STOCKHOLDER SUPPORT AND VOTING AGREEMENT BETWEEN ARBINET CORPORATION, AND SINGER CHILDREN’S MANAGEMENT TRUST DATED AS OF NOVEMBER 10, 2010
Exhibit
99.1
BETWEEN
ARBINET
CORPORATION,
AND
SINGER
CHILDREN’S MANAGEMENT TRUST
DATED
AS OF NOVEMBER 10, 2010
THIS STOCKHOLDER SUPPORT AND VOTING
AGREEMENT, dated as of November 10, 2010 (this
“Agreement”),
between Arbinet Corporation, a Delaware corporation (the “Company”)
and Singer Children’s Management Trust (the “Stockholder”),
solely in its capacity as a stockholder of Primus Telecommunications Group,
Incorporated, a Delaware corporation (“Parent”).
WITNESSETH:
Whereas,
concurrently with the execution of this Agreement, the Company, Parent, and PTG
Investments, Inc., a Delaware corporation and a direct wholly owned subsidiary
of Parent (“Merger
Sub”, and together with Parent, the “Parent
Parties”) are entering into an Agreement and Plan of Merger, dated as of
the date hereof (the “Merger
Agreement”), pursuant to which, among other things, Merger Sub will merge
with and into the Company, with the Company continuing as the surviving entity
(the “Merger”),
and each outstanding share of common stock, par value $0.001 per share, of the
Company (the “Company Common
Stock”), other than (i) the shares of Company Common Stock owned by
Parent, Merger Sub or the Company or any of their respective direct or indirect
wholly owned subsidiaries and (ii) any Appraisal Shares (as defined in the
Merger Agreement), will be converted into the right to receive the Merger
Consideration (as defined in the Merger Agreement);
Whereas,
as of the date hereof, Stockholder is the record owner in the aggregate of, and
has the right to vote and dispose of, 931,295 shares of Parent Common Stock (as
defined in the Merger Agreement) (the “Existing Common
Stock”);
Whereas,
as a material inducement to the Company entering into the Merger Agreement, a
copy of which has been provided to Stockholder, Stockholder has agreed to enter
into this Agreement and to abide by the covenants and obligations with respect
to the Covered Common Stock (as hereinafter defined); and
Whereas,
as a material inducement to the Parent Parties entering into the Merger
Agreement, Stockholder has also agreed to enter into a support agreement in
favor of the Parent Parties with respect to, among other things, the voting of
Company Common Stock held or to be held by Stockholder in favor of the
Merger.
Now
Therefore, in consideration of the foregoing and the mutual
representations, warranties, covenants and agreements herein contained, and
intending to be legally bound hereby, the parties hereto agree as
follows:
ARTICLE
1
GENERAL
1.1 Defined Terms. The following
capitalized terms, as used in this Agreement, shall have the meanings set forth
below. Capitalized terms used but not otherwise defined herein shall
have the meanings ascribed thereto in the Merger Agreement.
“Covered Common
Stock” means, with respect to Stockholder, Stockholder’s Existing Common
Stock, together with any Parent Common Stock that Stockholder acquires on or
after the date hereof.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended.
“Lien”
means any mortgage, lien, charge, restriction (including restrictions on
transfer), pledge, security interest, option, right of first offer or refusal,
preemptive right, put or call option, lease or sublease, claim, right of any
third party, covenant, right of way, easement, encroachment or
encumbrance.
“Person”
means any individual, corporation, limited liability company, limited or general
partnership, joint venture, association, joint stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity, or any group comprised of two or more of the
foregoing.
“Transfer”
means, directly or indirectly, to sell, transfer, assign, pledge, encumber,
hypothecate or similarly dispose of (by merger (including by conversion into
securities or other consideration), by tendering into any tender or exchange
offer, by testamentary disposition, by operation of law or otherwise), either
voluntarily or involuntarily, or to enter into any contract, option or other
arrangement or understanding with respect to the voting of or sale, transfer,
assignment, pledge, encumbrance, hypothecation or similar disposition of (by
merger, by tendering into any tender or exchange offer, by testamentary
disposition, by operation of law or otherwise) or to enter into any derivative
or similar transactions or arrangements whereby a portion of all of the economic
interest in, or risk of loss or opportunity for gain with respect to, Parent
Common Stock is transferred or shifted to another Person.
