**Exhibit 4.9**

 

STOCKHOLDERS’ AGREEMENT

 

STOCKHOLDERS’AGREEMENT (as amended, restated, supplemented or otherwise modified from timeto time, this “Agreement”) dated as of July 23, 2003 by and among Universal Access Global Holdings Inc., aDelaware corporation (the “Company”), CityNet Telecommunications Inc., aDelaware corporation (“CityNet”), ICG Holdings, Inc., Communication VenturesIII, L.P., Communication Ventures III CEO & Entrepreneurs’ Fund, L.P.,ComVen III, L.L.C., Robert Pommer, Patrick Shutt****and each party that executesa Joinder Agreement in the form of Exhibit A hereto (other than theCompany, each, individually and together with each of their respectivesuccessors and assigns, a “Stockholder” and collectively the “Stockholders” andother than the Company and CityNet, each, individually and together with eachof their respective successors and assigns, an “Other Stockholder” andcollectively the “Other Stockholders”).

 

WITNESSETH

 

WHEREAS,CityNet and Universal Access Global Holdings Inc., a Delaware corporation (“theCompany”), are entering into a Stock Purchase Agreement (the “PurchaseAgreement”), of even date herewith, pursuant to which CityNet will pay $16million and transfer the Fiber Ring Assets to the Company in exchange for theShares and the Company’s assumption of the Assumed Liabilities. All terms nototherwise defined herein shall have the meanings given to them in the PurchaseAgreement.

 

WHEREAS, as acondition to the willingness of CityNet to enter into the Purchase Agreement,CityNet has required each of the Stockholders, and in order to induce CityNetto enter into the Purchase Agreement, each Stockholder has agreed, to enterinto this Agreement.

 

NOW,THEREFORE, in consideration of the mutual covenants and agreements containedherein and other good and valuable consideration, the adequacy of which ishereby acknowledged, and intending to be legally bound hereby, the partieshereto agree as follows:

 

SECTION 1.                             DEFINITIONS

 

As usedherein, each of the following terms shall have the meaning set forth orreferred to below:

 

“Affiliate” ofany Person (hereinafter “first Person”) shall mean (i) any other Person who,directly or indirectly, is in Control of, is Controlled by or is under commonControl with such first Person; (ii) any Person who is a director or executiveofficer (as defined in Rule 3b-7 promulgated under the Exchange Act) of suchfirst Person or any Person described in clause (i) above; or (iii) any Personwho is an Immediate Family Member of any Person described in clause (ii) above.

 

“BeneficiallyOwn” shall mean with respect to any security to, directly or indirectly,through any contract, arrangement, understanding, relationship or otherwisehave (i) voting power which includes the power to vote or to direct the voting ofsuch security; and/or (ii)

 

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investment power which includesthe power to dispose or to direct the disposition of such security.

 

“Board” shallmean the board of directors of the Company.

 

“Business Day” shall mean any day that is not a Saturday, Sunday orlegal holiday on which banking institutions in the State of New York areauthorized or obligated to close.

 

“CityNet Holders” shall mean CityNet and its Permitted Transferees.

 

“CityNet Termination Event” shall mean the time at which the CityNetHolders collectively Beneficially Own less than fifty percent (50%) of theCommon Stock Beneficially Owned by CityNet on the date hereof (after adjustmentto eliminate the effects of any stock splits, stock dividends, stockissuances/sales, dilutive transactions or other similar events).  For purposes hereof, it is understood andagreed that the percentage of the total number of outstanding shares of CommonStock of the Company which is Beneficially Owned by CityNet shall have nobearing in determining whether a CityNet Termination Event has occurred.

 

“Common Stock” shall mean common shares (of any class or series),nominal value $0.01 per share, of the Company, and any stock into which suchCommon Stock shall have been changed or any stock resulting from any reclassificationof such Common Stock.

 

“Control” of a Person shall mean the power, direct or indirect, todirect or cause the direction of the management and policies of such Person,whether through the ownership of voting securities, by contract or otherwise;and the terms “Controlling” and “Controlled” have meanings correlative to theforegoing.

