8-K/A

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC  20549

FORM 8-K/A

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported):  November 7, 2014

Cogent Communications Holdings, Inc.

(Exact Name of Registrant as Specified in its Charter)

Delaware	000-51829	46-5706863
(State or Other Jurisdiction	(Commission	(IRS Employer
of Incorporation)	File Number)	Identification No.)

1015 31st St. NW, Washington, District of Columbia	20007
(Address of Principal Executive Offices)	(Zip Code)

Registrant’s telephone number, including area code:  202-295-4200

Not Applicable

(Former Name or Former Address, if Changed Since Last Report.)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

o       Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

o       Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

o       Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

o       Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Item 5.03              Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

On November 5, 2014 the Company filed a Current Report on Form 8-K (the “Original Report”), reporting that on November 3, 2014, the Board of Directors of the Company had amended and restated the Bylaws of the Company to add Article 62, stipulating the forum for certain types of litigation, and Article 63, concerning litigation costs (the “Amendments”).

On March 27, 2015, certain stockholders of the Company filed a complaint (the “Complaint”) in the Court of Chancery of the State of Delaware challenging the authority of the Company’s Board of Directors to adopt the Amendments.

On March 30, 2015, in response to the concerns raised by the stockholders in the Complaint, the Board of Directors of the Company voted to rescind its prior action of November 3, 2014 and remove the Amendments from the Bylaws of the Company.  Therefore, the Company is filing this amendment to the Original Report to file the Bylaws of the Company, as amended and restated by the Board of Directors on March 30, 2015.  These Bylaws, as amended and restated, remove the Amendments and are therefore identical to the bylaws of the Company in effect upon its formation on April 17, 2014 and prior to the adoption of the Amendments in November 2014.

The foregoing summaries of the Bylaws, as amended and restated on March 30, 2015, and the Complaint do not purport to be complete and are qualified in their entirety by reference to the full text of the Bylaws, as amended and restated on March 30, 2015 and the Complaint (without exhibits), each of which is filed as an exhibit to this report and incorporated herein by reference.

Item 9.01 Financial Statements and Exhibits.

(d) Exhibits:

Exhibit  Number	Description
3.2	Bylaws of Cogent Communications Holdings, Inc., as amended and restated by the Board of Directors on March 30, 2015.
99.1	Complaint of the City of Sunrise Firefighters’ Retirement Fund as filed with the Court of Chancery of the State of Delaware on March 27, 2015.

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SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

	Cogent Communications Holdings, Inc.
March 30, 2015	By:	/s/David Schaeffer
		Name: David Schaeffer
		Title: Chairman and Chief Executive Officer

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Exhibit Index

Exhibit  Number	Description
3.2	Bylaws of Cogent Communications Holdings, Inc., as amended and restated by the Board of Directors on March 30, 2015.
99.1	Complaint of the City of Sunrise Firefighters’ Retirement Fund as filed with the Court of Chancery of the State of Delaware on March 27, 2015.

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EX-3.2

Exhibit 3.2

BYLAWS

OF

COGENT COMMUNICATIONS HOLDINGS, INC.

AS AMENDED AND RESTATED,

MARCH 30, 2015

TABLE OF CONTENTS

		PAGE
ARTICLE I. OFFICES		1
Section 1.	REGISTERED OFFICE	1
Section 2.	OTHER OFFICES	1
ARTICLE II. MEETINGS OF STOCKHOLDERS		1
Section 3.	PLACE OF MEETINGS	1
Section 4.	NOTICE OF STOCKHOLDER BUSINESS AND NOMINATIONS	1
Section 5.	QUORUM; ADJOURNED MEETINGS AND NOTICE THEREOF	3
Section 6.	VOTING	3
Section 7.	PROXIES	3
Section 8.	SPECIAL MEETINGS	3
Section 9.	NOTICE OF STOCKHOLDERS, MEETINGS	3
Section 10.	MAINTENANCE AND INSPECTION OF STOCKHOLDER LIST	3
Section 11.	STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING	4
ARTICLE III. DIRECTORS		4
Section 12.	THE NUMBER OF DIRECTORS	4
Section 13.	VACANCIES	4
Section 14.	POWERS	4
Section 15.	PLACE OF DIRECTORS’ MEETINGS	4
Section 16.	REGULAR MEETINGS	4
Section 17.	SPECIAL MEETINGS	4
Section 18.	QUORUM	4
Section 19.	ACTION WITHOUT MEETING	5
Section 20.	TELEPHONIC MEETINGS	5
Section 21.	COMMITTEES OF DIRECTORS	5
Section 22.	MINUTES OF COMMITTEE MEETINGS	5
Section 23.	COMPENSATION OF DIRECTORS	5
ARTICLE IV. INDEMNIFICATION AND INSURANCE		5
Section 24.	POWER TO INDEMNIFY IN ACTIONS, SUITS OR PROCEEDINGS OTHER THAN THOSE BY OR IN THE RIGHT OF THE CORPORATION	5
Section 25.	POWER TO INDEMNIFY IN ACTIONS, SUITS OR PROCEEDINGS BY OR IN THE RIGHT OF THE CORPORATION	6
Section 26.	AUTHORIZATION OF INDEMNIFICATION	6
Section 27.	GOOD FAITH DEFINED	6
Section 28.	INDEMNIFICATION BY A COURT	6
Section 29.	EXPENSES PAYABLE IN ADVANCE	7
Section 30.	NON-EXCLUSIVITY OF INDEMNIFICATION AND ADVANCEMENT OF EXPENSES	7
Section 31.	INSURANCE	7
Section 32.	CERTAIN DEFINITIONS	7
Section 33.	SURVIVAL OF INDEMNIFICATION AND ADVANCEMENT OF EXPENSES	7

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Section 34.	LIMITATION ON INDEMNIFICATION	8
Section 35.	INDEMNIFICATION OF EMPLOYEES AND AGENTS	8
ARTICLE V. OFFICERS		8
Section 36.	OFFICERS	8
Section 37.	ELECTION OF OFFICERS	8
Section 38.	COMPENSATION OF OFFICERS	8
Section 39.	TERM OF OFFICE; REMOVAL AND VACANCIES	8
Section 40.	CHAIRMAN OF THE BOARD	8
Section 41.	CHIEF EXECUTIVE OFFICER	8
Section 42.	PRESIDENT	8
Section 43.	VICE PRESIDENTS	8
Section 44.	SECRETARY	8
Section 45.	ASSISTANT SECRETARY	9
Section 46.	TREASURER	9
Section 47.	ASSISTANT TREASURER	9
ARTICLE VI. CERTIFICATES OF STOCK		9
Section 48.	CERTIFICATES	9
Section 49.	SIGNATURES ON CERTIFICATES	9
Section 50.	STATEMENT OF STOCK RIGHTS, PREFERENCES, PRIVILEGES	9
Section 51.	LOST CERTIFICATES	10
Section 52.	TRANSFERS OF STOCK	10
Section 53.	FIXING RECORD DATE	10
Section 54.	REGISTERED STOCKHOLDERS	10
ARTICLE VII. GENERAL PROVISIONS		10
Section 55.	DIVIDENDS	10
Section 56.	PAYMENT OF DIVIDENDS; DIRECTORS’ DUTIES	10
Section 57.	CHECKS	10
Section 58.	FISCAL YEAR	10
Section 59.	CORPORATE SEAL	10
Section 60.	MANNER OF GIVING NOTICE	10
Section 61.	WAIVER OF NOTICE	11
ARTICLE VIII. AMENDMENTS		11
Section 62.	AMENDMENT	11

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ARTICLE 1.

OFFICES

                    Section 1.  REGISTERED OFFICE.  The registered office of Cogent Communications Holdings, Inc. (the “Corporation”) shall be in the City of Dover, County of Kent, State of Delaware.

                    Section 2. OTHER OFFICES. The Corporation may also have offices at such other places both within and without the State of Delaware as the Board of Directors may from time to time determine or the business of the Corporation may require.

ARTICLE 2.

MEETINGS OF STOCKHOLDERS

                    Section 3. PLACE OF MEETINGS. Meetings of stockholders shall be held at any place within or outside the State of Delaware designated by the Board of Directors. In the absence of any such designation, stockholders’ meetings shall be held at the principal executive office of the Corporation.

                    Section 4. NOTICE OF STOCKHOLDER BUSINESS AND NOMINATIONS. The annual meeting of stockholders shall be held each year at a date and a time designated by the Board of Directors. At each annual meeting directors shall be elected and any other proper business may be transacted.

                                         (A)               ANNUAL MEETING OF STOCKHOLDERS.

                                                             (1)               Nominations of persons for election to the Board of Directors of the Corporation and the proposal of business to be considered by the stockholders may be made at an annual meeting of stockholders only (a) pursuant to the Corporation’s notice of meeting (or any supplement thereto), (b) by or at the direction of the Board of Directors or (c) by any stockholder of the Corporation who was a stockholder of record of the Corporation at the time the notice provided for in this Section 4 is delivered to the Secretary of the Corporation, who is entitled to vote at the meeting and who complies with the notice procedures set forth in this Section 4.

