Exhibit
10.1


 


COGENT
COMMUNICATIONS GROUP, INC.


 


SECOND
AMENDED AND RESTATED


STOCKHOLDERS
AGREEMENT


 


THIS STOCKHOLDERS AGREEMENT (this “Agreement”)
is made as of the 31st day of July, 2003 by and among (i) Cogent
Communications Group, Inc., a Delaware corporation (the “Company”), (ii)
David Schaeffer (the “Founder”) and (iii) those persons whose names are
set forth under the heading “Purchasers” on Schedule I hereto and any person
who later becomes a party to this Agreement by executing and delivering to the
Company an Instrument of Accession in the form of Schedule II hereto (the “Purchasers”).


 


WITNESSETH:


 


WHEREAS, simultaneously herewith, the Company and
certain of the Purchasers (the “Series G Purchasers”) have consummated
the transactions contemplated by that certain Participating Convertible
Preferred Stock Purchase Agreement by and among the Company and the Series G
Purchasers, dated June 26, 2003 (the “Purchase Agreement”), pursuant to
which the Series G Purchasers have agreed, subject to the terms and conditions
set forth therein, to purchase at least 41,000 shares of the Company’s Series G
Participating Convertible Preferred Stock, par value $.001 per share, which
shall be issued to the Series G Purchasers in several subseries (such several
subseries collectively, the “Series G Preferred Stock”);


 


WHEREAS, simultaneously herewith, the Company and
another Purchaser, Cisco Systems Capital Corporation (“Cisco Capital”),
have consummated the transactions contemplated by that certain Exchange
Agreement by and among the Company, Cisco Capital and the other parties
thereto, dated June 26, 2003 (the “Exchange Agreement”), pursuant to
which Cisco Capital has agreed, among other things and subject to the terms and
conditions set forth therein, to acquire 11,000 shares of the Company’s Series
F Participating Convertible Preferred Stock, par value $.001 per share (the “Series
F Preferred Stock,” and together with the Series G Preferred Stock and the
Company’s Series H Participating Convertible Preferred Stock, par value $.001
per share (the “Series H Preferred Stock”), the “Preferred Stock”);


 


WHEREAS, the Founder and certain of the Purchasers who
purchased the Series A Participating Convertible Preferred Stock, par value
$.001 per share, of the Company, Series B Participating Convertible Preferred
Stock, par value $.001 per share, of the Company, and Series C Participating
Convertible Preferred Stock, par value $.001 per share, of the Company, are
parties to that certain Amended and Restated Stockholders Agreement, dated as
of October 16, 2001 (the “A&R Stockholders Agreement”), and in
connection with the consummation of the transactions contemplated by the
Exchange Agreement and the Purchase Agreement, the Company, the Founder and
such Purchasers, constituting signatories sufficient under Section 15 of the
A&R Stockholders Agreement to amend the A&R Stockholders Agreement,
desire to amend and restate the A&R Stockholders Agreement as set forth
herein and execute and deliver


 

















 


this Agreement, setting
forth herein certain terms and conditions governing their relative ownership of
the Shares (as hereinafter defined);


 


NOW THEREFORE, in consideration of the mutual
covenants herein contained and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the Company, the
Founder and the Purchasers hereby agree as follows:


 


1.                                       Prohibited
Transfers. The Founder shall not sell, assign, transfer, pledge,
hypothecate, mortgage or dispose of, by gift or otherwise, or in any way
encumber, all or any part of the Shares (as hereinafter defined) owned by him
except in compliance with the terms of this Agreement.  For purposes of this Agreement, the term “Shares”
shall mean and include all shares of Common Stock of the Company and all shares
of any class or series of equity securities or equity-backed securities of the
Company or any subsidiary, including without limitation, capital stock
(including any shares of treasury stock) or rights, options, warrants or other
securities convertible into or exercisable or exchangeable for capital stock or
any debt security which by its terms is convertible into or exchangeable for
any equity security or has any other equity feature or any security that is a
combination of debt and, in any event that is owned by the Founder, whether
presently held or hereafter acquired.


 


2.                                       Right
of Refusal on Dispositions by the Purchasers.  Except as set forth in Section 4, if the Founder wishes to sell,
assign, transfer or otherwise dispose of any or all Shares owned by him
pursuant to the terms of a bona fide offer received from a third party at any
time prior to the consummation of a firmly underwritten public offering
pursuant to an effective registration statement under the Securities Act of
1933, as amended, covering the offer and sale of Common Stock of the Company in
which (a) the pre-money valuation of the Company is at least $500,000,000 and
(b) the gross cash proceeds (before underwriting discounts, commissions and
fees) are at least $50,000,000 (a “Qualified Offering”), the Founder
shall submit a written offer to sell such Shares to the Purchasers (with a copy
to the Company) on terms and conditions, including price, not less favorable to
the Purchasers than those on which the Founder proposes to sell such Shares to
such third party (the “Offer”). 
The Offer shall disclose the identity of the proposed purchaser or
transferee, the Shares proposed to be sold or transferred, the agreed terms of
the sale or transfer and any other material facts relating to the sale or
transfer.  Within thirty (30) days after
receipt of the Offer, each Purchaser and each Qualified Transferee, if any,
shall give notice to the Founder of its intent to purchase all or any portion
of the offered Shares on the same terms and conditions as set forth in the
Offer.  Each Purchaser and Qualified
Transferee shall have the right to purchase that number of the Shares as to
which the Offer applies as shall be equal to the aggregate number of such
Shares multiplied by a fraction, the numerator of which is the number of shares
of Common Stock of the Company then owned by such Purchaser or Qualified
Transferee (as applicable) (calculated on an as converted basis, and including
any shares of Common Stock deemed to be beneficially owned by such Purchaser pursuant
to Rule 13d-3 promulgated under the Securities Exchange Act of 1934 (“Rule
13d-3”)) and the denominator of which is the aggregate number of shares of
said Common Stock then issued and outstanding and held by (and deemed to be
beneficially owned by) all the Purchasers (calculated on an as converted
basis).  The amount of Shares each
Purchaser or Qualified Transferee, as that


 


