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EXHIBIT 10.4.3
AMENDMENT NO. 3 AND JOINDER TO
STOCKHOLDERS' AGREEMENT
THIS AMENDMENT NO. 3 AND JOINDER (this "Amendment and
Joinder"), dated August __, 1999, by and among Allied Riser Communications
Holdings, Inc., a Delaware corporation (the "Company"), EGI-ARC Investors,
L.L.C., a Delaware limited liability company ("EGI-ARC"), Telecom Partners II,
L.P., a Delaware limited partnership ("TP"), Crescendo World Fund, LLC, a
Delaware limited liability company ("CWF"), Eagle Ventures WF, LLC, a Minnesota
limited liability company ("EVW"), Crescendo III, L.P., a Delaware limited
partnership ("CIII"), Xxxxxxxx Equity Group, L.L.C., a California limited
liability company ("LEG"), Norwest Venture Partners VII, L.P., a Minnesota
limited partnership ("NVP"), ANDA Partnership, an Illinois general partnership
("ANDA" and together with EGI-ARC, TP, CWF, EVW, CIII, LEG and NVP, the
"Existing Financial Sponsors"), GS Capital Partners III, L.P. a Delaware limited
partnership ("Goldman") and Whitehall Street Real Estate Limited Partnership XI,
a Delaware limited partnership ("Whitehall" and together with Goldman, the
"Proposed Financial Sponsors") (collectively the Existing Financial Sponsors and
the Proposed Financial Sponsors are referred to herein as the "Parties") to that
certain Stockholders' Agreement, as amended by Amendment No. 1 and Joinder and
Amendment No. 2 and Joinder thereto (the "Stockholders' Agreement"), dated as of
November 5, 1998, by and among the Company, EGI-ARC, TP and the other persons
identified therein. All terms not otherwise defined herein shall have the
meanings given such terms in the Stockholders' Agreement.
WHEREAS, the Company, EGI-ARC, TP and the other persons
identified therein have entered into the Stockholders' Agreement as amended by
(i) Amendment No. 1 and Joinder to Stockholders' Agreement dated as of November
23, 1998 and (ii) Amendment No. 2 and Joinder to Stockholders' Agreement dated
December 30, 1998, and effective as of November 23, 1998, and such parties
desire to further amend the Stockholders' Agreement as provided herein;
WHEREAS, Section 5.3 of the Stockholders' Agreement permits
amendment of the Stockholders' Agreement by a written instrument signed by (i)
the Company, (ii) holders of not less than fifty percent (50%) of the
outstanding Preferred Stock, and (iii) Stockholders holding not less than fifty
percent (50%) of the total number of shares of ARC Holdings Common Stock and ARC
Holdings Common Stock Equivalents then held by all Stockholders;
WHEREAS, the Existing Financial Sponsors collectively hold in
excess of fifty percent (50%) of (i) the outstanding Preferred Stock and (ii)
the total number of
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shares of ARC Holdings Common Stock and ARC Holdings Common Stock Equivalents
held by all Stockholders as of the date hereof, and accordingly can, together
with the Company, enter into this Amendment and Joinder;
WHEREAS, the Existing Financial Sponsors desire that each of
the Proposed Financial Sponsors become a party to the Stockholders' Agreement as
a "Financial Sponsor" thereunder, and each of the Proposed Financial Sponsors
desires to become a party to the Stockholders' Agreement as a "Financial
Sponsor" thereunder, as provided herein;
WHEREAS, Section 4.6 of the Stockholders' Agreement permits
holders of a majority of the outstanding shares of Preferred Stock to designate
any purchaser of newly issued Preferred Stock (or any new series of preferred
stock) as a "Financial Sponsor" for all purposes under the Stockholders
Agreement;
WHEREAS, the Existing Financial Sponsors together hold a
majority of the outstanding shares of Preferred Stock outstanding and
accordingly can designate additional Financial Sponsors pursuant to and for all
purposes under the Stockholders' Agreement;
NOW, THEREFORE, in consideration of the foregoing, the mutual
promises herein made and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Parties mutually agree as
follows:
1. Designation and Joinder.
(a) The Existing Financial Sponsors hereby designate each of the
Proposed Financial Sponsors as a "Financial Sponsor" for all purposes under the
Stockholders' Agreement, except for Article III, entitled to all of the rights
and subject to all of the obligations attendant thereunder to that status,
except as provided herein. Each of the Proposed Financial Sponsors hereby
consents and agrees to such designation, and further agrees that upon execution
of this Amendment and Joinder, it shall become a party to the Stockholders'
Agreement as a "Financial Sponsor" thereunder and shall be fully bound by, and
subject to, all of the covenants, terms and conditions of the Stockholders
Agreement, except for Article III, as a "Financial Sponsor" thereunder as though
originally a party as a "Financial Sponsor" thereunder, except as provided
herein.
