EXHIBIT 2
VOTING AGREEMENT
FORM OF VOTING AGREEMENT
This VOTING AGREEMENT (the "Agreement") is made and entered into as of
September 23, 2001, between VeriSign, Inc., a Delaware corporation ("Parent"),
and the undersigned stockholder ("Stockholder") of Illuminet Holdings, Inc., a
Delaware corporation ("Company").
RECITALS
A. Concurrently with the execution of this Agreement, Parent, Company and
Illinois Acquisition Corporation, a Delaware corporation and a wholly-owned
first-tier subsidiary of Parent ("Merger Sub"), are entering into an Agreement
and Plan of Merger (the "Merger Agreement") which provides for the merger of
Merger Sub with and into Company (the "Merger"). Pursuant to the Merger, shares
of common stock of Company, par value $0.01 per share ("Company Common Stock")
will be converted into shares of Parent Common Stock on the basis described in
the Merger Agreement. Capitalized terms used but not defined herein shall have
the meanings set forth in the Merger Agreement.
B. Stockholder is the record holder or beneficial owner of, or exercises
voting power over, such number of outstanding shares of Company Common Stock as
is indicated on the final page of this Agreement.
C. As a material inducement to enter into the Merger Agreement, Parent
desires Stockholder to agree, and Stockholder is willing to agree, to vote the
Shares (as defined below), and such other shares of capital stock of Company
over which Stockholder has voting power, so as to facilitate consummation of the
Merger.
In consideration of the foregoing and the representations, warranties,
covenants and agreements set forth in this Agreement, the parties agree as
follows:
1. AGREEMENT TO VOTE SHARES
1.1 Definitions. For purposes of this Agreement:
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(a) Shares. The term "Shares" shall mean all issued and outstanding
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shares of Company Common Stock owned of record or beneficially by Stockholder or
over which Stockholder exercises voting power, in each case, as of the record
date for persons entitled (i) to receive notice of, and to vote at the meeting
of the stockholders of Company called for the purpose of voting on the matters
referred to in Section 1.2, or (ii) to take action by written consent of the
stockholders of Company with respect to the matters referred to in Section 1.2.
Stockholder agrees that any shares of capital stock of Company that Stockholder
purchases or
with respect to which Stockholder otherwise acquires beneficial ownership or
over which Stockholder exercises voting power after the execution of this
Agreement and prior to the date of termination of this Agreement pursuant to
Section 3 below shall be subject to the terms and conditions of this Agreement
to the same extent as if they constituted Shares on the date hereof.
(b) Subject Securities. The term "Subject Securities" shall mean: (i)
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all securities of Company (including all shares of Company Common Stock and all
options, warrants and other rights to acquire shares of Company Common Stock
beneficially owned by Stockholder as of the date of this Agreement; and (ii) all
additional securities of Company (including all additional shares of Company
Common Stock and all additional options, warrants and other rights to acquire
shares of Company Common Stock) of which Stockholder acquires ownership during
the period from the date of this Agreement through the earlier of termination of
this Agreement pursuant to Section 3 below or the record date for the meeting at
which stockholders of Company are asked to vote upon approval of the Merger
Agreement and the Merger.
(c) Transfer. Stockholder shall be deemed to have effected a "Transfer"
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of a security if Stockholder directly or indirectly: (i) sells, pledges,
hypothecates, encumbers, transfers or disposes of, or grants an option with
respect to, such security or any interest in such security; or (ii) enters into
an agreement or commitment providing for the sale, pledge, hypothecation
encumbrance, transfer or disposition of, or grant of an option with respect to,
such security or any interest therein.