ARTICLE
2
VOTING
2.1 Agreement to Vote Covered Common
Stock. Stockholder hereby irrevocably and unconditionally
agrees that during the term of this Agreement, at any meeting of the
stockholders of the Parent, however called, including any adjournment or
postponement thereof, and in connection with any written consent of the
stockholders of the Parent, Stockholder shall, in each case to the fullest
extent that any of the Covered Common Stock is entitled to vote thereon or
consent thereto:
(a) appear
at each such meeting or otherwise cause the Covered Common Stock to be counted
as present thereat for purposes of calculating a quorum; and
(b) vote
(or cause to be voted), in person or by proxy, or deliver (or cause to be
delivered) a written consent covering, all of the Covered Common Stock: (i) in
favor of the adoption of the Merger Agreement, any transactions contemplated by
the Merger Agreement and any other action reasonably requested by the Company in
furtherance thereof, submitted for the vote or written consent of stockholders
of Parent; (ii) against any action or agreement that would result in a breach of
any covenant, representation or warranty or any other obligation or agreement of
Parent or any of Parent Subsidiaries contained in the Merger Agreement; and
(iii) against any action, agreement or transaction that would impede, interfere
with, delay, postpone, discourage, frustrate the purposes of or adversely affect
the Merger or the other transactions contemplated by the Merger
Agreement.
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2.2 No Inconsistent
Agreements. Stockholder hereby represents, covenants and
agrees that, except for this Agreement, Stockholder (a) has not entered into,
and shall not enter into at any time while this Agreement remains in effect, any
voting agreement or voting trust with respect to the Covered Common Stock, (b)
has not granted, and shall not grant at any time while this Agreement remains in
effect, a proxy, consent or power of attorney with respect to the Covered Common
Stock (except pursuant to Section 2.3 hereof) and
(c) has not taken and shall not knowingly take any action that would make any
representation or warranty of Stockholder contained herein untrue or incorrect
or have the effect of preventing or disabling Stockholder from performing any of
its obligations under this Agreement.
2.3 Proxy. In order to
secure the obligations set forth herein, Stockholder hereby irrevocably appoints
as its proxy and attorney-in-fact, as the case may be, Xxxxx X. X’Xxxxxxx and
Xxxxxxxx X. Xxxx, in their respective capacities as officers of the Company, and
any individual who shall hereafter succeed any such officer of the Company, as
the case may be, and any other Person designated in writing by the Company
(collectively, the “Grantees”),
each of them individually, with full power of substitution, to vote or execute
written consents with respect to the Covered Common Stock in accordance with
Section 2.1 hereof and, in the discretion of the
Grantees, with respect to any proposed postponements or adjournments of any
meeting of the stockholders of Parent at which any of the matters described in
Section 2.1 hereof are to be
considered. This proxy is coupled with an interest and shall be
irrevocable, except upon termination of this Agreement, and Stockholder shall
take such further action or execute such other instruments as may be necessary
to effectuate the intent of this proxy and hereby revokes any proxy previously
granted by Stockholder with respect to the Covered Common Stock. The
Company may terminate this proxy with respect to Stockholder at any time at its
sole election by written notice provided to Stockholder.
ARTICLE
3
REPRESENTATIONS
AND WARRANTIES
3.1 Representations and Warranties of
Stockholder. Stockholder hereby represents and warrants to the
Company as follows:
(a) Authorization; Validity of Agreement;
Necessary Action. Stockholder has the requisite power and
authority and/or capacity to execute and deliver this Agreement, to carry out
its obligations hereunder and to consummate the transactions contemplated
hereby. The execution and delivery by Stockholder of this Agreement,
the performance by it of the obligations hereunder and the consummation of the
transactions contemplated hereby have been duly and validly authorized by, or on
behalf of, Stockholder and no other actions or proceedings on the part of
Stockholder to authorize the execution and delivery of this Agreement, the
performance by Stockholder of the obligations hereunder or the consummation of
the transactions contemplated hereby are required. This Agreement has
been duly executed and delivered by Stockholder and, assuming the due
authorization, execution and delivery of this Agreement by the Company,
constitutes a legal, valid and binding agreement of Stockholder, enforceable
against it in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors’ rights and to general
equitable principles.
