EXHIBIT 9.1
NORTHPOINT COMMUNICATIONS, INC.
AMENDED AND RESTATED VOTING AGREEMENT
-------------------------------------
This Amended and Restated Voting Agreement (the "Agreement") is made and
---------
entered into as of the 19th day of February, 1999, by and among NorthPoint
Communications, Inc., a Delaware corporation (the "Company"), Xxxxxxx X. Xxxxx,
-------
Xxxxxx Xxxxx, Xxxxxx Xxxxxx, Xxxxxx Xxxxxxx, Xxxxxxx Malaga and Xxxxxxx Xxxxxxx
(collectively, the "Founders" and individually, a "Founder"), the holders of
-------- -------
shares of Series B Preferred Stock of the Company (the "Series B Investors") and
------------------
the holders of shares of Series C Preferred Stock of the Company (the "Series C
--------
Investors" and collectively with the Series B Investors, the "Investors" and
--------- ---------
individually, an "Investor").
--------
RECITALS
--------
1. The Company, the Founders and the Series B Investors entered into a
Voting Agreement dated as of August 13, 1997 (the "Original Agreement").
------------------
2. The Company and the Series C Investors have entered into an Amended and
Restated Series C Preferred Stock Purchase Agreement (the "Purchase Agreement")
------------------
dated January 20, 1999 pursuant to which the Company has sold or desires to
sell to the Series C Investors and the Series C Investors have purchased or
desire to purchase from the Company shares of the Company's Series C Preferred
Stock. A condition to the Series C Investors' obligations under the Purchase
Agreement is that the Company, the Founders and the Investors enter into this
Agreement for the purpose of setting forth the terms and conditions pursuant to
which the Investors and the Founders shall vote their shares of the Company's
voting stock in favor of certain designees to the Company's Board of Directors.
The Company, the Investors and the Founders each desire to facilitate the voting
arrangements set forth in this Agreement, and the sale and purchase of shares of
Series C Preferred Stock pursuant to the Purchase Agreement by amending and
restating the Original Agreement as set forth herein.
AGREEMENT
---------
The parties hereby agree as follows:
1. Board Representation.
--------------------
(a) Series B Investors. With respect to the three (3) members of the
------------------
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").
----------------------------
(b) Series C Investors.
------------------
(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
----------------------------
Directors, the "Preferred Directors").
-------------------
(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 Board of
--------
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").
---------------
(d) Investors and Founders. The Investors and Founders agree to vote 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 sixty-six and two-thirds
percent (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
-----------------------------
vote for any amendment or change to the Bylaws or Certificate of Incorporation
of the Company 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
-------
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
-----------
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
-------------------
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 sixty-six and two-thirds
percent (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
-------
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
------------
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.
8. Governing Law. This Agreement and all acts and transactions 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 Delaware,
without giving effect to principles of conflicts of law.
9. Counterparts. This Agreement may be executed in two (2) or more
------------
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
----------------------
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
---------------
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,
-----------------------------
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 Partners, 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
---------------------------------
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]
The parties hereto have executed this Voting Agreement as of the date first
written above.
COMPANY:
NORTHPOINT COMMUNICATIONS, INC.
By: /S/ NORTHPOINT COMMUNICATIONS, INC.
--------------------------
Title:
-----------------------
Address:
000 Xxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
INVESTORS:
BENCHMARK CAPITAL PARTNERS, L.P.
By: Benchmark Capital Management Co., L.L.C.
Its General Partner
By:/S/ BENCHMARK CAPITAL PARTNERS, L.P.
------------------------------------
Member
BENCHMARK FOUNDERS' FUND, L.P.
By: Benchmark Capital Management Co., L.L.C.
Its General Partner
By:/S/ BENCHMARK FOUNDERS' FUND, L.P.
----------------------------------
Member
ACCEL V L.P.
By: Accel V Associates L.L.C.
Its General Partner
By:/S/ ACCEL V L.P.
----------------
Managing Member
ACCEL INTERNET/STRATEGIC TECHNOLOGY FUND L.P.
By: Accel Internet/Strategic Technology Fund Associates L.L.C.
Its General Partner
By:/S/ ACCEL INTERNET/STRATEGIC TECHNOLOGY FUND L.P.
-------------------------------------------------
Managing Member
ACCEL KEIRETSU V L.P.
By: Accel Keiretsu V Associates L.L.C.
Its General Partner
By:/S/ ACCEL KEIRETSU V L.P.
-------------------------
Managing Member
ACCEL INVESTORS `97 L.P.
By:/S/ ACCEL INVESTORS `97 L.P.
----------------------------
General Partner
XXXXXXX X. XXXXXXXXX PARTNERS
By:/S/ XXXXXXX X. XXXXXXXXX PARTNERS
---------------------------------
General Partner
GREYLOCK IX LIMITED PARTNERSHIP
By: Greylock IX GP Limited Partnership, its General Partner
By:/S/ GREYLOCK IX LIMITED PARTNERSHIP
-----------------------------------
General Partner
XXXXXXX XXXXX
/S/ XXXXXXX XXXXX
---------------------------------------------
(Signature)
XXXXXX XXXXX
/S/ XXXXXX XXXXX
---------------------------------------------
(Signature)
XXXXXX XXXXXX
/S/ XXXXXX XXXXXX
---------------------------------------------
(Signature)
XXXXXX XXXXXXX
/S/ XXXXXX XXXXXXX
---------------------------------------------
(Signature)
XXXXXXX MALAGA
/S/ XXXXXXX MALAGA
---------------------------------------------
(Signature)
XXXXXXX XXXXXXX
/S/ XXXXXXX XXXXXXX
---------------------------------------------
(Signature)
XXXX X. XXXXXXX AND XXX X. XXXXXXXX,
TRUSTEES OF THE XXXXXXXX-XXXXXXX FAMILY TRUST,
UDT, DATED JULY 28, 1997
By: Xxx X. Xxxxxxxx, Trustee
/S/ XXXX X. XXXXXXX AND XXX X. XXXXXXXX,
TRUSTEES OF THE XXXXXXXX-XXXXXXX FAMILY TRUST,
UDT, DATED JULY 28, 1997
---------------------------------------------
(Signature)
AT HOME CORPORATION
By: /S/ AT HOME CORPORATION
----------------------------------------
----------------------------------------
(Print Name)
----------------------------------------
Title
INTEL CORPORATION
By: /S/ INTEL CORPORATION
----------------------------------------
(Print Name)
----------------------------------------
Title
/S/ Xxxxxxxx X. Xxxxxx
--------------------------------
Xxxxxxxx X. Xxxxxx
VULCAN VENTURES INCORPORATED
By: /S/ VULCAN VENTURES INCORPORATED
----------------------------------------
----------------------------------------
(Print Name)
----------------------------------------
Title
NEWCOURT COMMERCIAL FINANCE CORPORATION
By: /S/ NEWCOURT COMMERCIAL FINANCE CORPORATION
-------------------------------------------
----------------------------------------
(Print Name)
----------------------------------------
Title
1187415 ONTARIO INC.
By: /S/ 1187415 ONTARIO INC.
----------------------------------------
----------------------------------------
(Print Name)
----------------------------------------
Title
/S/ Xxxxxxx Xxxxxx
-----------------------------------
Xxxxxxx Xxxxxx
THE XXXX FAMILY TRUST DATED OCTOBER 31, 1989,
AS AMENDED MAY 3, 1990
By: Xxxxxx X. Xxxx as Trustee for the Xxxx Family Trust
/S/ THE XXXX FAMILY TRUST DATED OCTOBER 31, 1989,
AS AMENDED MAY 3, 1990
---------------------------------------------
(Signature)
XXXXXXX XXXX PARTNERS
By: /S/ XXXXXXX XXXX PARTNERS
----------------------------------------
----------------------------------------
(Print Name)
----------------------------------------
Title
-----------------------------------
Xxxx Xxxxx
LEAD VENTURES
By: /S/ LEAD VENTURES
----------------------------------------
----------------------------------------
(Print Name)
----------------------------------------
Title
CNATRUST, TTEE FBO VENTURE LAW GROUP 401(K) PLAN XXXXXXX X. XXXX
By:
/S/ CNATRUST, TTEE FBO VENTURE LAW GROUP 401(K) PLAN XXXXXXX X. XXXX
--------------------------------------------------------------------
(Signature)
THE SIERRA VENTURES MGMT. CO.
1989 DEFERRED SAVINGS PLAN FBO XXXXX X. XXXX
By:
/S/ THE SIERRA VENTURES MGMT. CO.
