Exhibit 4.9
VOTING AGREEMENT
THIS VOTING AGREEMENT (the "AGREEMENT") is entered into as of March 11,
2000, between the undersigned shareholders (the "SHAREHOLDERS") of GlobeNet
Communications Group Limited, a Bermuda company (the "COMPANY"), and Worldwide
Fiber Inc., a Canadian corporation ("WFI").
WHEREAS, concurrently with the execution and delivery of this Agreement,
WFI and the Company have entered into an Agreement and Plan of Arrangement dated
as of March 10, 2000 (the "ARRANGEMENT AGREEMENT"), providing for the exchange
of shares of the Company and WFI (the "ARRANGEMENT") pursuant to the terms and
conditions of the Arrangement Agreement, and setting forth certain
representations, warranties, covenants and agreements of the parties thereto in
connection with the Arrangement; and
WHEREAS, as an inducement and a condition to WFI entering into the
Arrangement Agreement, pursuant to which each Shareholder will receive Class A
Voting Shares, of WFI as specified in the Arrangement Agreement (the "WFI Class
A Stock") in exchange for each common share, par value $1.50 per share, of the
Company ("COMMON SHARES") and each share of Class B restricted voting shares,
par value $1.50 per share, of the Company ("CLASS B SHARES" and with the Common
Shares, collectively, "COMPANY COMMON STOCK") owned by such Shareholder, the
Shareholders each have agreed to enter into this Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt,
sufficiency and adequacy of which is hereby acknowledged, the parties hereto
agree as follows:
1. REPRESENTATIONS OF SHAREHOLDERS. Each of the Shareholders severally
represents as to himself or herself that such Shareholder:
(a) is the holder in the capacity set forth on Exhibit A hereto of
that number of shares of Company Common Stock set forth opposite such
Shareholder's name on Exhibit A (such Shareholder's "SHARES");
(b) does not beneficially own (as such term is defined in the
Securities Exchange Act of 1934, as amended (the "1934 ACT")) any shares of
Company Common Stock other than his or her Shares;
(c) has the right, power and authority to execute and deliver this
Agreement and to perform his obligations under this Agreement, and this
Agreement has been duly executed and delivered by such Shareholder and
constitutes a valid and legally binding agreement of such Shareholder,
enforceable 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 equity
principles; and such execution, delivery and performance by Shareholder of
this Agreement will not (i) conflict with, require a consent, waiver or
approval under, or result in a breach of or default under, any of the terms
of any contract, commitment or other obligation (written or oral) to which
such Shareholder is a party or by which such Shareholder is bound; (ii)
violate any order, writ, injunction decree or statute, or any rule or
regulation, applicable to Shareholder or any of the properties or assets of
Shareholder; or (iii) result in the creation of, or impose any obligation
on such Shareholder to create, any lien, charge or other encumbrance of any
nature whatsoever upon the Shares;
(d) There is no private or governmental action, suit, proceeding,
claim, arbitration or investigation pending before any agency, court or
tribunal, foreign or domestic, or, to the knowledge of such Shareholder or
any of his affiliates, threatened against such Shareholder or any of his
affiliates or any of their respective properties or any of their respective
officers or directors, in the case of a corporate entity (in their
capacities as such) that, individually or in the aggregate, could
reasonably be expected to have a material adverse effect on his ability to
consummate the transactions contemplated by this Agreement and the
Arrangement Agreement. There is no judgment, decree or order against such
Shareholder or any of his affiliates or, to the knowledge of such
Shareholder or any of his affiliates, any of their respective directors or
officers, in the case of a corporate entity (in their capacities as such)
that could prevent, enjoin, alter or materially delay any of the
transactions contemplated by this Agreement and the Arrangement Agreement,
or that could reasonably be expected to have a material adverse effect on
such Shareholder's ability to consummate the transactions contemplated by
this Agreement and the Arrangement Agreement.
(e) the Shares are now and will at all times during the term of this
Agreement be held by such Shareholder, or by a nominee or custodian for the
account of such Shareholder, free and clear of all pledges, liens, proxies,
claims, charges, security interests, preemptive rights and any other
encumbrances whatsoever with respect to the ownership, transfer or voting
of such Shares; and except for the Amended and Restated Securityholders'
Agreement, dated July 14, 1999 among the Company and 22 shareholders of the
Company, there are no outstanding options, warrants or rights to purchase
or acquire, or other agreements relating to, such Shares other than this
Agreement.
