-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, TcGoGMQX8B89a+28RS8KfpkEOmJgls1JpP5UR5/4E6mL9KF6UA06swnD4bJYpQeF jHpxSAPRs9D/hPLAVGC5qw== 0000909518-05-000243.txt : 20050414 0000909518-05-000243.hdr.sgml : 20050414 20050414142904 ACCESSION NUMBER: 0000909518-05-000243 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20050414 DATE AS OF CHANGE: 20050414 GROUP MEMBERS: BNP PRIVATE EQUITY SAS GROUP MEMBERS: GENERAL BUSINESS FINANCE AND INVESTMENTS, LTD. GROUP MEMBERS: NATIO VIE DEVELOPEMENT 3, FONDS COMMUN DE PLACEMENT A RISQUE SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: COGENT COMMUNICATIONS GROUP INC CENTRAL INDEX KEY: 0001158324 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 522337274 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-78106 FILM NUMBER: 05750439 BUSINESS ADDRESS: STREET 1: 1015 31ST STREET CITY: WASHINGTON STATE: DC ZIP: 20007 BUSINESS PHONE: 2022954200 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: BNP EUROPE TE LECOM & MEDIA FUND II LP CENTRAL INDEX KEY: 0001189776 IRS NUMBER: 000000000 FILING VALUES: FORM TYPE: SC 13D/A MAIL ADDRESS: STREET 1: CIBC FINANCIAL CENTRE STREET 2: 3RD FLOOR, PO BOX 694 GT, II DR ROYS DR CITY: GRAND CAYMAN ISLANDS STATE: E9 ZIP: 00000 SC 13D/A 1 jd4-11_13da3.txt SEC 1746 Potential persons who are to respond to the collection of information contained in this form are (11-02) not required to respond unless the form displays a currently valid OMB control number. -------------------------------- OMB Number: 3235-0145 -------------------------------- Expires: December 31, 2005 -------------------------------- Estimated average burden hours per response. . . 11 -------------------------------- UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D/A Under the Securities Exchange Act of 1934 (Amendment No. 3)* Cogent Communications Group Inc. - -------------------------------------------------------------------------------- (Name of Issuer) Common Stock, $0.001 par value per share - -------------------------------------------------------------------------------- (Title of Class of Securities) 19239V104 - -------------------------------------------------------------------------------- (CUSIP Number) Richard Pelletier BNP Europe Telecom & Media Fund II, L.P. c/o CIBC Financial Center, Third Floor, 11, Dr. Roy's Drive, P.O. Box 694 GT Grand Cayman, Cayman Islands, British West Indies - -------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) February 15, 2005 - -------------------------------------------------------------------------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of ss.ss.240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. [ ] Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See ss.240.13d-7 for other parties to whom copies are to be sent. * The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). 2 CUSIP No. 19239V104 - -------------------------------------------------------------------------------- 1. Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only). BNP Europe Telecom & Media Fund II, L.P. Not applicable - -------------------------------------------------------------------------------- 2. Check the Appropriate Box if a Member of a Group (See Instructions) (a) (b) X - -------------------------------------------------------------------------------- 3. SEC Use Only - -------------------------------------------------------------------------------- 4. Source of Funds WC - -------------------------------------------------------------------------------- 5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) Not applicable - -------------------------------------------------------------------------------- 6. Citizenship or Place of Organization Cayman Islands, British West Indies - -------------------------------------------------------------------------------- Number of Shares Beneficially Owned by Each Reporting Person With 7. Sole Voting Power 4,277,743.34 (1) - -------------------------------------------------------------------------------- 8. Shared Voting Power 0 - -------------------------------------------------------------------------------- 9. Sole Dispositive Power 4,277,743.34(1) - -------------------------------------------------------------------------------- 10. Shared Dispositive Power 0 - -------------------------------------------------------------------------------- 11. Aggregate Amount Beneficially Owned by Each Reporting Person 4,277,743.34 (1) - -------------------------------------------------------------------------------- 12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) [ ] - -------------------------------------------------------------------------------- 13. Percent of Class Represented by Amount in Row (11) 12.68% - -------------------------------------------------------------------------------- 14. Type of Reporting Person (See Instructions) PN - -------------------------------------------------------------------------------- (1) Includes 4,045,257.28 shares of common stock, par value $0.001 per share (the "Common Stock") of Cogent Communications Group, Inc. (the "Company") held of record by BNP Europe Telecom & Media Fund II, L.P. ("BNP ETMF") and 232,486.05 shares of Common Stock held of record by Natio Vie Developpement 3, Fonds Commun de Placement a Risque ("NVD3"). BNP ETMF may be deemed to beneficially own such shares held by NVD3 by virtue of their relationship, whereby BNP Private Equity SAS ("BNP PE") is the management company and general partner of NVD3, and BNP PE shares certain common directors with General Business Finance and Investment Ltd. ("GBFI"), the general partner of BNP ETMF. BNP PE, as the general partner of NVD3, has voting and dispositive power over those shares owned by NVD3. BNP PE also serves as an investment advisor to BNP ETMF; however, BNP PE does not have voting power or dispositive control over the shares held by BNP ETMF. 3 CUSIP No. 19239V104 - -------------------------------------------------------------------------------- 1. Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only). General Business Finance and Investments, Ltd. Not applicable - -------------------------------------------------------------------------------- 2. Check the Appropriate Box if a Member of a Group (See Instructions) (a) (b) X - -------------------------------------------------------------------------------- 3. SEC Use Only - -------------------------------------------------------------------------------- 4. Source of Funds WC - -------------------------------------------------------------------------------- 5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) Not applicable - -------------------------------------------------------------------------------- 6. Citizenship or Place of Organization Cayman Islands, British West Indies - -------------------------------------------------------------------------------- Number of Shares Beneficially Owned by Each Reporting Person With 7. Sole Voting Power 4,277,743.34 (2) - -------------------------------------------------------------------------------- 8. Shared Voting Power 0 - -------------------------------------------------------------------------------- 9. Sole Dispositive Power 4,277,743.34 (2) - -------------------------------------------------------------------------------- 10. Shared Dispositive Power 0 - -------------------------------------------------------------------------------- 11. Aggregate Amount Beneficially Owned by Each Reporting Person 4,277,743.34 (2) - -------------------------------------------------------------------------------- 12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) [ ] - -------------------------------------------------------------------------------- 13. Percent of Class Represented by Amount in Row (11) 12.68% - -------------------------------------------------------------------------------- 14. Type of Reporting Person (See Instructions) PN - -------------------------------------------------------------------------------- (2) Includes 4,045,257.28 shares of Common Stock held of record by BNP ETMF and 232,486.05 shares of Common Stock held of record by NVD3. BNP ETMF may be deemed to beneficially own such shares held by NVD3 by virtue of their relationship, whereby BNP PE is the management company and general partner of NVD3, and BNP PE shares certain common directors with GBFI, the general partner of BNP ETMF. BNP PE, as the general partner of NVD3, has voting and dispositive power over those shares owned by NVD3. BNP PE also serves as an investment advisor to BNP ETMF; however, BNP PE does not have voting power or dispositive control over the shares held by BNP ETMF. 4 CUSIP No. 19239V104 - -------------------------------------------------------------------------------- 1. Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only). Natio Vie Developpement 3, Fonds Commun de Placement a Risque Not applicable - -------------------------------------------------------------------------------- 2. Check the Appropriate Box if a Member of a Group (See Instructions) (a) (b) X - -------------------------------------------------------------------------------- 3. SEC Use Only - -------------------------------------------------------------------------------- 4. Source of Funds WC - -------------------------------------------------------------------------------- 5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) Not applicable - -------------------------------------------------------------------------------- 6. Citizenship or Place of Organization France - -------------------------------------------------------------------------------- Number of Shares Beneficially Owned by Each Reporting Person With 7. Sole Voting Power 4,277,743.34 (3) - -------------------------------------------------------------------------------- 8. Shared Voting Power 0 - -------------------------------------------------------------------------------- 9. Sole Dispositive Power 4,277,743.34 (3) - -------------------------------------------------------------------------------- 10. Shared Dispositive Power 0 - -------------------------------------------------------------------------------- 11. Aggregate Amount Beneficially Owned by Each Reporting Person 4,277,743.34 (3) - -------------------------------------------------------------------------------- 12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) [ ] - -------------------------------------------------------------------------------- 13. Percent of Class Represented by Amount in Row (11) 12.68% - -------------------------------------------------------------------------------- 14. Type of Reporting Person (See Instructions) PN - -------------------------------------------------------------------------------- (3) Includes 4,045,257.28 shares of Common Stock held of record by BNP ETMF and 232,486.05 shares of Common Stock held of record by NVD3. BNP ETMF may be deemed to beneficially own such shares held by NVD3 by virtue of their relationship, whereby BNP PE is the management company and general partner of NVD3, and BNP PE shares certain common directors with GBFI, the general partner of BNP ETMF. BNP PE, as the general partner of NVD3, has voting and dispositive power over those shares owned by NVD3. BNP PE also serves as an investment advisor to BNP ETMF; however, BNP PE does not have voting power or dispositive control over the shares held by BNP ETMF. 5 CUSIP No. 19239V104 - -------------------------------------------------------------------------------- 1. Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only). BNP Private Equity SAS Not applicable - -------------------------------------------------------------------------------- 2. Check the Appropriate Box if a Member of a Group (See Instructions) (a) (b) X - -------------------------------------------------------------------------------- 3. SEC Use Only - -------------------------------------------------------------------------------- 4. Source of Funds WC - -------------------------------------------------------------------------------- 5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) Not applicable - -------------------------------------------------------------------------------- 6. Citizenship or Place of Organization France - -------------------------------------------------------------------------------- Number of Shares Beneficially Owned by Each Reporting Person With 7. Sole Voting Power 4,277,743.34 (4) - -------------------------------------------------------------------------------- 8. Shared Voting Power 0 - -------------------------------------------------------------------------------- 9. Sole Dispositive Power 4,277,743.34 (4) - -------------------------------------------------------------------------------- 10. Shared Dispositive Power 0 - -------------------------------------------------------------------------------- 11. Aggregate Amount Beneficially Owned by Each Reporting Person 4,277,743.34 (4) - -------------------------------------------------------------------------------- 12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) [ ] - -------------------------------------------------------------------------------- 13. Percent of Class Represented by Amount in Row (11) 12.68% - -------------------------------------------------------------------------------- 14. Type of Reporting Person (See Instructions) PN - -------------------------------------------------------------------------------- (4) Includes 4,045,257.28 shares of Common Stock held of record by BNP ETMF and 232,486.05 shares of Common Stock held of record by NVD3. BNP ETMF may be deemed to beneficially own such shares held by NVD3 by virtue of their relationship, whereby BNP PE is the management company and general partner of NVD3, and BNP PE shares certain common directors with GBFI, the general partner of BNP ETMF. BNP PE, as the general partner of NVD3, has voting and dispositive power over those shares owned by NVD3. BNP PE also serves as an investment advisor to BNP ETMF; however, BNP PE does not have voting power or dispositive control over the shares held by BNP ETMF. 6 STATEMENT ON SCHEDULE 13D This Amendment No. 3 to the Statement on Schedule 13D supplements and amends Amendment No. 2 to the Statement on Schedule 13D filed by BNP Europe Telecom & Media Fund II, L.P., a limited partnership formed under the laws of the Cayman Islands, British West Indies ("BNP ETMF"), General Business Finance and Investments, Ltd., a company formed under the laws of the Cayman Islands, British West Indies ("GBFI"), Natio Vie Developpement 3, Fonds Commun de Placement a Risque, a limited partnership formed under the laws of France ("NVD3") and BNP Private Equity SAS, a societe anonyme formed under the laws of France ("BNP PE" and together with BNP ETMF, GBFI and NVD3, the "Reporting Persons") with the Securities and Exchange Commission on December 17, 2004 (the "Previous Filing"). This Amendment No. 3 is being filed to report the conversion of the Series I Preferred Stock, the Series J Preferred Stock and the Series M Preferred Stock held by the Reporting Persons in Cogent Communications Group, Inc., a Delaware corporation (the "Company") into common stock, par value $0.001 per share (the "Common Stock") of the Company. Following the conversion, the Company approved a 1-for-20 reverse stock split of all of its Common Stock. After the reverse stock split, the Company had 33,726,274 shares of Common Stock issued and outstanding. All percentages and amounts of Common Stock referred to herein have been calculated after giving effect to the reverse stock split, unless the context otherwise requires. Only those items that are hereby reported are amended; all other items remain unchanged. All capitalized terms shall have the meanings assigned to them in the Previous Filing, unless otherwise indicated herein. ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION Item 3 is hereby amended and supplemented by the addition of the following paragraphs: On February 9, 2005, BNP ETMF and NVD3, together with all the holders of the Company's Series F Preferred Stock, Series G Preferred Stock, Series H Preferred Stock, Series I Preferred Stock, Series J Preferred Stock, Series K Preferred Stock, Series L Preferred Stock and Series M Preferred Stock (together, the "Preferred Stock"), irrevocably agreed to convert all of their shares of Preferred Stock into Common Stock in the Company (the "Conversion"). The Conversion was effected through a Conversion and Lock-up Agreement, dated as of February 9, 2005, among the Company, BNP ETMF, NVD3 and certain other holders of the Preferred Stock, attached as Exhibit G hereto (the "Conversion and Lock-up Agreement"). The Conversion was consummated on February 15, 2005, and, as of this date, BNP ETMF was deemed to be the beneficial holder of 80,905,145.69 shares of Common Stock and NVD3 was deemed to be the beneficial holder of 4,649,721.02 shares of Common Stock. Following the reverse stock split, BNP ETMF was deemed to be the beneficial holder of 4,045,257.28 shares of Common Stock and NVD3 was deemed to be the beneficial holder of 232,486.05 shares of Common Stock. The shares of Series I Preferred Stock, Series J Preferred Stock and Series M Preferred Stock held by BNP ETMF and NVD3 were converted in accordance with the conversion mechanisms detailed in the Series I Certificate of Designations, Series J Certificate of Designations and Series M Certificate of Designations, respectively. Each share of Series I Preferred Stock was converted into 6,199.628022 shares of Common Stock; each share of Series J Preferred Stock was converted into 30,998.140112 shares of Common Stock; and each share of Series M Preferred Stock was converted into 30,998.140112 shares of Common Stock. This Item 3 (and other Items of this statement) does not provide a complete description of the Conversion and Lock-up Agreement or the Certificates of Designations and each such description is qualified in its entirety by reference to the respective agreement or document which the Reporting Persons have filed as Exhibits B, D, F and G to this form. 7 ITEM 4. PURPOSE OF TRANSACTION The last seven paragraphs contained in Item 4 are hereby deleted and replaced by the following: Conversion and Lock-up Agreement. The Conversion and Lock-up Agreement restrict sales of the Company's Common Stock by the stockholders party thereto for a period of six (6) months following the date the Conversion and Lock-up Agreement was executed. Pursuant to the Conversion and Lock-up Agreement, each of the stockholders may sell no more than their pro rata shares equal to 0.33 percent of the total outstanding Common Stock of the Company (approximately 100,000 shares of Common Stock) during any one month period, and a total of two percent (2%) of the Company's common stock over the six (6) month lock-up period. During the lock-up period, each stockholder may not exercise its right to require the Company to register shares of such stockholder's Common Stock pursuant to the Registration Rights Agreement (hereinafter defined); provided that the stockholders shall be entitled to exercise their "piggyback" registration rights pursuant to the Registration Rights Agreement during the lock-up period. Stockholders Agreement. In connection with the Conversion, the Fifth Amended and Restated Stockholders Agreement, dated as of October 26, 2004, by and among BNP ETMF, NVD3, the Company and certain other stockholders of the Company was further amended and restated by a Sixth Amended and Restated Stockholders Agreement, dated as of February 9, 2005, by and among the Company and certain stockholders of the Company, attached hereto as Exhibit H (the "Stockholders Agreement") in order to, among other things, eliminate references to the Preferred Stock and to eliminate certain protective provisions. Stockholders Agreement - Board Representation. Pursuant to the terms of the Stockholders Agreement, certain investors are entitled to nominate persons to the Board of Directors of the Company, and each of the stockholders that is a party to the Stockholders Agreement agrees to votes its shares of Common Stock to elect such persons to the Board of Directors of the Company. BNP ETMF is currently entitled to nominate one (1) member to the current nine- (9) member Board of Directors of the Company. NVD3 is not entitled to nominate any members to the Board of Directors of the Company; however, NVD3 is required to vote its Common Stock to elect the persons nominated by the other stockholders pursuant to the Stockholders Agreement to the Board of Directors of the Company. Stockholders Agreement - Right of First Offer With Respect to Additional Issuances of Securities by the Company. Pursuant to the terms of the Stockholders Agreement, the Company is obligated to offer any additional sales or other issuances of securities of the Company first to the stockholders who are a party to the Stockholders Agreement and hold at least a certain number of shares of Common Stock of the Company as set forth in the Stockholders Agreement. As of the date hereof, the Reporting Persons are entitled to such right of first offer. Stockholders Agreement - Right of First Refusal and Right of Participation With Respect to Stock Held by David Schaeffer. Pursuant to the terms of the Stockholders Agreement, the stockholders who are a party to the Stockholders Agreement have a right of first refusal and a right of participation with respect to certain dispositions of securities held by David Schaeffer. 8 Registration Rights Agreement - Registration of Shares of Common Stock for Resale. In connection with, and as a pre-condition to, the NVA Agreement and Plan of Merger, the Sixth Amended and Restated Registration Rights Agreement by and among BNP ETMF, NVD3, the Company and certain other stockholders was further amended and restated by a Seventh Amended and Restated Registration Rights Agreement, dated as of October 26, 2004, among the Company and certain stockholders of the Company, attached hereto as Exhibit I (the "Registration Rights Agreement"). Pursuant to the terms of the Registration Rights Agreement, at any time after the earlier of (i) July 31, 2006 and (ii) the date that is 6 months after the first public offering of securities of the Company after the date of the Registration Rights Agreement, the holders of more than 50% of the Common Stock issued or issuable upon the conversion of 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 (or otherwise distributed in respect of 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) may request the Company to register the Common Stock issued or issuable upon the conversion of 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 (or otherwise distributed in respect of 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). The foregoing summary of the Gamma Agreement and Plan of Merger, the Omega Agreement and Plan of Merger, the NVA Agreement and Plan of Merger, the Certificates of Designations, the Conversion and Lock-up Agreement, the Stockholders Agreement and the Registration Rights Agreement and the agreements and transactions contemplated thereby is qualified in its entirety by reference to the Gamma Agreement and Plan of Merger, the Omega Agreement and Plan of Merger, the NVA Agreement and Plan of Merger, the Certificates of Designations, the Conversion and Lock-up Agreement, the Stockholders Agreement and the Registration Rights Agreement attached as Exhibits A-I hereto, and incorporated herein by reference. Except as set forth above in this statement, none of the Reporting Persons has any present plans or proposals that relate to or would result in: (i) the acquisition by any person of additional securities of the Company, or the disposition of securities of the Company; (ii) an extraordinary corporate transaction, such as a merger, reorganization or liquidation, involving the Company or any of its subsidiaries; (iii) a sale or transfer of a material amount of assets of the Company or any of its subsidiaries; (iv) any change in the present Board of Directors or management of the Company, including any plans or proposals to change the number or term of directors or to fill any existing vacancies on the board; (v) any material change in the present capitalization or dividend policy of the Company; (vi) any other material change in the Company's business or corporate structure; (vii) changes in the Company's charter, by-laws or instruments corresponding thereto or other actions which may impede the acquisition of control of the Company by any person; (viii) a class of securities of the Company to be delisted from a national securities exchange or to cease to be authorized to be quoted in an inter-dealer quotation system of a registered national securities association; (ix) a class of equity securities of the Company becoming eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act; or (x) any action similar to any of those enumerated above. 9 ITEM 5. INTEREST IN SECURITIES OF THE ISSUER Item 5 is hereby amended and restated in its entirety as follows: (a) and (b) The approximate percentages of shares of Common Stock reported as beneficially owned by the Reporting Persons is based upon 33,726,274 shares of Common Stock issued and outstanding, as reported by the Company to the Reporting Persons, of which 30,067,939 shares are owned by various investors, 2,241,749 shares are held by David Schaeffer, 495,154 shares are held by the management team other than David Schaeffer, 301,118 shares are publicly traded, 61,463 shares are Company treasury shares and 558,851 are reserved for issuance upon conversion of the Company's options and warrants. Amounts shown as beneficially owned by each of BNP ETMF, GBFI, NVD3 and BNP PE include 4,277,743.34 shares of Common Stock of the Company. (c) Except as set forth in Item 4 above, none of the Reporting Persons has effected any transaction in the Common Stock during the past 60 days. (d) Except as set forth in this Item 5, no person other than each respective record owner of securities referred to herein is known to have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, such securities. (e) Not applicable. 10 ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER Item 6 is hereby amended and restated in its entirety as follows: Pursuant to Rule 13d-1(k) promulgated under the Exchange Act, the Reporting Persons have entered into the Gamma Agreement and Plan of Merger, the Omega Agreement and Plan of Merger and the NVA Agreement and Plan of Merger which are attached hereto as Exhibits A, C and E respectively. The Gamma Agreement and Plan of Merger was entered into as of January 5, 2004, the Omega Agreement and Plan of Merger was entered into as of March 30, 2004 and the NVA Agreement and Plan of Merger was entered into as of October 26, 2004. Certain terms and conditions of these agreements and the Certificates of Designations are described in Items 3 - 5 above. The Conversion and Lock-up Agreement was entered into as of February 9, 2005 by the Company, BNP ETMF, NVD3 and certain other stockholders listed on Schedule I to the Conversion and Lock-up Agreement which is attached hereto as Exhibit G. Certain terms and conditions of the Conversion and Lock-up Agreement are described in Items 3 and 4 above. The Stockholders Agreement was entered into as of February 9, 2005 by the Company, BNP ETMF, NVD3 and certain other stockholders whose names are set forth on Schedule I to the Stockholders Agreement which is attached hereto as Exhibit H. Certain terms and conditions of the Stockholders Agreement are described in Item 4 above. The Registration Rights Agreement was entered into as of October 26, 2004. The Registration Rights Agreement is attached hereto as Exhibit I. Certain terms and conditions of the Registration Rights Agreement are described in Item 4 above. 11 ITEM 7. MATERIAL TO BE FILED AS EXHIBITS. Item 7 is hereby amended and restated in its entirety as follows: - ------------------ ------------------------------------------------------------- EXHIBIT A Agreement and Plan of Merger by and among the Company, Lux Merger Sub, Inc. and Symposium Gamma, Inc., dated January 5, 2004 (filed as Exhibit 2.1 to the Company's filing on Form 8-K on January 8, 2004). - ----------------- -------------------------------------------------------------- EXHIBIT B Certificate of Designations, Preferences and Rights of Series I Preferred Stock of the Company (filed as Exhibit B to the Reporting Person's filing for Cogent Communications Group Inc. on Form 13D on April 14, 2004). - ----------------- -------------------------------------------------------------- EXHIBIT C Agreement and Plan of Merger by and among the Company, DE Merger Sub, Inc. and Symposium Omega, Inc., dated March 30, 2004 (filed as Exhibit 2.6 to the Company's filing on Form 10-K on March 30, 2004). - ----------------- -------------------------------------------------------------- EXHIBIT D Certificate of Designations, Preferences and Rights of Series J Preferred Stock of the Company (filed as Exhibit D to the Reporting Person's filing for Cogent Communications Group Inc. on Form 13D on April 14, 2004). - ----------------- -------------------------------------------------------------- EXHIBIT E Agreement and Plan of Merger by and among the Company, NVA Acquisition, Inc. and Cogent Potomac, Inc., dated October 26, 2004 (filed as Exhibit E to the to the Reporting Person's filing for Cogent Communications Group Inc. on Form 13D/A on December 17, 2004). - ----------------- -------------------------------------------------------------- EXHIBIT F Certificate of Designations, Preferences and Rights of Series M Preferred Stock of the Company (filed as Exhibit F to the to the Reporting Person's filing for Cogent Communications Group Inc. on Form 13D/A on December 17, 2004). - ----------------- -------------------------------------------------------------- EXHIBIT G Conversion and Lock-up Agreement, dated as of February 9, 2005. - ----------------- -------------------------------------------------------------- EXHIBIT H Sixth Amended and Restated Stockholders Agreement, dated as of February 9, 2005. - ----------------- -------------------------------------------------------------- EXHIBIT I Seventh Amended and Restated Registration Rights Agreement, dated as of October 26, 2004 (filed as Exhibit H to the to the Reporting Person's filing for Cogent Communications Group Inc. on Form 13D/A on December 17, 2004). - ----------------- -------------------------------------------------------------- 12 Signature After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Date: April 13, 2005 /s/ Richard Pelletier - -------------------------------------- Name: Richard Pelletier Title: Authorized Signatory /s/ Jennifer Fischetti - -------------------------------------- Name: Jennifer Fischetti Title: Authorized Signatory GENERAL BUSINESS FINANCE AND INVESTMENTS LTD. and BNP EUROPE TELECOM & MEDIA FUND II, LP, by General Business Finance and Investments Ltd., its General Partner by Commerce Advisory Limited, its Partnership Secretary /s/ Bernard d'Hotelans - -------------------------------------- Name: Bernard d'Hotelans Title: Fund Manger BNP PRIVATE EQUITY SA and NATIO VIE DEVELOPPEMENT 3, FONDS COMMUN DE PLACEMENT A RISQUE, by BNP Private Equity SA, its General Partner The original statement shall be signed by each person on whose behalf the statement is filed or his authorized representative. If the statement is signed on behalf of a person by his authorized representative (other than an executive officer or general partner of the filing person), evidence of the representative's authority to sign on behalf of such person shall be filed with the statement: provided, however, that a power of attorney for this purpose which is already on file with the Commission may be incorporated by reference. The name and any title of each person who signs the statement shall be typed or printed beneath his signature. Attention: Intentional misstatements or omissions of fact constitute Federal criminal violations (See 18 U.S.C. 1001) 13 INDEX TO EXHIBITS ----------------- - ------------------ ------------------------------------------------------------- EXHIBIT A Agreement and Plan of Merger by and among the Company, Lux Merger Sub, Inc. and Symposium Gamma, Inc., dated January 5, 2004 (filed as Exhibit 2.1 to the Company's filing on Form 8-K on January 8, 2004). - ----------------- -------------------------------------------------------------- EXHIBIT B Certificate of Designations, Preferences and Rights of Series I Preferred Stock of the Company (filed as Exhibit B to the Reporting Person's filing for Cogent Communications Group Inc. on Form 13D on April 14, 2004). - ----------------- -------------------------------------------------------------- EXHIBIT C Agreement and Plan of Merger by and among the Company, DE Merger Sub, Inc. and Symposium Omega, Inc., dated March 30, 2004 (filed as Exhibit 2.6 to the Company's filing on Form 10-K on March 30, 2004). - ----------------- -------------------------------------------------------------- EXHIBIT D Certificate of Designations, Preferences and Rights of Series J Preferred Stock of the Company (filed as Exhibit D to the Reporting Person's filing for Cogent Communications Group Inc. on Form 13D on April 14, 2004). - ----------------- -------------------------------------------------------------- EXHIBIT E Agreement and Plan of Merger by and among the Company, NVA Acquisition, Inc. and Cogent Potomac, Inc., dated October 26, 2004 (filed as Exhibit E to the to the Reporting Person's filing for Cogent Communications Group Inc. on Form 13D/A on December 17, 2004). - ----------------- -------------------------------------------------------------- EXHIBIT F Certificate of Designations, Preferences and Rights of Series M Preferred Stock of the Company (filed as Exhibit F to the to the Reporting Person's filing for Cogent Communications Group Inc. on Form 13D/A on December 17, 2004). - ----------------- -------------------------------------------------------------- EXHIBIT G Conversion and Lock-up Agreement, dated as of February 9, 2005. - ----------------- -------------------------------------------------------------- EXHIBIT H Sixth Amended and Restated Stockholders Agreement, dated as of February 9, 2005. - ----------------- -------------------------------------------------------------- EXHIBIT I Seventh Amended and Restated Registration Rights Agreement, dated as of October 26, 2004 (filed as Exhibit H to the to the Reporting Person's filing for Cogent Communications Group Inc. on Form 13D/A on December 17, 2004). - ----------------- -------------------------------------------------------------- EX-99 2 jd4-11ex_g.txt G EXHIBIT G CONVERSION AND LOCK-UP LETTER AGREEMENT February 9, 2005 Cogent Communications Group, Inc. 1051 31st Street, N.W. Washington, DC 20007 Re: COGENT COMMUNICATIONS GROUP INC. Ladies and Gentlemen: THIS CONVERSION AND LOCK-UP LETTER 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") and (ii) those stockholders of the Company whose names are set forth on Schedule I hereto (the "Stockholders"). The Company understands that the Stockholders propose to convert their shares of the Company's Series F Participating Convertible Preferred Stock, par value $.001 per share (the "Series F Preferred Stock"), Series G Participating Convertible Preferred Stock, par value $.001 per share (the "Series G Preferred Stock"), Series I Participating Convertible Preferred Stock, par value $.001 per share (the "Series I Preferred Stock"), Series J Participating Convertible Preferred Stock, par value $.001 per share (the "Series J Preferred Stock"), Series K Participating Convertible Preferred Stock, par value $.001 per share (the "Series K Preferred Stock"), Series L Participating Convertible Preferred Stock, par value $.001 per share (the "Series L Preferred Stock") and Series M Participating Convertible Preferred Stock, par value $.001 per share (the "Series M Preferred Stock" and together with the Series F Preferred Stock, the Series G Preferred Stock, the Series I Preferred Stock, the Series J Preferred Stock, the Series K Preferred Stock, and the Series L Preferred Stock, the "Preferred Stock") into shares of the Company's common stock, par value $.001 per share (the "Common Stock") and with respect to such shares of Preferred Stock that are converted into shares of Common Stock and any other shares of Common Stock now or hereafter beneficially owned by the Stockholders, which conversion will occur concurrently with the conversion of all outstanding shares of the Company's Series H Participating Convertible Preferred Stock, par value $.001 per share, the undersigned Stockholders hereby irrevocably agree as follows: (i) that the public trading price of the Company's Common Stock on the American Stock Exchange at the close of the third (3rd) business day after the issuance by the Company of a press release disclosing that the holders of Preferred Stock intend to convert such shares of Preferred Stock into shares of Common Stock (the "Announcement") shall be the price at which the value of each Stockholder's shares in the Company, including shares of Common Stock and shares of Preferred Stock (on an as-if-converted-to-Common Stock basis), is determined (the "Controlling Price") for purposes only of Section (iii) hereof; (ii) that on the fifth (5th) business day after the Announcement, each Stockholder shall deliver to the Company written notice ("Written Notice") of such Stockholder's dollar value of Common Stock owned, including in such dollar amount the assumed conversion of all of such Stockholder's shares of Preferred Stock, at the Controlling Price (the "Stockholder's Value") and furthermore, such Written Notice shall include such Stockholder's intention of pursuing the course of action mandated by Section (iii)(x), (iii)(y) or (iii)(z) of this Agreement, as the case may be; (iii) that (x) if the Stockholder's Value is equal to or greater than fifty million dollars ($50,000,000) and if such Stockholder is not otherwise exempt from making an HSR Filing (as defined below), then such Stockholder shall make all necessary filings under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations thereunder ("HSR Filing") within ten (10) business days of providing Written Notice, or (y) if the Stockholder's Value is less than fifty million dollars ($50,000,000) but equal to or greater than twenty five million dollars ($25,000,000) and if such Stockholder is not otherwise exempt from making an HSR Filing, then such Stockholder shall either elect to make an HSR Filing within ten (10) business days of providing Written Notice or elect to convert such Stockholder's shares of Preferred Stock into shares of Common Stock, the conversion of which shall occur immediately after all of the holders of Preferred Stock who have elected to make an HSR Filing have made such HSR Filing, or (z) if the Stockholder's Value is less than twenty five million dollars ($25,000,000), then such Stockholder is not required to take any action; (iv) that the Stockholders will not, without the unanimous prior written consent of the Company and all the other Stockholders, directly or indirectly, during a period of one hundred eighty (180) days from the date of this Agreement (the "Lock-Up Period"), issue, sell, offer or agree to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16-a-1(h) under the Securities Exchange Act of 1934, as amended ("The Act") enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock (whether any such transaction is to be settled by delivery of Common Stock, other securities, cash or other consideration) or otherwise dispose of, any Common Stock (or any securities convertible into, exercisable for or exchangeable for Common Stock) or interest therein of the Company (all of the foregoing transactions shall together be known as "Transactions"), provided, however, that (x) prohibitions with respect to any Transactions shall not apply to the number of shares of Common Stock set forth next to each Stockholder's name on Schedule II hereto (the "Exempted Shares") and furthermore that (y) Transactions (including without limitation distribution to the general partner or limited partners of a Stockholder) may only be made with respect to such number of Exempted Shares in any calendar month as set forth on Schedule III hereto and provided, further, that the foregoing prohibitions shall not apply to a Permitted UFO Transfer; (v) that the Stockholders authorize the Company during the Lock-Up Period to cause the transfer agent (1) to decline to transfer and/or (2) to note stop transfer restrictions on the transfer books and records of the Company and/or (3) to place appropriate legends on the certificates with respect to any shares of Common Stock and any securities convertible into exercisable or exchangeable for Common Stock for which the undersigned is the record holder and, in the case of any such share or securities for which the undersigned is the beneficial but not the record holder, agrees to cause the record holder to cause the transfer agent (1) to decline to transfer and/or (2) to note stop transfer restrictions on such books and records with respect to such shares or securities and/or (3) to place appropriate legends on the certificates; and 2 (vi) that the Stockholders will, upon the sale of any shares of Common Stock or any other transaction requiring filing a Form 4 under Section 16 of The Act on or before April 26, 2005, enter into a settlement agreement with the Company in the form attached hereto as Schedule IV (the "Settlement Agreement") prior to the filing of such Form 4 with the SEC with respect to such sale or transaction, and will deliver payment to the Company within five (5) business days of entering into the Settlement Agreement the amount equal to the short swing profits captured by such Stockholder as a result of such sale requiring a Form 4 filing, calculated pursuant to Section 16 of The Act. The undersigned Stockholders further agree, from the date hereof until the end of the Lock-Up Period, that the undersigned will not exercise and will waive his, her or its rights, if any, to require the Company to register its Common Stock and to receive notice thereof, and further acknowledges that the Company reserves the right to diligently pursue and prosecute any of the undersigned acting in contravention of the foregoing; provided, however, that the foregoing prohibition shall not apply to any registration initiated by the Company for which the undersigned Stockholders are entitled to receive notice thereof and to exercise "piggyback" registration rights. A "Permitted UFO Transfer" shall mean a transfer by UFO Communications, Inc., of all, but not less than all of the capital stock of the Company that it holds at the time of the transfer to any one or more of Paladin Capital Partners Fund, L.P., Kline Hawkes Pacific Friends Fund, LLC, or Kline Hawkes Pacific, L.P., pursuant to which the number of Exempted Shares allocated to UFO Communicatons, Inc. is reduced to zero and the number of Exempted Shares allocated to the transferee(s) is not increased. The undersigned Stockholders hereby represent and warrant that the undersigned has full power and authority to enter into this Agreement, and that, upon request, the undersigned will execute any additional documents necessary in connection with enforcement hereof. Any obligations of the undersigned shall be binding upon the successors and assigns of the undersigned. This Agreement shall terminate and be of no further force and effect upon the consummation of a firmly underwritten public offering of the Common Stock pursuant to an effective registration statement under the Securities Act of 1933, as amended. 3 [Signature Page to Conversion and Lock-Up Letter Agreement] Very truly yours, OAK INVESTMENT PARTNERS IX, LIMITED PARTNERSHIP By: Oak Associates IX, LLC, its General Partner By: /s/ Edward Glassmeyer ------------------------------------------------ Name: Edward Glassmeyer Title: Managing Member OAK IX AFFILIATES FUND, LIMITED PARTNERSHIP By: Oak IX Affiliates, LLC, its General Partner By: /s/ Edward Glassmeyer ----------------------------------------------- Name: Edward Glassmeyer Title: Managing Member OAK IX AFFILIATES FUND-A, LIMITED PARTNERSHIP By: Oak Associates IX, LLC, its General Partner By: /s/ Edward Glassmeyer ----------------------------------------------- Name: Edward Glassmeyer Title: Managing Member 4 [Signature Page to Conversion and Lock-Up Letter Agreement] 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/ Erel Margalit -------------------------------------------------- Name: Erel Margalit JERUSALEM VENTURE PARTNERS III (ISRAEL), L.P. By: Jerusalem Venture Partners III (Israel) Management Company Ltd., its General Partner By: /s/ Erel Margalit -------------------------------------------------- Name: Erel Margalit 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/ Erel Margalit ------------------------------------------------- Name: Erel Margalit 5 [Signature Page to Conversion and Lock-Up Letter Agreement] JERUSALEM VENTURE PARTNERS IV, L.P. By: Jerusalem Partners IV, L.P., its General Partner By: JVP Corp IV, its General Partner By: /s/ Erel Margalit -------------------------------------------------- Name: Erel Margalit 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/ Erel Margalit -------------------------------------------------- Name: Erel Margalit 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/ Erel Margalit -------------------------------------------------- Name: Erel Margalit 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/ Erel Margalit -------------------------------------------------- Name: Erel Margalit 6 [Signature Page to Conversion and Lock-Up Letter Agreement] 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/ James Weil ---------------------------------------------------- Name: James Wei 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/ James Wei ---------------------------------------------------- Name: James Wei 7 [Signature Page to Conversion and Lock-Up Letter Agreement] BCP CAPITAL, L.P. By: BCP General LLC, its General Partner By: /s/ Steven D. Brooks -------------------------------------------- Name: Steven D. Brooks Title: Managing Director BCP CAPITAL QPF, L.P. By: BCP General LLC, its General Partner By: /s/ Steven D. Brooks -------------------------------------------- Name: Steven D. Brooks Title: Managing Director BCP AFFILIATES FUND LLC By: BCP Capital Management LLC, its Manager By: /s/ Steven D. Brooks -------------------------------------------- Name: Steven D. Brooks Title: Managing Director BROADVIEW BCPSBS By: By: /s/ Steven D. Brooks --------------------------------------------- Name: Steven D. Brooks Title: Managing Director 8 [Signature Page to Conversion and Lock-Up Letter Agreement] BOULDER VENTURES IV, L.P. By: /s/ Andrew E. Jones ---------------------------------------- Name: Andrew E. Jones Title: General Partner BOULDER VENTURES IV (ANNEX), L.P. By: /s/ Andrew E. Jones --------------------------------------- Name: Andrew E. Jones Title: General Partner 9 [Signature Page to Conversion and Lock-Up Letter Agreement] NAS PARTNERS I L.L.C. By: Nassau Capital LLC, its General Partner By: /s/ Randall A. Hack ------------------------------------------- Name: Randall A. Hack Title: Managing Member NASSAU CAPITAL PARTNERS IV L.P. By: Nassau Capital LLC, its General Partner By: /s/ Randall A. Hack -------------------------------------------- Name: Randall A. Hack Title: Managing Member 10 [Signature Page to Conversion and Lock-Up Letter Agreement] CISCO SYSTEMS CAPITAL CORPORATION By: /s/ David A. Rogan ------------------------------------ Name: David A. Rogan Title: President 11 [Signature Page to Conversion and Lock-Up Letter Agreement] BNP EUROPE TELECOM & MEDIA FUND II, LP By: /s/ Shawna Morehouse ----------------------------------------------- /s/ Martin Laidlaw ----------------------------------------------- Name: Shawna Morehouse & Martin Laidlaw 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/ Bernard d'Hotelans --------------------------------------------- Name: Bernard d'Hotelans Title: Directeur Associe 12 [Signature Page to Conversion and Lock-Up Letter Agreement] UFO COMMUNICATIONS, INC. By: /s/ Jay Ferguson ------------------------------ Name: Jay Ferguson Title: Chairman 13 [Signature Page to Conversion and Lock-Up Letter Agreement] PALADIN CAPITAL PARTNERS FUND, L.P. By: Paladin General Holdings, LLC Its General Partner By: /s/ Frank J. Hanna, Jr. ------------------------------------- Name: Frank J. Hanna, Jr. Title: President WORLDWIDE INVESTMENTS, LLC By: Worldwide Assets, Inc., its Sole Member By: /s/ Frank J. Hanna, Jr. ------------------------------------ Name: Frank J. Hannah Title: Chairman & Chief Executive Officer 2001 PENN. AVE. INVESTMENTS, LLC By: /s/ Michael R. Steed ------------------------------------- Name: Michael R. Steed Title: President 14 [Signature Page to Conversion and Lock-Up Letter Agreement] KLINE HAWKES PACIFIC, L.P. By: Kline Hawkes Pacific Advisors, LLC, its General Partner By: /s/ Jay Ferguson ---------------------------------------- Name: Jay Ferguson Title: Member KLINE HAWKES PACIFIC FRIENDS FUND, LLC By: Kline Hawkes Pacific Advisors, LLC, its Managing Member By: /s/ Jay Ferguson ---------------------------------------- Name: Jay Ferguson Title: Member BROADMARK CAPITAL, L.L.C. By: /s/ Joseph L. Schocken ---------------------------------------- Name: Joseph L. Schocken Title: President 15 [Signature Page to Conversion and Lock-Up Letter Agreement] GLOBAL ACCESS TELECOMMUNICATIONS, INC. By: /s/ John E. Jones ---------------------------------------- Name: John E. Jones Title: Vice President 16 [Signature Page to Conversion and Lock-Up Letter Agreement] COLUMBIA VENTURES CORPORATION By: /s/ Kenneth Peterson --------------------------------------- Name: Kenneth Peterson Title: Chief Executive Officer 17 [Signature Page to Conversion and Lock-Up Letter Agreement] APPLEGREEN CAPITAL, INC. By: /s/ Brian Rich -------------------------------------- Name: Brian Rich Title: President 18 [Signature Page to Conversion and Lock-Up Letter Agreement] KARSTEN BLUE /s/ Karsten Blue -------------------------------------------- 19 Schedule I - ------------------------------------------------------------------ STOCKHOLDERS PARTY TO THE AGREEMENT - ------------------------------------------------------------------ Oak Investment Partners IX, Limited Partnership - ------------------------------------------------------------------ Oak IX Affiliates Fund, Limited Partnership - ------------------------------------------------------------------ Oak IX Affiliates Fund-A Limited Partnership - ------------------------------------------------------------------ Boulder Ventures III (Annex), LP - ------------------------------------------------------------------ Boulder Ventures III, LP - ------------------------------------------------------------------ Boulder Ventures IV (Annex), LP - ------------------------------------------------------------------ Boulder Ventures IV, LP - ------------------------------------------------------------------ BCP Capital QPF, L.P. - ------------------------------------------------------------------ BCP Capital, L.P. - ------------------------------------------------------------------ BCP Affiliates Fund LLC - ------------------------------------------------------------------ Broadview BCPSBS - ------------------------------------------------------------------ Nassau Capital Partners IV, LP - ------------------------------------------------------------------ NAS Partners I, LLC - ------------------------------------------------------------------ Worldview Technology Partners III, LP - ------------------------------------------------------------------ Worldview Technology International III, LP - ------------------------------------------------------------------ Worldview Strategic Partners III, LP - ------------------------------------------------------------------ Worldview III Carrier Fund, LP - ------------------------------------------------------------------ Worldview Technology Partners IV, LP - ------------------------------------------------------------------ Worldview Technology International IV, LP - ------------------------------------------------------------------ Worldview Strategic Partners IV, LP - ------------------------------------------------------------------ Jerusalem Venture Partners III, LP - ------------------------------------------------------------------ Jerusalem Venture Partners Entrepreneurs Fund, III, LP - ------------------------------------------------------------------ Jerusalem Venture Partners III (Israel) LP - ------------------------------------------------------------------ Jerusalem Venture Partners IV, LP - ------------------------------------------------------------------ Jerusalem Venture Partners IV-A, LP - ------------------------------------------------------------------ Jerusalem Venture Partners Entrepreneurs Fund IV, L.P. - ------------------------------------------------------------------ Jerusalem Venture Partners IV (Israel), LP - ------------------------------------------------------------------ Cisco Systems Capital Corporation - ------------------------------------------------------------------ BNP -Europe Telecom & Media Fund II, LP - ------------------------------------------------------------------ Natio Vie Development 3, FCPR - ------------------------------------------------------------------ Kline Hawkes Pacific, L.P. - ------------------------------------------------------------------ Kline Hawkes Pacific Friends Fund, LLC - ------------------------------------------------------------------ Paladin Capital Partners Fund, L.P. - ------------------------------------------------------------------ UFO Communications, Inc - ------------------------------------------------------------------ Global Access Telecommunications, Inc. - ------------------------------------------------------------------ Columbia Ventures Corporation - ------------------------------------------------------------------ Applegreen Capital, Inc - ------------------------------------------------------------------ Broadmark Capital - ------------------------------------------------------------------ 2001 Penn. Ave. Investments, LLC - ------------------------------------------------------------------ Worldwide Investments, LLC - ------------------------------------------------------------------ Karsten Blue - ------------------------------------------------------------------ 20 Schedule II - --------------------------------------------------------------------- ------------------------------------------------------- STOCKHOLDER NUMBER OF EXEMPTED SHARES - --------------------------------------------------------------------- ------------------------------------------------------- Oak Investment Partners IX, Limited Partnership 1,978,706 - --------------------------------------------------------------------- ------------------------------------------------------- Oak IX Affiliates Fund, Limited Partnership 21,380 - --------------------------------------------------------------------- ------------------------------------------------------- Oak IX Affiliates Fund-A Limited Partnership 47,142 - --------------------------------------------------------------------- ------------------------------------------------------- Boulder Ventures III (Annex), LP 255 - --------------------------------------------------------------------- ------------------------------------------------------- Boulder Ventures III, LP 8,258 - --------------------------------------------------------------------- ------------------------------------------------------- Boulder Ventures IV (Annex), LP 379,159 - --------------------------------------------------------------------- ------------------------------------------------------- Boulder Ventures IV, LP 29,817 - --------------------------------------------------------------------- ------------------------------------------------------- BCP Capital QPF, L.P. 761,044 - --------------------------------------------------------------------- ------------------------------------------------------- BCP Capital, L.P. 162,745 - --------------------------------------------------------------------- ------------------------------------------------------- BCP Affiliates Fund LLC 12,037 - --------------------------------------------------------------------- ------------------------------------------------------- Broadview BCPSBS 26 - --------------------------------------------------------------------- ------------------------------------------------------- Nassau Capital Partners IV, LP 439,636 - --------------------------------------------------------------------- ------------------------------------------------------- NAS Partners I, LLC 6,286 - --------------------------------------------------------------------- ------------------------------------------------------- Worldview Technology Partners III, LP 759,852 - --------------------------------------------------------------------- ------------------------------------------------------- Worldview Technology International III, LP 187,284 - --------------------------------------------------------------------- ------------------------------------------------------- Worldview Strategic Partners III, LP 16,793 - --------------------------------------------------------------------- ------------------------------------------------------- Worldview III Carrier Fund, LP 41,741 - --------------------------------------------------------------------- ------------------------------------------------------- Worldview Technology Partners IV, LP 417,589 - --------------------------------------------------------------------- ------------------------------------------------------- Worldview Technology International IV, LP 68,104 - --------------------------------------------------------------------- ------------------------------------------------------- Worldview Strategic Partners IV, LP 3,480 - --------------------------------------------------------------------- ------------------------------------------------------- Jerusalem Venture Partners III, LP 982,589 - --------------------------------------------------------------------- ------------------------------------------------------- Jerusalem Venture Partners Entrepreneurs Fund, III, LP 75,152 - --------------------------------------------------------------------- ------------------------------------------------------- Jerusalem Venture Partners III (Israel) LP 27,921 - --------------------------------------------------------------------- ------------------------------------------------------- Jerusalem Venture Partners IV, LP 1,324,033 - --------------------------------------------------------------------- ------------------------------------------------------- Jerusalem Venture Partners IV-A, LP 11,245 - --------------------------------------------------------------------- ------------------------------------------------------- Jerusalem Venture Partners Entrepreneurs Fund IV, L.P. 11,877 - --------------------------------------------------------------------- ------------------------------------------------------- Jerusalem Venture Partners IV (Israel), LP 31,952 - --------------------------------------------------------------------- ------------------------------------------------------- Cisco Systems Capital Corporation 1,471,766 - --------------------------------------------------------------------- ------------------------------------------------------- BNP -Europe Telecom & Media Fund II, LP 1,746,049 - --------------------------------------------------------------------- ------------------------------------------------------- Natio Vie Development 3, FCPR 100,348 - --------------------------------------------------------------------- ------------------------------------------------------- Kline Hawkes Pacific, L.P. 169,295 - --------------------------------------------------------------------- ------------------------------------------------------- Kline Hawkes Pacific Friends Fund, LLC 5,712 - --------------------------------------------------------------------- ------------------------------------------------------- Paladin Capital Partners Fund, L.P. 129,783 - --------------------------------------------------------------------- ------------------------------------------------------- UFO Communications, Inc 73,588 - --------------------------------------------------------------------- ------------------------------------------------------- Global Access Telecommunications, Inc. 111,627 - --------------------------------------------------------------------- ------------------------------------------------------- Columbia Ventures Corporation 1,337,969 - --------------------------------------------------------------------- ------------------------------------------------------- Applegreen Capital, Inc 1,527 - --------------------------------------------------------------------- ------------------------------------------------------- Broadmark Capital 4,549 - --------------------------------------------------------------------- ------------------------------------------------------- 2001 Penn. Ave. Investments, LLC 2,542 - --------------------------------------------------------------------- ------------------------------------------------------- Worldwide Investments, LLC 2,542 - --------------------------------------------------------------------- ------------------------------------------------------- Karsten Blue 12,403 - --------------------------------------------------------------------- -------------------------------------------------------
21 Schedule III - --------------------------------------------------------------------- ------------------------------------------------------- STOCKHOLDER MAXIMUM NUMBER OF EXEMPTED SHARES THAT MAY BE SUBJECT TO A TRANSACTION PER CALENDAR MONTH - --------------------------------------------------------------------- ------------------------------------------------------- Oak Investment Partners IX, Limited Partnership 329,784 - --------------------------------------------------------------------- ------------------------------------------------------- Oak IX Affiliates Fund, Limited Partnership 3,563 - --------------------------------------------------------------------- ------------------------------------------------------- Oak IX Affiliates Fund-A Limited Partnership 7,857 - --------------------------------------------------------------------- ------------------------------------------------------- Boulder Ventures III (Annex), LP 42 - --------------------------------------------------------------------- ------------------------------------------------------- Boulder Ventures III, LP 1,376 - --------------------------------------------------------------------- ------------------------------------------------------- Boulder Ventures IV (Annex), LP 63,193 - --------------------------------------------------------------------- ------------------------------------------------------- Boulder Ventures IV, LP 4,969 - --------------------------------------------------------------------- ------------------------------------------------------- BCP Capital QPF, L.P. 126,841 - --------------------------------------------------------------------- ------------------------------------------------------- BCP Capital, L.P. 27,124 - --------------------------------------------------------------------- ------------------------------------------------------- BCP Affiliates Fund LLC 2,006 - --------------------------------------------------------------------- ------------------------------------------------------- Broadview BCPSBS 4 - --------------------------------------------------------------------- ------------------------------------------------------- Nassau Capital Partners IV, LP 73,273 - --------------------------------------------------------------------- ------------------------------------------------------- NAS Partners I, LLC 1,048 - --------------------------------------------------------------------- ------------------------------------------------------- Worldview Technology Partners III, LP 126,642 - --------------------------------------------------------------------- ------------------------------------------------------- Worldview Technology International III, LP 31,214 - --------------------------------------------------------------------- ------------------------------------------------------- Worldview Strategic Partners III, LP 2,799 - --------------------------------------------------------------------- ------------------------------------------------------- Worldview III Carrier Fund, LP 6,957 - --------------------------------------------------------------------- ------------------------------------------------------- Worldview Technology Partners IV, LP 69,598 - --------------------------------------------------------------------- ------------------------------------------------------- Worldview Technology International IV, LP 11,351 - --------------------------------------------------------------------- ------------------------------------------------------- Worldview Strategic Partners IV, LP 580 - --------------------------------------------------------------------- ------------------------------------------------------- Jerusalem Venture Partners III, LP 163,765 - --------------------------------------------------------------------- ------------------------------------------------------- Jerusalem Venture Partners Entrepreneurs Fund, III, LP 12,525 - --------------------------------------------------------------------- ------------------------------------------------------- Jerusalem Venture Partners III (Israel) LP 4,653 - --------------------------------------------------------------------- ------------------------------------------------------- Jerusalem Venture Partners IV, LP 220,672 - --------------------------------------------------------------------- ------------------------------------------------------- Jerusalem Venture Partners IV-A, LP 1,874 - --------------------------------------------------------------------- ------------------------------------------------------- Jerusalem Venture Partners Entrepreneurs Fund IV, L.P. 1,979 - --------------------------------------------------------------------- ------------------------------------------------------- Jerusalem Venture Partners IV (Israel), LP 5,325 - --------------------------------------------------------------------- ------------------------------------------------------- Cisco Systems Capital Corporation 245,294 - --------------------------------------------------------------------- ------------------------------------------------------- BNP -Europe Telecom & Media Fund II, LP 291,008 - --------------------------------------------------------------------- ------------------------------------------------------- Natio Vie Development 3, FCPR 16,725 - --------------------------------------------------------------------- ------------------------------------------------------- Kline Hawkes Pacific, L.P. 28,216 - --------------------------------------------------------------------- ------------------------------------------------------- Kline Hawkes Pacific Friends Fund, LLC 952 - --------------------------------------------------------------------- ------------------------------------------------------- Paladin Capital Partners Fund, L.P. 21,630 - --------------------------------------------------------------------- ------------------------------------------------------- UFO Communications, Inc 12,265 - --------------------------------------------------------------------- ------------------------------------------------------- Global Access Telecommunications, Inc. 18,604 - --------------------------------------------------------------------- ------------------------------------------------------- Columbia Ventures Corporation 222,995 - --------------------------------------------------------------------- ------------------------------------------------------- Applegreen Capital, Inc 255 - --------------------------------------------------------------------- ------------------------------------------------------- Broadmark Capital 758 - --------------------------------------------------------------------- ------------------------------------------------------- 2001 Penn. Ave. Investments, LLC 424 - --------------------------------------------------------------------- ------------------------------------------------------- Worldwide Investments, LLC 424 - --------------------------------------------------------------------- ------------------------------------------------------- Karsten Blue 2,067 - --------------------------------------------------------------------- -------------------------------------------------------
22 Schedule IV SETTLEMENT AGREEMENT AND RELEASE This Settlement Agreement and Release (the "Agreement") is made and entered into on ______, 200__ by and between Cogent Communications Group, Inc., a Delaware corporation (the "Company"), and ________ (the "Investor"), and inures to the benefit of the above-named parties' current, former and future parents, subsidiaries, predecessors, successors, joint venturers, related and/or affiliated persons, trust beneficiaries, directors, officers, stockholders, attorneys, accountants, insurers, reinsurers, agents, employees and assigns, as applicable. RECITALS WHEREAS, the Investor is subject to certain reporting and restrictive requirements relating to trading the Company's securities, including Section 16 of the Securities Exchange Act of 1934 (the "Act"); WHEREAS, the Company and the Investor hereby acknowledge that a certain transaction made by the Investor on _______, 200__ with respect to the Company's securities (the "Transaction") require the Investor to deliver payment to the Company the amount of $_______ , which has been agreed upon by the Company and the Investor (the "Settlement Amount"), pursuant to Section 16(b) of the Act; WHEREAS, the Company and the Investor hereby acknowledge the accuracy of the Settlement Amount; and WHEREAS, both the Company and the Investor wish to resolve any past or current disputes and claims between them arising from or related to Section 16(b) of the Act and related securities trading policies of the Company as of the date hereof. NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS: 1. The Recitals and identification of the parties to, and beneficiaries of, this Agreement are incorporated by reference as though fully set forth herein; 2. The Investor agrees to deliver to the Company in accordance with the terms hereof, the full dollar amount of the Settlement Amount no later than five (5) business days after entering into this Agreement (the "Payment Date"). Notwithstanding the foregoing, if the Investor fails to deliver the Settlement Amount on the Payment Date, the Investor hereby agrees that such Settlement Amount shall accrue interest at a rate of eight percent (8%) from the Payment Date until paid in full; 3. The Company for itself and its current, former and future parents, subsidiaries, predecessors, successors, joint venturers, related and/or affiliated persons, trust beneficiaries, directors, officers, stockholders, attorneys, accountants, insurers, reinsurers, agents, employees and assigns (whether express, by implication, or by operation of law) and the Investor, fully and forever release and discharge each other with respect to any and all claims, liabilities, causes of action that either party had or now has, either directly or indirectly, relating to Section 16(b) of the Act or any policies of the Company relating to trading in the Company's securities; 4. The parties acknowledge and agree that if any provision of this Agreement is found to be unenforceable, it will not affect the enforceability of the remaining provisions and the courts may enforce all remaining provisions to the full extent permitted by law; 23 5. This Agreement contains the entire agreement of the parties and supersedes any prior agreements on the subject matter thereof. The parties further acknowledge and agree that parole evidence shall not be required to interpret the intent of the parties; 6. The parties acknowledge that each has read and understands this Agreement and that each is signing this Agreement voluntarily, without coercion, and based upon his or its own judgment, and not in reliance upon any representations or promises made by the other party, other than those contained within this Agreement; 7. Each party represents and warrants that, as of the date of the execution of this Agreement, he or it has the sole right and authority to execute this Agreement, and that such party has not sold, assigned, transferred, conveyed or otherwise disposed of any claims or demands relating to any right surrendered by virtue of this Agreement. Each party further represents and warrants that he or it has had the opportunity to consult with, and has consulted, legal counsel in connection with the negotiation and execution of this Agreement. Each party and its signatory represents that the signatory is either a party or a business representative or assignee of, and is fully authorized to execute this Agreement on behalf of, the party for whom he or she signs; and 8. This Agreement may be signed in counterparts, and said counterparts shall be treated as though signed as one document. [Signature page to follow] 24 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed on the date hereof. COGENT COMMUNICATIONS GROUP, INC. _________________________________ By: Title: [INVESTOR] _________________________________ By: Title: 25 EX-99 3 jd4-11ex_h.txt H 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) David Schaeffer (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 2 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 3 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. 4 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 David Schaeffer); (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 Erel Margalit and Michael Carus); (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 Tim Weingarten); (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 Edward Glassmeyer); (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 Steven Brooks); and (vi) one (1) individual designated by BNP Europe Telecom & Media Fund II, LP (the designee under this subsection shall initially be Jean-Jacques Bertrand); (vii) one (1) individual designated by Columbia Ventures Corporation (the designee under this subsection shall initially be Kenneth Peterson); 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. 5 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 6 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. 7 (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). 8 (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. 9 (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 10 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/ Edward Glassmeyer ------------------------------------------------ Name: Edward Glassmeyer Title: Managing Member OAK IX AFFILIATES FUND, LIMITED PARTNERSHIP By: Oak IX Affiliates, LLC, its General Partner By: /s/ Edward Glassmeyer ------------------------------------------------ Name: Edward Glassmeyer Title: Managing Member OAK IX AFFILIATES FUND-A, LIMITED PARTNERSHIP By: Oak Associates IX, LLC, its General Partner By: /s/ Edward Glassmeyer ------------------------------------------------ Name: Edward Glassmeyer 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/ Erel Margalit -------------------------------------------------- Name: Erel Margalit JERUSALEM VENTURE PARTNERS III (ISRAEL), L.P. By: Jerusalem Venture Partners III (Israel) Management Company Ltd., its General Partner By: /s/ Erel Margalit -------------------------------------------------- Name: Erel Margalit 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/ Erel Margalit -------------------------------------------------- Name: Erel Margalit 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/ Erel Margalit ----------------------------------------------- Name: Erel Margalit 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/ Erel Margalit ----------------------------------------------- Name: Erel Margalit 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/ Erel Margalit ----------------------------------------------- Name: Erel Margalit 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/ Erel Margalit ----------------------------------------------- Name: Erel Margalit 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/ James Wei ----------------------------------------------- Name: James Wei 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/ James Wei ----------------------------------------------- Name: James Wei 16 [Signature Page to Sixth Amended and Restated Stockholders Agreement - Continued] BCP CAPITAL, L.P. By: BCP General LLC, its General Partner By: /s/ Steven D. Brooks ---------------------------------------- Name: Steven D. Brooks Title: Managing Director BCP CAPITAL QPF, L.P. By: BCP General LLC, its General Partner By: /s/ Steven D. Brooks ---------------------------------------- Name: Steven D. Brooks Title: Managing Director BCP AFFILIATES FUND LLC By: BCP Capital Management LLC, its Manage By: /s/ Steven D. Brooks ---------------------------------------- Name: Steven D. Brooks Title: Managing Director 17 [Signature Page to Sixth Amended and Restated Stockholders Agreement - Continued] BOULDER VENTURES IV, L.P. By: /s/ Andrew E. Jones ----------------------------------- Name: Andrew E. Jones Title: General Partner BOULDER VENTURES IV (ANNEX), L.P. By: /s/ Andrew E. Jones ----------------------------------- Name: Andrew E. Jones 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/ Randall A. Hack ----------------------------------- Name: Randall A. Hack Title: Managing Member NASSAU CAPITAL PARTNERS IV L.P. By: Nassau Capital LLC, its General Partner By: /s/ Randall A. Hack ----------------------------------- Name: Randall A. Hack Title: Managing Member 19 [Signature Page to Sixth Amended and Restated Stockholders Agreement - Continued] BNP EUROPE TELECOM & MEDIA FUND II, LP By: /s/ Shawna Morehouse ------------------------------------------------- /s/ Martin Laidlaw ------------------------------------------------- Name: Shawna Morehouse & Martin Laidlaw 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/ Bernard d'Hotelans ------------------------------------------------- Name: Bernard d'Hotelans Title: Directeur Associe 20 [Signature Page to Sixth Amended and Restated Stockholders Agreement - Continued] CISCO SYSTEMS CAPITAL CORPORATION By: /s/ David A. Rogan ----------------------------- Name: David A. Rogan Title: President, Cisco Capital 21 [Signature Page to Sixth Amended and Restated Stockholders Agreement - Continued] By: /s/ David Schaeffer ------------------------------------------ David Schaeffer THE SCHAEFFER DESCENDENTS TRUST By: /s/ Ruth Schaeffer ------------------------------------------ Ruth Schaeffer COGENT COMMUNICATIONS GROUP, INC. By: /s/ David Schaeffer ------------------------------------------ Name: David Schaeffer Title: Chairman and Chief Executive Officer 22 [Signature Page to Sixth Amended and Restated Stockholders Agreement - Continued] UFO COMMUNICATIONS, INC. By: /s/ Jay Ferguson ---------------------------------- Name: Jay Ferguson 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/ Frank J. Hanna, Jr. -------------------------------------- Name: Frank J. Hanna, Jr. Title: President WORLDWIDE INVESTMENTS, LLC By: Worldwide Assets, Inc., its Sole Member By: /s/ Frank J. Hannah ------------------------------------- Name: Frank J. Hannah Title: Chairman & Chief Executive Officer 2001 PENN. AVE. INVESTMENTS, LLC By: /s/ Michael R. Steed --------------------------------------- Name: Michael R. Steed Title: President 24 [Signature Page to Sixth Amended and Restated Stockholders Agreement - Continued] KLINE HAWKES PACIFIC, L.P. By: Kline Hawkes Pacific Advisors, LLC, its General Partner By: /s/ Jay Ferguson ------------------------------------ Name: Jay Ferguson Title: Member KLINE HAWKES PACIFIC FRIENDS FUND, LLC By: Kline Hawkes Pacific Advisors, LLC, its Managing Member By: /s/ Jay Ferguson ------------------------------------ Name: Jay Ferguson Title: Member BROADMARK CAPITAL, L.L.C. By: /s/ Joseph L. Schocken ------------------------------------ Name: Joseph L. Schocken Title: President 25 [Signature Page to Sixth Amended and Restated Stockholders Agreement - Continued] GLOBAL ACCESS TELECOMMUNICATIONS, INC. By: /s/ John E. Jones --------------------------------- Name: John E. Jones Title: Vice President 26 [Signature Page to Sixth Amended and Restated Stockholders Agreement - Continued] COLUMBIA VENTURES CORPORATION By: /s/ Kenneth D. Peterson, Jr. ----------------------------- Name: Kenneth D. Peterson, Jr. Title: Chief Executive Officer 27 [Signature Page to Sixth Amended and Restated Stockholders Agreement - Continued] APPLEGREEN CAPITAL, INC. By: /s/ Brian Rich ------------------------------ Name: Brian Rich 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 David Schaeffer Ruth E. Schaeffer, Trustee of the Schaeffer Descendents Trust Denise Shen Barry Morris Scott Welker Edward Lu Bradley Griggs Scott Stewart Thaddeus Weed C Blair Partners, LP C. Blair Partners II, LP C. Blair Fund, Ltd. BNP Europe Telecom & Media Fund II, LP c/o CIBC Financial Center 11 Dr. Roy's Drive, 3rd Floor P.O. Box 694 GT Grand Cayman Cayman Islands, B.W.I. Natio vie Developpement 3, FCPR BNP Private Equity 32, boulevard Haussman 75009 Paris France Jerusalem Venture Partners III (Israel), L.P. Jerusalem Technology Park Jerusalem Venture Partners IV (Israel), L.P. Building One Mahla, Jerusalem 91847 Attn: Erel Margalit Jerusalem Venture Partners III, L.P. 666 Fifth Avenue Jerusalem Venture Partners Entrepreneurs Fund III, L.P. Suite 195 Jerusalem Venture Partners IV, L.P. New York, NY 10103 Jerusalem Venture Partners IV-A, L.P. Jerusalem Venture Partners Entrepreneurs Fund IV, L.P. Oak Investment Partners IX, LP One Gorham Island Oak IX Affiliates Fund, LP Westport, CT 06880 Oak IX Affiliates Fund-A, LP Attn: Ed Glassmeyer Worldview Technology Partners III, LP 435 Tasso Street #120 Worldview Technology International III, LP Palo Alto, CA 94301 30 Worldview Strategic Partners III, LP Worldview III Carrier Fund, LP Boulder Ventures IV, LP 4750 Owings Mills Blvd. Boulder Ventures IV (Annex), LP Owings Mills, MD 21117 Attn: Andy Jones Nassau Capital Partners IV, LP Capstone Capitl L.L.C. NAS Partners I, LLC 4700 Province Line Road Princeton, NJ 08540 Attn: Randall A. Hack BCP Capital, L.P. BCP Capital Management LLC BCP Capital QPF, L.P. One Maritime Plaza, Suite 2525 BCP Affiliates Fund Llc San Francisco, CA 94111 Attn: David Kapnick Paladin Capital Partners Fund, L.P. 2001 Pennsylvania Avenue NW Suite 400 Washington, D.C. 20006 Worldwide Investments, LLC Worldwide Investments, LLC c/o Worldwide Assets, Inc. P.O. Box 27740 Las Vegas, NV 89126 2001 Penn. Ave. Investments, LLC 2001 Pennsylvania Avenue, Suite 400 Washington, DC 20006 Kline Hawkes Pacific, L.P. 11726 San Vicente Blvd., Suite 300 Los Angeles, CA 90049 Kline Hawkes Pacific Friends Fund, LLC 11726 San Vicente Blvd., Suite 300 Los Angeles, CA 90049 Broadmark Capital 2800 One Union Square 600 University Street Seattle, WA 98101 UFO Communications, Inc. 60 Federal St, Suite 304 San Francisco, CA 94107 Columbia Ventures Corporation Comdisco, Inc. ACON Venture Partners, LP Clipperbay & Co. Covestco-Venture, LLC 2M Technology Ventures, L.P.
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