Contract
Exhibit
(d)(23)
VOTING AGREEMENT, dated as of
August 19, 2008 (this “Agreement”) between
Vonage Holdings Corp., a Delaware corporation (the “Company”) and
[________] (the “Stockholder”).
WHEREAS, the Stockholder is
the holder of record and the “beneficial owner” (within the meaning of
Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the
“Exchange
Act”)) of certain shares of common stock, par value $0.001 per share, of
the Company (the “Company Common
Stock”);
WHEREAS, the Company intends
to repurchase, redeem or otherwise repay its outstanding 5% Senior Unsecured
Convertible Notes due 2010 (the “Outstanding Notes”)
partially with the net proceeds from an offering of convertible secured second
lien notes (the “Convertible Secured
Notes”), which will be convertible at the option of the holder into
shares of Company Common Stock;
WHEREAS, pursuant to Sections
312.03(b) and 312.03(c) of the NYSE Listed Company Manual, prior to the issuance
of the Convertible Secured Notes the Company must obtain approval from the
holders of outstanding Company Common Stock of the issuance of the shares of
Company Common Stock upon conversion of the Convertible Secured
Notes;
WHEREAS, the Company intends
to hold a special meeting of stockholders on August 20, 2008 (the “Stockholders’
Meeting”), at which a vote will be held concerning the approval by
holders of outstanding Company Common Stock of the issuance of Company Common
Stock upon conversion of the Convertible Secured Notes; and
WHEREAS, the Company is
required, as a condition to its issuance and sale of the Convertible Secured
Notes, to enter into this Agreement with the Stockholder; and
WHEREAS, the execution and
delivery, and the form and substance, of this Agreement have been approved by
the board of directors of the Company; and
WHEREAS, as a condition and an
inducement to issuance and sale of the Convertible Secured Notes and the
issuance of Company Common Stock upon the conversion of the Convertible Secured
Notes, the Stockholder is prepared to restrict the transfer or disposition of
any Company Common Stock owned by the Stockholder or to be acquired by the
Stockholder prior to the Voting Covenant Expiration Date, and desires to vote
the Company Common Stock so as to facilitate the issuance and sale of the
Convertible Secured Notes and the issuance of Company Common Stock upon the
conversion of the Convertible Secured Notes;
NOW, THEREFORE, the parties
hereto hereby agree as follows:
ARTICLE
I
DEFINITIONS;
RULES OF CONSTRUCTION
1.1 Definitions. For
purposes of this Agreement:
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“Judgment” means any
judgment, order or decree.
“Law” means any
federal, state or foreign constitutional provision, statute, law (including
common law), ordinance, rule, regulation or interpretation of any governmental
agency or body.
A Person
is deemed to “Own” or to have
acquired “Ownership” of a
security if such Person (i) is the record owner of such security or
(ii) is the “beneficial owner” (within the meaning of Rule 13d-3 under
the Exchange Act) of such security.
“Person” means any
individual (including any beneficiary of a Stockholder), firm, corporation,
partnership, company, limited liability company, trust, joint venture,
association, governmental agency or body or other entity.
“Subject Securities”
means all shares of Company Common Stock Owned by the Stockholder as of the
record date of the Stockholders’ Meeting; provided, however, that
“Subject Securities” shall not include Common Stock issuable upon conversion of
Outstanding Notes.
A Person
is deemed to have effected a “Transfer” of a
security if such Person directly or indirectly (i) sells, pledges,
encumbers, grants an option with respect to, transfers or disposes of such
security or any interest in such security to any Person (other than the Company
or any subsidiary of the Company), (ii) enters into an agreement or
commitment contemplating the possible sale of, pledge of, encumbrance of, grant
of an option with respect to, transfer of or disposition of such security or any
interest therein to any Person (other than the Company or any subsidiary of the
Company), or (iii) reduces such Person’s beneficial ownership of, or
interest in, such security.
“Voting Covenant Expiration
Date” means the earliest to occur of (i) the date after the
Stockholders’ Meeting, including any adjournment or postponement thereof, in
which a vote is held concerning the approval of the issuance of Company Common
Stock upon conversion of the Convertible Secured Notes, (ii) the date as of
which the Company and the Stockholder terminate this Agreement by written
consent, and (iii) September 30, 2008.
1.2 Rules of
Construction.
(a) Unless
otherwise indicated, the words “hereof,” “herein” and “hereunder” and words of
similar import when used in this Agreement refer to this Agreement as a whole
and not to any particular provision of this Agreement, and any reference in this
Agreement to any Caption, Recital, Article, Section or clause shall be to the
Captions, Recitals, Articles, Sections and clauses of this
Agreement.
(b) The
words “include,” “includes” and “including” are deemed to be followed by the
phrase “without limitation.” Any reference to the masculine, feminine
or neuter gender shall include each other gender and any reference to the
singular or plural shall include the other, in each case unless the context
otherwise requires.
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ARTICLE
II
TRANSFER
OF SUBJECT SECURITIES; VOTING RIGHTS
2.1 Restriction on Transfer of
Subject Securities. Except as expressly contemplated by
Section 2.3 hereof, during the period from the date of this Agreement through
the Voting Covenant Expiration Date, the Stockholder shall not, directly or
indirectly, (a) cause any Transfer of any Subject Securities to be effected, or
(b) permit any Transfer of any Subject Securities to be effected.
2.2 Restriction on Transfer of
Voting Rights. During the period from the date of this
Agreement through the Voting Covenant Expiration Date, except as otherwise
expressly contemplated by Section 2.3 hereof,
the Stockholder shall not, directly or indirectly, (a) deposit any Subject
Securities into a voting trust, or (b) except pursuant to this Agreement, grant
a proxy (revocable or irrevocable) or power of attorney or enter into any voting
agreement or similar agreement that could restrict or otherwise affect its legal
power, authority and right to vote any Subject Securities.
2.3 Permitted
Transfers. Notwithstanding
Sections 2.1 or 2.2, through the Voting Covenant Expiration Date, the
Stockholder may Transfer any Subject Securities if (i) the proposed
transferee thereof enters into this Agreement as a Stockholder (which shall be a
valid and binding obligation of and enforceable against such transferee) as if
an original signatory hereto agreeing to be bound by the joint covenant and
grant of proxy herein with respect to the Subject Securities so Transferred (for
the avoidance of doubt, the transferee will not be required to comply with this
Agreement with respect to any Company Common Stock other than such Subject
Securities), and (ii) each such Transfer shall be effected in a manner that
complies with Section 202 of the General Corporation Law of the State of
Delaware (the “DGCL”). Notwithstanding
Sections 2.1 or 2.2, until the Voting Covenant Expiration Date, (x) the
Stockholder may Transfer Subject Securities without limitation or restriction on
the transferee (each such transferee is referred to as an “Unrestricted
Transferee” and the securities so Transferred are referred to as “Unrestricted
Shares”), provided
that (a) after giving effect to each such proposed Transfer, the
number of Subject Securities which remain subject to the terms of this Agreement
(including Transferred Subject Securities as to which the transferee has
complied with (i) and (ii) above) shall represent not less than [___]% of
the total issued and outstanding shares of Company Common Stock (as determined
at the time of such Transfer) entitled to vote at the Stockholders’ Meeting, and
(b) each such Transfer shall be effected in a manner that complies with
Section 202 of the DGCL. Any proposed Transfer made in violation
of the terms and conditions of this Voting Agreement shall be null and void and
shall be of no force or effect.
ARTICLE
III
VOTING
OF SHARES
3.1 Voting
Covenant. The
Stockholder hereby agrees that, during the period commencing on the date hereof
and continuing until the Voting Covenant Expiration Date, at the Stockholders’
Meeting, however called, or any adjournment or postponement thereof, unless
otherwise directed in writing by the Company, it shall cause the Subject
Securities, to the extent any of the Subject Securities may be lawfully voted,
to be voted as follows:
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(a) in
favor of approval of the issuance of all shares of Company Common Stock issuable
upon conversion of the Convertible Secured Notes, and in favor of any action in
furtherance of any of the foregoing; and
(b) against
any proposal which would impair the ability of the Company to issue shares of
Company Common Stock upon conversion of the Convertible Secured Notes or that
would otherwise be inconsistent with, prevent, impede or delay the ability of
the Company to issue shares of Company Common Stock upon conversion of the
Convertible Secured Notes.
3.2 Proxy.
(a) By
way of execution and delivery of this Agreement, the Stockholder appoints and
constitutes Xxxxx X. Xxxxxxx, Assistant Secretary of the Company, as its
attorney and proxy with full power of substitution and resubstitution, to the
full extent of the Stockholder’s voting rights with respect to the Subject
Securities. Upon the execution of this Agreement, all prior proxies
given by the Stockholder with respect to any of the Subject Securities shall be
deemed revoked, and the Stockholder agrees that no subsequent proxies will be
given with respect to any of the Subject Securities.
(b) This
proxy is irrevocable and is coupled with an interest. This proxy will
be irrevocable for the term hereof and will terminate (i) on the Voting
Covenant Expiration Date, and (ii) with respect to Unrestricted Shares,
upon the date of Transfer of the Subject Securities to an Unrestricted
Transferee.
(c) Until
the termination of this proxy pursuant to Section 3.2(b), the attorney and
proxy named above will be empowered, and may exercise this proxy, to vote the
Subject Securities other than Unrestricted Shares at the Stockholders’ Meeting,
however called, or any adjournment or postponement thereof, and in connection
with any written action by consent of stockholders of the Company (if then
permitted):
(i) in
favor of approval of the issuance of all Company Common Stock issuable upon
conversion of the Convertible Secured Notes; and in favor of any action
recommended by the Board of Directors in furtherance of any of the foregoing;
and
(ii) against
any action or agreement that the Company has advised the Stockholder in writing
in advance would impair the ability of the Company to issue shares of Company
Common Stock upon conversion of the Convertible Secured Notes or that would
otherwise be inconsistent with, prevent, impede or delay the ability of the
Company to issue shares of Company Common Stock upon conversion of the
Convertible Secured Notes.
(d) The
Stockholder may vote the Subject Securities on all other matters not referred to
in this proxy, and the attorneys and proxies named above may not exercise this
proxy with respect to such other matters, provided that this does not
have the effect or intent of frustrating clause (c) above.
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(e) This
proxy shall be binding upon the heirs, estate, executors, personal
representatives, successors and assigns of the Stockholder and will survive the
merger or reorganization of any Stockholder.
(f) The
Stockholder shall not be liable for any breach of this Agreement arising out of
any exercise by the Company of the proxy granted to the Company pursuant to this
Section 3.2.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES OF THE STOCKHOLDER
The
Stockholder hereby represents and warrants to the Company as
follows:
4.1 Valid
Existence. The
Stockholder is a limited partnership duly organized and validly existing under
the laws of the State of Delaware, pursuant to an agreement of limited
partnership, which as amended is currently in effect.
4.2 Authorization. The
Stockholder has all power and authority necessary and the capacity to execute
and deliver this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby. This Agreement has
been duly executed and delivered by the Stockholder and this Agreement
constitutes a legal, valid and binding obligation of the Stockholder,
enforceable against the Stockholder in accordance with its terms, subject to
(a) laws of general application relating to bankruptcy, insolvency and the
relief of debtors, and (b) rules of law governing specific performance,
injunctive relief and other equitable remedies.
4.3 No Conflicts or
Consents.
(a) The
execution and delivery of this Agreement by the Stockholder does not, and the
performance of this Agreement by the Stockholder will not, (i) conflict
with or violate any Law or Judgment applicable to the Stockholder or by which it
or any of its properties is or may be bound or affected, or (ii) result in
or constitute (with or without notice or lapse of time) any breach of or default
under, or give to any other Person (with or without notice or lapse of time) any
right of termination, amendment, acceleration or cancellation of, or result
(with or without notice or lapse of time) in the creation of any encumbrance or
restriction on any of the Subject Securities pursuant to, any agreement,
contract or other arrangement (whether written or oral) to which the Stockholder
is a party or by the Stockholder or any of its assets or properties is or may be
bound or affected.
(b) The
execution and delivery of this Agreement by the Stockholder do not, and the
performance of this Agreement by the Stockholder will not, require any
additional or further consent or approval of any Person.
4.4 Title to
Securities. As
of the date of this Agreement, (a) the Stockholder Owns (free and clear of
any encumbrances or restrictions, except such as may exist under applicable
securities laws) the Subject Securities set forth under Exhibit A, and
(b) the Stockholder does not Own, directly or indirectly, any Subject
Securities other than those set forth under the name of the Stockholder on the
signature page hereof. None of the Subject Securities Owned by the
Stockholder is subject to any proxy, voting trust or other agreement,
arrangement
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or
restriction (whether written or oral) with respect to the voting of the Subject
Securities, except as contemplated by this Agreement.
4.5 Accuracy of
Representations. The
representations and warranties contained in this Agreement are accurate in all
respects as of the date of this Agreement, will be true and correct in all
respects at all times through the Voting Covenant Expiration Date.
ARTICLE
V
TERMINATION
5.1 Termination. This
Agreement shall terminate on the Voting Covenant Expiration Date.
ARTICLE
VI
ADDITIONAL
COVENANTS OF THE STOCKHOLDER
6.1 Stockholder
Information. The
Stockholder hereby agrees to permit the Company to publish and disclose the
Stockholder’s identity and ownership of Subject Securities and the nature of the
Stockholder’s commitments, arrangements and understandings under this Agreement
in the proxy solicitation statement related to the Stockholders’ Meeting, in any
tender offer documentation relating to the Company’s repurchase of the
Outstanding Notes, in any offering memorandum or rating agency materials
prepared in connection with the offering of Convertible Secured Notes and in any
disclosure required to be filed by the Company or any of its subsidiaries with
the Securities and Exchange Commission or any other governmental or regulatory
entity or securities exchange.
6.2 Stop Transfer
Order. In
furtherance of this Agreement, and concurrently herewith, the Stockholder shall
and does hereby authorize the Company or the Company’s counsel to notify the
Company’s transfer agent that there is a stop transfer order with respect to any
of the Subject Securities.
6.3 Further
Assurances. If
the Stockholder is the beneficial owner, but not the record owner, of any
Subject Securities, the Stockholder agrees to take all actions to cause the
record holder and any of its nominees to vote all of such Subject Securities as
required by Sections 3.1 and
3.2
hereof. The Stockholder shall execute and deliver, or cause to be
executed and delivered, such additional transfers, assignments, endorsements,
proxies, consents and other instruments, and shall take such further actions, as
the Company may reasonably request for the purpose of carrying out and
furthering the intent of this Agreement.
ARTICLE
VII
MISCELLANEOUS
7.1 Notices. Any
notice or communication required or permitted hereunder shall be in writing and
either delivered personally, telegraphed or telecopied, sent by overnight mail
via a reputable overnight carrier, or sent by certified or registered mail,
postage prepaid, and shall be deemed to be given and received (a) when so
delivered personally, (b) upon receipt of an appropriate electronic
answerback or confirmation when so delivered by telegraph or telecopy (to such
number specified below or another number or numbers as such Person
may
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subsequently
designate by notice given hereunder), or (c) two Business Days after the
date of mailing to the address below or to such other address or addresses as
such Person may hereafter designate by notice given hereunder:
To the
Company:
00 Xxxx
Xxxxxx
Xxxxxxx,
Xxx Xxxxxx 00000
Facsimile:
000-000-0000
Attention:
Xxxxx Xxxxxxx, Vice President, Law
with a
required copy to (which copy shall not constitute notice):
Shearman
& Sterling LLP
000
Xxxxxxxxx Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Facsimile:
000-000-0000
Attention:
Xxxxx X. Xxxxx, Esq.
To
[Stockholder]:
[__________]
with a
required copy to (which copy shall not constitute notice):
[__________]
7.2 Severability. Any
term or provision of this Agreement that is invalid or unenforceable in any
situation in any jurisdiction shall not affect the validity or enforceability of
the remaining terms and provisions hereof or the validity or enforceability of
the offending term or provision in any other situation or in any other
jurisdiction. If the final judgment of a court of competent
jurisdiction declares that any term or provision hereof is invalid or
unenforceable, the parties hereto agree that the court making such determination
shall have the power to limit the term or provision, to delete specific words or
phrases, or to replace any invalid or unenforceable term or provision with a
term or provision that is valid and enforceable and that comes closest to
expressing the intention of the invalid or unenforceable term or provision, then
this Agreement shall be enforceable as so modified. In the event such
court does not exercise the power granted to it in the prior sentence, the
parties hereto agree to replace such invalid or unenforceable term or provision
with a valid and enforceable term or provision that will achieve, to the
greatest extent possible, the economic, business, legal and other purposes of
such invalid or unenforceable term.
7.3 Entire
Agreement. This
Agreement constitutes the entire agreement and supersedes all prior agreements
and understandings, both written and oral, among the parties with respect to the
subject matter hereof.
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7.4 Assignment Binding
Effect. Except
as expressly permitted herein, neither this Agreement nor any of the interests
or obligations hereunder may be assigned or delegated by a Stockholder, and any
attempted or purported assignment or delegation of any of such interests or
obligations shall be void. Subject to the preceding sentence, this
Agreement shall be binding upon the Stockholder and its successors and assigns,
and shall inure to the benefit of the Company and its successors and
assigns. Without limiting any of the restrictions set forth in
Article II or elsewhere in this Agreement, this Agreement shall be binding
upon any Person (other than any Unrestricted Transferee) to whom any Subject
Securities are Transferred or otherwise conveyed. Nothing in this
Agreement is intended to confer on any Person (other than the Company and its
successors and assigns) any rights or remedies of any nature.
7.5 Specific
Performance. The
parties agree that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with its specific
terms or were otherwise breached. The Stockholder agrees that, in the
event of any breach or threatened breach by the Stockholder of any covenant or
obligation contained in this Agreement, the Company shall be entitled (in
addition to any other remedy that may be available to it, including monetary
damages) to seek and obtain (a) a decree or order of specific performance
to enforce the observance and performance of such covenant or obligation, and
(b) an injunction restraining such breach or threatened
breach. The Stockholder further agrees that neither the Company nor
any other Person shall be required to obtain, furnish or post any bond or
similar instrument in connection with or as a condition to obtaining any remedy
referred to in this Section 7.5, and the Stockholder irrevocably waives any
right it may have to require the obtaining, furnishing or posting of any such
bond or similar instrument.
7.6 Non-Exclusivity. The
rights and remedies of the Company under this Agreement are not exclusive of or
limited by any other rights or remedies which it may have, whether at law, in
equity, by contract or otherwise, all of which shall be cumulative (and not
alternative). Without limiting the generality of the foregoing, the
rights and remedies of the Company under this Agreement, and the obligations and
liabilities of the Stockholder under this Agreement, are in addition to its
respective rights, remedies, obligations and liabilities under all applicable
Laws.
7.7 Governing Law; Consent to
Jurisdiction.
(a) The
Laws of the State of New York without reference to the choice of law principles
thereof shall govern the interpretation, validity and performance of the terms
of this Agreement, regardless of the law that might be applied under principles
of conflicts of law.
(b) Each
party hereto hereby irrevocably consents and submits to the exclusive
jurisdiction of any state or federal court whose situs is within New York City
in any action or proceeding arising out of or relating to the Agreement or this
Amendment, and each party hereby irrevocably agrees that all claims in respect
of such action or proceeding may be heard and determined in any federal court
sitting in New York that possesses subject matter jurisdiction over the asserted
claims or by any state court sitting in New York City.
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(c) Nothing
in this Section 7.7 shall affect the right of any party to serve legal process
in any other manner permitted by law or affect the right of any party to bring
any action or proceeding against any other party or its property in the courts
of other jurisdiction.
7.8 WAIVER OF JURY
TRIAL. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY
WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND
DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER; (II) SUCH PARTY UNDERSTANDS AND HAS CONSIDERED
THE IMPLICATIONS OF THE FOREGOING WAIVER; (III) SUCH PARTY MAKES THE FOREGOING
WAIVER VOLUNTARILY AND (IV) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVER AND CERTIFICATIONS IN THIS
SECTION 7.8
7.9 Counterparts. This
Agreement may be executed in two or more counterparts, including via facsimile
transmission, all of which shall be considered one and the same agreement and
shall become effective when two or more counterparts have been signed by each of
the parties and delivered to the other parties, it being understood that all
parties need not sign the same counterpart.
7.10 Captions. The
captions contained in this Agreement are for convenience of reference only,
shall not be deemed to be a part of this Agreement and shall not be referred to
in connection with the construction or interpretation of this
Agreement.
7.11 Waiver. No
failure on the part of the Company to exercise any power, right, privilege or
remedy under this Agreement, and no delay on the part of the Company in
exercising any power, right, privilege or remedy under this Agreement, shall
operate as a waiver of such power, right, privilege or remedy; and no single or
partial exercise of any such power, right, privilege or remedy shall preclude
any other or further exercise thereof or of any other power, right, privilege or
remedy. The Company shall not be deemed to have waived any claim
available to the Company arising out of this Agreement, or any power, right,
privilege or remedy of the Company under this Agreement, unless the waiver of
such claim, power, right, privilege or remedy is expressly set forth in a
written instrument duly executed and delivered on behalf of the Company; and any
such waiver shall not be applicable or have any effect except in the specific
instance in which it is given.
7.12 Amendment. This
Agreement may not be amended except by an instrument in writing signed on behalf
of each of the parties hereto.
*
* * * * * *
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IN WITNESS WHEREOF, the
parties have executed this Agreement as of the date first set forth
above.
| VONAGE HOLDINGS CORP. | |||
|
|
By:
|
/s/ Xxxx X. Xxxx | |
| Name: Xxxx X. Xxxx | |||
| Title: EVP & CFO | |||
| [STOCKHOLDER] | |||
| By: | s/ | ||
| Name: | |||
| Title: | |||
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EXHIBIT
A
[Stockholder]
Subject
Securities Owned: [____________] shares of
Common Stock
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