SHAREHOLDER VOTING AGREEMENT among KPN TELECOM B.V. and THE INDIVIDUALS LISTED ON THE SIGNATURE PAGE HERETO Dated as of June 20, 2006
EXHIBIT
2
among
KPN
TELECOM B.V.
and
THE
INDIVIDUALS LISTED ON THE SIGNATURE PAGE HERETO
Dated
as
of June 20, 2006
TABLE
OF
CONTENTS
Page
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SECTION
1. Representations and Warranties of the Shareholders
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1
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SECTION
2. Representations and Warranties of Purchaser
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2
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SECTION
3. Covenants of the Shareholder
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3
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SECTION
4. Grant of Irrevocable Proxy; Appointment of Proxy
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4
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SECTION
5. Further Assurances
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4
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SECTION
6. Certain Events
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4
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SECTION
7. Assignment
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5
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SECTION
8. Termination
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5
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SECTION
9. General Provisions
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5
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SECTION
10. Jurisdiction
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7
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SECTION
11. Service of Process
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7
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SECTION
12. Waiver of Jury Trial
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7
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SECTION
13. Headings
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8
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SHAREHOLDER
VOTING AGREEMENT dated as of June 20, 2006 (this “Agreement”),
among
KPN 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 INDIVIDUALS 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 (as the same may be amended or supplemented, 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 owns (of record and beneficially) the number of shares of
capital stock of the Company set forth on Schedule A hereto (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 and in the Share Purchase
Agreement, 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 (i) 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.
Such
Shareholder is the record and beneficial owner of, and has good and marketable
title to, the Subject Shares set forth by the name of such Shareholder on
Schedule A. 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 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
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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)
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, such Shareholder shall
vote (or cause to be voted) all of such Shareholder’s Subject Shares 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)
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,
such Shareholder shall vote (or cause to be voted) all of such Shareholder’s
Subject Shares against, and shall not consent to (and shall cause not to be
consented to with respect to such Subject Shares) 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”).
(c)
Until
the date of the Closing, such Shareholder shall not (i) 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, unless prior
to
any such Transfer the transferee of such Subject Shares enters into a
shareholder voting agreement with Purchaser on terms substantially identical
to
the terms of this Agreement or (ii) enter into any voting
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arrangement,
whether by proxy, voting agreement or otherwise, with respect to any Subject
Shares and shall not commit or agree to take any of the foregoing actions,
other
than pursuant to this Agreement. Such Shareholder shall not, nor shall such
Shareholder permit any entity under such Shareholder’s control to, deposit any
Subject Shares in a voting trust.
SECTION
4. Grant
of Irrevocable Proxy; Appointment of Proxy.
(a) Each
Shareholder hereby irrevocably grants to, and appoints, Purchaser and any
individual designated in writing by Purchaser, such Shareholder’s proxy and
attorney-in-fact (with full power of substitution), for and in the name, place
and stead of such Shareholder, to vote all of the Subject Shares, or grant
a
consent or approval in respect of the Subject Shares, (i) in favor of the
approval of the Share Purchase Agreement, the Share Issuance and each of the
other transactions and matters contemplated by the Share Purchase Agreement,
(ii) against any Frustrating Transaction and (iii) otherwise in
accordance with Section 3 of this Agreement. Each Shareholder understands
and acknowledges that Purchaser is entering into the Share Purchase Agreement
in
reliance upon such Shareholder’s execution and delivery of this
Agreement.
(b)
Each
Shareholder represents that any proxies heretofore given in respect of the
Subject Shares are not irrevocable, and that all such proxies are hereby
revoked.
(c)
Each
Shareholder hereby affirms that the irrevocable proxy set forth in this
Section 4 is given in connection with the Share Purchase Agreement, the
Share Issuance and each of the other transactions and matters contemplated
by
the Share Purchase Agreement, and that such irrevocable proxy is given to secure
the performance of the duties of such Shareholder under this Agreement. Each
Shareholder hereby further affirms that the irrevocable proxy is coupled with
an
interest and may under no circumstances be revoked. Each Shareholder hereby
ratifies and confirms all that such irrevocable proxy may lawfully do or cause
to be done by virtue hereof. Each such irrevocable proxy is executed and
intended to be irrevocable in accordance with the provisions of the Certificate
of Incorporation, the By-laws and Section 212 of the Delaware General
Corporation Law.
(d)
The
proxy granted in this Section 4 shall automatically expire upon the termination
of this Agreement.
SECTION
5. 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, including with respect to the grant
of
the proxy set forth in Section 4.
SECTION
6. Certain
Events.
Each
Shareholder agrees that this Agreement and the obligations hereunder shall
attach to the Subject Shares and shall be binding upon any person or entity
to
which legal or beneficial ownership of the Subject Shares shall pass, whether
by
operation of law or otherwise, including such Shareholder’s
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heirs,
guardians, administrators or successors. In the event of any stock split, stock
dividend, reclassification, merger, reorganization, recapitalization or other
change in the capital structure of the Company affecting the capital stock
of
the Company, the number of Subject Shares listed on Schedule A hereto shall
be adjusted appropriately. In addition, in the event that any Shareholder
acquires any additional shares of capital stock of the Company or other voting
securities of the Company (including through the exercise of any warrants,
stock
options or similar instruments), the number of Subject Shares listed on
Schedule A hereto shall be adjusted to include such additional shares of
capital stock or other voting securities of the Company. This Agreement and
the
representations, warranties, covenants, agreements and obligations hereunder
shall attach to any additional shares of capital stock of the Company or other
voting securities of the Company issued to or acquired by any Shareholder
(including through the exercise of any warrants, stock options or similar
instruments).
SECTION
7. 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.
Subject to the preceding sentences of this Section 7, this Agreement shall
be binding upon, inure to the benefit of and be enforceable by, the parties
hereto and their respective successors and assigns.
SECTION
8. Termination.
This
Agreement, other than Sections 3(b) and 3(c) and Sections 8 through 13, shall
terminate upon the earlier of (i) the day that is one month after the date
of
this Agreement if the Share Purchase Agreement shall not have been signed by
such date, (ii) the Closing and (iii) 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. Sections 3(b) and
3(c)
and Sections 8 through 13 shall terminate upon the earliest of (i) the Closing,
(ii) the termination of the Share Purchase Agreement pursuant to Sections
7.01(a)(i), 7.01(a)(iii) and 7.01(a)(iv) and (iii) 3 months after the
termination of the Share Purchase Agreement pursuant to Section 7.01(a)(vi).
No
termination of this Agreement shall relieve any party hereto from any liability
for any breach of any provision of this Agreement prior to
termination.
SECTION
9. 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
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national
courier service and, in each case, addressed to a party at the following address
for such party:
if
to the
Purchaser:
Manhattan
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Attention: ▇▇▇▇▇
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Facsimile: ▇▇▇
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with
a
copy to:
Cravath,
Swaine & ▇▇▇▇▇ LLP
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Attention: ▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇, Esq.
Facsimile: ▇▇▇
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if
to the
Shareholders:
c/o
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Facsimile: (▇▇▇)
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with
a
copy to:
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ LLP
c/o
▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, Esq.
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Facsimile: (▇▇▇)
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(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.
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(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 the persons specified as
proxies in Section 4, 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
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
10. 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
11. 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 10.
SECTION
12. 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
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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 12.
SECTION
13. Headings. Section
headings are used for convenience only and shall in no way affect the
construction of this Agreement.
8
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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KPN
TELECOM B.V.,
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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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by
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/s/
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