SHAREHOLDER VOTING AGREEMENT among MANHATTAN and THE INDIVIDUALS LISTED ON THE SIGNATURE PAGE HERETO Dated as of June 20, 2006
EXHIBIT
4
among
MANHATTAN
and
THE
INDIVIDUALS LISTED ON THE SIGNATURE PAGE HERETO
Dated
as
of June 20, 2006
TABLE
OF
CONTENTS
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Page
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SECTION
1.
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Representations
and Warranties of the Shareholders
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1
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SECTION
2.
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Representations
and Warranties of Purchaser
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2
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SECTION
3.
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Covenants
of the Shareholder
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3
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SECTION
4.
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Further
Assurances
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4
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SECTION
5.
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Assignment
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4
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SECTION
6.
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Transfers
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4
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SECTION
7.
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Termination
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4
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SECTION
8.
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General
Provisions
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4
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SECTION
9.
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Jurisdiction
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6
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SECTION
10.
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Service
of Process
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6
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SECTION
11.
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Waiver
of Jury Trial
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6
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SECTION
12.
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Headings
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6
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i
SHAREHOLDER
VOTING AGREEMENT dated as of June 20, 2006 (this “Agreement”),
among
MANHATTAN TELECOM B.V., a private limited liability company with its registered
office at The ▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇, and incorporated under the laws of the
Netherlands (“Purchaser”),
and
THE PARTIES LISTED ON THE SIGNATURE PAGE HERETO (such persons are individually
referred to herein as a “Shareholder”
and
collectively as the “Shareholders”).
WHEREAS
Purchaser and Volcano, a Delaware corporation (the “Company”),
propose to enter into a Share Purchase and Sale Agreement dated as of the date
hereof and in the form attached hereto as Exhibit A (the “Share
Purchase Agreement”),
providing for the purchase by the Purchaser of newly issued ordinary shares
of
common stock, par value $0.001 per share (the “Shares”),
that
shall represent, immediately after issuance, 51 % of the Fully Diluted number
of
shares of Common Stock of the Company at the close of business on the day before
the Closing Date, in exchange for (i) all of the issued and outstanding shares
of the newly created subsidiary of Purchaser that, together with its
subsidiaries and WVS-I U.S., encompasses Purchaser’s international traffic
trading business and (ii) $55,000,000 in cash, upon the terms and subject to
the
conditions set forth in the Share Purchase Agreement;
WHEREAS
each Shareholder will notify Purchaser, on June 21, 2006, of the number of
shares of capital stock of the Company which it beneficially owns (such shares
of capital stock of the Company, together with any other shares of capital
stock
of the Company subsequently acquired (of record or beneficially) by such
Shareholder, the “Subject
Shares”);
and
WHEREAS
as a condition to its willingness to enter into the Share Purchase Agreement,
Purchaser has required that the Shareholders enter into this
Agreement.
NOW,
THEREFORE, in consideration of the foregoing and the representations,
warranties, covenants and agreements set forth herein, the parties hereto agree
as follows. Terms used but not defined herein shall have the meaning set forth
in the Share Purchase Agreement:
SECTION
1. Representations
and Warranties of the Shareholders.
Each
Shareholder, severally and not jointly, hereby represents and warrants to
Purchaser as follows:
(a)
Execution
and Delivery; Enforceability.
