EXHIBIT H
COGENT COMMUNICATIONS GROUP, INC.
SIXTH AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT
THIS STOCKHOLDERS AGREEMENT (this "Agreement") is made as of the 9th
day of February, 2005 by and among (i) Cogent Communications Group, Inc., a
Delaware corporation (the "Company"), (ii) Xxxxx Xxxxxxxxx (the "Founder") and
(iii) those persons whose names are set forth under the heading "Purchasers" on
Schedule I hereto (the "Purchasers").
WITNESSETH:
WHEREAS, in connection with this Agreement, the Stockholders listed
on Schedule 1 as Purchasers hereto intend to convert their shares of Preferred
Stock, as defined below, into shares of the Company's common stock, par value
$.001 per share ("Common Stock");
WHEREAS, the Founder and certain of the Purchasers who purchased the
Series F Participating Convertible Preferred Stock, par value $.001 per share
("Series F Preferred Stock"), of the Company, the various sub-series of Series G
Participating Convertible Preferred Stock, par value $.001 per share
(collectively, the "Series G Preferred Stock"), of the Company, the Series I
Participating Convertible Preferred Stock, par value $.001 per share ("Series I
Preferred Stock"), of the Company, the Series J Participating Convertible
Preferred Stock, par value $.001 per share ("Series J Preferred Stock"), the
Series K Participating Convertible Preferred Stock, par value $.001 per share
("Series K Preferred Stock"), the Series L Participating Convertible Preferred
Stock, par value $.001 per share ("Series L Preferred Stock") and the Series M
Participating Convertible Preferred Stock, par value $.001 per share ("Series M
Preferred Stock"), of the Company, (collectively, the Series F Preferred Stock,
Series G Preferred Stock, Series I Preferred Stock, Series J Preferred Stock,
Series K Preferred Stock, Series L Preferred Stock and Series M Preferred Stock
shall be known as the "Preferred Stock"), are parties to that certain Fifth
Amended and Restated Stockholders Agreement, dated as of October 26, 2004 (the
"Fifth A&R Stockholders Agreement"), and the Company, the Founder and such
Purchasers, constituting signatories sufficient under Section 15 of the Fifth
A&R Stockholders Agreement to amend the Fifth A&R Stockholders Agreement, desire
to amend and restate the Fifth A&R Stockholders Agreement as set forth herein
and execute and deliver this Agreement, setting forth herein certain terms and
conditions governing their relative ownership of the Shares (as hereinafter
defined);
NOW THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the Company, the Founder and the Purchasers
hereby agree as follows:
1. Prohibited Transfers. The Founder shall not sell, assign,
transfer, pledge, hypothecate, mortgage or dispose of, by gift or otherwise, or
in any way encumber, all or any part of the Shares (as hereinafter defined)
owned by him except in compliance with the terms of this Agreement. For purposes
of this Agreement, the term "Shares" shall mean and include all shares of Common
Stock of the Company and all shares of any class or series of equity securities
or equity-backed securities of the Company or any subsidiary, including without
limitation, capital stock (including any shares of treasury stock) or rights,
options, warrants or other securities convertible into or exercisable or
exchangeable for capital stock or any debt security which by its terms is
convertible into or exchangeable for any equity security or has any other equity
feature or any security that is a combination of debt and equity, in any event
that is owned by the Founder, whether presently held or hereafter acquired.
2. Purchasers' Right of Refusal on Dispositions made by the Founder.
Except as set forth in Section 4, if the Founder wishes to sell, assign,
transfer or otherwise dispose of any or all Shares owned by him pursuant to the
terms of a bona fide offer received from a third party at any time prior to the
earlier six months from the date of this Agreement or the consummation of a
firmly underwritten public offering pursuant to an effective registration
statement under the Securities Act of 1933, as amended (a "Qualified Offering"),
the Founder shall submit a written offer to sell such Shares to the Purchasers
(with a copy to the Company) on terms and conditions, including price, not less
favorable to the Purchasers than those on which the Founder proposes to sell
such Shares to such third party (the "Offer"). The Offer shall disclose the
identity of the proposed purchaser or transferee, the Shares proposed to be sold
or transferred, the agreed terms of the sale or transfer and any other material
facts relating to the sale or transfer. Within thirty (30) days after receipt of
the Offer, each Purchaser and each Qualified Transferee, if any, shall give
notice to the Founder of its intent to purchase all or any portion of the
offered Shares on the same terms and conditions as set forth in the Offer. Each
Purchaser and Qualified Transferee shall have the right to purchase that number
of the Shares as to which the Offer applies as shall be equal to the aggregate
number of such Shares multiplied by a fraction, the numerator of which is the
number of shares of Common Stock of the Company then owned by such Purchaser or
Qualified Transferee (as applicable) (calculated on an as converted to Common
Stock basis, and including any shares of Common Stock deemed to be beneficially
owned by such Purchaser pursuant to Rule 13d-3 promulgated under the Securities
Exchange Act of 1934 ("Rule 13d-3")) and the denominator of which is the
aggregate number of shares of said Common Stock then issued and outstanding and
held by (and deemed to be beneficially owned by) all the Purchasers (calculated
on an as converted to Common Stock basis). The amount of Shares each Purchaser
or Qualified Transferee, as that term is defined below, is entitled to purchase
under this Section 2 shall be referred to as such Purchaser's "Pro Rata
Fraction." Each Purchaser shall have the right to transfer his right to any Pro
Rata Fraction or part thereof to any Qualified Transferee. If any Purchaser or
Qualified Transferee does not wish to purchase or to transfer his right to
purchase his Pro Rata Fraction (such shares, the "Remaining Offered Shares"),
then any Purchasers or Qualified Transferees who so elect shall have the right
to purchase, on a pro rata basis with any other Purchasers or Qualified
Transferees who so elect, any Pro Rata Fraction not purchased by a Purchaser or
Qualified Transferee. Each Purchaser or Qualified Transferee shall act upon the
Offer as soon as practicable after receipt from the Company of notice that a
Purchaser or Qualified Transferee has not elected to purchase all of the offered
Shares, and in all events within fifteen (15) days after receipt thereof. Each
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Purchaser and Qualified Transferee shall have the right to accept the Offer as
to all or part of the Remaining Offered Shares offered thereby. If a Purchaser
or Qualified Transferee shall elect to purchase all or part of such Purchaser's
or Qualified Transferee's Pro Rata Fraction, said Purchaser or Qualified
Transferee shall individually communicate in writing such election to purchase
to whichever of the Purchasers has made the Offer, which communication shall be
delivered by hand or delivered to such Purchaser at the address set forth in
Section 8 below and shall, when taken in conjunction with the Offer be deemed to
constitute a valid, legally binding and enforceable agreement for the sale and
purchase of the Shares covered thereby.