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(b) Ownership. Stockholder is the
legal and beneficial owner of and has good and marketable title to the Existing
Common Stock, free and clear of all Liens (other than pursuant to this Agreement
and restrictions on Transfers arising under applicable securities
laws). Stockholder will be the legal and beneficial owner of and have
good and marketable title to the Covered Common Stock from the date hereof
through and on the Closing Date, free and clear of all Liens (other than
pursuant to this Agreement and restrictions on Transfers arising under
applicable securities laws). The Existing Common Stock is all of the
Parent Common Stock legally or beneficially owned by
Stockholder. Xxxxx Xxxxxx, as the trustee of Stockholder,
beneficially owns the Existing Common Stock and has and will have at all times
through the Closing Date sole voting power (including the right to control such
vote as contemplated herein), sole power of disposition, sole power to issue
instructions with respect to the matters set forth in Article 2 hereof, and sole power to agree to all of
the matters set forth in this Agreement, in each case with respect to the
Existing Common Stock and with respect to the Covered Common Stock at all times
through the Closing Date. Xxxxx Xxxxxx, as such trustee of
Stockholder, is not the legal or beneficial owner of any shares of Parent Common
Stock other than the Existing Common Stock.
(c) No
Violation. Neither the execution and delivery of this
Agreement by Stockholder nor the performance by Stockholder of its obligations
under this Agreement will (i) result in, give rise to or constitute a violation
or breach of or a default (or any event which with notice or lapse of time or
both would become a violation, breach or default) under, or give to others any
rights of termination, purchase, amendment, acceleration or cancellation with
respect to, or result in the creation of a Lien on, any of the Covered Common
Stock or any other material assets of Stockholder pursuant to any of the terms
of any understanding, agreement, or other instrument or obligation to which
Stockholder is a party or by which Stockholder, any of the Covered Common Stock,
or any other assets of Stockholder are bound, (ii) violate any judgments,
decrees, injunctions, rulings, awards, settlements, stipulations or orders
(each, an “Order”) or
laws applicable to Stockholder or any of its properties, rights or assets or
(iii) result in a violation or breach of or conflict with its organizational and
governing documents.
(d) Consents and
Approvals. No consent, approval, Order or authorization of, or
registration, declaration or filing with, any governmental authority is
necessary to be obtained or made by Stockholder in connection with Stockholder’s
execution, delivery and performance of this Agreement or the consummation by
Stockholder of the transactions contemplated hereby, except for any reports
under Sections 13(d) and 16 of the Exchange Act as may be required in connection
with this Agreement and the transactions contemplated hereby.
(e) Reliance by the
Company. Stockholder understands and acknowledges that the
Company is entering into the Merger Agreement in reliance upon Stockholder’s
execution and delivery of this Agreement and the representations, warranties,
covenants and obligations of Stockholder contained herein.
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3.2 Representations and Warranties of the
Company. The Company hereby represents and warrants to
Stockholder that the execution and delivery of this Agreement by the Company and
the consummation of the transactions contemplated hereby have been duly
authorized by all necessary action on the part of the Company.
ARTICLE
4
OTHER
COVENANTS
4.1 Prohibition on Transfers, Other
Actions. Stockholder hereby agrees that it shall not:
(a) Transfer any of the Covered Common Stock, beneficial ownership thereof
or any other interest therein; (b) enter into any agreement, arrangement or
understanding, or take any other action, that violates or conflicts with or
would reasonably be expected to violate or conflict with, or result in or give
rise to a violation of or conflict with, Stockholder’s representations,
warranties, covenants and obligations under this Agreement; or (c) take any
action that could restrict or otherwise affect Stockholder’s legal power,
authority and right to comply with and perform its covenants and obligations
under this Agreement.
4.2 No
Solicitation. Without giving effect to the last two sentences
of Section 6.3(b) and the last five sentences of Section 6.3(c) of the Merger
Agreement, the provisions of Section 6.3 of the Merger Agreement applicable to
the Company shall apply mutatis mutandis to
Stockholder.
