Exhibit
10.2


 


COGENT
COMMUNICATIONS GROUP, INC.


 


FIFTH
AMENDED AND RESTATED

REGISTRATION RIGHTS AGREEMENT


 


August 12, 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”), and Series K Preferred Stock (the “Series K Purchasers”)
collectively, the Series F, G, I, J, and K Purchasers shall be known as the “Purchasers”):


 


Dear Sirs:


 


This will confirm that as a condition to closing under
the Merger Agreement (the “Merger Agreement”) by and among Cogent
Communications Group, Inc. (the “Company”), the Company’s subsidiary
Marvin Internet, Inc. (“Merger Sub”) and UFO Group, Inc. (“UFO Group”),
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.


 


“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, issued
pursuant to the Merger Agreement, constituted 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.”


 


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 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
S-4, S-8 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.


 


(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 S-4, S-8 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.


 


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.


 


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;


 


(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.


 


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.


 


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, 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 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, Series F Preferred Stock, Series G Preferred Stock, Series I
Preferred Stock, Series J Preferred Stock or Series K Preferred Stock.  If, and as often as, there is any change in
the Common Stock, Series F Preferred Stock, Series G Preferred Stock, Series I
Preferred Stock, Series J Preferred Stock, or Series K 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, Series F Preferred Stock, Series G Preferred Stock, Series I
Preferred Stock, Series J Preferred Stock, or Series K 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


 


(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.                  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.

1015 31st Street, N.W.

Washington, DC 20007,

Attention:  Robert Beury


 


with copies to:


 


Latham & Watkins, LLP

555 Eleventh St., N.W., Suite 1000

Washington, D.C. 20004

Attention: David McPherson


 


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 not be amended or modified, and no provision hereof may be
waived, 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.


 


(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)                        Upon
and after the Closing (as defined in the Merger Agreement), this Agreement
shall amend and restate in its entirety the Fourth Amended and Restated
Registration Rights Agreement, dated March 30, 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]


 

















 


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/David Schaeffer

  	
   

  
	
   

  	
   

  	
  By: David Schaeffer

  
	
   

  	
   

  	
  Its:  Chief
  Executive Officer

  
					



 

















 


[Signature
Page to Fifth Amended and Restated Registration Rights Agreement]


 


	
  OAK INVESTMENT PARTNERS IX, LIMITED PARTNERSHIP

  	
   

  
	
   

  	
   

  
	
  By:  Oak
  Associates IX, LLC, its General Partner

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/Edward Glassmeyer

  	
   

  	
   

  
	
   

  	
   

  
	
  Name:

  	
  Edward Glassmeyer

  	
   

  	
   

  
	
  Title:

  	
  Managing Member

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  OAK IX AFFILIATES FUND, LIMITED PARTNERSHIP

  	
   

  
	
   

  	
   

  
	
  By:  Oak IX
  Affiliates, LLC, its General Partner

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/Edward Glassmeyer

  	
   

  	
   

  
	
   

  	
   

  
	
  Name:

  	
  Edward Glassmeyer

  	
   

  	
   

  
	
  Title:

  	
  Managing Member

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  OAK IX AFFILIATES FUND-A, LIMITED PARTNERSHIP

  	
   

  
	
   

  	
   

  
	
  By:  Oak
  Associates IX, LLC, its General Partner

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/Edward Glassmeyer

  	
   

  	
   

  
	
   

  	
   

  
	
  Name:

  	
  Edward Glassmeyer

  	
   

  	
   

  
	
  Title:

  	
  Managing Member

  	
   

  	
   

  
						



 

















 


[Signature
Page to Fifth Amended and Restated Registration Rights Agreement]


 


	
  JERUSALEM VENTURE PARTNERS III, L.P.

  	
   

  
	
   

  	
   

  
	
  By: 
  Jerusalem Partners III, L.P., its General Partner

  	
   

  
	
  By: 
  Jerusalem Venture Partners Corporation, its General Partner

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/Erel Margalit

  	
   

  	
   

  
	
   

  	
   

  
	
  Name:

  	
  Erel Margalit

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  JERUSALEM VENTURE PARTNERS III (ISRAEL), L.P.

  	
   

  
	
   

  	
   

  
	
  By:

  	
  Jerusalem Venture Partners III (Israel) Management
  Company Ltd.,

  its General l Partner

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/Erel Margalit

  	
   

  	
   

  
	
   

  	
   

  
	
  Name:

  	
  Erel Margalit

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  JERUSALEM VENTURE PARTNERS ENTREPRENEURS FUND III,
  L.P.

  	
   

  
	
   

  	
   

  
	
  By: 
  Jerusalem Partners III, L.P., its General Partner

  	
   

  
	
  By: 
  Jerusalem Venture Partners Corporation, its General Partner

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/Erel Margalit

  	
   

  	
   

  
	
   

  	
   

  
	
  Name:

  	
  Erel Margalit

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  
							



 

















 


[Signature
Page to Fifth Amended and Restated Registration Rights Agreement]


 


	
  JERUSALEM VENTURE PARTNERS IV, L.P.

  	
   

  
	
  By: 
  Jerusalem Partners IV, L.P., its General Partner

  	
   

  
	
  By:  JVP Corp
  IV, its General Partner

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/Erel Margalit

  	
   

  	
   

  
	
   

  	
   

  
	
  Name:

  	
  Erel Margalit

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  JERUSALEM VENTURE PARTNERS IV (Israel), L.P.

  	
   

  
	
   

  	
   

  
	
  By: 
  Jerusalem Partners IV - Venture Capital, L.P.,  its General Partner

  	
   

  
	
  By:

  	
  JVP Corp IV, its General Partner

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/Erel Margalit

  	
   

  	
   

  
	
   

  	
   

  
	
  Name:

  	
  Erel Margalit

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  JERUSALEM VENTURE PARTNERS IV-A, L.P.

  	
   

  
	
   

  	
   

  
	
  By: 
  Jerusalem Venture Partners IV, L.P., 
  its General Partner

  	
   

  
	
  By:  JVP Corp
  IV, its General Partner

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/Erel Margalit

  	
   

  	
   

  
	
   

  	
   

  
	
  Name:

  	
  Erel Margalit

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  JERUSALEM VENTURE PARTNERS ENTREPRENEURS FUND IV,
  L.P.

  	
   

  
	
   

  	
   

  
	
  By: 
  Jerusalem Partners IV, L.P., its General Partner

  	
   

  
	
  By:  JVP Corp
  IV, its General Partner

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/Erel Margalit

  	
   

  	
   

  
	
   

  	
   

  
	
  Name:

  	
  Erel Margalit

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  
										



 

















 


[Signature
Page to Fifth Amended and Restated Registration Rights Agreement]


 


	
  WORLDVIEW TECHNOLOGY PARTNERS III, L.P.

  	
   

  
	
   

  	
   

  
	
  WORLDVIEW TECHNOLOGY INTERNATIONAL III, L.P.

  	
   

  
	
   

  	
   

  
	
  WORLDVIEW STRATEGIC PARTNERS III, L.P.

  	
   

  
	
   

  	
   

  
	
  WORLDVIEW III CARRIER FUND, L.P.

  	
   

  
	
   

  	
   

  
	
  By:

  	
  Worldview Capital III, L.P., its General Partner

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/James Wei

  	
   

  	
   

  
	
   

  	
   

  
	
  Name:

  	
  James Wei

  	
   

  	
   

  
	
  Title:

  	
  Member

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  WORLDVIEW TECHNOLOGY PARTNERS IV, L.P.

  	
   

  
	
   

  	
   

  
	
  WORLDVIEW TECHNOLOGY INTERNATIONAL IV, L.P.

  	
   

  
	
   

  	
   

  
	
  WORLDVIEW STRATEGIC PARTNERS IV, L.P.

  	
   

  
	
   

  	
   

  
	
  By:

  	
  Worldview Capital IV, L.P., its General Partner

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/James Wei

  	
   

  	
   

  
	
   

  	
   

  
	
  Name:

  	
  James Wei

  	
   

  	
   

  
	
  Title:

  	
  Member

  	
   

  	
   

  
							



 

















 


[Signature
Page to Fifth Amended and Restated Registration Rights Agreement]


 


	
  BCP CAPITAL, L.P.

  	
   

  
	
   

  	
   

  
	
  By:  BCP
  General LLC, its General Partner

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/Steven D. Brooks

  	
   

  	
   

  
	
   

  	
   

  
	
  Name:

  	
  Steven D. Brooks

  	
   

  	
   

  
	
  Title:

  	
  Managing Director

  	
   

  	
   

  
	
   

  	
   

  
	
  BCP CAPITAL QPF, L.P.

  	
   

  
	
   

  	
   

  
	
  By:  BCP
  General LLC, its General Partner

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/Steven D. Brooks

  	
   

  	
   

  
	
   

  	
   

  
	
  Name:

  	
  Steven D. Brooks

  	
   

  	
   

  
	
  Title:

  	
  Managing Director

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  BCP AFFILIATES FUND LLC

  	
   

  
	
   

  	
   

  
	
  By:  BCP
  Capital Management LLC, its Manager

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/Steven D. Brooks

  	
   

  	
   

  
	
   

  	
   

  
	
  Name:

  	
  Steven D. Brooks

  	
   

  	
   

  
	
  Title:

  	
  Managing Director

  	
   

  	
   

  
							



 

















 


[Signature
Page to Fifth Amended and Restated Registration Rights Agreement]


                           


	
  BOULDER VENTURES IV, L.P.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/Andrew E. Jones

  	
   

  	
   

  
	
   

  	
   

  
	
  Name:

  	
  Andrew E. Jones

  	
   

  	
   

  
	
  Title:

  	
  General Partner

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  BOULDER VENTURES IV (ANNEX), L.P.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/Andrew E. Jones

  	
   

  	
   

  
	
   

  	
   

  
	
  Name:

  	
  Andrew E. Jones

  	
   

  	
   

  
	
  Title:

  	
  General Partner

  	
   

  	
   

  
							



 

















 


[Signature
Page to Fifth Amended and Restated Registration Rights Agreement]


 


	
  NAS PARTNERS I L.L.C.

  	
   

  
	
   

  	
   

  
	
  By:    Nassau Capital LLC, its
  General Partner

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/Randall A. Hack

  	
   

  	
   

  
	
   

  	
   

  
	
  Name:

  	
  Randall A. Hack

  	
   

  	
   

  
	
  Title:

  	
  Managing Member

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  NASSAU CAPITAL PARTNERS IV L.P.

  	
   

  
	
   

  	
   

  
	
  By:    Nassau Capital LLC, its
  General Partner

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/Randall A. Hack

  	
   

  	
   

  
	
   

  	
   

  
	
  Name:

  	
  Randall A. Hack

  	
   

  	
   

  
	
  Title:

  	
  Managing Member

  	
   

  	
   

  
							



 

















 


[Signature
Page to Fifth Amended and Restated Registration Rights Agreement]


 


	
  BNP EUROPE TELECOM & MEDIA FUND II, LP

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/Shawna Morehouse

  	
   

  	
   

  
	
  Name: Jennifer Fischetti and Richard Hastings

  	
   

  
	
  Title: Authorized Signatories

  	
   

  
	
  By: General Business, Finance and Investment Ltd.,
  its General Partner and

  	
   

  
	
  By: Commerce Advisory Services Ltd, as Director and
  Partnership Secretary

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  NATIO VIE DEVELOPPEMENT 3, FCPR

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/Bernard d’Hotelans

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
    Bernard d’Hotelans

  	
   

  	
   

  
	
  Title:

  	
    Directeur Associe

  	
   

  	
   

  
						



 

















 


[Signature
Page to Fifth Amended and Restated Registration Rights Agreement]


 


	
  CISCO SYSTEMS CAPITAL CORPORATION

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  
				



 

















 


[Signature
Page to Fifth Amended and Restated Registration Rights Agreement]


 


 


	
  By:

  	
  /s/David Schaeffer

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
  David Schaeffer

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  THE SCHAEFFER DESCENDENTS TRUST

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/Ruth Schaeffer

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
  Ruth Schaeffer

  	
   

  	
   

  
					



 

















 


[Signature
Page to Fifth Amended and Restated Registration Rights Agreement]


 


	
  UFO COMMUNICATIONS, INC.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/Charles Schoenhoeft

  	
   

  	
   

  
	
  Name:

  	
  Charles Schoenhoeft

  	
   

  	
   

  
	
  Title: Chief Executive Officer

  	
   

  
					



 

















 


[Signature
Page to Fifth Amended and Restated Registration Rights Agreement]


 


	
  PALADIN CAPITAL PARTNERS FUND, L.P.

  	
   

  
	
   

  	
   

  
	
  By:

  	
  Paladin General Holdings, LLC

  Its General Partner

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/Michael R. Steed

  	
   

  	
   

  
	
  Name: 
  Michael R. Steed

  	
   

  
	
  Title: 
  President

  	
   

  
	
   

  	
   

  
	
  Address:

  	
  2001 Pennsylvania Avenue

  	
   

  
	
   

  	
  Suite 400

  	
   

  
	
   

  	
  Washington, D.C. 
  20006

  	
   

  
	
  Telephone:  (202) 293-5590

  	
   

  
	
  Facsimile:  (202) 293-5548

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  WORLDWIDE INVESTMENTS, LLC

  	
   

  
	
   

  	
   

  
	
  By: 
  Worldwide Assets, Inc., its Sole Member

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/Frank J. Hannah

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  
	
  Address:  Worldwide Investments, LLC

  	
   

  
	
   

  	
  c/o Worldwide Assets, Inc.

  	
   

  
	
   

  	
  P.O. Box 27740

  	
   

  
	
   

  	
  Las Vegas, NV 89126

  	
   

  
	
  Telephone:

  	
   

  	
   

  	
   

  
	
  Facsimile:

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  2001 PENN. AVE. INVESTMENTS, LLC

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/Michael R. Steed

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  
	
  Address:  2001 Pennsylvania Avenue

  	
   

  
	
   

  	
  Suite 400

  	
   

  
	
   

  	
  Washington, DC 
  20006

  	
   

  
	
  Telephone:

  	
   

  	
   

  	
   

  
	
  Facsimile:

  	
   

  	
   

  	
   

  
															



 

















 


[Signature
Page to Fifth Amended and Restated Registration Rights Agreement]


 


	
  KLINE HAWKES PACIFIC, L.P.

  	
   

  
	
  By:  Kline
  Hawkes Pacific Advisors, LLC, its General Partner

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/Jay Ferguson

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  
	
  Title:

  	
  Member

  	
   

  	
   

  
	
  Address:

  	
  11726 San Vicente Blvd, Suite 300

  Los Angeles, CA. 90049

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  KLINE HAWKES PACIFIC FRIENDS FUND, LLC

  	
   

  
	
  By: Kline Hawkes Pacific Advisors, LLC, its Managing
  Member

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/Jay Ferguson

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  
	
  Title:

  	
  Member

  	
   

  	
   

  
	
  Address:

  	
  11726 San Vicente Blvd, Suite 300

  Los Angeles, CA. 90049

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  BROADMARK CAPITAL, L.L.C.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/Joseph L. Schocken

  	
   

  	
   

  
	
  Name:

  	
  Joseph L. Schocken

  	
   

  	
   

  
	
  Title:

  	
  President