Execution Version
EXHIBIT 99.2
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "AGREEMENT") is made and entered into as
of November 2, 2000, by and between Startec Global Communications Corporation, a
Delaware corporation ("ACQUIROR"), Stars Acquisition Corp., a Delaware
corporation ("MERGER SUB"), Xxxx Xxxxxxxx ("XXXXXXXX") and Foundation for the
International Non-Governmental Development of Space, a Delaware corporation
("FINDS"). FINDS is a stockholder (the "STOCKHOLDER") of Capsule Communications,
Inc., a Delaware corporation ("TARGET").
RECITALS
A. Concurrently with the execution of this Agreement, Acquiror,
Merger Sub, FINDS, Gold & Xxxxx Transfer, S.A., a British Virgin Island
corporation ("G&A") and Target are entering into an Agreement and Plan of
Reorganization (the "REORGANIZATION AGREEMENT") providing for the merger of
Merger Sub with and into Target (such merger, or any alternative merger
structure adopted pursuant to the Reorganization Agreement, the "MERGER"), on
the terms and subject to the conditions set forth therein (a draft of which has
been provided to FINDS and to Xxxxxxxx). Unless otherwise indicated, capitalized
terms not defined herein have the meanings set forth in the Reorganization
Agreement.
B. FINDS is the record holder and beneficial owner of such number
and class of shares of the outstanding capital stock of Target as is indicated
on the final page of this Agreement (the "FINDS SHARES").
X. Xxxxxxxx is the President and Director of FINDS and currently
disclaims any beneficial ownership in the FINDS Shares.
D. As a material inducement to enter into the Reorganization
Agreement, Acquiror and Merger Sub (1) are requiring that FINDS agree, and FINDS
is willing, among other things, to agree (a) to vote the FINDS Shares and any
other shares of capital stock of Target hereafter acquired by it so as to
facilitate consummation of the Merger, and (b) not to engage in certain
solicitation activities relating to an Acquisition Proposal, and (2) are
requiring that Xxxxxxxx agree, and Xxxxxxxx is willing, among other things, to
agree to take commercially reasonable efforts to cause the Stockholder to
fulfill all of its obligations under this Agreement.
NOW, THEREFORE, in consideration of these premises and mutual
agreements, covenants and provisions herein contained, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
1. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER AND XXXXXXXX.
FINDS and Xxxxxxxx hereby jointly and severally represent and warrant to
Acquiror and Merger Sub as follows:
(i) FINDS is the record and beneficial owner of and has the
sole right, power and authority to (a) vote, or direct the voting of, (b)
dispose, or direct the disposal of, and
(c) convert, demand appraisal rights with respect to, and agree to all of the
matters set forth in this Agreement with respect to, the FINDS Shares. FINDS has
good and marketable title to the FINDS Shares. The FINDS Shares are free and
clear of any Lien, claim, option, subscription, warrant, put, call, charge,
right of first refusal, proxy or voting restrictions, rights of conversion or
exchange, or other encumbrance or restriction. Other than pursuant to this
Agreement, FINDS is not obligated under any agreement or understanding of any
character to transfer or sell any FINDS Shares or any New Shares (as defined
below). FINDS will transfer and deliver to Acquiror immediately upon Closing
valid title to the FINDS Shares and any New Shares then owned by FINDS free and
clear of any Lien, claim, option, subscription, warrant, put, call, charge,
right of first refusal, proxy or voting restrictions, rights of conversion or
exchange, or other encumbrance or restriction, and together with all rights now
or hereafter attaching to such shares.
(ii) FINDS does not own, directly or indirectly, either
beneficially or of record, or manage or control, any shares of capital stock of
Target, or any securities or other interests convertible into or exercisable or
exchangeable for, any shares of capital stock of Target, other than the FINDS
Shares. For the purposes of this Agreement, beneficial ownership has the meaning
set forth in Rule 13d-3 of the Exchange Act.
