EXHIBIT H
COGENT COMMUNICATIONS GROUP, INC.
SEVENTH AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
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October 26, 2004
To each of the several holders of Series F Preferred Stock (the "Series
F Purchasers"), each sub-series of Series G Preferred Stock (collectively, the
"Series G Purchasers"), Series I Preferred Stock (the "Series I Purchasers"),
Series J Preferred Stock (the "Series J Purchasers"), Series K Preferred Stock
(the "Series K Purchasers"), Series L Preferred Stock (the "Series L
Purchasers"), Series M Preferred Stock (the "Series M Purchasers") and any
person who later becomes a party to this Agreement by executing and delivering
to the Company an Instrument of Accession in the form of Schedule II hereto
(collectively, the "Purchasers"):
Dear Sirs:
This will confirm that the Company covenants and agrees with each of
you as follows:
1. Certain Definitions. As used in this Agreement, the following
terms shall have the following respective meanings:
"Commission" shall mean the Securities and Exchange Commission, or
any other federal agency at the time administering the Securities Act.
"Common Stock" shall mean the Common Stock, par value $.001 per
share, of the Company, as constituted as of the date of this Agreement.
"Company" shall mean Cogent Communications Group, Inc.
"Conversion Shares" shall mean shares of Common Stock issued or
issuable upon conversion of the Preferred Stock, and any shares of capital stock
received in respect thereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934 or any
similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Preferred Stock" shall mean the Series F Preferred Stock, the Series
G Preferred Stock, the Series I Preferred Stock, the Series J Preferred Stock
and the Series K Preferred Stock, Series L Preferred Stock, Series M Preferred
Stock and any other series of preferred stock held by a person or entity that
becomes a party to this Agreement pursuant to an Instrument of Accession, a form
of which is attached hereto as Schedule II.
"Registration Expenses" shall mean the expenses so described in
Section 8.
"Restricted Stock" shall mean (i) the Conversion Shares, excluding
Conversion Shares which have been (a) registered under the Securities Act
pursuant to an effective registration statement filed thereunder and disposed of
in accordance with the registration statement covering them or (b) publicly sold
pursuant to Rule 144 under the Securities Act, and (ii) any shares of Common
Stock issued or distributed in respect of the securities described in clause
(i).
"Securities Act" shall mean the Securities Act of 1933 or any similar
federal statute, and the rules and regulations of the Commission thereunder, all
as the same shall be in effect at the time.
"Selling Expenses" shall mean the expenses so described in Section 8.
"Series F Preferred Stock" shall mean the Series F Participating
Convertible Preferred Stock, par value $.001 per share, of the Company,
constituted as of July 31, 2003.
"Series G Preferred Stock" shall mean the Series G Participating
Convertible Preferred Stock of the Company, constituted as of July 31, 2003.
"Series I Preferred Stock" shall mean the Series I Participating
Convertible Preferred Stock of the Company, constituted as of January 5, 2004.
"Series J Preferred Stock" shall mean the Series J Participating
Convertible Preferred Stock of the Company, constituted as of March 30, 2004.
"Series K Preferred Stock" shall mean the Series K Participating
Convertible Preferred Stock of the Company constituted as of August 12, 2004.
"Series L Preferred Stock" shall mean the Series L Participating
Convertible Preferred Stock of the Company, issued as of September 15, 2004.
"Series M Preferred Stock" shall mean the Series M Participating
Convertible Preferred Stock of the Company, issued as of the date of this
Agreement.
2. Restrictive Legend. Each certificate representing Preferred Stock,
Conversion Shares or Restricted Stock shall, except as otherwise provided in
this Section 2 or in Section 3, be stamped or otherwise imprinted with a legend
substantially in the following form:
"The securities represented by this certificate have not been registered
under the Securities Act of 1933 or applicable state securities laws. These
securities have been acquired for investment and not with a view to
distribution or resale, and may not be sold mortgaged, pledged,
hypothecated or otherwise transferred without an effective registration
statement for such securities under the Securities Act of 1933 and
applicable state securities laws, or the availability of an exemption from
the registration provisions of the Securities Act of 1933 and applicable
state securities laws."
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A certificate shall not bear such legend if in the opinion of counsel reasonably
satisfactory to the Company the securities being sold thereby may be publicly
sold without registration under the Securities Act.
3. Notice of Proposed Transfer. Prior to any proposed transfer of any
Preferred Stock, Conversion Shares or Restricted Stock (other than under the
circumstances described in Sections 4, 5 or 6), the holder thereof shall give
written notice to the Company of its intention to effect such transfer. Each
such notice shall describe the manner of the proposed transfer and, if requested
by the Company, shall be accompanied by an opinion of counsel reasonably
satisfactory to the Company to the effect that the proposed transfer may be
effected without registration under the Securities Act, whereupon the holder of
such stock shall be entitled to transfer such stock in accordance with the terms
of its notice; provided, however, that no such opinion of counsel shall be
required for a transfer to one or more partners of the transferor (in the case
of a transferor that is a partnership), to one or more members of the transferor
(in the case of a transferor that is a limited liability company) or to an
affiliated corporation (in the case of a transferor that is a corporation);
provided, further, however, that any transferee other than a partner, member or
affiliate of the transferor shall execute and deliver to the Company a
representation letter in form reasonably satisfactory to the Company's counsel
to the effect that the transferee is acquiring Restricted Stock for its own
account, for investment purposes and without any view to distribution thereof.
