Exhibit D
VOTING AGREEMENT
THIS VOTING AGREEMENT, dated as of December 24, 2001 (this
"Agreement"), is made and entered into by and among ▇▇▇.▇▇▇, Inc., a Delaware
corporation ("DSLN"), certain stockholders of DSLN who have executed a signature
page hereto (each a "Stockholder," and collectively, the "Stockholders") and the
Investors listed on the signature pages hereto (collectively, the "Investors").
PREAMBLE
The Stockholder is a stockholder of DSLN and desires that DSLN and the
Investors enter into the Series Y Preferred Stock Purchase Agreement dated as of
December 24, 2001 (the "Purchase Agreement") among DSLN and the Investors with
respect to the sale of certain shares of its Series Y Preferred Stock to the
Investors set forth therein. The Stockholder is executing this Agreement as an
inducement to DSLN and the Investors to enter into and execute the Purchase
Agreement.
All capitalized terms used herein which are not defined herein shall
have the same meanings as ascribed to them in the Purchase Agreement.
NOW, THEREFORE, in consideration of the execution and delivery by DSLN
and the Investors of the Purchase Agreement and the mutual covenants, conditions
and agreements contained herein and therein, the parties agree as follows:
1. Representations and Warranties. (a) The Stockholder severally and
not jointly represents and warrants to DSLN and the Investors as follows:
(i) As of the date hereof, the Stockholder is the
record owner of the DSLN Common Stock (or the Series X Preferred Stock
or warrants listed on an as-if-converted to DSLN Common Stock basis)
set forth on Schedule 1 to this Agreement (the "DSLN Capital Stock").
Except for the DSLN Capital Stock set forth on Schedule 1 to this
Agreement, the Stockholder is not the record owner of any other shares
of DSLN Capital Stock. The DSLN Capital Stock set forth on Schedule 1
to this Agreement and any other Series X Preferred Stock, DSLN Common
Stock (including pursuant to the warrants set forth on Schedule 1) or
other capital stock of DSLN that the Stockholder may acquire in the
future are referred to herein as the "Shares." This Agreement has been
duly authorized, executed and delivered by, and constitutes a valid and
binding agreement of, the Stockholder, enforceable in accordance with
its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors rights generally or the availability of equitable
remedies, and the execution and delivery of this Agreement will not
violate or result in a default under any agreement to which the
Stockholder is a party. Neither the execution and delivery of this
Agreement nor the consummation by the Stockholder of the transactions
contemplated hereby will (A) violate, or require any consent, approval
or notice under
any provision of any judgment, order, decree, statute, law, rule or
regulation applicable to the Stockholder or the Stockholder's Shares or
(B) constitute a violation of, conflict with or constitute a default
under, any contract, commitment, agreement, understanding, arrangement
or other restriction of any kind to which the Stockholder is a party or
by which the Stockholder is bound.
(ii) Except as set forth on Schedule 1 or as
permitted by Section 3, such Stockholder's Shares and the certificates
representing such Shares are now and at all times during the term
hereof will be held by such Stockholder, free and clear of all liens,
claims, security interests, proxies, voting trusts or agreements,
understandings or arrangements or any other encumbrances whatsoever
that would interfere with the voting of the Shares or the granting of
any proxy with respect to the subject matter of the proxy granted in
Section 2 below, except for any such encumbrances or proxies arising
hereunder.
(iii) The Stockholder understands and acknowledges
that DSLN and the Investors are entering the Purchase Agreement in
reliance upon the Stockholder's execution and delivery of this
Agreement. The Stockholder acknowledges that the irrevocable proxy set
forth in Section 4 is granted in consideration for the execution and
delivery of the Purchase Agreement by DSLN and the Investors.
(b) DSLN and each of the Investors severally and not jointly represent
and warrant to the Stockholders as follows:
(i) This Agreement has been duly authorized, executed
and delivered by and constitutes a valid and binding agreement of such
party, enforceable in accordance with its terms except as
enforceability may be limited by applicable bankruptcy, insolvency or
similar laws affecting creditors' rights generally or the availability
of equitable remedies, and the execution and delivery of this Agreement
will not violate or result in a default under any agreement to which
such party is a party. Neither the execution and delivery of this
Agreement nor the consummation by the Investors of the transactions
contemplated hereby will (A) violate, or require any consent, approval
or notice under any provision of any judgment, order, decree, statute,
law, rule or regulation applicable to the Investor or (B) constitute a
violation of, conflict with or constitute a default under, any
contract, commitment, agreement, understanding, arrangement or other
restriction of any kind to which the Investor is a party or by which
the Investor is bound.
2. Voting Agreement. The Stockholder severally agrees with, and
covenants to, DSLN and the Investors that, during the term of this Agreement, at
any meeting of DSLN stockholders called for the purpose of approving the
transactions contemplated by the Purchase Agreement, including the Required
Stockholder Approvals (a "DSLN Stockholders Meeting") and all other meetings of
Stockholders related thereto, or at any adjournment thereof or in any other
circumstances upon which a vote, consent, agreement or other approval is sought
for the purpose of approving the transactions contemplated by the Purchase
Agreement, including the Required Stockholder Approvals, the Stockholder shall
vote (or cause to be voted) the
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Stockholder's Shares (and all shares of DSLN Capital Stock for which such
Stockholder has been granted a proxy to the extent permitted thereby), and shall
otherwise consent or agree to vote, in favor of the issuances of the Shares as
proposed under the Purchase Agreement and each of the amendments to DSLN's
certificate of incorporation set forth in the first sentence of Section 2.4 of
the Purchase Agreement. Stockholder, as a holder of DSLN Capital Stock, shall be
present in person or by proxy at all meetings of stockholders of DSLN so that
all Shares are counted for purposes of determining the presence of a quorum at
such meetings.
3. Covenants. The Stockholder severally agrees with, and covenants to,
DSLN and the Investors that prior to the termination of this Agreement, the
Stockholder shall not (i) without the prior written consent of DSLN and the
Investors (collectively, the "Majority-in-Interest Investors") holding a
majority of the shares of Series Y Preferred Stock to be issued under the
Purchase Agreement (which consent shall not be unreasonably withheld if the
transferee executes this Agreement at the time of the transfer) transfer (which
term shall include, without limitation, for the purposes of this Agreement, any
sale, gift, pledge, or consent to any transfer of) any or all of the
Stockholder's Shares or any interest therein; (ii) enter into any contract,
option or other agreement or understanding with respect to any transfer of any
or all of such Shares or any interest therein; (iii) grant any proxy, power of
attorney or other authorization in or with respect to such Shares; or (iv)
deposit such Shares into a voting trust or enter into a voting agreement or
arrangement with respect to such Shares; provided, however, that VantagePoint
Venture Partners III (Q), L.P., VantagePoint Venture Partners III, L.P.,
VantagePoint Communications Partners, L.P. and VantagePoint Venture Partners
1996, L.P. (collectively, "VantagePoint") may transfer up to an aggregate of
12,000,000 shares of Common Stock (plus an additional amount of shares of Common
Stock equal to the number of shares of Common Stock that are beneficially owned
by persons other than VantagePoint that become subject to this Agreement as
Stockholders after the date hereof) without the consent of DSLN and the
Investors. Following such transfer, neither this Agreement nor the obligations
hereunder shall attach to any of VantagePoint's Shares transferred pursuant to
the foregoing sentence.
4. Grant of Irrevocable Proxy; Appointment of Proxy.
(a) The Stockholder hereby irrevocably grants to, and
appoints, ▇▇▇▇▇ ▇▇▇▇▇▇, Partner of Columbia Capital LLC ("Columbia
Capital"), and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Partner of Columbia Capital, and each of
them individually, in their respective capacities as officers of
Columbia Capital, and any individual who shall hereafter succeed such
person in such office at Columbia Capital, the Stockholder's proxy and
attorney-in-fact (with full power of substitution), for and in the
name, place and stead of the Stockholder, to vote the Stockholder's
Shares at any meeting of stockholders of DSLN (including without
limitation the DSLN Stockholders Meeting), or at any adjournment
thereof or in any other circumstances upon which a vote, agreement,
consent or other approval is sought, on the matters set forth in
Section 2 hereof; provided, however, that such vote shall be restricted
to the matters set forth in Section 2 and such vote shall be an
affirmative vote in favor of the transactions contemplated by the
Purchase Agreement, including the Required Stockholder Approvals. Such
attorney-in-fact may evidence the taking of any action,
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giving of any consent or the voting of the Shares by the execution of
any document or instrument for such purpose in the name of the
Stockholder.
(b) The Stockholder hereby affirms that the irrevocable proxy
set forth in this Section 4 is given in connection with the execution
of the Purchase Agreement, and that such irrevocable proxy is given to
secure the performance of the duties of the Stockholder under this
Agreement. The Stockholder hereby further affirms that the irrevocable
proxy is coupled with an interest and may under no circumstances be
revoked. The Stockholder hereby ratifies and confirms all that such
irrevocable proxy may lawfully do or cause to be done by virtue hereof.
SUCH IRREVOCABLE PROXY IS EXECUTED AND INTENDED TO BE IRREVOCABLE IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 212 OF THE DELAWARE GENERAL
CORPORATION LAW.
5. Certain Events. The Stockholder agrees that, except as provided in
Section 3, this Agreement and the obligations hereunder shall attach to the
Stockholder's Shares and shall be binding upon any person or entity to which
legal or beneficial ownership of such Shares shall pass, whether by operation of
law or otherwise, including without limitation the Stockholder's successors or
assigns. In the event of any stock split, stock dividend, merger,
reorganization, recapitalization or other change in the capital structure of
DSLN, or the acquisition of additional shares of DSLN Capital Stock or other
voting securities of DSLN by any Stockholder, the number of Shares subject to
the terms of this Agreement shall be adjusted appropriately and this Agreement
and the obligations hereunder shall attach to any additional shares of DSLN
Capital Stock or other voting securities of DSLN issued to or acquired by the
Stockholder.
6. Further Assurances. The Stockholder shall, upon request of DSLN or
any of the Investors execute and deliver any additional documents and take such
further actions as may be necessary to carry out the provisions hereof and to
vest the power to vote such Stockholder's Shares as contemplated by Section 4
(except as provided in Section 3) in DSLN and the other irrevocable proxies
described therein at the expense of DSLN.
7. Termination. This Agreement, and all rights and obligations of the
parties hereunder, including, without limitation, the proxy set forth in Section
4, shall terminate upon the first to occur of (i) the date of the Second Closing
contemplated by Section 1.1(c)(iii) of the Purchase Agreement, (ii) the date
upon which the Purchase Agreement is terminated in accordance with its terms, or
(iii) upon the approval of the transactions contemplated by the Purchase
Agreement, including the Required Stockholder Approvals.
8. Miscellaneous.
(a) This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same
agreement.
(b) This Agreement (including the documents and instruments
referred to herein) constitutes the entire agreement, and supersedes
all prior agreements and
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understandings, both written and oral, among the parties with respect
to the subject matter hereof.
(c) This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware, regardless of the
laws that might otherwise govern under applicable principles of
conflicts of laws thereof.
(d) Neither this Agreement nor any of the rights, interests or
obligations under this Agreement shall be assigned, in whole or in
part, by operation of law or otherwise, by any of the parties without
the prior written consent of the other parties. Any assignment in
violation of the foregoing shall be void.
(e) The Stockholder agrees that irreparable damage would occur
and that DSLN and the Investors would not have any adequate remedy at
law in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that DSLN and the Investors shall be
entitled to an injunction or injunctions to prevent breaches by the
Stockholder of this Agreement and to enforce specifically the terms and
provisions of this Agreement, this being in addition to any other
remedy to which they are entitled at law or in equity.
(f) If any term, provision, covenant or restriction herein, or
the application thereof to any circumstance, shall, to any extent, be
held by a court of competent jurisdiction to be invalid, void or
unenforceable, such term, provision, covenant or restriction shall be
modified or voided, as may be necessary to achieve the intent of the
parties to the extent possible, and the remainder of the terms,
provisions, covenants and restrictions herein and the application
thereof to any other circumstances, shall remain in full force and
effect, shall not in any way be affected, impaired or invalidated, and
shall be enforced to the fullest extent permitted by law.
(g) No amendment, modification or waiver in respect of this
Agreement shall be effective against any party unless it shall be in
writing and signed by such party.
[SIGNATURES APPEAR ON THE NEXT PAGE]
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IN WITNESS WHEREOF, the undersigned parties have executed and
delivered this Voting Agreement as of the day and year first above written.
DSL. NET, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------
Title: Vice President
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STOCKHOLDERS:
VantagePoint Venture
Partners III (Q), L.P.
By: VantagePoint Venture Associates III,
L.L.C., its general partner
By: /s/
----------------------------------------
Name:
--------------------------------------
Managing Member
VantagePoint Venture Partners III, L.P.
By: VantagePoint Venture Associates III,
L.L.C., its general partner
By: /s/
-----------------------------------------
Name:
---------------------------------------
Managing Member
VantagePoint Communications
Partners, L.P.
By: VantagePoint Communications Associates,
L.L.C., its general partner
By: /s/
-----------------------------------------
Name:
---------------------------------------
Managing Member
VantagePoint Venture Partners 1996, L.P.
By: VantagePoint Associates, L.L.C., its
general partner
By: /s/
-----------------------------------------
Name:
---------------------------------------
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COLUMBIA CAPITAL EQUITY PARTNERS III (QP), L.P.
By: Columbia Capital Equity Partners III, L.P.
its general partner
By: Columbia Capital III, LLC
its general partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Manager
COLUMBIA CAPITAL EQUITY PARTNERS II (QP), L.P.
By: Columbia Capital Equity Partners, LLC
its general partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Manager
COLUMBIA CARDINAL PARTNERS, LLC
By: Columbia Capital, L.L.C.
Managing Member
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Chief Financial Officer
COLUMBIA BROADSLATE PARTNERS, LLC
By: Columbia Capital III, L.L.C.
Managing Member
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Chief Financial Officer
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COLUMBIA CAPITAL EQUITY PARTNERS III (AI), L.P.
By: Columbia Capital Equity Partners III, L.P.
its general partner
By: Columbia Capital III, LLC
its general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Chief Financial Officer
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▇▇▇▇▇▇▇ RIVER PARTNERSHIP X,
A LIMITED PARTNERSHIP
By: ▇▇▇▇▇▇▇ River X GP, LLC
General Partner
By:/s/ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
--------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
Title: General Partner
▇▇▇▇▇▇▇ RIVER PARTNERSHIP X-A,
A LIMITED PARTNERSHIP
By: ▇▇▇▇▇▇▇ River X GP, LLC,
General Partner
By:/s/ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
--------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
Title: General Partner
▇▇▇▇▇▇▇ RIVER FRIENDS X-B, LLC
By: ▇▇▇▇▇▇▇ River Friends, Inc.
Manager
By:/s/ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
--------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
Title: General Partner
▇▇▇▇▇▇▇ RIVER FRIENDS X-C, LLC
By: ▇▇▇▇▇▇▇ River Friends, Inc.
Manager
By:/s/ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
--------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
Title: General Partner
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THE LAFAYETTE INVESTMENT FUND, L.P.
By: Lafayette Investment Partners, L.P.,
its sole general partner
By: Lafayette Private Equities, Inc.,
its sole general partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Vice President
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N.I.G. - BROADSLATE, LTD.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
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SCHEDULE 1
Stockholder's Name Series X Preferred As
Converted into Common Common Warrants
-------------------------------------------- ----------------------- ---------------- ---------------
Vantagepoint Venture Partners III (Q), L.P. 29,705,555.55 1,361,037 0
-------------------------------------------- ----------------------- ---------------- ---------------
Vantagepoint Venture Partners III, L.P. 3,627,777.77 168,218 0
-------------------------------------------- ----------------------- ---------------- ---------------
Vantagepoint Communications Partners, L.P. 11,111,111.11 13,562,330 55,544
-------------------------------------------- ----------------------- ---------------- ---------------
Vantagepoint Venture Partners 1996, L.P. 11,111,111.11 6,781,164 27,770
-------------------------------------------- ----------------------- ---------------- ---------------
Totals 55,555,555.54 21,872,749 83,314
-------------------------------------------- ----------------------- ---------------- ---------------
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