VOTING AGREEMENT
AGREEMENT (as amended, restated, supplemented or otherwise
modified from time to time, the "Agreement"), dated as of April 7, 2003 by and
among CityNet Telecommunications Inc., a Delaware corporation ("CityNet"), and
those holders of Common Stock of Universal Access Global Holdings Inc., a
Delaware corporation (the "Company"), set forth on the signature pages hereto
(each a "Stockholder" and collectively, the "Stockholders").
WITNESSETH
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WHEREAS, CityNet and the Company are entering into a Stock
Purchase Agreement (the "Purchase Agreement"), of even date herewith, pursuant
to which CityNet will pay $16 million and transfer the Fiber Ring Assets to the
Company in exchange for the Shares and the Company's assumption of the Assumed
Liabilities. All terms not otherwise defined herein shall have the meanings
given to them in the Purchase Agreement.
WHEREAS, each Stockholder holds that number of shares of
Common Stock set forth opposite such Stockholder's name on the signature pages
hereto (the "Stockholder Shares").
WHEREAS, as a condition to the willingness of CityNet to enter
into the Purchase Agreement, CityNet has required each of the Stockholders to,
and in order to induce CityNet to enter into the Purchase Agreement, each
Stockholder has agreed to, enter into this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein and other good and valuable consideration, the
adequacy of which is hereby acknowledged, and intending to be legally bound
hereby, the parties hereto agree as follows:
Section 1 VOTE BY STOCKHOLDERS.
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1.1. Agreement to Vote Subject Shares.
(a) At every meeting of the stockholders of the Company called
with respect to any of the following matters, and at every adjournment thereof,
and on every action or approval by written consent of the stockholders of the
Company or other action taken by stockholders of the Company with respect to any
of the following matters, each Stockholder shall vote or cause to be voted the
Stockholder Shares held (beneficially or of record) or controlled by such
Stockholder: (i) in favor of approval of the Purchase Agreement and the
Transactions; (ii) in favor of CityNet's designees for the Board of Directors of
the Company to the extent CityNet has such rights pursuant to the Transaction
Documents, and (iii) in favor of any other matter that could reasonably be
expected to facilitate the Transactions. Each Stockholder agrees not to take any
actions contrary to such Stockholder's obligations pursuant to this Agreement.
(b) In furtherance of the foregoing, by execution hereof, each
Stockholder does hereby constitute and appoint CityNet as such Stockholder's
proxy with respect to the
Stockholder Shares held by such Stockholder, to attend meetings of the
stockholders of the Company to be held at any time, or any continuation or
adjournment thereof, with full power to vote and act for such Stockholder and in
such Stockholder's name, place and stead, in the same manner, to the same
extent, and with the same effect that such Stockholder might were such
Stockholder personally present thereat (or by written consent in lieu thereof),
giving to CityNet full power of substitution and revocation, in each case with
respect to the matters set forth in clauses (i) through (iv) of subsection (a)
above. Each Stockholder hereby acknowledges and agrees that the foregoing grant
by such Stockholder to CityNet is in connection with this Agreement and the
Purchase Agreement, is coupled with an interest, is irrevocable, shall survive
such Stockholder's liquidation or termination, and shall remain in place in
accordance with Section 3.2 hereof.
(c) Any proxy or proxies heretofore given by any Stockholder
to any person or persons with respect to any of the Stockholder Shares held by
such Stockholder are hereby revoked.
1.2. Adjustments Upon Changes in Capitalization or Ownership. In
the event of:
(i) any change in the number of issued and
outstanding shares of Common Stock by reason
of any stock dividend, subdivision, merger,
recapitalization, combination, conversion or
exchange of shares, or any other change in
the corporate or capital structure of the
Company (including, without limitation, the
declaration or payment of an extraordinary
dividend of cash or securities); or
(ii) the acquisition, by exercise of convertible
securities or otherwise, of additional
shares of Common Stock by any of the
Shareholders,
the term "Stockholder Shares" shall be deemed to refer to and include the
Stockholder Shares as well as all such stock dividends and distributions, all
such acquired shares of Common Stock and any shares into which or for which any
or all of the Stockholder Shares may be changed or exchanged.
1.3. Regulatory Compliance. No provision in this Agreement shall
require any Stockholder to take any action that would result in the Company's
Board of Directors or any committee of the Board of Directors to cease to be in
compliance with any requirement of federal securities laws or regulations or
interpretations by the Securities and Exchange Commission thereunder, or any
rules or regulations of Nasdaq or any other exchange or trading system through
which shares of the Company's common stock are quoted or traded.
Section 2 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE STOCKHOLDERS.
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Each Stockholder severally (and not jointly) represents,
warrants and covenants, as applicable, to CityNet that:
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2.1. Ownership of Shares. Such Stockholder (i) is and will be at
the time of the action of the stockholders of the Company on the Purchase
Agreement and Transactions, and any matter that could reasonably be expected to
facilitate the Transactions, the beneficial owner of the Stockholder Shares set
forth below each Stockholder's name on the signature page hereto, free and clear
of all liens, claims, options, charges or other encumbrances other than those in
favor of the Company or arising under this Agreement and other than restrictions
on transfer pursuant to applicable securities laws; (ii) does not own,
beneficially or of record, or control any shares of capital stock of the Company
other than the Stockholder Shares (excluding shares as to which such Stockholder
currently disclaims beneficial ownership in accordance with applicable law); and
(iii) has full power and authority to make, enter into and carry out the terms
of this Agreement.
2.2. No Other Rights. There are no outstanding options, warrants or
rights to purchase or acquire such Stockholder Shares of such Stockholder.
2.3. No Proxies or Solicitations.
(a) Such Stockholder shall not grant any proxy or power of
attorney with respect to the voting of Stockholder Shares (each a "Voting
Proxy") to any person except to vote in favor of any of the Purchase Agreement,
the Transactions or any matter that could reasonably be expected to facilitate
the Transactions. Such Stockholder has granted no Voting Proxy which is
currently (or which will hereafter become) effective with respect to the
Stockholder Shares owned by such Stockholder except a Voting Proxy, if any,
granted to another Stockholder, and if such Stockholder has granted a Voting
Proxy to any person other than a Stockholder, such Voting Proxy is hereby
revoked. No Voting Proxy shall be given or written consent executed by such
Stockholder after the date hereof with respect to such Stockholder's Stockholder
Shares (and if given or executed, shall not be effective) so long as this
Agreement remains in effect.
(b) Such Stockholder shall not, and shall not permit any
entity under such Stockholder's control to: (i) solicit proxies or become a
"participant" in a "solicitation" (as such terms are defined in Regulation 14A
under the Exchange Act) with respect to an Acquisition Proposal or otherwise
encourage or assist any party in taking or planning any action that would
compete with, restrain or otherwise serve to interfere with or inhibit the
timely consummation of the Transactions in accordance with the terms of the
Purchase Agreement; (ii) initiate a stockholders' vote or action by consent of
stockholders of the Company with respect to an Acquisition Proposal; or (iii)
become a member of a "group" (as such term is used in Section 13(d) of the
Exchange Act) with respect to any voting securities of the Company that takes
any action in support of an Acquisition Proposal other than pursuant to this
Agreement.
2.4. Validity. This Agreement is the legal, valid and binding
agreement of such Stockholder enforceable against such Stockholder in accordance
with its terms, except as enforcement may be limited by applicable bankruptcy,
insolvency, moratorium or other similar laws relating to creditors' rights
generally and except that the availability of equitable remedies, including
specific performance, is subject to the discretion of the court before which any
proceeding therefor may be brought. Simultaneously herewith, counsel to such
Stockholder has delivered to CityNet an opinion that this Agreement has been
duly executed and delivered and is enforceable against such Stockholder.
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2.5. Non-Contravention. The execution and delivery of this
Agreement does not, and the consummation of the transactions contemplated hereby
and compliance with the provisions hereof will not, conflict with, or result in
any violation of, or default (with or without notice or lapse of time, or both)
by such Stockholder under, or give rise to a right of termination, cancellation
or acceleration of any obligation under, or result in the creation of any lien,
security interest, charge or encumbrance upon any of the properties or assets of
such Stockholder under, any provision of (i) the charter or organizational
documents, if any, of such Stockholder, (ii) any loan or credit agreement, note,
bond, mortgage, indenture, lease or other agreement, instrument, permit,
concession, franchise or license applicable to such Stockholder or (iii) any
judgment, order, decree, statute, law, ordinance, rule or regulation applicable
to such Stockholder or any of its or his properties or assets, other than, in
the case of clauses (ii) and (iii), any such conflicts, violations, defaults,
rights, liens, security interests, charges or encumbrances that, individually or
in the aggregate, would not materially impair the ability of such Stockholder to
perform its or his obligations hereunder or prevent, limit or restrict the
consummation of any of the transactions contemplated hereby.
2.6. Agreement to Retain Shares. Such Stockholder will not transfer
(except as may be specifically required by court order), sell, exchange, pledge
or otherwise dispose of or encumber any of the Stockholder Shares held by such
Stockholder, or make any offer or agreement relating thereto, at any time prior
to termination of this Agreement.
Section 3 MISCELLANEOUS.
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3.1. No Limitation on Discretion as Director. This Agreement is
intended solely to apply to the exercise by a Stockholder in such Stockholder's
individual capacity of rights attaching to ownership of the Stockholder Shares,
and nothing herein shall be deemed to apply to, or to limit in any manner the
discretion of such Stockholder with respect to any action which may be taken or
omitted by such Stockholder acting in a fiduciary capacity as a director of the
Company, if applicable.
3.2. Effectiveness; Termination; No Survival. This Agreement shall
become effective upon the execution by CityNet and the Stockholders and upon the
execution of the Purchase Agreement by CityNet and the Company. This Agreement
may be terminated as to each Stockholder at any time by mutual written consent
of such Stockholder and CityNet. This Agreement shall terminate, without any
action by the parties hereto upon the earliest to occur of (a) in the event the
Purchase Agreement is validly terminated by any party thereto, upon such
termination; (b) in the event the Transactions are consummated, upon the Closing
Date; and (c) October 31, 2003. The representations, warranties and covenants of
the Stockholders set forth in Section 2 shall survive the termination of this
Agreement pursuant to clause (b) of this Section 3.2.
3.3. Further Assurances. Subject to the terms of this Agreement,
each Stockholder shall use its best efforts to take, or cause to be taken, all
actions, and to do or cause to be done, all things necessary, proper or
advisable under applicable laws and regulations to consummate and make effective
the transaction contemplated by this Agreement.
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3.4. Notices. Any notice, request, demand or other communication
required or permitted hereunder shall be in writing and shall be deemed to have
been given if delivered or sent by facsimile transmission, upon receipt, if by
hand delivery, upon receipt, if sent by nationally recognized overnight courier
service, one day after deposit with such, or if sent by registered or certified
mail, upon the sooner of the date on which receipt is acknowledged or the
expiration of three days after deposit in United States post office facilities
properly addressed with postage prepaid. All notices to a party will be sent to
the addresses set forth below or to such other address or person as such party
may designate by notice to each other party hereunder:
If to CityNet:
CityNet Telecommunications, Inc.
0000 Xxxxxxxxxx Xxxx
0xx Xxxxx
Xxxxxx Xxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Facsimile: 000-000-0000
With a copy to:
XxXxxxxxx, Will & Xxxxx
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Facsimile: 000-000-0000
If to a Stockholder at the address for such Stockholder set
forth on the signature page hereto.
Any notice given hereunder may be given on behalf of any party
by his counsel or other authorized representative.
3.5. Severability. If any provision of this Agreement shall be
declared to be invalid or unenforceable, in whole or in part, such invalidity or
unenforceability shall not affect the remaining provisions hereof which shall
remain in full force and effect.
3.6. Assignment. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective heirs, devisees,
legatees, legal representatives, successors and assigns.
3.7. Entire Agreement. This Agreement is complete, reflects the
entire agreement of the parties with regard to its subject matter, and
supersedes all previous written or oral negotiations, commitments and writings
between the parties hereto with respect to the subject matter hereof.
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3.8. Amendments and Waivers. The provisions of this Agreement may
not be amended, modified or supplemented, and waivers or consents to departures
from the provisions hereof may not be given, unless such amendment modification,
supplement or waiver is in writing and signed by CityNet, and if such amendment
adversely impacts a Stockholder, by such Stockholder.
3.9. Captions and Gender. The captions in this Agreement are for
convenience only and shall not affect the construction or interpretation of any
term or provision hereof. The use in this Agreement of the masculine pronoun in
reference to a party hereto shall be deemed to include the feminine or neuter,
as the context may require.
3.10. Execution in Counterparts. For the convenience of the parties and
to facilitate execution, this Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same document.
3.11. Specific Performance. Each Stockholder acknowledges and agrees
that CityNet would be irreparably damaged in the event any of the provisions of
this Agreement were not performed by such Stockholder in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that CityNet
shall be entitled to an injunction or injunctions to redress the breaches of
this Agreement and to specifically enforce the terms and provisions hereof in
any action instituted in any court of the United States or any state thereof
having jurisdiction, in addition to any other remedy to which such party may be
entitled at law or in equity.
3.12. Governing Law; Jurisdiction.
(a) This Agreement shall be construed under and governed by
the internal laws of the state of Delaware without regard to its conflict of
laws provisions.
(b) Each party hereto hereby irrevocably submits to the
non-exclusive jurisdiction, of the federal and state courts sitting in the state
of Delaware in any action, suit or proceeding arising in connection with this
Agreement, and agrees that any such action, suit or proceeding shall be brought
only in such court (and waives any objection based on forum non conveniens or
any other objection to venue therein). Service of process upon any party hereto
in any action, suit or proceeding arising in connection with this Agreement may
be made anywhere in the world. Any such process or summons to be served upon any
of the parties (at the option of the party bringing such action, proceeding or
claim) may be served by transmitting a copy thereof, by registered or certified
mail, return receipt requested, postage prepaid, addressed to it at the address
set forth in Section 3.4 hereof. Such mailing shall be deemed personal service
and shall be legal and binding upon the party so served in any action,
proceeding or claim. Nothing herein shall affect the right of any party hereto
to serve process in any other manner permitted by law.
3.13. Expenses. Each of the parties shall pay its own expenses in
connection with the negotiation, execution and performance of the Agreement.
3.14. Effect of Headings. The section headings herein are for
convenience only and shall not affect the meaning or interpretation of this
Agreement.
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3.15 Confidentiality. Each Stockholder acknowledges that the
information contained in this Voting Agreement is confidential and acknowledges
that such Stockholder has a legal obligation not to purchase or sell the
Company's securities on the basis of material non-public information.
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IN WITNESS WHEREOF, the parties have executed this Voting Agreement to take
effect as of the date set forth above.
CITYNET TELECOMMUNICATIONS INC.
By:______________________________
Name:
Title:
ICG HOLDINGS, INC.
By:______________________________
Name: Xxxxxxx Xxxxxxxx
Title:
Number of shares of Common Stock
held by such Stockholder: 21,664,124
000 Xxxxx Xxxx Xxxxx
000 Xxxxxxxx
Xxxxx, XX 00000
COMMUNICATIONS VENTURES III, L.P.
By:______________________________
Name: Xxxxxx Van der Meer
Title: Member
Number of shares of Common Stock
held by such Stockholder: 12,390,375
000 Xxxxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
COMMUNICATIONS VENTURES III, CEO &
ENTREPRENEURS' FUND, L.P.
By:______________________________
Name: Xxxxxx Van der Meer
Title: Member
Number of shares of Common Stock
held by such Stockholder: 625,221
000 Xxxxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
XXXXXX X. XXXXXX, XX. DECLARATION OF
TRUST
By:______________________________
Name: Xxxxxx X. Xxxxxx, Xx.
Title: Trustee
Number of shares of Common Stock
held by such Stockholder: 3,345,533*
*Approximately 440,000 shares of
common stock are in the process of
being transferred to Xxxxxxx Xxxxx or
his family, and the recipients will
enter into voting agreements as to
these 440,000 shares.
[ADDRESS]
[ADDRESS]
XXXXXX FAMILY LIMITED PARTNERSHIP
By:______________________________
Name: Xxxxxx X. Xxxxxx, Xx.
Title: General Partner
Number of shares of Common Stock
held by such Stockholder: 1,000,000
[ADDRESS]
[ADDRESS]
XXXXXXXXX X. XXXXXX DECLARATION OF
TRUST
By:______________________________
Name: Xxxxxxxxx X. Xxxxxx
Title: Trustee
Number of shares of Common Stock
held by such Stockholder: 199,545
[ADDRESS]
[ADDRESS]
XXXXXX X. XXXXXX, XX.
By:______________________________
Name: Xxxxxx X. Xxxxxx, Xx.
Number of shares of Common Stock
held by such Stockholder: 150,000
[ADDRESS]
[ADDRESS]
XXXXXXX X. XXXXX DECLARATION OF TRUST
By:______________________________
Name: Xxxxxxx X. Xxxxx
Title: Trustee
Number of shares of Common Stock
held by such Stockholder: 2,500,235*
*879,996 shares of common stock are
in the process of being transferred
to the Xxxxxx Xxxxxxxx Declaration
of Trust, which has entered into this
voting agreement as to these 879,996
shares.
[ADDRESS]
[ADDRESS]
XXXXX FAMILY LIMITED PARTNERSHIP
By:______________________________
Name: Xxxxxxx X. Xxxxx
Title: General Partner
Number of shares of Common Stock
held by such Stockholder: 870,000
[ADDRESS]
[ADDRESS]
TRANCEKA, LLC
By:______________________________
Name: Xxxxxx X. Xxxxxxxx
Title:
Number of shares of Common Stock
held by such Stockholder: 1,673,126
000 Xxxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
XXX XXXXXXX DECLARATION OF TRUST
By:______________________________
Name: Xxx Xxxxxxx
Title: Trustee
Number of shares of Common Stock
held by such Stockholder: 1,600,017
[ADDRESS]
[ADDRESS]
XXXXXXX FAMILY LIMITED PARTNERSHIP
By:______________________________
Name: Xxx Xxxxxxx
Title: General Partner
Number of shares of Common Stock
held by such Stockholder: 3,082,444
[ADDRESS]
[ADDRESS]
XXX XXXXXXX DECLARATION OF TRUST
By:______________________________
Name: Xxx Xxxxxxx
Title: Trustee
Number of shares of Common Stock
held by such Stockholder: 1,600,017
[ADDRESS]
[ADDRESS]
XXXXXX XXXXXXXX DECLARATION OF TRUST
By:______________________________
Name: Xxxxxx Xxxxxxxx
Title: Trustee
Number of shares of Common Stock held
by such Stockholder: This voting
agreement is limited to the 879,996
shares of common stock which are in
the process of being transferred from
Xxxxxxx Xxxxx to Xxxxxx Xxxxxxxx and
does not cover any other shares owned
by Xxxxxx Xxxxxxxx or his affiliates.
[ADDRESS]
[ADDRESS]