Each certificate for Preferred Stock or Conversion Shares transferred as above
provided shall bear the legend set forth in Section 2, except that such
certificate shall not bear such legend if (i) such transfer is in accordance
with the provisions of Rule 144 (or any other rule permitting public sale
without registration under the Securities Act) or (ii) the opinion of counsel
referred to above is to the further effect that the transferee and any
subsequent transferee (other than an affiliate of the Company) would be entitled
to transfer such securities in a public sale without registration under the
Securities Act. The restrictions provided for in this Section 3 shall not apply
to securities which are not required to bear the legend prescribed by Section 2
in accordance with the provisions of that Section.
4. Required Registration.
(a) Subject to Section 13(f) of this Agreement, at any time after the
earlier of (i) July 31, 2006 and (ii) the date that is six (6) months after the
first public offering after the date hereof of securities by the Company,
holders of Restricted Stock constituting more than 50% of the total number of
shares of Restricted Stock then outstanding may request the Company to register
under the Securities Act all or any portion of the shares of Restricted Stock
held by such requesting holder or holders for sale in the manner specified in
such notice. For purposes of this Section 4 and Sections 5, 6, 13(a) and 13(d),
the term "Restricted Stock" shall be deemed to include the number of shares of
Restricted Stock which would be issuable to a holder of Preferred Stock upon
conversion of all shares of Preferred Stock held by such holder at such time;
provided, however, that the only securities which the Company shall be required
to register pursuant hereto shall be shares of Common Stock; provided, further,
however, that, in any underwritten public offering contemplated by this Section
4 or Sections 5 and 6, the holders of Preferred Stock shall be entitled to sell
such Preferred Stock to the underwriters for
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conversion and sale of the shares of Common Stock issued upon conversion thereof
and holders of a majority of the Preferred Stock being so registered shall have
the right to approve the managing underwriter(s) selected by the Company in
connection with such underwritten public offering. Notwithstanding anything to
the contrary contained herein, the Company shall not be obligated to effect a
registration (i) during the 180 day period commencing with the effective date of
a registration statement filed by the Company covering the first firm commitment
underwritten public offering after the date hereof or (ii) if the Company
delivers notice to the holders of the Restricted Stock within thirty (30) days
of any registration request of the Company's intent to file a registration
statement for an underwritten public offering within ninety (90) days.
(b) Following receipt of any notice under this Section 4, the Company
shall immediately notify all holders of Restricted Stock and Preferred Stock
from whom notice has not been received and such holders shall then be entitled
within 30 days thereafter to request the Company to include in the requested
registration all or any portion of their shares of Restricted Stock. The Company
shall use its best efforts to register under the Securities Act, for public sale
in accordance with the method of disposition described in paragraph (a) above,
the number of shares of Restricted Stock specified in such notice (and in all
notices received by the Company from other holders within 30 days after the
giving of such notice by the Company). The Company shall be obligated to
register Restricted Stock pursuant to this Section 4 on three occasions only;
provided, however, that such obligation shall be deemed satisfied only when a
registration statement covering all shares of Restricted Stock specified in
notices received as aforesaid for sale in accordance with the method of
disposition specified by the requesting holders shall have become effective and,
if such method of disposition is a firm commitment underwritten public offering,
all such shares shall have been sold pursuant thereto.
(c) The Company (or at the option of the Company, the holders of
Common Stock) shall be entitled to include in any registration statement
referred to in this Section 4, for sale in accordance with the method of
disposition specified by the requesting holders, shares of Common Stock to be
sold by the Company or such other holders for its own account, except as and to
the extent that, in the opinion of the managing underwriter (if such method of
disposition shall be an underwritten public offering), such inclusion would
adversely affect the marketing of the Restricted Stock to be sold. Subject to
Section 4(a) and except for registration statements on Form ▇-▇, ▇-▇ or any
successor thereto, the Company will not file with the Commission any other
registration statement with respect to its Common Stock, whether for its own
account or that of other stockholders, from the date of receipt of a notice from
requesting holders pursuant to this Section 4 until the completion of the period
of distribution of the registration contemplated thereby.
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(d) If, in the opinion of the managing underwriter, the inclusion of
all of the Restricted Stock requested to be registered under this Section would
adversely affect the marketing of such shares, the Company shall only include
the number of shares that, in the reasonable opinion of such underwriter, can be
sold without having an adverse effect on the marketing of such shares, to be
allocated to each stockholder of the Company on a pro rata basis based on the
total number of shares held by such holder and requested to be included in the
registration; provided, however, that the number of shares of Restricted Stock
to be included in such underwriting and registration shall not be reduced unless
all other securities of the Company are first excluded from the underwriting and
registration.
5. Incidental Registration. Subject to Section 13(f) of this
Agreement, if the Company at any time (other than pursuant to Section 4 or
Section 6) proposes to register any of its securities under the Securities Act
for sale to the public, whether for its own account or for the account of other
security holders or both (except with respect to registration statements on
Forms ▇-▇, ▇-▇ or another form not available for registering the Restricted
Stock for sale to the public), each such time it will give written notice to all
holders of outstanding Restricted Stock of its intention so to do. Upon the
written request of any such holder, received by the Company within 30 days after
the giving of any such notice by the Company, to register any of its Restricted
Stock, the Company will use its best efforts to cause the Restricted Stock as to
which registration shall have been so requested to be included in the securities
to be covered by the registration statement proposed to be filed by the Company,
all to the extent requisite to permit the sale or other disposition by the
holder (in accordance with its written request) of such Restricted Stock so
registered. In the event that any registration pursuant to this Section 5 shall
be, in whole or in part, an underwritten public offering of Common Stock, if the
managing underwriter determines in good faith that marketing factors require a
limitation of the number of shares to be underwritten, the number of shares that
may be included in the underwriting shall be allocated, first, to the Company;
second, to the holders of Restricted Stock invoking the rights under this
Section 5 on a pro rata basis based on the total number of shares of Restricted
Stock held by such holders; and third, to any stockholder of the Company (other
than such holders) on a pro rata basis. No such reduction shall reduce the
amount of securities of the selling holders included in the registration below
thirty percent (30%) of the total amount of securities included in such
registration. In no event will shares of any other selling stockholder be
included in such registration that would reduce the number of shares which may
be included by holders of Restricted Stock without the written consent of the
holders of not less than sixty-six and two-thirds percent (66 2/3%) of the
Restricted Stock proposed to be sold in the offering. If any such holder
disapproves of the terms of any such underwriting, such holder may elect to
withdraw therefrom by written notice to the Company and the underwriter,
delivered at least ten (10) business days prior to the effective date of the
registration statement. Any shares of Restricted Stock excluded or withdrawn
from such underwriting shall be excluded and withdrawn from the registration.
For any holder which is a partnership or corporation, the partners, retired
partners and stockholders of such holder, or the estates and family members of
any such partners and retired partners and any trusts for the benefit of any of
the foregoing person shall be deemed to be a single holder, and any pro rata
reduction with respect to such holder shall be based upon the aggregate amount
of shares carrying registration rights owned by all entities and individuals
included in such holder, as defined in this sentence. Notwithstanding the
foregoing provisions, the Company may withdraw any registration statement
referred to in this Section 5 without thereby incurring any liability to the
holders of Restricted Stock.
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6. Registration on Form S-3. Subject to Section 13(f) of this
Agreement, if at any time (i) a holder or holders of Restricted Stock then
outstanding request that the Company file a registration statement on Form S-3
or any successor thereto for a public offering of all or any portion of the
shares of Restricted Stock held by such requesting holder or holders, and (ii)
the Company is a registrant entitled to use Form S-3 or any successor thereto to
register such shares, then the Company shall use its best efforts to register
under the Securities Act on Form S-3 or any successor thereto for public sale in
accordance with the method of disposition specified in such notice, the number
of shares of Restricted Stock specified in such notice. Whenever the Company is
required by this Section 6 to use its best efforts to effect the registration of
Restricted Stock, each of the procedures and requirements of Section 4
(including but not limited to the requirement that the Company notify all
holders of Restricted Stock from whom notice has not been received and provide
them with the opportunity to participate in the offering) shall apply to such
registration; provided, however, that there shall be no limitation on the number
of registrations on Form S-3 which may be requested and obtained under this
Section 6 and registrations effected pursuant to this Section 6 shall not be
counted as demands for registration or registrations effected pursuant to
Sections 4 or 5, respectively.
(b) Notwithstanding anything to the contrary set forth in this
Agreement, the Company's obligation under this Agreement to register Restricted
Stock under the Securities Act on registration statements ("Registration
Statements") may, upon the reasonable determination of the Board of Directors
made not more than twice in the aggregate (and not more than once with respect
to a Registration Statement on Form S-1 and not more than once with respect to a
Registration Statement on Form S-3 and including any delay pursuant to the last
sentence of Section 4(a)) during any 12-month period, be suspended in the event
and during such period as unforeseen circumstances (including without limitation
(i) an underwritten primary offering by the Company (which includes no secondary
offering) if the Company is advised in writing by its underwriters that the
registration of the Restricted Stock would have a material adverse effect on the
Company's offering, or (ii) pending negotiations relating to, or consummation
of, a transaction or the occurrence of an event which would require additional
disclosure of material information by the Company in Registration Statements or
such other filings, as to which the Company has a bona fide business purpose for
preserving confidentiality or which renders the Company unable to comply with
the Commission's requirements) exist (such unforeseen circumstances being
hereinafter referred to as a "Suspension Event") which would make it impractical
or unadvisable for the Company to file the Registration Statements or such other
filings or to cause such to become effective. Such suspension shall continue
only for so long as such event is continuing but in no event for a period longer
than (i) one hundred and twenty (120) days, in the case of a Registration
Statement on Form S-1 (or any successor thereto) or (ii) ninety (90) days, in
the case of a Registration Statement on Form S-3 (or any successor thereto). The
Company shall notify the Purchasers of the existence and nature of any
Suspension Event.
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7. Registration Procedures. If and whenever the Company is required
by the provisions of Sections 4, 5 or 6 to use its best efforts to effect the
registration of any shares of Restricted Stock under the Securities Act, the
Company will, as expeditiously as possible:
(a) prepare and file with the Commission a registration statement
(which, in the case of an underwritten public offering pursuant to Section 4,
shall be on Form S-1 or other form of general applicability satisfactory to the
managing underwriter selected as therein provided) with respect to such
securities and use its best efforts to cause such registration statement to
become and remain effective for the period of the distribution contemplated
thereby (determined as hereinafter provided);
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective for
the period specified in paragraph (a) above and comply with the provisions of
the Securities Act with respect to the disposition of all Restricted Stock
covered by such registration statement in accordance with the sellers' intended
method of disposition set forth in such registration statement for such period;
(c) furnish to each seller of Restricted Stock and to each
underwriter such number of copies of the registration statement and each such
amendment and supplement thereto (in each case including all exhibits) and the
prospectus included therein (including each preliminary prospectus) as such
persons reasonably may request in order to facilitate the public sale or other
disposition of the Restricted Stock covered by such registration statement;
(d) use its best efforts to register or qualify the Restricted Stock
covered by such registration statement under the securities or "blue sky" laws
of such jurisdictions as the sellers of Restricted Stock or, in the case of an
underwritten public offering, the managing underwriter reasonably shall request;
provided, however, that the Company shall not for any such purpose be required
to qualify generally to transact business as a foreign corporation in any
jurisdiction where it is not so qualified or to consent to general service of
process in any such jurisdiction;
(e) use its best efforts to list the Restricted Stock covered by such
registration statement with any securities exchange on which the Common Stock of
the Company is then listed;
(f) immediately notify each seller of Restricted Stock and each
underwriter under such registration statement, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act, of the
happening of any event of which the Company has knowledge as a result of which
the prospectus contained in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing, and promptly prepare
and furnish to such seller a reasonable number of copies of a prospectus
supplemented or amended so that, as thereafter delivered to the purchasers of
such Restricted Stock, such prospectus shall not include an untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading in light of the
circumstances then existing;
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(g) if the offering is underwritten and at the request of any seller
of Restricted Stock, use its best efforts to furnish on the date that Restricted
Stock is delivered to the underwriters for sale pursuant to such registration:
(i) an opinion dated such date of counsel representing the Company for the
purposes of such registration, addressed to the underwriters and to such seller,
to such effect as reasonably may be requested by counsel for the underwriters,
and (ii) a letter dated such date from the independent public accountants
retained by the Company, addressed to the underwriters and to such seller,
stating that they are independent public accountants within the meaning of the
Securities Act and that, in the opinion of such accountants, the financial
statements of the Company included in the registration statement or the
prospectus, or any amendment or supplement thereof, comply as to form in all
material respects with the applicable accounting requirements of the Securities
Act, and such letter shall additionally cover such other financial matters
(including information as to the period ending no more than five business days
prior to the date of such letter) with respect to such registration as such
underwriters reasonably may request;
(h) make available for inspection by each seller of Restricted Stock,
any underwriter participating in any distribution pursuant to such registration
statement, and any attorney, accountant or other agent retained by such seller
or underwriter, reasonable access to all financial and other records, pertinent
corporate documents and properties of the Company, as such parties may
reasonably request, and cause the Company's officers, directors and employees to
supply all information reasonably requested by any such seller, underwriter,
attorney, accountant or agent in connection with such registration statement;
(i) cooperate with the selling holders of Restricted Stock and the
managing underwriters, if any, to facilitate the timely preparation and delivery
of certificates representing Restricted Stock to be sold, such certificates to
be in such denominations and registered in such names as such holders or the
managing underwriters may request at least two business days prior to any sale
of Restricted Stock; and
(j) permit any holder of Restricted Stock which holder, in the sole
and exclusive judgment, exercised in good faith, of such holder, might be deemed
to be a controlling person of the Company, to participate in good faith in the
preparation of such registration or comparable statement and to require the
insertion therein of material, furnished to the Company in writing, which in the
reasonable judgment of such holder and its counsel should be included and to
permit any other holder of Restricted Stock participating in the registration to
review such registration or comparable statement during its preparation.
For purposes of Section 7(a) and 7(b) and of Section 4(c), the period
of distribution of Restricted Stock in a firm commitment underwritten public
offering shall be deemed to extend until each underwriter has completed the
distribution of all securities purchased by it, and the period of distribution
of Restricted Stock in any other registration shall be deemed to extend until
the earlier of the sale of all Restricted Stock covered thereby and 180 days
after the effective date thereof.
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In connection with each registration hereunder, the sellers of
Restricted Stock will furnish to the Company in writing such information
requested by the Company with respect to themselves and the proposed
distribution by them as reasonably shall be necessary in order to assure
compliance with federal and applicable state securities laws and to make the
registration statement correct, accurate and complete in all respects with
respect to such sellers; provided, however, that this requirement shall not be
deemed to limit any disclosure obligation arising out of any seller's
relationship to the Company if one of such seller's agents or affiliates is an
officer, director or control person of the Company. In addition, the sellers
shall, if requested by the Company, execute such other agreements, which are
reasonably satisfactory to them and which shall contain such provisions as may
be customary and reasonable in order to accomplish the registration of the
Restricted Stock.
In connection with each registration pursuant to Sections 4, 5 or 6
covering an underwritten public offering, the Company and each seller agree to
enter into a written agreement with the managing underwriter selected in the
manner herein provided in such form and containing such provisions as are
customary in the securities business for such an arrangement between such
underwriter and companies of the Company's size and investment stature.
8. Expenses. All expenses incurred by the Company in complying with
Sections 4, 5 and 6, including, without limitation, all registration and filing
fees, printing expenses, fees and disbursements of counsel and independent
public accountants for the Company, fees and expenses (including counsel fees)
incurred in connection with complying with state securities or "blue sky" laws,
fees and expenses of one counsel for the selling holders of Restricted Stock in
connection with the registration of Restricted Stock, fees of the National
Association of Securities Dealers, Inc., transfer taxes, fees of transfer agents
and registrars, costs of any insurance which might be obtained, but excluding
any Selling Expenses, are called "Registration Expenses." All underwriting
discounts and selling commissions applicable to the sale of Restricted Stock and
the fees and expenses of more than one counsel for the selling holders of
Restricted Stock in connection with the registration of Restricted Stock are
called "Selling Expenses."
The Company will pay all Registration Expenses incurred in connection
with each of the first five Registration Statements filed pursuant to Sections
4, 5 or 6. All Selling Expenses incurred in connection with each of the first
five Registration Statements filed pursuant to Sections 4, 5 or 6, and all
Selling Expenses and Registration Expenses incurred in connection with each
Registration Statement filed pursuant to Sections 4, 5 or 6 thereafter, shall be
borne by the participating sellers in proportion to the number of shares sold by
each, or by such participating sellers other than the Company (except to the
extent the Company shall be a seller) as they may agree.
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9. Indemnification.
(a) To the extent permitted by law, in the event of a registration of
any of the Restricted Stock under the Securities Act pursuant to Sections 4, 5
or 6, the Company will indemnify and hold harmless each holder of Restricted
Stock, its partners, members, officers and directors, each underwriter of such
Restricted Stock thereunder and each other person, if any, who controls such
seller or underwriter within the meaning of the Securities Act, against any
losses, claims, damages or liabilities, joint or several, to which such holder,
officer, director, underwriter or controlling person may become subject under
the Securities Act, Exchange Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon (i) any untrue statement or alleged untrue statement of any material fact
contained in any registration statement under which such Restricted Stock was
registered under the Securities Act pursuant to Sections 4, 5 or 6, any
preliminary prospectus (but only to the extent not corrected in the final
prospectus) or final prospectus contained therein, or any amendment or
supplement thereof, (ii) any blue sky application or other document executed by
the Company specifically for that purpose or based upon written information
furnished by the Company filed in any state or other jurisdiction in order to
qualify any or all of the Restricted Stock under the securities laws thereof
(any such application, document or information herein called a "Blue Sky
Application"), (iii) the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, (iv) any violation by the Company or its agents of any
rule or regulation promulgated under the Securities Act or Exchange Act
applicable to the Company or its agents and relating to action or inaction
required of the Company in connection with such registration, or (v) any failure
to register or qualify the Restricted Stock in any state where the Company or
its agents has affirmatively undertaken or agreed in writing that the Company
(the undertaking of any underwriter chosen by the Company being attributed to
the Company) will undertake such registration or qualification on the seller's
behalf (provided that in such instance the Company shall not be so liable if it
has undertaken its best efforts to so register or qualify the Restricted Stock)
and will reimburse each such holder, and such partner, member, officer and
director, each such underwriter and each such controlling person for any legal
or other expenses reasonably incurred by them in connection with investigating
or defending any such loss, claim, damage, liability or action as such expenses
are incurred; provided, however, that the Company will not be liable in any such
case if and to the extent that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission so made in conformity with information furnished by
any such seller, any such underwriter or any such controlling person in writing
specifically for use in such registration statement, prospectus or Blue Sky
Application.
(b) To the extent permitted by law, in the event of a registration of
any of the Restricted Stock under the Securities Act pursuant to Sections 4, 5
or 6, each seller of such Restricted Stock thereunder, severally and not
jointly, will indemnify and hold harmless the Company, each person, if any, who
controls the Company within the meaning of the Securities Act, each officer of
the Company who signs the registration statement, each director of the Company,
each other holder of Restricted Stock, each underwriter and each person who
controls any underwriter within the meaning of the Securities Act, against all
losses, claims, damages or liabilities, joint or several, to which the Company
or such officer, director, other seller, underwriter or controlling person may
become subject under the Securities Act, Exchange Act or otherwise,
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insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the registration statement under
which such Restricted Stock was registered under the Securities Act pursuant to
Sections 4, 5 or 6, any preliminary prospectus (but only to the extent not
corrected in the final prospectus) or final prospectus contained therein, or any
amendment or supplement thereof, or any Blue Sky Application or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse the Company and each such officer, director,
other seller, underwriter and controlling person for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that such
seller will be liable hereunder in any such case if and only to the extent that
any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in reliance upon and in conformity with information pertaining to such
seller, as such, furnished in writing to the Company by such seller specifically
for use in such registration statement, prospectus or Blue Sky Application; and
provided, further, however, that the liability of each seller hereunder shall be
limited to the proportion of any such loss, claim, damage, liability or expense
which is equal to the proportion that the public offering price of the shares
sold by such seller under such registration statement bears to the total public
offering price of all securities sold thereunder, but not in any event to exceed
the net proceeds received by such seller from the sale of Restricted Stock
covered by such registration statement.
(c) Promptly after receipt by an indemnified party hereunder of
notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party hereunder,
notify the indemnifying party in writing thereof, but the omission so to notify
the indemnifying party shall not relieve it from any liability which it may have
to such indemnified party other than under this Section 9 and shall only relieve
it from any liability which it may have to such indemnified party under this
Section 9 if and to the extent the indemnifying party is prejudiced by such
omission. In case any such action shall be brought against any indemnified party
and it shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate in and, to the extent it
shall wish, to assume and undertake the defense thereof with counsel
satisfactory to such indemnified party, and, after notice from the indemnifying
party to such indemnified party of its election so to assume and undertake the
defense thereof, the indemnifying party shall not be liable to such indemnified
party under this Section 9 for any legal expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation and of liaison with counsel so selected; provided,
however, that, if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that the interests of the indemnified party reasonably may be deemed
to conflict with the interests of the indemnifying party, the indemnified party
shall have the right to select a separate counsel and to assume such legal
defenses and otherwise to participate in the defense of such action, with the
expenses and fees of such separate counsel and other expenses related to such
participation to be reimbursed by the indemnifying party as incurred. No
indemnifying party, in the defense of any such claim or litigation shall, except
with the consent of each indemnified party, consent to entry of any judgment or
11
enter into any settlement which does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such indemnified party of a
release from all liability in respect of such claim or litigation, and no
indemnified party shall consent to entry of any judgment or settle such claim or
litigation without the prior written consent of the indemnifying party, which
consent shall not be unreasonably withheld.
(d) If the indemnification provided for in this Section 9 is held by
a court of competent jurisdiction to be unavailable to an indemnified party with
respect to any losses, claims, damages or liabilities referred to herein, the
indemnifying party, in lieu of indemnifying such indemnified party thereunder,
shall to the extent permitted by applicable law contribute to the amount paid or
payable by such indemnified party as a result of such loss, claim, damage or
liability in such proportion as is appropriate to reflect the relative fault of
the indemnifying party on the one hand and of the indemnified party on the other
in connection with the violation that resulted in such loss, claim, damage or
liability, as well as any other relevant equitable considerations. The relative
fault of the indemnifying party and of the indemnified party shall be determined
by a court of law by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the indemnifying
party or by the indemnified party and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission; provided, however, that in no event shall any contribution by a holder
of Restricted Stock hereunder, when combined with amounts paid or payable
pursuant to Section 9(b), exceed the net proceeds from the offering received by
such holder.
(e) The obligations of the Company and holders of Restricted Stock
under this Section 9 shall survive completion of any offering of Restricted
Stock by a registration statement and the termination of this Agreement.
10. Changes in Common Stock or Preferred Stock. If, and as often as,
there is any change in the Common Stock or Preferred Stock by way of a stock
split, stock dividend, combination or reclassification, or through a merger,
consolidation, reorganization or recapitalization, or by any other means,
appropriate adjustment shall be made in the provisions hereof so that the rights
and privileges granted hereby shall continue with respect to the Common Stock or
Preferred Stock as so changed.
11. Rule 144 Reporting. With a view to making available the benefits
of certain rules and regulations of the Commission which may at any time permit
the sale of the Restricted Stock to the public without registration, at all
times after any registration statement covering a public offering of securities
of the Company under the Securities Act shall have become effective, the Company
agrees to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act;
(b) use its best efforts to file with the Commission in a timely
manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act; and
12
(c) furnish to each holder of Restricted Stock forthwith upon request
a written statement by the Company as to its compliance with the reporting
requirements of such Rule 144 and of the Securities Act and the Exchange Act, a
copy of the most recent annual or quarterly report of the Company, and such
other reports and documents so filed by the Company as such holder may
reasonably request in availing itself of any rule or regulation of the
Commission allowing such holder to sell any Restricted Stock without
registration.
12. Representations and Warranties of the Company. The Company
represents and warrants to you as follows:
(a) The execution, delivery and performance of this Agreement by the
Company have been duly authorized by all requisite corporate action and will not
violate any provision of law, any order of any court or other agency of
government, the articles of organization or By-laws of the Company or any
provision of any indenture, agreement or other instrument to which it or any or
its properties or assets is bound, conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under any such
indenture, agreement or other instrument or result in the creation or imposition
of any lien, charge or encumbrance of any nature whatsoever upon any of the
properties or assets of the Company.
(b) This Agreement has been duly executed and delivered by the
Company and constitutes the legal, valid and binding obligation of the Company,
enforceable in accordance with its terms.
13
13. Miscellaneous.
(a) All covenants and agreements contained in this Agreement by or on
behalf of any of the parties hereto shall bind and inure to the benefit of the
respective successors and assigns of the parties hereto (including without
limitation transferees of any Preferred Stock or Restricted Stock), whether so
expressed or not; provided, however, that registration rights conferred herein
on the holders of Preferred Stock or Restricted Stock shall only inure to the
benefit of a transferee of Preferred Stock or Restricted Stock if (i) there is
transferred to such transferee at least twenty five percent (25%) of the shares
of Restricted Stock (appropriately adjusted for any subdivision or combination)
originally issued to a Purchaser, (ii) such transferee is a member, former
member, partner, retired partner, family member or trust for the benefit of any
individual holder, stockholder or affiliate of a party hereto or (iii) such
transferee acquires at least 2,500,000 shares (appropriately adjusted for any
subdivision or combination) of Preferred Stock on an as converted to shares of
Common Stock basis; provided, further, however, that the Company is given
written notice thereof.
(b) All notices, requests, consents and other communications
hereunder shall be in writing and shall be mailed by certified or registered
mail, return receipt requested, postage prepaid, or by recognized overnight
delivery service of international reputation or, in the case of non-U.S.
residents, telexed or sent by recognized overnight delivery service of
international reputation or, addressed as follows:
If to the Company, to:
Cogent Communications Group, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
with copies to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇., ▇.▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
If to any other party hereto, to their respective addresses set forth
on Schedule I hereto;
If to any subsequent holder of Preferred Stock or Restricted Stock,
to it at such address as may have been furnished to the Company in writing by
such holder;
or, in any case, at such other address or addresses as shall have been furnished
in writing to the Company (in the case of a holder of Preferred Stock or
Restricted Stock) or to the holders of Preferred Stock or Restricted Stock (in
the case of the Company) in accordance with the provisions of this paragraph.
(c) This Agreement shall be construed and enforced in accordance with
and governed by the laws of the State of New York, without reference to its
conflict of laws provisions.
