EXHIBIT 99.03
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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"), 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,
Xxxxx Xxxxxx, Partner of Columbia Capital LLC ("Columbia Capital"),
and Xxxx Xxxxxxxxx, 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/ Xxxxx X. Xxxxxxx
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Title: Chairman & CEO
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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/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
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Managing Member
VANTAGEPOINT VENTURE PARTNERS III, L.P.
By: VantagePoint Venture Associates III,
L.L.C., its general partner
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
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Managing Member
VANTAGEPOINT COMMUNICATIONS PARTNERS, L.P.
By: VantagePoint Communications Associates,
L.L.C., its general partner
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
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Managing Member
VANTAGEPOINT VENTURE PARTNERS 1996, L.P.
By: VantagePoint Associates, L.L.C., its
general partner
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
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"INVESTORS":
COLUMBIA CAPITAL EQUITY PARNTERS
II (QP), L.P.
By: Columbia Capital Equity Partners, L.L.C.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
---------------------------------
Title: Partner
--------------------------------
COLUMBIA CAPITAL EQUITY PARNTERS
III (QP), L.P.
By: Columbia Capital Equity Partners III, L.P.
Its: General Partner
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
---------------------------------
Title: Partner
--------------------------------
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XXXXXXX RIVER PARTNERSHIP X, A LIMITED
PARTNERSHIP
By: Xxxxxxx River X GP, LLC, General Partner
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
----------------------------------------
Name: Xxxxxxx X. 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
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Name: Xxxxxx Xxxxx
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Title: Managing Director
---------------------------------
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SCHEDULE 1
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---------------------------------- --------------------- ---------- --------
Stockholder's Name Series X Preferred As
Converted into Common Common Warrants
---------------------------------- --------------------- ---------- --------
---------------------------------- --------------------- ---------- --------
Vantagepoint Venture Partners 29,705,555.55 1,361,037 0
III (Q), L.P.
---------------------------------- --------------------- ---------- --------
---------------------------------- --------------------- ---------- --------
Vantagepoint Venture Partners 3,627,777.77 168,218 0
III, L.P.
---------------------------------- --------------------- ---------- --------
---------------------------------- --------------------- ---------- --------
Vantagepoint Communications 11,111,111.11 13,562,330 55,544
Partners, L.P.
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---------------------------------- --------------------- ---------- --------
Vantagepoint Venture Partners 11,111,111.11 6,781,164 27,770
1996, L.P.
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---------------------------------- --------------------- ---------- --------
Totals 55,555,555.54 21,872,749 83,314
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