EXHIBIT 9.1
SECOND AMENDED AND RESTATED VOTING AGREEMENT
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This Second Amended and Restated Voting Agreement (the "Agreement") is made
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and entered into as of the 22nd day of March, 1999, by and among NorthPoint
Communications Holdings, Inc., a Delaware corporation (the "Company"),
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NorthPoint Communications, Inc., a Delaware corporation and a wholly owned
subsidiary of the Company ("NCI"), ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
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▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Malaga and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (collectively, the
"Founders" and individually, a "Founder"), the holders of a majority of the
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share of Common Stock issuable upon the conversion of the Series B Preferred
Stock of the Company (the "Series B Investors") and the holders of at least 66
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2/3% of the shares of Common Stock issuable upon conversion of the Series C
Preferred Stock of the Company (the "Series C Investors" and collectively with
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the Series B Investors, the "Investors" and individually, an "Investor").
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RECITALS
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WHEREAS, the Company, the Founders, the Series B Investors and the Series C
Investors entered into an Amended and Restated Voting Agreement dated as of
February 19, 1999 (the "Original Agreement").
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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 Founders, the Series B Investors and the Series C Investors
each desire amend and restate the Original Agreement as set forth herein to
reflect the Reorganization.
WHEREAS, pursuant to Section 5 of the Original Agreement, the Original
Agreement may be amended by written consent of (i) NCI, (ii) holders of at least
a majority of the shares of Common Stock issuable or issued upon the conversion
of the Company's Series B Preferred Stock, (iii) holders of at least 66 2/3% of
the shares of Common Stock issuable or issued upon conversion of the Company's
Series C Preferred Stock, and (iv) holders of a majority of the outstanding
shares of Common Stock of the Company then owned by the Founders as a group.
AGREEMENT
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The parties hereby agree as follows:
1. BOARD REPRESENTATION.
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(a) SERIES B INVESTORS. With respect to the three (3) members of the
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Company's Board of Directors the Company's Certificate of Incorporation provides
are to be elected by the holders of Series B Preferred Stock voting together as
a single class on an as-converted basis, the Investors agree to vote or act with
respect to their shares of Preferred Stock of the Company and to cause the
directors designated by each them to act so as to elect (or appoint to fill a
vacancy) one (1) member of the Company's Board of Directors designated by each
of (i) Accel Partners, (ii) Benchmark Capital and (iii) Greylock Management
Corporation (collectively, the "Series B Preferred Directors").
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(b) SERIES C INVESTORS.
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(i) With respect to the two (2) members of the Company's Board of
Directors the Company's Certificate of Incorporation provides are to be elected
by the holders of Series C Preferred Stock voting together as a single class on
an as-converted basis, the Investors agree to vote or act with respect to their
shares of Preferred Stock of the Company and to cause the directors designated
by each of them to act so as to elect (or appoint to fill a vacancy) one (1)
member of the Company's Board of Directors designated by each of (i) Carlyle-
NorthPoint Partners, L.P. and (ii) Vulcan Ventures Incorporated (collectively,
the "Series C Preferred Directors" and together with the Series B Preferred
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Directors, the "Preferred Directors").
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(ii) If at any time during the term of this Agreement the Board of
Directors shall designate an executive committee or committee performing
substantially similar functions for any purposes, the Investors and the Founders
agree to cause the directors designated by each of them to act so as to elect or
appoint the director designated by Carlyle-NorthPoint Partners, L.P. as a member
of such executive or other committee.
(c) FOUNDERS. With respect to the one (1) member of the Company's
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Boardof Directors the Company's Certificate of Incorporation provides is to be
elected by the holders of Common Stock (including Common Stock, if any, issued
upon conversion of Preferred Stock), the Founders and the Investors agree to
vote or act with respect to their shares of Common Stock of the Company and to
cause the directors designated by each of them to act so as to elect (or appoint
to fill a vacancy) the Company's Chief Executive Officer as a member of the
Company's Board of Directors (the "Common Director").
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(d) INVESTORS AND FOUNDERS. The Investors and Founders agree to vote
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or act with respect to their shares of Common Stock and Preferred Stock and to
cause the directors designated by each of them to act so as to elect (or appoint
to fill a vacancy) any remaining members (or such other additional members of
the Board of Directors as are authorized by the Company's Bylaws) of the
Company's Board of Directors designated by agreement of 66 2/3% of the Preferred
Directors and Common Director as a group, who shall have relevant experience in
the industry in which the Company operates.
2. CHANGE IN NUMBER OF DIRECTORS. The Founders and the Investors will not
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vote for any amendment or change to the Bylaws or Certificate of Incorporation
of the Company
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providing for the election of more or less than eight (8) directors, or any
other amendment or change to the Bylaws or Certificate of Incorporation of the
Company inconsistent with the terms of this Agreement, unless such amendment or
change is unanimously approved by the Preferred Directors and Common Director.
3. LEGENDS. Each certificate representing shares of the Company's capital
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stock held by Founders or Investors shall be endorsed by the Company with a
legend reading as follows:
"THE SHARES EVIDENCED HEREBY ARE SUBJECT TO A VOTING AGREEMENT BY AND AMONG
THE COMPANY, THE FOUNDERS AND THE INVESTORS (A COPY OF WHICH MAY BE
OBTAINED FROM THE COMPANY), AND BY ACCEPTING ANY INTEREST IN SUCH SHARES
THE PERSON ACCEPTING SUCH INTEREST SHALL BE DEEMED TO AGREE TO AND SHALL
BECOME BOUND BY ALL THE PROVISIONS OF SAID VOTING AGREEMENT."
4. TERMINATION. This Agreement shall terminate upon the earlier of (a) the
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consummation of the Company's initial public offering on a firm underwriting
basis of any of its Common Stock, the public offering price of which is not less
than $5.75 per share (adjusted to reflect subsequent stock dividends, stock
splits, recapitalizations or similar transactions) and which results in
aggregate cash proceeds to the Company of at least $50,000,000 (net of
underwriting discounts and commissions), or (b) ten (10) years from the date
hereof.
5. AMENDMENTS; WAIVERS. Any term hereof may be amended or waived with the
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written consent of (i) the Company, (ii) holders of at least a majority of the
shares of Common Stock issuable or issued upon the conversion of the Company's
Series B Preferred Stock, (iii) holders of at least 66 2/3% of the shares of
Common Stock issuable or issued upon conversion of the Company's Series C
Preferred Stock, and (iv) holders of a majority of the outstanding shares of
Common Stock of the Company then owned by the Founders as a group (or their
respective successors and assigns). Any amendment or waiver effected in
accordance with this Section 5 shall be binding upon the Company, the Investors
and the Founders, and each of their respective successors and assigns.
6. NOTICES. Any notice required or permitted by this Agreement shall be
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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.
7. SEVERABILITY. If one or more provisions of this Agreement are held to
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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 (a) such
provision shall be excluded from this Agreement, (b) the balance of the
Agreement shall be interpreted as if such provision were so excluded and (c) the
balance of the Agreement shall be enforceable in accordance with its terms.
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8. GOVERNING LAW. This Agreement and all acts and transactions pursuant
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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 Delaware,
without giving effect to principles of conflicts of law.
9. 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 instrument.
10. SUCCESSORS AND ASSIGNS. The terms and conditions of this Agreement
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shall inure to the benefit of and be binding upon the respective successors and
assigns of the parties. Nothing in this Agreement, express or implied, is
intended to confer upon any party other than the parties hereto or their
respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
11. 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.
12. 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 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.
13. TERMINATION OF ORIGINAL AGREEMENT. By execution of this Agreement
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below, the parties acknowledge and agree that the Original Agreement shall be
terminated and shall be of no further force or effect.
[Signature Page Follows]
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The parties hereto have executed this Second Amended and Restated Voting
Agreement as of the date first written above.
COMPANY:
NORTHPOINT COMMUNICATIONS HOLDINGS, INC.
By: ___________________________
Title: ________________________
Address:
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NCI:
NORTHPOINT COMMUNICATIONS, INC.
By: ___________________________
Title: ________________________
Address:
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INVESTORS:
BENCHMARK CAPITAL PARTNERS, L.P.
By: Benchmark Capital Management Co., L.L.C.
Its General Partner
By: ________________________________________
Member
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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
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
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ PARTNERS
By: _______________________________________
General Partner
GREYLOCK IX LIMITED PARTNERSHIP
By: Greylock IX GP Limited Partnership, its General Partner
By: ________________________________________
General Partner
STANFORD UNIVERSITY
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(Print Title)
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(Signature)
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(Signature)
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(Signature)
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(Signature)
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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(Signature)
▇▇▇▇▇▇▇ MALAGA
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(Signature)
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(Signature)
VLG INVESTMENTS 97
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(Print Title)
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(Signature)
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(Signature)
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇ AND ▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
TRUSTEES OF THE ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇ FAMILY TRUST,
UDT, DATED JULY 28, 1997
By: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Trustee
__________________________________
(Signature)
AT HOME CORPORATION
By: ________________________________________
________________________________________
(Print Name)
________________________________________
Title
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INTEL CORPORATION
By: _______________________________
_______________________________
(Print Name)
_______________________________
Title
______________________________
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VULCAN VENTURES INCORPORATED
By: _______________________________
_______________________________
_______________________________
(Print Name)
_______________________________
Title
NEWCOURT COMMERCIAL FINANCE CORPORATION
By: _______________________________
_______________________________
(Print Name)
________________________________
Title
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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)
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▇▇▇▇▇▇▇ ▇▇▇▇ PARTNERS
By: ______________________________
______________________________
(Print Name)
______________________________
Title
___________________________
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LEAD VENTURES
By: ______________________________
______________________________
(Print Name)
______________________________
Title
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▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ LAW GROUP 401(K) PLAN ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
By:
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(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
__________________________
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__________________________
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CARLYLE 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)
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(Signature)
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(Signature)
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(Signature)
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(Signature)
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(Signature)
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