The representations and warranties contained herein shall be made as of the date
hereof and on the date that the Arrangement is consummated.
2. AGREEMENT TO VOTE SHARES. Each of the Shareholders severally agrees to
vote his or her Shares and any New Shares (as defined in Section 7 hereof), and
shall cause any holder of record of his or her Shares or New Shares to vote, (a)
in favor of adoption and approval of the Arrangement Agreement and the
Arrangement (and each other action and transaction contemplated by the
Arrangement Agreement and this Agreement) at every meeting of the shareholders
of the Company at which such matters are considered and at every adjournment
thereof and (b) against any action or proposal
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that would compete with or could serve to materially interfere with, delay,
discourage, adversely affect or inhibit the timely consummation of the
Arrangement. Any such vote shall be cast or consent shall be given in accordance
with such procedures relating thereto as shall ensure that it is duly counted
for purposes of determining that a quorum is present and for purposes of
recording the results of such vote or consent. Each Shareholder severally agrees
to deliver to WFI upon request a proxy substantially in the form attached hereto
as Exhibit B, which proxy shall be coupled with an interest and irrevocable to
the extent permitted under Bermuda law, with the total number of such
Shareholder's Shares and any New Shares correctly indicated thereon. Each
Shareholder also agrees to use his reasonable efforts to take, or cause to be
taken, all action, and do, or cause to be done, all things necessary or
advisable in order to consummate and make effective the transactions
contemplated by this Agreement.
3. NO VOTING TRUSTS. After the date hereof, the Shareholders severally
agree that they will not, nor will they permit any entity under their control
to, deposit any of their Shares in a voting trust or subject any of their Shares
to any arrangement with respect to the voting of such Shares other than
agreements entered into with WFI.
4. NO PROXY SOLICITATIONS. Each of the Shareholders severally agrees that
such Shareholder will not, nor will such Shareholder permit any entity under
their control to, (a) solicit proxies or become a "participant" in a
"solicitation" (as such terms are defined in Regulation 14A under the 0000 Xxx)
in opposition to or competition with the consummation of the Arrangement or
otherwise encourage or assist any party in taking or planning any action which
would compete with or otherwise could serve to materially interfere with, delay,
discourage, adversely affect or inhibit the timely consummation of the
Arrangement in accordance with the terms of the Arrangement Agreement, (b)
directly or indirectly encourage, initiate or cooperate in a shareholders' vote
or action by consent of the Company's shareholders in opposition to or in
competition with the consummation of the Arrangement, or (c) become a member of
a "group" (as such term is used in Section 13(d) of the 0000 Xxx) with respect
to any voting securities of the Company for the purpose of opposing or competing
with the consummation of the Arrangement; provided, that the foregoing shall not
restrict any director of the Company from taking any action such director
believes is necessary to satisfy such director's fiduciary duty to shareholders
of the Company.
5. TRANSFER AND ENCUMBRANCE. On or after the date hereof, each of the
Shareholders severally agrees not to voluntarily transfer, sell, offer, pledge
or otherwise dispose of or encumber ("TRANSFER") any of his or her Shares or New
Shares prior to the earlier of (a) the effective date of the Arrangement or (b)
the date this Agreement shall be terminated in accordance with its terms, except
that each of the Shareholders will be permitted to Transfer any of his or her
Shares or New Shares to an Affiliate (as defined in the Arrangement Agreement)
of such Shareholder provided, that such Affiliate agrees in writing to be bound
by the terms of this Agreement with respect to such Shares and New Shares.
6. LEGEND. As soon as practicable after the execution of this Agreement,
each Shareholder shall surrender to the Company the certificates representing
the Shares
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in his or her possession (and within 30 days the Shares not in his or her
possession), shall cause the following legend to be placed on the certificates
representing such Shares (in addition to any existing legend) and shall request
that such legend remain thereon until the earlier of (i) expiration or
termination of this Agreement or (ii) the consummation of the Arrangement:
"The shares of capital stock represented by this certificate are
subject to a Voting Agreement, dated as of March 10, 2000, among the
Shareholders named therein and WFI, which, among other things, (a)
restricts the sale or transfer of such shares except in accordance
therewith, and (b) restricts the voting of such shares except in
accordance therewith."