1.2 Agreement to Vote Shares. Stockholder hereby covenants and agrees that,
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during the period commencing on the date hereof and continuing until the first
to occur of (i) such date and time as the Merger shall become effective in
accordance with the terms and provisions of the Merger Agreement (the "Effective
Time") and (ii) termination of this Agreement in accordance with its terms, at
any meeting (whether annual or special and whether or not an adjourned or
postponed meeting) of the stockholders of Company, however called, or in
connection with any written consent of the stockholders of Company, Stockholder
will appear at the meeting or otherwise cause the Shares to be counted as
present thereat for purposes of establishing a quorum and vote or consent (or
cause to be voted or consented) the Shares:
(1) in favor of the approval and adoption of the Merger Agreement and
the approval of the Merger and the other actions contemplated by the Merger
Agreement and any actions required in furtherance thereof;
(2) against approval of any proposal made in opposition to or in
competition with the consummation of the Merger, including, without
limitation, any Acquisition Proposal or Superior Offer (each as defined in
the Merger Agreement) or any action or agreement that would result in a
breach in any respect of any covenant, representation or warranty or any
other obligation or agreement of Company under the Merger Agreement or of
the Stockholder under this Agreement.
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Stockholder further agrees not to enter into any agreement or understanding
with any person the effect of which would be inconsistent with or violative of
any provision contained in this Section 1.2.
1.3. Transfer and Other Restrictions. (a) Prior to the termination of
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this Agreement, Stockholder agrees not to, directly or indirectly:
(i) except pursuant to the terms of the Merger Agreement, offer
for sale, Transfer or otherwise dispose of, or enter into any contract,
option or other arrangement or understanding with respect to or consent to
the offer for sale Transfer or other disposition of any or all of the
Subject Securities or any interest therein except as provided in Section
1.2 hereof;
(ii) grant any proxy, power of attorney, deposit any of the
Subject Securities into a voting trust or enter into a voting agreement or
arrangement with respect to the Subject Securities except as provided in
this Agreement; or
(iii) take any other 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 its
obligations under this Agreement.
(b) To the extent Stockholder is, as of the date hereof, party to a
contract or agreement that requires Stockholder to Transfer Shares to another
person or entity (excluding a contract or agreement pledging Shares to Company),
Stockholder will not effect any such Transfer unless and until the transferee
agrees to be bound by and executes an agreement in the form of this Agreement
with respect to the Shares to be Transferred. Nothing herein shall prohibit
Stockholder from exercising (in accordance with the terms of the option or
warrant, as applicable) any option or warrant Stockholder may hold; provided
that the securities acquired upon such exercise shall be deemed Shares.
1.4 Irrevocable Proxy. Concurrently with the execution of this
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Agreement, Stockholder agrees to deliver to Parent a proxy in the form attached
hereto as Exhibit I (the "Proxy"), which shall be irrevocable, with respect to
the Shares, subject to the other terms of this Agreement.
1.5 Appraisal Rights. Stockholder agrees not to exercise any rights of
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appraisal and any dissenters' rights that Stockholder may have (whether under
applicable law or otherwise) or could potentially have or acquire in connection
with the Merger.
1.6 No Limitation on Discretion as Director. This Agreement is intended
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solely to apply to the exercise by Stockholder of rights attaching to ownership
of the Shares, and nothing herein shall be deemed to apply to, or to limit in
any manner the discretion of Stockholder who is a director of the Company with
respect to, any action which may be taken or omitted by Stockholder acting in
Stockholder's fiduciary capacity as a director of the Company.
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2. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER
(a) Stockholder is the record and beneficial owner of, or Stockholder
exercises voting power over, the shares of Company Common Stock indicated on the
final page of this Agreement, which, on and as of the date hereof, are free and
clear of any Encumbrances that would adversely affect the ability of Stockholder
to carry out the terms of this Agreement. The number of Shares set forth on the
signature pages hereto are the only Shares beneficially owned by such
Stockholder and, except as set forth on such signature pages, the Stockholder
holds no options to purchase or rights to subscribe for or otherwise acquire any
securities of the Company and has no other interest in or voting rights with
respect to any securities of the Company.