This
Agreement has been duly executed and delivered by such Shareholder and, assuming
the due execution and delivery by Purchaser, this Agreement constitutes a legal,
valid and binding obligation of such Shareholder, enforceable against such
Shareholder in accordance with its terms subject, as to enforcement, to
applicable bankruptcy, insolvency, moratorium, reorganization or similar laws
affecting creditors’ rights
generally
and to general equitable principles. The execution and delivery by such
Shareholder of this Agreement and the consummation of the transactions
contemplated by this Agreement and compliance by such Shareholder with the
provisions of this Agreement do not and will not conflict with, or result in
any
breach of, or constitute default under, or result in the creation of any Lien
upon any of the Subject Shares of such Shareholder under, any provision of
(1)
its organizational documents, if applicable, (ii) any Contract to which such
Shareholder is a party or by which any of its properties or assets is bound
or
(iii) any Judgment or Applicable Law applicable to such Shareholder or its
properties or assets, other than, in the case of clauses (ii) and (iii) above,
any such items that, individually or in the aggregate, have not had and could
not reasonably be expected to have a material adverse effect on the ability
of
such Shareholder to perform its obligations under this Agreement. No Consent
of,
or registration, declaration or filing with, any Governmental Entity is required
to be obtained or made by or with respect to such Shareholder in connection
with
the execution, delivery and performance of this Agreement or the consummation
of
the transactions contemplated by this Agreement, other than (A) such filings
under the Exchange Act as may be required in connection with this Agreement
and
the transactions contemplated in this Agreement and (B) such other consents,
approvals, orders, authorizations, registrations, declarations and filings
the
failure of which to be obtained or made individually or in the aggregate would
not or would not reasonably be expected to impair in any material respect the
ability of such Shareholder to perform his obligations under this Agreement
or
prevent the consummation of any of the transactions contemplated by this
Agreement.
(b)
The
Subject Shares.
On June
21, 2006, each Shareholder will provide Purchaser with the number of Subject
Shares of which it is the beneficial owner as of the date of this Agreement.
Such Shareholder has the sole right to vote such Subject Shares, and such
Subject Shares are not subject to any proxies, voting trust or other agreement,
understanding, arrangement or restriction with respect to the voting of such
Subject Shares, except as contemplated by this Agreement and arising under
Federal or state securities laws.
SECTION
2. Representations
and Warranties of Purchaser.
Purchaser represents and warrants to each Shareholder as follows:
(a)
Organization
and Authority.
Purchaser is a corporation duly organized, validly existing and in good standing
under the laws of its jurisdiction of incorporation and has full corporate
power
and authority to conduct its business as presently conducted.
(b)
Authorization;
Noncontravention.
Purchaser has full corporate power and authority to execute this Agreement
and
to consummate the transactions contemplated to be consummated by it by this
Agreement. Purchaser has duly executed and delivered this Agreement and,
assuming the due execution and delivery by each Shareholder, this Agreement
constitutes a legal, valid and binding obligation, enforceable against it in
accordance with its terms subject, as
2
to
enforcement, to applicable bankruptcy, insolvency, moratorium, reorganization
or
similar laws affecting creditors’ rights generally and to general equitable
principles. The execution and delivery by Purchaser of this Agreement and the
consummation by Purchaser of the transactions contemplated to be consummated
by
it by this Agreement do not and will not conflict with, or result in any breach
of or constitute a default under, or result in the creation of any Lien upon
any
of the shares of Purchaser under, any provision of (i) its organizational
documents, (ii) any Contract to which Purchaser is a party or by which any
of
its properties or assets is bound or (iii) any Judgment or Applicable Law
applicable to Purchaser or its properties or assets, other than, in the case
of
clauses (ii) and (iii) above, any such items that, individually or in the
aggregate, have not had and could not reasonably be expected to have a material
adverse effect on Purchaser.
SECTION
3. Covenants
of the Shareholder.
Each
Shareholder, severally and not jointly, covenants and agrees as
follows:
(a)
To
the
extent the Share Purchase Agreement has been approved and recommended by the
Company’s board of directors, and such approval and consent has not been
withdrawn or revoked, at any meeting of the shareholders of the Company called
to vote upon the Share Purchase Agreement, the Share Issuance or any of the
other transactions or matters contemplated by the Share Purchase Agreement,
or
at any adjournment thereof, or in any other circumstances upon which a vote,
consent or other approval (including by written consent) with respect to the
Share Purchase Agreement, the Share Issuance or any of the other transactions
or
matters contemplated by the Share Purchase Agreement is sought, each Shareholder
shall vote (or cause to be voted) all the shares of Company which it
beneficially owns at such time in favor of, and shall consent to (or cause
to be
consented to), the approval of the Share Purchase Agreement, the Share Issuance
and the terms thereof and each of the other transactions and matters
contemplated by the Share Purchase Agreement.
