EXHIBIT 10.4
FOURTH AMENDED AND RESTATED
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RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT
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This Fourth Amended and Restated Right of First Refusal and Co-Sale
Agreement (the "Agreement") is made and entered into as of March 22, 1999 by and
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among ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Malaga
and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (collectively, the "Founders" and individually, a
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"Founder"), NorthPoint Communications Holdings, Inc., a Delaware corporation
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(the "Company"), NorthPoint Communications, Inc., a Delaware corporation (the
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"NCI"), the holders of a majority of the Series B Preferred Stock of the Company
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(the "Series B Investors"), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc. ("▇▇▇▇▇▇
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▇▇▇▇▇▇▇") and the holders of 66-2/3% of the Series C Preferred Stock of the
Company (the "Series C Investors" and collectively with the Series B Investors,
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and the holders of warrants to initially purchase 1,085,714 and
2/7 shares of Common Stock of the Company issued to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ in connection
with a letter agreement dated May 20, 1998 and in connection with the Senior
Increasing Rate Notes of the Company and any other warrants that may hereafter
be issued in connection with the Senior Increasing Rate Notes of the Company
(collectively, the "Warrants"), the "Investors" and individually, an
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"Investor").
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RECITALS
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WHEREAS, the Company, the Founders, the Series B Investors, the Series C
Investors and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ entered into a Third Amended and Restated Right of
First Refusal and Co-Sale Agreement dated as of February 19, 1999 (the "Prior
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Agreement"); and
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WHEREAS, NCI has consummated a reorganization (the "Reorganization")
pursuant to which NorthPoint became a wholly owned subsidiary of the Company.
The Reorganization was effected by a merger between NCI and another Delaware
corporation formed solely for this purpose, which was a wholly owned subsidiary
of the Company, with NCI as the surviving corporation of such merger. As a
result of the Reorganization, each of the holders of capital stock of NCI
immediately prior to the consummation of the Reorganization became the only
holders of capital stock of the Company immediately after the consummation of
the Reorganization, each holding the same number of shares of capital stock of
the same class of the Company with the same rights, privileges, terms and
conditions as the shares of capital stock of NCI held by such holders
immediately prior to the consummation of the Reorganization. The Company owns
all of the capital stock of NCI and has no other significant assets. The
Company, NCI, the Prior Holders and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ each desire amend and restate
the Prior Agreement as set forth herein to reflect the Reorganization.
AGREEMENT
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The parties hereby agree as follows:
1. SALES BY FOUNDERS.
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(a) NOTICE OF SALES; ASSIGNMENT OF COMPANY RIGHT OF FIRST REFUSAL.
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(i) After the date of this Agreement, should any Founder propose to
accept one or more bona fide offers (collectively, a "Purchase Offer") from any
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person to purchase shares of the Company's Common Stock (the "Shares") from such
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Founder (other than as set forth in subsection 1(e) hereof), such Founder shall
promptly deliver a notice (the "Notice") to the Company and each Investor
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stating the terms and conditions of such Purchase Offer including, without
limitation, the number of Shares to be sold or transferred, the nature of such
sale or transfer, the consideration to be paid, and the name and address of each
prospective purchaser or transferee and, in addition, a subsequent Notice in the
event there has been any material change to any of the foregoing information.
In the event that the sale or transfer is being made pursuant to the provisions
of subsection (e) hereof, the Notice shall state the exception under which such
sale or transfer is being made.
(ii) The Company agrees that in the event that the Company declines
to exercise in full the Right of First Refusal set forth in Section 3 of the
Common Stock Purchase Agreement between such Founder and the Company (the "Right
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of First Refusal"), the Company will provide each Investor with notice of such
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determination at least fifteen (15) days prior to the end of the period in which
the Right of First Refusal expires under such Common Stock Purchase Agreement.
Each Investor other than ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and any other holder of the Warrants
shall then have the right, exercisable by notice to the Company prior to the end
of such period, to exercise such Right of First Refusal as the Company's
assignee on a pro rata basis (based upon the number of Conversion Shares (as
defined below) held by such Investor relative to the aggregate number of
Conversion Shares held by all Investors other than ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and any other
holder of the Warrants); provided that if fewer than all Investors (other than
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and any other holder of the Warrants) elect to participate, the
Shares that would otherwise be allocated to non-participating Investors shall be
allocated to each participating Investor (each, a "Participating Investor") at
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such Participating Investor's option in a manner such that each Participating
Investor is entitled to purchase at least such Participating Investor's pro rata
portion of such unallocated Shares (based upon the number of Conversion Shares
held by all Participating Investors) or such different number of Shares as the
Participating Investors shall mutually agree. The procedures set forth in this
Section 1(a)(ii) with respect to Participating Investors shall be repeated as
necessary until all of the Shares initially subject to this Section 1(a)(ii)
have been purchased or until the final successive Participating Investor has
declined to exercise his or her rights hereunder with respect to any remaining
Shares subject to this Section 1(a)(ii), whichever shall first occur. Upon
expiration or exercise of the Right of First Refusal, the Company will provide
notice to all Investors and the Founders as to whether or not the Right of First
Refusal has been exercised by the Company or the Investors.
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(b) CO-SALE RIGHT. To the extent that the Right of First Refusal is
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not exercised by the Company or the Investors, each Investor shall have the
right (the "Co-Sale Right"), exercisable upon written notice to the Company
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within fifteen (15) business days after the expiration of the Right of First
Refusal, to participate in such Founder's sale of Shares pursuant to the
specified terms and conditions of such Purchase Offer; provided, however, that
any such Investor exercising its Co-Sale Right shall not, in connection with
such sale, be obligated to agree to any joint and several liability or
obligation to indemnify the purchaser of such Shares, and any several liability
of such Investor related to any such sale shall in no event exceed the net
proceeds from such sale to be received by such Investor. To the extent an
Investor exercises such Co-Sale Right in accordance with the terms and
conditions set forth below, the number of Shares which such Founder may sell
pursuant to such Purchase Offer shall be correspondingly reduced. The Co-Sale
Right of each Investor shall be subject to the following terms and conditions:
(i) CALCULATION OF SHARES. Each Investor may sell all or any part
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of that number of shares of Common Stock of the Company issuable or issued (i)
upon conversion of Preferred Stock (including Preferred Stock issuable upon
exercise of warrants), (ii) upon exercise of the Warrants, or (iii) in
connection with any stock dividend, stock split or other reclassification
thereof (all of which are referred to herein as the "Conversion Shares") equal
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to (i) to the extent that proceeds to such Investor from all prior sales of
securities pursuant to this Agreement are less than such Investor's Aggregate
Purchase Price, an amount equal to the total amount of shares covered by the
Purchase Offer, multiplied by such Investor's Capital Return Ratio, plus (ii) to
the extent that the number of shares covered by the Purchase Offer exceeds the
amount obtained from the application of clause (i) above with respect to all
Investors requesting to include securities in the sale pursuant to such Purchase
Offer, an amount equal to (A) the total amount of shares covered by the Purchase
Offer, less the total amount of securities of all Investors to be included in
such sale pursuant to clause (i) above, multiplied by (B) such Investor's Sale
Ratio. For purposes hereof, as of any date of determination, an Investor's
"Aggregate Purchase Price" is an amount equal to the aggregate purchase price
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paid to the Company as consideration for all securities held by such Investor;
an Investor's "Capital Return Ratio" is a fraction, the numerator of which is
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such Investor's Aggregate Purchase Price and the denominator of which is the sum
of the Aggregate Purchase Prices for all Investors and Founders; and an
Investor's "Sale Ratio" is a fraction, the numerator of which is the amount of
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securities of the Company held by such Investor and the denominator of which is
the aggregate amount of securities held by all Investors and Founders. The
provisions of this Agreement do not confer any co-sale rights with respect to
any shares of Common Stock or other securities held by an Investor that are not
Conversion Shares.
(ii) DELIVERY OF CERTIFICATES. Each Investor may effect its
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participation in the sale by delivering to the selling Founder for transfer to
the purchase offeror one or more certificates, properly endorsed for transfer,
which represent the number of shares of Preferred Stock, Warrants or Common
Stock issued upon conversion or exercise thereof, which such Investor elects to
sell.
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(c) TRANSFER. The stock or warrant certificate or certificates which
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the Investor delivers to the selling Founder pursuant to Section 1(b) shall be
delivered by such Founder to the purchase offeror in consummation of the sale
pursuant to the terms and conditions specified in the Notice, and such Founder
shall promptly thereafter remit to such Investor that portion of the sale
proceeds to which such Investor is entitled by reason of its participation in
such sale. To the extent that any prospective purchaser or purchasers prohibits
such assignment or otherwise refuses to purchase shares of capital stock or
Warrants of the Company from an Investor exercising its Co-Sale Right hereunder,
the selling Founder or Founders shall not sell to such prospective purchaser or
purchasers any shares of Company stock or Warrants unless and until,
simultaneously with such sale, the selling Founder or Founders shall purchase
such shares or Warrants from such Investor for the same consideration and on the
same terms and conditions as the proposed transfer described in the Notice
(which terms and conditions shall be no less favorable than those governing the
sale to the purchaser by the Founder or Founders).
(d) NO ADVERSE EFFECT. The exercise or non-exercise of the rights of
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the Investors hereunder to participate in one or more sales of Shares made by a
Founder shall not adversely affect their rights to participate in subsequent
sales of Common Stock by a Founder.
(e) PERMITTED TRANSACTIONS. The provisions of Section 1 of this
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Agreement shall not pertain or apply to:
(i) any pledge of the Company's Common Stock made by a Founder
pursuant to a bona fide loan transaction which creates a mere security interest;
provided, however, that the provisions of Section 1 of this Agreement shall
pertain and apply to any foreclosure, sale or realization on or in respect of
such Common Stock pursuant to any such pledge;
(ii) any repurchase of Common Stock by the Company;
(iii) any bona fide gift;
(iv) any transfer to a Founder's Immediate Family (as defined
below) or a trust for the benefit of such Founder's Immediate Family ("Immediate
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Family" as used herein shall mean spouse, lineal descendant or antecedent,
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father, mother, brother or sister); or
(v) any sale or transfer of shares of Common Stock among the
Founders.
provided however, that (x) the Founder(s) shall inform the Investors of such
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pledge, transfer or gift prior to effecting it, and (y) the pledgee, transferee
or donee (collectively, the "Permitted Transferees") shall furnish the Investors
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with a written agreement to be bound by and comply with all provisions of this
Agreement applicable to the Founders.
2. Prohibited Transfers. ANY ATTEMPT BY A FOUNDER TO TRANSFER SHARES IN
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VIOLATION OF SECTION 1 HEREOF SHALL BE VOID AND THE COMPANY AGREES IT WILL NOT
EFFECT SUCH A TRANSFER NOR WILL IT TREAT ANY ALLEGED TRANSFEREE AS THE HOLDER OF
SUCH SHARES WITHOUT THE
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WRITTEN CONSENT OF THE HOLDERS OF A MAJORITY OF THE CONVERSION SHARES. IN THE
EVENT A FOUNDER SHOULD SELL ANY SHARES IN CONTRAVENTION OF THE CO-SALE RIGHTS OF
THE INVESTORS UNDER SECTION 1 (A "PROHIBITED TRANSFER"), THE INVESTORS, IN
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ADDITION TO SUCH OTHER REMEDIES AS MAY BE AVAILABLE AT LAW, IN EQUITY OR
HEREUNDER, SHALL HAVE THE PUT OPTION PROVIDED BELOW, AND THE FOUNDER SHALL BE
BOUND BY THE APPLICABLE PROVISIONS OF SUCH OPTION.
IN THE EVENT OF A PROHIBITED TRANSFER, EACH INVESTOR SHALL HAVE THE
RIGHT TO SELL TO THE FOUNDER THE TYPE AND NUMBER OF SHARES EQUAL TO THE NUMBER
OF SHARES EACH INVESTOR WOULD HAVE BEEN ENTITLED TO TRANSFER TO THE THIRD-PARTY
TRANSFEREE(S) UNDER SECTION 1 HEREOF HAD THE PROHIBITED TRANSFER BEEN EFFECTED
PURSUANT TO AND IN COMPLIANCE WITH THE TERMS HEREOF. SUCH SALE SHALL BE MADE ON
THE FOLLOWING TERMS AND CONDITIONS:
The price per share at which the shares are to be sold to the Founder
shall be equal to the price per share paid by the third-party transferee(s) to
the Founder in the Prohibited Transfer. The Founder shall also reimburse each
Investor for any and all fees and expenses, including legal fees and expenses,
incurred pursuant to the exercise or the attempted exercise of the Investor's
rights under Section 1.
Within ninety (90) days after the later of the dates on which the
Investor (A) received notice of the Prohibited Transfer or (B) otherwise become
aware of the Prohibited Transfer, each Investor shall, if exercising the option
created hereby, deliver to the Founder the certificate or certificates
representing shares to be sold, each certificate to be properly endorsed for
transfer.
The Founder shall, upon receipt of the certificate or certificates for
the shares to be sold by an Investor, pursuant to this Section, pay the
aggregate purchase price therefor and the amount of reimbursable fees and
expenses, as specified in subparagraph (b)(i), in cash or by other means
acceptable to the Investor.
3. LEGEND ON CERTIFICATES. Each certificate representing shares of the
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Common Stock of the Company now or hereafter owned by the Founders or issued to
any Permitted Transferee pursuant to Section 1(e) shall be endorsed with the
following legend:
"THE SALE, PLEDGE, HYPOTHECATION OR TRANSFER OF THE SECURITIES
REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO THE TERMS AND CONDITIONS
OF A CERTAIN RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT BY AND
BETWEEN THE STOCKHOLDER, THE COMPANY AND CERTAIN HOLDERS OF PREFERRED
STOCK OF THE COMPANY. COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON
WRITTEN REQUEST TO THE SECRETARY OF THE COMPANY."
The foregoing legend shall be removed upon termination of this
Agreement in accordance with the provisions of Section 4(a).
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4. MISCELLANEOUS PROVISIONS.
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(a) TERMINATION. This Agreement shall terminate upon the earliest to
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occur of any one of the following events (and shall not apply to any transfer by
a Founder in connection with any such event):
(i) The liquidation, dissolution or indefinite cessation of the
business operations of the Company;
(ii) The execution by the Company of a general assignment for the
benefit of creditors or the appointment of a receiver or trustee to take
possession of the property and assets of the Company;
(iii) The closing of the Company's initial public offering of
securities (provided the per share public offering price is not less than $5.75
(as adjusted to reflect subsequent stock dividends, stock splits,
recapitalizations or similar transactions) and such offering results in
aggregate cash proceeds to the Company of at least $50,000,000, net of
underwriting discounts and commissions); provided that all shares of the
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Company's Preferred Stock are converted into and all Warrants are exercised for
shares of Common Stock prior to or in connection with such offering; and
(iv) The closing of any acquisition, merger, reorganization or
other transaction which results in the stockholders of the Company immediately
prior to such transaction owning less than 50% of the Company's voting stock
immediately after such transaction.
(b) NOTICES. Any notice required or permitted by this Agreement shall
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be in writing and shall be deemed sufficient on the date of delivery, when
delivered personally or by overnight courier or sent by telegram or fax, or
forty-eight (48) hours after being deposited in the U.S. mail, as certified or
registered mail, with postage prepaid, and addressed to the party to be notified
at such party's address as set forth on the books of the Company, or as
subsequently modified by written notice.
(c) SUCCESSORS AND ASSIGNS. The terms and conditions of this
----------------------
Agreement shall inure to the benefit of, and be binding upon, the respective
successors and assigns of the parties. The rights of the Investors hereunder
shall be assignable only (i) by each of such Investors to any other Investor or
any affiliate of any Investor or (ii) an assignee or transferee who acquires not
less than 50,000 shares of the Company's Common Stock (as adjusted for stock
splits, stock dividends and the like, and assuming conversion of all Preferred
Stock held by such Investor); provided that such limitation shall not apply to
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transfers by an Investor to a wholly-owned subsidiary, affiliate or constituent
partner (including limited partners) or member of such Investor, if all such
transferees or assignees irrevocably agree in writing to appoint a single
representative as their attorney-in-fact for the purpose of receiving any
notices and exercising their rights under this Agreement.
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(d) SEVERABILITY. If one or more provisions of this Agreement are
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held to be unenforceable under applicable law, the parties agree to renegotiate
such provision in good faith. In the event that the parties cannot reach a
mutually agreeable and enforceable replacement for such provision, then (i) such
provision shall be excluded from this Agreement, (ii) the balance of the
Agreement shall be interpreted as if such provision were so excluded and (iii)
the balance of the Agreement shall be enforceable in accordance with its terms.
(e) MODIFICATIONS AND AMENDMENTS. Any term hereof may be amended or
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waived only with the written consent of the Company and (i) holders of at least
66 2/3% of the outstanding Series C Preferred Stock voting as a class, (ii)
holders of at least a majority of the outstanding Series B Preferred Stock
voting as a class, (iii) holders of a majority of the shares issued or issuable
upon exercise of the Warrants, and (iv) holders of a majority of the outstanding
Founders' Shares (or their respective successors and assigns), each voting
separately as a class. Any amendment or waiver effected in accordance with this
Section 4(e) shall be binding upon the Company, the holders of Series B
Preferred Stock, the holders of the Warrants or any shares issued upon exercise
of the Warrants, the holders of Series C Preferred Stock and any holder of
Founders' Shares, and each of their respective successors and assigns.
(f) ATTORNEY'S FEES. If any action at law or in equity (including
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arbitration) is necessary to enforce or interpret the terms of this Agreement,
the prevailing party shall be entitled to reasonable attorney's fees, costs and
necessary disbursements (including all fees, costs and expenses of appeals) in
addition to any other relief to which such party may be entitled.
(g) GOVERNING LAW. This Agreement and all acts and transactions
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pursuant hereto and the rights and obligations of the parties hereto shall be
governed, construed and interpreted in accordance with the laws of the State of
California, without giving effect to principles of conflicts of law.
(h) COUNTERPARTS. This Agreement may be executed in two (2) or more
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counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
(i) CARLYLE ENTITIES ONE INVESTOR. For purposes of this Agreement,
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Carlyle Partners II, L.P., a Delaware limited partnership, Carlyle Partners III,
L.P., a Delaware limited partnership, State Board of Administration of Florida,
Carlyle Investment Group, L.P., a Delaware limited partnership, Carlyle
International Partners II, L.P., a Cayman Islands limited partnership, Carlyle
International Partners III, L.P., a Cayman Islands limited partnership, C/S
International Partners, a Cayman Islands general partnership, Carlyle-NorthPoint
Partners, L.P., a Delaware limited partnership, Carlyle-NorthPoint International
Partners, L.P., a Cayman Islands limited partnership, Carlyle Venture Partners,
LP, a Cayman Islands limited partnership, Carlyle U.S. Venture Partners, LP, a
Delaware limited partnership, C/S Venture Investors, LP, a Cayman Islands
limited partnership and Carlyle Venture Coinvestment, LLC, a Delaware limited
liability company (collectively, the "Carlyle Entities") shall be considered as
a single Investor; provided, however, that the Company shall be protected in
relying on the instructions of, and notices
7
received from, Carlyle-NorthPoint Partners, L.P., a Delaware limited
partnership, in connection with the exercise of any rights or privileges of the
Carlyle Entities hereunder.
(j) TERMINATION OF PRIOR AGREEMENT. By execution of this Agreement
------------------------------
below, the parties acknowledge and agree that the Prior Agreement shall be
terminated and shall be of no further force or effect.
8
The parties have executed this Fourth Amended and Restated Right of
First Refusal and Co-Sale Agreement as of the date first written above.
COMPANY:
NORTHPOINT COMMUNICATIONS HOLDINGS, INC.
By: ________________________________
Title: ________________________________
Company Address:
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
NCI:
NORTHPOINT COMMUNICATIONS, INC.
By: ________________________________
Title: ________________________________
Company Address:
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
9
SERIES B INVESTORS:
BENCHMARK CAPITAL PARTNERS, L.P.
By: Benchmark Capital Management Co., L.L.C.
Its General Partner
By: ________________________________
Member
BENCHMARK FOUNDERS' FUND, L.P.
By: Benchmark Capital Management Co., L.L.C.
Its General Partner
By: ________________________________
Member
ACCEL V L.P.
By: Accel V Associates L.L.C.
Its General Partner
By: ________________________________
Managing Member
ACCEL INTERNET/STRATEGIC TECHNOLOGY FUND L.P.
By: Accel Internet/Strategic Technology Fund Associates L.L.C.
Its General Partner
By: ________________________________
Managing Member
10
ACCEL KEIRETSU V L.P.
By: Accel Keiretsu V Associates L.L.C.
Its General Partner
By: ________________________________
Managing Member
ACCEL INVESTORS `97 L.P.
By: ________________________________
General Partner
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ PARTNERS
By: ________________________________
General Partner
GREYLOCK IX LIMITED PARTNERSHIP
By: Greylock IX GP Limited Partnership, its General Partner
By: ________________________________
General Partner
STANFORD UNIVERSITY
_____________________________________
(Print Title)
_____________________________________
(Signature)
11
VLG INVESTMENTS 97
________________________________
(Print Title)
________________________________
(Signature)
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
________________________________
(Signature)
▇▇▇▇▇▇▇ ▇▇▇▇▇
________________________________
(Signature)
▇▇▇▇▇▇ ▇▇▇▇▇
________________________________
(Signature)
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
________________________________
(Signature)
▇▇▇▇▇▇▇ MALAGA
________________________________
(Signature)
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
___________________________________
(Signature)
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ AND ▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
TRUSTEES OF THE ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇ FAMILY TRUST,
UDT, DATED JULY 28, 1997
By: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Trustee
__________________________________
(Signature)
13
▇▇▇▇▇▇ ▇▇▇▇▇▇▇:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC.
__________________________________
(Print Title)
__________________________________
(Signature)
14
SERIES C INVESTORS:
AT HOME CORPORATION
__________________________________
(Print Title)
__________________________________
(Signature)
INTEL CORPORATION
__________________________________
(Print Title)
__________________________________
(Signature)
_______________________________
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
VULCAN VENTURES INCORPORATED
__________________________________
(Print Title)
__________________________________
(Signature)
15
BENCHMARK CAPITAL PARTNERS, L.P.
By: Benchmark Capital Management Co., L.L.C.
Its General Partner
By: __________________________________
Member
BENCHMARK FOUNDERS' FUND, L.P.
By: Benchmark Capital Management Co., L.L.C.
Its General Partner
By: __________________________________
Member
ACCEL V L.P.
By: Accel V Associates L.L.C.
Its General Partner
By: __________________________________
Managing Member
ACCEL INTERNET/STRATEGIC TECHNOLOGY FUND L.P.
By: Accel Internet/Strategic Technology Fund Associates L.L.C.
Its General Partner
By: __________________________________
Managing Member
16
ACCEL KEIRETSU V L.P.
By: Accel Keiretsu V Associates L.L.C.
Its General Partner
By: __________________________________
Managing Member
ACCEL INVESTORS `97 L.P.
By: __________________________________
General Partner
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ PARTNERS
By: __________________________________
General Partner
GREYLOCK IX LIMITED PARTNERSHIP
By: Greylock IX GP Limited Partnership, its General Partner
By: __________________________________
General Partner
NEWCOURT COMMERCIAL FINANCE CORPORATION
By: __________________________________
__________________________________
(Print Name)
__________________________________
Title
17
EFTIA
By: __________________________________
__________________________________
(Print Name)
__________________________________
Title
__________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
THE ▇▇▇▇ FAMILY TRUST DATED OCTOBER 31, 1989,
AS AMENDED MAY 3, 1990
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇ as Trustee for the ▇▇▇▇ Family Trust
__________________________________
(Signature)
▇▇▇▇▇▇▇ ▇▇▇▇ PARTNERS
By: __________________________________
__________________________________
(Print Name)
__________________________________
Title
LEAD VENTURES
By: __________________________________
__________________________________
(Print Name)
__________________________________
Title
▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ LAW GROUP 401(K) PLAN ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
By:
__________________________________
(Signature)
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇.
▇▇▇▇ DEFERRED SAVINGS PLAN FBO ▇▇▇▇▇ ▇. ▇▇▇▇
By:
__________________________________
(Signature)
EXETER CAPITAL PARTNERS IV, L.P.
By: Exeter IV Advisors, L.P.
By: Exeter IV Advisors, Inc.
By: ______________________________
▇▇▇▇▇ ▇. ▇▇▇, President
__________________________________
▇▇▇▇ ▇▇▇▇▇▇
__________________________________
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ PARTNERS II, L.P.
By: TC Group, L.L.C.
Its General Partner
By: ______________________________
Title: Managing Director
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CARLYLE PARTNERS III, L.P.
By: TC Group, L.L.C.
Its General Partner
By: ______________________________
Title: Managing Director
STATE BOARD OF ADMINISTRATION OF FLORIDA
By: Carlyle Investment Management LLC
Its Manager
By: ______________________________
Title: Managing Director
CARLYLE INVESTMENT GROUP, L.P.
By: TC Group, L.L.C.
Its General Partner
By: ______________________________
Title: Managing Director
CARLYLE INTERNATIONAL PARTNERS II, L.P.
By: TC Group, L.L.C.
Its General Partner
By: ______________________________
Title: Managing Director
CARLYLE INTERNATIONAL PARTNERS III, L.P.
By: TC Group, L.L.C.
Its General Partner
By: ______________________________
Title: Managing Director
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C/S INTERNATIONAL PARTNERS
By: TC Group, L.L.C.
Its General Partner
By: ______________________________
Title: Managing Director
CARLYLE-NORTHPOINT PARTNERS, L.P.
By: TC Group, L.L.C.
Its General Partner
By: ______________________________
Title: Managing Director
CARLYLE-NORTHPOINT INTERNATIONAL PARTNERS, L.P.
By: TC Group, L.L.C.
Its General Partner
By: ______________________________
Title: Managing Director
CARLYLE VENTURE PARTNERS, LP
By: TCG Ventures, Limited
Its General Partner
By: ______________________________
Title: Attorney in Fact
CARLYLE U.S. VENTURE PARTNERS, LP
By: TCG Ventures, LLC
Its General Partner
By: ______________________________
Title: Managing Director
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C/S VENTURE INVESTORS, LP
By: TCG Ventures, Limited
Its General Partner
By: ______________________________
Title: Attorney in Fact
CARLYLE VENTURE COINVESTMENT, LLC
By: TCG Ventures, LLC
Its Manager
By: ______________________________
Title: Managing Director
FOUNDERS:
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____________________________________
(Signature)
▇▇▇▇▇▇ ▇▇▇▇▇▇
____________________________________
(Signature)
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
____________________________________
(Signature)
▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
__________________________________
(Signature)
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
_________________________________
(Signature)
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