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term is defined below, is
entitled to purchase under this Section 2 shall be referred to as such
Purchaser’s “Pro Rata Fraction.” 
Each Purchaser shall have the right to transfer his right to any Pro
Rata Fraction or part thereof to any Qualified Transferee.  If any Purchaser or Qualified Transferee does
not wish to purchase or to transfer his right to purchase his Pro Rata
Fraction, then any Purchasers or Qualified Transferees who so elect shall have
the right to purchase, on a pro rata basis with any other Purchasers or
Qualified Transferees who so elect, any Pro Rata Fraction not purchased by a
Purchaser or Qualified Transferee.  Each
Purchaser or Qualified Transferee shall act upon the Offer as soon as
practicable after receipt from the Company of notice that it has not elected to
purchase all of the offered Shares, and in all events within fifteen (15) days
after receipt thereof.  Each Purchaser
and Qualified Transferee shall have the right to accept the Offer as to all or
part of the Remaining Offered Shares offered thereby.  If a Purchaser or Qualified Transferee shall elect to purchase
all or part of such Purchaser’s or Qualified Transferee’s Pro rata Fraction,
said Purchaser or Qualified Transferee shall individually communicate in
writing such election to purchase to whichever of the Purchasers has made the
Offer, which communication shall be delivered by hand or delivered to such
Purchaser at the address set forth in Section 8 below and shall, when taken in
conjunction with the Offer be deemed to constitute a valid, legally binding and
enforceable agreement for the sale and purchase of the Shares covered thereby.


 


If the Purchasers, taken together, do not agree to
purchase all of the Shares offered by the Founder pursuant to and within thirty
(30) days after receipt of the Offer, and consummate such purchase within forty-five
(45) days after receipt of the Offer, such Shares subject to the Offer as shall
not have been purchased may be sold by the Founder at any time within 90 days
after the expiration of the Offer, but subject to the provisions of Section 3
below.  Any such sale shall be at not
less than the price and upon other terms and conditions, if any, not more
favorable to the purchaser than those specified in the Offer.  Any Shares not sold within such 90-day
period shall continue to be subject to the requirements of a prior offer and
re-sale pursuant to this Section.


 


For purposes hereof, a “Qualified Transferee”
shall mean any person (i) who is a Purchaser, (ii) who is an “affiliated
person” of a Purchaser, as that term is defined in the Investment Company Act
of 1940, (iii) who is a partner, member or stockholder of a Purchaser that is a
partnership, limited liability company or corporation, as applicable, and who
is offered a pro rata right, based on his, her or its interest in the
Purchaser, to acquire the Shares offered by a Purchaser pursuant to this
Section 2, or (iv) who acquires at least twenty five percent (25%) of the
shares of Preferred Stock issued by the Company to any Purchaser (as adjusted
for stock splits, stock dividends, reclassifications, recapitalizations or
other similar events).


 


3.                                       Right
of Participation in Sales by the Founder. 
Except as set forth in Section 4, if at any time the Founder wishes to
sell, transfer or otherwise dispose of any Shares owned by him to any person
(the “Acquiror”) in a transaction which is subject to the provisions of
Section 2 hereof, and such sale, transfer or other disposition would, when
combined with all prior sales, transfers and other dispositions by the Founder,
result in the transfer by the Founder of Shares representing more than
twenty-five percent (25%) of the total number of shares held by the Founder
(the “Founder’s Stock”), each Purchaser shall have the right to require,
as a


 


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condition to such sale or
disposition, that the Acquiror purchase from said Purchaser at the same price
per Share and on the same terms and conditions as involved in such sale or
disposition by the Founder the same percentage of shares of Common Stock owned
(and deemed to be beneficially owned under Rule 13d-3) by such Purchaser as
such sale or disposition represents with respect to the number of shares of
Founder’s Stock (calculated on an as converted, fully diluted basis) owned by
the Founder immediately prior to such sale. 
Each Purchaser wishing so to participate in any such sale or disposition
shall notify the Founder of such intention as soon as practicable after receipt
of the Offer made pursuant to Section 2, and in all events within fifteen (15)
days after receipt thereof.  If a
Purchaser shall elect to participate in such sale or disposition, said
Purchaser shall individually communicate such election to the Founder, which
communication shall be delivered by hand or mailed to the Founder at the
address set forth in Section 8 below. 
The Founder and/or each participating Purchaser shall sell to the
Acquiror all, or at the option of the Acquiror, any part of the Stock (as
defined in Section 5 below) proposed to be sold by them at not less than the
price and upon other terms and conditions, if any, not more favorable to the
Acquiror than those set forth in the Offer; provided, however,
that any purchase of less than all of such Stock by the Acquiror shall be made
from the Founder and/or each participating Purchaser based upon a fraction, the
numerator of which is the number of shares of Stock of the Company then owned
by the Founder or such participating Purchaser (including any shares of Common
Stock deemed to be owned under Rule 13d-3) and the denominator of which is the
aggregate number of shares of Stock held by (and deemed to be held by) the
Founder and all of the participating Purchasers.  The Founder shall use his commercially reasonable efforts to
obtain the agreement of the Acquiror to the participation of the participating
Purchasers in the contemplated sale, and shall not sell any Stock to such
Acquiror if such Acquiror declines to permit the participating Purchasers to
participate pursuant to the terms of this Section 3.  The provisions of this Section 3 shall not apply to the sale of
any Shares by the Founder (i) to a Purchaser pursuant to an Offer under Section
2 or (ii) made upon or after the occurrence of a Qualified Offering, the sale
of the Company or control thereof, whether by merger, sale, recapitalization or
similar corporate event or the transfer of more than a majority of its capital
stock (calculated on an as converted, fully diluted basis) or assets, or the
conversion into Common Stock of all then outstanding shares of Preferred Stock
(each such event in this clause (ii), a “Corporate Event”).


 


4.                                       Permitted
Transfers.  Anything herein to the
contrary notwithstanding, the provisions of Sections 1, 2 and 3 shall not apply
to: (a) any transfer of Shares by the Founder by gift or bequest or through
inheritance to, or for the benefit of, any member or members of his immediate
family; (b) any transfer of Shares by the Founder to a trust in respect of
which he serves as trustee, provided that the trust instrument governing said
trust shall provide that such Purchaser, as trustee, shall retain sole and
exclusive control over the voting and disposition of said Shares until the
termination of the applicable restrictions on transfer under this Agreement;
(c) any sale of Common Stock in a public offering pursuant to a registration
statement filed by the Company with the Securities and Exchange Commission; (d)
any repurchase of Shares from officers, employees, directors or consultants of
the Company which are subject to restrictive stock purchase agreements under
which the Company has the option to repurchase such shares upon the occurrence
of certain events, including termination of employment; and (e) any pledge,


 


4

















 


hypothecation or other
similar financing transaction in which the Founder continues to have the sole
and exclusive authority and right to vote the shares subject to such pledge,
hypothecation or other financing transaction. 
In the event of any such transfer, other than pursuant to subsection (c)
of this Section 4, the transferee of the Shares shall hold the Shares so
acquired with all the rights conferred by, and subject to all the restrictions
imposed by, this Agreement on the party from whom the transferee received the
Shares, and as a condition to such transfer, each such transferee shall execute
and deliver a written agreement agreeing to be bound by the provisions of this
Agreement.