(b)
To
the
extent the Share Purchase Agreement has been approved and recommended by the
Company’s board of directors, and such approval and consent has not been
withdrawn or revoked, at any meeting of the shareholders of the Company or
at
any adjournment thereof or in any other circumstances upon which a vote, consent
or other approval (including by written consent) of the shareholders of the
Company is sought, each Shareholder shall vote (or cause to be voted) all the
shares of Company which it owns beneficially at such time against, and shall
not
consent to (and shall cause not to be consented to) any proposal, action or
transaction involving the Company or any of its subsidiaries or any of its
shareholders, which proposal, action or transaction would in any manner impede,
frustrate, prevent or delay the consummation of the transactions contemplated
by
the Share Purchase Agreement or this Agreement or change in any manner the
voting rights of the holders of the shares of capital stock of the Company
(collectively, “Frustrating
Transactions”).
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SECTION
4. Further
Assurances.
Each
Shareholder shall, from time to time, execute and deliver, or cause to be
executed and delivered, such additional or further consents, documents and
other
instruments as Purchaser may reasonably request for the purpose of effectuating
the matters covered by this Agreement.
SECTION
5. Assignment.
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 hereto without the prior written consent of
the
other party hereto, except that Purchaser may assign, in its sole discretion,
any of or all its rights, interests and obligations under this Agreement to
any
direct or indirect wholly owned subsidiary of Purchaser. Any purported
assignment in violation of this Section 7 shall be null and void.
SECTION
6. Transfers.
Nothing
in this Agreement shall limit or interfere with each Shareholders’ right to
sell, transfer, pledge, assign or otherwise dispose of (including by gift)
(collectively, “Transfer”), or consent to or permit any Transfer of, any Subject
Shares or any interest therein, or enter into any loan or credit agreement,
bond, debenture, note, mortgage, indenture, lease or other contract, commitment,
agreement, option, instrument, arrangement, understanding, obligation or
undertaking, with respect to the Transfer (including any profit sharing or
other
derivative arrangement) of any Subject Shares or any interest therein, to any
person.
SECTION
7. Termination.
This
Agreement, shall terminate upon the earlier of (i) the Closing and (ii)
termination of the Share Purchase Agreement in accordance with its terms, other
than with respect to the liability of any party for breach hereof prior to
such
termination.
SECTION
8. General
Provisions.
(a)
Amendments.
This
Agreement may not be amended except by an instrument in writing signed on behalf
of each of the parties.
(b)
Notices.
All
notices, requests, permissions, waivers and other communications hereunder
shall
be in writing and shall be deemed to have been duly given (a) five business
days
following sending by registered or certified mail, postage prepaid, (b) when
sent, if sent by facsimile, provided that the facsimile transmission is promptly
confirmed by telephone, (c) when delivered, if delivered personally to the
intended recipient and (d) one business day following sending by overnight
delivery via a national courier service and, in each case, addressed to a party
at the following address for such party:
if
to the
Purchaser:
Manhattan
▇▇▇▇▇▇▇▇▇
▇, ▇▇▇▇ ▇▇
▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Attention:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Facsimile:
▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
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with
a
copy to:
Cravath,
Swaine & ▇▇▇▇▇ LLP
▇▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Attention:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Facsimile:
▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
if
to the
Shareholders:
c/o
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇ LLP
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
(c)
Interpretation.
The
representations, warranties and covenants contained herein shall be deemed
to be
made severally, and not jointly, by each of the Shareholders.
(d)
Counterparts;
Effectiveness.
This
Agreement may be executed by any one or more of the parties hereto in any number
of counterparts, all such respective counterparts shall together constitute
one
and the same instrument, and shall be delivered in person, by facsimile, or
by
electronic image scan. The effectiveness of this Agreement shall be conditioned
upon the execution and delivery of the Share Purchase Agreement by each of
the
parties thereto in the form attached hereto as Exhibit A.
(e)
Entire
Agreement; No Third-Party Beneficiaries.
This
Agreement constitutes the entire agreement among the parties hereto with respect
to the subject matter hereof and thereof. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
and
therein. This Agreement supersedes all prior agreements and understandings
among
the parties hereto with respect to the subject matter hereof and thereof. This
Agreement is for the sole benefit of the parties hereto, their permitted assigns
(consistent with Section 7 of this Agreement), and nothing herein expressed
or
implied shall give or be construed to give to any person, other than the parties
hereto and such assigns, any legal or equitable rights hereunder.
(f)
GOVERNING
LAW.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE
STATE OF NEW YORK WITHOUT GIVING EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS
OF LAW.
(g)
Severability.
If any
term or other provision of this Agreement is invalid, illegal or incapable
of
being enforced by any rule or law or public policy, all other conditions and
provisions of this Agreement shall nevertheless remain in full force and effect
so long as the economic or legal substance of the transactions contemplated
hereby is not affected in any manner materially adverse to any party. Upon
such
5
determination
that any term or other provision is invalid, illegal or incapable of being
enforced, the parties shall negotiate in good faith to modify this Agreement
so
as to effect the original intent of the parties as closely as possible in an
acceptable manner to the end that transactions contemplated hereby are fulfilled
to the extent possible.
SECTION
9. Jurisdiction.
Each
party irrevocably agrees that any legal action, suit or proceeding against
them
arising out of or in connection with this Agreement or the transactions
contemplated by this Agreement or disputes relating hereto (whether for breach
of contract, tortious conduct or otherwise) shall be brought exclusively in
the
U.S. District Court for the Southern District of New York, or, if such court
does not have subject matter jurisdiction, the state courts of New York located
in New York County and hereby irrevocably accepts and submits to the exclusive
jurisdiction and venue of the aforesaid courts in personam,
with
respect to any such action, suit or proceeding.
SECTION
10. Service
of Process.
Each of
the parties agrees that service of any process, summons, notice or document
by
U.S. registered mail to such party’s respective address set forth above shall be
effective service of process for any action, suit or proceeding in New York
with
respect to any matters for which it has submitted to jurisdiction pursuant
to
Section 9.
SECTION
11. Waiver
of Jury Trial.
Each
party hereby waives, to the fullest extent permitted by Applicable Law, any
right it may have to a trial by jury in respect to any litigation directly
or
indirectly arising out of, under or in connection with this Agreement or the
transactions contemplated by this Agreement or disputes relating hereto. Each
party (a) certifies that no representative, agent or attorney of any other
party
has represented, expressly or otherwise, that such other party would not, in
the
event of litigation, seek to enforce the foregoing waiver and (b) acknowledges
that it and the other party hereto have been induced to enter into this
Agreement by, among other things, the mutual waivers and certifications in
this
Section 11.
SECTION
12. Headings.
Section
headings are used for convenience only and shall in no way affect the
construction of this Agreement.
6
IN
WITNESS WHEREOF, Purchaser has caused this Agreement to be signed by its officer
thereunto duly authorized and each Shareholder has signed this Agreement, all
as
of the date first written above.
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MANHATTAN,
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By
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/S/
KPN TELECOM B.V.
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Name:
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Title:
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SHAREHOLDERS,
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/S/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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LC
Capital Master Fund, Ltd.
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Name: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
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Title: Authorized
Agent
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/S/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Loeb
Partners Corporation
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Name: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
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Title: Authorized
Agent
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/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Singer
Children’s Management Trust
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Name: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
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Title: Authorized
Agent
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7