Exhibit 5
VOTING AND LOCK-UP AGREEMENT
This Voting and Lock-Up Agreement (this "Agreement") is made
and entered into as of August 7, 2000 by and between Verizon Ventures I
Inc., a Delaware corporation ("Parent"), and the stockholders named on the
signature pages hereof (each a "Stockholder").
WHEREAS, concurrently with the execution of this Agreement,
Parent, Bell Atlantic Corporation (d/b/a Verizon Communications), Verizon
Ventures II Inc., a Delaware corporation and wholly owned subsidiary of
Parent ("Merger Subsidiary"), and NorthPoint Communications Group, Inc., a
Delaware corporation (the "Company"), have entered into an Agreement and
Plan of Merger dated as of August 7, 2000 (the "Merger Agreement"),
providing for the merger of Merger Subsidiary with and into the Company
(the "Merger"), pursuant to which the Company will become a wholly owned
subsidiary of Parent;
WHEREAS, each Stockholder is the sole record and beneficial
owner of the number of shares of capital stock or other equity interests in
the Company as is indicated on the applicable signature page of this
Agreement (the "Shares"); and
WHEREAS, in consideration of and to induce the execution of the
Merger Agreement by Parent, each Stockholder agrees to certain transfer
restrictions and voting requirements to facilitate consummation of the
Merger as more fully described below.
NOW, THEREFORE, in consideration of the mutual promises and the
mutual covenants and agreements contained herein, the parties agree as
follows:
1. Agreement to Retain Shares. Except as expressly contemplated
by the Merger Agreement, each Stockholder agrees not to transfer, pledge,
hypothecate, sell, grant a security interest in, assign, exchange or offer
to transfer or sell or otherwise dispose of, or encumber, grant any proxy
or power of attorney, deposit any Shares into a voting trust or enter into
a voting agreement, understanding or arrangement with respect to any of the
Shares at any time prior to consummation of the Merger or the Expiration
Date, as defined herein. The "Expiration Date" shall mean the date on which
the Merger Agreement shall have been terminated pursuant to Article IX of
the Merger Agreement.
2. Agreement to Vote Shares. At any meeting of the stockholders
of the Company called with respect to the Merger, the Merger Agreement and
any other transactions contemplated thereby, and at any adjournment or
adjournments thereof, and with respect to any consent or proxies solicited
with respect to the Merger, the Merger Agreement and any other transactions
contemplated thereby, each Stockholder shall vote the Shares (a) in favor
of approval of the Merger Agreement, including any amendments thereto, and
the Merger and any matter which could reasonably be expected to facilitate
the Merger and (b) against any alternative transaction or any other matter
which could reasonably be expected to facilitate the consummation of an
alternative transaction. Each Stockholder, as the holder of Shares, shall
be present, in person or by proxy, at all meetings of stockholders of the
Company or at any adjournment or adjournments thereof so that all Shares
are counted for the purpose of determining the presence of a quorum at such
meetings.
3. Irrevocable Proxy. Concurrently with the execution of this
Agreement, each Stockholder agrees to deliver to Parent a proxy in the form
attached hereto as Annex A (the "Proxy"), which shall be irrevocable to the
extent provided therein; provided that the Proxy shall be revoked upon the
Expiration Date. The Proxy shall be coupled with an interest in such
obligations and in the interests in the Company to be purchased and sold
pursuant to the Merger Agreement.
4. Appraisal Rights. Each Stockholder hereby irrevocably waives
any rights of appraisal with respect to the Merger or rights to dissent
from the Merger that the Stockholder may have.
5. Additional Purchases. For purposes of this Agreement, the
term "Shares" shall include any shares of capital stock or other equity
interests of the Company which the Stockholder purchases or otherwise
acquires after the execution of this Agreement and prior to the Expiration
Date, including, without limitation, by exercise of options or warrants.
6. Representations, Warranties and Covenants of the
Stockholder. Each Stockholder hereby represents, warrants and covenants to
Parent that, except as specifically described on Annex B to this Agreement,
each Stockholder (i) is the sole record and beneficial owner of the Shares,
which at the date hereof and at all times until the Expiration Date will be
free and clear of any liens, claims, options, charges or other encumbrances
and (ii) has full power and authority to make, enter into, deliver and
carry out the terms of this Agreement and the Proxy.
7. Representations, Warranties and Covenants of Parent. Parent
represents, warrants and covenants to each Stockholder that this Agreement
(i) has been authorized by all necessary corporate action on the part of
Parent and has been duly executed by a duly authorized officer of Parent
and (ii) constitutes the legal, valid and binding obligation of Parent.
Neither the execution of this Agreement by Parent nor the consummation of
the transactions contemplated hereby will result in a breach or violation
of the terms of any agreement by which Parent is bound or of any decree,
judgment, order, law or regulation now in effect of any court or other
governmental body applicable to Parent.
8. Additional Documents. Each of the Stockholders and Parent
hereby covenant and agree to execute and deliver any additional documents
necessary or desirable, in the reasonable opinion of Parent's legal counsel
or such Stockholder, as the case may be, to carry out the intent of this
Agreement.
9. Consent and Waiver. Each Stockholder hereby gives any
consent or waivers that are reasonably required for the consummation of the
Merger under the terms of any agreement to which such Stockholder is a
party or pursuant to any rights such Stockholder may have.
10. Miscellaneous.
(a) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction
to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Agreement shall remain in
full force and effect and shall in no way be affected, impaired or
invalidated.
(b) Binding Effect and Assignment. This Agreement and all of
the provisions hereof shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns, but,
except as otherwise specifically provided herein, neither this Agreement
nor any of the rights, interests or obligations of the parties hereto may
be assigned by any of the parties without the prior written consent of the
other.
(c) Amendments and Modifications. This Agreement may not be
modified, amended, altered or supplemented except upon the execution and
delivery of a written agreement executed by the parties hereto.
(d) Specific Performance; Injunctive Relief. The parties hereto
acknowledge that Parent will be irreparably harmed and that there will be
no adequate remedy at law for a violation of any of the covenants or
agreements of the Stockholder set forth herein. Therefore, it is agreed
that, in addition to any other remedies which may be available to Parent
upon such violation, Parent shall have the right to enforce such covenants
and agreements by specific performance, injunctive relief or by any other
means available to it at law or in equity.
(e) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and sufficient if delivered in
person, by commercial overnight courier service, by confirmed telecopy, or
sent by mail (registered or certified mail, postage prepaid, return receipt
requested) to the respective parties as follows:
(i) if to Parent, to:
Verizon Ventures I Inc.
c/o Bell Atlantic Corporation (d/b/a Verizon
Communications)
1717 Arch Street, 29th Floor
Philadelphia, Pennsylvania 19103
Attention: Stephen E. Smith
Telecopy: (215) 557-7249
with copies to:
Bell Atlantic Corporation (d/b/a Verizon Communications)
1095 Avenue of the Americas
New York, New York 10036
Attention: Marianne Drost
Telecopy: (212) 764-2739
and
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, New York 10036
Attention: Martha E. McGarry, Esq.
Telecopy: (212) 735-2000
(ii) if to any Stockholder, to the address set forth on the
applicable signature page hereto;
or to such other address as either party may have furnished to
the other in writing in accordance herewith, except that
notices of change of address shall only be effective upon
receipt.
(f) Termination. This Agreement shall terminate upon the
termination of the Merger Agreement in accordance with its terms.
(g) Governing Law. This Agreement shall be governed by,
construed and enforced in accordance with the laws of the State of Delaware
without giving effect to principles of conflicts of law.
(h) Entire Agreement. This Agreement contains the entire
understanding of the parties in respect of the subject matter hereof, and
supersedes all prior negotiations and understandings between the parties
with respect to such subject matter.
(i) Counterparts. This Agreement may be executed in
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
(j) Effect of Headings. The section headings herein are for
convenience only and shall not affect the construction or interpretation of
this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed on the day and year first above written.
VERIZON VENTURES I INC.
By:/s/ Illegible
------------------------------
Name:
Title:
STOCKHOLDER
By: /s/ Dwight Sipprelle
------------------------------
Name: Dwight Sipprelle
Stockholder's Address for Notice:
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, NY 10036
Attention: Andrew Woeker
Shares subject to this agreement:
1,432,233 shares of Common Stock
---------
IRREVOCABLE PROXY
The undersigned holder of shares of capital stock or other
equity interests (the "Stockholder") of NorthPoint Communications Group,
Inc., a Delaware corporation (the "Company"), hereby irrevocably appoints
and constitutes Philip Seskin, Stephen E. Smith and Mark A. Smith, and each
of them (the "Proxy Holders"), the agents and proxies of the undersigned,
with full power of substitution and resubstitution, to the full extent of
the undersigned's rights with respect to the shares of capital stock or
other equity interests beneficially owned by the undersigned, which shares
are listed below (the "Shares"), and any and all other shares or securities
issued or issuable in respect thereof on or after the date hereof and prior
to the date this proxy is terminated, to vote the Shares as follows:
The agents and proxies named above are empowered at any time
prior to termination of this proxy to exercise all voting and other rights
(including, without limitation, the power to execute and deliver written
consents with respect to the Shares) of the undersigned at every annual,
special or adjourned meeting of the stockholders of the Company, and in
every written consent in lieu of such a meeting, or otherwise, (a) in favor
of approval of the Merger (as defined in the Voting and Lock-Up Agreement,
dated as of August 7, 2000 (the "Voting Agreement"), between the
stockholders named therein and Verizon Ventures I Inc. ("Parent")) and that
certain Agreement and Plan of Merger, including any amendments thereto (the
"Merger Agreement"), dated as of August 7, 2000, by and among Parent,
Verizon Ventures II Inc., the Company and Bell Atlantic Corporation (d/b/a
Verizon Communications), and any matter which could reasonably be expected
to facilitate the Merger and (b) against any alternative transaction or any
other matter which could reasonably be expected to facilitate the
consummation of an alternative transaction. The Proxy Holders may not
exercise this proxy on any other matter. The Stockholder may vote the
Shares on all such other matters.
The proxy granted by the Stockholder to the Proxy Holders
hereby is granted as of the date of this proxy in order to secure the
obligations of the Stockholder set forth in Section 2 of the Voting
Agreement, and is irrevocable and coupled with an interest in such
obligations and in the interests in the Company pursuant to the Merger
Agreement. This proxy will terminate upon the termination of the Voting
Agreement in accordance with its terms.
Upon the execution hereof, all prior proxies in conflict with
this proxy given by the undersigned with respect to the Shares and any and
all other shares or securities issued or issuable in respect thereof on or
after the date hereof are hereby revoked and no subsequent proxies will be
given until such time as this proxy shall be terminated in accordance with
its terms.
Any obligation of the undersigned hereunder shall be binding
upon the successors and assigns of the undersigned. The Stockholder
authorizes the Proxy Holders to file this proxy and any substitution or
revocation of substitution with the Secretary of the Company and with any
Inspector of Elections at any meeting of the stockholders of the Company.
* * * * *
This proxy is irrevocable and shall survive the insolvency,
incapacity, death or liquidation of the undersigned.
Dated: August 7, 2000
STOCKHOLDER
By:______________________________
Name:
Shares owned beneficially and of record:
________ shares of Common Stock
________ shares of Common Stock issuable pursuant to warrants
________ any other direct or indirect equity interests in the Company
(please specify)
ANNEX B
ENCUMBRANCES UPON THE SHARES HELD BY THE UNDERSIGNED