If the Purchasers, taken together, do not agree to purchase all of
the Shares offered by the Founder pursuant to the Offer, and consummate such
purchase within the later of forty-five (45) days after receipt of the Offer and
twenty (20) days after the Company shall have notified each Purchaser and
Qualified Transferee of Remaining Offered Shares, such Shares subject to the
Offer as shall not have been purchased may be sold by the Founder at any time
within 90 days after the expiration of the Offer, but subject to the provisions
of Section 3 below. Any such sale shall be at not less than the price and upon
other terms and conditions, if any, not more favorable to the purchaser than
those specified in the Offer. Any Shares not sold within such 90-day period
shall continue to be subject to the requirements of a prior offer and re-sale
pursuant to this Section.
For purposes hereof, a "Qualified Transferee" shall mean any person
(i) who is a Purchaser, (ii) who is an "affiliated person" of a Purchaser, as
that term is defined in the Investment Company Act of 1940, or (iii) who is a
partner, member or stockholder of a Purchaser that is a partnership, limited
liability company or corporation, as applicable, and who is offered a pro rata
right, based on his, her or its interest in the Purchaser, to acquire the Shares
offered by a Purchaser pursuant to this Section 2.
3. Purchasers' Right of Participation in Sales made by the Founder.
Except as set forth in Section 4, if at any time the Founder wishes to sell,
transfer or otherwise dispose of any Shares owned by him to any person (the
"Acquiror") in a transaction which is subject to the provisions of Section 2
hereof, and such sale, transfer or other disposition would, when combined with
all prior sales, transfers and other dispositions by the Founder, result in the
transfer by the Founder of Shares representing more than twenty-five percent
(25%) of the total number of shares held by the Founder (the "Founder's Stock"),
each Purchaser shall have the right to require, as a condition to such sale or
disposition, that the Acquiror purchase from said Purchaser at the same price
per Share and on the same terms and conditions as involved in such sale or
disposition by the Founder the same percentage of shares of Common Stock owned
(and deemed to be beneficially owned under Rule 13d-3) by such Purchaser as such
sale or disposition represents with respect to the number of shares of Founder's
Stock (calculated on an as converted to Common Stock, fully diluted basis) owned
by the Founder immediately prior to such sale. Each Purchaser wishing so to
participate in any such sale or disposition shall notify the Founder of such
intention as soon as practicable after receipt of the Offer made pursuant to
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Section 2, and in all events within fifteen (15) days after receipt thereof. If
a Purchaser shall elect to participate in such sale or disposition, said
Purchaser shall individually communicate such election to the Founder, which
communication shall be delivered by hand or mailed to the Founder at the address
set forth in Section 8 below. The Founder and/or each participating Purchaser
shall sell to the Acquiror all, or at the option of the Acquiror, any part of
the Stock (as defined in Section 5 below) proposed to be sold by them at not
less than the price and upon other terms and conditions, if any, not more
favorable to the Acquiror than those set forth in the Offer; provided, however,
that any purchase of less than all of such Stock by the Acquiror shall be made
from the Founder and/or each participating Purchaser based upon a fraction, the
numerator of which is the number of shares of Stock of the Company then owned by
the Founder or such participating Purchaser (including any shares of Common
Stock deemed to be owned under Rule 13d-3) and the denominator of which is the
aggregate number of shares of Stock held by (and deemed to be held by) the
Founder and all of the participating Purchasers. The Founder shall use his
commercially reasonable efforts to obtain the agreement of the Acquiror to the
participation of the participating Purchasers in the contemplated sale, and
shall not sell any Stock to such Acquiror if such Acquiror declines to permit
the participating Purchasers to participate pursuant to the terms of this
Section 3. The provisions of this Section 3 shall not apply to the sale of any
Shares by the Founder (i) to a Purchaser pursuant to an Offer under Section 2 or
(ii) made upon or after the occurrence of a Qualified Offering, the sale of the
Company or control thereof, whether by merger, sale, recapitalization or similar
corporate event or the transfer of more than a majority of its capital stock
(calculated on an as converted to Common Stock, fully diluted basis) or assets
(each such event in this clause (ii), a "Corporate Event").