                                                             (2)               For nominations or other business to be properly brought before an annual meeting by a stockholder pursuant to clause (c) of paragraph (A)(1) of this Section 4, the stockholder must have given timely notice thereof in writing to the Secretary of the Corporation and such other business must otherwise be a proper matter for stockholder action.  To be timely, a stockholder’s notice shall be delivered to the Secretary at the principal executive office of the Corporation not later than the close of business on the ninetieth day nor earlier than the close of business on the one hundred twentieth day prior to the first anniversary of the preceding year’s annual meeting (provided, however, that in the event that the date of the annual meeting is more than thirty days before or more than seventy days after such anniversary date, notice by the stockholder must be so delivered not earlier than the close of business on the one hundred twentieth day prior to such annual meeting and not later than the close of business on the later of the ninetieth day prior to such annual meeting or the tenth day following the day on which public announcement of the date of such meeting is first made by the Corporation).  In no event shall the public announcement of an adjournment or postponement of an annual meeting commence a new time period for the giving of a stockholder’s notice as described above.  Such stockholder’s notice shall set forth: (a) as to each person whom the stockholder proposes to nominate for election or reelection as a director all information relating to such person that is required to be disclosed in solicitations of proxies for election of directors in an election contest, or is otherwise required, in each case pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and Rule 14a-11 thereunder (and such person’s written consent to being named in the proxy statement as a nominee and to serving as a director if elected); (b) as to any other business that the stockholder proposes to bring before the meeting, a brief description of the business desired to be brought before the meeting, the reasons for conducting such business at the meeting and any material interest in such business of such stockholder and the beneficial owner, if any, on whose behalf the proposal is made, and in the event that such business includes a proposal to amend the By-laws of the Corporation, the language of the proposed amendment; and (c) as to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made (i) the name and address of such stockholder, as they appear on the Corporation’s books, and or such beneficial owner, (ii) the class and number of shares of capital stock of the Corporation which are owned

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beneficially and of record by such stockholder and such beneficial owner, (iii) a representation that the stockholder is a holder of record of stock of the Corporation entitled to vote at such meeting and intends to appear in person or by proxy at the meeting to propose such business of nomination, and (iv) a representation whether the stockholder or the beneficial owner, if any, intends or is part of a group which intends to (a) deliver a proxy statement and/or form of proxy to holders of at least the percentage of the Corporation’s outstanding capital stock required to approve or adopt the proposal or elect the nominee and/or (b) otherwise solicit proxies from stockholders in support of such proposal or nomination. The Corporation may require any proposed nominee to furnish such other information as it may reasonably require to determine the eligibility of such proposed nominee to serve as a director of the Corporation.

                                                             (3)               Notwithstanding anything in the second sentence of paragraph (A)(2) of this Section 4 to the contrary, in the event that the number of directors to be elected to the Board of Directors of the Corporation at an annual meeting is increased and there is no public announcement by the Corporation naming all of the nominees for director or specifying the size of the increased Board of Directors at least one hundred days prior to the first anniversary of the preceding year’s annual meeting, a stockholder’s notice required by this Section 4 shall also be considered timely, but only with respect to nominees for any new positions created by such increase, if it shall be delivered to the Secretary at the principal executive office of the Corporation not later than the close of business on the tenth day following the day on which such public announcement is first made by the Corporation.

                                         (B)               SPECIAL MEETINGS OF STOCKHOLDERS.  Only such business shall be conducted at a special meeting of stockholders as shall have been brought before the meeting pursuant to the Corporation’s notice of meeting pursuant to Section 9.  Nominations of persons for election to the Board of Directors may be made at a special meeting of stockholders at which directors are to be elected pursuant to the Corporation’s notice of meeting (1) by or at the direction of the Board of Directors or (2) provided that the Board of Directors has determined that directors shall be elected at such meeting, by any stockholder of the Corporation who is a stockholder of record at the time the notice provided for in this Section 4 is delivered to the Secretary of the Corporation, who shall be entitled to vote at the meeting and upon such election and who complies with the notice procedures set forth in this Section 4.  In the event the Corporation calls a special meeting of stockholders for the purpose of electing one or more directors to the Board of Directors, any such stockholder entitled to vote in such election of directors may nominate a person or persons (as the case may be) for election to such position(s) as specified in the Corporation’s notice of meeting, if the stockholder’s notice required by paragraph (A)(2) of this Section 4 shall be delivered to the Secretary at the principal executive offices of the Corporation not earlier than the close of business on the one hundred twentieth day prior to such special meeting and not later than the close of business on the later of the ninetieth day prior to such special meeting, or the tenth day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the Board of Directors to be elected at such meeting. In no event shall the public announcement of an adjournment or postponement of a special meeting commence a new time period for the giving of a stockholder’s notice as described above.

                                         (C)               GENERAL

                                                             (1)               Only such persons who are nominated in accordance with the procedures set forth in this Section 4 shall be eligible to be elected at an annual or special meeting of stockholders of the Corporation to serve as directors and only such business shall be conducted at a meeting of stockholders as shall have been brought before the meeting in accordance with the procedures set forth in this Section 4.  Except as otherwise provided by law or the Certificate of Incorporation, the chairman of the meeting shall have the power and duty to (a) determine whether a nomination or any business proposed to be brought before the meeting was made or proposed, as the case may be, in accordance with the procedures set forth in this Section 4 and (b) if any proposed nomination or business is not in compliance with this Section 4 (including whether the stockholder or beneficial owner, if any, on whose behalf the nomination or proposal is made solicits (or is part of a group which solicits), or fails to so solicit (as the case may be), proxies in support of such stockholder’s proposal in compliance with such stockholder’s representation required by clause (c)(iv) of Section (A)(2) of this By-law), to declare that such defective nomination shall be disregarded or that such proposed business shall not be transacted.

                                                             (2)               For purposes of this Section 4, “public announcement” shall mean disclosure in a press release reported by the Dow Jones News Service, Associated Press or comparable national

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news service or in a document publicly filed by the Corporation, with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.

                                                             (3)               Notwithstanding the foregoing provisions of this Section 4, a stockholder shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this Section 4.  Nothing in this Section 4 shall be deemed to affect any rights (a) of stockholders to request inclusion of proposals in the Corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange Act or (b) of the holders of any series of Preferred Stock to elect directors under specified circumstances.

                    Section 5. QUORUM; ADJOURNED MEETINGS AND NOTICE THEREOF. A majority of the stock issued and outstanding and entitled to vote at any meeting of stockholders, the holders of which are present in person or represented by proxy, shall constitute a quorum for the transaction of business except as otherwise provided by law, by the Certificate of Incorporation, or by these Bylaws. A quorum, once established, shall not be broken by the withdrawal of enough votes to leave less than a quorum and the votes present may continue to transact business until adjournment. If, however, such quorum shall not be present or represented at any meeting of the stockholders, a majority of the voting stock represented in person or by proxy may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally notified. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote thereat.

                    Section 6. VOTING. When a quorum is present at any meeting, the vote of the holders of a majority of the stock having voting power present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one upon which by express provision of the statutes, or the Certificate of Incorporation, or these Bylaws, a different vote is required in which case such express provision shall govern and control the decision of such question.

                    Section 7. PROXIES. At each meeting of the stockholders, each stockholder having the right to vote may vote in person or may authorize another person or persons to act for him by proxy appointed by an instrument in writing subscribed by such stockholder and bearing a date not more than three years prior to said meeting, unless said instrument provides for a longer period. All proxies must be filed with the Secretary of the Corporation at the beginning of each meeting in order to be counted in any vote at the meeting. Each stockholder shall have one vote for each share of stock having voting power, registered in his name on the books of the Corporation on the record date set by the Board of Directors as provided in Article 6, Section 53 hereof.

                    Section 8. SPECIAL MEETINGS. Special meetings of the stockholders, for any purpose, or purposes, unless otherwise prescribed by statute or by the Certificate of Incorporation, may be called by the President and shall be called by the President or the Secretary at the request in writing of a majority of the Board of Directors, or at the request in writing of stockholders owning at least a majority of the entire capital stock of the Corporation, issued and outstanding, and entitled to vote. Such request shall state the purpose or purposes of the proposed meeting. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

                    Section 9. NOTICE OF MEETINGS. Whenever stockholders are required or permitted to take any action at a meeting, a written notice of the meeting shall be given which notice shall state the place, date and hour of the meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting is called. The written notice of any meeting shall be given to each stockholder entitled to vote at such meeting not less than ten nor more than sixty days before the date of the meeting. If mailed, notice is given when deposited in the United States mail, postage prepaid, directed to the stockholder at his address as it appears on the records of the Corporation.

                    Section 10. MAINTENANCE AND INSPECTION OF STOCKHOLDER LIST. The officer who has charge of the stock ledger of the Corporation shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary

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business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present.

                    Section 11. STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING. Unless otherwise provided in the Certificate of Incorporation, any action required to be taken at any annual or special meeting of stockholders of the Corporation, including the election of directors, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing.

ARTICLE 3.

DIRECTORS

                    Section 12. THE NUMBER OF DIRECTORS. The number of directors which shall constitute the whole Board shall be six (6). Thereafter, the number of directors constituting the whole Board may be increased or decreased, from time to time, in conformity with the Certificate of Incorporation or any Stockholders Agreement (as defined below). The directors need not be stockholders. The directors shall be elected at the annual meeting of the stockholders, except as provided in Section 13, and each director elected shall hold office until his successor is elected and qualified; provided, however, that unless otherwise restricted by the Certificate of Incorporation, any stockholders agreement, the execution of which is approved unanimously the Board of Directors (a “Stockholders Agreement”), or by law, any director or the entire Board of Directors may be removed, either with or without cause, from the Board of Directors at any meeting of stockholders by a majority of the stock represented and entitled to vote thereat.