 


5.                                       Election
of Directors; Issuance of Options; Protective Provisions.


 


(a)                                  Election
of Directors.  Each of the parties
hereto agrees to vote all of the Stock (as hereinafter defined and that
entitles the holder thereof to vote in the election of the Board of Directors)
now owned or hereafter acquired by such party (and attend, in person or by
proxy, all meetings of stockholders called for the purpose of electing
directors), and the Company agrees to take all actions (including, but not
limited to the nomination of specified persons) to cause and maintain the
election to the Board of Directors of the Company, to the extent permitted pursuant
to the Company’s certificate of incorporation, of the following:


 


(i)                                     two
(2) individuals designated by the Founder (the designees under this subsection
shall initially be David Schaeffer and H. Helen Lee);


 


(ii)                                  two
(2) individuals designated by the holders of a majority in interest of the
Shares owned as of the date hereof by Jerusalem Venture Partners and certain of
its affiliates (the designees under this subsection shall initially be Erel
Margalit and Michael Carus);


 


(iii)                               one (1) individual designated
by the holders of a majority in interest of the Shares owned as of the date
hereof by Worldview Technology Partners and certain of its affiliates (the
designee under this subsection shall initially be James Wei);


 


(iv)                              one
(1) individual designated by the holders of a majority in interest of the
Shares owned as of the date hereof by Oak Investment Partners and certain of
its affiliates (the designee under this subsection shall initially be Edward
Glassmeyer); and


 


(v)                                 one
(1) individual designated by the holders of a majority in interest of the
Shares owned as of the date hereof by Broadview Capital Partners and certain of
its affiliates (the designee under this subsection shall initially be Steven
Brooks); and


 


(vi)                              a
three (3) member Compensation Committee, one of the members of which shall be
nominated by the directors elected pursuant to subparagraph (i) above and who
shall not be the Founder and two of the members of which shall be nominated by
the directors elected pursuant to subparagraphs (ii), (iii), (iv) and (v)
above.


 


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Each of the parties further covenants and agrees to
vote, to the extent possible, all Stock of the Company now owned or hereafter
acquired by such party so that (i) the Company’s Board of Directors shall
consist of eight (8) members, seven (7) of whom shall be nominated as set forth
above and the eighth of whom shall be an independent director nominated by the
Company’s Board of Directors and (ii) the Compensation Committee thereof shall
consist of three (3) members, each of whom shall be nominated as set forth
above, (iii) the holders of the Series G Preferred Stock and the Founder’s
Stock shall be entitled, in the aggregate, to have up to three persons as
observers at each meeting of the Board of Directors and any committee (other
than the Compensation Committee) thereof. 
For the purposes of this Agreement, “Stock” shall mean and
include all Preferred Stock and Common Stock and all other securities of the
Company which may be exchangeable for or issued in exchange for or in respect
of shares of Common Stock (whether by way of stock split, stock dividends,
combination, reclassification, reorganization or any other means).


 


In the absence of any designation from the persons or
groups so designating directors as specified above, the director previously
designated by them and then serving shall be reelected if still eligible to
serve as provided herein.


 


No party hereto shall vote to remove any member of the
Board of Directors or the Compensation Committee thereof designated in
accordance with the aforesaid procedure unless the persons or groups so
designating directors as specified above so vote, and, if such persons or
groups so vote then the non-designating party or parties shall likewise so
vote.


 


Any vacancy on the Board of Directors or the
Compensation Committee thereof created by the resignation, removal, incapacity
or death of any person designated under this Section 5 shall be filled by
another person designated in a manner so as to preserve the constituency of the
Board or such Committee as provided above.


 


(b)                                 Issuance
of Options to Holders of Preferred Stock. 
From and after the date hereof, each of the parties hereto agrees that
the Company shall not, and each agrees to vote all of their Stock of the
Company now owned or hereafter acquired by such party (and attend, in person or
by proxy, all meetings of stockholders called for the purpose of electing
directors) to preclude the Company from issuing any options under the Company’s
stock option plans as in effect from time to time to any holder of Preferred
Stock or any person employed by or controlled by or under common control with
any such holder or any affiliate thereof without first obtaining the unanimous
approval of the Board of Directors of the Company.


 


6

















 


(c)                                  Protective
Provisions.  For so long as at least
8,200 shares of Series G Preferred Stock remain outstanding, the affirmative
vote or consent of the holders of two-thirds (2/3) of the issued and
outstanding shares of Series G Preferred Stock, voting together as a single
class, shall be required to take any of the following actions (including by way
of merger, consolidation or otherwise):


 


(i)                                     designate,
authorize, create, issue, sell, redeem or repurchase any class or series of
equity securities or equity-backed securities of the Company or any subsidiary
thereof, including without limitation, capital stock (including any shares of
treasury stock) or rights, options, warrants or other securities convertible
into or exercisable or exchangeable for capital stock or any debt security
which by its terms is convertible into or exchangeable for any equity security
or has any other equity feature or any security that is a combination of debt
and equity (collectively, “Equity Securities”), other than pursuant to
(i) employee stock option and similar incentive plans approved by the Board of
Directors, (ii) the issuance of Common Stock upon the conversion of the 7.5%
Convertible Subordinated Notes due 2007 of Allied Riser Communications
Corporation (the “Notes”) in accordance with the terms thereof or the
issuance of additional convertible debt or equity as a paid-in-kind interest
payment on the Notes in accordance with the terms thereof approved by the Board
of Directors or (iii) a conversion or exchange right set forth in Company’s
certificate of incorporation;


 


(ii)                                  except
as otherwise expressly provided as of the date hereof in the Company’s
certificate of incorporation or in a certificate of designations thereto,
declare or pay any dividends or make any distributions of any kind with respect
to any outstanding Equity Securities of the Company or any subsidiary thereof;


 


(iii)                               approve the merger,
consolidation, dissolution or liquidation of the Company or any subsidiary
thereof, or any transaction having the same effect;


 


(iv)                              increase
or decrease the aggregate number of authorized shares of Common Stock or
Preferred Stock of the Company;


 


(v)                                 sell
all or substantially all of the assets of the Company and its subsidiaries
taken as a whole, whether directly through a sale of the Company’s interests in
its subsidiaries or other assets, or indirectly through a sale of the assets of
its subsidiaries, in one transaction or any series of transactions, or approve
any transaction or series of transactions having the same effect;


 


(vi)                              cause,
directly or indirectly, a material change in the nature of the business or
strategic direction of the Company and its subsidiaries, taken as a whole;


 


(vii)                           approve the filing for
bankruptcy of or any decision not to take action to prevent a filing for
bankruptcy or not to oppose an involuntary filing for bankruptcy or other
winding up of the Company or any subsidiary thereof;


 


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(viii)                        approve the establishment and
maintenance of an Executive Committee of the Board of Directors or increase or
decrease the number of directors composing the Board of Directors; or


 


(ix)                                amend,
repeal or modify any provision of the Company’s certificate of incorporation in
a manner that adversely affects the rights, powers or preferences of the
Preferred Stock.


