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Item 9A. Controls and Procedures

2021-02-26 compared with 2020-02-28 · 41 added, 39 removed, 165 unchanged (33% of the section changed)

CONTROLS AND PROCEDURES

We maintain disclosure controls and procedures that are designed to ensure that information required to be disclosed in our reports under the Securities Exchange Act of 1934, as amended, is recorded, processed, summarized and reported within the time periods specified in the Securities and Exchange Commission’s rules and forms, and that such information is accumulated and communicated to our management, including our Chief Executive Officer and Chief Financial Officer, as appropriate, to allow timely decisions regarding required disclosure.

We maintain disclosure controls and procedures that are designed to ensure that information required to be disclosed in our reports under the Exchange Act, is recorded, processed, summarized and reported within the time periods specified in the Securities and Exchange Commission’s rules and forms, and that such information is accumulated and communicated to our management, including our Chief Executive Officer and Chief Financial Officer, as appropriate, to allow timely decisions regarding required disclosure.

In designing and evaluating the disclosure controls and procedures, management recognized that any controls and procedures, no matter how well designed and operated, can provide only reasonable assurance of achieving the desired control objectives, and management necessarily was required to apply its judgment in evaluating the cost-benefit relationship of possible controls and procedures.

As required by SEC Rule 13a-15(b), an evaluation was performed under the supervision and with the participation of our management, including our principal executive officer and our principal financial officer, of the effectiveness of the design and operation of our disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) under the Securities Exchange Act of 1934) as of the end of the period covered by this report.

As required by SEC Rule 13a-15(b), an evaluation was performed under the supervision and with the participation of our management, including our principal executive officer and our principal financial officer, of the effectiveness of the design and operation of our disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) under Exchange Act) as of the end of the period covered by this report.

Based upon that evaluation, our management, including our principal executive officer and our principal financial officer, concluded that the design and operation of these disclosure controls and procedures were effective at the reasonable assurance level.

56 unchanged sentences

EXECUTIVE COMPENSATION

The information required by this Item 11 is incorporated in this report by reference to the information set forth under the captions entitled “The Board of Directors and Committees,” “Compensation Discussion and Analysis “Employment Agreements and Other Potential Post-Employment Compensation Arrangements”, “Compensation Committee Report on Executive Compensation,” and “Compensation Committee Interlocks and Insider Participation” in our 2020 Proxy Statement.

The information required by this Item 11 is incorporated in this report by reference to the information set forth under the captions entitled “The Board of Directors and Committees,” “Compensation Discussion and Analysis,” “Employment Agreements and Potential Post-Employment Compensation Arrangements,” “Compensation Committee Report” and “Compensation Committee Interlocks and Insider Participation” in our 2021 Proxy Statement.

SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS

The information required by this Item 12 is incorporated in this report by reference to the information set forth under the caption “Security Ownership of Certain Beneficial Owners and Management” and “Securities Authorized for Issuance Under Equity Compensation Plans” in our 2020 Proxy Statement.

CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS AND DIRECTOR INDEPENDENCE

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The information required by this Item 14 is incorporated in this report by reference to the information set forth under the caption “Relationship With Independent Registered Public Accountants” in our 2021 Proxy Statement.

EXHIBITS, FINANCIAL STATEMENT SCHEDULES

EXHIBIT AND FINANCIAL STATEMENT SCHEDULES

Financial Statements.

21 unchanged sentences

Form of 4.375% Senior Notes due 2024 (previously filed as Exhibit A to the Exhibit 4.1 to our Current Report on Form 8-K, filed on June 25, 2019, and incorporated herein by reference).

Description of Securities Registered under Section 12 of the Securities Exchange Act of 1934 (filed herewith)

First Supplemental Indenture to the Base Indenture, dated as of June 10, 2020, among Cogent Communications Group, Inc., the guarantors named therein and Wilmington Trust, National Association, as trustee (previously filed as Exhibit 4.4 to our Current Report on Form 8-K, filed on June 10, 2020, and incorporated herein by reference).

Indenture related to the 4.375% Senior Notes due 2024, dated as of June 3, 2020, among Cogent

Communications Finance, Inc., Wilmington Trust, National Association, as trustee, Deutsche Bank AG,

London Branch, as paying agent, and Deutsche Bank Trust Company Americas, as authentication agent

and registrar (previously filed as Exhibit 4.1 to our Current Report on Form 8-K, filed on June 9, 2020,

and incorporated herein by reference).

Form of 4.375% Senior Notes due 2024 (previously filed as Exhibit A to the Exhibit 4.1 to our Current

Report on Form 8-K, filed on June 9, 2020, and incorporated herein by reference).

First Supplemental Indenture to the Temporary Indenture, dated as of June 10, 2020, between Cogent

Communications Group, Inc.

and Wilmington Trust, National Association, as trustee (previously filed as

Exhibit 4.1 to our Current Report on Form 8-K, filed on June 10, 2020, and incorporated herein by

Description of Securities Registered under Section 12 of the Securities Exchange Act of 1934 (previously

filed as Exhibit 4.10 to our Annual Report on Form 10-K for the year ended December 31, 2019, filed on

February 28, 2020, and incorporated herein by reference).

Dark Fiber IRU Agreement, dated April 14, 2000, between WilTel Communications, Inc.

and Cogent Communications, Inc., as amended June 27, 2000, December 11, 2000, January 26, 2001, and February 21, 2001 (incorporated by reference to Exhibit 10.2 to our Registration Statement on Form S-4, Commission File No.

333-71684, filed on October 16, 2001)*

David Schaeffer Employment Agreement with Cogent Communications Group, Inc., dated February 7, 2000 (incorporated by reference to Exhibit 10.6 to our Registration Statement on Form S-4, Commission File No.

333-71684, filed on October 16, 2001)

Employment Agreement with Cogent Communications Group, Inc., dated June 15, 2000 (incorporated by reference to Exhibit 10.20 to our Annual Report on Form 10-K, filed on March 31, 2003).

and Cogent Communications, Inc., as amended June 27, 2000, December 11, 2000, January 26, 2001, and February 21, 2001 (previously filed as Exhibit 10.2 to our Registration Statement on Form S-4, Commission File No.

333-71684, filed on October 16, 2001, and incorporated herein by reference).*

David Schaeffer Employment Agreement with Cogent Communications Group, Inc., dated February 7, 2000 (previously filed as Exhibit 10.6 to our Registration Statement on Form S-4, Commission File No.

333-71684, filed on October 16, 2001, and incorporated herein by reference) .

O’Neill Employment Agreement with Cogent Communications Group, Inc., dated as of September 25, 2003 (previously filed as Exhibit 10.29 to our Annual Report on Form 10-K, filed on February 27, 2012, and incorporated herein by reference).

Brad Kummer Employment Agreement with Cogent Communications Group, Inc., dated January 11, 2000, (incorporated by reference to Exhibit 10.23 to our Registration Statement on Form S-1, Commission File No.

333-122821, filed on February 14, 2005).

Brad Kummer Employment Agreement with Cogent Communications Group, Inc., dated January 11, 2000, (previously filed as Exhibit 10.23 to our Registration Statement on Form S-1, Commission File No.

333-122821, filed on February 14, 2005, and incorporated herein by reference).

David Schaeffer Amendment No.

2 to Employment Agreement with Cogent Communications Group, Inc., dated as of March 12, 2007 (previously filed as Exhibit 10.26 to our Annual Report on Form 10-K, filed on March 14, 2007, and incorporated herein by reference).

Employment Agreement with Cogent Communications Group, Inc., dated as of March 12, 2007 (previously filed as Exhibit 10.27 to our Annual Report on Form 10-K, filed on March 14, 2007, and incorporated herein by reference).

Weed Employment Agreements, dated September 25, 2003 through October 26, 2006 (previously filed as Exhibit 10.28 to our Annual Report on Form 10-K, filed on March 14, 2007, and incorporated herein by reference).

12 unchanged sentences

6 to Employment Agreement of Dave Schaeffer, dated August 6, 2014 (previously filed as Exhibit 10.4 to our Quarterly Report on Form 10-Q, filed on August 7, 2014, and incorporated herein by reference).

Restricted Stock Award to Mr.

Schaeffer dated August 6, 2014—monthly vest (previously filed as Exhibit 10.5 to our Quarterly Report on Form 10-Q, filed on August 7, 2014, and incorporated herein by reference).

Restricted Stock Award to Mr.

Schaeffer dated August 6, 2014—cliff vest (previously filed as Exhibit 10.6 to our Quarterly Report on Form 10-Q, filed on August 7, 2014, and incorporated herein by reference).

Restricted Stock Award, dated as of November 3, 2014, between the Company and Thaddeus (“Tad”) Weed (previously filed Exhibit 10.1 to our Current Report on Form 8-K, filed on November 5, 2014, and incorporated herein by reference).

Restricted Stock Award, dated as of November 3, 2014, between the Company and Robert Beury (previously filed Exhibit 10.3 to our Current Report on Form 8-K, filed on November 5, 2014, and incorporated herein by reference).

Restricted Stock Award, dated as of November 3, 2014, between the Company and Timothy O’Neill (previously filed Exhibit 10.4 to our Current Report on Form 8-K, filed on November 5, 2014, and incorporated herein by reference).

Restricted Stock Award to James Bubeck dated September 28, 2015 (previously filed Exhibit 10.1 to our Current Report on Form 8-K, filed on October 1, 2015, and incorporated herein by reference).

Restricted Stock Award to James Bubeck dated December 1, 2014 (previously filed Exhibit 10.2 to our Current Report on Form 8-K, filed on October 1, 2015, and incorporated herein by reference).

Restricted Stock Award, dated as of May 4, 2016, between the Company and David Schaeffer (previously filed Exhibit 10.1 to our Current Report on Form 8-K, filed on May 5, 2016, and incorporated herein by reference).

Form of Restricted Stock Award, dated as of May 4, 2016, between the Company and the Vice President named executive officers (previously filed Exhibit 10.2 to our Current Report on Form 8-K, filed on May 5, 2016, and incorporated herein by reference).

Lease Agreement, dated April 16, 2015, between Sodium LLC and Cogent Communications, Inc.

(previously filed Exhibit 10.1 to our Current Report on Form 8-K, filed on April 17, 2015, and incorporated herein by reference).

Restricted Stock Award, dated as of May 3, 2017, between the Company and David Schaeffer (previously filed Exhibit 10.1 to our Current Report on Form 8-K, filed on May 3, 2017, and incorporated herein by reference).

Form of Restricted Stock Award, dated as of May 3, 2017, between the Company and the Vice President named executive officers (previously filed Exhibit 10.2 to our Current Report on Form 8-K, filed on May 3, 2017, and incorporated herein by reference).

(previously filed as Exhibit 10.1 to our Current Report on Form 8-K, filed on April 17, 2015, and incorporated herein by reference).

First Amendment to Lease Agreement, dated February 28, 2020, between Sodium LLC and Cogent Communications, Inc.

(previously filed as Exhibit 10.2 to our Current Report on Form 8-K, filed on March 2, 2020, and incorporated herein by reference).

Restricted Stock Award, dated as of May 3, 2017, between the Company and David Schaeffer (previously filed as Exhibit 10.1 to our Current Report on Form 8-K, filed on May 3, 2017, and incorporated herein by reference).

Form of Restricted Stock Award, dated as of May 3, 2017, between the Company and the Vice President named executive officers (previously filed as Exhibit 10.2 to our Current Report on Form 8-K, filed on May 3, 2017, and incorporated herein by reference).

Amendment No.

7 to Employment Agreement of David Schaeffer, dated November 17, 2017 (previously filed Exhibit 10.1 to our Current Report on Form 8-K, filed on November 20, 2017, and incorporated herein by reference).

7 to Employment Agreement of David Schaeffer, dated November 17, 2017 (previously filed as Exhibit 10.1 to our Current Report on Form 8-K, filed on November 20, 2017, and incorporated herein by reference).

Cogent Communications Holdings, Inc.

2017 Incentive Award Plan (incorporated by reference to Appendix A to the Company’s Definitive Proxy Statement on Schedule 14A filed March 15, 2019).

2017 Incentive Award Plan (previously filed as Appendix A to the Company’s Definitive Proxy Statement on Schedule 14A filed March 15, 2019, and incorporated herein by reference).

First Amendment to Cogent Communications Holdings, Inc.

2017 Incentive Award Plan (incorporated by reference to Appendix B of the Company’s Definitive Proxy Statement on Schedule 14A filed March 15, 2019).

2018 Incentive Award Plan (previously filed as Appendix B of the Company’s Definitive Proxy Statement on Schedule 14A filed March 15, 2019, and incorporated herein by reference).

Amendment No.

1 unchanged sentence

Restricted Stock Award, dated as of February 14, 2020, between the Company and David Schaeffer (previously filed as Exhibit 10.2 to our Current Report on Form 8-K, filed on February 19, 2020, and incorporated herein by reference).

Employment Letter between the Company and Sean Wallace, effective April 22, 2020 (previously filed as Exhibit 10.1 to our Current Report on Form 8-K, filed on May 11, 2020, and incorporated herein by reference).

Restricted Stock Award, dated May 11, 2020, between the Company and Sean Wallace (previously filed as Exhibit 10.2 to our Current Report on Form 8-K, filed on May 11, 2020, and incorporated herein by reference).

Severance Agreement, dated May 11, 2020, between the Company and Sean Wallace (previously filed as Exhibit 10.3 to our Current Report on Form 8-K, filed on May 11, 2020, and incorporated herein by reference).

Subsidiaries (filed herewith)

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(in thousands )

Allowance for doubtful service accounts receivable (deducted from accounts receivable)(a)

Year ended December 31, 2017

Year ended December 31, 2018

Year ended December 31, 2019

Deferred tax valuation allowance

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Year ended December 31, 2020

(a) Bad debt expense, net of recoveries, was approximately $ 4.1 million for the year ended December 31, 2019, $ 3.3 million for the year ended December 31, 2018 and $ 3.7 million for the year ended December 31, 2017.

FORM 10-K SUMMARY

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February 26, 2021

/s/ T HADDEUS G.

Weed Chief Financial Officer (Principal

Financial and Accounting Officer)

/s/ SEAN WALLACE

Vice President, Chief Financial Officer and

(Principal Financial and Principal

Accounting Officer)

February 26, 2021

17 unchanged sentences

Compared sentence by sentence after normalising whitespace, quotation marks, case and digits, so re-formatting and restated figures do not read as changed language. Wording changes appear as one removal and one addition. The current filing and the prior one are authoritative.

What changed 10-K

Item 9A. Controls and Procedures