                    Section 13. VACANCIES. Vacancies on the Board of Directors by reason of death, resignation, retirement, disqualification, removal from office, or otherwise, and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, although less than a quorum, or by a sole remaining director, provided, however, that the Board of Directors shall not take any action unless and until the any Stockholders entitled to designate nominees of the Board of Directors under any Stockholders Agreement have been given adequate opportunity to do so.

                    Section 14. POWERS. The Board of Directors shall elect and appoint management to manage the business and property of the Corporation. In addition to the powers and authorities by these Bylaws expressly conferred upon them, the Board may exercise all such powers of the Corporation and do all such lawful acts and things as are not by statute or by the Certificate of Incorporation or by these Bylaws directed or required to be exercised or done by the stockholders.

                    Section 15. PLACE OF DIRECTORS’ MEETINGS. The directors may hold their meetings and have one or more offices, and keep the books of the Corporation outside of the State of Delaware.

                    Section 16. REGULAR MEETINGS.  Regular meetings of the Board of Directors may be held without notice at such time and place as shall from time to time be determined by the Board.

                    Section 17. SPECIAL MEETINGS. Special meetings of the Board of Directors may be called by the Chairman of the Board or the President on forty-eight hours’ notice to each director, either personally or by mail or by facsimile; special meetings shall be called by the President or the Secretary in like manner and on like notice on the written request of two directors.

                    Section 18. QUORUM. At all meetings of the Board of Directors, a majority of the then-appointed directors shall be necessary and sufficient to constitute a quorum for the transaction of business, and the vote of a majority of the directors present at any meeting at which there is a quorum, shall be the act of the Board of

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Directors, except as may be otherwise specifically provided by statute, by the Certificate of Incorporation, by any Stockholders Agreement or by these Bylaws. If a quorum shall not be present at any meeting of the Board of Directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. If only one director is authorized, such sole director shall constitute a quorum. At any meeting, a director shall have the right to be accompanied by counsel (provided that such counsel shall agree to any confidentiality restrictions reasonably imposed by the Corporation) and an observer (to the extent such right is agreed upon in any Stockholders Agreement).

                    Section 19. ACTION WITHOUT MEETING. Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting, if all members of the Board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board or committee.

                    Section 20. TELEPHONIC MEETINGS. Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting of the Board of Directors, or any committee, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at such meeting.

                    Section 21. COMMITTEES OF DIRECTORS. The Board of Directors may, by resolution passed by a majority of the whole Board, designate one or more committees, each such committee to consist of one or more of the directors of the Corporation. The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent provided in the resolution of the Board of Directors, shall make recommendations regarding the management of the business and affairs of the Corporation.

                    Section 22. MINUTES OF COMMITTEE MEETINGS.  Each committee shall keep regular minutes of its meetings and report the same to the Board of Directors.

            Section 23. COMPENSATION OF DIRECTORS. Unless otherwise restricted by the Certificate of Incorporation, any Stockholders Agreement or these Bylaws, the Board of Directors shall have the authority to fix the compensation of directors. The directors may be paid their expenses, if any, of attendance at each meeting of the Board of Directors and may be paid a fixed sum for attendance at each meeting of the Board of Directors or a stated salary as director. No such payment shall preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings.

ARTICLE 4.

INDEMNIFICATION AND INSURANCE

                    Section 24. POWER TO INDEMNIFY IN OTHER THAN ACTIONS BY OR IN THE RIGHT OF THE CORPORATION.  Subject to Section 26 of this Article 4, the Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation) by reason of the fact that such person is or was a director or officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, such person had no reasonable cause to believe his or her conduct was unlawful. The

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termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that such person did not act in good faith and in a manner which such person reasonably believed to be in or not opposed to the best interests of the Corporation, and with respect to any criminal action or proceeding, had reasonably cause to believe that his or her conduct was unlawful.

                    Section 25. POWER TO INDEMNIFY IN ACTIONS BY OR IN THE RIGHT OF THE CORPORATION.  Subject to Section 26 of this Article 4, the Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending, or completed action or suit or by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that such person is or was a director or officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Corporation; except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.

                    Section 26. AUTHORIZATION OF INDEMNIFICATION. Any indemnification under this Article 4 (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director or officer is proper in the circumstances because such person has met the applicable standard of conduct set forth in Section 24 or 25 of this Article 4, as the case may be. Such determination shall be made (i) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum, or (ii) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer of the Corporation has been successful on the merits or otherwise in defense if any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith, without the necessity of authorization in the specific case.

                    Section 27. GOOD FAITH DEFINED. For purposes of any determination under Section 26 of this Article 4, a person shall be deemed to have acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Corporation, or, with respect to any criminal action or proceeding, to have had no reasonable cause to believe his or her conduct was unlawful, if such person’s action is based on the records or books of account of the Corporation or another enterprise, or on information supplied to such person by the officers of the Corporation or another enterprise in the course of their duties, or on the advice of legal counsel for the Corporation or another enterprise or on information or records given or reports made to the Corporation or another enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Corporation or another enterprise. The term “another enterprise” as used in this Section 27 shall mean any other corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise of which such person is or was serving at the request of the Corporation as director, officer, employee or agent. The provisions of this Section 27 shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may be deemed to have met the applicable standard of conduct set forth in Section 24 or 25 of this Article 4, as the case may be.

                    Section 28. INDEMNIFICATION BY A COURT. Notwithstanding any contrary determination in the specific case under Section 26 of this Article 4, and notwithstanding the absence of any determination thereunder, any director or officer may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under Sections 24 and 25 of this Article 4. The basis of such indemnification by a court shall be a determination by such court that indemnification of the director or officer is proper in the circumstances because such person has met the applicable standards of conduct set forth in Section 24 or 25 of this Article 4, as the case may be. Neither a contrary determination in the specific case under Section 26 of this Article 4 nor the absence of any determination thereunder

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shall be a defense to such application or create a presumption that the director or officer seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this Section 28 shall be given to the Corporation promptly upon the filing of such application. If successful, in whole or in part, the director or officer seeking indemnification shall also be entitled to be paid the expense of prosecuting such application.

                    Section 29. EXPENSES PAYABLE IN ADVANCE. Expenses incurred by a director or officer in defending or investigating a threatened or pending action, suit or proceeding shall be paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified by the Corporation as authorized in this Article 4.  Notwithstanding the foregoing, the Corporation shall not be required to advance any expenses to an Indemnitee in the event and to the extent that such Indemnitee has entered a plea of guilty in the applicable criminal proceeding.

                    Section 30. NON-EXCLUSIVITY OF INDEMNIFICATION AND ADVANCEMENT OF EXPENSES. The indemnification and the advancement of expenses provided by or granted pursuant to this Article 4 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under the Certificate of Incorporation or any By-law, agreement, contract, vote of stockholders or disinterested directors or pursuant to the direction (howsoever embodied) of any court of competent jurisdiction or otherwise, both as to action in such person’s official capacity and as to action in another capacity while holding such office, it being the policy of the corporation that indemnification of persons specified in Section 24 and 25 of this Article 4 shall be made to the fullest extent permitted by law. The provisions of this Article 4 shall not be deemed to preclude the indemnification of any person who is not specified in Section 24 or 25 of this Article 4 but whom the Corporation has the power or obligation to indemnify under the provision of the Delaware General Corporation Law (“DGCL”) or otherwise.

                    Section 31. INSURANCE. The Corporation may purchase and maintain insurance on behalf of any person who is or was a director or officer of the Corporation or is or was a director or officer of the Corporation serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the Corporation would have the power or the obligation to indemnify such person against such liability under the provisions of this Article 4.

                    Section 32. CERTAIN DEFINITIONS. For the purposes of this Article 4, references to the “Corporation” shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors or officers, so that any person who is or was a director or officer of such constituent corporation, or is or was a director or officer of such constituent corporation serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, shall stand in the same position under the provisions of this Article 4 with respect to the resulting or surviving corporation as such person would have with respect to such constituent corporation if its separate existence had continued. For purposes of this Article 4, references to “fines” shall include any excise taxes assessed on a person with respect to an employee benefit plan; and references to “serving at the request of the Corporation” shall include any service as a director, officer, employee or agent of the Corporation which imposes duties on, or involves services by, such director or officer which respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner such person reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interests of the Corporation” as referred to in this Article 4.

                    Section 33. SURVIVAL OF INDEMNIFICATION AND ADVANCEMENT OF EXPENSES. The indemnification and advancement of expenses provided by, or granted pursuant to, this Article 4 shall, unless otherwise provided when authorized or ratified. continue as to a person who has ceased to be a director or officer shall inure to the benefit of the heirs, executors and administrators of such a person.

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Section 34. LIMITATION ON INDEMNIFICATION. Notwithstanding anything contained in this Article 4 to the contrary, except for proceedings to enforce rights to indemnification (which shall be governed by Section 28 hereof), the Corporation shall not be obligated to indemnify any director or officer (or his heirs, executors or personal or legal representatives) or advance expenses in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized or consented to by the Board of Directors of the Corporation.

Section 35. INDEMNIFICATION OF EMPLOYEES AND AGENTS. The Corporation may, to the extent authorized from time to time by the Board of Directors, provide rights to indemnification and to advancement of expenses to employees and agents of the Corporation similar to those conferred in this Article 4 to directors and officers of the Corporation.

ARTICLE 5.