(iii) Each of FINDS and Xxxxxxxx has full legal capacity,
power and authority to make, enter into and carry out the terms of this
Agreement, the Reorganization Agreement in the case of FINDS, the Stock
Restriction Agreement, and all other documents, certificates and instruments
prepared in connection with the Merger (collectively, the "TRANSACTION
DOCUMENTS"). FINDS is a corporation duly organized and validly existing in good
standing under the laws of the State of Delaware, and has all corporate powers
required to carry on its business as now conducted. The execution and delivery
of the Transaction Documents by each of FINDS and Xxxxxxxx, the performance by
each of FINDS and Xxxxxxxx of its obligations thereunder, and the consummation
of the transactions contemplated thereby, are within the corporate powers of
FINDS, have been duly and validly authorized by all necessary action on the part
of FINDS, and no other proceedings on the part of FINDS or Xxxxxxxx are
necessary or advisable, and, assuming due authorization, execution and delivery
by Acquiror and Merger Sub, each Transaction Document constitutes a legal, valid
and binding obligation of each of FINDS and Xxxxxxxx, enforceable against each
in accordance with its terms. The execution and delivery of each Transaction
Document by FINDS and Xxxxxxxx does not, and the performance of FINDS'
obligations and Xxxxxxxx'x obligations thereunder will not, conflict with,
violate, result in any breach of or constitute a default (or an event that with
notice or lapse of time or both would become a default) under, or give to others
any right to terminate, amend, accelerate or cancel any right or obligation
under, or result in the creation of any Lien on any FINDS Shares or New Shares
(as hereinafter defined) pursuant to, the certificate of incorporation, bylaws
or analogous documents of FINDS or any voting agreement, stockholders agreement,
voting trust, trust agreement, pledge agreement, loan or credit agreement, note,
bond, mortgage, indenture, contract, lease, or any other agreement, concession,
license, permit, franchise or other instrument or obligation to which FINDS or
Xxxxxxxx is a party or by which FINDS or Xxxxxxxx or the FINDS Shares or New
Shares are or will be bound or affected, or violate any judgment, order, notice,
decree, statute, law, ordinance, rule or regulation applicable to FINDS or any
of its assets or to Xxxxxxxx.
(iv) Other than the filing of the Certificate of Merger in
accordance with Delaware law and compliance with any applicable HSR
requirements, no filing with, and no
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permit, authorization, consent or approval of, any Governmental Entity or any
other person or entity is necessary or advisable for the execution, delivery or
performance of any Transaction Document by FINDS and by Xxxxxxxx.
(v) There is no action, suit, investigation or proceeding
pending against, or to the knowledge of FINDS or Xxxxxxxx, threatened against or
affecting, FINDS or any of its subsidiaries, or Xxxxxxxx, or any of their
respective properties, before any Governmental Entity which in any manner
challenges or seeks to prevent, enjoin, alter or materially delay the Merger or
any of the other transactions contemplated by the Transaction Documents. Neither
FINDS nor Xxxxxxxx is aware of any fact or condition now existing that may give
rise to any action, suit, proceeding, claim, arbitration or investigation
against Target or any of the Target Subsidiaries or any of its or their
properties or any of its or their officers of directors (in their capacities as
such).
(vi) Neither FINDS nor Xxxxxxxx, directly or through any
subsidiary, director, officer or affiliate, is currently in discussions with any
third party in relation to any Acquisition Proposal.
(vii) There is no outstanding Liability (actual or
contingent) owing from Target to FINDS, Xxxxxxxx, or any affiliate or associate
thereof, nor is there any Liability owing to Target from any such person.
(viii) Except for Xxxxxx, Xxxxx Xxxxx, Inc. (whose fees and
expenses shall be borne by the Company in the amount of $510,000), there is no
investment banker, broker, finder or other intermediary which has been retained
by or is authorized to act on behalf of FINDS or Xxxxxxxx or any of FINDS'
subsidiaries who might be entitled to a fee or commission upon consummation of
the transactions contemplated by this Agreement and by the other Transaction
Documents.