(b) The execution and delivery of this Amendment and Joinder shall be
deemed to constitute "written notice to the Company" of the designation set
forth in Section 1(a) above, in satisfaction of such requirement of Section 4.6
of the Stockholders' Agreement.
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2. Amendments
(a) The definition of "Preferred Stock" set forth in the preamble of
the Stockholders' Agreement is hereby amended to include Series B Company
Preferred Stock.
(b) The threshold percentage of ARC Holdings Common Stock which
triggers certain tag-along rights shall be reduced from 40% to 25% in Section
2.4 of the Stockholders' Agreement.
(c) Schedule 3 to the Stockholders' Agreement, which lists the
"Transaction Documents" is hereby amended to include the Amendment No. 2 and
Joinder to Allied Riser Communications Holdings, Inc. Stockholders' Agreement,
Joinder to Indemnification Agreement, First Amendment to Registration Rights
Agreement, Second Amendment to Registration Rights Agreement, the Amended and
Restated Certificate of Incorporation and the Certificate of Designation of
Series B Preferred Stock.
(d) For purposed of Section 5.2 of the Stockholders' Agreement, the
following shall be the address for notice for each of the Proposed Financial
Sponsors:
Notice Address for Goldman:
GS Capital Partners III, L.P.
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000)000-0000
Attention: Xxx Xxxxx
Notice Address for Whitehall:
GS Capital Partners III, L.P.
X/X Xxxxxxxxx Xxxxxx Xxxx Xxxxxx Limited Partnership XI
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000)000-0000
Attention: Xxxxx Xxxxxx
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3. Miscellaneous.
(a) Reaffirmation. Except as expressly modified hereby, the Parties
hereby reaffirm each and every provision set forth in the Stockholders'
Agreement and, except as modified hereby, the Parties acknowledge and agree that
each provision and obligation therein continues in full force and effect.
References to the "Agreement" in the Stockholders' Agreement shall hereinafter
be deemed to mean such agreement as amended by this Amendment and Joinder.
(b) Additional Provisions. Sections 5.1, 5.9, 5.10, 5.11 and 5.12 of
the Stockholders' Agreement are hereby incorporated by reference into this
Amendment and Joinder, mutatis mutandis.
(c) Counterparts. This Amendment and Joinder may be executed in one or
more counterparts, each of which shall be deemed an original but both of which
together will constitute one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Parties hereto have executed this Amendment and
Joinder to the Stockholders' Agreement as of the date first above written.
ALLIED RISER COMMUNICATIONS HOLDINGS, INC.
By:
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Name: Xxxxx X. Xxxxxxxx
Title: Chief Executive Officer
EGI-ARC INVESTORS, L.L.C.
By: GAMI Investments, Inc.,
its Managing Member
By:
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Name: Xxx Xxxxxxxxxxx
Title: Vice President
TELECOM PARTNERS II, L.P.
By: Telecom Management II, L.L.C.,
its General Partner
By:
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Name:
Title:
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CRESCENDO WORLD FUND, LLC
By: Crescendo Ventures World Fund, LLC,
its General Partner
By:
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Name:
Title:
EAGLE VENTURES WF, LLC
By:
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Name:
Title:
CRESCENDO III, L.P.
By: Crescendo Ventures III, LLC,
its General Partner
By:
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Name:
Title:
XXXXXXXX EQUITY GROUP, L.L.C.
By:
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Name:
Title: President and Managing
Member
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NORWEST VENTURE PARTNERS VII, L.P.
By: Itasca VC Partners VII, LLP,
its General Partner
By:
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Name: Xxxx X. Xxxxxx
Title: Partner
ANDA PARTNERSHIP, an Illinois general
partnership
By: Xxx Only Trust, an Illinois trust
By:
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Name: Xxxx Xxxxxx
Title: Co-Trustee
By: Xxx and Descendants Trust,
an Illinois trust
By:
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Name: Xxxx Xxxxxx
Title: Co-Trustee
GS CAPITAL PARTNERS III, L.P.
By:
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Name:
Title:
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XXXXXXXXX XXXXXX XXXX XXXXXX LIMITED
PARTNERSHIP XI
By: WH Advisory, LLC XI,
its General Partner
By:
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Name:
Title:
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