4. Permitted Transfers. Anything herein to the contrary
notwithstanding, the provisions of Sections 1, 2 and 3 shall not apply to: (a)
any transfer of Shares by the Founder by gift or bequest or through inheritance
to, or for the benefit of, any member or members of his immediate family; (b)
any transfer of Shares by the Founder to a trust in respect of which he serves
as trustee, provided that the trust instrument governing said trust shall
provide that Founder, as trustee, shall retain sole and exclusive control over
the voting and disposition of said Shares until the termination of the
applicable restrictions on transfer under this Agreement; (c) any sale of Common
Stock in a public offering pursuant to a registration statement filed by the
Company with the Securities and Exchange Commission; (d) any repurchase of
Shares from officers, employees, directors or consultants of the Company which
are subject to restrictive stock purchase agreements under which the Company has
the option to repurchase such shares upon the occurrence of certain events,
including termination of employment; and (e) any pledge, hypothecation or other
similar financing transaction in which the Founder continues to have the sole
and exclusive authority and right to vote the shares subject to such pledge,
hypothecation or other financing transaction. In the event of any such transfer,
other than pursuant to subsection (c) of this Section 4, the transferee of the
Shares shall hold the Shares so acquired with all the rights conferred by, and
subject to all the restrictions imposed by, this Agreement on the party from
whom the transferee received the Shares, and as a condition to such transfer,
each such transferee shall execute and deliver a written agreement agreeing to
be bound by the provisions of this Agreement.
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5. Election of Directors.
(a) Election of Directors. Each of the parties hereto agrees to vote
all of the Stock (as hereinafter defined and that entitles the holder thereof to
vote in the election of the Board of Directors) now owned or hereafter acquired
by such party (and attend, in person or by proxy, all meetings of stockholders
called for the purpose of electing directors), and the Company agrees to take
all actions (including, but not limited to the nomination of specified persons)
to cause and maintain the election to the Board of Directors of the Company, to
the extent permitted pursuant to the Company's certificate of incorporation, of
the following:
(i) two (2) individuals designated by the Founder (one of the
designees under this subsection shall initially be Xxxxx Xxxxxxxxx);
(ii) two (2) individuals designated by the holders of a majority
in interest of the Shares owned as of the date hereof by Jerusalem Venture
Partners and certain of its affiliates (the designees under this subsection
shall initially be Xxxx Xxxxxxxx and Xxxxxxx Xxxxx);
(iii) one (1) individual designated by the holders of a majority
in interest of the Shares owned as of the date hereof by Worldview Technology
Partners and certain of its affiliates (the designee under this subsection shall
initially be Xxx Xxxxxxxxxx);
(iv) one (1) individual designated by the holders of a majority
in interest of the Shares owned as of the date hereof by Oak Investment Partners
and certain of its affiliates (the designee under this subsection shall
initially be Xxxxxx Xxxxxxxxxx);
(v) one (1) individual designated by the holders of a majority
in interest of the Shares owned as of the date hereof by Broadview Capital
Partners and certain of its affiliates (the designee under this subsection shall
initially be Xxxxxx Xxxxxx); and
(vi) one (1) individual designated by BNP Europe Telecom & Media
Fund II, LP (the designee under this subsection shall initially be Xxxx-Xxxxxxx
Xxxxxxxx);
(vii) one (1) individual designated by Columbia Ventures
Corporation (the designee under this subsection shall initially be Xxxxxxx
Xxxxxxxx); and
(viii) a three (3) member Compensation Committee, one of the
members of which shall be nominated by the directors elected pursuant to
subparagraph (i) above and who shall not be the Founder and two of the members
of which shall be nominated by the directors elected pursuant to subparagraphs
(ii), (iii), (iv) and (v) above.
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Each of the parties further covenants and agrees to vote, to the
extent possible, all Stock of the Company now owned or hereafter acquired by
such party so that (i) the Company's Board of Directors shall consist of ten
(10) members, nine (9) of whom shall be nominated or designated as set forth
above and the tenth of whom shall be an independent director nominated by the
Company's Board of Directors, (ii) the Compensation Committee thereof shall
consist of three (3) members, each of whom shall be nominated as set forth
above, and (iii) the Board of Directors may appoint up to four persons as
observers at each meeting of the Board of Directors and any committee (other
than the Compensation Committee) thereof, provided that at least one of such
observers shall be selected by the director designated by BNP Europe Telecom &
Media Fund II, LP. For the purposes of this Agreement, "Stock" shall mean and
include all Preferred Stock and Common Stock and all other securities of the
Company which may be exchangeable for or issued in exchange for or in respect of
shares of Common Stock (whether by way of stock split, stock dividends,
combination, reclassification, reorganization or any other means).
In the absence of any designation from the persons or groups so
designating directors as specified above, the director previously designated by
them and then serving shall be reelected if still eligible to serve as provided
herein.
No party hereto shall vote to remove any member of the Board of
Directors or the Compensation Committee thereof designated in accordance with
the aforesaid procedure unless the persons or groups so designating directors as
specified above so vote, and, if such persons or groups so vote then the
non-designating party or parties shall likewise so vote.
Any vacancy on the Board of Directors or the Compensation Committee
thereof created by the resignation, removal, incapacity or death of any person
designated under this Section 5 shall be filled by another person designated in
a manner so as to preserve the constituency of the Board or such Committee as
provided above.
(b) [Reserved]
6. Right of Participation in Sales by the Company.
(a) Right of Participation. Except as provided in Section 6(f) of
this Agreement, the Company shall not issue, sell or exchange, agree or obligate
itself to issue, sell or exchange, or reserve or set aside for issuance, sale or
exchange, any (i) shares of Common Stock, (ii) any other equity security of the
Company, including without limitation, shares of preferred stock, (iii) any debt
security of the Company (other than debt with no equity feature) including
without limitation, any debt security which by its terms is convertible into or
exchangeable for any equity security of the Company, (iv) any security of the
Company that is a combination of debt and equity, or (v) any option, warrant or
other right to subscribe for, purchase or otherwise acquire any such equity
security or any such debt security of the Company, unless in each case the
Company shall have first offered to sell such securities (the "Offered
Securities") to the Purchasers who hold individually or together with their
affiliates at least 2,500,000 Shares of the Common Stock, as adjusted for stock
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splits, stock dividends, reclassifications, recapitalizations or other similar
events, (such Purchasers being referred to as the "Participating Stockholders")
as follows: The Company shall offer to sell to each Participating Stockholder
(a) that portion of the Offered Securities as the number of shares of Common
Stock (including all shares of capital stock convertible into Common Stock, on a
fully-diluted basis) then held by such Participating Stockholder, as the case
may be, bears to the total number of shares of Common Stock (including all
shares of capital stock convertible into Common Stock, on a fully-diluted basis)
of the Company then outstanding (the "Basic Amount," and the aggregate of the
Basic Amounts of all Participating Stockholders being referred to as the
"Aggregate Basic Amount"), and (b) such additional portion of the Aggregate
Basic Amount as such Participating Stockholder shall indicate it will purchase
should the other Participating Stockholders subscribe for less than their Basic
Amounts (the "Undersubscription Amount"), at a price and on such other terms as
shall have been specified by the Company in writing delivered to such
Participating Stockholder (the "Offer"), which Offer by its terms shall remain
open and irrevocable for a period of twenty (20) days from receipt of the offer.
(b) Notice of Acceptance. Notice of each Participating Stockholder's
intention to accept, in whole or in part, any Offer made pursuant to Section
6(a) shall be evidenced by a writing signed by such Participating Stockholder
and delivered to the Company prior to the end of the 20-day period of such
offer, setting forth such of the Participating Stockholder's Basic Amount as
such Participating Stockholder elects to purchase and, if such Participating
Stockholder shall elect to purchase all of its Basic Amount, such
Undersubscription Amount as such Participating Stockholder shall elect to
purchase (the "Notice of Acceptance"). If the Basic Amounts subscribed for by
all Participating Stockholders are less than the total Aggregate Basic Amount,
then each Participating Stockholder who has set forth Undersubscription Amounts
in its Notice of Acceptance shall be entitled to purchase, in addition to the
Basic Amounts subscribed for, all Undersubscription Amounts it has subscribed
for; provided, however, that should the Undersubscription Amounts subscribed for
exceed the difference between the Aggregate Basic Amount and the Basic Amounts
subscribed for (the "Available Undersubscription Amount"), each Participating
Stockholder who has subscribed for any Undersubscription Amount shall be
entitled to purchase only that portion of the Available Undersubscription Amount
as the Undersubscription Amount subscribed for by such Participating Stockholder
bears to the total Undersubscription Amounts subscribed for by all Participating
Stockholders, subject to rounding by the Board of Directors to the extent it
reasonably deems necessary.
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(c) Conditions to Acceptances and Purchase.
(i) Permitted Sales of Refused Securities. If Notices of
Acceptance are not given by the Participating Stockholders in respect of all the
Aggregate Basic Amount, the Company shall have ninety (90) days from the
expiration of the period set forth in Section 6(a) to close the sale of all or
any part of such Aggregate Basic Amount as to which a Notice of Acceptance has
not been given by the Participating Stockholders (the "Refused Securities") to
the person or persons specified in the Offer, but only for cash and otherwise in
all respects upon terms and conditions, including, without limitation, unit
price and interest rates, which are no more favorable, in the aggregate, to such
other person or persons or less favorable to the Company than those set forth in
the Offer.
(ii) Reduction in Amount of Offered Securities. If the Company
shall propose to sell less than all the Refused Securities (any such sale to be
in the manner and on the terms specified in Section 6(c)(i) above), then each
Participating Stockholder may, at its sole option and in its sole discretion,
reduce the number of, or other units of the Offered Securities specified in its
respective Notices of Acceptance to an amount which shall be not less than the
amount of the Offered Securities which the Participating Stockholder elected to
purchase pursuant to Section 6(b) multiplied by a fraction, (A) the numerator of
which shall be the amount of Offered Securities which the Company actually
proposes to sell, and (B) the denominator of which shall be the amount of all
Offered Securities. In the event that any Participating Stockholder so elects to
reduce the number or amount of Offered Securities specified in its respective
Notices of Acceptance, the Company may not sell or otherwise dispose of more
than the reduced amount of the Offered Securities until such securities have
again been offered to the Participating Stockholders in accordance with Section
6(a).
(iii) Closing. Upon the closing, which shall include full
payment to the Company, of the sale to such other person or persons of all or
less than all the Refused Securities, the Participating Stockholders shall
purchase from the Company, and the Company shall sell to the Participating
Stockholders, the number of Offered Securities specified in the Notices of
Acceptance, as reduced pursuant to Section 6(c)(ii) if the Participating
Stockholders have so elected, upon the terms and conditions specified in the
Offer. The purchase by the Participating Stockholders of any Offered Securities
is subject in all cases to the preparation, execution and delivery by the
Company and the Participating Stockholders of a purchase agreement relating to
such Offered Securities reasonably satisfactory in form and substance to the
Participating Stockholders and their respective counsel.
(d) Further Sale. In each case, any Offered Securities not purchased
by the Participating Stockholders or other person or persons in accordance with
Section 6(c) may not be sold or otherwise disposed of until they are again
offered to the Participating Stockholders under the procedures specified in
Sections 6(a), 6(b) and 6(c).
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(e) Termination of Right of Participation. The rights of the
Participating Stockholders under this Section 6 shall terminate immediately
prior to the consummation of a Qualified Offering.
(f) Exception. The rights of the Participating Stockholders under
this Section 6 shall not apply to:
(i) Common Stock issued as a stock dividend to holders of Common
Stock or upon any subdivision or combination of shares of Common Stock,
(ii) shares of any series of preferred stock issued as a
dividend to holders of such series of preferred stock upon any subdivision or
combination of shares of such series of preferred stock,
(iii) shares of Common Stock issued or issuable upon conversion
of preferred stock or other securities of the Company convertible into Common
Stock,
(iv) up to 29,268,461 shares of Common Stock issued or issuable
pursuant to options, warrants or other rights (as adjusted for any stock
dividends, combinations, splits, recapitalizations and the like) issued to
employees, officers or directors of, or consultants or advisors to the Company
or any subsidiary pursuant to stock purchase or stock option plans or other
arrangements that are approved by the Board of Directors,
(v) Common Stock issued pursuant to the acquisition of another
corporation by the Company by merger (whereby the Company owns no less than 51%
of the voting power of such corporation) or purchase of substantially all of its
stock or assets, if such acquisition is approved by a majority of the Directors
nominated in the manner set forth in Section 5 hereof,
(vi) Common Stock offered to the public pursuant to a
registration statement filed under the Securities Act,
(vii) Common Stock, or options or warrants to purchase Common
Stock, issued to financial institutions or lessors in connection with commercial
credit arrangements, equipment financings or similar transactions, as approved
by the two-thirds (2/3rds) of the then sitting members of the Board of
Directors, and
(viii) the issuance of Common Stock upon the conversion of the
Notes or the issuance of additional convertible debt or equity as a paid-in-kind
interest payment the Notes approved by the Board of Directors.
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(g) Waiver. The rights of the Purchasers under this Section 6 may be
waived in any instance, on behalf of all of the Purchasers, prospectively or
retroactively, by the written agreement of the holders of two-thirds in interest
of the Common Stock owned beneficially or of record by the Purchasers. Upon
waiver of the rights of the Purchasers in accordance with this subsection (g)
with respect to a particular issuance, sale or exchange of Offered Securities,
the Purchasers shall be excluded from the definition of "Participating
Stockholders" for purposes of this Section 6 with respect to such issuance, sale
or exchange.
7. Termination. This Agreement, and the respective rights and
obligations of the parties hereto, shall terminate upon the earliest to occur of
the following: (i) the completion of a Qualified Offering, provided that the
obligations of Section 9 shall survive such termination; or (ii) the sale of the
Company, whether by merger, sale, or transfer of more than ninety percent (90%)
of its capital stock, or sale of substantially all of its assets. In addition,
any Purchaser or Qualified Transferee may elect to terminate its rights and
obligations with respect to any or all of Sections 2, 3 or 5 by providing
written notice of such election to the Company at any time.
8. Notices. All notices and other communications hereunder shall be
in writing and shall be deemed to have been given when delivered or mailed by
first class, registered or certified mail (air mail if to or from outside the
United States), return receipt requested, postage prepaid, or by
internationally, recognized overnight courier service (two business days after
deposit with such overnight courier service in the case of deliveries to
non-U.S. residents), if to each Purchaser at his respective address set forth on
Schedule I hereto, and if to the Founder, at his address set forth on Schedule I
hereto or to such other address as the addressee shall have furnished to the
other parties hereto in the manner prescribed by this Section 8.
9. Lock-up Agreement. Each of the Purchasers and holders of Founder's
Stock hereby agrees in connection with the Company's Qualified Offering, upon
the request of the principal underwriter managing the Qualified Offering of the
Company, not to sell publicly any Shares now owned or hereafter acquired by him,
her or it and subject to this Agreement (other than Shares being registered in
such offering or any shares purchased in the open market after the Company's
initial public offering) without the prior written consent of such underwriter
for a period of time (not to exceed ninety (90) days) from the consummation of
such Qualified Offering as the underwriter may specify, in all events subject to
the provisions of Section 13(f) of a certain Seventh Amended and Restated
Registration Rights Agreement dated as of October 26, 2004.
10. Failure to Deliver Shares. If the Founder becomes obligated to
sell any Shares owned by, or held for the benefit of, such Purchaser to the
Founder, another Purchaser or a Qualified Transferee under this Agreement and
fails to deliver such shares in accordance with the terms of this Agreement, the
Founder or such Purchaser, as applicable, may, at his or its option, in addition
to all other remedies it may have, send to the Company for the benefit of such
selling Purchaser the purchase price for such Shares as is herein specified.
Thereupon, the Company upon written notice to said Purchaser, (a) shall cancel
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on its books the certificate(s) representing the Shares to be sold and (b) shall
issue, in lieu thereof, in the name of the Founder or such Purchaser, as
applicable, a new certificate(s) representing such Shares, and thereupon all of
said Purchaser's rights in and to such shares shall terminate. The Company may
exercise a similar remedy in enforcing its rights under Section 2. If the
Founder transfers any shares to a Purchaser in violation of this Agreement, the
Company may, at the election of a majority of the disinterested members of the
Board of Directors, cancel on the books of the Company any shares of capital
stock then held by the Founder, and compel the Founder to purchase from any
transferee a number of shares of capital stock equal to the amount so
transferred in violation of this Agreement.
11. Specific Performance. The rights of the parties under this
Agreement are unique and, accordingly, the parties shall, in addition to such
other remedies as may be available to any of them at law or in equity, have the
right to enforce their rights hereunder by actions for specific performance to
the extent permitted by law.
12. Legend. Until this Agreement terminates in full, the certificates
representing the Shares shall bear on their face a legend indicating the
existence of the restrictions imposed hereby. After the Qualified Offering, the
Company shall not issue or deliver to any transfer agent a stop transfer notice
with respect to any Shares, the transfer of which is permitted pursuant to Rule
144(k) and the Securities Act of 1933.
13. Entire Agreement. This Agreement (including any and all exhibits,
schedules and other instruments contemplated thereby) constitutes the entire
agreement among the parties with respect to the subject matter hereof and
supersedes all prior agreements and understandings between them or any of them
as to such subject matter.
14. Waivers and Further Agreements. Except as otherwise expressly set
forth herein, the rights of the Purchasers and holders of Founder's Stock under
this Agreement may be waived by an instrument in writing executed and delivered
by Purchasers holding at least two-thirds in interest of the Stock, on an as if
converted to Common Stock basis, then held or deemed to be held by all
Purchasers and holders of Founder's Stock; provided, however, that the rights
set forth in Section 5 with respect to the designation of the Board of Directors
of the Company may not be waived without the prior written consent of the
constituency affected by such waiver, which waiver shall be obtained in a manner
consistent with, and shall require the same percentages prescribed in, Section
5. Any waiver by any party of a breach of any provision of this Agreement shall
not operate or be construed as a waiver of any subsequent breach of that
provision or of any other provision hereof. Each of the parties hereto agrees to
execute all such further instruments and documents and to take all such further
action as any other party may reasonably require in order to effectuate the
terms and purposes of this Agreement. Notwithstanding the foregoing, no waiver
approved in accordance herewith shall be effective if and to the extent that
such waiver grants to any one or more Purchasers or holders of Founder's Stock
any rights more favorable than any rights granted to all other Purchasers and
holders of Founder's Stock or otherwise treats any one or more of such parties
differently than all other such parties.
11
15. Amendments. Except as otherwise expressly provided herein, this
Agreement may not be amended except by an instrument in writing executed by (i)
holders of at least two-thirds in interest of the Stock of the Purchasers, and
(ii) the Company. Notwithstanding the foregoing, no amendment approved in
accordance with this Section 15 shall be effective if and to the extent that
such amendment (i) creates any additional affirmative obligations to be complied
with by any or all of the Purchasers and holders of Founder's Stock unless
approved by holders of all of the Stock then outstanding and/or (ii) adversely
affects any of the Founder's rights existing under this Agreement prior to such
amendment in a manner that is inconsistent with, or disproportionate to, the
effect of such amendment on the other parties hereto and/or (iii) adversely
affects any Purchaser's rights existing under this Agreement prior to such
amendment in a manner that is inconsistent with, or disproportionate to, the
effect of such amendment on the other Purchasers. In addition, the rights set
forth in Section 5 with respect to the designation of the Board of Directors of
the Company may not be amended without the prior written consent of the
constituency affected by such amendment, which consent shall be obtained in a
manner consistent with Section 5.
16. Assignment; Successors and Assigns. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective heirs, executors, legal representatives, successors and permitted
transferees, except as may be expressly provided otherwise herein, and provided,
further, that no Purchaser may transfer its rights or obligations hereunder
except to a Qualified Transferee.
17. Severability. In case any one or more of the provisions contained
in this Agreement shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision of this Agreement and such invalid, illegal
and unenforceable provision shall be reformed and construed so that it will be
valid, legal, and enforceable to the maximum extent permitted by law.
18. Counterparts. This Agreement may be executed 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.
20. Section Headings. The headings contained in this Agreement are
for reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
21. Governing Law. This Agreement shall be construed and enforced in
accordance with and governed by the laws of the State of New York.
22. Fifth A&R Stockholders Agreement. This Agreement amends and
restates the Fifth A&R Stockholders Agreement by, among other things,
eliminating reference to the Preferred Stock of the Company. Upon and after the
execution of this Agreement, the Fifth A&R Stockholders Agreement shall be
terminated and of no further force and effect.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
12
IN WITNESS WHEREOF, the parties hereto have executed this SIXTH
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT as of the date first above written.
[Signature Page to Sixth Amended and Restated Stockholders Agreement]
OAK INVESTMENT PARTNERS IX,
LIMITED PARTNERSHIP
By: Oak Associates IX, LLC, its General Partner
By: /s/ Xxxxxx Xxxxxxxxxx
------------------------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Managing Member
OAK IX AFFILIATES FUND, LIMITED PARTNERSHIP
By: Oak IX Affiliates, LLC, its General Partner
By: /s/ Xxxxxx Xxxxxxxxxx
------------------------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Managing Member
OAK IX AFFILIATES FUND-A, LIMITED PARTNERSHIP
By: Oak Associates IX, LLC, its General Partner
By: /s/ Xxxxxx Xxxxxxxxxx
------------------------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Managing Member
13
[Signature Page to Sixth Amended and Restated Stockholders Agreement -
Continued]
JERUSALEM VENTURE PARTNERS III, L.P.
By: Jerusalem Partners III, L.P., its General Partner
By: Jerusalem Venture Partners Corporation, its
General Partner
By: /s/ Xxxx Xxxxxxxx
--------------------------------------------------
Name: Xxxx Xxxxxxxx
JERUSALEM VENTURE PARTNERS III
(ISRAEL), L.P.
By: Jerusalem Venture Partners III (Israel) Management
Company Ltd., its General Partner
By: /s/ Xxxx Xxxxxxxx
--------------------------------------------------
Name: Xxxx Xxxxxxxx
JERUSALEM VENTURE PARTNERS
ENTREPRENEURS FUND III, L.P.
By: Jerusalem Partners III, L.P., its General Partner
By: Jerusalem Venture Partners Corporation, its
General Partner
By: /s/ Xxxx Xxxxxxxx
--------------------------------------------------
Name: Xxxx Xxxxxxxx
14
[Signature Page to Sixth Amended and Restated Stockholders Agreement -
Continued]
JERUSALEM VENTURE PARTNERS IV, L.P.
By: Jerusalem Partners IV, L.P., its General Partner
By: JVP Corp IV, its General Partner
By: /s/ Xxxx Xxxxxxxx
-----------------------------------------------
Name: Xxxx Xxxxxxxx
JERUSALEM VENTURE PARTNERS IV (Israel), L.P.
By: Jerusalem Partners IV - Venture Capital, L.P.,
its General Partner
By: JVP Corp IV, its General Partner
By: /s/ Xxxx Xxxxxxxx
-----------------------------------------------
Name: Xxxx Xxxxxxxx
JERUSALEM VENTURE PARTNERS IV-A, L.P.
By: Jerusalem Venture Partners IV, L.P., its General
Partner
By: JVP Corp IV, its General Partner
By: /s/ Xxxx Xxxxxxxx
-----------------------------------------------
Name: Xxxx Xxxxxxxx
JERUSALEM VENTURE PARTNERS
ENTREPRENEURS FUND IV, L.P.
By: Jerusalem Venture Partners IV, L.P., its General
Partner
By: JVP Corp IV, its General Partner
By: /s/ Xxxx Xxxxxxxx
-----------------------------------------------
Name: Xxxx Xxxxxxxx
15
[Signature Page to Sixth Amended and Restated Stockholders Agreement -
Continued]
WORLDVIEW TECHNOLOGY PARTNERS III, L.P.
WORLDVIEW TECHNOLOGY INTERNATIONAL III, L.P.
WORLDVIEW STRATEGIC PARTNERS III, L.P.
WORLDVIEW III CARRIER FUND, L.P.
By: Worldview Capital III, L.P., its General Partner
By: /s/ Xxxxx Xxx
-----------------------------------------------
Name: Xxxxx Xxx
WORLDVIEW TECHNOLOGY
PARTNERS IV, L.P.
WORLDVIEW TECHNOLOGY
INTERNATIONAL IV, L.P.
WORLDVIEW STRATEGIC PARTNERS IV, L.P.
By: Worldview Capital IV, L.P., its General Partner
By: /s/ Xxxxx Xxx
-----------------------------------------------
Name: Xxxxx Xxx
16
[Signature Page to Sixth Amended and Restated Stockholders Agreement -
Continued]
BCP CAPITAL, L.P.
By: BCP General LLC, its General Partner
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
BCP CAPITAL QPF, L.P.
By: BCP General LLC, its General Partner
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
BCP AFFILIATES FUND LLC
By: BCP Capital Management LLC, its Manage
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
17
[Signature Page to Sixth Amended and Restated Stockholders Agreement -
Continued]
BOULDER VENTURES IV, L.P.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxx
Title: General Partner
BOULDER VENTURES IV (ANNEX), L.P.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxx
Title: General Partner
18
[Signature Page to Sixth Amended and Restated Stockholders Agreement -
Continued]
NAS PARTNERS I L.L.C.
By: Nassau Capital LLC,
its General Partner
By: /s/ Xxxxxxx X. Hack
-----------------------------------
Name: Xxxxxxx X. Hack
Title: Managing Member
NASSAU CAPITAL PARTNERS IV L.P.
By: Nassau Capital LLC,
its General Partner
By: /s/ Xxxxxxx X. Hack
-----------------------------------
Name: Xxxxxxx X. Hack
Title: Managing Member
19
[Signature Page to Sixth Amended and Restated Stockholders Agreement -
Continued]
BNP EUROPE TELECOM & MEDIA FUND II, LP
By: /s/ Xxxxxx Xxxxxxxxx
-------------------------------------------------
/s/ Xxxxxx Xxxxxxx
-------------------------------------------------
Name: Xxxxxx Xxxxxxxxx & Xxxxxx Xxxxxxx
Title: Authorized Signatories
By: General Business, Finance and Investment Ltd.,
its General Partner and By: Commerce Advisory Services
Ltd, as Director and Partnership Secretary
NATIO VIE DEVELOPPEMENT 3, FCPR
By: /s/ Xxxxxxx d'Hotelans
-------------------------------------------------
Name: Xxxxxxx d'Hotelans
Title: Directeur Associe
20
[Signature Page to Sixth Amended and Restated Stockholders Agreement -
Continued]
CISCO SYSTEMS CAPITAL CORPORATION
By: /s/ Xxxxx X. Xxxxx
-----------------------------
Name: Xxxxx X. Xxxxx
Title: President, Cisco Capital
21
[Signature Page to Sixth Amended and Restated Stockholders Agreement -
Continued]
By: /s/ Xxxxx Xxxxxxxxx
------------------------------------------
Xxxxx Xxxxxxxxx
THE XXXXXXXXX DESCENDENTS TRUST
By: /s/ Xxxx Xxxxxxxxx
------------------------------------------
Xxxx Xxxxxxxxx
COGENT COMMUNICATIONS GROUP, INC.
By: /s/ Xxxxx Xxxxxxxxx
------------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Chairman and Chief Executive Officer
22
[Signature Page to Sixth Amended and Restated Stockholders Agreement -
Continued]
UFO COMMUNICATIONS, INC.
By: /s/ Xxx Xxxxxxxx
----------------------------------
Name: Xxx Xxxxxxxx
Title: Chairman
23
[Signature Page to Sixth Amended and Restated Stockholders Agreement -
Continued]
PALADIN CAPITAL PARTNERS FUND, L.P.
By: Paladin General Holdings, LLC
Its General Partner
By: /s/ Xxxxx X. Xxxxx, Xx.
--------------------------------------
Name: Xxxxx X. Xxxxx, Xx.