(ix) Xxxxxxxx is the President and a Director of FINDS.
Other than pursuant to this Agreement, Xxxxxxxx is not obligated under any
agreement or understanding of any character, to transfer, vote or sell any FINDS
Shares or any New Shares.
(x) Xxxxxxxx and FINDS participated in the preparation of
the Registration Statement and in conferences with officers and representatives
of Target, Acquiror and G&A at which the contents of the Registration Statement
and related matters were discussed. Nothing has come to the attention of either
FINDS or Xxxxxxxx that would lead it or him to believe that the Registration
Statement or any amendment thereto (including documents incorporated by
reference therein) as of the date thereof or as of the date hereof, contained
any untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading.
(xi) FINDS does not own, directly or indirectly, either
beneficially or of record, or manage or control, any shares of capital stock of
Acquiror, or any securities or other interests convertible into or exercisable
or exchangeable for, any shares of capital stock of Acquiror, which constitute
five percent (5%) or more of either (a) the common stock of Acquiror or (b) the
voting power of Acquiror. For the purposes of this Agreement beneficial
ownership has the meaning set forth in Rule 13d-3 of the Exchange Act.
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2. COVENANTS OF THE STOCKHOLDER.
2.1 AGREEMENT TO VOTE SHARES. The Stockholder hereby agrees that
during the time this Agreement is in effect, at any meeting of the stockholders
of Target, however called (whether annual, special or adjourned), and in any
action by written consent of the stockholders of Target, such Stockholder shall
vote or cause to be voted the FINDS Shares and any New Shares (as hereinafter
defined) and any other equity interests in Target over which Stockholder has the
sole or joint right to vote or control the voting (or execute, or control the
execution of, as stockholder, any consent, certificate or other document
relating to the Target that the law of the State of Delaware may permit or
require): (i) in favor of (A) approval and adoption of the Reorganization
Agreement and the Merger, and (B) any matter or transaction that is reasonably
required to effect the Merger and the other transactions contemplated by the
Reorganization Agreement, and (ii) against any Acquisition Proposal, and against
any other matter which could reasonably be expected to facilitate any
Acquisition Proposal. The Stockholder shall be present, in person or by proxy,
at all meetings of shareholders of the Target or at any adjournment or
adjournments thereof so that all FINDS Shares and New Shares are counted for the
purpose of determining the presence of a quorum at such meetings.
2.2 NEW SHARES. The Stockholder hereby agrees that it shall not,
and shall not permit any affiliate or associate, or any company, trust or other
entity controlled in whole or in part by it to, without the prior written
consent of Acquiror, purchase or otherwise acquire any shares of capital stock
or other equity interest in Target or any other interest convertible into or
exercisable or exchangeable therefor, or agree to do so, whether conditionally
or unconditionally. Should the Stockholder obtain ownership of additional
interests in Target through stock split or dividend, it will notify Acquiror in
writing promptly of such event. The Stockholder agrees that any shares of
capital stock or other equity interest of Target or any other interest
convertible into or exercisable or exchangeable therefor that the Stockholder,
with the prior written consent of Acquiror, purchases or with respect to which
the Stockholder otherwise acquires record or beneficial ownership (including,
without limitation, by stock split or dividend, by exercise or grant of options,
warrants or other convertible or derivative securities, by exchange or
conversion of other instruments, or otherwise) after the execution of this
Agreement and prior to the Expiration (as hereinafter defined) ("NEW SHARES")
shall be subject to the terms and conditions of this Agreement to the same
extent as if they constituted FINDS Shares. As used herein, the term
"EXPIRATION" shall mean the earlier to occur of (i) such date and time as the
Merger shall become effective in accordance with the terms and provisions of the
Reorganization Agreement, or (ii) such date and time as the Reorganization
Agreement shall have been terminated in accordance with its terms.