4.3 Waiver of Dissenters’
Rights. Stockholder hereby irrevocably and unconditionally
waives, and agrees not to exercise, assert or perfect, any rights of dissent and
appraisal under Section 262 of the Delaware General Corporation Law (the “DGCL”) to
the extent Stockholder is entitled to such rights under Section 262 of the
DGCL.
4.4 Further
Assurances. From time to time, at the Company’s request and
without further consideration, Stockholder shall execute and deliver such
additional documents and take all such further action as may be reasonably
necessary or advisable to effect the actions and consummate the transactions
contemplated by this Agreement.
ARTICLE
5
MISCELLANEOUS
5.1 Termination. This
Agreement shall remain in effect until the earliest to occur of (a) the
Effective Time, (b) the termination of the Merger Agreement in accordance with
its terms (including after any extension thereof) and (c) the written agreement
of Stockholder and the Company to terminate this Agreement. After the
occurrence of such applicable event, this Agreement shall terminate and be of no
further force or effect. Nothing in this Section 5.1 and no
termination of this Agreement shall relieve or otherwise limit any party of
liability for any breach of this Agreement occurring prior to such
termination.
5.2 No Ownership
Interest. Nothing contained in this Agreement shall be deemed
to vest in the Company any direct or indirect ownership or incidence of
ownership of or with respect to any Covered Common Stock. All rights,
ownership and economic benefit relating to the Covered Common Stock shall remain
vested in and belong to Stockholder, and the Company shall have no authority to
direct Stockholder in the voting or disposition of any of the Covered Common
Stock, except as otherwise provided herein.
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5.3 Publicity. Stockholder
hereby permits the Parent Parties and the Company to include and disclose in the
Joint Proxy Statement/Prospectus, and in such other schedules, certificates,
applications, agreements or documents as any such entities reasonably determine
to be necessary or appropriate in connection with the consummation of the Merger
and the transactions contemplated by the Merger Agreement, Stockholder’s
identity and ownership of the Covered Common Stock and the nature of
Stockholder’s commitments, arrangements and understandings pursuant to this
Agreement.
5.4 Notices. All
notices, requests, claims, demands and other communications hereunder shall be
in writing and shall be given (and shall be deemed to have been duly given upon
receipt) by delivery in person, by facsimile or by registered or certified mail
(postage prepaid, return receipt requested) to the respective parties at the
following addresses (or at such other address for a party as shall be specified
in a notice given in accordance with this Section 5.4):
If to the
Company, to:
Arbinet
Corporation
000
Xxxxxxx Xxxxxxx, Xxxxx
000
Xxxxxxx,
XX 00000
Attention: General
Counsel
Telephone:
(000) 000-0000
Fax:
(000) 000-0000
With
copies (which shall not constitute notice) to:
Mintz,
Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
000
Xxxxxxxxxxxx Xxxxxx XX, Xxxxx 000
Xxxxxxxxxx,
XX 00000
Attention:
Kemal Hawa
Telephone:
(000) 000-0000
Fax:
(000) 000-0000
E-mail: xxxxx@xxxxx.xxx
If to
Stockholder, to:
Singer
Children’s Management Trust
c/o Remus
Holdings, LLC
0000
Xxxxxxxx Xxxxxx, 0xx
Xxxxx
Xxxx Xxx,
XX 00000
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5.5 Interpretation. Whenever
the words "include," "includes" or "including" are used in this Agreement, they
shall be deemed to be followed by the words "without limitation." The
words “hereby,” “herein,” “hereof” or “hereunder,” and similar terms are to be
deemed to refer to this Agreement as a whole and not to any specific section,
and section references are references to this Agreement unless otherwise
specified. The meanings given to terms defined herein
shall be equally applicable to both the singular and plural forms of such
terms. The descriptive headings contained in this Agreement are
included for convenience of reference only and shall not affect in any way the
meaning or interpretation of this Agreement. The parties have
participated jointly in negotiating and drafting this Agreement. In
the event that an ambiguity or a question of intent or interpretation arises,
this Agreement shall be construed as if drafted jointly by the parties, and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any provision of this Agreement.
5.6 Counterparts. This
Agreement may be executed in one or more counterparts, and by the different
parties hereto in separate counterparts, each of which when executed shall be
deemed to be an original but all of which taken together shall constitute one
and the same agreement.