 


6.                                       Right
of Participation in Sales by the Company.


 


(a)                                  Right
of Participation.  Except as
provided in Section 6(f) of this Agreement, the Company shall not issue, sell
or exchange, agree or obligate itself to issue, sell or exchange, or reserve or
set aside for issuance, sale or exchange, any (i) shares of Common Stock, (ii)
any other equity security of the Company, including without limitation, shares
of Preferred Stock, (iii) any debt security of the Company (other than debt
with no equity feature) including without limitation, any debt security which
by its terms is convertible into or exchangeable for any equity security of the
Company, (iv) any security of the Company that is a combination of debt and
equity, or (v) any option, warrant or other right to subscribe for, purchase or
otherwise acquire any such equity security or any such debt security of the
Company, unless in each case the Company shall have first offered to sell such
securities (the “Offered Securities”) to the Purchasers who hold
individually or together with their affiliates at least 2,500,000 Shares of the
Preferred Stock then outstanding and, for so long as the Founder holds not less
than fifty percent (50%) of the number of shares of Founder’s Stock held by him
on the date hereof (in both cases, as adjusted for stock splits, stock
dividends, reclassifications, recapitalizations or other similar events), the
holders of the Founder’s Stock (such Purchasers and, if applicable, the holders
of the Founder’s Stock being referred to as the “Participating Stockholders”)
as follows:  The Company shall offer to
sell to each Participating Stockholder (a) that portion of the Offered
Securities as the number of shares of Common Stock (including all shares of
capital stock convertible into Common Stock, on a fully-diluted basis) then
held by such Participating Stockholder, as the case may be, bears to the total
number of shares of Common Stock (including all shares of capital stock
convertible into Common Stock, on a fully-diluted basis) of the Company then
outstanding (the “Basic Amount,” and the aggregate of the Basic Amounts
of all Participating Stockholders being referred to as the “Aggregate Basic
Amount”), and (b) such additional portion of the Aggregate Basic Amount as
such Participating Stockholder shall indicate it will purchase should the other
Participating Stockholders subscribe for less than their Basic Amounts (the “Undersubscription
Amount”), at a price and on such other terms as shall have been specified
by the Company in writing delivered to such Participating Stockholder (the “Offer”),
which Offer by its terms shall remain open and irrevocable for a period of
twenty (20) days from receipt of the offer.


 


(b)                                 Notice
of Acceptance.  Notice of each
Participating Stockholder’s intention to accept, in whole or in part, any Offer
made pursuant to Section 6(a) shall be evidenced by a writing signed by such
Participating Stockholder and delivered to the Company prior to the end of the
20-day period of such offer, setting forth such of the Participating
Stockholder’s Basic


 


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Amount as such
Participating Stockholder elects to purchase and, if such Participating
Stockholder shall elect to purchase all of its Basic Amount, such
Undersubscription Amount as such Participating Stockholder shall elect to
purchase (the “Notice of Acceptance”). 
If the Basic Amounts subscribed for by all Participating Stockholders
are less than the total Aggregate Basic Amount, then each Participating
Stockholder who has set forth Undersubscription Amounts in its Notice of
Acceptance shall be entitled to purchase, in addition to the Basic Amounts
subscribed for, all Undersubscription Amounts it has subscribed for; provided,
however, that should the Undersubscription Amounts subscribed for exceed
the difference between the Aggregate Basic Amount and the Basic Amounts
subscribed for (the “Available Undersubscription Amount”), each
Participating Stockholder who has subscribed for any Undersubscription Amount
shall be entitled to purchase only that portion of the Available
Undersubscription Amount as the Undersubscription Amount subscribed for by such
Participating Stockholder bears to the total Undersubscription Amounts
subscribed for by all Participating Stockholders, subject to rounding by the
Board of Directors to the extent it reasonably deems necessary.


 


(c)                                  Conditions
to Acceptances and Purchase.


 


(i)                                     Permitted
Sales of Refused Securities.  If
Notices of Acceptance are not given by the Participating Stockholders in
respect of all the Aggregate Basic Amount, the Company shall have ninety (90)
days from the expiration of the period set forth in Section 6(a) to close the
sale of all or any part of such Aggregate Basic Amount as to which a Notice of
Acceptance has not been given by the Participating Stockholders (the “Refused
Securities”) to the person or persons specified in the Offer, but only for
cash and otherwise in all respects upon terms and conditions, including,
without limitation, unit price and interest rates, which are no more favorable,
in the aggregate, to such other person or persons or less favorable to the
Company than those set forth in the Offer.


 


(ii)                                  Reduction
in Amount of Offered Securities.  If
the Company shall propose to sell less than all the Refused Securities (any
such sale to be in the manner and on the terms specified in Section 6(c)(i)
above), then each Participating Stockholder may, at its sole option and in its
sole discretion, reduce the number of, or other units of the Offered Securities
specified in its respective Notices of Acceptance to an amount which shall be
not less than the amount of the Offered Securities which the Participating
Stockholder elected to purchase pursuant to Section 6(b) multiplied by a
fraction, (A) the numerator of which shall be the amount of Offered Securities
which the Company actually proposes to sell, and (B) the denominator of which
shall be the amount of all Offered Securities. 
In the event that any Participating Stockholder so elects to reduce the
number or amount of Offered Securities specified in its respective Notices of
Acceptance, the Company may not sell or otherwise dispose of more than the
reduced amount of the Offered Securities until such securities have again been
offered to the Participating Stockholders in accordance with Section 6(a).