OFFICERS

Section 36. OFFICERS. The officers of this corporation shall be chosen by the Board of Directors and shall include a Chief Executive Officer, President, a Secretary, and a Treasurer. The Corporation may also have, at the discretion of the Board of Directors, such other officers as are desired, including a Chairman of the Board, one or more Vice Presidents, one or more Assistant Secretaries and Assistant Treasurers, and such other officers as may be appointed in accordance with the provisions of Section 3 hereof. In the event there are two or more Vice Presidents, then one or more may be designated as Executive Vice President, Senior Vice President, or other similar or dissimilar title. Any number of offices may be held by the same person unless the Certificate of Incorporation or these Bylaws otherwise provide.

Section 37. ELECTION OF OFFICERS.  The Board of Directors, at its first meeting after each annual meeting of stockholders, shall choose the officers of the Corporation.

Section 38. COMPENSATION OF OFFICERS.  The salaries of all officers and agents of the Corporation shall be fixed by the Board of Directors on the advice and consent of the Compensation Committee thereof.

Section 39. TERM OF OFFICE; REMOVAL AND VACANCIES. The officers of the Corporation shall hold office until their successors are chosen and qualify in their stead. Any officer elected or appointed by the Board of Directors may be removed at any time by the affirmative vote of a majority of the Board of Directors. If the office of any officer or officers becomes vacant for any reason, the vacancy shall be filled by the Board of Directors.

Section 40. CHAIRMAN OF THE BOARD. The Chairman of the Board, if such an officer be elected, shall, if present, preside at meetings of the Board of Directors and shall have no power or authority to manage the affairs of the corporation.

Section 41. CHIEF EXECUTIVE OFFICER. The Chief Executive Officer of the Corporation shall be the principle officer of the Corporation and shall have general supervision, direction and control of the business and officers of the Corporation. He shall preside at all meetings of the stockholders and, in the absence of the Chairman of the Board, or if there be none, at all meetings of the Board of Directors.

Section 42. PRESIDENT. The President shall be the chief operating officer of the Corporation. He shall assist the Chief Executive Officer at the Chief Executive Officer’s discretion in the performance of his duties.

Section 43. VICE PRESIDENTS.  The Vice Presidents shall assist the President at the President’s discretion in the performance of his duties.

Section 44. SECRETARY. The Secretary shall attend all sessions of the Board of Directors and all meetings of the stockholders and record all votes and the minutes of all proceedings in a book to be kept for that purpose; and shall perform like duties for the standing committees when required by the Board of Directors. He shall give, or cause to be given, notice of all meetings of the stockholders and of the Board of Directors.

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He shall keep in safe custody the seal of the Corporation, and when authorized by the Board, affix the same to any instrument requiring it, and when so affixed it shall be attested by his signature or by the signature of an Assistant Secretary. The Board of Directors may give general authority to any other officer to affix the seal of the Corporation and to attest the affixing by his signature.

Section 45. ASSISTANT SECRETARY. The Assistant Secretary, or if there be more than one, the Assistant Secretaries in the order determined by the Board of Directors, or if there be no such determination, the Assistant Secretary designated by the Board of Directors, shall, in the absence or disability of the Secretary, perform the duties and exercise the powers of the Secretary.

Section 46. TREASURER. The Treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit all moneys, and other valuable effects in the name and to the credit of the Corporation, in such depositories as may be designated by the Board of Directors. He shall disburse the funds of the Corporation as may be ordered by the Board of Directors, taking proper vouchers for such disbursements, and shall render to the Board of Directors, at its regular meetings, or when the Board of Directors so requires, an account of all his transactions as Treasurer and of the financial condition of the Corporation. If required by the Board of Directors, he shall give the Corporation a bond, in such sum and with such surety or sureties as shall be satisfactory to the Board of Directors, for the faithful performance of the duties of his office and for the restoration to the Corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the Corporation.

Section 47. ASSISTANT TREASURER. The Assistant Treasurer, or if there shall be more than one, the Assistant Treasurers, shall, in the absence or disability of the Treasurer, perform the duties and exercise the powers of the Treasurer.

ARTICLE 6.

CERTIFICATES OF STOCK

Section 48. CERTIFICATES. Every holder of stock of the Corporation shall be entitled to have a certificate signed by, or in the name of the Corporation by, the Chairman or Vice Chairman of the Board of Directors, or the President or a Vice President, and by the Secretary or an Assistant Secretary, or the Treasurer or an Assistant Treasurer of the Corporation, certifying the number of shares represented by the certificate owned by such stockholder in the Corporation, except that the Board of Directors may provide that some or all of any class or series of stock will be uncertificated shares.  No decision to have uncertificated shares will apply to stock represented by a certificate until that certificate has been surrendered to the Corporation.

Section 49. SIGNATURES ON CERTIFICATES. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent, or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he were such officer, transfer agent, or registrar at the date of issue.

Section 50. STATEMENT OF STOCK RIGHTS, PREFERENCES, PRIVILEGES. If the Corporation shall be authorized to issue more than one class of stock or more than one series of any class, the powers, designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof and the qualification, limitations or restrictions of such preferences and/or rights shall be set forth in full or summarized on the face or back of the certificate which the Corporation shall issue to represent such class or series of stock, provided that, except as otherwise provided in Section 202 of the General Corporation Law of Delaware, in lieu of the foregoing requirements, there may be set forth on the face or back of the certificate which the Corporation shall issue to represent such class or series of stock, a statement that the Corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights.

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Section 51. LOST CERTIFICATES. The Board of Directors may direct a new certificate or certificates to be issued in place of any certificate or certificates theretofore issued by the Corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate or certificates, the Board of Directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it shall require and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the Corporation with respect to the certificate alleged to have been lost, stolen or destroyed.

Section 52. TRANSFERS OF STOCK. Upon surrender to the Corporation, or the transfer agent of the Corporation, of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignation or authority to transfer, the Corporation shall issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its book.

Section 53. FIXING RECORD DATE. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of the stockholders, or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date which shall not be more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

Section 54. REGISTERED STOCKHOLDERS. The Corporation shall be entitled to treat the holder of record of any share or shares of stock as the holder in fact thereof and accordingly shall not be bound to recognize any equitable or other claim or interest in such share on the part of any other person, whether or not it shall have express or other notice thereof, save as expressly provided by the laws of the State of Delaware.

ARTICLE 7.

GENERAL PROVISIONS

Section 55. DIVIDENDS. Dividends upon the capital stock of the Corporation, subject to the provisions of the Certificate of Incorporation, if any, may be declared by the Board of Directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the Certificate of Incorporation.

Section 56. PAYMENT OF DIVIDENDS; DIRECTORS’ DUTIES. Before payment of any dividend there may be set aside out of any funds of the Corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve fund to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for such other purpose as the directors shall think conducive to the interests of the Corporation, and the directors may abolish any such reserve.

Section 57. CHECKS.  All checks or demands for money and notes of the Corporation shall be signed by such officer or officers as the Board of Directors may from time to time designate.

Section 58. FISCAL YEAR.  The fiscal year of the Corporation shall be the calendar year.

Section 59. CORPORATE SEAL. The corporate seal shall have inscribed thereon the name of the Corporation, the year of its organization and the words “Corporate Seal, Delaware.” Said Seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.

Section 60. MANNER OF GIVING NOTICE. Whenever, under the provisions of the statutes or of the Certificate of Incorporation or of these Bylaws, notice is required to be given to any director or stockholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by mail, addressed to such director or stockholder, at his address as it appears on the records of the Corporation, with postage thereon prepaid,

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and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Notice to directors may also be given by telegram or by facsimile or e-mail at such fax or e-mail addresses as the directors have last given to the Secretary.

Section 61. WAIVER OF NOTICE. Whenever any notice is required to be given under the provisions of the statutes or of the Certificate of Incorporation or of these Bylaws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto.

ARTICLE 8.

AMENDMENTS

Section 62. AMENDMENT. These Bylaws may be altered, amended or repealed or new Bylaws may be adopted by the Board of Directors or stockholders at any annual, regular or special meeting, in accordance with the Certificate of Incorporation and any Stockholders Agreement, if notice of such alteration, amendment, repeal or adoption of new Bylaws be contained in the notice of such meeting.

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EX-99.1

Exhibit 99.1

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

CITY OF SUNRISE FIREFIGHTERS’	)
RETIREMENT FUND, Individually and	)
Derivatively on Behalf of COGENT	)
COMMUNICATIONS HOLDINGS,	)
INC.,	)
	)
Plaintiff,	)	C.A. No.    -
	)
v.	)
	)
DAVE SCHAEFFER, STEVEN D.	)
BROOKS, TIMOTHY WEINGARTEN,	)
RICHARD T. LIEBHABER, D. BLAKE	)
BATH, MARC MONTAGNER,	)
	)
Defendants,	)
	)
and	)
	)
COGENT COMMUNICATIONS	)
HOLDINGS, INC., a Delaware	)
corporation,	)
	)
Nominal Defendant.

VERIFIED DERIVATIVE, INDIVIDUAL
AND CLASS ACTION COMPLAINT

Plaintiff, City of Sunrise Firefighters’ Retirement Fund (“Plaintiff”), by the undersigned attorneys, submits this Verified Derivative, Individual and Class Action Complaint against the defendants named herein, and alleges as follows:

NATURE OF THE ACTION

1.           This is a stockholder action against members of the board of directors of Cogent Communications Holdings, Inc. (“Cogent” or the “Company”) to remedy defendants’ breaches of fiduciary duties, violation of the Delaware General Corporation Law (“DGCL”) and violation of the Company’s certificate of incorporation relating to the adoption, validity, and enforceability of several purported amendments to the Company’s by-laws (the “Bylaws”). Those amendments were purportedly enacted by the Cogent Board of Directors (the “Board”) on November 3, 2014 to: (a) establish the Courts of Delaware as the exclusive forum for any intra-corporate claim (the “Exclusive Forum Provision”); (b) impose an obligation on any stockholder who initiates a claim or counterclaim in any litigation of any kind to pay the fees of the Board, the Company, any officer, employee or affiliate of the Company (the “Fee Shifting Provision”); and (c) eliminate the right of any stockholder to recover attorneys’ fees in any litigation, including under the corporate benefit and common fund doctrines (the “Fee Preclusion Provision” and collectively with the Exclusive Forum Provision and Fee Shifting Provision the “Litigation Bylaws”).

