AMENDMENT NO. 1 TO FOURTH AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
Exhibit 4.1.2
AMENDMENT NO. 1 TO
FOURTH AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
This Amendment No. 1 (the “Amendment”) to the Fourth Amended and Restated Stockholders Agreement (the “Agreement”), dated as of June 27, 2002, by and among Eschelon Telecom, Inc., a Delaware corporation (the “Company”), certain holders of the Company’s Series A Preferred Stock, par value $0.01 per share, certain holders of the Company’s common stock, par value $0.01 per share, and certain individuals identified on the schedule of minority stockholders attached to the Agreement, is made as of December 23, 2004, and amends the Agreement, pursuant to Section 12.2 of the Agreement, to the extent expressly set forth herein. All capitalized terms not otherwise defined herein shall have the meanings ascribed thereto in the Agreement.
1. A new Section 16 shall be added to the Agreement and shall state as follows:
The holders of the Company’s Series B Preferred Stock, par value $0.01 per share (the “Series B Preferred Stock”), identified on the Schedule of Series B Holders attached hereto and such other holders of Series B Preferred Stock who from time to time become a party hereto by executing a counterpart signature page (each, a “Series B Holder” and together the “Series B Holders”), with each Series B Holder’s respective number of shares of Series B Preferred Stock (“Series B Shares”) listed thereon, shall be deemed parties to this Agreement and shall have the same rights and obligations as Series A Holders with respect to Section 3 (“Tag Along” and “Drag Along” Rights), Section 4 (Transfer Rights), Section 6 (Preemptive Rights), Section 7 (Registration Rights), Section 9 (Certain Issuances and Transfers, Etc.), Section 10 (Remedies) and Section 11 (Legends) of the Agreement as if their Series B Shares were Series A Shares. For the purposes of the Agreement, the Series B Shares shall be considered Shares and shall vote with the Series A Shares in order to determine actions taken by the Majority Series A Holders, with each Series A Share and each Series B Share carrying the right to cast one vote.
2. This Amendment will become effective simultaneously with the “Closing” as that term is defined in the Series B Preferred Stock Purchase Agreement, dated as of December 23, 2004, by and among the Company and each of the persons listed on the schedule of purchasers attached thereto.
3. Except as modified or supplemented by this Amendment, each of the terms of the Agreement remain unmodified and in full force and effect.
IN WITNESS WHEREOF, each of the undersigned has duly executed this Amendment as of the date first above written.
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XXXX CAPITAL FUND VI, L.P. |
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By: |
Xxxx Capital Partners VI, L.P., its general partner |
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By: |
Xxxx Capital Investors , LLC, its general partner |
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By: |
/s/ Xxx Xxxxxx |
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Name: |
Xxx Xxxxxx |
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Title: |
Managing Director |
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BCIP ASSOCIATES II |
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BCIP ASSOCIATES II-B |
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BCIP ASSOCIATES II-C |
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By: |
Xxxx Capital Investors, LLC, their managing partner |
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By: |
/s/ Xxx Xxxxxx |
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Name: |
Xxx Xxxxxx |
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Title: |
Managing Director |
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PEP INVESTMENTS PTY. LIMITED |
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By: |
Xxxx Capital Investors, LLC, its attorney-in-fact |
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By: |
/s/ Xxx Xxxxxx |
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Name: |
Xxx Xxxxxx |
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Title: |
Managing Director |
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RGIP, LLC |
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/s/ X. Xxxxxxxx Malt |
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Name: |
X. Xxxxxxxx Malt |
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Title: |
Managing Member |
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XXXXXXXX STREET PARTNERS IV |
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/s/ Xxxxxxx Sternmetz |
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Name: |
Xxxxxxx Sternmetz |
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Title: |
Partner |
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WIND POINT PARTNERS IV, L.P. |
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By: |
Wind Point Investor IV, L.P., as General Partner |
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By: |
Wind Point Advisor, L.L.C., as General partner |
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By: |
/s/ Xxxxx X. XxxXxxxxx |
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Name: |
Xxxxx X. XxxXxxxxx |
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Title: |
Managing Member |
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By: |
/s/ Xxxxx X. Xxxxxxx |
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Name: |
Xxxxx X. Xxxxxxx |
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Title: |
Managing Member |
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WIND
POINT IV EXECUTIVE ADVISOR |
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By: |
Wind Point Investor IV, L.P., as General Partner |
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By: |
Wind Point Advisor, L.L.C., as General partner |
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By: |
/s/ Xxxxx X. XxxXxxxxx |
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Name: |
Xxxxx X. XxxXxxxxx |
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Title: |
Managing Member |
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By: |
/s/ Xxxxx X. Xxxxxxx |
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Name: |
Xxxxx X. Xxxxxxx |
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Title: |
Managing Member |
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WIND POINT ASSOCIATES IV, L.L.C. |
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By: |
Wind Point Investor IV, L.P., as General Partner |
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By: |
Wind Point Advisor, L.L.C., as General partner |
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By: |
/s/ Xxxxx X. XxxXxxxxx |
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Name: |
Xxxxx X. XxxXxxxxx |
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Title: |
Managing Member |