 


(iii)                               Closing.  Upon the closing, which shall include full
payment to the Company, of the sale to such other person or persons of all or
less than all the Refused Securities, the Participating Stockholders shall
purchase from the Company, and the Company


 


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shall sell to the
Participating Stockholders, the number of Offered Securities specified in the
Notices of Acceptance, as reduced pursuant to Section 6(c)(ii) if the
Participating Stockholders have so elected, upon the terms and conditions
specified in the Offer.  The purchase by
the Participating Stockholders of any Offered Securities is subject in all
cases to the preparation, execution and delivery by the Company and the
Participating Stockholders of a purchase agreement relating to such Offered
Securities reasonably satisfactory in form and substance to the Participating
Stockholders and their respective counsel.


 


(d)                                 Further
Sale.  In each case, any Offered
Securities not purchased by the Participating Stockholders or other person or
persons in accordance with Section 6(c) may not be sold or otherwise disposed
of until they are again offered to the Participating Stockholders under the
procedures specified in Sections 6(a), 6(b) and 6(c).


 


(e)                                  Termination
of Right of Participation.  The
rights of the Participating Stockholders under this Section 6 shall terminate
immediately prior to the consummation of a Qualified Offering.  In addition, the rights of holders of the
Founder’s Stock under this Section 6 shall terminate when the Founder owns less
than 50% of the shares of Founder’s Stock held by the Founder on the date first
above written (as adjusted for stock splits, stock dividends,
reclassifications, recapitalizations or other similar events).  Upon the termination of the rights of an
individual or entity pursuant to this subsection (e), such individual or entity
shall no longer be deemed to be a “Participating Stockholder” under this
Section 6.


 


(f)                                    Exception.  The rights of the Participating Stockholders
under this Section 6 shall not apply to:


 


(i)                                     Common
Stock issued as a stock dividend to holders of Common Stock or upon any
subdivision or combination of shares of Common Stock,


 


(ii)                                  shares
of any series of Preferred Stock issued as a dividend to holders of such series
of Preferred Stock upon any subdivision or combination of shares of such series
of Preferred Stock,


 


(iii)                               shares of Common Stock
issued or issuable upon conversion of the Preferred Stock,


 


(iv)                              up
to 10,000 shares of Common Stock issued or issuable pursuant to options,
warrants or other rights (as adjusted for any stock dividends, combinations,
splits, recapitalizations and the like) issued to employees, officers or
directors of, or consultants or advisors to the Company or any subsidiary
pursuant to stock purchase or stock option plans or other arrangements that are
approved by the Board of Directors,


 


(v)                                 up
to 54,001 shares of Series H Preferred Stock issued to employees, officers or
directors of, or consultants or advisors to the Company or any subsidiary
pursuant to that certain 2003 Incentive Award Plan of the Company,


 


10

















 


(vi)                              Common
Stock issued pursuant to the acquisition of another corporation by the Company
by merger (whereby the Company owns no less than 51% of the voting power of
such corporation) or purchase of substantially all of its stock or assets, if
such acquisition is approved by a majority of the Directors nominated by the
holders of the Preferred Stock in the manner set forth in Section 5 hereof,


 


(vii)                           Common Stock offered to the
public pursuant to a registration statement filed under the Securities Act,


 


(viii)                        the issuance Common Stock, or
options or warrants to purchase Common Stock, issued to financial institutions
or lessors in connection with commercial credit arrangements, equipment financings
or similar transactions, as approved by the two-thirds (2/3rds) of the then
sitting members of the Board of Directors,


 


(ix)                                shares
of Series F Preferred Stock issued pursuant to the Exchange Agreement, and


 


(x)                                   shares
of Series G Preferred Stock issued pursuant to the Purchase Agreement, and


 


(xi)                                the
issuance of Common Stock upon the conversion of the Notes or the issuance of
additional convertible debt or equity as a paid-in-kind interest payment the
Notes approved by the Board of Directors.


 


(g)                                 Waiver.  The rights of the Purchasers under this
Section 6 may be waived in any instance, on behalf of all of the Purchasers,
prospectively or retroactively, by the written agreement of the holders of
two-thirds in interest of the Preferred Stock owned beneficially or of record
by the Purchasers.  The rights of
holders of the Founder’s Stock under this Section 6 may be waived in any
instance, on behalf of all such holders, prospectively or retroactively, by the
written agreement of the holders of a majority of the Founder’s Stock then
outstanding.  Upon waiver of the rights
of the Purchasers or holders of Founder’s Stock in accordance with this
subsection (g) with respect to a particular issuance, sale or exchange of Offered
Securities, the Purchasers or such holder, as the case may be, shall be
excluded from the definition of “Participating Stockholders” for
purposes of this Section 6 with respect to such issuance, sale or exchange.


 


7.                                       Termination.  This Agreement, and the respective rights
and obligations of the parties hereto, shall terminate upon the earliest to
occur of the following: (i) the completion of a Qualified Offering, provided
that the obligations of Section 9 shall survive such termination; or (ii) the
sale of the Company, whether by merger, sale, or transfer of more than ninety
percent (90%) of its capital stock, or sale of substantially all of its
assets.  In addition, any Purchaser or
Qualified Transferee may elect to terminate its rights and obligations with
respect to any or all of Sections 2, 3, 5 or 6 by providing written notice of
such election to the Company at any time.


 


11

















 


8.                                       Notices.  All notices and other communications
hereunder shall be in writing and shall be deemed to have been given when
delivered or mailed by first class, registered or certified mail (air mail if
to or from outside the United States), return receipt requested, postage
prepaid, or by internationally, recognized overnight courier service (two
business days after deposit with such overnight courier service in the case of
deliveries to non-U.S. residents), if to each Purchaser at his respective
address set forth on Schedule I hereto or on the Instrument of Accession
pursuant to which he became a party to this Agreement, and if to the Founder,
at his address set forth on Schedule I hereto or to such other address as the
addressee shall have furnished to the other parties hereto in the manner
prescribed by this Section 8.


 


9.                                       Lock-up
Agreement.  Each of the Purchasers
and holders of Founder’s Stock hereby agrees in connection with the Company’s
Qualified Offering, upon the request of the principal underwriter managing the
Qualified Offering of the Company, not to sell publicly any Shares now owned or
hereafter acquired by him, her or it and subject to this Agreement (other than
Shares being registered in such offering or any shares purchased in the open
market after the Company’s initial public offering) without the prior written
consent of such underwriter for a period of time (not to exceed one hundred
eighty (180) days) from the consummation of such Qualified Offering as the
underwriter may specify, in all events subject to the provisions of Section
13(f) of a certain Amended and Restated Registration Rights Agreement dated as
of the date hereof.


