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EXHIBIT 10.4.4
AMENDMENT NO. 4 AND JOINDER TO
STOCKHOLDERS' AGREEMENT
THIS AMENDMENT NO. 4 AND JOINDER (this "Amendment and Joinder"), dated
August 18, 1999, by and among Allied Riser Communications Corporation f/k/a
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") and the parties listed on Schedule 1
attached hereto 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 (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, (ii) Amendment No. 2 and Joinder to Stockholders' Agreement dated December
30, 1998, and effective as of November 23, 1998, and (iii) Amendment No. 3 and
Joinder to Stockholders' Agreement dated as of August 18, 1999 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) Schedule 3 to the Stockholders' Agreement, which lists the "Transaction
Documents" is hereby amended to include the Amendment No. 3 and Joinder to
Allied Riser Communications Holdings, Inc. Stockholders' Agreement.
(b) For purposed of Section 5.2 of the Stockholders' Agreement, the address
for notice for each of the Proposed Financial Sponsors shall be as set forth
opposite such parties name on Schedule 1 attached hereto.
(c) An additional defined term shall be added to Section 1.1 of the
Stockholders' Agreement as definition (33) thereof, and it shall read in its
entirety as follows: "Warrant Acquisition Agreement" shall mean a Warrant
Acquisition Agreement entered into between the Company and a Proposed Financial
Sponsor (as defined in Amendment No. 4 and Joinder to Stockholders' Agreement)
dated on or before August 31, 1999 pursuant to which each Proposed Financial
Sponsor acquired warrants to purchase ARC Holdings Common Stock."
(d) An additional defined term shall be added to Section 1.1 of the
Stockholders' Agreement as definition (34) thereof, and it shall read in its
entirety as follows: "Warrant Agreement" shall mean a Warrant Agreement entered
into between the Company and a Proposed Financial Sponsor (as defined in
Amendment No. 4 and Joinder to Stockholders' Agreement) dated on or before
August 31, 1999 pursuant to which each Proposed Financial Sponsor acquired
warrants to purchase ARC Holdings Common Stock."
(e) An additional four sentences shall be added to Section 2.7 as follows:
"In addition, each Financial Sponsor or transferee of each Financial Sponsor, as
the case may be, shall be permitted to transfer its warrants and the underlying
ARC Holdings Common Stock in accordance with the terms of the Warrant
Acquisition Agreement and the Warrant Agreement of such Financial Sponsor. In
the event the Financial Sponsor is EOP Operating Limited Partnership, such
Financial Sponsor shall further be permitted to Transfer Equity Securities to
Equity Office Properties Trust ("EOPT"), the managing general partner of such
Financial Sponsor, any Subsidiary of the Financial Sponsor or EOPT, any
Preferred Stock Subsidiary (as defined below) of such Financial Sponsor or EOPT,
a successor by merger to such Financial Sponsor or EOPT, or a Subsidiary or
Preferred Stock Subsidiary of a successor by merger to such Financial Sponsor or
EOPT, subject only to Section 2.6 (and not to Sections 2.2, 2.3, 2.4 or 2.5
above); provided, however, that in connection with any Transfers to any other
Financial Sponsor, all Financial Sponsors shall consent to such proposed
Transfer. In the event the Financial Sponsor is Cornerstone Properties Limited
Partnership, such Financial
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Sponsor shall further be permitted to Transfer Equity Securities to Cornerstone
Properties Inc. ("CPI"), the managing general partner of such Financial Sponsor,
any Subsidiary of the Financial Sponsor or CPI, any Preferred Stock Subsidiary
of such Financial Sponsor or CPI, a successor by merger to such Financial
Sponsor or CPI, or a Subsidiary or Preferred Stock Subsidiary of a successor by
merger to such Financial Sponsor or CPI, subject only to Section 2.6 (and not to
Sections 2.2, 2.3, 2.4 or 2.5 above); provided, however, that in connection with
any Transfers to any other Financial Sponsor, all Financial Sponsors shall
consent to such proposed Transfer. For purposes of this Section 2.7, Preferred
Stock Subsidiary shall mean a Person in which the applicable Financial Sponsor,
EOPT or CPI or any of their successors by merger, as the case may be, holds at
least 90% of the economic interest of such Person through non-voting common or
preferred stock or a combination of non-voting common and preferred stock."
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 CORPORATION
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:
CRESCENDO WORLD FUND, LLC
By: Crescendo Ventures World Fund, LLC,
its General Partner
By:
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Name:
Title:
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XXXXX XXXXXXXX XX, 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
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
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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
EOP OPERATING LIMITED PARTNERSHIP
By: Equity Office Properties Trust
Its: Managing General Partner
By:
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Name:
Title:
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CORNERSTONE PROPERTIES LIMITED
PARTNERSHIP
By: Cornerstone Properties Inc.
Its: General Partner
By:
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Name: H. Xxx Xxx Xxxxx
Title: Chief Operating Officer
XXXXX ARC INVESTORS LIMITED PARTNERSHIP
By: Xxxxx Interests Limited Partnership
Its: General Partner
By: Xxxxx Holdings, Inc.
Its: General Partner
By:
-------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
DWS CAPITAL LLC
By:
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Name: Xxxxxxx X. Xxxxxxxxxxx
Title: Managing Member
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BOSTON PROPERTIES LIMITED PARTNERSHIP
By: Boston Properties, Inc.
Its: General Partner
By:
-------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President
BCI GROWTH V, L.P.
By:
-------------------------------------
Name:
Title:
BCI INVESTORS, INC.
By:
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Name:
Title:
FIRST UNION INVESTORS, INC.
By:
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Name:
Title:
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TRIZECHAHN CORPORATION
By:
-------------------------------------
Name:
Title:
VORNADO REALTY L.P
By: Vornado Realty Trust
Its: General Partner
By:
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Name:
Title:
TRANSWESTERN STRATEGIC PARTNERS, L.L.C.
By:
-------------------------------------
Name:
Title:
CHASE EQUITY ASSOCIATES, L.P.
By:
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Name:
Title:
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SCHEDULE 1
1. TrizecHahn Corporation
2. Cornerstone Properties Limited Partnership
3. EOP Operating Limited Partnership
4. Boston Properties Limited Partnership
5. Vornado Realty L.P.
6. DWS Capital LLC
7. Transwestern Commercial Services, L.L.C.
8. Hines ARC Investors Limited Partnership
9. BCI Growth V, L.P. and BCI Investors, Inc.
10. Chase Equity Associates, L.P.
11. First Union Investors, Inc.
