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EXHIBIT 99.1
FORM OF
VOTING AND LOCK-UP AGREEMENT
This Voting Agreement (the "Agreement") is made and entered into as of
December __, 1999 by and among RCN Corporation, a Delaware corporation
("Parent"), 21st Century Telecom Group, Inc., an Illinois corporation (the
"Company"), and the shareholder named on the signature page hereof (the
"Shareholder").
RECITALS
Concurrently with the execution of this Agreement, Parent, 21st Holding
Corp., an Illinois corporation and a wholly owned subsidiary of Parent ("Sub"),
and the Company have entered into an Agreement and Plan of Merger dated as of
December 12, 1999 (the "Merger Agreement"), providing for the merger of Sub with
and into the Company (the "Merger"), pursuant to which the Company will become a
wholly owned subsidiary of Parent. The Shareholder is the beneficial holder of
record, directly or indirectly, of the number of shares of capital stock or
other equity interest in the Company as is indicated on the final page of this
Agreement (the "Shares"). In consideration of and to induce the execution of the
Merger Agreement by Parent, the Shareholder agrees not to sell or otherwise
dispose of any of the Shares held by the Shareholder and to vote the Shares so
as to facilitate consummation of the Merger as more fully described below.
NOW, THEREFORE, in consideration of the mutual promises and the mutual
covenants and agreements contained herein, the parties agree as follows:
1. Agreement to Retain Shares. The Shareholder agrees not to transfer,
pledge, hypothecate, sell, exchange or offer to transfer or sell or otherwise
dispose of, or encumber, grant any proxy or power of attorney, deposit any
Shares into a voting trust or enter into a voting agreement, understanding or
arrangement with respect to any of the Shares at any time prior to the
Expiration Date, as defined herein. The "Expiration Date" shall mean the date on
which the Merger Agreement shall be terminated pursuant to Article VIII of the
Merger Agreement.
2. Agreement to Vote Shares. At any meeting of the shareholders of the
Company called with respect to the Merger, the Merger Agreement and any other
transactions contemplated thereby, and at any adjournment or adjournments
thereof, and with respect to any consent solicited with respect to the Merger,
the Merger Agreement and any other transactions contemplated thereby, the
Shareholder shall vote the Shares (a) in favor of approval of the Merger
Agreement, including any amendments thereto, and the Merger and any matter which
could reasonably be
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expected to facilitate the Merger, (b) against any alternative transaction or
any other matter which could reasonably be expected to facilitate the
consummation of an alternative transaction, and (c) in favor of any amendment to
the Company's articles of incorporation necessary to give effect to the
transactions contemplated by the Merger, including, without limitation, voting
in favor of any amendment to require the conversion of all outstanding shares of
Class A Preferred Stock (as defined in the Merger Agreement) into shares of
Parent Common Stock in the Merger. The Shareholder, as the holder of Shares,
shall be present, in person or by proxy, at all meetings of shareholders of the
Company or at any adjournment or adjournments thereof so that all Shares are
counted for the purpose of determining the presence of a quorum at such
meetings. This Agreement is intended to bind the Shareholder only with respect
to the specific matters set forth herein, and shall not prohibit the Shareholder
from acting in accordance with his fiduciary duties as an officer or director of
the Company.
3. Irrevocable Proxy. Concurrently with the execution of this
Agreement, the Shareholder agrees to deliver to Parent a proxy in the form
attached hereto as Annex A (the "Proxy"), which shall be irrevocable to the
extent provided therein; provided that the Proxy shall be revoked upon the
Expiration Date. The Proxy shall be coupled with an interest in such obligations
and in the interests in the Company to be purchased and sold pursuant to the
Merger Agreement.
4. Additional Purchases. For purposes of this Agreement, the term
"Shares" shall include any shares of Company capital stock or other equity
interest which the Shareholder purchases or otherwise acquires after the
execution of this Agreement and prior to the Expiration Date, including, without
limitation, by exercise of options or warrants.
5. Representations, Warranties and Covenants of the Shareholder. The
Shareholder hereby represents, warrants and covenants to Parent that, except as
specifically described on Annex B to this Agreement, the Shareholder (i) is the
holder and beneficial owner of the Shares, which at the date hereof and at all
times until the Expiration Date will be free and clear of any liens, claims,
options, charges or other encumbrances, (ii) does not beneficially own any
shares of stock or other equity interest of the Company other than the Shares,
(iii) has full power and authority to make, enter into, deliver and carry out
the terms of this Agreement and the Proxy and (iv) each share of Class A
Preferred Stock held by the Shareholder is convertible into 1,000 shares of
Voting Common Stock.
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6. Representations, Warranties and Covenants of Parent. Parent
represents, warrants and covenants to the Shareholder, that this Agreement (i)
has been authorized by all necessary corporate action on the part of Parent and
has been duly executed by a duly authorized officer of Parent, and (ii)
constitutes the legal, valid and binding obligation of Parent. Neither the
execution of this Agreement by Parent nor the consummation of the transactions
contemplated hereby will result in a breach or violation of the terms of any
agreement by which Parent is bound or of any decree, judgment, order, law or
regulation now in effect of any court or other governmental body applicable to
Parent.
7. Restriction on Transfer of Parent Shares. The Shareholder agrees not
to 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
shares of Parent Common Stock to be received by the Shareholder in the Merger or
any interest therein except as follows (but subject in all cases to applicable
law, including Rule 145 under the Securities Act): (i) if the Shares
beneficially owned by the Shareholder on a fully diluted basis represent less
than 1.5% of the outstanding shares of Com pany Common Stock (as defined in the
Merger Agreement) and Class A Preferred Stock (taken together as a class)
immediately prior to the Effective Time, the Shareholder may dispose of up to
one-half (1/2) of such Shares within the first 30 days following the Effective
Time and the remainder of such Shares (including any Shares not disposed of in
the first 30 days) at any time thereafter and (ii) if the Shares beneficially
owned by the Shareholder on a fully diluted basis represent 1.5% or more of the
outstanding Company Common Stock and Class A Preferred Stock (taken together as
a class) immediately prior to the Effective Time, the Shareholder may dispose of
up to one-third (1/3) of such Shares within the first 30 days following the
Effective Time, up to an additional one-third (1/3) of such Shares within the
succeeding 30-day period, and the remainder of such Shares (including any Shares
not disposed of in the first 60 days) at any time thereafter. The Shareholder
shall surrender to Parent all certificates representing the Parent Shares
received by the Shareholder, and instruct Parent to place the following legend
on such certificates:
"THE SHARES OF CAPITAL STOCK REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO A VOTING AND LOCK-UP AGREE MENT, AS OF DECEMBER ___, 1999,
BY AND AMONG PARENT, THE COMPANY AND SHAREHOLDER."
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Parent hereby agrees that upon termination of the applicable
aforementioned periods, such legend shall be removed.
8. Additional Documents. The Shareholder and Parent hereby covenant
and agree to execute and deliver any additional documents necessary or
desirable, in the reasonable opinion of Parent's legal counsel or the
Shareholder, as the case may be, to carry out the intent of this Agreement.
9. Consent and Waiver. The Shareholder hereby gives any consent or
waivers that are reasonably required for the consummation of the Merger under
the terms of any agreement to which the Shareholder is a party or pursuant to
any rights the Shareholder may have.
10. Covenants of the Company. The Company hereby covenants to use its
best efforts to assist the other parties hereto to satisfy their respective
obligations hereunder.
11. Miscellaneous.
11.1 Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, 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.
11.2 Binding Effect and Assignment. This Agreement and all of the provi
sions 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 specifi cally provided herein, neither this Agreement nor any of the
rights, interests or obligations of the parties hereto may be assigned by any of
the parties without the prior written consent of the other.
11.3 Amendments and Modifications. This Agreement may not be modified,
amended, altered or supplemented except upon the execution and delivery of a
written agreement executed by the parties hereto.
11.4 Specific Performance: Injunctive Relief. The parties 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
the Shareholder
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set forth herein. Therefore, it is agreed that, in addition to
any other remedies which may be available to Parent upon 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 it at law or
in equity.
11.5 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and sufficient if delivered in
person, by commercial overnight courier service, by confirmed telecopy, or sent
by mail (registered or certified mail, postage prepaid, return receipt
requested) to the respective parties as follows:
(a) if to Parent or Sub, to
RCN Corporation
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attention: General Counsel
Telecopy: (000) 000-0000
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx (prior to January 14, 2000)
Xxx Xxxx, Xxx Xxxx 00000-0000
Four Times Square (after January 14, 2000)
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
(b) if to the Company, to
21st Century Telecom Group, Inc.
000 Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000-0000
Attention: President
Telecopy: (000) 000-0000
with a copy to:
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Xxxxx Xxxxxxx Xxxxxxx & Xxxxx LLP
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, X.X. 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxxxx Xx., Esq.
(c) if to the Shareholder, to
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or to such other address as either party may have furnished to the
other in writing in accordance herewith, except that notices of change
of address shall only be effective upon receipt.
11.6 Termination. This Agreement shall terminate upon the termination
of the Merger Agreement in accordance with its terms.
11.7 Governing Law. This Agreement shall be governed by, construed
and enforced in accordance with the laws of the State of Illinois without
giving effect to principles of conflicts of law.
11.8 Entire Agreement. This Agreement contains the entire understanding
of the parties in respect of the subject matter hereof, and supersedes all prior
negotiations and understandings between the parties with respect to such
subject matter.
11.9 Counterparts. This Agreement may be executed in counterparts, each
of which shall be an original, but all of which together shall constitute one
and the same agreement.
11.10 Effect of Headings. The section headings herein are for
convenience only and shall not affect the construction or interpretation of this
Agreement.
11.11 Shareholder Representative. Shareholder hereby agrees to be bound
by the provisions of the Merger Agreement, including, without limitation, the
provisions of Articles IX and X thereof, and the provisions appointing th
Shareholder Representative (as defined in the Merger Agreement) to act as the
representative of the Shareholder with respect to the matters described
therein.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed on the day and year first above written.
RCN CORPORATION
By: ____________________________
Name:
Title:
21st CENTURY TELECOM GROUP, INC.
By: ____________________________
Name:
Title:
SHAREHOLDER
By: ____________________________
Name:
Shareholder's Address for Notice:
Shares beneficially owned:
________ shares of Voting Common Stock
________ shares of Non-Voting Common Stock
________ shares of Class A Preferred Stock
________ shares of Voting Common Stock issuable pursuant to warrants
________ shares of Voting Common Stock issuable pursuant to options
________ any other direct or indirect equity interests in the Company
(please specify)
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ANNEX A
IRREVOCABLE PROXY
The undersigned holder of shares of capital stock or other equity
interest (the "Shareholder") of 21st Century Telecom Group, Inc., an Illinois
corporation (the "Company"), hereby irrevocably appoints and constitutes Xxxx
Xxxxx, Xxxxxxx Xxxxxx and Xxxx Xxxxx who are officers of RCN Corporation, a
Delaware corporation ("Parent"), and each of them (the "Proxy Holders"), the
agents 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 or equity interest beneficially owned by the
undersigned, which shares 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 is terminated, to vote the Shares as
follows:
The agents and proxies 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 the shareholders of the Company, and in every written consent in lieu
of such a meeting, or otherwise, (a) in favor of approval of the Merger (as
defined in the Voting Agreement dated December __, 1999 between the Shareholder
and Parent (the "Voting Agreement")) and that certain Agreement and Plan of
Merger, including any amendments thereto (the "Merger Agreement"), dated as of
December 12, 1999 by and among Parent, the Company, and 21st Holding Corp., an
Illinois corporation and a wholly owned subsidiary of Parent ("Sub"), and any
matter which could reasonably be expected to facilitate the Merger, (b) against
any alternative transaction (as defined in the Merger Agreement) or any other
matter which could reasonably be expected to facilitate the consummation of an
alternative transaction, and (c) in favor of any amendment to the Company's
articles of incorporation necessary to give effect to the transactions
contemplated by the Merger, including, without limitation, voting in favor of
any amendment to require the conversion of all outstanding shares of Class A
Preferred Stock (as defined in the Merger Agreement) into shares of Parent
Common Stock in the Merger. The Proxy Holders may not exercise this proxy on any
other matter. The Shareholder may vote the Shares on all such other matters.
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The proxy granted by the Shareholder to the Proxy Holders hereby is
granted as of the date of this proxy in order to secure the obligations of the
Shareholder set forth in Section 2 of the Voting Agreement, and is irrevocable
and coupled with an interest in such obligations and in the interests in the
Company to be purchased and sold pursuant to 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 in conflict with this
proxy 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 Shareholder authorizes the Proxy
Holders 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 shareholders of the Company.
This proxy is irrevocable and shall survive the insolvency, incapacity,
death or liquidation of the undersigned.
Dated: December ___, 1999
SHAREHOLDER
By:______________________________
Name:
Shares beneficially owned:
________ shares of Voting Common Stock
________ shares of Non-Voting Common Stock
________ shares of Class A Preferred Stock
________ shares of Voting Common Stock issuable pursuant to warrants
________ shares of Voting Common Stock issuable pursuant to options
________ any other direct or indirect equity interests in the Company
(please specify)
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ANNEX B
ENCUMBRANCES UPON THE SHARES HELD BY THE UNDERSIGNED
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