 


10.                                 Failure
to Deliver Shares.  If the Founder
becomes obligated to sell any Shares owned by, or held for the benefit of, such
Purchaser to the Founder, another Purchaser or a Qualified Transferee under
this Agreement and fails to deliver such shares in accordance with the terms of
this Agreement, the Founder or such Purchaser, as applicable, may, at his or
its option, in addition to all other remedies it may have, send to the Company
for the benefit of such selling Purchaser the purchase price for such Shares as
is herein specified.  Thereupon, the
Company upon written notice to said Purchaser, (a) shall cancel on its books
the certificate(s) representing the Shares to be sold and (b) shall issue, in
lieu thereof, in the name of the Founder or such Purchaser, as applicable, a
new certificate(s) representing such Shares, and thereupon all of said
Purchaser’s rights in and to such shares shall terminate.  The Company may exercise a similar remedy in
enforcing its rights under Section 2. 
If the Founder transfers any shares to a Purchaser in violation of this
Agreement, the Company may, at the election of a majority of the disinterested
members of the Board of Directors, cancel on the books of the Company any
shares of capital stock then held by the Founder, and compel the Founder to
purchase from any transferee a number of shares of capital stock equal to the
amount so transferred in violation of this Agreement.


 


11.                                 Specific
Performance.  The rights of the
parties under this Agreement are unique and, accordingly, the parties shall, in
addition to such other remedies as may be available to any of them at law or in
equity, have the right to enforce their rights hereunder by actions for
specific performance to the extent permitted by law.


 


12

















 


12.                                 Legend.  Until this Agreement terminates in full, the
certificates representing the Shares shall bear on their face a legend
indicating the existence of the restrictions imposed hereby.  After the Qualified Offering, the Company
shall not issue or deliver to any transfer agent a stop transfer notice with
respect to any Shares, the transfer of which is permitted pursuant to Rule
144(k) and the Securities Act of 1933.


 


13.                                 Entire
Agreement.  This Agreement
(including any and all exhibits, schedules and other instruments contemplated
thereby) constitutes the entire agreement among the parties with respect to the
subject matter hereof and supersedes all prior agreements and understandings
between them or any of them as to such subject matter.


 


14.                                 Waivers
and Further Agreements.  Except as
otherwise expressly set forth herein, the rights of the Purchasers and holders
of Founder’s Stock under this Agreement may be waived by an instrument in
writing executed and delivered by Purchasers holding at least two-thirds in
interest of the Common Stock (including shares of Common Stock into which any
shares of Preferred Stock are convertible) then held or deemed to be held by
all Purchasers and holders of Founder’s Stock; provided, however,
that the rights set forth in Section 5 with respect to the designation of the
Board of Directors of the Company may not be waived without the prior written
consent of the constituency affected by such waiver, which waiver shall be obtained
in a manner consistent with, and shall require the same percentages prescribed
in, Section 5.  Any waiver by any party
of a breach of any provision of this Agreement shall not operate or be
construed as a waiver of any subsequent breach of that provision or of any
other provision hereof.  Each of the
parties hereto agrees to execute all such further instruments and documents and
to take all such further action as any other party may reasonably require in
order to effectuate the terms and purposes of this Agreement.  Notwithstanding the foregoing, no waiver
approved in accordance herewith shall be effective if and to the extent that
such waiver grants to any one or more Purchasers or holders of Founder’s Stock
any rights more favorable than any rights granted to all other Purchasers and
holders of Founder’s Stock or otherwise treats any one or more of such parties
differently than all other such parties.


 


15.                                 Amendments.  Except as otherwise expressly provided
herein, this Agreement may not be amended except by an instrument in writing
executed by (i) holders of at least two-thirds in interest of the shares of
Common Stock issued or issuable to the Purchasers (including shares of Common
Stock into which any shares of Preferred Stock are convertible) and (ii) the
Company.  Notwithstanding the foregoing,
no amendment approved in accordance with this Section 15 shall be effective if
and to the extent that such amendment (i) creates any additional affirmative
obligations to be complied with by any or all of the Purchasers and holders of
Founder’s Stock unless approved by holders of all of the Preferred Stock then
outstanding and/or (ii) adversely affects any of the Founder’s rights existing
under this Agreement prior to such amendment in a manner that is inconsistent
with, or disproportionate to, the effect of such amendment on the other parties
hereto.  In addition, the rights set
forth in Section 5 with respect to the designation of the Board of Directors of
the Company may not be amended without the prior written consent of the
constituency affected by such amendment, which consent shall be obtained in a
manner consistent with Section 5.


 


13

















 


16.                                 Assignment;
Successors and Assigns.  This
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective heirs, executors, legal representatives, successors
and permitted transferees, except as may be expressly provided otherwise
herein, and  provided, further, that no Purchaser may
transfer its rights or obligations hereunder except to a Qualified
Transferee.  Notwithstanding anything
contained herein to the contrary, until the first to occur of (i) termination
of this Agreement and (ii) a Qualified Offering, any transferee of  Preferred Stock shall, as a condition to
such transfer, deliver to the Company a written instrument by which such
transferee agrees to be bound by the obligations imposed hereunder on holders
of  Preferred Stock to the same extent
as if such transferee had signed this Agreement.


 


17.                                 Severability.  In case any one or more of the provisions
contained in this Agreement shall for any reason be held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this Agreement and
such invalid, illegal and unenforceable provision shall be reformed and
construed so that it will be valid, legal, and enforceable to the maximum
extent permitted by law.


 


18.                                 Counterparts.  This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.


 


20.                                 Section
Headings.  The headings contained in
this Agreement are for reference purposes only and shall not in any way affect
the meaning or interpretation of this Agreement.


 


21.                                 Governing
Law.  This Agreement shall be
construed and enforced in accordance with and governed by the laws of the State
of New York.


 


22.                                 A&R
Stockholders Agreement.  Upon and
after the Closing (as defined in the Purchase Agreement), the A&R
Stockholders Agreement shall be terminated and of no further force and effect.


 


[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]


 


14

















 


IN WITNESS WHEREOF, the parties hereto have executed
this SECOND AMENDED AND RESTATED STOCKHOLDERS AGREEMENT as of the date first
above written.


 


 


	
   

  	
  THE COMPANY:

  
	
   

  	
   

  
	
   

  	
  COGENT COMMUNICATIONS GROUP, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/David Schaeffer

  
	
   

  	
   

  	
  Name: David Schaeffer

  
	
   

  	
   

  	
  Title: 
  President and Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
  PURCHASERS:

  
	
   

  	
   

  
	
   

  	
  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 Second Amended and Restated Stockholders Agreement - Continued]


 


	
   

  	
  JERUSALEM VENTURE PARTNERS III, L.P.