2.3 PROHIBITION AGAINST TRANSFER.
(i) The Stockholder agrees that it shall not, and shall not
permit any affiliate or associate, or any company, trust or other entity
controlled in whole or in part by it, to (a) transfer (except as may be
specifically required by court order or by operation of law, in which case any
such transferee shall agree to be bound hereby), tender, assign, sell, exchange,
pledge, hypothecate, or offer to transfer or sell or otherwise dispose of or
encumber or create or suffer to exist any Lien, claim, option, subscription,
warrant, put, call, charge, right of first refusal, proxy or voting
restrictions, or rights of conversion or exchange, or other encumbrance or
restriction, or grant any proxy or power of attorney, deposit into a voting
trust or enter into a voting agreement, understanding or arrangement with
respect to, any FINDS Shares or any New
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Shares, or make any offer or agreement relating thereto, at any time prior to
the Expiration, or (b) take any action that would have the effect of preventing,
delaying or disabling the Stockholder from performing its obligations under this
Agreement. Notwithstanding the foregoing, the Stockholder retains the right to
pledge the FINDS Shares and the New Shares in the normal course of business as
collateral for loans that may be extended to it, provided that the pledgee
agrees in writing to all of the terms and restrictions of this Agreement and the
Stock Restriction Agreement to the same extent as the Stockholder.
(ii) The Stockholder understands and agrees that if the
Stockholder attempts to transfer, vote or provide any other person with the
authority to transfer or vote any of the FINDS Shares or New Shares other than
in compliance with this Agreement, Target shall not, and the Stockholder hereby
unconditionally and irrevocably instructs Target to not, permit any such
transfer on its books and records, issue a new certificate representing any of
the FINDS Shares or New Shares or record such vote unless and until the
Stockholder shall have complied with the terms of this Agreement.
2.4 INDEMNIFICATION.
(i) Xxxxxxxx and the Stockholder (each, an "INDEMNIFYING
PARTY") undertakes and agrees, jointly and severally, to indemnify and hold
harmless Acquiror and Merger Sub, and Target after the Closing, and each of
their respective current and future officers, directors, agents and employees,
and each person, if any, who now and hereafter controls or may control Acquiror,
Merger Sub or Target within the meaning of the Securities Act (each an
"INDEMNIFIED PERSON") from and against any and all losses, costs, damages,
liabilities and expenses arising from claims, demands, actions, causes of
action, or otherwise including, without limitation, reasonable legal fees, net
of any recoveries under existing insurance policies or indemnities from third
parties, arising out of any misrepresentation or nonfulfillment or breach of or
default in connection with any of the undertakings, representations, warranties,
covenants and agreements given or made by such Indemnifying Party in this
Agreement, or caused by or attributable to such Indemnifying Party or to its
agents, employees, or representatives. The indemnification set forth herein
shall be in addition to any liability that Xxxxxxxx or the Stockholder may
otherwise have to the Indemnified Persons under the Reorganization Agreement or
otherwise. Nothing in this Agreement shall limit the liability of Xxxxxxxx or
the Stockholder for any breach of any representation, warranty, undertaking,
covenant or agreement if the Merger is not consummated.
(ii) Promptly after receiving definitive notice of any claim
in respect of which an Indemnified Person may seek indemnification under this
Agreement, such Indemnified Person shall submit notice thereof to the applicable
Indemnifying Party. The omission by the Indemnified Person so to notify any
Indemnifying Party of any such claim shall not relieve any Indemnifying Party
from any liability they may have hereunder except to the extent that (a) such
liability was caused or increased by such omission, or (b) the ability of such
Indemnifying Party to reduce or defend against such liability was adversely
affected by such omission. The failure of the Indemnified Person so to notify
any Indemnifying Party of any such Claim shall not relieve Xxxxxxxx or the
Stockholder from any liability they may have otherwise than hereunder. The
Indemnified Persons and the Indemnifying Parties shall cooperate with and assist
one another in the defense of any claim and any action, suit or proceeding
arising in connection therewith. The Indemnifying Party shall have the right to
participate in any defense of such claim. The Indemnified Person shall have the
right in its sole discretion to settle any such claim;
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PROVIDED, HOWEVER, that such Indemnified Person may not effect the settlement of
any such claim without the consent of such Indemnifying Party, which consent
shall not be unreasonably withheld, conditioned or delayed. In the event that
any Indemnifying Party has consented to any such settlement, such consent shall
be binding on the other as if Xxxxxxxx and the Stockholder gave such consent.
2.5 IRREVOCABLE PROXY. At Acquiror's request, Xxxxxxxx and the
Stockholder agree to promptly execute and deliver to Acquiror a proxy in the
form attached hereto as ANNEX I (the "PROXY"), which shall be irrevocable, with
respect to the FINDS Shares, and any New Shares acquired by it. The parties
agree that, by reason of the Reorganization Agreement, the Proxy is a proxy
coupled with an interest in accordance with Section 212 of the Delaware General
Corporation Law.
2.6 Xxxxxxxx hereby covenants and agrees to take commercially
reasonable efforts to cause the Stockholder to fulfill in all respects its
obligations hereunder.
2.7 ADDITIONAL DOCUMENTS. Xxxxxxxx and the Stockholder hereby
covenant and agree to execute and deliver all additional documents and
instruments reasonably required to carry out the intent of this Agreement.
2.8 NO SOLICITATION. The Stockholder agrees that neither it nor
any of its officers, directors, or employees shall, and the Stockholder and
Xxxxxxxx shall direct and use commercially reasonable efforts to cause their
associates, agents and representatives (including, without limitation, any
investment banker, attorney, or accountant retained by them) not to, directly or
indirectly, take any action to solicit, encourage, entertain, review, initiate
or participate in any Acquisition Proposal, or engage in any negotiations
concerning, or provide any confidential information or data to, or have any
discussions with, any person relating to an Acquisition Proposal. As of the date
hereof, the Stockholder is not engaged in any negotiations or discussions
relating to an Acquisition Proposal, and is not assisting, cooperating with or
encouraging any Acquisition Proposal. The Stockholder shall promptly notify
Acquiror orally and in writing of, and keep it fully and currently informed on,
any Acquisition Proposal or any inquiries with respect thereto, such written
notification to include the identity of the person making such inquiry or
Acquisition Proposal and such other information with respect thereto as is
reasonably necessary to apprise Acquiror of the material terms of such
Acquisition Proposal. The Stockholder shall give Acquiror contemporaneous
written notice upon engaging in discussions or negotiations with, or providing
any information to, any such person regarding an Acquisition Proposal. Each
party to this Agreement acknowledges that this SECTION 2.8 was a significant
inducement for Acquiror to enter into this Agreement and the Reorganization
Agreement and the absence of such provision would have resulted in either (i) a
material reduction in the Merger consideration to be paid to the Stockholder and
the other stockholders of Target or (ii) a failure to induce Acquiror to enter
into this Agreement or the Reorganization Agreement.
2.9 The Stockholder and Xxxxxxxx will take such further actions,
if any, as are necessary to waive any rights the Stockholder or Xxxxxxxx may
have under Delaware Law to make a demand for appraisal with respect to the FINDS
Shares or New Shares it owns.
2.10 The Stockholder hereby agrees that through and until the
Expiration, it shall not, and shall not permit any affiliate or associate, or
any company, trust or other entity
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controlled in whole or in part by it to, purchase or otherwise acquire any
shares of capital stock or other equity interest in Acquiror or any other
interest convertible into or exercisable or exchangeable therefor, or agree to
do so, whether conditionally or unconditionally.
2.11 The Stockholder and Xxxxxxxx undertake to promptly disclose
to Acquiror, in writing, any matter or thing which may arise or become known to
it or him after the date hereof and before the Effective Date which is
inconsistent with any of the above representations, warranties or covenants or
which might make any of them inaccurate or misleading if they were given at any
and all times from the date hereof down to the Effective Date.
3. CONSENT AND WAIVER. The Stockholder hereby gives any consents or
waivers, without the payment of any premium, payments, penalties or other
payment of any consideration of any kind whatsoever or triggering of any change
of control or other rights, that are required for the consummation of the Merger
under the terms of any agreements to which the Stockholder is a party or
pursuant to any other rights the Stockholder may have.
4. SURVIVAL. This Agreement shall terminate upon Expiration, except
Sections 1, 2.4 and 5 hereof which shall survive termination of this Agreement
5. MISCELLANEOUS.
5.1 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, then 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. The parties
further agree to replace such void or unenforceable provision of this Agreement
with a valid and enforceable provision that will achieve, to the extent
possible, the economic, business and other purposes of such void or
unenforceable provision.
5.2 INTERPRETATION. The words "include," "includes," and
"including" when used herein shall be deemed in each case to be followed by the
words "without limitation."
5.3 BINDING EFFECT AND ASSIGNMENT. This Agreement and all of the
provisions 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 specifically provided herein, neither this Agreement nor any of the
rights, interests or obligations of the parties hereto may be assigned by either
of the parties hereto (whether by operation of law or otherwise) without prior
written consent of the other parties hereto.
5.4 AMENDMENTS AND MODIFICATION. 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.
5.5 SPECIFIC PERFORMANCE; INJUNCTIVE RELIEF. The parties hereto
acknowledge that Acquiror 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 Stockholder or Xxxxxxxx set forth herein. Therefore, it is agreed that, in
addition to any other remedies that may be available to Acquiror upon any such
violation, Acquiror shall have the right to enforce such covenants and
agreements
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by specific performance, injunctive relief or by any other means available to
Acquiror at law or in equity and each of Xxxxxxxx and the Stockholder hereby
waive any and all defenses which could exist in its favor in connection with
such enforcement and waive any requirement for the security or posting of any
bond in connection with such enforcement.
5.6 NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and deemed to be sufficient if
delivered in person, by telecopy or sent by mail (registered or certified mail,
postage prepaid, return receipt requested) or nationally-recognized courier
(prepaid) to the respective parties as follows:
IF TO ACQUIROR:
Startec Global Communications Corporation
00000 Xxxxx Xxxx Xxxxx
Xxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attn: Xxxxxxx Xxxxxxxx Xxxxxxx, Senior Vice President and
General Counsel
WITH A COPY TO:
Xxxxx Xxxxxxx Xxxxxxx & Xxxxx LLP
0000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Telecopy: (000) 000-0000
Attn: Wm. Xxxxx Xxxxx
IF TO FINDS OR XXXXXXXX:
C/o Revision LLC
0000 00xx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Telecopy: (000) 000-0000
Attn: Xxxx Xxxxxxxx
WITH A COPY TO:
Xxxxxxx Berlin Shereff Xxxxxxxx, LLP
0000 X Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Telecopy: (000) 000-0000
Attn: Xxxx X. XxXxxxxxxx
or to such other address as any 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.
5.7 GOVERNING LAW; WAIVER OF JURY TRIAL. THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF
THE STATE OF DELAWARE WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF
LAW PROVISION OR RULE (WHETHER OF THE STATE OF DELAWARE OR ANY OTHER
JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION
OTHER THAN THE STATE OF DELAWARE. EACH OF THE PARTIES HERETO IRREVOCABLY
CONSENTS TO THE EXCLUSIVE JURISDICTION OF ANY COURT LOCATED WITHIN THE STATE OF
DELAWARE, IN CONNECTION WITH ANY MATTER BASED UPON OR ARISING OUT OF THIS
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AGREEMENT OR THE REORGANIZATION AGREEMENT OR THE MATTERS CONTEMPLATED HEREIN,
AGREES THAT PROCESS MAY BE SERVED UPON THEM IN ANY MANNER AUTHORIZED BY THE LAWS
OF THE STATE OF DELAWARE FOR SUCH PERSONS AND WAIVES AND COVENANTS NOT TO ASSERT
OR PLEAD ANY OBJECTION WHICH THEY MIGHT OTHERWISE HAVE TO SUCH JURISDICTION AND
SUCH PROCESS. THE PARTIES HERETO HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVE THE RIGHT ANY OF THEM MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
AGREEMENT AND ANY OTHER TRANSACTION DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE
OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE PARTIES
HERETO. THIS PROVISION IS A MATERIAL INDUCEMENT FOR ACQUIROR TO ENTER INTO THIS
AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS.
5.8 ENTIRE AGREEMENT. This Agreement contains the entire
understanding of the parties in respect of the subject matter hereof, and
supersedes all prior negotiations, agreements and understandings, both written
and oral, between the parties with respect to such subject matter. This
Agreement is not intended to confer upon any other person any rights or remedies
hereunder.
5.9 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one 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.
5.10 EFFECT OF HEADINGS. The section headings herein are for
convenience only and shall not affect the construction or interpretation of this
Agreement.
5.11 LEGENDS. Any stock certificates representing the FINDS
Shares or the New Shares shall be legended at the request of Acquiror to reflect
the agreements set forth in this Agreement.
5.12 REMEDIES CUMULATIVE. Except as otherwise provided herein,
any and all remedies herein expressly conferred upon a party will be deemed
cumulative with and not exclusive of any other remedy conferred hereby, or by
law or equity upon such party, and the exercise by a party of any one remedy
will not preclude the exercise of any other remedy.
5.13 RULES OF CONSTRUCTION. The parties hereto agree that they
have been represented by counsel during the negotiation, preparation and
execution of this Agreement and, therefore, waive the application of any law,
regulation, holding or rule of construction providing that ambiguities in an
agreement or other document will be construed against the party drafting such
agreement or document.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties have caused this Voting Agreement to
be duly executed on the date and year first above written.
FOUNDATION FOR THE INTERNATIONAL NON-
GOVERNMENTAL DEVELOPMENT OF SPACE
ATTEST:
/s/ Xxxxxxx Xxxx (SEAL)
-----------------------------
Xxxxxxx Xxxx /s/ Xxxx Xxxxxxxx (SEAL)
----------------------------------
Name: Xxxx Xxxxxxxx
Title: President & Director
Number and Class(es) of Shares Held Beneficially or of Record by Foundation for
the International Non-Governmental Development of Space.
COMMON STOCK: 2,186,433 SHARES OWNED BENEFICIALLY AND 2,186,433 SHARES OWNED
OF RECORD.
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
STARTEC GLOBAL COMMUNICATIONS CORPORATION
ATTEST:
/s/ Xxxxxxx Xxxxxxxx Xxxxxxx (SEAL) /s/ Ram Xxxxxxx (SEAL)
------------------------------ ----------------------------------
Xxxxxxx Xxxxxxxx Xxxxxxx Name: Ram Xxxxxxx
Secretary Title: President and CEO
ATTEST: STARS ACQUISITION CORP.