(b) Stockholder has the requisite capacity, power and authority to enter
into this Agreement and to consummate the transaction contemplated by this
Agreement. The execution and delivery of this Agreement by such Stockholder and
the consummation by such Stockholder of the transactions contemplated by this
Agreement have been duly authorized by all necessary action. This Agreement has
been duly executed and delivered by such Stockholder and constitutes a valid and
binding obligation of such Stockholder, enforceable against such Stockholder in
accordance with its terms, except (i) as the same may be limited by applicable
bankruptcy, insolvency, moratorium or similar laws of general application
relating to or affecting creditors' rights, and (ii) for the limitations imposed
by general principles of equity. The execution and delivery of this Agreement
does not, and the consummation of the transactions contemplated by this
Agreement and compliance with the provisions of this Agreement will not,
conflict with, or result in any violation of, or default (with or without notice
or lapse of time, or both) under, or give rise to a right of termination,
cancellation or acceleration of any obligation which would result in the
creation of any Encumbrance upon any of the Shares owned by such Stockholder
under, any provision of applicable law or regulation or of any agreement,
judgment, injunction, order, decree, or other instrument binding on such
Stockholder or any Shares owned by such Stockholder. No consent, approval, order
or authorization of, or registration, declaration or filing with or exemption by
any Governmental Entity is required by or with respect to such Stockholder in
connection with the execution and delivery of this Agreement by such Stockholder
or the consummation by such Stockholder of the transactions contemplated by this
Agreement, except for applicable requirements, if any, of Sections 13 and 16 of
the Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder. If this Agreement is being executed in a representative or fiduciary
capacity, the person signing this Agreement has full power and authority to
enter into and perform such Agreement. Prior to the approval of Company's Board
of Directors of this Agreement, Stockholder and Parent had no agreement,
arrangement or understanding with respect to the voting of any of Stockholder's
securities of the Company.
3. TERMINATION
This Agreement shall terminate and shall have no further force or effect as
of the first to occur of (i) the Effective Time and (ii) such date and time as
the Merger Agreement shall have been validly terminated pursuant to Article VII
thereof.
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4. MISCELLANEOUS
4.1 Severability. If any term, provision, covenant or restriction of
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this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, then the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
4.2 Binding Effect and Assignment. This Agreement and all of the
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provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns, but, except as
otherwise specifically provided herein, neither this Agreement nor any of the
rights, interests or obligations of the parties hereto may be assigned by either
of the parties without prior written consent of the other. Any purported
assignment in violation of this Section shall be void.
4.3 Amendments and Modification. This Agreement may not be modified,
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amended, altered or supplemented except upon the execution and delivery of a
written agreement executed by the parties hereto.
4.4 Specific Performance; Injunctive Relief; Attorneys Fees. The parties
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hereto acknowledge that Parent will be irreparably harmed and that there will be
no adequate remedy at law for a violation of any of the covenants or agreements
of Stockholder set forth herein. Therefore, it is agreed that, in addition to
any other remedies that may be available to Parent upon any such violation,
Parent shall have the right to enforce such covenants and agreements by specific
performance, injunctive relief or by any other means available to Parent at law
or in equity. If any action, suit or other proceeding (whether at law, in equity
or otherwise) is instituted concerning or arising out of this Agreement or any
transaction contemplated hereunder, the prevailing party shall recover, in
addition to any other remedy granted to such party therein, all such party's
costs and attorneys fees incurred in connection with the prosecution or defense
of such action, suit or other proceeding.
4.5 Notices. All notices and other communications hereunder shall be in
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writing and shall be deemed duly given (i) on the date of delivery if delivered
personally, (ii) on the date of confirmation of receipt (or, the first business
day following such receipt if the date is not a business day) of transmission by
facsimile, or (iii) on the date of confirmation of receipt (or, the first
business day following such receipt if the date is not a business day) if
delivered by a nationally recognized courier service. Subject to the foregoing,
all notices hereunder shall be delivered as set forth below, or pursuant to such
other instructions as may be designated in writing by the party to receive such
notice:
If to Parent:
VeriSign, Inc.
000 Xxxx Xxxxxxxxxxx Xxxx
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxx, General Counsel
Facsimile No.: 000-000-0000
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with a copy to:
Fenwick & West LLP
Xxx Xxxx Xxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxxx
Facsimile: 000-000-0000
If to Stockholder, to the address for notice set forth on the last page
hereof.
with a copy to:
Xxxxxxxxx Xxxxxxx Xxxxx Xxxxxx LLP
Two Pershing Square
0000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxx
Xxxxx X. Xxxxxx
Facsimile: 000-000-0000
Any party hereto may by notice so given provide and change its address for
future notices hereunder. Notice shall conclusively be deemed to have been given
when personally delivered or when deposited in the mail in the manner set forth
above.