 

“Exchange Act” shall mean the United States Securities Exchange Act of1934, as amended.

 

“Fully Diluted Outstanding” shall mean, at any date, all Common Stock outstandingat such date and all Common Stock issuable in respect of options or warrants topurchase, or securities convertible (directly or indirectly) into, Common Stockoutstanding on such date, whether or not such options, warrants or othersecurities are presently convertible or exercisable.

 

“Immediate Family Member” shall mean a Person’s spouse, parent orlineal descendant (whether by blood or adoption) or a trust primarily for thebenefit of any of the foregoing.

 

“Majority CityNet Holders” shall mean holders of a majority of theCommon Stock held by the CityNet Holders.

 

“Other Stockholder Termination Event” shall mean the time at which theOther Stockholders and their Permitted Transferees collectively BeneficiallyOwn less than fifty percent (50%) of the Common Stock Beneficially Owned by theOther Stockholders on the date hereof (after adjustment to eliminate theeffects of any stock splits, stock dividends, stock

 

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issuances/sales, dilutive transactionsor other similar events).  For purposeshereof, it is understood and agreed that the percentage of the total number ofoutstanding shares of Common Stock of the Company which is Beneficially Ownedby the Other Stockholders shall have no bearing in determining whether an OtherStockholder Termination Event has occurred.

 

“Permitted Transferee” shall mean, as to a Stockholder, a Person who is(a) an Affiliate of such Stockholder, (b) a stockholder, member or limitedpartner of a Stockholder (an “Indirect Stockholder”) or (c) a stockholder,member or limited partner of an Indirect Stockholder.

 

“Person” shall mean any natural person, corporation, limitedpartnership, limited liability company, general partnership, joint stockcompany, joint venture, association, company, trust, bank, trust company, landtrust, business trust or other organization whether or not a legal entity, andany government or agency or political subdivision thereof.

 

“SEC” shall mean the Securities and Exchange Commission or anysuccessor agency thereto administering federal securities laws.

 

“Securities” shall mean Common Stock and options, warrants and otherrights to subscribe for, and securities convertible into or exchangeable orexercisable for, Common Stock. “Security” shall refer to the singular form ofSecurities.

 

“Securities Act” shall mean the Securities Act of 1933, as amended, orany similar federal statute, and the rules and regulations of the SECpromulgated thereunder, all as the same shall be in effect from time to time.

 

“Transfer” shall mean any direct or indirect, voluntary or involuntary,sale, assignment, gift, pledge, encumbrance or other transfer (whether outrightor conditional) of any Securities, and the terms “Transfers” and “Transferred”shall have meanings correlative to the foregoing.

 

“Transferee” shall mean a Person to whom Securities have beenTransferred.

 

Words used herein, regardless of the number and gender specificallyused, shall be deemed and construed to include any other number, singular orplural, and any other gender, masculine, feminine or neuter, as the contextrequires.  The word “or” is notexclusive and the word “including” means “including without limitation.”

 

SECTION 2.                             TRANSFERSOF SECURITIES

 

2.1.  Lockup. For a period of twelve (12) months following the date hereof, except asotherwise agreed to by the vote of a majority of the Board, no Stockholdershall Transfer any Securities, provided, however, that the restrictioncontained in this Section 2.1 shall not apply to (a) those Transfers setforth on Schedule B, annexed hereto, or (b) a Transfer to aPermitted Transferee of the Transferring Stockholders, in each case, only ifthe Transferee in respect of such Transfer executes a Joinder Agreement to thisAgreement in the form attached hereto as Exhibit A, whereby it agrees tobe bound by terms of this Agreement, including, without limitation, thisSection 2.1.  Nothing in thisSection 2.1 shall create any obligation on the part of

 

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the Board, the Company or anyother party to consent or agree to any Transfer of Securities, or other waiverof the provisions of this Agreement, such decision to be made in the solediscretion of such parties.  Notwithstandinganything in this Section 2.1 to the contrary, in the event that the Boardapproves any Transfer of Securities by a CityNet Holder during the twelve-monthlockup described above, subject to the fiduciary duties of the Board, eachOther Stockholder shall be permitted to Transfer the equivalent percentage ofSecurities owned by such Other Stockholder as the percentage of Securitiesowned by such CityNet Holder represented by the Securities that wereTransferred pursuant to such Board approval, provided that any Transfer byOther Stockholders pursuant to this sentence shall be on terms that aresubstantially the same (or more advantageous to the Transferring OtherStockholder) and for an equal or greater price, as the Transfer by a CityNetHolder giving rise to this right.  TheBoard, in each case that a CityNet Holder Transfers Securities with approval ofthe Board pursuant to this Section 2.1, shall notify each of the OtherStockholders of such Transfer by a CityNet Holder during the twelve-monthlockup period.

 

2.2.  Restrictions on Transfer.  At all times when this Agreement is ineffect with respect to the transferring Stockholder, no Stockholder shallTransfer any Securities to any Person other than (i) through a public sale ofSecurities or any  sale permitted underRule 144 promulgated under the Securities Act) or (ii) to a Transferee thatexecutes a Joinder Agreement to this Agreement in the form attached hereto as ExhibitA.

 

2.3.  Non-Compliant Transfers Void. Any Transfer notin compliance with this Section 2 shall not be effective and shall not berecognized by the Company.

 

SECTION 3.                             ADDITIONAL OBLIGATIONS

 

3.1.  Board of Directors.

 

(a)                                  (i)                                     The rights of theCityNet Holders under this Section 3.1 (including, without limitation, todesignate directors, remove directors, consent to changes in the size of theBoard and have representation on committees of the Board), but not theirobligations hereunder, shall cease upon the occurrence of a CityNet TerminationEvent.

 

(ii)                                  The rights of theOther Stockholders under this Section 3.1 (including, without limitation,to designate directors, remove directors and consent to changes in the size ofthe Board), but not their obligations hereunder, shall cease upon theoccurrence of a Other Stockholder Termination Event.

 

(b)         Unless otherwise agreed to by (x) the MajorityCityNet Holders and (y) holders of a majority of the Common Stock held by theOther Stockholders, the Board of the Directors of Company shall consist of nine(9) members.  The Stockholders herebyagree to take all actions reasonably necessary or desirable within their power(including, but not limited to, the voting of shares of Common Stock owned bythem, attendance at meetings in person or by proxy for purposes of obtaining aquorum and execution of written consents in lieu of meetings), and the Companyshall take all reasonably necessary or desirable actions within its control

 

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(including, without limitation,calling special board and stockholder meetings), to effectuate and carry outthe provisions of this Section 3.1.

 

(c)          The CityNet Holders shall be entitled todesignate five (5) members of the Board (the “CityNet Designees”), one (1) ofwhom shall be a Class I Director, two (2) of whom shall be Class II Directorsand two (2) of whom shall be Class III Directors, as such terms are defined inthe Bylaws of the Company, provided that at least two (2) of the CityNetDesignees shall satisfy the criteria to be an “independent director” as definedby any applicable rules of the NASDAQ Stock Market (or the primary stockexchange on which the Common Stock is then listed, if any).

 

(d)         The members of the Board who are not CityNetDesignees (the “Company Designees”) shall include such individuals so as to bein compliance with applicable law, regulation and rules of the NASDAQ StockMarket (or the primary stock exchange on which the Common Stock is then listed,if any).

 

(e)          In accordance with Rule 14f-1 promulgatedunder the Exchange Act, four (4) CityNet Designees will become members of theBoard on the date hereof, and one (1) CityNet Designee will become a member ofthe Board ten (10) days after the Company files and mails to record holders ofthe Common Stock a 14f-1 information statement.  Ten (10) days after the filing and mailing of such informationstatement, the members of the Board shall consist of:

 

(i)                                     Ronald Kaufman asthe CityNet Designee to be a Class I Director,****William J. Elsner and****AnthonyL. Coelho as CityNet Designees to be Class II Directors, Fred Vierra and****AnthonyS. Daffer as CityNet Designees to be Class III Directors, of which **               **and **                       **each qualify as an “independent director” under the currently applicable NASDAQdefinition; and

 

(ii)                                  Anthony P. Dolanskiand Carolyn F. Katz as Company Designees to be Class I Directors, Randall R. Lay as a Company Designee to be a Class IIDirector and H. Robert Gill****as a Company Designee to be a Class IIIDirector, of which Messrs. Dolanski and Gill and Ms. Katz qualify as“independent directors” under the currently applicable NASDAQ definition.

 

(f)            A CityNet Designee may only be removed fromthe Board upon the agreement of the Majority CityNet Holders.  A Company Designee may only be removed fromthe Board upon the agreement of holders of a majority of the Common Stock heldby the Other Stockholders.

 

(g)         In the event that any vacancy is created onthe Board by reason of the death, resignation or removal of any CityNetDesignee, such vacancy shall be filled by a substitute director designated bythe CityNet Holders.  In the event thatany vacancy is created on the Board by reason of the death, resignation orremoval of any Company Designee, such vacancy shall be filled by a substitutedirector designated by holders of a majority of the Common Stock held by theOther Stockholders.  Each of theStockholders shall cause its designated directors to elect the persondesignated to fill any such vacancy.

 

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(h)         The Stockholders hereby agree to vote all ofthe voting securities of the Company owned by them for the election of thedirectors designated in accordance with Sections 3.1(c) and 3.1(d), for theremoval of directors in accordance with Section 3.1(f) or to cause thedirectors then in office to elect replacements in the case of a vacancy inaccordance with Section 3.1(g) and otherwise in accordance with thisSection 3.1.

 

(i)             Provided that one or more of the CityNetDesignees meet the requirements (under applicable law, SEC rules and regulationand the rules of NASDAQ or the primary exchange on which the Common Stock islisted) to serve on any committee of the Board (including, without limitation,the audit committee, the nominating committee and the compensation committee),the CityNet Designees shall be entitled to representation on each suchcommittee at least proportionate to their representation on the Board.

 

3.2.  Certain Restrictions.  No Stockholder shall grant any proxy, enter into or agree to bebound by any voting trust agreement or arrangement of any kind with respect toany voting Securities, or enter into any stockholder agreements or arrangementof any kind with respect to any Securities, any of which is inconsistent withthe provisions of this Agreement, including, but not limited to, any agreementor arrangement with respect to the voting of voting securities of the Company,nor shall any Stockholder act as a member of a group or in concert with anyother Person in connection with the acquisition of any Securities in any mannerinconsistent with the provisions of this Agreement.

 

3.3.  Directors’ and Officers’ Liability Insurance.  The Company shall maintain directors’ andofficers’ liability insurance coverage in form, dollar limits and types ofclaims covered of at least equal to that of the directors’ and officers’liability insurance currently maintained by the Company and from insurershaving a “financial strength” rating from A.M. Best (or an equivalent ratingagency) of A- or better.

 

SECTION 4.                             MISCELLANEOUS PROVISIONS

 

4.1.  Term. This Agreement shall take effect on the date of execution by eachStockholder and shall terminate on the occurrence of a CityNet Termination Event.

 

4.2.  Specific Performance.  Each of the parties hereto acknowledges and agrees that the otherwould be irreparably damaged in the event any of the provisions of thisAgreement were not performed by the other in accordance with their specificterms or were otherwise breached.  It isaccordingly agreed that each party shall be entitled to an injunction orinjunctions to redress the breaches of this Agreement and to specificallyenforce the terms and provisions hereof in any action instituted in any courthaving jurisdiction, subject to Section 4.4, in addition to any otherremedy to which such party may be entitled at law or in equity.

 

4.3.  Severability. If any provision of this Agreement shall be declared to be invalid orunenforceable, in whole or in part, such invalidity or unenforceability shallnot affect the remaining provisions hereof which shall remain in full force andeffect.

 

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4.4.  Governing Law; Jurisdiction.

 

(a)          This Agreement shall be construed under andgoverned by the internal laws of the state of Delaware without regard to itsconflict of laws provisions.

 

(b)         Each party hereto hereby irrevocably submitsto the non-exclusive jurisdiction, of the federal and state courts sitting inthe state of Delaware in any action, suit or proceeding arising in connectionwith this Agreement, and agrees that any such action, suit or proceeding shallbe brought only in such court (and waives any objection based on forumnonconveniens or any other objection to venue therein).  Service of process upon any party hereto inany action, suit or proceeding arising in connection with this Agreement may bemade anywhere in the world.  Any suchprocess or summons to be served upon any of the parties (at the option of theparty bringing such action, proceeding or claim) may be served by transmittinga copy thereof, by registered or certified mail, return receipt requested,postage prepaid, addressed to it at the address set forth in Section 4.6hereof.  Such mailing shall be deemedpersonal service and shall be legal and binding upon the party so served in anyaction, proceeding or claim.  Nothingherein shall affect the right of any party hereto to serve process in any othermanner permitted by law.

 

4.5.  Assignment. This Agreement shall be binding upon and inure to the benefit of theCompany and each Stockholder; this Agreement does not create, and shall not beconstrued as creating, any rights enforceable by any other Person.  If any involuntary Transferee acquiresSecurities in any manner, whether by operation of law or otherwise, suchSecurities shall be held subject to all of the terms of this Agreement, and bytaking and holding such Securities, such Person shall be conclusively deemed tohave agreed to be bound by and to perform all of the terms and provisions ofthis Agreement.

 

4.6.  Notices. Any notice, request, demand or other communication required or permittedhereunder shall be in writing and shall be deemed to have been given ifdelivered or sent by facsimile transmission, upon receipt, if by hand delivery,upon receipt, if sent by nationally recognized overnight courier service, oneday after deposit with such, or if sent by registered or certified mail, uponthe sooner of the date on which receipt is acknowledged or the expiration ofthree days after deposit in United States post office facilities properlyaddressed with postage prepaid.  Allnotices to a party will be sent to the addresses set forth below or to suchother address or person as such party may designate by notice to each otherparty hereunder:

 

If to CityNet:

 

CityNet Telecommunications, Inc.

8405 Colesville Road

6th Floor

Silver Spring, Maryland 20910

Attention:  General Counsel

Facsimile:  301-608-8121

 

With a copy to:

 

McDermott, Will & Emery

 

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50 Rockefeller Plaza

New York, NY 10020

Attention:  Mark Selinger

Facsimile:  212-547-5444

 

If to the Company:

 

Universal Access Global Holdings Inc.

233 S. Wacker Drive, Suite 600

Chicago, IL 60606

Attention:  Scott Fehlan

Facsimile: 312-660-1290

 

With a copy to:

 

Shefsky & Froelich Ltd.

444 N. Michigan Avenue, Suite 2500

Chicago, IL 60611

Attention: Michael J. Choate

Facsimile: 312-527-5921

 

If to an Other Stockholder, the address of such Stockholder in therecords of the Company.

 

Any notice given hereunder may be given on behalf of any party by hiscounsel or other authorized representative.

 

4.7.  Entire Agreement; Amendment. This Agreement iscomplete, reflects the entire agreement of the parties with regard to itssubject matter, supersedes all previous written or oral negotiations, commitmentsand writings between the parties hereto with respect to the subject matterhereof, if any, and, except as otherwise provided herein, may not be amended,supplemented or discharged except by an instrument in writing signed in anysuch case (a) by the Majority CityNet Holders and (b) by the holders of amajority of the Common Stock held by the Other Stockholders.

 

4.8.  Waiver. Any waiver by any party of a breach of any provisions of this Agreementshall not operate as or be construed to be a waiver of any other breach of thatprovision or of any breach of any other provision of this Agreement.  The failure of a party to insist upon strictadherence to any term of this Agreement on one or more occasions shall not beconsidered a waiver or deprive that party of the right thereafter to insistupon strict adherence to that term or any other term of this Agreement.  Any waiver must be evidenced by a writingsigned by the party against whom the waiver is sought to be enforced.

 

4.9.  Captions and Gender.  The captions in this Agreement are for convenience only and shallnot affect the construction or interpretation of any term or provisionhereof.  The use in this Agreement ofthe masculine pronoun in reference to a party hereto shall be deemed to includethe feminine or neuter, as the context may require.

 

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4.10.  Execution in Counterparts.  For the convenience of the parties and tofacilitate execution, this Agreement may be executed in two or more counterparts,each of which shall be deemed an original, but all of which shall constituteone and the same document.

 

4.11.  Expenses. Each of the parties shall pay its own expenses in connection with thenegotiation, execution and performance of the Agreement.

 

4.12.  Effect of Headings.  The section headings herein are for convenience only andshall not affect the meaning or interpretation of this Agreement.

 

4.13.  Inspection. So long as this Agreement is in effect, this Agreement shall be madeavailable for inspection by any holder of Common Stock at the Company’sprincipal offices.  The Company shallsend a copy of this Agreement to any legitimately interested party withoutcharge upon receipt of a written request therefor.

 

 

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**IN WITNESS WHEREOF**,the parties hereto have duly executed this Agreement on the day and year firstabove written.

 

 
|   | CITYNET TELECOMMUNICATIONS INC.                     |
|--------|-----------------------------------------------------|
|   |                                                |   |
|   | By:                                                 |    /S/ Emilio Pardo |   |
|   | Name:  Emilio Pardo                            |
|   | Title:  Chief Executive  Officer               |
|   |                                                |   |
|   | UNIVERSAL ACCESS GLOBAL HOLDINGS  INC.              |
|   |                                                |   |
|   | By:                                                 |    /S/ Randall R. Lay |   |
|   | Name:  Randall R. Lay                          |
|   | Title:  President and Chief  Executive Officer |

 

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|   | ICG HOLDINGS, INC.                                                           |
|--------|------------------------------------------------------------------------------|
|   |                                                                         |   |
|   | By:                                                                          |    /S/ Susan Niemeyer |   |
|   | Name:  Susan Niemeyer                                                   |
|   | Title:  General Counsel                                                 |
|   |                                                                         |   |
|   | Number of shares of Common Stock  Held by such Stockholder:  21,664,124 |
|   |                                                                         |   |
|   | 435 Devon Park Drive                                                         |
|   | 600 Building                                                                 |
|   | Wayne, PA 19087                                                              |

 

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|   | COMMUNICATIONS VENTURES III, L.P.                                            |
|--------|------------------------------------------------------------------------------|
|   | By:                                                                          |  COMVEN III, L.L.C., Its General  Partner |
|   |                                                                         |   |
|   | By:                                                                          |    /S/ Michael P. Rolnick |   |
|   | Name:  Michael P. Rolnick                                               |
|   | Title:  Member                                                          |
|   |                                                                         |   |
|   | Number of shares of Common Stock  Held by such Stockholder:  12,390,375 |
|   |                                                                         |   |
|   | 305 Lytton Avenue                                                            |
|   | Palo Alto, California 94301                                                  |

 

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|   | COMMUNICATIONS VENTURES III, CEO &ENTREPRENEURS’ FUND L.P. |
|--------|---------------------------------------------------------------------|
|   | By: COMVEN III,  L.L.C., Its General Partner                        |
|   |                                                                |   |
|   | By:                                                                 |    /S/ Michael P. Rolnick |   |
|   | Name:  Michael P. Rolnick                                      |
|   | Title:  Member                                                 |
|   |                                                                |   |
|   | Number of shares of Common Stock                                    |
|   | Held by such Stockholder:   625,221                            |
|   |                                                                |   |
|   | 305 Lytton Avenue                                                   |
|   | Palo Alto, California 94301                                         |

 

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|   | PATRICK C. SHUTT DECLARATION OF  TRUST   |
|--------|------------------------------------------|
|   |                                     |   |
|   | By:                                      |    /S/ Patrick C. Shutt |   |
|   | Name:  Patrick C. Shutt             |
|   | Title:  Trustee                     |
|   |                                     |   |
|   | Number of shares of Common Stock         |
|   | Held by such Stockholder:   849,778 |
|   |                                     |   |
|   | One Tower Lane, Suite 1700               |
|   | Oakbrook Terrace, Illinois 60181         |

 

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|   | SHUTT FAMILY LIMITED PARTNERSHIP         |
|--------|------------------------------------------|
|   |                                     |   |
|   | By:                                      |    /S/ Patrick C. Shutt |   |
|   | Name:  Patrick C. Shutt             |
|   | Title:  General Partner             |
|   |                                     |   |
|   | Number of shares of Common Stock         |
|   | Held by such Stockholder:   870,000 |
|   |                                     |   |
|   | One Tower Lane, Suite 1700               |
|   | Oakbrook Terrace, Illinois 60181         |

 

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|   | CONNER****SHUTT  UTMA ILLINOIS           |
|--------|------------------------------------------|
|   |                                     |   |
|   | By:                                      |    /S/ Patrick C. Shutt |   |
|   | Name:  Patrick C. Shutt             |
|   | Title:  Custodian                   |
|   |                                     |   |
|   | Number of shares of Common Stock         |
|   | Held by such Stockholder:   111,300 |
|   |                                     |   |
|   | **Address**                              |
|   | **Address**                              |

 

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|   | CAMERON K. SHUTT UTMA ILLINOIS           |
|--------|------------------------------------------|
|   |                                     |   |
|   | By:                                      |    /S/ Patrick C. Shutt |   |
|   | Name:  Patrick C. Shutt             |
|   | Title:  Custodian                   |
|   |                                     |   |
|   | Number of shares of Common Stock         |
|   | Held by such Stockholder:   110,000 |
|   |                                     |   |
|   | **Address**                              |
|   | **Address**                              |

 

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|   | ROBERT J. POMMER, JR. DECLARATION OF  TRUST |
|--------|---------------------------------------------|
|   |                                        |   |
|   | By:                                         |    /S/ Robert J. Pommer, Jr. |   |
|   | Name:  Robert J. Pommer, Jr.           |
|   | Title:  Trustee                        |
|   |                                        |   |
|   | Number of shares of Common Stock            |
|   | Held by such Stockholder:   2,007,759  |
|   |                                        |   |
|   | **Address**                                 |
|   | **Address**                                 |

 

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|   | POMMER FAMILY LIMITED PARTNERSHIP          |
|--------|--------------------------------------------|
|   |                                       |   |
|   | By:                                        |    /S/ Robert J. Pommer, Jr. |   |
|   | Name:  Robert J. Pommer, Jr.          |
|   | Title:  General Partner               |
|   |                                       |   |
|   | Number of shares of Common Stock           |
|   | Held by such Stockholder:   1,000,000 |
|   |                                       |   |
|   | **Address**                                |
|   | **Address**                                |

 

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|   | ELIZABETH M. POMMER DECLARATION OF  TRUST |
|--------|-------------------------------------------|
|   |                                      |   |
|   | By:                                       |    /S/ Elizabeth M. Pommer |   |
|   | Name:  Elizabeth M. Pommer           |
|   | Title:  Trustee                      |
|   |                                      |   |
|   | Number of shares of Common Stock          |
|   | Held by such Stockholder:   199,545  |
|   |                                      |   |
|   | **Address**                               |
|   | **Address**                               |

 

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|   | THOMAS KAPSALIS DECLARATION OF  TRUST                                                                                                                                                                                                                                                        |
|--------|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |                                                                                                                                                                                                                                                                                         |   |
|   | By:                                                                                                                                                                                                                                                                                          |    /S/ Thomas Kapsalis |   |
|   | Name:  Thomas Kapsalis                                                                                                                                                                                                                                                                  |
|   | Title:  Trustee                                                                                                                                                                                                                                                                         |
|   |                                                                                                                                                                                                                                                                                         |
|   | Number of shares of Common Stock held by such Stockholder:  The stockholders agreement is limited to  the 879,996 shares of common stock which were transferred from Patrick Shutt  to Thomas Kapsalis and does not cover any other shares owned by Thomas  Kapsalis or his affiliates. |
|   |                                                                                                                                                                                                                                                                                         |
|   | 1021 West Adams                                                                                                                                                                                                                                                                              |
|   | Chicago, Illinois 60607                                                                                                                                                                                                                                                                      |

 

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EXHIBIT A

 

FORM OF JOINDER AGREEMENT

 

AGREEMENT (as amended, restated, supplemented or otherwise modifiedfrom time to time, the “Agreement”), dated as of **[                      ]**, 2003, is made by**[INSERTJOINING PARTY]** (the “Joining Party”).

 

RECITALS:

 

WHEREAS, pursuant to that certain Stockholders’ Agreement (the“Stockholders’ Agreement”), dated as of **[                      ]**, 2003, a copy of which isattached hereto as Appendix 1, by and between Universal Access GlobalHoldings Inc. (the “Company”), CityNet Telecommunications, Inc., ICG Holdings,Inc., Communication Ventures III, L.P., Communication Ventures III CEO &Entrepreneurs’ Fund, L.P., ComVen III, L.L.C., Robert Pommer, Patrick Shutt andeach signatory to a Joinder Agreement in the form hereof, parties thereto haveagreed, *interalia*, to vote their voting securities in the Company in the mannerset forth in Stockholders’ Agreement; and

 

WHEREAS, the Joining Party wishes to purchase securities of the Companyin accordance with the terms and conditions set forth in the Stockholders’Agreement.

 

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiencyof which is hereby acknowledged, it is agreed as follows:

 

1.                                       Joinderto Stockholders’ Agreement.  TheJoining Party hereby joins in the Stockholders’ Agreement and agrees to bebound thereunder as if the Joining Party were an original party thereto.

 

2.                                       EntireAgreement.  The Joining Party herebyacknowledges that this Agreement and the Stockholders’ Agreement embody theentire agreement and understanding of the Joining Party and the other partiesto the Stockholders’ Agreement in respect of the subject matter containedherein or therein. There are no agreements, representatives, warranties orcovenants other than those expressly set forth herein or therein.  This Agreement and the Stockholders’Agreement supersede all prior agreements and understandings between the partieshereto, whether written or oral, express or implied, with respect to suchsubject matter herein or therein.

 

3.                                       Severability.If any provision of this Agreement shall be declared to be invalid orunenforceable, in whole or in part, such invalidity or unenforceability shallnot affect the remaining provisions hereof which shall remain in full force andeffect.

 

4.                                       BindingEffect.  This Agreement shall takeeffect as of the date and year first above written and shall be binding uponthe parties hereto and shall be binding on their respective heirs, executors,administrators, personal representatives, successors and assigns, as

 

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the case may be.  The parties hereto may not assign ortransfer any of their rights or obligations under this Agreement.

 

5.                                       GoverningLaw. This Agreement shall be construed under and governed by the internallaws of the state of Delaware without regard to its conflict of lawsprovisions.

 

IN WITNESS WHEREOF, the undersigned has executed this Joinder Agreementas of the date set forth above by its duly authorized representative.

 
|   | **[JOINING PARTY]** |
|--------|---------------------|
|   |                |   |
|   |                |   |
|   | By:                 |   |   |
|   |                | Name: |
|   |                | Title: |

 

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**SCHEDULE B**

 

1.                                       PatrickShutt to transfer up to 120,000 shares of Common Stock to Tom Kapsalis

 

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