2.           The Board lacked statutory and contractual authority to adopt the Litigation Bylaws because Cogent’s Certificate of Incorporation (the “Certificate”) does not authorize the Board to adopt, amend or repeal bylaws. Nevertheless, with

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full knowledge of this lack of authority, the Board is seeking to defraud the stockholders with a proposed non-binding stockholder vote to confirm the invalid Litigation Bylaws at the annual meeting of stockholders, scheduled for April 16, 2015 (the “Annual Meeting”). Even if the Board had the authority to adopt the Litigation Bylaws—and it did not—the Fee Shifting Provision and Fee Preclusion Provision are contrary to the DGCL and public policy, unreasonable and not entirely fair to Plaintiff and the Cogent stockholders. Through this action, Plaintiff seeks to invalidate the Litigation Bylaws, enjoin the Annual Meeting and recover all amounts expended by the Company in connection with the adoption, publication and fraudulent proposal to confirm the invalid Litigation Bylaws. Plaintiff also seeks recovery of its attorneys’ fees under the common fund and corporate benefit doctrine for the benefits to be conferred in this litigation.

PARTIES

3.           Plaintiff was a stockholder of Cogent at the time of the wrongdoing complained of herein, and has been a stockholder of Cogent continuously since that time.

4.           Defendant Cogent is a Delaware corporation headquartered in Washington, DC. The Company is a provider of Internet access and Internet Protocol communications services. The Company’s shares are traded on the NASDAQ Global Select Market.

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5.           Defendant Dave Schaeffer, age 58, is Chairman of the Board, Chief Executive Officer and President of the Company, positions he has held since he founded the Company in 1999.

6.           Defendant Steven D. Brooks, age 63, is and has been a member of the Cogent Board since October 2003.

7.           Defendant Timothy Weingarten, age 39, is and has been a member of the Cogent Board since October 2003.

8.           Defendant Richard T. Liebhaber, age 79, is and has been a member of the Cogent Board since March 2006.

9.           Defendant D. Blake Bath, age 52, is and has been a member of the Cogent Board since November 2006.

10.        Defendant Marc Montagner, age 53, is and has been a member of the Cogent Board since April 2010.

11.        The defendants identified in paragraphs 5 through 10 are sometimes referred to herein as the “Individual Defendants” or the “Board” and collectively with the Company are referred to as the “Defendants.”

SUBSTANTIVE ALLEGATIONS

A.          The Board Purports to Adopt Bylaws Without Statutory Authority

12.        On November 5, 2014, Cogent filed with the United States Securities and Exchange Commission (the “SEC”) a Form 8-K disclosing, among other things,

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that the Board had purportedly unilaterally amended the Company’s Bylaws. The 8-K stated, in pertinent part:

On November 3, 2014, the Board of Directors amended and restated the Bylaws of the Company, effective immediately, to provide that shareholder actions must be filed in Delaware and awards the Company attorney’s fees if it prevails and otherwise provides that each party bears its own expenses of litigation, which are new articles (sic) 62 and 63 in the Bylaws (a copy of which is filed herewith as Exhibit 3.2). The Board of Directors also approved that each new article added to the Bylaws shall be submitted separately to the stockholders for confirmation at the annual meeting. The stockholders shall be informed in the proxy that should the stockholders fail to confirm either bylaw change the board intends, absent extraordinary circumstances, to remove from the bylaws the change that was not confirmed.

13.      Attached as Exhibit 3.2 to the 8-K are “Bylaws of Cogent Communications Holdings, Inc.” A Certificate of Corporate Secretary Ried Zulager states that the bylaws were adopted by the Board “as of November 3, 2014.”

14.      Section 62 of the Bylaws (i.e., the Exclusive Forum Provision) reads as follows:

Section 62. FORUM SELECTION. Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery (the “Chancery Court”) of the State of Delaware (or, in the event that the Chancery Court does not have jurisdiction, the federal district court for the District of Delaware or other state courts of the State of Delaware) shall, to the fullest extent permitted by applicable law, be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by, or other wrongdoing by, any director, officer or employee of the Corporation

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to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim arising pursuant to any provision of the DGCL or the Corporation’s Certificate of Incorporation or these Bylaws (as either may be amended from time to time), (iv) any action to interpret, apply, enforce or determine the validity of the Corporation’s Certificate of Incorporation or these Bylaws, or (v) any action asserting a claim against the Corporation or any director, officer or employee of the Corporation governed by the internal affairs doctrine. To the fullest extent permitted by law, any person purchasing or otherwise acquiring any interest in shares of capital stock of the Corporation shall be deemed to have notice of and consented to the provisions of this Section 62. If any provision or provisions of this Section 62 shall be held to be invalid, illegal or unenforceable as applied to any person or entity or circumstance for any reason whatsoever, then, to the fullest extent permitted by law, the validity, legality and enforceability of such provisions in any other circumstance and of the remaining provisions of this Section 62 (including, without limitation, each portion of any sentence of this Section 62 containing any such provision held to be invalid, illegal or unenforceable that is not itself held to be invalid, illegal or unenforceable) and the application of such provision to other persons or entities and circumstances shall not in any way be affected or impaired thereby.

15.        Section 63 of the Bylaws, which contains both the Fee Shifting Provision and the Fee Preclusion Provision, reads as follows:

Section 63. LITIGATION COSTS.

(A) To the fullest extent permitted by law, in the event that (i) any stockholder or anyone on their behalf (“Claiming Party”) initiates or asserts any claim or counterclaim (“Claim”) or joins, offers substantial assistance to, or has a direct financial interest in any Claim against the Corporation and/or any director, officer, employee or affiliate of the Corporation (together, the “Corporation Parties”), and (ii) the Claiming Party (or the third party that received substantial assistance from the Claiming Party or in whose Claim the Claiming Party had a direct financial interest) does not obtain a judgment on the merits that substantially achieves, in substance and amount, the full remedy

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sought, then each Claiming Party shall be obligated jointly and severally to reimburse the Corporation Parties the greatest amount permitted by law of all fees, costs and expenses of every kind and description (including but not limited to, all reasonable attorney’s fees and other litigation expenses) (collectively, “Litigation Costs”) that the Corporation Parties may incur in connection with such Claim.

(B) To the fullest extent permitted by law, in the event that any Claiming Party initiates or asserts any Claim or joins, offers substantial assistance to, or has a direct financial interest in any Claim against any Corporation Parties regarding or based upon the Claiming Party’s status as a stockholder in the Corporation or a Corporation Party’s conduct or actions relating to the Corporation, then, regardless whether the Claiming Party is successful on its Claim in whole or in part, the Claiming Party will bear its own Litigation Costs, and the Claiming Party and the Claiming Party’s attorneys will not seek or recover any Litigation Costs or receive any attorney’s fees or expenses as the result of the creation of any common fund or from a corporate benefit purportedly conferred upon the Corporation.

16.        Section 64 of the Bylaws (oddly denominated under “Article 8”), refers to amendment of the Bylaws:

Section 64. AMENDMENT. These Bylaws may be altered, amended or repealed or new Bylaws may be adopted by the Board of Directors or stockholders at any annual, regular or special meeting, in accordance with the Certificate of Incorporation and any Stockholders Agreement, if notice of such alteration, amendment, repeal or adoption of new Bylaws be contained in the notice of such meeting.

17. As a Delaware corporation, Cogent is subject to the requirements of the DGCL. Under the DGCL, the directors of a Delaware corporation may adopt, amend or repeal bylaws only if such authority is provided in the certificate of incorporation.

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18.        A copy of the Cogent Certificate as filed with the Delaware Secretary of State on April 17, 2014 is attached as Exhibit A hereto. It does not authorize the Board to adopt, amend or repeal bylaws.

19.        On February 27, 2015, Cogent filed its annual report on SEC Form 10-K. Each of the Individual Defendants signed the 10-K and authorized its filing. The 10-K refers to the Company’s Certificate as Exhibit 3.1 to Form 8-K filed with the SEC on May 15, 2014 and states it is “incorporated herein by reference.” A copy of Exhibit 3.1 to Form 8-K filed on May 15, 2014 (attached hereto as Exhibit B), is substantively identical to the certificate of incorporation filed with the Delaware Secretary of State on April 17, 2014.

20.        The Cogent Certificate does not authorize the Board to adopt, amend or repeal bylaws. Therefore, under Delaware law, the Board lacks the statutory authority to amend the Company’s Bylaws. Accordingly, the Board did not have the authority to adopt the Litigation Bylaws. Thus, the Litigation Bylaws are ultra vires and void. In addition, Section 64 of the Bylaws is invalid to the extent it purports to authorize the Board to alter, amend, repeal or adopt bylaws.

