Amended and Restated Stock Ownership Agreement
Amended and Restated Stock
Ownership Agreement
This
AMENDED AND RESTATED STOCK OWNERSHIP AGREEMENT, dated as of December 19, 2008
(the “Agreement”), is by and between Arbinet-thexchange, Inc., a Delaware
corporation (“Arbinet”), and the Singer Children’s Management Trust (the
“Trust”), Xxxx Xxxxxx (“GS”) and Xxxxx Xxxxxx (“KS” and together with the Trust
and GS, the “Singer Entities”).
WHEREAS,
Arbinet and the Singer Entities entered into a Stock Ownership Agreement dated
as of May 30, 2008 (the “Original Stock Ownership Agreement”);
WHEREAS,
Arbinet and the Singer Entities desire to amend and restate the Original Stock
Ownership Agreement with this Amended and Restated Stock Ownership Agreement in
the manner set forth herein and intend that, upon execution of this Agreement,
the provisions of the Original Stock Ownership Agreement shall be terminated and
superseded in their entirety by this Agreement;
WHEREAS,
the Singer Entities are the beneficial owners of 4,241,608 shares of common
stock, par value $0.001 per share, of Arbinet (the “Common Stock”);
WHEREAS,
GS acts as a consultant to the Trust;
WHEREAS,
the Singer Entities may, from time to time, purchase additional shares of the
outstanding voting stock (as such term is hereinafter defined) of Arbinet
through open market purchases, privately negotiated transactions or otherwise;
and
WHEREAS,
Arbinet and the Singer Entities wish to make certain agreements regarding the
Singer Entities ability to purchase additional shares of the outstanding voting
stock of Arbinet without being subject to limitations on their ability to enter
into business combinations (as such term is hereinafter defined) with
Arbinet.
NOW,
THEREFORE, in consideration of the mutual covenants and agreements contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby agree as
follows:
Section
1. Representations.
(a) Binding Agreement;
Authority.
Arbinet
hereby represents and warrants that this Agreement has been duly authorized,
executed and delivered by Arbinet, and is a valid and binding obligation of
Arbinet, enforceable against Arbinet in accordance with its
terms. Each of the Singer Entities hereby represents and warrants
that this Agreement has been duly authorized, executed and delivered by such
Singer Entity, and is a valid and binding obligation of such Singer Entity,
enforceable against such Singer Entity in accordance with its
terms.
(b) Share Ownership of Common
Stock.
The Trust
hereby represents and warrants that, as of the date hereof, it is the owner (as
such term is hereinafter defined) of 4,241,608 shares of Common Stock, and that
neither it nor its Affiliates or Associates (as such terms are hereinafter
defined) own, or have any rights, options or agreements to acquire or vote, any
other shares of Common Stock. GS hereby represents and warrants that,
as of the date hereof, he does not own any shares of Common Stock, and that
neither he nor his Affiliates or Associates (other than the Trust) own, or have
any rights, options or agreements to acquire or vote, any other shares of Common
Stock. KS hereby represents and warrants that, as of the date hereof,
she does not own any shares of Common Stock, and that neither she nor her
Affiliates or Associates (other than the Trust) own, or have any rights, options
or agreements to acquire or vote, any other shares of Common
Stock. Each of the Singer Entities, together with his, her or its
Affiliates or Associates, is not an interested stockholder (as such term is
hereinafter defined).
(c) Capitalization.
Arbinet
hereby represents and warrants that, at the close of business on December 18,
2008, there were 22,579,874 shares of Common Stock issued and
outstanding.
(d) Defined
Terms.
For
purposes of this Agreement, the terms “Affiliate,” “Associate,” “business
combination,” “control,” “interested stockholder,” “person,” “stock,” “voting
stock,” “owner,” “own,” and “owned” shall have the respective meanings set forth
in Section 203 of the General Corporation Law of the State of Delaware (the
“DGCL”) in effect as of the date hereof.