Title: President
WORLDWIDE INVESTMENTS, LLC
By: Worldwide Assets, Inc., its Sole Member
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chairman & Chief Executive Officer
0000 XXXX. XXX. INVESTMENTS, LLC
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
24
[Signature Page to Sixth Amended and Restated Stockholders Agreement -
Continued]
XXXXX XXXXXX PACIFIC, L.P.
By: Xxxxx Xxxxxx Pacific Advisors, LLC,
its General Partner
By: /s/ Xxx Xxxxxxxx
------------------------------------
Name: Xxx Xxxxxxxx
Title: Member
XXXXX XXXXXX PACIFIC FRIENDS FUND, LLC
By: Xxxxx Xxxxxx Pacific Advisors, LLC,
its Managing Member
By: /s/ Xxx Xxxxxxxx
------------------------------------
Name: Xxx Xxxxxxxx
Title: Member
BROADMARK CAPITAL, L.L.C.
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: President
25
[Signature Page to Sixth Amended and Restated Stockholders Agreement -
Continued]
GLOBAL ACCESS TELECOMMUNICATIONS, INC.
By: /s/ Xxxx X. Xxxxx
---------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
26
[Signature Page to Sixth Amended and Restated Stockholders Agreement -
Continued]
COLUMBIA VENTURES CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx, Xx.
-----------------------------
Name: Xxxxxxx X. Xxxxxxxx, Xx.
Title: Chief Executive Officer
27
[Signature Page to Sixth Amended and Restated Stockholders Agreement -
Continued]
APPLEGREEN CAPITAL, INC.
By: /s/ Xxxxx Xxxx
------------------------------
Name: Xxxxx Xxxx
Title: President
28
[Signature Page to Sixth Amended and Restated Stockholders Agreement -
Continued]
KARSTEN BLUE
/s/ Karsten Blue
------------------------------------
29
Schedule 1
----------
Cisco Systems Capital Corporation
Xxxxx Xxxxxxxxx
Xxxx X. Xxxxxxxxx, Trustee of the Xxxxxxxxx Descendents Trust
Xxxxxx Xxxx
Xxxxx Xxxxxx
Xxxxx Xxxxxx
Xxxxxx Xx
Xxxxxxx Xxxxxx
Xxxxx Xxxxxxx
Xxxxxxxx Xxxx
C Xxxxx Partners, XX
X. Xxxxx Partners II, XX
X. Xxxxx Fund, Ltd.
BNP Europe Telecom & Media Fund II, LP c/o CIBC Financial Center
11 Xx. Xxx'x Drive, 3rd Floor
P.O. Box 694 GT
Grand Cayman
Cayman Islands, B.W.I.
Natio vie Developpement 3, FCPR BNP Private Equity
00, xxxxxxxxx Xxxxxxxx
00000 Xxxxx
Xxxxxx
Jerusalem Venture Partners III (Israel), L.P. Jerusalem Technology Park
Jerusalem Venture Partners IV (Israel), X.X. Xxxxxxxx Xxx
Xxxxx, Xxxxxxxxx 00000
Attn: Xxxx Xxxxxxxx
Jerusalem Venture Partners III, L.P. 000 Xxxxx Xxxxxx
Xxxxxxxxx Venture Partners Entrepreneurs Fund III, L.P. Suite 195
Jerusalem Venture Partners IV, L.P. Xxx Xxxx, XX 00000
Jerusalem Venture Partners IV-A, L.P.
Jerusalem Venture Partners Entrepreneurs Fund IV, L.P.
Oak Investment Partners IX, LP One Xxxxxx Island
Oak IX Affiliates Fund, LP Xxxxxxxx, XX 00000
Oak IX Affiliates Fund-A, LP Attn: Xx Xxxxxxxxxx
Worldview Technology Partners III, LP 000 Xxxxx Xxxxxx #000
Xxxxxxxxx Technology International III, LP Xxxx Xxxx, XX 00000
30
Worldview Strategic Partners III, LP
Worldview III Carrier Fund, LP
Boulder Ventures IV, LP 0000 Xxxxxx Xxxxx Xxxx.
Boulder Ventures IV (Annex), LP Xxxxxx Xxxxx, XX 00000
Attn: Xxxx Xxxxx
Nassau Capital Partners IV, LP Capstone Capitl L.L.C.
NAS Partners I, LLC 0000 Xxxxxxxx Xxxx Xxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Hack
BCP Capital, L.P. BCP Capital Management LLC
BCP Capital QPF, L.P. One Maritime Plaza, Suite 2525
BCP Affiliates Fund Llc Xxx Xxxxxxxxx, XX 00000 Attn: Xxxxx Xxxxxxx
Paladin Capital Partners Fund, L.P. 0000 Xxxxxxxxxxxx Xxxxxx XX
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Worldwide Investments, LLC Worldwide Investments, LLC
c/o Worldwide Assets, Inc.
X.X. Xxx 00000
Xxx Xxxxx, XX 00000
0000 Xxxx. Xxx. Investments, LLC 0000 Xxxxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Xxxxx Xxxxxx Pacific, L.P. 00000 Xxx Xxxxxxx Xxxx., Xxxxx 000
Xxx Xxxxxxx, XX 00000
Xxxxx Xxxxxx Pacific Friends Fund, LLC 00000 Xxx Xxxxxxx Xxxx., Xxxxx 000
Xxx Xxxxxxx, XX 00000
Broadmark Capital 0000 Xxx Xxxxx Xxxxxx
000 Xxxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
UFO Communications, Inc. 00 Xxxxxxx Xx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Columbia Ventures Corporation
Comdisco, Inc.
ACON Venture Partners, LP
Clipperbay & Co.
Covestco-Venture, LLC
2M Technology Ventures, L.P.
31