/s/ Xxxxxxx Xxxxxxxx Xxxxxxx (SEAL) /s/ Ram Xxxxxxx (SEAL)
------------------------------ ----------------------------------
Xxxxxxx Xxxxxxxx Xxxxxxx Name: Ram Xxxxxxx
Secretary Title: President and CEO
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
ATTEST: XXXX XXXXXXXX
/s/ Xxxx Xxxxxx (SEAL) /s/ Xxxx Xxxxxxxx (SEAL)
------------------------------ ----------------------------------
Xxxx Xxxxxx Xxxx Xxxxxxxx, Individually
[END SIGNATURE PAGES]
ANNEX I
IRREVOCABLE PROXY
The undersigned stockholder of Capsule Communications, Inc., a
Delaware corporation ("TARGET"), hereby irrevocably (to the fullest extent
permitted by the General Corporation Law of the State of Delaware (the "DGCL"))
appoints Ram Xxxxxxx, the Chief Executive Officer, and Xxxxxxx Xxxxxxx, the
Chief Financial Officer, respectively, of Startec Global Communications
Corporation, a Delaware corporation ("ACQUIROR"), and each of them, or any other
designee of Acquiror, as the sole and exclusive attorneys and proxies of the
undersigned, with full power of substitution and resubstitution, to vote and
exercise all voting and related rights (to the fullest extent that the
undersigned is entitled to do so) with respect to all of the shares of capital
stock of Target that now are or hereafter may be owned beneficially or of record
by the undersigned, and any and all other shares or securities of Target issued
or issuable in respect thereof, or otherwise acquired by the undersigned on or
after the date hereof (collectively, the "SHARES") in accordance with the terms
of this Irrevocable Proxy. The Shares owned beneficially or of record by the
undersigned stockholder of Target as of the date of this Irrevocable Proxy are
listed on the final page of this Irrevocable Proxy. Upon the undersigned's
execution of this Irrevocable Proxy, any and all prior proxies given by the
undersigned with respect to any Shares are hereby revoked and the undersigned
agrees not to grant any subsequent proxies with respect to the Shares until
after the Expiration (as defined below).
This Irrevocable Proxy is irrevocable (to the fullest extent provided
by the DGCL), is coupled with an interest and is granted in consideration of
Acquiror entering into the Agreement and Plan of Reorganization (the
"REORGANIZATION AGREEMENT") dated as of November 2, 2000 by and among Acquiror,
Stars Acquisition Corp., a Delaware corporation ("MERGER SUB"), Target, Gold &
Xxxxx Transfer, S.A., and Foundation for the International Non-Governmental
Development of Space, which agreement provides for the merger of Merger Sub with
and into Target (the "MERGER") and in connection with a Voting Agreement dated
as of November 2, 2000, by and among Acquiror, Merger Sub, Gold & Xxxxx
Transfer, S.A. and Xxxx Xxxxxxxx. As used herein, the term "EXPIRATION" shall
mean the earlier to occur of (i) such date and time as the Merger shall become
effective in accordance with the terms and provisions of the Reorganization
Agreement, or (ii) such date and time as the Reorganization Agreement shall have
been terminated in accordance with its terms. Unless otherwise indicated,
capitalized terms not defined herein have the meanings set forth in the
Reorganization Agreement.
The attorneys and proxies named above, and each of them, are hereby
authorized and empowered by the undersigned, at any time prior to the
Expiration, to act as the undersigned's attorney and proxy to vote the Shares,
and to exercise all voting and other rights of the undersigned with respect to
the Shares (including, without limitation, the power to execute and deliver
written consents pursuant to the DGCL), at every annual, special or adjourned
meeting of the stockholders of Target, and in every written consent in lieu of
such meeting as follows: (i) in favor of (A) approval and adoption of the
Reorganization Agreement and the Merger, and (B) any matter or transaction that
is reasonably required to effect the Merger and the other transactions
contemplated by the Reorganization Agreement, and (ii) against any Acquisition
Proposal, and against any other matter which could reasonably be expected to
facilitate any Acquisition Proposal. The attorneys and proxies named above may
not exercise this Irrevocable Proxy on any other matter except as provided
above. The undersigned stockholder may vote the Shares on all other matters.
All authority herein conferred shall survive the death or incapacity
of the undersigned and any obligation of the undersigned hereunder shall be
binding upon the heirs, personal Representatives, successors and assigns of the
undersigned.
This Irrevocable Proxy is coupled with an interest as aforesaid and is
irrevocable.
Any obligation of the undersigned hereunder shall be binding upon the
heir, personal representatives, successors and assigns of the undersigned. THIS
PROXY IS IRREVOCABLE.
Dated: ___________, 2000
STOCKHOLDER:
FOUNDATION FOR THE INTERNATIONAL NON-GOVERNMENTAL DEVELOPMENT OF SPACE
By: (SEAL)
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Its:
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______ Shares of Common Stock owned beneficially and _______ shares owned of
record.