Section
2. Approval of Acquisitions of
Common Stock. Subject
to the due execution and delivery of this Agreement by the Singer Entities, a
committee of disinterested members of the Board of Directors of Arbinet (the
“Committee”) has approved, for purposes of Section 203 of the DGCL, the purchase
by the Trust of up to 5,141,608 shares of the outstanding voting stock of
Arbinet (the “Share Limit”).
Section
3. Stock
Ownership.
(a) As
a condition to the approval by the Committee of the Transaction, if, at any time
during the three (3) year period from the date hereof, the Singer Entities,
together with their Affiliates and Associates, become the owner of shares of
voting stock exceeding the Share Limit, the parties hereby agree that neither
the Singer Entities nor any of their respective Affiliates or Associates will be
able to engage in any business combination with Arbinet for a period of three
(3) years following the date on which the Singer Entities exceeded the Share
Limit. Without limiting the foregoing, each of the Singer Entities
hereby represents that any such business combination would be null and
void.
(b) The
restrictions contained in Section 3(a) of this Agreement shall not apply if the
Singer Entities, together with their Affiliates and Associates, inadvertently
exceeds the Share Limit (the “Inadvertent Transaction”) and (i) as soon as
practicable, but in any event within ten (10) business days of the Inadvertent
Transaction, the Singer Entities, together with their Affiliates and Associates,
divest themselves of ownership of a sufficient number of shares so that the
Singer Entities, together with their Affiliates and Associates, cease to own
more than the Share Limit, and (ii) the Singer Entities, together with their
Affiliates and Associates, would not, at any time within the three (3) year
period immediately prior to a business combination between Arbinet and the
Singer Entities, have been the owner of more than the Share Limit but for the
Inadvertent Transaction.
(c) The
restrictions contained in Section 3(a) of this Agreement shall not apply if the
Singer Entities would be entitled to rely on the exemptions from prohibitions on
business combinations set forth in Section 203(b)(6) of the DGCL.
(d) The
restrictions contained in Section 3(a) of this Agreement shall not apply if the
Singer Entities, together with their Affiliates and Associates, become the owner
of shares of the outstanding voting stock of Arbinet in excess of the Share
Limit as a result of action taken solely by Arbinet; provided, that the
restrictions contained in Section 3(a) of this Agreement shall apply if the
Singer Entities, together with their Affiliates and Associates, thereafter
acquire additional shares of voting stock of Arbinet, except as a result of
further corporate action not caused, directly or indirectly, by the Singer
Entities or their respective Affiliates and Associates.
(e) Each
of the Singer Entities agrees to cause its respective Affiliates and Associates
to comply with the terms of this Agreement, including the restrictions on
ownership set forth in this Section 3.
Section
4. Remedies. Each
party hereto hereby acknowledges and agrees that irreparable harm would occur in
the event any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It
is accordingly agreed that the parties shall be entitled to specific relief
hereunder, including, without limitation, an injunction or injunctions to
prevent and enjoin breaches of the provisions of this Agreement and to enforce
specifically the terms and provisions hereof in any state or federal court in
the State of Delaware, in addition to any other remedy to which they may be
entitled at law or in equity. Any requirements for the securing or
posting of any bond with such remedy are hereby waived.
Section
5. Entire
Agreement. This
Agreement contains the entire understanding of the parties with respect to the
subject matter hereof, including without limitation the Original Stock Ownership
Agreement, which understandings or agreements (if any) are of no further force
or effect, and may be amended only by an agreement in writing executed by the
parties hereto. For the avoidance of doubt, this Agreement does not
supersede or replace that certain Settlement and Standstill Agreement dated as
of July 13, 2007 by and between Arbinet and the Trust, KS, and GS, which remains
in full force and effect in accordance with its terms.
