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EXHIBIT 10.9
SECOND AMENDMENT TO
SECURITIES PURCHASE
AND STOCKHOLDER AGREEMENT
THIS SECOND AMENDMENT TO SECURITIES PURCHASE AND STOCKHOLDER AGREEMENT
(hereinafter referred to as this "Amendment") is made as of the 15th day of
June, 2000, by (i) ADVANCED SWITCHING COMMUNICATIONS, INC. (hereinafter referred
to as the "Company"), a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware, (ii) XXXXXX X. XXXXXXX
(hereinafter referred to as "Executive Stockholder"), (iii) the Purchasers who
execute this Amendment (hereinafter referred to collectively as the
"Purchasers"), and (iv) MOSTAFA VENTURE FUND, LLC, a Virginia limited liability
company (hereinafter referred to as the "LLC"). Capitalized terms not defined
herein shall have the same meaning as in the Stockholder Agreement (defined
below).
RECITALS:
WHEREAS, the Executive Stockholder, the Company and the Purchasers
previously set forth in writing certain understandings and agreements with
respect to the certain shares owned by them in that certain Securities Purchase
and Stockholder Agreement dated as of September 10, 1999, a copy of which is
attached hereto as Exhibit A and incorporated herein by this reference, which
was previously amended by the certain Amendment to the Securities Purchase and
Stockholder Agreement dated as of November 5, 1999 (collectively, "Stockholder
Agreement"), and which is amended by this Amendment;
WHEREAS, the Executive Stockholder is the legal and beneficial owner of
certain issued and outstanding shares of stock, consisting of Nine Thousand Four
Hundred Twenty-Eight (9,428) shares of Class A Stock and Four Thousand Seven
Hundred Nine (4,709) shares of Class B Stock (collectively, "Transferred
Shares"), all of which it intends to convey ("Transfer") to the LLC
simultaneously herewith;
WHEREAS, the LLC acknowledges and agrees that it is receiving the
Transferred Shares subject to the terms and conditions of the Stockholder
Agreement:
WHEREAS, the Company and the Purchasers agree: (i) to the Transfer and
waiver of rights they may have with respect to the same under the Stockholder
Agreement, and (ii) that the LLC shall be a Permitted Transferee as such term is
defined in the Stockholder Agreement.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
promises hereinafter set forth, the parties hereto, intending to be legally
bound, hereby agree as follows:
1. Amendment to Stockholder Agreement. The parties agree to this
Amendment as an amendment to the Stockholder Agreement. Except as specifically
set forth herein, the terms of the Stockholder Agreement remain unchanged,
effective and fully enforceable. The Executive
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Stockholder and the LLC each acknowledge that consent to the Transfer by the
Company and the Purchasers does not constitute consent to any other subsequent
transfers of any of the Transferred Shares or of any other shares of the
Company, except under such circumstances as may be authorized by the Stockholder
Agreement.
2. Agreements by Company, Executive Stockholder, and Purchasers with
Respect to the Transferred Shares. Upon the terms and conditions set forth
hereinafter, the Company and the Purchasers hereby agree (i) to the transfer of
all of the Transferred Shares to the LLC by the Executive Stockholder, (ii) to
the waiver of any and all rights each of them has or may have, collectively or
individually, under the Stockholder Agreement to set aside or not recognize the
same under the Stockholder Agreement, (iii) that the LLC shall be a Permitted
Transferee, and (iv) that the LLC succeeds to all the rights and obligations of
the Executive Stockholder as a party to the Stockholder Agreement.
3. Agreement by the LLC with Respect to the Transferred Shares. The
LLC hereby agrees that (i) the Transferred Shares are, and shall remain, subject
to the terms of the Stockholder Agreement including but not limited to the
provisions related to the Board of Directors and Corporate Governance, Transfer
Restrictions, and Rights of First Refusal, and (ii) for all purposes under the
Stockholder Agreement as of the date first set forth above, the LLC shall be
bound as though the LLC executed the original Stockholder Agreement.
4. Governing Law. This Amendment shall be construed and enforced in
accordance with the laws of the State of Delaware.
5. Headings. The headings, subheadings and other captions in this
Amendment are for convenience and reference only and shall not be used in
interpreting, construing or enforcing any of the provisions of this Amendment.
6. Benefit and Burden. This Amendment shall inure to the benefit of,
and shall be ending upon, the parties hereto and their legatees, distributees,
estates, executors, administrators, personal representatives, successors and
assigns, and other legal representatives.
7. Counterparts. This Amendment may be executed simultaneously in two
or more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the Company, the Executive Stockholder, and the
Purchasers have caused this Amendment to be executed, each by its duly
authorized officers and its corporate seal to be affixed hereto or by its duly
authorized manager, member or general partner, all as of the day and year first
above written.
ADVANCED SWITCHING COMMUNICATIONS,
INC.
By: /s/ XXXXXX XXXXXXX (SEAL)
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Name: Xxxxxx X. Xxxxxxx
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Title: President & CEO
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MOSTAFA VENTURE FUND, LLC
By: /s/ XXXXXX XXXXXXX (SEAL)
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Name: Xxxxxx X. Xxxxxxx
Title: Manager
EXECUTIVE STOCKHOLDER
/s/ XXXXXX XXXXXXX (SEAL)
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Xxxxxx X. Xxxxxxx
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PURCHASERS
XXXXX COMMUNICATIONS FUND, L.P.
By: /s/ XXXXXX XXXXX (SEAL)
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Name: Xxxxxx Xxxxx
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Title: General Partner
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XXXXXX XXXXXXX VENTURE PARTNERS
III, L.P
By: /s/ XXXXXXX XXXXXXX (SEAL)
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Name: Xxxxxxx Xxxxxxx
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Title: Principal
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XXXXXX XXXXXXX VENTURE INVESTORS
III, L.P
By: /s/ XXXXXXX XXXXXXX (SEAL)
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Name: Xxxxxxx Xxxxxxx
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Title: Principal
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THE XXXXXX XXXXXXX VENTURE PARTNERS
ENTREPRENEUR FUND, L.P
By: /s/ XXXXXXX XXXXXXX (SEAL)
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Name: Xxxxxxx Xxxxxxx
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Title: Principal
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TCV III (GP)
TCV III, L.P.
TCV III (Q), L.P.
TCV III STRATEGIC PARTNERS, L.P.
BY: Technology Crossover Management III, L.L.C.
Its: General Partner
By: /s/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
Title: Attorney-in-Fact
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NEW ENTERPRISE ASSOCIATES VIII, LIMITED
PARTNERSHIP, holder of Series D Preferred Stock
By: /s/ XXXXXX XXXXX (SEAL)
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Name: Xxxxxx Xxxxx
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Title: General Partner
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NEA PRESIDENT'S FUND, L.P.
By: /s/ XXXXXX XXXXX (SEAL)
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Name: Xxxxxx Xxxxx
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Title: General Partner
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NEA VENTURES 1999, L.P.
By: /s/ XXXXXX XXXXX (SEAL)
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Name: Xxxxxx Xxxxx
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Title: General Partner
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MCI WORLDCOM VENTURE FUND, INC.
By: /s/ XXXXX XXXXX (SEAL)
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Name: Xxxxx Xxxxx
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Title: President
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