B.          The Board Seeks Stockholder Approval of the Invalid Litigation Bylaws

21.        On March 19, 2015, the Company filed a Notice of Annual Meeting of Stockholders to Be Held on April 16, 2015 (the “Meeting Notice”) and definitive proxy statement (the “Proxy Statement”). The Meeting Notice states the

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Board fixed February 20, 2015 as the record date. According to the Meeting Notice, among the purposes of the meeting are the following:

3. To hold a non-binding advisory vote to approve the amendment to the Bylaws at Article 62 that stipulates that Delaware shall be the forum for shareholder litigation. If this proposal is not approved by stockholders, the board of directors has stated its intention to remove this article from the Bylaws.

4. To hold a non-binding advisory vote to approve the amendment to the Bylaws at Article 63 providing that if the Company prevails in any shareholder litigation its attorney’s fees shall be awarded to the Company and otherwise provides that each party bears its own expenses of litigation. If this proposal is not approved by stockholders, the board of directors has stated its intention to remove this article from the Bylaws.

22.        Thus, Proposal No. 3 is a non-binding advisory vote on the Exclusive Forum Provision, and Proposal No. 4 is a non-binding advisory vote on the Fee Shifting Provision and the Fee Preclusion Provision. According to the Proxy Statement: “If the stockholders fail to confirm either bylaw change the board intends, absent extraordinary circumstances, to remove from the bylaws the change that was not confirmed.”

23.        There is minimal disclosure concerning the background and reasons for the Litigation Bylaws, and even that disclosure is misleading.

24.        First, the Proxy Statement attempts to cover up the fact that the Board lacked the authority to amend the Cogent Bylaws. There is no disclosure that the

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Company’s Certificate does not authorize the Board to amend, alter or repeal bylaws.

25.        Second, the Proxy Statement is inconsistent in its descriptions of the Litigation Bylaws. The Proxy Statement unequivocally states: “On November 3, 2014, the Board of Directors amended and restated the Bylaws of the Company, effective immediately, to provide that shareholder actions must be filed in Delaware and awards the Company attorney’s fees if it prevails and otherwise provides that each party bears its own expenses of litigation, which are new sections 62 and 63 in the Bylaws.” Yet the Proxy Statement then refers to both Section 62 and Section 63 as a “Proposed Amendment”. Thus, the Proxy Statement states that the Litigation Bylaws are operative and currently effective, while at the same time indicating that they are only “proposed” amendments.

26.        Third, the disclosure concerning the background and reasons for the Fee Shifting Provision and the Fee Preclusion Provision is false, materially misleading and incomplete. The entire disclosure is limited to the following three paragraphs:

Background and Reasons for the Proposed Amendment

The Board of Directors has carefully considered the proposed bylaw amendment and concluded that requiring a stockholder who brings a stockholder claim against the Company to reimburse the Company for its Litigation Costs under certain circumstances is in the best interests of our stockholders. Shareholder claims are very costly

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and exert significant settlement pressures on a company. Even a weak stockholder claim requires a company to expend significant amounts of money to defend against or settle the claim. When a stockholder asserts a claim against the Company, the costs the Company incurs are ultimately borne by the stockholders. The adoption of this amendment would discourage stockholders from bringing frivolous claims which lack merit, resulting in an economic benefit for both the Company and its stockholders as a group.

The Board of Directors recognizes that there are potential burdens and disadvantages to stockholders in connection with the adoption of this litigation costs amendment. All stockholder lawsuits inherently involve risk, and it is impossible to confidently predict the outcome of a claim. Although the amendment aims to discourage only frivolous or abusive stockholder claims, stockholders may also be discouraged from bringing meritorious claims against the Company due to the risk of exposure to substantial attorneys’ fees.

On balance, the Board of Directors believes that the benefits to the Company and its stockholders of adopting the litigation costs amendment outweigh the potential burdens and disadvantages of adopting such amendment. The Board of Directors believes that the adoption of the litigation costs amendment is in the best interests of the Company and its stockholders.

27.        This disclosure is false, misleading and incomplete. The Proxy Statement does not disclose that the Board has no authority to adopt or amend bylaws. There is no disclosure as to what the Board “carefully considered” in purporting to adopt the Litigation Bylaws. Having gone down the path of stating the Board “carefully considered” the Litigation Bylaws, the Board must fully, fairly and accurately disclose what it considered.

28.        The Proxy Statement does not disclose that no Delaware Court has upheld a fee-shifting provision in a public, stock corporation or a non-reciprocal

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fee-shifting provision in any corporation. There is no disclosure about the Court of Chancery’s statements that fee-shifting provisions raise serious public policy issues. The Proxy Statement does not disclose that the Delaware General Assembly and the Governor have directed the Delaware State Bar Association, the Corporation Law Section and the Corporation Law Council to propose amendments to the DGCL on the issue of fee-shifting provisions and that the Council is recommending legislation that would ban the Fee Shifting Provision. There is no disclosure as to what constitutes any “extraordinary circumstances” that would cause the Board to defy a stockholder vote against the Litigation Bylaws.

29.        The disclosure is misleading because it repeatedly refers to claims “against the Company” and makes no reference to claims against the Company’s officer and directors or claims on behalf of the Company, yet the Litigation Bylaws by their terms apply to claims against the Company, claims against the Company’s officers and directors, and derivative claims.

30.        There is no disclosure as to the history or reasoning behind the Fee Preclusion Bylaw. A reasonable stockholder would want to know the origin of this provision and that it has never been approved by any court. A reasonable stockholder would want to know that Delaware law and public policy provide and endorse the ability of a stockholder to recover its attorneys’ fees and expenses in

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litigation against or on behalf of the Company under the common fund and corporate benefit doctrines. A reasonable stockholder would want to know that such a recovery can only occur if it is approved as fair and reasonable by the court. Indeed, the disclosure is materially misleading and incomplete because it ignores that the Fee Preclusion Bylaw would prevent a stockholder that brings meritorious litigation against faithless fiduciaries, including litigation that results in a recovery for the Company, from recovering its reasonable attorneys’ fees and expenses out of the common fund created by the stockholders’ efforts—not from the Company’s coffers.

31.        A reasonable stockholder would also want to know the timing and circumstances surrounding the adoption of the Litigation Bylaws. At the time the Board adopted the Litigation Bylaws, the Company’s stock price had declined by 15.59% for the year. In fact, the Board adopted the Litigation Bylaws just four days before announcing a $184,000 loss in third-quarter earnings, in contrast to the average analyst estimate of earnings of $0.04 per share. On information and belief, the Board knew of the extent of the Company’s third quarter financial results at the time they purported to adopt the Litigation Bylaws. A reasonable stockholder considering the Litigation Bylaws would want to know if this was among the facts that the Board “carefully considered”.

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32.          On information and belief, the Individual Defendants have proposed the stockholder vote on the Litigation Bylaws because they knew they had no authority to amend the Company’s Bylaws, but are using the vote as a scheme to contend that a stockholder vote in favor of the Litigation Bylaws constitutes a valid amendment of the Bylaws by the stockholders—the only persons with authority to amend the Cogent Bylaws.

CLASS ACTION ALLEGATIONS

33.          Plaintiff brings this action individually and as a class action, pursuant to Court of Chancery Rule 23, on behalf of a class consisting of any current or former stockholder of the Company from and including November 3, 2014 through the present (the “Class”). Excluded from the Class are Defendants herein and any person, firm, trust, corporation or other entity related to or affiliated with any of the Defendants.

34.          This action is properly maintainable as a class action.

35.          The Class is so numerous that joinder of all members is impracticable. According to the Proxy Statement, there were 46,391,534 shares of Cogent common stock outstanding as of February 20, 2015.

36.          There are questions of law and fact which are common to the Class including, inter alia, the following:

a. whether the Board has violated the DGCL;

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b. whether the Individual Defendants have breached their fiduciary duties;

c. whether the Litigation Bylaws are valid; and

d. whether Plaintiff and the Class are entitled to injunctive relief, damages and/or other relief.

37.          Plaintiff is committed to prosecuting this action and has retained competent counsel experienced in litigation of this nature. Plaintiff’s claims are typical of claims of the other members of the Class and Plaintiff has the same interests as the other members of the Class. All members of the Class face the same threat: the Litigation Bylaws, which are intended to, and do, prevent Class members from enforcing their rights as stockholders to bring claims on behalf of themselves and the Company. Accordingly, Plaintiff is an adequate representative of the Class and will fairly and adequately protect the interests of the Class.

38.          The prosecution of separate actions by individual members of the Class would create the risk of inconsistent or varying adjudications with respect to individual members of the Class that would establish incompatible standards of conduct for Defendants, or adjudications with respect to individual members of the Class that would as a practical matter be dispositive of the interests of the other members not party to the adjudications or substantially impair or impede their ability to protect their interests.

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39.          Defendants have acted, or refused to act, on grounds generally applicable to, and causing injury to, the Class and, therefore, preliminary and final injunctive and other equitable relief on behalf of the Class, as a whole, is appropriate.

40.          To the extent any of the claims are deemed to be derivative, demand is excused. Each of the Individual Defendants voted to adopt the Litigation Bylaws without authority to adopt, amend or repeal the Bylaws. Thus, their actions were ultra vires and not the product of a valid business judgment. In addition, each of the Individual Defendants is personally interested in the Litigation Bylaws, which were adopted to insulate them from any stockholder litigation.

COUNT I

VIOLATION OF THE DGCL AND COGENT CERTIFICATE

41.          Plaintiff repeats and realleges the preceding paragraphs as if fully set forth herein.

42.          Under DGCL §109, a Board of directors may not adopt, amend or repeal bylaws unless expressly authorized under the certificate of incorporation.

43.          Cogent’s Certificate does not authorize the Board to adopt, amend or repeal bylaws.

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44.          The Board purported to amend the Bylaws by adopting the Litigation Bylaws in November 2014 but lacked the authority to do so under the DGCL and the Cogent Certificate. Accordingly the Litigation Bylaws are ultra vires and void.