5.7 Entire
Agreement. This Agreement and, solely to the extent of the
defined terms referenced herein, the Merger Agreement, constitutes the entire
agreement among the parties with respect to the subject matter hereof and
supersedes all prior agreements and undertakings, both written and oral, among
the parties, or any of them, with respect to the subject matter
hereof.
5.8 Governing
Law; Consent to Jurisdiction; Waiver of Jury Trial.
(a) This
Agreement shall be governed by, and construed in accordance with, the laws of
the State of Delaware applicable to contracts executed in and to be performed in
that state. All actions and proceedings arising out of or relating to this
Agreement shall be heard and determined by the Delaware Court of Chancery or a
federal district court located in Delaware. The Company and Stockholder hereby
irrevocably and unconditionally consent to submit to the exclusive jurisdiction
of the Delaware Court of Chancery or a federal district court located in
Delaware for any litigation arising out of or relating to this Agreement and the
transactions contemplated hereby (and agrees not to commence any litigation
relating thereto except in such court), waive any objection to the laying of
venue of any such litigation in the Delaware Court of Chancery or a federal
district court located in Delaware, agree not to plead or claim that such
litigation brought therein has been brought in any inconvenient forum and
consent to service of process in such action being given in accordance with the
notice provisions hereof.
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(b) EACH
OF THE COMPANY AND STOCKHOLDER HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, ALL RIGHTS OF TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR
COUNTERCLAIM (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR
RELATING TO THIS AGREEMENT.
5.9 Amendment;
Waiver. This Agreement may not be amended except by an
instrument in writing signed by the Company and Stockholder. Each
party may waive any right of such party hereunder by an instrument in writing
signed by such party and delivered to the Company and Stockholder.
5.10 Remedies.
(a) Each
party hereto acknowledges that monetary damages would not be an adequate remedy
in the event that any covenant or agreement in this Agreement is not performed
in accordance with its terms, and it is therefore agreed that, in addition to
and without limiting any other remedy or right it may have, the non-breaching
party shall have the right to an injunction, temporary restraining order or
other equitable relief in any court of competent jurisdiction enjoining any such
breach and enforcing specifically the terms and provisions
hereof. Each party hereto agrees not to oppose the granting of such
relief in the event a court determines that such a breach has occurred, and to
waive any requirement for the securing or posting of any bond in connection with
such remedy.
(b) All
rights, powers and remedies provided under this Agreement or otherwise available
in respect hereof at law or in equity shall be cumulative and not alternative,
and the exercise or beginning of the exercise of any thereof by any party shall
not preclude the simultaneous or later exercise of any other such right, power
or remedy by such party.
5.11 Severability. If
any term or other provision of this Agreement is invalid, illegal or incapable
of being enforced by any rule of law or public policy, all other 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 hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in a mutually acceptable manner in order that the transactions
contemplated hereby be consummated as originally contemplated to the fullest
extent possible.
5.12 Successors and Assigns; Third-Party
Beneficiaries. Neither this Agreement nor any of the rights or
obligations of any party under this Agreement shall be assigned, in whole or in
part (by operation of law or otherwise), by any party without the prior written
consent of the other parties hereto. Subject to the foregoing, this
Agreement shall bind and inure to the benefit of and be enforceable by the
parties hereto and their respective successors and permitted
assigns. Nothing in this Agreement, express or implied, is intended
to confer on any person other than the parties hereto or the parties’ respective
successors and permitted assigns any rights, remedies, obligations or
liabilities under or by reason of this Agreement.
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In Witness
Whereof, the parties hereto have caused this Agreement to be signed
(where applicable, by their respective officers or other authorized Person
thereunto duly authorized) as of the date first written above.
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Company:
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ARBINET
CORPORATION
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By:
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/s/ Xxxxx X. X’Xxxxxxx
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Name:
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Xxxxx
X. X’Xxxxxxx
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Title:
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President
and Chief Executive
Officer
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Signature
Page to Stockholder Support and Voting Agreement
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Stockholder:
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SINGER
CHILDREN’S MANAGEMENT
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TRUST
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By:
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/s/ Xxxxx Xxxxxx
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Name:
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Xxxxx
Xxxxxx, its Trustee
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Signature
Page to Stockholder Support and Voting Agreement
