VOTING AGREEMENT
AGREEMENT dated as of February 3, 1998 by and among the person
identified as a Shareholder of PRIMUS TELECOMMUNICATIONS GROUP, INC., a Delaware
corporation (the "COMPANY"), on the signature page below (the "SHAREHOLDER") and
TRESCOM INTERNATIONAL, INC., a Florida corporation (the "TARGET").
WHEREAS, the Shareholder owns, as of the date hereof, 4,101,731
shares of Common Stock (the "EXISTING SHARES", together with any shares of
common stock, par value $.01 per share, of the Company (the "COMMON STOCK"),
acquired after the date hereof and prior to the termination hereof (including
shares of Common Stock acquired pursuant to the exercise of employee stock
options issued by the Company (the "OPTIONS")), hereinafter collectively
referred to as the "SHARES");
WHEREAS, concurrently herewith, the Company and Target are entering
into an Agreement and Plan of Merger (the "MERGER AGREEMENT") for the merger of
a subsidiary of the Company with and into the Target (the "MERGER");
WHEREAS, as a condition to their willingness to enter into the
Merger Agreement, and in reliance upon Shareholder's representations,
warranties, covenants and agreements hereunder, the Target has requested that
the Shareholder agree, and the Shareholder has agreed, to enter into this
Agreement;
WHEREAS, to induce the Target to enter into the Merger Agreement,
the Shareholder is willing to execute and deliver this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained and for such other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, and intending to be
legally bound hereby, it is agreed as follows:
1. AGREEMENT TO VOTE. The Shareholder hereby agrees that, during the time this
Agreement is in effect, at any meeting of the stockholders of the Company,
however called, and in any action by consent of the stockholders of the Company,
the Shareholder shall: (a) vote the Shares in favor of the Merger; (b) vote the
Shares against any action or agreement that would result in a breach of any
covenant, representation or warranty or any other obligation or agreement of the
Company under the Merger Agreement; (c) vote the Shares against any action or
agreement that would impede, interfere with, delay, postpone or attempt to
discourage the Merger including, but not limited to, (i) any extraordinary
corporate transaction (other than the Merger), such as a merger, other business
combination, reorganization or liquidation involving the Company, (ii) a sale or
transfer of a material amount of assets of the Company or any of its
Subsidiaries, (iii) any change in the management or board of directors of the
Company, except as otherwise agreed to in writing by the Target, (iv) any
material change in the present capitalization of the Company, or (v) any other
material change in the corporate structure or business of the Company; and (d)
without limiting the foregoing, consult with the Target prior to any such vote
and vote such Shares in such manner as is determined by the Target to be in
compliance with the provisions of this Section 1. The Shareholder acknowledges
receipt and review of a copy of the Merger Agreement. In furtherance thereof,
the Shareholder hereby grants to the Target an irrevocable proxy to vote the
Shares in accordance with the terms and conditions of this Agreement, it being
understood that such proxy is coupled with an interest.
2. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDER. The Shareholder
represents and warrants to the Target as follows:
2.1. OWNERSHIP OF SHARES. On the date hereof the Existing Shares are all
of the Shares currently beneficially owned (which, for purposes of this
Agreement shall be determined in accordance with Rule 13d-3 under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"); PROVIDED, that beneficial
ownership shall be determined solely with reference to Shares over which such
person has voting power as described in subsection (a)(1) of such Rule) by the
Shareholder or any Affiliate (as defined in the Merger Agreement) of the
Shareholder. On the Closing Date (as defined in the Merger Agreement), the
Shares will constitute all of the shares of Common Stock owned beneficially by
the Shareholder or any Affiliate of the Shareholder. The Shareholder does not
have any rights to acquire any additional shares of Common Stock. The
Shareholder currently has with respect to the Existing Shares, and at Closing
will have with respect to the Shares, good, valid and marketable title, free and
clear of all liens, encumbrances, restrictions, options, warrants, rights to
purchase, voting agreements or voting trusts, and claims of every kind (other
than the encumbrances created by this Agreement and other than restrictions on
transfer under applicable Federal and State securities laws).
2.2. POWER; BINDING AGREEMENT. The Shareholder has the full legal right,
power and authority to enter into and perform all of the Shareholder's
obligations under this Agreement. The execution and delivery of this Agreement
by the Shareholder will not violate any other agreement to which the Shareholder
is a party including, without limitation, any voting agreement, stockholder's
agreement or voting trust. This Agreement has been duly executed and delivered
by the Shareholder and constitutes a legal, valid and binding agreement of the
Shareholder, enforceable in accordance with its terms. Neither the execution or
delivery of this Agreement, nor the consummation by the Shareholder of the
transactions contemplated hereby, will (a) require any consent or approval of or
filing with any governmental or other regulatory body, or (b) constitute a
violation of, conflict with or constitute a default under, any contract,
commitment, agreement, understanding, arrangement or other restriction of any
kind to which the Shareholder is a party or by which the Shareholder is bound.
2.3. FINDER'S FEES. No person is, or will be, entitled to any commission
or finder's fees from the Shareholder in connection with this Agreement or the
transactions contemplated hereby, exclusive of any commission or finder's fees
referred to in the Merger Agreement.
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3. REPRESENTATIONS AND WARRANTIES OF THE TARGET. The Target represents and
warrants to the Shareholder as follows:
3.1. AUTHORITY. The Target has full legal right, power and authority to
enter into and perform all of its obligations under this Agreement. The
execution and delivery of this Agreement by the Target will not violate any
other agreement to which the Target is a party. This Agreement has been duly
executed and delivered by the Target and constitutes a legal, valid and binding
agreement of the Target, enforceable in accordance with its terms. Neither the
execution of this Agreement nor the consummation by the Target of the
transactions contemplated hereby will (a) require any consent or approval of or
filing with any governmental or other regulatory body, or (b) constitute a
violation of, conflict with or constitute a default under, any contract,
commitment, agreement, understanding, arrangement or other restriction of any
kind to which the Target is a party or by which it is bound.
3.2. FINDER'S FEES. No person is, or will be, entitled to any commission
or finder's fee from the Target in connection with this Agreement or the
transactions contemplated hereby, exclusive of any commission or finder's fees
referred to in the Merger Agreement.
4. TERMINATION. This Agreement (other than the provisions of Sections 5 and 6,
which shall survive any termination of this Agreement) shall terminate on the
earliest of (a) the Effective Time (as defined in the Merger Agreement), (b) the
date immediately following the termination of the Merger Agreement in accordance
with its terms, and (c) October 31, 1998.
5. EXPENSES. Except as provided in Section 18, each party hereto will pay
all of its expenses in connection with the transactions contemplated by this
Agreement, including, without limitation, the fees and expenses of its counsel
and other advisers.
6. CONFIDENTIALITY. The Shareholder recognizes that successful consummation of
the transactions contemplated by this Agreement may be dependent upon
confidentiality with respect to these matters. In this connection, pending
public disclosure, the Shareholder agrees that it will not disclose or discuss
these matters with anyone (other than officers, directors, legal counsel and
advisors of the Shareholder, the Target or the Company) not a party to this
Agreement, without prior written consent of the Target, except for filings
required pursuant to the Exchange Act, and the rules and regulations thereunder,
or disclosures which the Shareholder's legal counsel advises in writing are
necessary in order to fulfill the Shareholder's obligations imposed by law, in
which event the Shareholder shall give prompt prior notice of such disclosure to
the Target.
7. CERTAIN COVENANTS OF THE SHAREHOLDER.
7.1. Except in accordance with the provisions of this Agreement, the
Shareholder agrees, prior to the termination of this Agreement as provided in
Section 4 above, not to, directly or indirectly:
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(a) sell, transfer, pledge, encumber, assign or otherwise dispose
of, or enter into any contract, option or other arrangement or understanding
with respect to the sale, transfer, pledge, encumbrance, assignment or other
disposition of, any of the Shares; or
(b) grant any proxies, deposit any Shares into a voting trust or
enter into a voting agreement with respect to any Shares.
7.2. The Shareholder agrees, while this Agreement is in effect, to notify
the Target promptly of the number of any shares of Common Stock acquired by the
Shareholder after the date hereof.
8. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations,
warranties, covenants and agreements made by the Shareholder or the Target in
this Agreement shall survive regardless of any investigation at any time made by
or on behalf of any party.
9. NOTICES. All notices or other communications required or permitted hereunder
shall be in writing (except as otherwise provided herein), given in the manner
provided in the Merger Agreement, and shall be deemed duly given when received,
addressed as follows:
If to the Target:
TresCom International, Inc.
000 Xxxx Xxxxxxx Xxxx.
Xx. Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. X'Xxxxx, Chairman and CEO
Facsimile: (000) 000-0000
With a copy to:
Xxxxxx Xxxx & Xxxxxx LLP
Two Stamford Plaza
000 Xxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Fax: (000) 000-0000
Attention: Xxxx X. Xxxxxxx, Esquire
If to the Shareholder:
Mr. K. Xxxx Xxxxx
c/o Primus Telecommunications Group, Inc.
0000 Xxxxx Xxxxxx Xxxx
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
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With a copy to:
Xxxxxx Xxxxxxxx LLP
0000 Xxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxxxx, Esquire
Facsimile: (000) 000-0000
10. ENTIRE AGREEMENT; AMENDMENT. This Agreement, together with the documents
expressly referred to herein, constitute the entire agreement among the parties
hereto with respect to the subject matter contained herein and supersede all
prior agreements and understandings among the parties with respect to such
subject matter. This Agreement may not be modified, amended, altered or
supplemented except by an agreement in writing executed by the party against
whom such modification, amendment, alteration or supplement is sought to be
enforced.
11. ASSIGNS. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors, assigns and personal
representatives, but neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any of the parties hereto without the
prior written consent of the other parties.
12. GOVERNING LAW. Except as expressly set forth below, this Agreement shall be
governed by and construed in accordance with the laws of the State of Florida,
regardless of the laws that might otherwise govern under applicable principles
of conflicts of laws thereof. In addition, each of the Shareholders and the
Target hereby agree that any dispute arising out of this Agreement or the Merger
shall be heard in the primary trial court of the State of Florida or in the
United States District Court for the Southern District of Florida and, in
connection therewith, each party to this Agreement hereby consents to the
jurisdiction of such courts and agrees that any service of process in connection
with any dispute arising out of this Agreement or the Merger may be given to any
other party hereto by certified mail, return receipt requested, at the
respective addresses set forth in Section 9 above.
13. INJUNCTIVE RELIEF. The parties agree that in the event of a breach of any
provision of this Agreement, the aggrieved party may be without an adequate
remedy at law. The parties therefore agree that in the event of a breach of any
provision of this Agreement, the aggrieved party shall be entitled to obtain in
any court of competent jurisdiction a decree of specific performance or to
enjoin the continuing breach of such provision, in each case without the
requirement that a bond be posted, as well as to obtain damages for breach of
this Agreement. By seeking or obtaining such relief, the aggrieved party will
not be precluded from seeking or obtaining any other relief to which it may be
entitled.
14. COUNTERPARTS; FACSIMILE SIGNATURES. This Agreement may be executed,
including execution by facsimile, in any number of counterparts, each of which
shall be deemed to be an original and all of which together shall constitute one
and the same document.
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15. SEVERABILITY. Any term or provision of this Agreement which is invalid or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such invalidity or unenforceability without rendering invalid
or unenforceable the remaining terms and provisions of this Agreement or
affecting the validity or enforceability of any of the terms or provisions of
this Agreement in any other jurisdiction. If any provision of this Agreement is
so broad as to be unenforceable, such provision shall be interpreted to be only
so broad as is enforceable.
16. FURTHER ASSURANCES. Each party hereto shall execute and deliver such
additional documents as may be necessary or desirable to consummate the
transactions contemplated by this Agreement.
17. THIRD PARTY BENEFICIARIES. Nothing in this Agreement, expressed or implied,
shall be construed to give any person other than the parties hereto any legal or
equitable right, remedy or claim under or by reason of this Agreement or any
provision contained herein.
18. LEGAL EXPENSES. In the event any legal proceeding is commenced by any party
to this Agreement to enforce or recover damages for any breach of the provisions
hereof, the prevailing party in such legal proceeding shall be entitled to
recover in such legal proceeding from the losing party such prevailing party's
costs and expenses incurred in connection with such legal proceedings, including
reasonable attorneys fees.
19. AMENDMENT AND MODIFICATION. This Agreement may be amended, modified and
supplemented by a written document executed by the Target and the Shareholder.
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IN WITNESS WHEREOF, the Target has caused this Agreement to be
executed by its duly authorized officers, and the Shareholders have duly
executed this Agreement, each as of the date and year first above written.
COMPANY:
TRESCOM INTERNATIONAL COMMUNICATIONS, INC.
By: /S/ XXXXXX X'XXXXX
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Xxx X'Xxxxx, Chief Executive Officer
SHAREHOLDER:
/S/ K. XXXX XXXXX
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K. Xxxx Xxxxx
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