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EXHIBIT 10.4.1
AMENDMENT NO. 1 AND JOINDER TO
STOCKHOLDERS' AGREEMENT
AMENDMENT NO. 1 AND JOINDER (the "AMENDMENT AND JOINDER"), dated as of
November __, 1998, by and among Allied Riser Communications Holdings, Inc., a
Delaware corporation (the "COMPANY"), EGI-ARC Investors, L.L.C., a Delaware
limited liability company ("EGI-ARC"), Telecom Partners II, L.P., a Delaware
limited partnership ("TP"), Crescendo World Fund, LLC, a Delaware limited
liability company ("CWF"), Eagle Ventures WF, LLC, a Minnesota limited liability
company ("EVW"), Crescendo III, L.P., a Delaware limited partnership ("CIII")
and Xxxxxxxx Equity Group, L.L.C., a California limited liability company
("LEG", and, collectively with the Company, EGI-ARC, TP, CWF and EVW, the
"PARTIES"), to that certain Stockholders' Agreement (the "STOCKHOLDERS'
AGREEMENT"), dated as of November 13, 1998, by and among the Company, EGI-ARC,
TP and other persons identified therein. All terms not otherwise defined herein
shall have the meanings given such terms in the Stockholders' Agreement.
WHEREAS, the Company, EGI-ARC, TP and the other persons identified therein
have entered into the Stockholders' Agreement and desire to amend the
Stockholders' Agreement as provided herein;
WHEREAS, Section 5.3 of the Stockholders' Agreement permits amendment of
Section 2.5 of the Stockholders' Agreement by a written instrument signed by (i)
the Company, (ii) EGI-ARC, (iii) TP, and (iv) Stockholders holding not less than
fifty percent (50%) of the total number of shares of ARC Holdings Common Stock
and ARC Holdings Common Stock Equivalents then held by all Stockholders;
WHEREAS, EGI-ARC, TP, CWF, EVW, CIII and LEG collectively hold in excess of
fifty percent (50%) of the total number of shares of ARC Holdings Common Stock
and ARC Holdings Common Stock Equivalents held by all Stockholders as of the
date hereof and accordingly can, together with the Company, enter into this
Amendment and Joinder;
WHEREAS, EGI-ARC and TP desire that CWF, EVW, CIII and LEG become parties
to the Stockholders' Agreement as "Financial Sponsors" thereunder, and CWF, EWV,
CIII and LEG desire to become parties to the Stockholders' Agreement as
"Financial Sponsors" thereunder, as provided herein;
WHEREAS, Section 4.6 of the Stockholders' Agreement permits holders of a
majority of the outstanding shares of Preferred Stock to designate any purchaser
of newly issued Preferred Stock as a "Financial Sponsor" for all purposes under
the Stockholders' Agreement;
WHEREAS, EGI-ARC and TP together hold a majority of the outstanding shares
of Preferred Stock outstanding and accordingly can designate additional
Financial Sponsors pursuant to and for all purposes under the Stockholders'
Agreement;
NOW, THEREFORE, in consideration of the foregoing, the mutual promises
herein made and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Parties mutually agree to amend
the Stockholders' Agreement as follows;
1. Amendment. Section 2.5(2) of the Stockholders' Agreement is hereby
amended and restated in its entirety to read as follows:
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"(2) If the total number of Preferred Offered Securities that the
Financial Sponsors desire to purchase in the aggregate exceeds the
aggregate number of Preferred Offered Securities that are the subject
of Preferred Stock Offeror's Transfer Notice, each Financial Sponsor
shall have the right to purchase a number of Preferred Offered
Securities equal to the product of (A) the aggregate number of
Preferred Offered Securities that are the subject of Preferred Stock
Offeror's Transfer Notice, multiplied by (B) a fraction, (x) the
numerator of which is equal to the number of shares of ARC Holdings
Common Stock held by such Financial Sponsor and (y) the denominator of
which is equal to the total number of shares of ARC Holdings Common
Stock held by the Financial Sponsors participating herein; provided,
however, that if a Financial Sponsor does not exercise all or part of
its right to purchase Preferred Offered Securities pursuant to this
Section 2.5(2), then the other Financial Sponsors shall have the
right to purchase all or any part of the Preferred Offered Securities
not purchased by such Financial Sponsors."
2. Designation and Joinder. (a) EGI-ARC and TP hereby designate each of
CWF, EVW, CIII and LEG as a "Financial Sponsor" for all purposes under the
Stockholders' Agreement, entitled to all of the rights and subject to all of the
obligations attendant thereunder to that status. CWF, EVW, CIII and LEG hereby
consent and agree to such designation, and further agree that upon execution of
this Amendment and Joinder, it shall become a party to the Stockholders'
Agreement as a "Financial Sponsor" thereunder and shall be fully bound by, and
subject to, all of the covenants, terms and conditions of the Stockholders' as a
"Financial Sponsor" thereunder as though originally a party as a "Financial
Sponsor" thereunder.
(b) The execution and delivery of this Amendment and Joinder shall be
deemed to constitute "written notice to the Company" of the designation set
forth in Section 2(a) above, in satisfaction of such requirement of Section 4.6
of the Stockholders' Agreement.
3. Miscellaneous.
(a) Reaffirmation. Except as expressly modified hereby, the Parties hereby
reaffirm each and every provision set forth in the Stockholders' Agreement and,
except as modified hereby, the Parties acknowledge and agree that each
provision and obligation therein continues in full force and effect. References
to the "Agreement" in the Stockholders' Agreement shall hereinafter be deemed to
mean such agreement as amended by this Amendment and Joinder.
(b) Additional Provisions. Sections 5.1, 5.9, 5.10, 5.11 and 5.12 of the
Stockholders' Agreement are hereby incorporated by reference into this Amendment
and Joinder, mutatis mutandis.
(c) Counterparts. This Amendment and Joinder may be executed in one or
more counterparts, each of which shall be deemed an original but both of which
together will constitute one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Parties hereto have executed this Amendment and
Joinder to the Stockholders' Agreement as of the date first above written.
ALLIED RISER COMMUNICATIONS HOLDINGS, INC.
By: /s/ XXXX XXXXXXX
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Name: Xxxx Xxxxxxx
Title: Chief Financial Officer
EGI-ARC INVESTORS, L.L.C.
By: GAMI Investments, Inc., its
Managing Member
By: /s/ XXX XXXXXXXXXXX
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Name: Xxx Xxxxxxxxxxx
Title: Vice President
TELECOM PARTNERS II, L.P.
By: Telecom Management II, L.L.C., its
General Partner
By: /s/ XXXXXX X. XXXXXXX
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Name: Xxxxxx X. Xxxxxxx
Title: Managing Member
CRESCENDO WORLD FUND, LLC
By: Crescendo Ventures World Fund, LLC,
its Managing Member
By: /s/ XXXXXXX X. XXXXXXXXX
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Name: Xxxxxxx X. Xxxxxxxxx
Title: Partner
EAGLE VENTURES WF, LLC
By: /s/ XXXXXXX X. XXXXXXXXX
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Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