4.6 Governing Law. This Agreement shall be governed by and construed
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exclusively in accordance with the laws of the State of Delaware, excluding that
body of law relating to conflict of laws.
4.7 Entire Agreement. This Agreement, the Merger Agreement and the Proxy
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granted hereunder constitute and contain the entire agreement and understanding
of the parties with respect to the subject matter hereof and supersede any and
all prior negotiations, correspondence, agreements, understandings, duties or
obligations between the parties respecting the subject matter hereof.
4.8 Counterparts. This Agreement may be executed in counterparts, each
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of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
4.9 Captions. The captions to sections of this Agreement have been
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inserted for identification and reference purposes only and shall not be used to
construe or interpret this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Voting Agreement to
be executed by their duly authorized respective officers as of the date first
above written.
VERISIGN, INC.
By:
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Name:
Title:
STOCKHOLDER:
[STOCKHOLDER]
By:
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Name:
Title:
Stockholder's Address for Notice:
[Address]
Outstanding shares of Company Common
Stock held of record or beneficially
owned by Stockholder or over which
Stockholder exercises voting power:
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EXHIBIT I
IRREVOCABLE PROXY
The undersigned stockholder (the "Stockholder") of Illuminet Holdings,
Inc., a Delaware corporation (the "Company"), hereby irrevocably appoints and
constitutes the members of the Board of Directors of VeriSign, Inc., a Delaware
corporation ("Parent"), and each such Board member (collectively, the
"Proxyholders"), the agents, attorneys and proxies of the undersigned, with full
power of substitution and resubstitution, to the full extent of the
undersigned's rights with respect to the shares of capital stock of Company
which are listed below (the "Shares"), and any and all other shares or
securities issued or issuable in respect thereof on or after the date hereof and
prior to the date this proxy terminates, to vote the Shares as follows: the
Proxyholders named above are empowered at any time prior to termination of this
proxy to exercise all voting and other rights (including, without limitation,
the power to execute and deliver written consents with respect to the Shares) of
the undersigned at every annual, special or adjourned meeting of Company
stockholders, and in every written consent in lieu of such a meeting, or
otherwise, (i) in favor of adoption of the Agreement and Plan of Merger (the
"Merger Agreement") among Parent, Illinois Acquisition Corporation and Company,
and the approval of the merger of Illinois Acquisition Corporation with and into
Company (the "Merger"), and (ii) against approval of any proposal made in
opposition to or in competition with consummation of the Merger, including,
without limitation, any Acquisition Proposal or Superior Offer (each as defined
in the Merger Agreement) or any action or agreement that would result in a
breach in any respect of any covenant, representation or warranty or any other
obligation or agreement of Company under the Merger Agreement or of the
Stockholder under the voting agreement between Parent and Stockholder (the
"Voting Agreement").
The Proxyholders may not exercise this proxy on any other matter. The
Stockholder may vote the Shares on all such other matters. The proxy granted by
the Stockholder to the Proxyholders hereby is granted as of the date of this
Irrevocable Proxy in order to secure the obligations of the Stockholder set
forth in Section 1 of the Voting Agreement, and is irrevocable and coupled with
an interest in such obligations and in the interests in Company to be purchased
and sold pursuant the Merger Agreement.
This proxy will terminate upon the termination of the Voting Agreement in
accordance with its terms. Upon the execution hereof, all prior proxies given by
the undersigned with respect to the Shares and any and all other shares or
securities issued or issuable in respect thereof on or after the date hereof are
hereby revoked and no subsequent proxies will be given until such time as this
proxy shall be terminated in accordance with its terms. Any obligation of the
undersigned hereunder shall be binding upon the successors and assigns of the
undersigned. The undersigned stockholder authorizes the Proxyholders to file
this proxy and any substitution or revocation of substitution with the Secretary
of the Company and with any Inspector of Elections at any meeting of the
stockholders of the Company.
This proxy is irrevocable and shall survive the insolvency, incapacity,
death or liquidation of the undersigned. Dated: September 23, 2001.
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Signature
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Name (and Title)
Shares of Company Common Stock held of record by or
beneficially owned by the Stockholder or over which the
Stockholder exercises voting power:____________________