45.          Section 64 of the Cogent Bylaws purports to authorize the Board to alter, amend or repeal bylaws. Under Delaware law, the authority to alter, amend or repeal bylaws can only be conferred under the certificate of incorporation. Under DGCL §109(b), the bylaws may contain any provision not inconsistent with law or with the certificate of incorporation. Section 64 of the Cogent Bylaws is inconsistent with law and the Certificate. Accordingly, Section 64 is invalid to the extent it purports to authorize the Board to adopt, amend or repeal bylaws.

46.          Plaintiff has no adequate remedy at law.

COUNT II

BREACH OF FIDUCIARY DUTY

47.          Plaintiff repeats and realleges the preceding paragraphs as if fully set forth herein.

48.          As directors, the Individual Defendants owe the duties of loyalty and care to Plaintiff, the Cogent stockholders and the Company. As part of those duties, the Individual Defendants are required to be truthful in their disclosure to the Company and must disclose all material information reasonably available when seeking stockholder action.

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49.          By adopting the Litigation Bylaws, the Individual Defendants breached their fiduciary duties to Plaintiff, the Class and the Company. Adoption of bylaws without statutory authority is a breach of fiduciary duty.

50.          The Individual Defendants knew and are as a matter of law deemed to know the contents of the Cogent Certificate. The Individual Defendants knew that the Cogent Certificate did not authorize them to adopt, amend or repeal bylaws. Yet despite that lack of authority, the Individual Defendants purported to adopt the Litigation Bylaws for the purpose of insulating themselves from any threat of litigation or challenge to their authority by the stockholders.

51.          Despite their lack of authority to adopt the Litigation Bylaws, the Individual Defendants are attempting to use the stockholder vote on Proposals 3 and 4 at the Annual Meeting to improperly convert their ultra vires acts into a valid stockholder-approved bylaw amendment. Defendants are doing so through false and materially misleading and incomplete disclosure about the Litigation Bylaws and the Board’s lack of authority to adopt them. The Individual Defendants are intentionally and fraudulently attempting to obtain stockholder approval for bylaw amendments that the Board had no power to adopt.

52.          By purporting to adopt the invalid Litigation Bylaws, the Individual Defendants, and those acting in concert with them, have caused the Company to waste corporate resources on, among other things, legal fees and filing fees, and

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therefore the Company has been damaged as a direct and proximate result of the Individual Defendants’ breaches of fiduciary duties.

COUNT III

THE FEE SHIFTING PROVISION AND FEE PRECLUSION PROVISION
ARE UNREASONABLE AND VIOLATE THE LAWS, PUBLIC POLICY
AND RULES GOVERNING STOCKHOLDER LITIGATION

53.          Plaintiff repeats and realleges the preceding paragraphs as if fully set forth herein.

54.          Under 8 Del. C. § 109(b), Cogent’s Bylaws “may contain any provision, not inconsistent with law.” Under the circumstances of this case, the Litigation Bylaws collectively, and the Fee Shifting Provision and Fee Preclusion Provision individually, are inconsistent with the public policy, statutes, rules and common law of Delaware that govern representative actions, e.g., class actions and derivative actions.

55.          In general, stockholders have three basic rights: sell their shares, vote their shares or sue. The Litigation Bylaws collectively, and the Fee Shifting Provision and Fee Preclusion Provision individually, effectively eliminate the stockholders’ right to sue. As a result, the Litigation Bylaws insulate the Board members from any challenge to or judicial review of their actions as fiduciaries.

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Inconsistency with Requirement of an

Adequate Representative Plaintiff

56.          A stockholder may not serve as a representative plaintiff in a class or derivative action if he has an interest that conflicts with the interests of other stockholders or is not shared by the other stockholders. The Fee Shifting Provision imposes on any stockholder who initiates, asserts, maintains or continues any representative action involving the internal affairs of the Company obligations to pay expenses that other stockholders do not share. The Fee Shifting Provision would therefore render any stockholder who initiates any claim or counterclaim an inadequate representative plaintiff because any stockholder plaintiff’s interests necessarily differ from the interests of all other stockholders, as only the plaintiff would be subject to liability under the Fee Shifting Provision. Indeed, for the overwhelming majority of stockholders, even those who have substantial investments in the Company, the plaintiff’s interest in avoiding the expense imposed by the Fee Shifting Provision would greatly exceed the stockholder’s interest in any class action or derivative settlement or judgment. This is certainly true of Plaintiff, which would be subject to potentially debilitating financial liability by serving as the named plaintiff in this action, which seeks only declaratory and equitable relief and monetary relief solely for the Company. When combined with the Fee Preclusion Provision, there is no prospect that any rational stockholder or contingent fee lawyer would bring any claim of any kind.

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Therefore, the Fee Shifting Provision conflicts with Delaware law permitting class and derivative actions by making it impossible for Plaintiff to serve as an adequate representative plaintiff in this action and any stockholder to serve as an adequate representative plaintiff in any representative action.

Inconsistency with Law, Rules and Policy
on Settlements of Representative Actions

57.          Delaware public policy and case law encourages settlement of claims, particularly in complex representative actions such as class and derivative actions. The Fee Shifting Provision is inconsistent with that policy and common law. The Fee Shifting Provision provides that any stockholder who initiates, asserts, maintains or continues any action involving the internal affairs of the Company, including Plaintiff in this action, can only avoid the obligation to pay all Defendants’ costs by obtaining a judgment on the merits, not through a settlement. Moreover, a settlement will never (or virtually never) provide for, in substance and amount, substantially the full remedy sought in the action because the purpose of a settlement is compromise to avoid a determination on the merits. Indeed, the reason defendants settle is to resolve the claims without providing most of the relief, in substance and amount, that the stockholder has sought in the action. Thus, the Fee Shifting Provision makes it financially irrational for any stockholder plaintiff in any action subject to the Fee Shifting Provision, to settle his claims because a settlement would render him liable under the Fee Shifting Provision.

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58.          Any settlement that included a provision for Defendants to release Plaintiff with respect to claims under the Fee Shifting Provision would inherently raise the spectre that Plaintiff agreed to less relief for the Class in exchange for a release of liability for Defendants’ expenses.

The Fee Shifting Provision Is Invalid and Unenforceable Because

It Is Inconsistent With Delaware Law Governing Several Provisions of the DGCL

59.          Stockholders of Delaware corporations have several statutory rights under the DGCL. Stockholders have a statutory right to inspect the books and records of the corporation pursuant to 8 Del. C. § 220. If a corporation refuses to produce such documents for inspection, stockholders may enforce this statutory right by bringing an action to compel production thereof pursuant to 8 Del. C. § 220.

60.          Stockholders have the right under Section 211 to seek the Court to compel an annual meeting of stockholders if the corporation has not held a meeting within the times proscribed in the statute. If the stockholder has asserted a valid claim, the court has the discretion to compel an annual meeting. Thus, a stockholder can state a presumptively valid claim yet still not prevail because the court may not exercise its discretion in favor of compelling a meeting.

61.          Stockholders have a right under DGCL Sections 225 and 227 for review of the validity of any election of directors and the right to vote.

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62.          Stockholders have the right to seek a judicial appraisal of their shares under Section 262.

63.          The Fee Shifting Provision alters and eliminates the stockholders’ statutory rights because it applies to “any stockholder [that] initiates or asserts any claim . . . against the Corporation,” which by definition includes a claim under 8 Del. C. § 220, 211, 225, 227, 262 and other statutory provisions. The Fee Shifting Provision effectively prevents Plaintiff and any other stockholder from bringing statutory claims, as is their right as stockholders of Cogent, because any stockholder bringing such an action would be subject to potentially crippling financial liability under the Fee Shifting Provision, which would be financially irrational. The Fee Shifting Provision purports to impose fee-shifting requirements upon Plaintiff and any other stockholder seeking to these statutory rights despite the absence of any such requirements in the statute. Accordingly, the Fee Shifting Provision is inconsistent with the DGCL.

Inconsistency with Delaware’s Public Policy, Statute, Rules
and Common Law on Initiating and Maintaining a Derivative Action

64.          The right of a stockholder to initiate and maintain a derivative action is an equitable right that was judicially created and developed and is regulated by statute, court rule and common law. Delaware has a public policy to ensure its courts are available to stockholders to bring derivative actions without prohibitive cost or risk in order to prevent a failure of justice. Delaware public policy regards

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the right to maintain a derivative action as a necessary means for invoking judicial power to curb managerial abuse.

65.          Under 8 Del. C. § 327, Court of Chancery Rule 23.1 and Delaware case law, Delaware law establishes the requirements for maintaining a derivative action, including (i) making a demand or showing demand would be futile, (ii) having been a stockholder at the time of the challenged transaction, (iii) remaining a stockholder through the time of the filing of the suit and (iv) remaining a stockholder throughout the litigation.

66.          The Fee Shifting Provision is inconsistent with Delaware’s public policy and the equitable right of Plaintiff as a Cogent stockholder to initiate and maintain claims in a derivative action. It imposes on stockholders, including Plaintiff, obligations and requirements to initiate and maintain a derivative action that go beyond those established by Delaware law, and thereby alters the balance created by the statutory, judicial and common law rules that govern such an action. Specifically, the Fee Shifting Provision requires that to initiate a derivative action, stockholders must take on the financial liability to reimburse “the greatest amount permitted by law of all fees, costs and expenses of every kind and description … that the [Corporation and any director, officer, employee or affiliate of the Corporation] may incur.” Stockholder plaintiffs can avoid liability only by obtaining “a judgment on the merits that substantially achieves, in substance and

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amount, the full remedy sought.” In essence, the Fee Shifting Provision requires that to initiate derivative claims, plaintiffs must guarantee that they will litigate the case through judgment and will succeed almost completely on the merits in obtaining all the remedies sought. The Fee Shifting Provision’s stringent success standard will prevent stockholders, including Plaintiff, from bringing or maintaining derivative claims. In short, the Fee Shifting Provision is inconsistent with Delaware law, which allows stockholders to pursue derivative claims and remedies on behalf of the corporation, because the Fee Shifting Provision imposes additional and financially untenable restrictions on stockholders’ judicially created equitable right to initiate and maintain a derivative action.

67.          The public policy of Delaware includes providing an incentive to stockholders to bring representative litigation either derivatively to enforce the rights of the corporation or on behalf of a stockholder class. The awarding of attorneys’ fees to stockholder plaintiffs is intended to advance the public policy of providing incentive for one or more stockholders of a corporation to bring a class action or derivative suit to enforce the rights of the class or the corporation as a whole under circumstances in which filing suit to enforce only their individual rights would be prohibitively costly or otherwise impracticable, thereby leaving unchallenged actionable wrongs against the class or the corporation.

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68.          The Fee Preclusion Provision is purposefully designed to discourage stockholders from bringing representative litigation. No rational stockholder and no rational plaintiff’s lawyer would ever bring stockholder representative litigation to vindicate the rights of stockholders or the Company where there is no ability to recover attorneys’ fees and expenses. As a result, the Fee Preclusion Provision prevents Plaintiff and the Cogent stockholders from enforcing the rights of the Company or its stockholders. Accordingly, the Fee Preclusion Provision is contrary to Delaware public policy and is void.

The Fee Shifting Provision Is Invalid and Unenforceable Because

It Is Inconsistent with Delaware Law on

Limited Liability of Stockholders

69.          DGCL § 102(b)(6) permits a corporation’s certificate of incorporation to contain:

A provision imposing personal liability for the debts of the corporation on its stockholders to a specified extent and upon specified conditions; otherwise, the stockholders of a corporation shall not be personally liable for the payment of the corporation’s debts except as they may be liable by reason of their own conduct or acts.

70.          The Cogent Certificate does not contain any provision imposing on its stockholders personal liability for debts of the corporation. Under 8 Del. C. § 242, to place such a provision in the certificate would require approval by both the Board and the Cogent stockholders. A bylaw cannot impose liability on the stockholders.

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71.          The Fee Shifting Provision is inconsistent with § 102(b)(6), Cogent’s Certificate and Delaware’s law and policy on limited liability of stockholders. It purports to impose personal liability on Plaintiff for Company debts to a specified amount (“all fees, costs and expenses of every kind and description”) and upon specified conditions (initiating any claim or counterclaim and failing to obtain a judgment on the merits that substantially achieves complete relief in substance and amount).

The Fee Shifting Provision Is Invalid and Unenforceable Because It

Is Inconsistent with Delaware Law on Indemnification

72.          Under 8 Del. C. § 145(b), a director or officer can only be indemnified “against expenses (including attorneys’ fees) actually and reasonably incurred … in connection with the defense or settlement” of an action. In addition, the director or officer must have “acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation.” However, “no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent” that the Court “shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which [the Court] shall deem proper.” Under 8 Del. C. § 145(c) indemnification of

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directors or officers is required for expenses actually and reasonably incurred “[t]o the extent” the director or officer “has been successful on the merits or otherwise.”

73.          The Fee Shifting Provision provides indemnification rights for directors and officers against Plaintiff that exceed the indemnification permitted by 8 Del. C. § 145 and Article 6 of the Company’s Certificate, which only authorizes indemnification to the extent permitted by § 145 of the DGCL. The Fee Shifting Provision provides for indemnification of all fees and expenses of directors and officers, even if those directors and officers are adjudged liable on claims in this action, provided the Plaintiff does not obtain a judgment on the merits that substantially achieves, in substance and amount, the full remedy sought. The Fee Shifting Provision violates § 145(b), which does not permit indemnification as to any claim, issue or matter where the directors are adjudged liable to the corporation absent findings of several varieties by the Court.

74.          The Fee Shifting Provision requires Plaintiff to reimburse “all fees, costs, and expenses of every kind and description (including, but not limited to, all reasonable attorney’s fees and other litigation expenses).” However, indemnification under § 145(b) is limited to actual and reasonable litigation expenses, including attorneys’ fees, and does not include all costs of every kind and description. The Fee Shifting Provision is also inconsistent with § 145(c), which entitles directors and officers to indemnification only to the extent they have

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been successful on the merits or otherwise. Instead, the Fee Shifting Provision entitles Defendants to have Plaintiff pay all their fees and expenses on all claims, including claims on which they were not successful, if Plaintiff does not obtain a judgment on the merits for the full remedy sought.

The Litigation Bylaws Are Invalid and Unenforceable Because

They Are Not Entirely Fair, Reasonable or Equitable

75.          Defendants stand on both sides of the transaction with respect to the Litigation Bylaws because they purportedly unilaterally enacted the Litigation Bylaws, which conferred on them the right to have Plaintiff reimburse all of their expenses related to this action. Because the directors are not disinterested and independent with respect to the Litigation Bylaws, they have the burden of showing under strict judicial scrutiny the entire fairness thereof.

76.          The structure of the Fee Shifting Provision represents unfair dealing. It is one-sided and non-reciprocal. Defendants gave themselves a right to reimbursement unless stockholder plaintiffs, including Plaintiff in this action, achieve a nearly impossibly high degree of success. Yet there is no obligation for the directors to pay the expenses of Plaintiff, even if Plaintiff obtains all of the relief requested. To the contrary, the Fee Preclusion Provision prevents Plaintiff from recovering any attorneys’ fees and expenses, even if Plaintiff prevails on each and every claim and creates a common fund or other corporate benefit. The Fee Shifting Provision was structured to threaten liability for any stockholder or other

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person who joins the litigation, offers substantial assistance to the Plaintiff or has a financial interest in any Claim. It was written so that Defendants’ reimbursement right against Plaintiff includes not just “all reasonable attorneys’ fees and other litigation expenses,” but “all fees, costs and expenses of every kind and description.”

77.        The Fee Shifting Provision and Fee Preclusion Provision are also unfair financially. The Fee Shifting Provision is one-sided and non-reciprocal. It renders any attempt by Plaintiff to enforce its right to bring this action prohibitively risky. The Fee Shifting Provision imposes liability on Plaintiff for “all fees, costs, and expenses of every kind and description,” including with respect to aspects of the case where it is successful. Even where Plaintiff is successful, the Fee Preclusion Provision eliminates any ability of a stockholder to recover its attorneys’ fees.

78.        To be valid, bylaws must be reasonable in their contents, application and effect. As the discussion above shows, the Litigation Bylaws are not reasonable. It is not the “English Rule” because it is not reciprocal. It is not “loser pays” because Defendants do not pay if they lose, and the Plaintiff has to pay even if it wins. If Plaintiff prevails in a significant way but does not “obtain a judgment on the merits that substantially achieves, in substance and amount, the full remedy sought,” it is liable for all Defendants’ expenses. Even if Plaintiff prevails, it

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cannot recover its fees and expenses from a common fund or on the basis of a corporate benefit shared by the Company and/or the stockholders.

79.          The scope of the Litigation Bylaws is also unreasonable. It was structured to put stockholders at financial risk for exercising their basic rights under the DGCL, such as the right to bring an action to compel an annual meeting (§ 211(c)), to obtain books and records (§ 220), to seek review of an election or vote (§§ 225 and 227) or to seek appraisal (§262). Indeed, the Fee Shifting Provision extends the liability threat to every form of litigation a stockholder could bring, including any derivative action, any fiduciary duty claim, any federal securities claim and any other claim. The Fee Shifting Provision by its terms renders Plaintiff liable for “all fees, costs, and expenses of every kind and description,” including those incurred on claims or issues on which Plaintiff prevails. The Litigation Bylaws’ effect is to make it economically irrational for Plaintiff to exercise its rights or challenge corporate conduct.

WHEREFORE, Plaintiff demands judgment as follows:

A.            Declaring the Litigation Bylaws void, invalid and inapplicable and unenforceable;

B.            Preliminarily enjoining the 2015 annual meeting of stockholders;

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C.            Declaring the Individual Defendants breached their fiduciaryduties;

D.            Awarding damages to the Company for all amounts expended concerning the Litigation Bylaws;

E.            Awarding Plaintiff the costs and disbursements of the action, including reasonable attorneys’ fees, costs, and expenses; and

F.             Granting such other and further relief as the Court deems just and proper.

	PRICKETT, JONES & ELLIOTT, P.A.
OF COUNSEL:	By:	Paul A. Fioravanti, Jr.
		Michael Hanrahan (#941)
KESSLER TOPAZ		Paul A. Fioravanti, Jr. (#3808)
MELTZER & CHECK, LLP		John G. Day (#6023)
Marc A. Topaz		1310 N. King Street
Lee D. Rudy		Wilmington, Delaware 19801
Eric L. Zagar		(302) 888-6500
Kristen L. Ross
280 King of Prussia Road	Attorneys for Plaintiff City of Sunrise
Radnor, Pennsylvania 19087	Firefighters’ Retirement Fund
(610) 667-7706
Date: March 27, 2015

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