  
	
   

  	
   

  
	 
	
   

  	
  By:

  	
   

  	
  Jerusalem Partners III, L.P.,

  its General Partner

  
	 
	
   

  	
   

  	
   

  	
   

  
	 
	
   

  	
  By:

  	
   

  	
  Jerusalem Venture Partners Corporation,

  its General Partner

  
	 
	
   

  	
   

  
	 
	
   

  	
  By:

  	
  /s/Erel Margalit

  
	 
	
   

  	
   

  	
  Name:

  
	 
	
   

  	
   

  	
  Title:

  
	 
	
   

  	
   

  	
   

  
	
   

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

  
	
   

  	
   

  
	 
	
   

  	
  By:

  	
   

  	
  Jerusalem Venture Partners III

  (Israel) Management Company Ltd.,

  its General Partner

  
	 
	
   

  	
   

  
	 
	
   

  	
  By:

  	
  /s/Erel Margalit

  
	 
	
   

  	
   

  	
  Name:

  
	 
	
   

  	
   

  	
  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:

  
	 
	
   

  	
   

  	
  Title:

  
					



 

















 


	
   

  	
  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:

  
	 
	
   

  	
   

  	
  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:

  
	 
	
   

  	
   

  	
  Title:

  
					



 

















 


	
   

  	
  JERUSALEM VENTURE PARTNERS IV-A, L.P.

  
	
   

  	
   

  
	 
	
   

  	
  By:

  	
   

  	
  Jerusalem Partners IV, L.P., its

  General Partner

  
	 
	
   

  	
   

  	
   

  	
   

  
	 
	
   

  	
  By:

  	
   

  	
  JVP Corp IV, its General Partner

  
	 
	
   

  	
   

  
	 
	
   

  	
  By:

  	
  /s/Erel Margalit

  
	 
	
   

  	
   

  	
  Name:

  
	 
	
   

  	
   

  	
  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:

  
	 
	
   

  	
   

  	
  Title:

  
					



 

















 


	
  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:

  	
  Worldview Equity I, L.L.C.,

  its General Partner

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/James N. Strawbridge

  	
   

  	
   

  
	
   

  	
  Name: James N. Strawbridge

  	
   

  
	
   

  	
  Title: Attorney-in-fact for James Wei

  	
   

  
	
   

  	
   

  
	
  WORLDVIEW TECHNOLOGY PARTNERS IV, L.P.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  WORLDVIEW TECHNOLOGY INTERNATIONAL IV, L.P.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  WORLDVIEW STRATEGIC PARTNERS IV, L.P.

  	
   

  
	
   

  	
   

  
	
  By:

  	
  Worldview Capital IV, L.P.,

  its General Partner

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  Worldview Equity I, L.L.C.,

  its General Partner

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/James N. Strawbridge

  	
   

  	
   

  
	
   

  	
  Name: James N. Strawbridge

  	
   

  	
   

  
	
   

  	
  Title: Attorney-in-fact for James Wei

  	
   

  	
   

  
					



 

















 


	
   

  	
  BROADVIEW CAPITAL PARTNERS L.P.

  	 

	
   

  	
   

  	 

	
   

  	
  By:

  	
   

  	
  Broadview Capital Partners

  Management LLC, its General

  Partner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/

  	
  Stephen J. Bachman

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Stephen J. Bachmann

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Managing Director

  
	
   

  	
   

  	
   

  
	
   

  	
  BROADVIEW CAPITAL PARTNERS QUALIFIED PURCHASER FUND
  L.P.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  Broadview Capital Partners

  Management LLC, its General

  Partner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/

  	
  Stephen J. Bachman

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Stephen J. Bachmann

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Managing Director

  
	
   

  	
   

  	
   

  
	
   

  	
  BROADVIEW CAPITAL PARTNERS AFFILIATES FUND LLC

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  Broadview Capital LLC,

  its Manager

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/

  	
  Stephen J. Bachman

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Stephen J. Bachmann

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Managing Director

  
						



 

















 


	
   

  	
  BOULDER VENTURES III, L.P.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/Andrew E. Jones

  
	
   

  	
   

  	
  Name: Andrew E. Jones

  
	
   

  	
   

  	
  Title: General Partner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  BOULDER VENTURES III (ANNEX), L.P.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/Andrew E. Jones

  
	
   

  	
   

  	
  Name: Andrew E. Jones

  
	
   

  	
   

  	
  Title: General Partner

  



 

















 


	
   

  	
  NAS PARTNERS I L.L.C.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/Randall A. Hack

  
	
   

  	
   

  	
  Name: Randall A. Hack

  
	
   

  	
   

  	
  Title: Sr. Managing
  Partner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  NASSAU CAPITAL PARTNERS IV L.P.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  Nassau Capital LLC,

  its General Partner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/Randall A. Hack

  
	
   

  	
   

  	
  Name: Randall A. Hack

  
	
   

  	
   

  	
  Title: Sr. Managing
  Partner

  



 

















 


	
   

  	
   

  	
  /s/David Schaeffer

  
	
   

  	
   

  	
  David Schaeffer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CISCO SYSTEMS CAPITAL CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/D.A. Rogan

  
	
   

  	
   

  	
  Name: David A. Rogan

  
	
   

  	
   

  	
  Title: President, Cisco
  Capital

  
				



 

















 


	
   

  	
  APPLEGREEN CAPITAL, INC.