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By: |
/s/ Xxxxx X. Xxxxxxx |
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Name: |
Xxxxx X. Xxxxxxx |
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Title: |
Managing Member |
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XXXXXXXX, XXXXXX & XXXXX II, L.P. |
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By: |
Xxxxxxxx, Xxxxxx & Xxxxx, L.L.C., General Partner |
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By: |
/s/ Xxxxx XxxXxxxxxxx |
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Name: |
Xxxxx XxxXxxxxxxx |
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Title: |
Authorized Representative |
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SMS II-A, L.P. |
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By: |
Xxxxxxxx, Xxxxxx & Xxxxx, L.L.C., General Partner |
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By: |
/s/ Xxxxx XxxXxxxxxxx |
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Name: |
Xxxxx XxxXxxxxxxx |
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Title: |
Authorized Representative |
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YALE UNIVERSITY |
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By: |
/s/ Xxxxx X. Xxxxxxx |
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Name: |
Xxxxx X. Xxxxxxx |
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Title: |
Chief Investment Officer |
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ESCHELON TELECOM, INC. |
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By: |
/s/ Xxxxxxx X. Xxxxx |
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Name: |
Xxxxxxx X. Xxxxx |
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Title: |
President & CEO |
SCHEDULE OF SERIES B HOLDERS
Names and Addresses |
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No. of Shares of |
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Xxxx Capital Fund VI, L.P. |
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7,634,294.6667 |
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000 Xxxxxxxxxx Xxxxxx |
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Xxxxxx, XX 00000 |
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Attn: |
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BCIP Associates II |
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1,231,036.0000 |
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000 Xxxxxxxxxx Xxxxxx |
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Xxxxxx, XX 00000 |
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Attn: |
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BCIP Associates II-B |
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337,294.6667 |
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000 Xxxxxxxxxx Xxxxxx |
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Xxxxxx, XX 00000 |
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Attn: |
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BCIP Associates II-C |
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396,609.3333 |
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000 Xxxxxxxxxx Xxxxxx |
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Xxxxxx, XX 00000 |
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Attn: |
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RGIP, LLC |
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98,210.6667 |
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000 Xxxxxxxxxx Xxxxxx |
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Xxxxxx, XX 00000 |
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Attn: |
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Xxxxxxxx Street Partners IV |
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98,210.6667 |
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000 Xxxx Xxxxxxxx Xxxxx |
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Xxxxxxx, XX 00000 |
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Attn: |
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PEP Investments PTY Ltd. |
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25,448.0000 |
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000 Xxxxxxxxxx Xxxxxx |
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Xxxxxx, XX 00000 |
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Attn: |
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Wind Point Partners IV, L.P. |
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7,832,947.7067 |
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Xxx Xxxx Xxxxxx |
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Xxxxx 000 |
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Xxxxxxxxxx, XX 00000 |
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Attn: Xxx XxxXxxxx |
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Wind Point IV Executive Advisor Partners, L.P. |
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58,857.3600 |
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Xxx Xxxx Xxxxxx |
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Xxxxx 000 |
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Xxxxxxxxxx, XX 00000 |
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Attn: Xxx XxxXxxxx |
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Wind Point Associates IV, L.L.C. |
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29,010.9333 |
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Xxx Xxxx Xxxxxx |
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Xxxxx 000 |
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Xxxxxxxxxx, XX 00000 |
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Attn: Xxx XxxXxxxx |
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Xxxxxxxx, Xxxxxx & Xxxxx II, L.P. |
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300,000.0000 |
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000 00xx Xxxxxx |
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Xxxxx 0000 |
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Xxxxxx, XX 00000 |
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Attn: |
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SMS II-A, L.P. |
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900,000.0000 |
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000 00xx Xxxxxx |
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Xxxxx 0000 |
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Xxxxxx, XX 00000 |
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Attn: |
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Yale University |
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1,058,080.0000 |
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Yale Investments Xxxxxx |
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000 Xxxxxxxx Xxxxxx |
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Xxx Xxxxx, XX 00000 |
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Attn: Xxxxx Xxxxxxx |
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