HAVE RECEIVED A CERTIFICATE OF THE SECRETARY OF
THE COMPANY CERTIFYING THAT THE INVESTOR RECEIVABLES HAVE BEEN DEPOSITED WITH
THE ESCROW AGENT.
(7)
THE COMPANY SHALL HAVE OBTAINED ALL NECESSARY CONSENTS OF AND MADE
ALL REQUIRED FILINGS WITH ANY GOVERNMENTAL AUTHORITY OR AGENCY OR THIRD PARTY
REQUIRED TO BE OBTAINED PRIOR TO THE CLOSING UNDER APPLICABLE LAW AND RELATING
TO THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING THE
FILING OF AN INFORMATION STATEMENT WITH THE SEC, COMPLIANCE WITH ALL
REQUIREMENTS OF THE SEC WITH RESPECT THERETO, THE MAILING OF SUCH INFORMATION
STATEMENT TO THE COMPANY'S STOCKHOLDERS AND REQUISITE TIME SHALL HAVE PASSED
SINCE MAILING.
(8)
NO PROCEEDING (AS DEFINED BELOW) SHALL BE PENDING, THIS AGREEMENT
SHALL NOT HAVE BEEN TERMINATED PURSUANT TO SECTION 9.P BELOW, AND NO TEMPORARY
RESTRAINING ORDER, PRELIMINARY OR PERMANENT INJUNCTIONS OR OTHER ORDER ISSUED BY
ANY COURT OF COMPETENT JURISDICTION OR OTHER LEGAL OR REGULATORY RESTRAINT OR
PROVISION CHALLENGING THE TRANSACTIONS CONTEMPLATED HEREBY OR MATERIALLY
LIMITING OR RESTRICTING THE CONDUCT OR OPERATION OF THE BUSINESS OF THE COMPANY
PRIOR TO OR FOLLOWING THE CLOSING SHALL BE IN EFFECT, NOR SHALL ANY PROCEEDING
BROUGHT BY AN ADMINISTRATIVE AGENCY OR COMMISSION OR OTHER GOVERNMENTAL
AUTHORITY OR INSTRUMENTALITY SEEKING ANY OF THE FOREGOING BE PENDING.
(9)
THE STOCKHOLDERS OF THE COMPANY SHALL HAVE APPROVED THE
TRANSACTIONS CONTEMPLATED HEREBY AND BY THE EXCHANGE AGREEMENT (PROVIDED THAT
EACH OF THE INVESTORS HEREBY AGREES TO PROVIDE SUCH APPROVAL).
(10)
THE COMPANY SHALL HAVE ENTERED INTO AN EXCHANGE AGREEMENT WITH CISCO
SYSTEMS, INC., CSCC, COGENT COMMUNICATIONS, INC AND COGENT INTERNET, INC.
SUBSTANTIALLY IN THE FORM ATTACHED HERETO AS EXHIBIT F (THE "EXCHANGE
AGREEMENT"), PURSUANT TO WHICH, AMONG OTHER THINGS CERTAIN OF THE COMPANY'S
INDEBTEDNESS TO CSCC WILL BE CANCELED, THE WARRANTS WILL BE CANCELED, SERIES F
PREFERRED STOCK WILL BE ISSUED TO CSCC (SUCH TRANSACTION HEREIN REFERRED TO AS
THE "CISCO EXCHANGE"), CSCC SHALL HAVE PERFORMED ITS OBLIGATIONS THEREUNDER AND
PURSUANT TO THE ESCROW AGREEMENT (AS DEFINED BELOW), AND THE TRANSACTIONS
CONTEMPLATED BY THE EXCHANGE AGREEMENT SHALL HAVE BEEN CONSUMMATED.
(11)
THE COMPANY SHALL HAVE DELIVERED TO THE ESCROW AGENT CERTIFICATES, IN
THE NAMES OF EACH EXISTING INVESTOR REPRESENTING THE SHARES TO BE PURCHASED BY
EACH EXISTING
4
INVESTOR AS SET FORTH ON EXHIBIT A HERETO; PROVIDED, HOWEVER, THAT (I) THE
COMPANY HEREBY COVENANTS AND AGREES THAT IT SHALL NOT SO DELIVER SUCH
CERTIFICATES (AND SUCH CERTIFICATES SHALL NOT OTHERWISE BE DELIVERED TO THE
ESCROW AGENT) OR FILE THE CHARTER AMENDMENT AND THE CERTIFICATES OF DESIGNATION
WITH THE SECRETARY OF STATE OF THE STATE OF DELAWARE UNLESS AND UNTIL THE HOLDER
OR HOLDERS OF AT LEAST TWO-THIRDS OF THE OUTSTANDING SHARES OF THE INVESTOR
PREFERRED STOCK (ON AN AS-IF ISSUED BASIS) SHALL HAVE CONFIRMED TO THE COMPANY
IN A WRITING (MAKING REFERENCE TO THIS SECTION 2.A(10)) THAT ALL OTHER
CONDITIONS CONTAINED IN THIS SECTION 2.A. HAVE BEEN DULY SATISFIED IN FULL OR
WAIVED IN WRITING BY EACH OF THE INVESTORS; AND (II) THE INVESTORS HEREBY
COVENANT AND AGREE THAT, UPON THE