  
	
   

  	
   

  
	
   

  	
  /s/Brian Rich

  
	
   

  	
  Name:  Brian
  Rich

  
	
   

  	
  Title: President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/Bradley P. Griggs

  
	
   

  	
  Bradley P. Griggs, Trustee of the Griggs

  
	
   

  	
  Family Trust, dated 4/16/97

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/Gordon P. Griggs, Trustee

  
	
   

  	
  Gordon P. Griggs, Trustee, Declaration of Trust of
  Gordon P. Griggs, u/a dated 08/01/80

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/Behdad Eghbali

  
	
   

  	
  Behdad Eghbali

  



 

















 


Schedule
I


 


	
  Cisco Systems Capital Corporation

  	
   

  	
   

  
	
  Dave Schaeffer

  	
   

  	
   

  
	
  Denise Shen

  	
   

  	
   

  
	
  Ruth E. Schaeffer, Trustee of the Schaeffer
  Descendents Trust

  	
   

  	
   

  
	
  Barry Morris

  	
   

  	
   

  
	
  Scott Welker

  	
   

  	
   

  
	
  Thaddeus Weed

  	
   

  	
   

  
	
  Edward Lu

  	
   

  	
   

  
	
  Bradley Griggs

  	
   

  	
   

  
	
  Scott Stewart

  	
   

  	
   

  
	
  C. Blair Partners, LP

  
	
  C. Blair Partners II, LP

  
	
  C. Blair Fund, Ltd.

  
	
   

  
	
  Jerusalem Venture Partners III (Israel) LP:

  	
   

  	
  Jerusalem Technology Park

  Building One

  Mahla, Jerusalem 91847

  Attn: Erel Margalit

  
	
   

  	
   

  	
   

  
	
  Jerusalem Venture Partners III LP

  Jerusalem Venture Partners Entrepreneurs Fund

  LP:

  	
   

  	
  666 Fifth Avenue

  Suite 195

  New York, NY 10103

  
	
   

  	
   

  	
   

  
	
  Oak Investment Partners IX, LP

  Oak IX Affiliates Fund, LP

  Oak IX Affiliates Fund-A, LP

  	
   

  	
  One Gorham Island

  Westport, CT 06880

  Attn: Ed Glassmeyer

  
	
   

  	
   

  	
   

  
	
  Worldview Technology Partners III, LP

  Worldview Technology  International
  III, LP

  Worldview Strategic Partners III, LP

  Worldview III Carrier Fund, LP

  	
   

  	
  435 Tasso Street #120

  Palo Alto, CA 94301

  Attn: James Wei

  
	
   

  	
   

  	
   

  
	
  Boulder Ventures III, LP

  Boulder Ventures III (Annex), LP

  	
   

  	
  4750 Owings Mills Blvd.

  Owings Mills, MD 21117

  Attn:  Andy Jones

  
	
   

  	
   

  	
   

  
	
  Comdisco, Inc.

  	
   

  	
  3rd Floor South

  Totten Pond Office Center

  400-1 Totten Pond Road, Suite 5

  Waltham, MA 02451

  



 

















 


	
   

  	
   

  	
  Attn: Jan Haas

  
	
   

  	
   

  	
   

  
	
  ACON Venture Partners, LP

  	
   

  	
  345 California Street

  Suite 3300

  San Francisco, CA 94104

  Attn: Jon Levinson

  
	
   

  	
   

  	
   

  
	
  Clipperbay & Co.

  	
   

  	
  3000 K Street. NW

  Suite 230

  Washington, DC 20007

  Attn: Brad Vogt

  
	
   

  	
   

  	
   

  
	
  Covestco-Venteura, LLC

  	
   

  	
  c/o Jura Trust

  Mitteldorf 1

  Vaduz, Liechtenstein, FL-9490

  Attn: Albin A. Johann

  
	
   

  	
   

  	
   

  
	
  Nassau Capital Partners IV, LP

  NAS Partners I, LLC

  	
   

  	
  22 Chambers Street

  Princeton, NJ 08542

  Attn:  Randall A. Hack

  
	
   

  	
   

  	
   

  
	
  Broadview Capital Partners Qualified Purchaser Fund
  LP

  Broadview Capital Partners LP

  Broadview Capital Partners Affiliates Fund LLC

  Broadview BCPSBS Fund LP

  	
   

  	
  950 Tower Lane, 18th Floor

  Foster City, CA  94404

  Attn:  David Kapnick

  
	
   

  	
   

  	
   

  
	
  2M Technology Ventures, L.P.

  	
   

  	
  3401 Armstrong Ave.

  Dallas, TX  75205

  Attn:  Scott Letier

  
	
   

  	
   

  	
   

  
	
  Paul Johnson

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Spencer Punter

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Scappoose Portland, LLC

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Brian Rich

  	
   

  	
   

  



 

















 


	
  Constantine Scontras

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  David Steinberg

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Raj Mehra

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Edward Pollack

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Brooke Coburn

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Colin Stern

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Robert Nabholz

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Rafi Gidron

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Robert Barron

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Louis E. Martinage

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  R. Brad Kummer

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  University of Maryland Foundation for UMBC

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Friedman Kaplan Seiler & Adelman LLP

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Jeff Barrows

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Jim Dertzbaugh

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Gordon P. Griggs, Trustee, Declaration of Trust of
  Gordon P. Griggs

  
	
   

  	
   

  	
   

  
	
  Brian Griggs and Melissa Griggs, Trustees for Griggs
  Family Trust

  
	
   

  	
   

  	
   

  
	
  Jeffrey Allen Knepp

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Kevin Pavuk

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Melvin Young

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Andrew Morrison

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Bridget Oppenheimer

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Keith Steinberg

  	
   

  	
   

  



 

















 


	
  Samuel Parker

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Kevin Gallagher

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Karen Chow

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Michael Van Vleck

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Behdad Eghbali

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Paul Hauser

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Matthew Whalen

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Hans Wittich

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  David J. Daigle

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Larry Collins

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  John Leone

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Dave Diller

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  William Currer

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Kenneth Klamm

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  David Ordonio

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Jeffrey Megrue

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  H. Helen Lee

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Comdisco, Inc.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Applegreen Capital, Inc.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Clipperbay & Co.

  	
   

  	
   

  



 

















 


Schedule
II


 


COGENT COMMUNICATIONS
GROUP, INC.


 


INSTRUMENT OF ACCESSION


 


The undersigned,
                                  ,
as a condition precedent to becoming the owner or holder of record of
                                      
(            )
shares of the Common Stock, par value $.001 per share, of Cogent Communications
Group, Inc., a Delaware corporation (the “Company”), hereby agrees to
become a Purchaser party to and bound by that certain Second Amended and
Restated Stockholders Agreement dated as of
                          ,
2003 by and among the Company and other stockholders of the Company.  This Instrument of Accession shall take
effect and shall become an integral part of the said Stockholders Agreement
immediately upon execution and delivery to the Company of this Instrument.


 


IN WITNESS WHEREOF, this INSTRUMENT OF ACCESSION has
been duly executed by or on behalf of the undersigned, as a sealed instrument
under the laws of the State of Delaware, as of the date below written.


 


 


	
   

  	
  Signature:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  (Print Name)

  
	
   

  	
   

  
	
   

  	
  Address:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Date:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Accepted:

  
	
   

  	
   

  
	
   

  	
  COGENT COMMUNICATIONS GROUP , INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
  Date: