EXHIBIT 10.23
ASSIGNMENT AND ASSUMPTION AGREEMENT
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This ASSIGNMENT AND ASSUMPTION AGREEMENT (the "Assignment") is entered
into as of March 22, 1999, by and between NorthPoint Communications, Inc., a
Delaware corporation ("Assignor"), and NorthPoint Communications Holdings, Inc.,
a Delaware corporation ("Assignee").
RECITALS
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WHEREAS, Assignor intends to consummate a reorganization (the
"Reorganization") pursuant to which Assignor will become a wholly owned
subsidiary of Assignee.
WHEREAS, Assignor has entered into an Agreement and Plan of Merger
(the "Merger Agreement") with NorthPoint Merger Sub, Inc., a Delaware
corporation and a wholly owned subsidiary of Assignee ("Merger Sub"), pursuant
to which Merger Sub will merge (the "Merger") with and into Assignor, with
Assignor surviving the Merger as the "Surviving Corporation" and a wholly owned
subsidiary of Assignee.
WHEREAS, as a result of the Reorganization and by operation of law,
each of the holders of capital stock of Assignor immediately prior to the
consummation of the Reorganization will become the only holders of capital stock
of Assignee immediately after the consummation of the Reorganization, each
holding the same number of shares of capital stock of the same class of the
Assignee with the same rights, privileges, terms and conditions as the shares of
capital stock of Assignor held by such holders immediately prior to the
consummation of the Reorganization. The Assignee owns all of the capital stock
of the Assignor and has no other significant assets.
WHEREAS, subject to this Assignment, Assignor wishes assign, transfer
and convey all of its rights and obligations under the contracts listed on
Schedule 1 attached hereto (the "Assigned Contracts") to the Assignee on the
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terms set forth herein, and Assignee wishes to accept assignment of such rights
and to assume such obligations from Assignor on such terms.
AGREEMENT
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NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Assignor does hereby assign, grant, bargain, sell, convey and
transfer to Assignee, and Assignee does hereby assume, all of Assignor's
right, title and interest in and to the Assigned Contracts, including, but not
limited to, all obligations and liabilities, of any nature whatsoever,
currently existing under the Assigned Contracts. This Assignment will replace
Assignee for Assignor under the Assigned Contracts.
2. As of the date hereof, all rights, obligations and liabilities of
Assignor under the Assigned Contracts shall terminate, and Assignee shall
assume all of Assignor's rights, obligations and liabilities under the
Assigned Contracts.
3. This Assignment shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns.
4. No modification, waiver, amendment, discharge or change of this
Assignment shall be valid unless the same is in writing and signed by the
party against whom such modification, waiver, amendment, discharge or change
is sought to be enforced.
5. This Assignment shall be governed by, and construed in accordance
with, the internal laws of the State of California, without regard to conflict
of laws principles.
6. This Assignment may be executed in counterparts and by facsimile
signature, each of which shall be deemed to be an original, and all of which
together shall constitute one agreement binding on the parties hereto.
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IN WITNESS WHEREOF, the parties hereto have executed this Assignment
and Assumption Agreement as of the date first written above.
NORTHPOINT COMMUNICATIONS, INC.,
a Delaware corporation
By: /s/ Xxxxxxx Malaga
________________________________
Xxxxxxx Malaga,
Chief Executive Officer
NORTHPOINT COMMUNICATIONS HOLDINGS, INC.,
a Delaware corporation
By: /s/ Xxxxxxx Malaga
________________________________
Xxxxxxx Malaga,
President
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SCHEDULE 1
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ASSIGNED CONTRACTS
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1. Common Stock Purchase Agreements between FirstMile Communications, Inc.
and Xxxxxx Xxxxx, Xxxxxx Xxxxxxx, Xxxxxxx Malaga, Xxxxxxx Xxxxxxx and
Xxxxxx Xxxxxx, dated June 4, 1997.
2. Common Stock Purchase Agreements between NorthPoint Communications, Inc. and
Xxxxxxx Xxxxx, dated August 13, 1997.
3. Series B Preferred Stock Purchase Agreement among NorthPoint Communications,
Inc. and certain of its stockholders, dated August 13, 1997.
4. Second Series B Preferred Stock Purchase Agreement among NorthPoint
Communications, Inc. and certain of its stockholders, dated August 13, 1997.
5. Amended and Restated Series C Preferred Stock Purchase Agreement among
NorthPoint Communications, Inc. and certain of its stockholders, dated
January 20, 1999.
6. Addendum to Series C Preferred Stock Purchase Agreement among NorthPoint
Communications, Inc. and certain of its stockholders, dated August 26, 1998.
7. Side letter relating to the purchase of Series C Preferred Stock between
NorthPoint Communications, Inc. and the Carlyle Group, dated February 19,
1999.
8. Warrant-for-End User Agreement dated as of August 26, 1998 between
NorthPoint Communications, Inc. and Intel Corporation.
9. Series C Preferred Stock Purchase Warrant between NorthPoint Communications,
Inc. and Intel Corporation, dated August 26, 1998.
10. Board Observer Agreement between NorthPoint Communications, Inc. and Intel
Corporation, dated August 26, 1998.
11. Side letter relating to information rights between NorthPoint
Communications, Inc. and Intel Corporation, dated January 19, 1999.
12. Warrant Agreement dated May 20, 1998, between NorthPoint Communications,
Inc. and Xxxxxx Xxxxxxx Bridge Fund, L.L.C. (the "May Warrant Agreement").
13. Warrant Agreement dated July 10, 1998, between NorthPoint Communications,
Inc. and Xxxxxx Xxxxxxx Senior Funding, Inc. (the "July Warrant
Agreement").
14. Warrant No. 2 dated May 20, 1998, issued by NorthPoint Communications, Inc.
under the May Warrant Agreement representing 250,000 warrants.
15. Warrant No. 2 dated November 2, 1998, issued by NorthPoint Communications,
Inc. under the July Warrant Agreement representing 42,857 1/7 warrants.
16. Warrant No. 3 dated December 1, 1998, issued by NorthPoint Communications,
Inc. under the July Warrant Agreement representing 42,857 1/7 warrants.
17. Warrant No. 4 dated December 29, 1998, issued by NorthPoint Communications,
Inc. under the July Warrant Agreement representing 64,285 5/7 warrants.
18. Warrant No. 5 dated February 2, 1999, issued by NorthPoint Communications,
Inc. under the July Warrant Agreement representing 42,857 1/7 warrants.
19. Warrant No. 6 dated March 1, 1999, issued by NorthPoint Communications,
Inc. under the July Warrant Agreement representing 42,857 1/7 warrants.
20. Warrant No. 7 dated July 10, 1998, issued by NorthPoint Communications,
Inc. under the July Warrant Agreement representing 750,000 warrants.
21. Side letter relating to information rights between NorthPoint
Communications, Inc. and At Home Corporation, dated February 1999.
22. Side letter relating to the purchase of Series C Preferred Stock between
NorthPoint Communications, Inc. and Vulcan Ventures Incorporated, dated
February 19, 1999.
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