(d) This Agreement may (1) not be amended or modified, (2) no
provision hereof may be waived, and (3) no party may join through the execution
of an Instrument of Accession without the written consent of the Company and the
holders of at least two-thirds of the outstanding shares of Restricted Stock.
Notwithstanding the foregoing, no such amendment or modification shall be
effective if and to the extent that such amendment or modification either (a)
creates any additional affirmative obligations to be complied with by any or all
of the Purchasers or (b) grants to any one or more Purchasers any rights more
favorable than any rights granted to all other Purchasers or otherwise treats
any one or more Purchasers differently than all other Purchasers.
(e) 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.
14
(f) If requested in writing by the underwriters for the first
underwritten public offering of securities of the Company after the date hereof,
each holder of Restricted Stock who is a party to this Agreement shall agree not
to sell publicly any shares of Restricted Stock or any other shares of Common
Stock (other than shares of Restricted Stock or other shares of Common Stock
being registered in such offering or any shares purchased in the open market
after the Company's public offering), without the consent of such underwriters,
for a period of not more than 180 days following the consummation of such public
offering; provided, however, that all holders of at least one percent (1%) of
the then outstanding Common Stock and all officers and directors of the Company
shall also have agreed not to sell publicly their Common Stock under the
circumstances and pursuant to the terms set forth in this Section 13(f).
(g) If any provision of this Agreement shall be held to be illegal,
invalid or unenforceable, such illegality, invalidity or unenforceability shall
attach only to such provision and shall not in any manner affect or render
illegal, invalid or unenforceable any other provision of this Agreement, and
this Agreement shall be carried out as if any such illegal, invalid or
unenforceable provision were not contained herein.
(h) This Agreement shall amend and restate in its entirety the Sixth
Amended and Restated Registration Rights Agreement, dated September 15, 2004, by
and among the Company and the other parties thereto (the "Prior Registration
Rights Agreement"), the parties hereto constitute the Company and the holders of
at least two-thirds of the outstanding shares of Restricted Stock (as defined in
the Prior Registration Rights Agreement) immediately prior to the execution of
this Agreement.
(i) After the date of this Agreement, the Company shall not, without
the prior written consent of the holders of at least two-thirds of the
Restricted Stock then outstanding, enter into any agreement with any holder or
prospective holder of any securities of the Company that would grant such holder
registration rights pari passu or senior to those granted to the holders
hereunder, other than a registration related to stock issued upon conversion of
debt securities assumed by the Company in connection with its acquisition of
Allied Riser Communications Corporation.
(j) All registration rights granted under Sections 4, 5, and 6 shall
terminate and be of no further force and effect upon the earlier of (i) three
(3) years after the date the Company first effects a registration pursuant to
Section 4 or (ii) five (5) years from the date hereof. In addition, the
registration rights of a holder of Restricted Stock shall expire if all
Restricted Stock held by and issuable to such holder (and its affiliates) may be
sold under Rule 144 during any ninety (90) day period.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
15
Please indicate your acceptance of the foregoing by signing and
returning the enclosed counterpart of this letter, whereupon this Agreement
shall be a binding agreement between the Company and you.
Please indicate your acceptance of the foregoing by signing and returning the
enclosed counterpart of this letter, whereupon this Agreement shall be a binding
agreement between the Company and you.
Very truly yours,
COGENT COMMUNICATIONS GROUP, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Chairman and Chief Executive
Officer
16
OAK INVESTMENT PARTNERS IX,
LIMITED PARTNERSHIP
By: Oak Associates IX, LLC,its General Partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Managing Member
OAK IX AFFILIATES FUND, LIMITED PARTNERSHIP
By: Oak IX Affiliates, LLC, its General Partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Managing Member
OAK IX AFFILIATES FUND-A, LIMITED PARTNERSHIP
By: Oak Associates IX, LLC, its General Partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Managing Member
17
[Signature Page to Seventh Amended and Restated Registration Rights
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/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
JERUSALEM VENTURE PARTNERS III
(ISRAEL), L.P.
By: Jerusalem Venture Partners III (Israel) Management
Company Ltd., its General Partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
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/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
18
[Signature Page to Seventh Amended and Restated Registration Rights
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/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
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/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
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/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
19
[Signature Page to Seventh Amended and Restated Registration Rights
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:
------------------------------------------------
Name:
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:
------------------------------------------------
Name:
20
[Signature Page to Seventh Amended and Restated Registration Rights
Agreement - Continued]
BCP CAPITAL, L.P.
By: BCP General LLC, its General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
BCP CAPITAL QPF, L.P.
By: BCP General LLC, its General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
BCP AFFILIATES FUND LLC
By: BCP Capital Management LLC, its Manager
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
21
[Signature Page to Seventh Amended and Restated Registration Rights
Agreement - Continued]
BOULDER VENTURES IV, L.P.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: General Partner
BOULDER VENTURES IV (ANNEX), L.P.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: General Partner
22
[Signature Page to Seventh Amended and Restated Registration Rights
Agreement - Continued]
NAS PARTNERS I L.L.C.
By: Nassau Capital LLC,
its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. Hack
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. Hack
Title: Managing Member
NASSAU CAPITAL PARTNERS IV L.P.
By: Nassau Capital LLC,
its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. Hack
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. Hack
Title: Managing Member
23
[Signature Page to Seventh Amended and Restated Registration Rights
Agreement - Continued]
BNP EUROPE TELECOM & MEDIA FUND II, L.P.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------------------------
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
---------------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Directeur Associe
24
[Signature Page to Seventh Amended and Restated Registration Rights
Agreement - Continued]
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
THE ▇▇▇▇▇▇▇▇▇ DESCENDENTS TRUST
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
25
[Signature Page to Seventh Amended and Restated Registration Rights
Agreement - Continued]
UFO COMMUNICATIONS, INC.