1989 DEFERRED SAVINGS PLAN FBO XXXXX X. XXXX
---------------------------------------------
(Signature)
EXETER CAPITAL PARTNERS IV, L.P.
By: Exeter IV Advisors, L.P.
By: Exeter IV Advisors, Inc.
By:/S/ EXETER CAPITAL PARTNERS IV, L.P.
------------------------------------------
Xxxxx X. Xxx, President
/S/ Xxxx Xxxxxx
-----------------------------------
Xxxx Xxxxxx
/S/ Xxxx Xxxxxxxx
-----------------------------------
Xxxx Xxxxxxxx
CARLYLE PARTNERS II, L.P.
By: TC Group, L.L.C.
Its General Partner
By: /S/ CARLYLE PARTNERS II, L.P.
______________________________
Title: Managing Director
CARLYLE PARTNERS III, L.P.
By: TC Group, L.L.C.
Its General Partner
By: /S/ CARLYLE PARTNERS III, L.P.
______________________________
Title: Managing Director
STATE BOARD OF ADMINISTRATION OF FLORIDA
By: Carlyle Investment Management LLC
Its Manager
By: /S/ STATE BOARD OF ADMINISTRATION OF FLORIDA
____________________________________________
Title: Managing Director
CARLYLE INVESTMENT GROUP, L.P.
By: TC Group, L.L.C.
Its General Partner
By: /S/ CARLYLE INVESTMENT GROUP, L.P.
__________________________________
Title: Managing Director
CARLYLE INTERNATIONAL PARTNERS II, L.P.
By: TC Group, L.L.C.
Its General Partner
By: /S/ CARLYLE INTERNATIONAL PARTNERS II, L.P.
___________________________________________
Title: Managing Director
CARLYLE INTERNATIONAL PARTNERS III, L.P.
By: TC Group, L.L.C.
Its General Partner
By: /S/ CARLYLE INTERNATIONAL PARTNERS III, L.P.
____________________________________________
Title: Managing Director
C/S INTERNATIONAL PARTNERS
By: TC Group, L.L.C.
Its General Partner
By: /S/ C/S INTERNATIONAL PARTNERS
______________________________
Title: Managing Director
CARLYLE-NORTHPOINT PARTNERS, L.P.
By: TC Group, L.L.C.
Its General Partner
By: /S/ CARLYLE-NORTHPOINT PARTNERS, L.P.
_____________________________________
Title: Managing Director
CARLYLE-NORTHPOINT INTERNATIONAL PARTNERS, L.P.
By: TC Group, L.L.C.
Its General Partner
By: /S/ CARLYLE-NORTHPOINT INTERNATIONAL PARTNERS, L.P.
___________________________________________________
Title: Managing Director
CARLYLE VENTURE PARTNERS, LP
By: TCG Ventures, Limited
Its General Partner
By: /S/ CARLYLE VENTURE PARTNERS, LP
________________________________
Title: Attorney in Fact
CARLYLE U.S. VENTURE PARTNERS, LP
By: TCG Ventures, LLC
Its General Partner
By: /S/ CARLYLE U.S. VENTURE PARTNERS, LP
_____________________________________
Title: Managing Director
C/S VENTURE PARTNERS, LP
By: TCG Ventures, Limited
Its General Partner
By: /S/ C/S VENTURE PARTNERS, LP
______________________________
Title: Attorney in Fact
CARLYLE VENTURE COINVESTMENT, LLC
By: TCG Ventures, LLC
Its Manager
By: /S/ CARLYLE VENTURE COINVESTMENT, LLC
_____________________________________
Title: Managing Director
FOUNDERS:
XXXXXXX XXXXX
/S/ XXXXXXX XXXXX
---------------------------------------------
(Signature)
XXXXXX XXXXX
/S/ XXXXXX XXXXX
---------------------------------------------
(Signature)
XXXXXX XXXXXX
/S/ XXXXXX XXXXXX
---------------------------------------------
(Signature)
XXXXXX XXXXXXX
/S/ XXXXXX XXXXXXX
---------------------------------------------
(Signature)
XXXXXXX MALAGA
/S/ XXXXXXX MALAGA
---------------------------------------------
(Signature)
XXXXXXX XXXXXXX
/S/ XXXXXXX XXXXXXX
---------------------------------------------
(Signature)
