to which a holder of series H preferred stock is entitled upon
conversion is the product obtained by multiplying the applicable preferred stock rate (as defined in the Certificate of Incorporation) then in effect by the number of shares of series H
preferred stock being converted. The preferred stock rate is subject to adjustment for stock dividends, combinations, splits and the like. In addition, the preferred stock rate for the series H
preferred stock is subject to adjustment upon the issuance of additional shares of common stock, subject to certain exceptions.
Voting Rights.
Subject to certain exceptions, the holders of series H preferred stock are entitled to cast one
vote for each share of series H preferred stock held by them on an as-converted to common stock basis. Such votes will be cast together with those cast by the holders of
series C, series D, series F, series G, series B, and series I preferred stock and common stock and not as a separate class, except as otherwise provided
herein or required by applicable law. The series B, series C, series D, series H, and series I preferred stock, voting as a single class, have the right to elect one
member of the Board of Directors so long as a certain number of shares of series B, series C, series D, series F, series G, series H, and series I
preferred stock remain outstanding. The series H preferred stock does not have cumulative voting rights.
Series I Preferred Stock
Dividends.
The holders of series I preferred stock are entitled, subject to the restrictions imposed by the
terms of the Debt Agreements, to receive cumulative dividends at the rate of 15% per annum. The series I preferred stock ranks senior to the series C preferred stock and the common
stock,
pari passu
with the series B, series H, and series D preferred stock, and junior to the series F and series G
preferred stock as to dividends. Additional dividends will accrue on the accrued, unpaid dividends on the series I preferred stock.
Liquidation Preference.
Upon our liquidation, dissolution, or winding up, holders of series I preferred stock
will be entitled to a per share liquidation preference of the greater of (i) $4.50 plus any accrued, unpaid dividends or (ii) the amount the holders of series I preferred stock
would have received upon the
liquidation, dissolution, or winding up had all shares of series I preferred stock and all shares of series F, series G, and series D preferred stock been converted to
common stock, subject to the prior payment in full of all of our debts and liabilities. The series I preferred stock ranks senior
8
to the series B, series H, and series C preferred stock and the common stock and
pari passu
with the series F,
series G, and series D preferred stock as to liquidation.
Conversion.
The shares of series I preferred stock may, at the option of the holder, be converted at any time
into fully paid and nonassessable shares of common stock. All outstanding shares of series I preferred stock will be automatically converted into shares of common stock immediately prior to the
closing of an initial public offering of the common stock meeting certain requirements. The number of shares of common stock to which a holder of series I preferred stock is entitled upon
conversion is the product obtained by multiplying the applicable preferred stock rate (as defined in the Certificate of Incorporation) then in effect by the number of shares of series I
preferred stock being converted. The preferred stock rate is subject to adjustment for stock dividends, combinations, splits and the like. In addition, the preferred stock rate for the series I
preferred stock is subject to adjustment upon the issuance of additional shares of common stock, subject to certain exceptions.
Voting Rights.
Subject to certain exceptions, the holders of series I preferred stock are entitled to cast one
vote for each share of series I preferred stock held by them on an as-converted to common stock basis. Such votes will be cast together with those cast by the holders of
series B, series C, series F, series G, series H, and series D preferred stock and common stock and not as a separate class, except as otherwise provided
herein or required by applicable law. The series B, series C, series D, series H, and series I preferred stock, voting as a single class, have the right to elect one
member of the Board of Directors so long as a certain number of shares of series B, series C, series D, series H, and series I preferred stock remain outstanding.
The series I preferred stock does not have cumulative voting rights.
WARRANTS
We have outstanding warrants to purchase up to 2,530,473 shares of common stock at an exercise price of $0.006 per share. These warrants are currently
exercisable and expire on June 15, 2008. The warrant agreement governing these warrants provides the holders of the warrants with customary antidilution protections. In addition, holders of
these warrants have demand and piggyback registration rights with respect to the exercise of their warrants and the resale of the underlying shares. Prior to exercising their warrants, the warrant
holders do not have any voting rights relating to our company.
PURCHASERS RIGHTS AGREEMENT
Our current stockholders are parties to the purchasers rights agreement, which provides that they vote their respective shares in a manner as to elect persons
specified in the agreement to serve as directors. The holders of series F preferred stock have agreed to vote their shares to elect James H. Greene, Jr., Clint Johnstone,
Henry R. Kravis and Adam H. Clammer. The holders of series G preferred stock have agreed to vote there shares to elect Mory Ejabat, Alexander Navab, Jr. and
George R. Roberts. In addition, the holders of series B preferred stock, series C preferred stock, series D preferred stock series H preferred stock and
series I preferred stock have agreed to vote their shares to elect either Henry H. Bradley or Thomas R. Palmer. The holders of common stock have agreed to vote their shares for
the election of David E. Scott. The stockholders have also agreed to vote these shares to elect Richard A. Jalkut and either, to the extent not elected by the holders of series B
preferred stock, series C preferred stock, series D preferred stock, series H preferred stock and series I preferred stock, Mr. Bradley or Mr. Palmer. So long
as the purchasers rights agreement is in effect, these investors will effectively control the election of our board of directors.
REGISTRATION RIGHTS
The parties to the purchasers rights agreement, subject to some conditions, have registration rights with respect to shares of common stock, including shares
of common stock issuable upon conversion or redemption of shares of series F preferred stock or series G preferred stock, or upon conversion of
9
shares of series B preferred stock, series C preferred stock, series D preferred stock, series H preferred stock or series I preferred stock. These purchasers have,
subject to some conditions, demand and "piggy-back" registration rights. The purchasers rights agreement provides that each purchaser of stock is subject to lock-up
restrictions in the event of a public offering of our securities.
RESTRICTIONS ON TRANSFER
Our outstanding common stock (including shares issued pursuant to options) and each series of preferred stock are subject to restrictions on transfer. Holders
of common stock and each series of preferred stock that are parties to the purchasers rights agreement, subject to some exceptions, may not transfer their shares without first giving us the
opportunity to purchase the shares. In addition, subject to some exceptions, the holders of common stock or any series of preferred stock that are parties to the purchasers rights agreement may not
transfer their shares without first giving the other purchasers under the purchasers rights agreement the opportunity to participate in the transfer.
PRE-EMPTIVE RIGHTS
Holders of our common stock and each series of preferred stock that are parties to the purchasers rights agreement have the right to purchase a pro rata
portion of any common stock or preferred stock that we propose to sell and issue, subject to some exceptions.
SIZE OF THE BOARD OF DIRECTORS
The purchasers rights agreement provides that so long as at least 6,666,667 shares of series F preferred stock remain outstanding, the holders of
series F preferred stock are entitled to elect and remove directors in accordance with our restated certificate of incorporation. In addition, so long as at least 42,379,182 shares of
series G preferred stock remain outstanding, the holders of series G preferred stock are entitled to elect and remove directors in accordance with our restated certificates of
incorporation. In the event that less than 6,666,667 shares of series F preferred stock or less than 6,666,667 shares of series G preferred stock remain outstanding, but BTI Ventures
L.L.C. and its affiliates, which include KKR, beneficially own at least 10% of our outstanding common stock, BTI has the right to nominate the number of persons to serve as members of the board
determined in accordance with a formula set forth in the purchasers rights agreement. Currently there are seven BTI nominees sitting on our eleven seat board of directors.
For
so long as at least 15,000,000 shares of series B preferred stock, series C preferred stock series D preferred stock, series H preferred stock and
series I preferred stock remain outstanding, the holders of this stock, voting together as a class, are entitled to elect and remove directors pursuant to our restated certificate of
incorporation.
BTI DRAG-ALONG RIGHTS
For so long as BTI or any of its affiliates beneficially own at least 20% of our outstanding common stock (assuming conversion into common stock of all shares
of our series preferred stock), holders of common stock and each series of preferred stock that are parties to the purchasers rights agreement are required to sell their shares in the event that BTI
Ventures L.L.C. or its affiliates agree to sell or transfer their shares, or to sell all or substantially all of our assets, to a third party.
10
BTI VETO RIGHTS
The purchasers rights agreement provides that for so long as BTI or any of its affiliates beneficially owns at least 10% of the outstanding shares of our
common stock (assuming conversion into common stock of all shares of our series preferred stock) or the aggregate outstanding shares of our series F preferred stock and series G
preferred stock on an as converted basis, the approval of at least one BTI nominee on our board will be required for our board of directors to approve and authorize any of the following: any changes
in our capital structure, such as increases or decreases in the total authorized shares of our common stock and issuances of our capital stock; any payment of dividends or distributions on our capital
stock; subject to limited exceptions, any reclassification, combination, split, redemption or other acquisition of any shares of our capital stock; any individual incurrence of indebtedness exceeding
$25.0 million; any change in the size or composition of our board or any board committee or creation of any board committee; subject to limited exceptions, any affiliate transaction; any hiring
or termination of a chief executive officer; any adoption or modification of our annual budget and business plan; any amendment or modification of any material provision of our senior notes indenture,
senior credit facility or any other material contract; any adoption, renewal or material modification of any material compensation or benefit plan or arrangement; any authorization of entering into a
new line of business; any consolidation, reorganization, recapitalization, merger or similar transaction; any transfer of our assets, including by pledge, in excess of $25.0 million; subject to
limited exceptions, any acquisition of assets or securities for $25.0 million or greater; any amendment to our certificate of incorporation or bylaws; any voting or similar arrangement
regarding our capital stock; any payment, discharge or satisfaction of any material claim or liability or the commencement of a material suit; any joint venture involving material assets or the
payment or receipt of more than $25.0 million; any material license, contract or agreement; or any liquidation, dissolution or winding up of our company.
Item 5.  Interests of Named Experts and Counsel
Not applicable.
Item 6.  Indemnification of Directors and Officers
The Company is a Delaware corporation. Reference is made to Section 102(b)(7) of the Delaware General Corporation Law (the "DGCL"), which
enables a corporation in its original certificate of incorporation or an amendment thereto to eliminate or limit the personal liability of a director for violations of the director's fiduciary duty,
except (i) for any breach of the director's duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) pursuant to Section 174 of the DGCL (providing for liability of directors for unlawful payments of dividends of unlawful stock
purchase or redemptions), or (iv) for any transaction from which a director derived an improper personal benefit. Reference is also made to Section 145 of the DGCL, which provides that a
corporation may indemnify any person, including an officer or director, who is, or is threatened to be made, party to any threatened, pending or completed legal action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in the right of such corporation), by reason of the fact that such person was an officer, director, employee or agent of
such corporation or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation or enterprise. The indemnity may include expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, provided such officer, director,
employee or agent acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the corporation's best interest and, for criminal proceedings, had no reasonable cause to
believe that his conduct was unlawful. A Delaware corporation may indemnify any officer or director in an action by or in the right of the corporation
11
under the same conditions, except that no indemnification is permitted without judicial approval if the officer or director is adjudged to be liable to the corporation. Where an officer or director is
successful on the merits or otherwise in the defense of any action referred to above, the corporation must indemnify him against the expenses that such officer or director actually and reasonably
incurred. The Company's Restated Articles of Incorporation (filed as Exhibit 4(a)) provide for indemnification of the officers and directors to the full extent permitted by applicable law.
Item 7.  Exemption from Registration Claimed
Not applicable.
Item 8.  Exhibits
See the Exhibit Index on Page 16.
Item 9.  Undertakings
(a)
The
undersigned Registrant hereby undertakes:
(1)
To
file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i)
To
include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii)
To
reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement;
(iii)
To
include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement;
provided, however,
that paragraphs (a)(1)(i) and (a)(1)(ii) shall not apply to information contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"); that are incorporated by reference in this Registration
Statement.
(2)
That,
for the purpose of determining any liability under the Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3)
To
remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(b)
The
undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant's Annual Report pursuant to
section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c)
Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the
foregoing
12
provisions,
or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer
or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
13
SIGNATURES
Pursuant to the requirements of the Securities Act the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for
filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of Kansas City, State of
Missouri on August 30, 2001.
BIRCH TELECOM, INC.
By:
/s/
GREGORY C. LAWHON
Gregory C. Lawhon
Senior Vice President of Public Policy
and General Counsel
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below, hereby constitutes and appoints Gregory C. Lawhon his true and lawful
attorney-in-fact and agent, with full power of substitution and reimbursement, for him and in his name, place and stead, in any and all capacities, to sign any or all
amendments or supplements to this Registration Statement and to file the same with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or appropriate to be done with respect to this
Registration Statement or any amendments or supplements hereto in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all
that said attorney-in-fact and agent, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the date
indicated.
Signature
Title
Date Signed
/s/
RICHARD A. JALKUT
Richard A. Jalkut
Chairman of the Board
August 22, 2001
/s/
DAVID E. SCOTT
David E. Scott
President, Chief Executive Officer, Chief Operating Officer and Director (Principal Executive Officer)
August 30, 2001
14
Henry H. Bradley
Director
August   , 2001
/s/
ADAM H. CLAMMER
Adam H. Clammer
Director
August 21, 2001
/s/
MORY EJABAT
Mory Ejabat
Director
August 20, 2001
/s/
JAMES H. GREENE, JR.
James H. Greene, Jr.
Director
August 21, 2001
/s/
CLINT JOHNSTONE
Clint Johnstone
Director
August 21, 2001
/s/
HENRY R. KRAVIS
Henry R. Kravis
Director
August 21, 2001
Alexander Navab, Jr.
Director
August   , 2001
Thomas R. Palmer
Director
August   , 2001
/s/
GEORGE R. ROBERTS
George R. Roberts
Director
August 21, 2001
15
Exhibit Index
Item
8.  Exhibits
4.1
Form of Restated Articles of Incorporation of the Company (incorporated by reference to the exhibits in the Company's Quarterly Report on Form 10-Q as filed on August 14, 2001, File No. 333-62797, for the quarterly period
ended June 30, 2001).
4.2
Form of Restated By-Laws of the Company (incorporated by reference to the exhibits in the Company's Quarterly Report on Form 10-Q as filed on May 15, 2001, File No. 333-62797, for the quarterly period ended March 31,
2001).
4.3
Birch Telecom, Inc. 1998 Stock Option Plan (incorporated by reference to the exhibits in the Company's annual report on Form 10-K/A as filed on May 7, 1999, File No. 333-62797, for the fiscal year ended December 31,
1998).
4.4
2000 Equity Participation Plan of Birch Telecom, Inc. (incorporated by reference to the exhibits in the Company's registration statement on Form S-1/A as filed on March 31, 2000, File No. 333-33156).
4.5
2001 Equity Participation Plan of Birch Telecom, Inc. (incorporated by reference to the exhibits in the Company's Quarterly Report on Form 10-Q as filed on August 14, 2001, File No. 333-62797, for the quarterly period
ended June 30, 2001).
5.1
Opinion of Counsel regarding the legality of the Common Stock being registered.
23.1
Consent of Independent Auditors.
23.2
Consent of Counsel (included in Exhibit 5.1).
24.1
Power of Attorney (included on signature page).
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QuickLinks
Calculation of Registration Fee
PART I
Item 1. Plan Information
Item 2. Registration Information and Employee Plan Annual Information
PART II
Item 3. Incorporation of Documents by Reference
Item 4. Description of Securities
Item 5. Interests of Named Experts and Counsel
Item 6. Indemnification of Directors and Officers
Item 7. Exemption from Registration Claimed
Item 8. Exhibits
Item 9. Undertakings
SIGNATURES
POWER OF ATTORNEY
Exhibit Index