Exhibit 9.1
SHAREHOLDER VOTING AGREEMENT
This Agreement, dated as of February ___, 2001, by and among
360networks inc. ("Parent"), 360networks sub inc. ("Merger Sub"), and each of
the persons executing this Agreement in their respective capacities as
shareholders (and not directors or officers) of Net Rail, Inc., a Delaware
corporation (the "Company"), each such person being referred to as the
"Shareholder" and all such persons being referred to collectively as the
"Shareholders".
The Shareholders are directors, executive officers and/or significant
shareholders owning outstanding shares of voting capital stock of the Company
(the "Shares"). Each Shareholder desires to induce (i) Parent and Merger Sub and
each other Shareholder to enter into this Agreement and (ii) Parent and Merger
Sub to enter into an Agreement and Plan of Merger dated as of the date hereof
(the "Merger Agreement") with the Company which provides for a merger of Merger
Sub with and into the Company (the "Merger"), subject to the conditions set
forth in the Merger Agreement. Capitalized terms used but not defined herein
shall have the meanings ascribed to them in the Merger Agreement.
NOW, THEREFORE, the parties agree as follows:
1. SALE OF SHARES.
Following approval of the Merger Agreement by the Company's Board of
Directors, each Shareholder severally agrees that such Shareholder will not
sell, transfer or otherwise dispose of, or enter into any contract, option, or
other arrangement or understanding with respect to the sale, transfer or other
disposition of, or grant a proxy to vote, any Shares now owned or hereafter
acquired by such Shareholder, other than to or in favor of Parent or an
affiliate of Parent, or pursuant to or in favor of the Merger Agreement.
2. VOTING.
Each Shareholder severally agrees to vote all of the Shares over which
such Shareholder has the power to vote in favor of adoption and approval of the
Merger Agreement and the transactions contemplated thereby (including, without
limitation, Recapitalization I, and, if Recapitalization I is not approved by
the vote of the holders of Company Stock as required under the Merger Agreement,
then Recapitalization II). The parties hereby acknowledge and agree that nothing
contained herein is intended to restrict a Shareholder from voting on any
matter, or otherwise from acting, in the Shareholder's capacity as a director of
the Company with respect to any matter, including but not limited to, the
management or operation of the Company.
3. NO SOLICITATION.
Each Shareholder will not solicit, initiate or encourage any
"Acquisition Proposal" (as defined in the Merger Agreement) or furnish any
information to, or cooperate with, any person, corporation, firm, or other
entity with respect to an Acquisition Proposal, other than as provided under the
Merger Agreement.
4. LIMITATION OF OBLIGATIONS; TERMINATION.
Notwithstanding any term or condition of this Agreement, Shareholder
shall not be required to take any action which would, in the reasonable opinion
of Shareholder's legal counsel, violate the duties imposed by law on
Shareholder, whether in such Shareholder's capacity as an officer, director or
shareholder of the Company. The obligations of the parties under this Agreement
shall terminate upon the earliest of (i) the termination of the Merger
Agreement, or (ii) the consummation of the Merger. Upon any such termination,
the obligations of each party to this Agreement shall be extinguished.
5. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS.
Each Shareholder severally represents and warrants that such
Shareholder has the full right and authority to enter into this Agreement and
that this Agreement has been duly and validly executed and delivered by such
Shareholder and constitutes a valid and binding obligation of such Shareholder
enforceable against such Shareholder in accordance with its terms.
6. SURVIVAL.
All rights and authority granted herein by each Shareholder shall
survive the death or incapacity of such Shareholder. This Agreement shall inure
to the benefit of and be binding upon the parties hereto and their respective
heirs, personal representatives, successors and assigns. Parent may, without the
consent of any (but with notice to each) of the Shareholders, assign its rights
hereunder only to any directly or indirectly wholly owned subsidiary of Parent.
7. NOTICES. Any notice required or permitted under this Agreement shall
be given in writing and shall be deemed effectively given upon personal
delivery, confirmed telex or facsimile transmission, or upon the third business
day after deposit with the United States Post Office, by registered or certified
mail, postage prepaid, addressed as follows:
TO PARENT AND MERGER SUB:
360networks inc.
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Attn: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP
2300 ▇▇▇▇▇ Fargo Tower
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Attn: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
TO ANY SHAREHOLDER:
At the addresses set forth at the end of this Agreement.
WITH A COPY TO:
NetRail, Inc.
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AND A COPY TO:
King & Spalding
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Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Esq.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
8. SEVERAL OBLIGATIONS.
All of the obligations of the Shareholders under this Agreement shall
be several and not joint and execution of this Agreement by each Shareholder
shall not be deemed to be evidence for any purpose that they are acting as a
group or in concert.
9. EXECUTION AND COUNTERPARTS.
This Agreement may be executed by facsimile and in one or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute a single agreement. This Agreement shall be deemed
fully executed and binding when all of the parties hereto have executed this
Agreement, at which time this Agreement shall have the same force and effect as
if all signatures appeared on one and the same original.
10. INCORPORATION OF RECITALS.
All of the above recitals are and shall be considered and deemed to be
incorporated in and made an integral part of this Agreement.
[THIS SPACE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, Parent, Merger Sub and each Shareholder have caused
this Agreement to be executed as of the date first above written.
360networks inc.
By:
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Name:
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Its:
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360networks sub, inc.
By:
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Name:
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Its:
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NetRail, Inc.
By:
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Name:
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Its:
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SHAREHOLDER
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇, individually
Address: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SHAREHOLDER
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇, individually
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
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SHAREHOLDER
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Name: ▇▇▇▇▇▇ ▇. Body III, individually
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇. ▇▇
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SHAREHOLDER
JAFCO Co., Ltd.
JAFCO R-3 Investment Enterprise Partnership
JAFCO JS-3 Investment Enterprise Partnership
JAFCO G-6(A) Investment Enterprise Partnership
JAFCO G-6(B) Investment Enterprise Partnership
U.S. Information Technology No. 2 Investment
Enterprise Partnership
By:
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President
JAFCO America Ventures, Inc.
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Attorney-in-fact
SHAREHOLDER
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, individually
Address: JAFCO America Ventures, Inc.
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SHAREHOLDER
MAXNET, INC.
By:
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Name:
Title:
Address:
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SHAREHOLDER
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Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, individually
Address:
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SHAREHOLDER
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UBS Capital Americas II, LLC
By: UBS Capital Americas (NA Advisor),
LLC, as Advisor
By:
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Name:
Title:
Address:
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SHAREHOLDER
Summit Capital II, L.P.
BY:
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: its General Partner
Address:
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SHAREHOLDER
Summit Capital Parallel II, L.P.
By:
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: its General Partner
Address:
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