Exhibit E
VOTING AGREEMENT
THIS VOTING AGREEMENT, dated as of December 24, 2001 (this
"Agreement"), is made and entered into by and among XXX.xxx, Inc., a Delaware
corporation ("DSLN"), and the investors listed on the signature pages hereto
(each a "Stockholder," and collectively, the "Stockholders").
PREAMBLE
The Stockholder will become a stockholder of DSLN at the Initial
Closing of the transactions contemplated by the Series Y Preferred Stock
Purchase Agreement dated as of December 24, 2001 (the "Purchase Agreement")
among DSLN and the Stockholders with respect to the sale of certain shares of
its Series Y Preferred Stock set forth therein. Simultaneously with the
execution and delivery of this Agreement, certain holders of DSLN capital stock
have executed a Voting Agreement dated as of the date hereof (the "Voting
Agreement") as an inducement to DSLN and the Stockholders to enter into and
execute the Purchase Agreement. The Stockholders are executing this Agreement in
order to agree to vote any shares of Series Y Preferred Stock acquired at the
Initial Closing for the Required Stockholder Approvals.
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
of the Purchase Agreement, the execution and delivery by certain holders of DSLN
capital stock of the Voting 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 as follows:
(i) 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 (as defined below) 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 permitted by Section 3, any Shares
issued to the Stockholder at the Initial Closing pursuant to the terms
of the Purchase Agreement will be held by such Stockholder during the
term hereof, 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.
(b) DSLN represents and warrants to the Stockholders that this
Agreement has been duly authorized, executed and delivered by and constitutes a
valid and binding agreement of DSLN, 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 DSLN is a party.
2. Voting Agreement. The Stockholder severally agrees with, and
covenants to, DSLN 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 shares of Series Y Preferred Stock or DSLN capital stock
that the Stockholder may acquire in the future (collectively, the "Shares") 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 that prior to the termination of this Agreement, the Stockholder shall not
(i) 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 unless prior to such
transfer such transferee executes this Agreement.
4. Grant of Irrevocable Proxy; Appointment of Proxy.
(a) The Stockholder hereby irrevocably grants to, and
appoints, Xxxxx Xxxxxxx and Xxxxxxx Xxxxxxxx, and each of them
individually, in their respective
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capacities as officers of the Company, and any individual who shall
hereafter succeed such person in such office at the Company, 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, 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 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 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 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.
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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 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 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 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.
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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/ Xxxxxxx Xxxxxxxx
-------------------------------------------
Title: Vice President
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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/ Xxxxx Xxxxxx
---------------------
Name: Xxxxx Xxxxxx
Manager
COLUMBIA CAPITAL EQUITY PARTNERS II (QP), L.P.
By: Columbia Capital Equity Partners, LLC
its general partner
By: /s/ Xxxxx Xxxxxx
---------------------
Name: Xxxxx Xxxxxx
Manager
COLUMBIA CARDINAL PARTNERS, LLC
By: Columbia Capital, L.L.C.
Managing Member
By: /s/ Xxxxxx X. Xxxxxxx
---------------------
Name: Xxxxxx X. Xxxxxxx
Chief Financial Officer
COLUMBIA BROADSLATE PARTNERS, LLC
By: Columbia Capital III, L.L.C.
Managing Member
By: /s/ Xxxxxx X. Xxxxxxx
---------------------
Name: Xxxxxx X. Xxxxxxx
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/ Xxxxxx X. Xxxxxxx
---------------------
Name: Xxxxxx X. Xxxxxxx
Chief Financial Officer
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XXXXXXX RIVER PARTNERSHIP X,
A LIMITED PARTNERSHIP
By: Xxxxxxx River X GP, LLC
General Partner
By:/s/ Xxxx Xxxxxx, Xx.
--------------------
Name: Xxxx Xxxxxx, Xx.
Title: General Partner
XXXXXXX RIVER PARTNERSHIP X-A,
A LIMITED PARTNERSHIP
By: Xxxxxxx River X GP, LLC,
General Partner
By:/s/ Xxxx Xxxxxx, Xx.
--------------------
Name: Xxxx Xxxxxx, Xx.
Title: General Partner
XXXXXXX RIVER FRIENDS X-B, LLC
By: Xxxxxxx River Friends, Inc.
Manager
By:/s/ Xxxx Xxxxxx, Xx.
--------------------
Name: Xxxx Xxxxxx, Xx.
Title: General Partner
XXXXXXX RIVER FRIENDS X-C, LLC
By: Xxxxxxx River Friends, Inc.
Manager
By:/s/ Xxxx Xxxxxx, Xx.
--------------------
Name: Xxxx Xxxxxx, Xx.
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/ Xxxxxx Xxxxxxx
--------------------------------------
Xxxxxx Xxxxxxx
Vice President
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N.I.G. - BROADSLATE, LTD.
By: /s/ Xxxxxx Xxxxx
---------------------------------------
Name: Xxxxxx Xxxxx
Title: Managing Director
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