By:
------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇▇
Title: Chairman
26
[Signature Page to Seventh Amended and Restated Registration Rights
Agreement - Continued]
PALADIN CAPITAL PARTNERS FUND, L.P.
By: Paladin General Holdings, LLC
Its General Partner
By:
---------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
WORLDWIDE INVESTMENTS, LLC
By: Worldwide Assets, Inc., its Sole Member
By:
---------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
▇▇▇▇ ▇▇▇▇. ▇▇▇. INVESTMENTS, LLC
By:
---------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
27
[Signature Page to Seventh Amended and Restated Registration Rights
Agreement - Continued]
▇▇▇▇▇ ▇▇▇▇▇▇ PACIFIC, L.P.
By: ▇▇▇▇▇ ▇▇▇▇▇▇ Pacific Advisors, LLC,
its General Partner
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇▇
Title: Member
▇▇▇▇▇ ▇▇▇▇▇▇ PACIFIC FRIENDS FUND, LLC
By: ▇▇▇▇▇ ▇▇▇▇▇▇ Pacific Advisors, LLC,
its Managing Member
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇▇
Title: Member
BROADMARK CAPITAL, L.L.C.
By:
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President
28
[Signature Page to Seventh Amended and Restated Registration Rights
Agreement - Continued]
GLOBAL ACCESS TELECOMMUNICATIONS, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
29
[Signature Page to Seventh Amended and Restated Registration Rights
Agreement - Continued]
COLUMBIA VENTURE CORPORATION, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. Petersnon, Jr.
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: Chief Executive Officer
30
SCHEDULE I
[TO BE UPDATED]
Cisco Systems Capital Corporation
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Trustee of the ▇▇▇▇▇▇▇▇▇ Descendents Trust
▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇
C ▇▇▇▇▇ Partners, ▇▇
▇. ▇▇▇▇▇ Partners II, ▇▇
▇. ▇▇▇▇▇ Fund, Ltd.
BNP Europe Telecom & Media Fund II, LP c/o CIBC Financial Center
11 ▇▇. ▇▇▇'▇ Drive, 3rd Floor
P.O. Box 694 GT
Grand Cayman
Cayman Islands, B.W.I.
Natio vie Developpement 3, FCPR BNP Private Equity
▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
Jerusalem Venture Partners III (Israel), L.P. Jerusalem Technology Park
Jerusalem Venture Partners IV (Israel), ▇.▇. ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Jerusalem Venture Partners III, L.P. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ Venture Partners Entrepreneurs Fund III, L.P. Suite 195
Jerusalem Venture Partners IV, L.P. ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Jerusalem Venture Partners IV-A, L.P.
Jerusalem Venture Partners Entrepreneurs Fund IV, L.P.
Oak Investment Partners IX, LP One ▇▇▇▇▇▇ Island
Oak IX Affiliates Fund, LP ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Oak IX Affiliates Fund-A, LP Attn: ▇▇ ▇▇▇▇▇▇▇▇▇▇
Worldview Technology Partners III, LP ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ #▇▇▇
▇▇▇▇▇▇▇▇▇ Technology International III, LP ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
31
Worldview Strategic Partners III, LP
Worldview III Carrier Fund, LP
Boulder Ventures IV, LP ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
Boulder Ventures IV (Annex), LP ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇
Nassau Capital Partners IV, LP Capstone Capitl L.L.C.
NAS Partners I, LLC ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. Hack
BCP Capital, L.P. BCP Capital Management LLC
BCP Capital QPF, L.P. One Maritime Plaza, Suite 2525
BCP Affiliates Fund Llc ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Paladin Capital Partners Fund, L.P. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Worldwide Investments, LLC Worldwide Investments, LLC
c/o Worldwide Assets, Inc.
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇. ▇▇▇. Investments, LLC ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ Pacific, L.P. ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ Pacific Friends Fund, LLC ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Broadmark Capital ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
UFO Communications, Inc. ▇▇ ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Columbia Venture Corporation
Comdisco, Inc.
ACON Venture Partners, LP
Clipperbay & Co.
Covestco-Venture, LLC
2M Technology Ventures, L.P.
32
SCHEDULE II
COGENT COMMUNICATIONS GROUP, INC.
INSTRUMENT OF ACCESSION
-----------------------
The undersigned, _________________, as a condition precedent to
becoming the owner or holder of record of ___________________ (______) shares of
the ________ Stock, par value $.001 per share, of Cogent Communications Group,
Inc., a Delaware corporation (the "Company"), hereby agrees to become a
Purchaser party to and bound by that certain Seventh Amended and Restated
Registration Rights Agreement dated as of October ____, 2004 by and among the
Company and other stockholders of the Company. This Instrument of Accession
shall take effect and shall become an integral part of the said Seventh Amended
and Restated Registration Rights Agreement immediately upon execution and
delivery to the Company of this Instrument.
IN WITNESS WHEREOF, this INSTRUMENT OF ACCESSION has been duly executed
by or on behalf of the undersigned, as a sealed instrument under the laws of the
State of Delaware, as of the date below written.
Signature:
-----------------------------------
(Print Name)
Address:
Date: _____________________________
Accepted:
COGENT COMMUNICATIONS GROUP , INC.
By:
--------------------------------
Name:
Title:
