Exhibit 4.1.2


 


AMENDMENT NO. 1 TO


FOURTH AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT


 


This Amendment No. 1
(the “Amendment”) to the Fourth Amended and Restated Stockholders Agreement
(the “Agreement”), dated as of June 27, 2002, by and among Eschelon Telecom, Inc.,
a Delaware corporation (the “Company”), certain holders of the Company’s Series A
Preferred Stock, par value $0.01 per share, certain holders of the Company’s
common stock, par value $0.01 per share, and certain individuals identified on
the schedule of minority stockholders attached to the Agreement, is made
as of December 23, 2004, and amends the Agreement, pursuant to Section 12.2
of the Agreement, to the extent expressly set forth herein.  All capitalized terms not otherwise defined
herein shall have the meanings ascribed thereto in the Agreement.


 


1.             A
new Section 16 shall be added to the Agreement and shall state as follows:


 


The
holders of the Company’s Series B Preferred Stock, par value $0.01 per
share (the “Series B
Preferred Stock”), identified on the Schedule of Series B
Holders attached hereto and such other holders of Series B Preferred
Stock who from time to time become a party hereto by executing a counterpart
signature page (each, a “Series B Holder” and together the “Series B Holders”),
with each Series B Holder’s respective number of shares of Series B
Preferred Stock (“Series B
Shares”) listed thereon, shall be deemed parties to this
Agreement and shall have the same rights and obligations as Series A
Holders with respect to Section 3 (“Tag Along” and “Drag Along” Rights), Section 4
(Transfer Rights), Section 6 (Preemptive Rights), Section 7
(Registration Rights), Section 9 (Certain Issuances and Transfers, Etc.), Section 10
(Remedies) and Section 11 (Legends) of the Agreement as if their Series B
Shares were Series A Shares.  For
the purposes of the Agreement, the Series B Shares shall be considered
Shares and shall vote with the Series A Shares in order to determine
actions taken by the Majority Series A Holders, with each Series A
Share and each Series B Share carrying the right to cast one vote.


 


2.             This
Amendment will become effective simultaneously with the “Closing” as that term
is defined in the Series B Preferred Stock Purchase Agreement, dated as of
December 23, 2004, by and among the Company and each of the persons listed
on the schedule of purchasers attached thereto.


 


3.             Except
as modified or supplemented by this Amendment, each of the terms of the
Agreement remain unmodified and in full force and effect.


 





















 


IN
WITNESS WHEREOF, each of the undersigned has duly executed this Amendment as of
the date first above written.


 


	
   

  	
  BAIN
  CAPITAL FUND VI, L.P.

  
	
   

  	
  By:

  	
    Bain Capital Partners VI, L.P., its general
  partner

  
	
   

  	
  By:

  	
    Bain Capital Investors , LLC, its general
  partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Ian Loring

  
	
   

  	
   

  	
  Name:

  	
  Ian Loring

  
	
   

  	
   

  	
  Title:

  	
  Managing
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BCIP
  ASSOCIATES II

  
	
   

  	
  BCIP
  ASSOCIATES II-B

  
	
   

  	
  BCIP
  ASSOCIATES II-C

  
	
   

  	
  By:

  	
    Bain Capital Investors, LLC, their managing
  partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Ian Loring

  
	
   

  	
   

  	
  Name:

  	
  Ian Loring

  
	
   

  	
   

  	
  Title:

  	
  Managing
  Director

  



 





















 


 


	
   

  	
  PEP
  INVESTMENTS PTY. LIMITED

  
	
   

  	
  By:

  	
    Bain Capital Investors, LLC, its
  attorney-in-fact

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Ian Loring

  
	
   

  	
   

  	
  Name:

  	
  Ian Loring

  
	
   

  	
   

  	
  Title:

  	
  Managing
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  RGIP,
  LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
    /s/ R. Bradford Malt

  
	
   

  	
  Name:

  	
  R. Bradford Malt

  
	
   

  	
  Title:

  	
  Managing Member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  RANDOLPH
  STREET PARTNERS IV

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
    /s/ Matthew Sternmetz

  
	
   

  	
  Name:

  	
  Matthew
  Sternmetz

  
	
   

  	
  Title:

  	
  Partner

  
					



 





















 


	
   

  	
  WIND
  POINT PARTNERS IV, L.P.

  
	
   

  	
  By:

  	
    Wind Point Investor IV, L.P., as General
  Partner

  
	
   

  	
  By:

  	
    Wind Point Advisor, L.L.C., as General
  partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ James P. TenBroeck

  
	
   

  	
   

  	
  Name:

  	
  James P.
  TenBroeck

  
	
   

  	
   

  	
  Title:

  	
  Managing Member

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ James E. Forrest

  
	
   

  	
   

  	
  Name:

  	
  James E. Forrest

  
	
   

  	
   

  	
  Title:

  	
  Managing Member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  WIND
  POINT IV EXECUTIVE ADVISOR

  PARTNERS, L.P.

  
	
   

  	
  By:

  	
    Wind Point Investor IV, L.P., as General
  Partner

  
	
   

  	
  By:

  	
    Wind Point Advisor, L.L.C., as General
  partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ James P. TenBroeck

  
	
   

  	
   

  	
  Name:

  	
  James P.
  TenBroeck

  
	
   

  	
   

  	
  Title:

  	
  Managing Member

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ James E. Forrest

  
	
   

  	
   

  	
  Name:

  	
  James E. Forrest

  
	
   

  	
   

  	
  Title:

  	
  Managing Member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  WIND
  POINT ASSOCIATES IV, L.L.C.

  
	
   

  	
  By:

  	
    Wind Point Investor IV, L.P., as General
  Partner

  
	
   

  	
  By:

  	
    Wind Point Advisor, L.L.C., as General
  partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ James P. TenBroeck

  
	
   

  	
   

  	
  Name:

  	
  James P.
  TenBroeck

  
	
   

  	
   

  	
  Title:

  	
  Managing Member

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ James E. Forrest

  
	
   

  	
   

  	
  Name:

  	
  James E. Forrest

  
	
   

  	
   

  	
  Title:

  	
  Managing Member

  



 





















 


	
   

  	
  STOLBERG,
  MEEHAN & SCANO II, L.P.

  
	
   

  	
  By:

  	
    Stolberg, Meehan & Scano, L.L.C.,
  General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Peter VanGenderen

  
	
   

  	
   

  	
  Name:

  	
  Peter
  VanGenderen

  
	
   

  	
   

  	
  Title:

  	
  Authorized
  Representative

  
	
   

  	
   

  	
   

  
	
   

  	
  SMS
  II-A, L.P.

  
	
   

  	
  By:

  	
    Stolberg, Meehan & Scano, L.L.C.,
  General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Peter VanGenderen

  
	
   

  	
   

  	
  Name:

  	
  Peter
  VanGenderen

  
	
   

  	
   

  	
  Title:

  	
  Authorized
  Representative

  



 





















 


 


	
   

  	
  YALE
  UNIVERSITY

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/
  David F. Swensen

  
	
   

  	
   

  	
  Name:

  	
  David F. Swensen

  
	
   

  	
   

  	
  Title:

  	
  Chief Investment
  Officer

  



 





















 


	
   

  	
  ESCHELON
  TELECOM, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/
  Richard A. Smith

  
	
   

  	
   

  	
  Name:

  	
  Richard A. Smith

  
	
   

  	
   

  	
  Title:

  	
  President &
  CEO

  



 





















 


SCHEDULE OF SERIES B HOLDERS


 


	
  Names and Addresses

  	
   

  	
  No. of Shares of

  Series B Preferred Stock

  	
   

  
	
  Bain Capital Fund VI,
  L.P.