Section
6. Notices. All
notices, consents, requests, instructions, approvals and other communications
provided for herein and all legal process in regard hereto shall be validly
given, made or served, if in writing and sent by U.S. registered mail, return
receipt requested:
|
if
to Arbinet:
|
Arbinet-thexchange,
Inc.
|
||
|
Tower
II, Suite 450
|
|||
|
000
Xxxxxx Xxxxxx
|
|||
|
Xxx
Xxxxxxxxx, Xxx Xxxxxx 00000
|
|||
|
Attention:
General Counsel
|
|||
| with a copy to: |
Xxxxxxx
Procter LLP
|
|
|
|
Exchange
Place
|
|||
|
Boston,
Massachusetts 02109
|
|||
|
Attention:
Xxxxxx X. Xxxxxxx III
|
|||
|
if
to the Singer
Entities:
|
Singer
Children’s Management Trust
|
||
|
Xxxx
Xxxxxx
|
|||
|
Xxxxx
Xxxxxx
|
|||
|
000
Xxxxxxx Xxxxx
|
|||
|
Xxxxxxxxx,
Xxx Xxxxxx 00000
|
|||
|
with
a copy
to:
|
Xxxxxxx
Xxxxx LLP
|
||
|
000
Xxxxxxxxx Xxxxxx
|
|||
|
Xxx
Xxxx, Xxx Xxxx 00000
|
|||
|
Attention:
Xxxx Xxxxxxxxxxx
|
Section
7. Law
Governing. This
Agreement shall be governed by and construed and enforced in accordance with the
laws of the State of Delaware, without regard to any conflict of laws provisions
thereof. The parties, on behalf of itself and its Affiliates and
Associates, hereby irrevocably and unconditionally consent to the exclusive
jurisdiction of the courts in the State of Delaware and/or the courts of the
United States of America located in the State of Delaware for any action, suit
or proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby, and agree not to commence any action, suit or proceeding
related thereto except in such courts. The parties, on behalf of
itself and its Affiliates and Associates, hereby irrevocably and unconditionally
waive any objection to the laying of venue of any action, suit or proceeding
arising out of this Agreement or the transactions contemplated hereby, in the
courts in the State of Delaware and/or the courts of the United States of
America located in the State of Delaware, and hereby further irrevocably and
unconditionally waive and agree not to plead or claim in any such court that any
such action, suit or proceeding in any such court has been brought in any
inconvenient forum.
Section
8. Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
Section
9. No Presumption Against
Draftsman. Each
of the undersigned parties hereby acknowledges the undersigned parties fully
negotiated the terms of this Agreement, that each such party had an equal
opportunity to influence the drafting of the language contained in this
Agreement and that there shall be no presumption against any such party on the
ground that such party was responsible for preparing this Agreement or any part
hereof. The headings contained in this Agreement are for convenience
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
Section
10. Enforceability. 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. It is hereby stipulated and declared to be the
intention of the parties that the parties would have executed the remaining
terms, provisions, covenants and restrictions without including any of such
which may be hereafter declared invalid, void or unenforceable. In
addition, the parties agree to use their best efforts to agree upon and
substitute a valid and enforceable term, provision, covenant or restriction for
any such term, provision, covenant or restriction that is held invalid, void or
unenforceable by a court of competent jurisdiction. Each of the
Singer Entities acknowledges that this Agreement shall be binding upon each of
their respective heirs, successors and assigns, and agrees to take all action
necessary to cause this Agreement to be binding on such persons.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, each of the parties
hereto has executed this Amended and Restated Stock Ownership Agreement, or
caused the same to be executed by its duly authorized representative as of the
date first above written.
|
ARBINET-THEXCHANGE,
INC.
|
||
|
By:
/s/ W. Xxxxxxx Xxxxxxxxx,
Xx.
|
||
|
Name:
W. Xxxxxxx Xxxxxxxxx,
Xx.
|
||
|
Title: General
Counsel
|
||
|
SINGER
CHILDREN’S MANAGEMENT TRUST
|
||
|
By:
/s/ Xxxxx Xxxxxx
|
||
|
Name:
Xxxxx Xxxxxx, its Trustee
|
||
|
/s/ Xxxx Xxxxxx
|
||
|
Xxxx
Xxxxxx, individually and as consultant to the
|
||
|
Singer
Children’s Management Trust
|
||
|
/s/ Xxxxx Xxxxxx
|
||
|
Xxxxx
Xxxxxx, individually
|