In the event that WFI requests that a proxy be executed and delivered by a
Shareholder to it pursuant to Section 2 hereof, such Shareholder shall promptly
surrender to the Company the certificates representing the Shares covered by
such proxy and cause the foregoing legend to be revised to add to the end of
such legend the following words:
", and such shares are also subject to an irrevocable proxy."
Each Shareholder shall provide WFI with reasonably satisfactory evidence of its
compliance with this Section 6 on or prior to the date five business days after
the execution hereof with respect to Shares in his possession (or within 30 days
with respect to Shares not in his possession) or of the request relating to such
Shareholder's proxy, as the case may be.
7. ADDITIONAL PURCHASES. Each of the Shareholders severally agrees that in
the event (i) any stock dividend, stock split, recapitalization,
reclassification, combination or exchange of shares of capital stock of the
Company on, of or affecting the Shares of a Shareholder, (ii) such Shareholder
purchases or otherwise acquires beneficial ownership of any shares of Company
Common Stock after the execution of this Agreement, or (iii) such Shareholder
voluntarily acquires the right to vote or share in the voting of any shares of
Company Common Stock other than the Shares (collectively, "NEW SHARES"), such
Shareholder agrees to deliver promptly to WFI upon request of WFI an irrevocable
proxy substantially in the form attached hereto as Exhibit B with respect to
such New Shares. Each of the Shareholders also severally agrees that any New
Shares acquired or purchased by him or her shall be subject to the terms of this
Agreement to the same extent as if they constituted Shares.
8. WFI CLASS A STOCK. Each of the Shareholders severally agree, that for a
period of 12 months commencing on the date of the Initial Public Offering (as
defined in the Arrangement Agreement), not to voluntarily Transfer any of the
WFI Class A Stock which it receives pursuant to the Arrangement Agreement,
except that each of the Shareholders will be permitted to Transfer any of the
WFI Class A Stock which it receives pursuant to the Merger Agreement to an
Affiliate of such Shareholder or a limited partner of such Shareholder,
provided, that such Transfer is exempt from registration under the Securities
Act of 1933, as amended and provided, further, that such
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Affiliate or limited partner agrees in writing to be bound by the terms of this
Agreement with respect to such shares of WFI Class A Stock.
9. SPECIFIC PERFORMANCE. Each party hereto severally acknowledges that it
will be impossible to measure in money the damage to the other parties if a
party hereto fails to comply with any of the obligations imposed by this
Agreement, and that, in the event of any such failure, the other parties will
not have an adequate remedy at law or damages. Accordingly, each party hereto
severally agrees that injunctive relief or other equitable remedy, in addition
to remedies at law or damages, is the appropriate remedy for any such failure.
Each party hereto severally agrees that it will not seek, and agrees to waive
any requirement for, the securing or posting of a bond in connection with any
other party's seeking or obtaining such equitable relief.
10. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and assigns
and shall not be assignable without the written consent of all other parties
hereto.
11. ENTIRE AGREEMENT. This Agreement supersedes all prior agreements,
written or oral, among the parties hereto with respect to the subject matter
hereof and contains the entire agreement among the parties with respect to the
subject matter hereof. This Agreement may not be amended, supplemented or
modified, and no provisions hereof may be modified or waived, except by an
instrument in writing signed by all the parties hereto. No waiver of any
provisions hereof by any party shall be deemed a waiver of any other provisions
hereof by any such party, nor shall any such waiver be deemed a continuing
waiver of any provision hereof by such party.
12. MISCELLANEOUS.
(a) This Agreement shall be deemed a contract made under, and for all
purposes shall be construed in accordance with, the laws of the State of
New York without regard to principles of conflict of laws.
(b) If any provision of this Agreement or the application of such
provision to any person or circumstances shall be held invalid by a court
of competent jurisdiction, the remainder of the provision held invalid and
the application of such provision to persons or circumstances, other than
the party as to which it is held invalid, shall not be affected.
(c) This Agreement may be executed in one or more counterparts, each
of which shall be deemed to be an original but all of which together shall
constitute one and the same instrument.