  	
   

  	
  7,634,294.6667

  	
   

  
	
  111 Huntington Avenue

  	
   

  	
   

  	
   

  
	
  Boston, MA 02199

  	
   

  	
   

  	
   

  
	
  Attn:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  BCIP Associates II

  	
   

  	
  1,231,036.0000

  	
   

  
	
  111 Huntington Avenue

  	
   

  	
   

  	
   

  
	
  Boston, MA 02199

  	
   

  	
   

  	
   

  
	
  Attn:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  BCIP Associates II-B

  	
   

  	
  337,294.6667

  	
   

  
	
  111 Huntington Avenue

  	
   

  	
   

  	
   

  
	
  Boston, MA 02199

  	
   

  	
   

  	
   

  
	
  Attn:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  BCIP Associates II-C

  	
   

  	
  396,609.3333

  	
   

  
	
  111 Huntington Avenue

  	
   

  	
   

  	
   

  
	
  Boston, MA 02199

  	
   

  	
   

  	
   

  
	
  Attn:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  RGIP, LLC

  	
   

  	
  98,210.6667

  	
   

  
	
  111 Huntington Avenue

  	
   

  	
   

  	
   

  
	
  Boston, MA 02199

  	
   

  	
   

  	
   

  
	
  Attn:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Randolph Street
  Partners IV

  	
   

  	
  98,210.6667

  	
   

  
	
  200 East Randolph Drive

  	
   

  	
   

  	
   

  
	
  Chicago, IL 60601

  	
   

  	
   

  	
   

  
	
  Attn:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  PEP Investments PTY
  Ltd.

  	
   

  	
  25,448.0000

  	
   

  
	
  111 Huntington Avenue

  	
   

  	
   

  	
   

  
	
  Boston, MA 02199

  	
   

  	
   

  	
   

  
	
  Attn:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Wind Point Partners IV,
  L.P.

  	
   

  	
  7,832,947.7067

  	
   

  
	
  One Town Square

  	
   

  	
   

  	
   

  
	
  Suite 780

  	
   

  	
   

  	
   

  
	
  Southfield, MI 48076

  	
   

  	
   

  	
   

  
	
  Attn: Jim TenBroek

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Wind Point IV Executive
  Advisor Partners, L.P.

  	
   

  	
  58,857.3600

  	
   

  
	
  One Town Square

  	
   

  	
   

  	
   

  
	
  Suite 780

  	
   

  	
   

  	
   

  
	
  Southfield, MI 48076

  	
   

  	
   

  	
   

  
	
  Attn: Jim TenBroek

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Wind Point Associates
  IV, L.L.C.

  	
   

  	
  29,010.9333

  	
   

  
	
  One Town Square

  	
   

  	
   

  	
   

  
	
  Suite 780

  	
   

  	
   

  	
   

  
	
  Southfield, MI 48076

  	
   

  	
   

  	
   

  
	
  Attn: Jim TenBroek

  	
   

  	
   

  	
   

  



 





















 


	
  Stolberg,
  Meehan & Scano II, L.P.

  	
   

  	
  300,000.0000

  	
   

  
	
  370 17th
  Street

  	
   

  	
   

  	
   

  
	
  Suite 3650

  	
   

  	
   

  	
   

  
	
  Denver, CO 80202

  	
   

  	
   

  	
   

  
	
  Attn:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SMS II-A, L.P.

  	
   

  	
  900,000.0000

  	
   

  
	
  370 17th
  Street

  	
   

  	
   

  	
   

  
	
  Suite 3650

  	
   

  	
   

  	
   

  
	
  Denver, CO 80202

  	
   

  	
   

  	
   

  
	
  Attn:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Yale University

  	
   

  	
  1,058,080.0000

  	
   

  
	
  Yale Investments Office

  	
   

  	
   

  	
   

  
	
  230 Prospect Street

  	
   

  	
   

  	
   

  
	
  New Haven, CT 06511

  	
   

  	
   

  	
   

  
	
  Attn: David Swensen