NEUTRAL TANDEM, INC. FIRST AMENDMENT TO SECOND AMENDED AND RESTATED STOCKHOLDERS’ AGREEMENT
EXHIBIT 4.4
[EXECUTION COPY]
NEUTRAL TANDEM, INC.
FIRST AMENDMENT TO
SECOND AMENDED AND RESTATED STOCKHOLDERS’ AGREEMENT
This FIRST AMENDMENT TO SECOND AMENDED AND RESTATED STOCKHOLDERS’ AGREEMENT, dated as of October 31, 2006 (the “Amendment”) is entered into by and among Neutral Tandem, Inc., a Delaware corporation (the “Company”) and the other parties signatory hereto.
WHEREAS, the Company, the other parties signatory hereto and certain other stockholders of the Company are parties to the Second Amended and Restated Stockholders’ Agreement, dated as of February 2, 2006 (the “Stockholders’ Agreement”);
WHEREAS, capitalized terms used herein without definition shall have the respective meanings ascribed to them in the Stockholders’ Agreement;
WHEREAS, the parties hereto now desire to amend Section 4.1(a) to the Stockholders’ Agreement to set the number of directors on the Board of Directors of the Company at seven;
WHEREAS, Section 6.6 of the Stockholders’ Agreement provides that the Stockholders’ Agreement may be amended with the consent of the Company and Investors holdings two-thirds of the Stock held by all Investors, and, further, that certain subsections contained in Section 4.1(a) may be amended only as provided in such Section 6.6; and
WHEREAS, the parties signatory hereto other than the Company constitute Investors holding two-thirds of the Stock held by all Investors, and such other parties as are required to amend Section 4.1(a) of the Stockholders’ Agreement, as provided in Section 6.6 of the Stockholders’ Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Section 4.1(a) to the Stockholders’ Agreement is hereby amended and replaced in its entirety with the following:
“(a) Each Stockholder agrees on behalf of itself and any transferee or assign to vote or cause to be voted at a regular or special meeting of stockholders (or by written consent) all shares of Stock now or hereafter owned or controlled by such stockholder, and otherwise use its or his respective best efforts as a Stockholder of the Company, to set the number of directors of the Company at seven and to elect as directors, on the date of this Agreement and in any subsequent election of directors of the Company the following: (i) two directors (the “Common Directors”) designated by the holders of a majority of the Common Stock (voting together as a single class), who initially shall be Xxxxx X. Xxxxx and Xxxx Xxxx; (ii) two directors (the “Preferred Stock Directors”), (a) one who shall be designated by DCM III, L.P. or its affiliates (“DCM”), who initially shall be Xxxxx Xxxx, and (b) one who shall be designated by New Enterprise Associates 10, Limited Partnership or its affiliates (“NEA”), who initially shall be Xxxxx Xxxxxx and (iii) three independent directors designated by mutual agreement of, on the one hand, the holders of a majority of the Preferred Stock (voting together as a single class), and on the other
hand, the holders of a majority of the Common Stock (voting together as a single class), two of whom initially shall be Xxx Xxxx and Xxxxxxxx X. Xxxxxxxx.”
2. As expressly amended by this Amendment, the Stockholders’ Agreement shall continue in full force and effect in accordance with its terms and is hereby confirmed and ratified in all respects. This Amendment and its terms and provisions shall be effective as of the date first above written. This Amendment may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument. This Amendment shall be governed by and construed in accordance with the law (other than the law governing conflict of law questions) of the State of Delaware.
[signature pages follow]
IN WITNESS WHEREOF, the parties have executed and delivered this Amendment as of the date first above written.
| NEUTRAL TANDEM, INC. | ||||
| By: |
/s/ Xxxxxx X.Gallivet | |||
| Name: |
Xxxxxx X. Gallivet | |||
| Title: |
Executive Vice President | |||
[Signature Page to Neutral Tandem, Inc. First Amendment to
Second Amended and Restated Stockholders’ Agreement]
| INVESTORS: | ||
| DCM III, L.P. | ||
| By: |
DCM Investment Management III, L.L.C. | |
| Its General Partner | ||
| By: |
/s/ D. R. Doll | |
| Name: |
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| Title: |
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| DCM III-A, L.P. | ||
| By: |
DCM Investment Management III, L.L.C. | |
| Its General Partner | ||
| By: |
/s/ D. R. Doll | |
| Name: |
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| Title: |
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| DCM AFFILIATES FUND III, L.P. | ||
| By: |
DCM Investment Management III, L.L.C. | |
| Its General Partner | ||
| By: |
/s/ D. R. Doll | |
| Name: |
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| Title: |
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[Signature Page to Neutral Tandem, Inc. First Amendment to
Second Amended and Restated Stockholders’ Agreement]
| NEW ENTERPRISE ASSOCIATES 10, LIMITED PARTNERSHIP | ||
| By: |
NEA Partners 10, Limited Partnership | |
| Its General Partner | ||
| By: |
/s/ Xxxxx Xxxxxx | |
| Name: |
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| Title: |
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| NEA VENTURES 2003, LIMITED PARTNERSHIP | ||
| By: |
/s/ Xxxxx Xxxxxx | |
| Name: |
Xxxxx Xxxxxx | |
| Title: |
Vice President | |
[Signature Page to Neutral Tandem, Inc. First Amendment to
Second Amended and Restated Stockholders’ Agreement]
| MESIROW CAPITAL PARTNERS VIII, L.P. | ||||
| By: |
Mesirow Financial Services, Inc. | |||
| Its General Partner | ||||
| By: |
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| Name: |
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| Title: |
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[Signature Page to Neutral Tandem, Inc. First Amendment to
Second Amended and Restated Stockholders’ Agreement]
| MONTAGU NEWHALL GLOBAL PARTNERS II, L.P. | ||||
| By: |
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| Name: |
Xxxxx Xxxxxxxx | |||
| Title: |
Partner | |||
| MONTAGU NEWHALL GLOBAL PARTNERS II-A, L.P. | ||||
| By: |
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| Name: |
Xxxxx Xxxxxxxx | |||
| Title: |
Partner | |||
| MONTAGU NEWHALL GLOBAL PARTNERS II-B, L.P. | ||||
| By: |
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| Name: |
Xxxxx Xxxxxxxx | |||
| Title: |
Partner | |||
[Signature Page to Neutral Tandem, Inc. First Amendment to
Second Amended and Restated Stockholders’ Agreement]
| WASATCH FUNDS, INC. | ||||
| for Wasatch Small Cap Growth Fund | ||||
| By: |
Wasatch Advisors, Inc. | |||
| Its Investment Adviser | ||||
| : |
By: |
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| Name: |
Xxxxxx X. Xxxxxx | |||
| Title: |
Vice President | |||
| WASATCH FUNDS, INC. | ||||
| for Wasatch Ultra Growth Fund | ||||
| By: |
Wasatch Advisors, Inc. | |||
| Its Investment Adviser | ||||
| By: |
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| Name: |
Xxxxxx X. Xxxxxx | |||
| Title: |
Vice President | |||
| WASATCH FUNDS, INC. | ||||
| for Wasatch Global Science & Technology Fund | ||||
| By: |
Wasatch Advisors, Inc. | |||
| Its Investment Adviser | ||||
| By: |
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| Name: |
Xxxxxx X. Xxxxxx | |||
| Title: |
Vice President | |||
[Signature Page to Neutral Tandem, Inc. First Amendment to
Second Amended and Restated Stockholders’ Agreement]
| /s/ Xxxxx X. Xxxxx |
| Xxxxx X. Xxxxx |
[Signature Page to Neutral Tandem, Inc. First Amendment to
Second Amended and Restated Stockholders’ Agreement]
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| Xxx Xxxx |
[Signature Page to Neutral Tandem, Inc. First Amendment to
Second Amended and Restated Stockholders’ Agreement]
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| Xxxxxx X. Xxxxxxxxx |
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| Xxxxxx X. Xxxxxxxx |
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| Xxxxx Xxxxxxx |
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| Xxxxxxxxx Xxx Xxxxx |
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| Xxxxxx Xxxxxx |
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| C. Xxx Xxxxx |
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| Xxxxxx X’Xxxxx |
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| Xxxx Xxxxxxx |
[Signature Page to Neutral Tandem, Inc. First Amendment to
Second Amended and Restated Stockholders’ Agreement]
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| Xxxx X. Xxxxxxxx |
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| Xxxxxxxx X. Xxxxxxxx |
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| Xxxxxx Xxxxx |
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| Xxxxxx Xxxxxxx |
[Signature Page to Neutral Tandem, Inc. First Amendment to
Second Amended and Restated Stockholders’ Agreement]
| /s/ Xxxxxx X. Xxxxxxxx |
| Xxxxxx X. Xxxxxxxx |
| /s/ Xxxxxx X. Xxxxxxxxx |
| Xxxxxx X. Xxxxxxxxx |
[Signature Page to Neutral Tandem, Inc. First Amendment to
Second Amended and Restated Stockholders’ Agreement]
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| Xxxxx X. Xxxxxxx |
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| Xxxx Xxxxxx |
[Signature Page to Neutral Tandem, Inc. First Amendment to
Second Amended and Restated Stockholders’ Agreement]
| /s/ Xxxx Xxxxxxxx |
| Xxxx Xxxxxxxx |
[Signature Page to Neutral Tandem, Inc. First Amendment to
Second Amended and Restated Stockholders’ Agreement]
| NT HOLDINGS LLC | ||
| By: |
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| Name: |
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| Title: |
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[Signature Page to Neutral Tandem, Inc. First Amendment to
Second Amended and Restated Stockholders’ Agreement]
| COMMON HOLDERS: |
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| Xxxxx X. Xxxxx (in respect of the Common Stock owned by him only) |
[Signature Page to Neutral Tandem, Inc. First Amendment to
Second Amended and Restated Stockholders’ Agreement]
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| Xxxxxx X. Xxxxxxxx (in respect of the Common Stock owned by him only) |
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| Xxxxxxxxxxx X. Xxxxxxx |
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| Xxxx Xxxxxxxx (in respect of the Common Stock owned by him only) |
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| Xxxxxx X. Xxxxxxxxx (in respect of the Common Stock owned by him only) |
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| Xxxxxxx X. Xxxxxxxx |
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| Xxxxxx Xxxxxx |
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| Xxxxx Xxxxx |
[Signature Page to Neutral Tandem, Inc. First Amendment to
Second Amended and Restated Stockholders’ Agreement]
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| Xxxx X. Xxxxxxx |
[Signature Page to Neutral Tandem, Inc. First Amendment to
Second Amended and Restated Stockholders’ Agreement]
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| Xxxxxxx X. Xxxxx |
[Signature Page to Neutral Tandem, Inc. First Amendment to
Second Amended and Restated Stockholders’ Agreement]
| GAVILLET GRANTOR ANNUITY TRUST | ||||
| By: |
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| Name: |
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| Title: |
Trustee | |||
| XXXXXXX GRANTOR ANNUITY TRUST | ||||
| By: |
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| Name: |
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| Title: |
Trustee | |||
[Signature Page to Neutral Tandem, Inc. First Amendment to
Second Amended and Restated Stockholders’ Agreement]
| IRREVOCABLE TRUST FOR XXXXXX XXXXX XXXXX | ||
| By: |
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| Name: |
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| Title: |
Trustee | |
| IRREVOCABLE TRUST FOR XXXXXXXXX XXXXX XXXXX | ||
| By: |
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| Name: |
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| Title: |
Trustee | |
[Signature Page to Neutral Tandem, Inc. First Amendment to
Second Amended and Restated Stockholders’ Agreement]
| THE XXXXX AND XXXXX XXXX FAMILY TRUST | ||
| By: |
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| Name: |
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| Title: |
Trustee | |
| XXXXXXXXX X. & XXXXXXX X. XXXX FAMILY TRUST | ||
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| Name: |
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| Title: |
Trustee | |
| XXXXX & XXXXX XXXX XX. FAMILY TRUST | ||
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| Name: |
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| Title: |
Trustee | |
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| Xxxxxx X. Xxxx | ||
[Signature Page to Neutral Tandem, Inc. First Amendment to
Second Amended and Restated Stockholders’ Agreement]
| XXXXXXXX X. XXXXXXXXX TRUST | ||
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| Name: |
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| Title: |
Trustee | |
| XXXXX X. XXXXXXXXX TRUST | ||
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| Name: |
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| Title: |
Trustee | |
| XXXXXXX AND XXXXXX XXXXXXXXX, AS JOINT TENANTS | ||
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| Name: |
Xxxxxxx Xxxxxxxxx | |
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| Name: |
Xxxxxx Xxxxxxxxx | |
[Signature Page to Neutral Tandem, Inc. First Amendment to
Second Amended and Restated Stockholders’ Agreement]
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| Xxx Xxxx (in respect of the Common Stock owned by him only) |
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| Xxxxxxx X. Xxxx |
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| Xxxxxx xxx Xxxxxxx |
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| Xxxxxxxxx X. Xxxx |
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| Xxxxxxxxxxx X. Xxxx |
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| R. Xxxxx Xxxx |
[Signature Page to Neutral Tandem, Inc. First Amendment to
Second Amended and Restated Stockholders’ Agreement]
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| Xxxxx X. Xxxxx |
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| Xxxxx Xxxxxxx |
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| Xxxxxxx Xxxxxxxx |
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| Xxx Xxxxxxx |
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| Xxxx Xxxxxxx |
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| Xxxx Xxxxxx |
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| Xxxxxxxx Xxxxx |
[Signature Page to Neutral Tandem, Inc. First Amendment to
Second Amended and Restated Stockholders’ Agreement]
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| Xxxxxxx Xxxx Xxxxxx |
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| Xxxxx Xxxxxx |
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| Xxxxxx Xxxxxx |
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| Xxxx Xxxxxx |
[Signature Page to Neutral Tandem, Inc. First Amendment to
Second Amended and Restated Stockholders’ Agreement]
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| Xxxxx Xxxxxx |
[Signature Page to Neutral Tandem, Inc. First Amendment to
Second Amended and Restated Stockholders’ Agreement]