(d) This Agreement shall terminate upon the earliest to occur of (i)
the Effective Time (as defined in the Arrangement Agreement) or (ii)
termination of the Arrangement Agreement.
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(e) All Section headings herein are for convenience of reference only
and are not part of this Agreement, and no construction or reference shall
be derived therefrom.
(f) The obligations of the Shareholders set forth in this Agreement
shall not be effective or binding upon any Shareholder until after such
time as the Arrangement Agreement is executed and delivered by the Company
and WFI, and the parties agree that there is not and has not been any other
agreement, arrangement or understanding between the parties hereto with
respect to the matters set forth herein.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first written above.
WORLDWIDE FIBER INC.
By: ____________________________________
Name:
Title:
THE STOCKHOLDERS:
BOSTON VENTURES LIMITED PARTNERSHIP V
By: Boston Ventures Company V, LLC,
its general partner
By: ___________________________________
Name: _________________________________
Title: ________________________________
Address: Xxx Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Facsimile: (000) 000-0000
XXXXX INVESTMENT ASSOCIATES VI, L.P.
By: Xxxxx XX VI, LLC, its general partner
By: ___________________________________
Name: _________________________________
Title: ________________________________
Address: 000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
KEP VI, L.L.C.
By: ___________________________________
Name: _________________________________
Title: ________________________________
Address: 000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
PROVIDENCE EQUITY PARTNERS III L.P.
By: Providence Equity Partners III L.L.C.,
its general partner
By: ___________________________________
Name: _________________________________
Title: ________________________________
Address: Fleet Center, 9th Floor
00 Xxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Facsimile: (000) 000-0000
PROVIDENCE EQUITY OPERATING
PARTNERS III L.P.
By: Providence Equity Partners III L.L.C.,
its general partner
By: ___________________________________
Name: _________________________________
Title: ________________________________
Address: Fleet Center, 9th Floor
00 Xxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Facsimile: (000) 000-0000
SPECTRUM EQUITY INVESTORS III, L.P.
By: Spectrum Equity Associates III, L.P.,
its General Partner
By: ___________________________________
Name: _________________________________
Title: ________________________________
Address: Xxx Xxxxxxxxxxxxx Xxxxx
00xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile: (000) 000-0000
SPECTRUM III ENTREPRENEURS' FUND, L.P.
By: SEI III Enterpreneurs' LLC,
its General Partner
By: ___________________________________
Name: _________________________________
Title: ________________________________
Address: Xxx Xxxxxxxxxxxxx Xxxxx
00xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile: (000) 000-0000
SPECTRUM III INVESTMENT MANAGERS' FUND, L.P.
By: ___________________________________
Name: _________________________________
Title: ________________________________
Address: Xxx Xxxxxxxxxxxxx Xxxxx
00xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile: (000) 000-0000
SANDLER CAPITAL PARTNERS IV, L.P.
By: Sandler Investment Partners, L.P.,
its general partner
By: Sandler Capital Management,
its general partner
By: MJDM Corp., a general partner
By: __________________________
Name: ________________________
Title: _______________________
Address: 000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
SANDLER CAPITAL PARTNERS IV FTE, L.P.
By: Sandler Investment Partners, L.P.,
its general partner
By: Sandler Capital Management,
its general partner
By: _______________________________
Name: _____________________________
Title: ____________________________
Address: 000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
CAPITAL COMMUNICATIONS CDPQ, INC.
By: ___________________________________
Name: _________________________________
Title: ________________________________
By: ___________________________________
Name: _________________________________
Title: ________________________________
Address: 0000 XxXxxx Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxx
X0X 0X0
Facsimile: (000) 000-0000
TD CAPITAL GROUP LIMITED
By: ___________________________________
Name: _________________________________
Title: ________________________________
Address: 00 Xxxx Xxxxxx Xxxx
TD Xxxx Xxxxx
XX Xxxxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Facsimile: (416)
ONTARIO MUNICIPAL EMPLOYEES
RETIREMENT BOARD
By: ___________________________________
Name: _________________________________
Title: ________________________________
By: ___________________________________
Name: _________________________________
Title: ________________________________
Address: Xxx Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx
X0X0XX
Facsimile: (000) 000-0000
NAUTILUS EQUITY INVESTORS LLC
By: ___________________________________
By: ___________________________________
Address: Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
IHI HYDRO, INC.
By: ___________________________________
Name: _________________________________
Title: ________________________________
Address: The Toronto Dominion Center
00 Xxxx Xxxxxx Xxxx xx Xxx Xxxxxx
TD Bank Tower, 8th Floor
Toronto, Xxxxxxx X0X0X0
(Exhibit A)
STOCKHOLDERS
Beneficially Name of Beneficial Total Number of Shares
Title of Class Owner Beneficially Owned
Common / Class B Boston Ventures Limited Partnership V 2,941,176 / 000
Xxx Xxxxxxx Xxxxxx,
00xx Xxxxx
Xxxxxx, XX 00000-0000
Common / Class B TD Capital Group Limited 1,283,254 / 87
00 Xxxx Xxxxxx
Xxxxxxx Xxxxxxxx Xxxx
Xxxxx, 0xx Xxxxx P.O. Box 1
Toronto Dominion Centre
Toronto, Xxxxxxx X0X
0X0 Xxxxxx
Common / Class B Xxxxx Investment Associates VI, L.P. 2,500,000 / 169
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Common / Class B KEP VI, L.L.C. 441,176 / 30
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Common / Class B Providence Equity Partners III, L.P. 1,508,378 / 00
Xxxxx Xxxxxx, 0xx Xxxxx
00 Xxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Common / Class B Providence Equity Operating Partners 11,230 / 0
III L.P.
Fleet Center, 9th Floor
00 Xxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Common / Class B Capital Communications 1,470,588 / 100
CDPQ, Inc.
0000 XxXxxx Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxx X0X
0X0 Xxxxxx
A-1
Common / Class B Spectrum Equity Investors III, L.P. 1,458,824 / 99
Xxx Xxxxxxxxxxxxx Xxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Common / Class B Spectrum Entrepreneurs' Fund, L.P. 45,588 / 0
Xxx Xxxxxxxxxxxxx Xxxxx
00xx Xxxxx
Xxxxxx, XX 00000
Common / Class B Spectrum III Investment 15,196 / 0
Managers' Fund, L.P.
Xxx Xxxxxxxxxxxxx Xxxxx
00xx Xxxxx
Xxxxxx, XX 00000
Common / Class B Sandler Capital Partners IV, L.P. 521,176 / 35
000 0xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Common / Class B Sandler Capital Partners IV FTE, L.P. 214,118 / 14
000 0xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Common / Class B Ontario Municipal Employees 558,824 / 38
Retirement Board
Xxx Xxxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx
X0X0X0
Common / Class B Nautilus Equity Investors, LLC 294,118 / 00
Xxxxxx Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Common / Class B IHI Hydro, Inc. 1,635,286 / 000
Xxx Xxxxxxx Dominion Centre
00 Xxxx Xxxxxx X xx Xxx Xxxxxx
TD Bank Tower
0xx Xxxxx
Xxxxxxx, Xxxxxxx X0X0X0
A-2
(Exhibit B)
FORM OF PROXY
The undersigned, for consideration received, hereby appoints ? or ? and
each of them my proxies, with power of substitution, to vote all (i) common
shares, par value $1.50 per share, of GlobeNet Communications Group Limited, a
Bermuda company (the "Company") and (ii) Class B restricted voting shares, par
value $1.50 per share, of the Company, owned by the undersigned at the Special
Meeting of Shareholders of the Company to be held [insert date, time and place]
and at any adjournment thereof FOR approval and adoption of the Agreement and
Plan of Arrangement, dated as of March 10, 2000, by and among the Company and
Worldwide Fiber Inc., a Canadian corporation ("WFI"), providing for the exchange
of shares (the "Arrangement") of the Company and WFI, and the Arrangement, and
AGAINST any action or proposal that would compete with or could serve to
materially interfere with, delay, discourage, adversely affect or inhibit the
timely consummation of the Arrangement. This proxy is coupled with an interest
and is irrevocable until such time as the Voting Agreement, dated as March 10,
2000, among certain shareholders of the Company, including the undersigned, and
WFI terminates in accordance with its terms.
Dated ___________________, 2000
_________________________________
(Signature of Shareholder)
B-1
