EXECUTION COPY
EXCEL CONSENT AND VOTING AGREEMENT
EXCEL CONSENT AND VOTING AGREEMENT, dated as of June 14, 1998 (this
"Agreement"), by and among TELEGLOBE INC., a corporation governed by the Canada
Business Corporations Act ("Teleglobe"), and each of the other signatories
hereto (each, a "Stockholder" and, collectively, the "Stockholders").
WHEREAS, concurrently herewith, Teleglobe, North Merger Sub Corporation, a
Delaware corporation and a wholly owned subsidiary of Teleglobe ("North Sub"),
and Excel Communications, Inc., a Delaware corporation (the "Company"), are
entering into an Agreement and Plan of Merger (the "Merger Agreement";
capitalized terms used without definition herein having the meanings ascribed
thereto in the Merger Agreement);
WHEREAS, each Stockholder is the record and beneficial owner of the number of
shares ("Shares") of common stock, par value $.001 per share, of the Company
("Company Common Stock") set forth opposite such Stockholder's name in Schedule
I hereto;
WHEREAS, approval and adoption of the Merger Agreement by the Company's
stockholders is a condition to the consummation of the Merger;
WHEREAS, the Board of Directors of the Company has, prior to the execution of
this Agreement, duly and validly approved and adopted the Merger Agreement and
approved this Agreement, and such approvals and adoption have not been
withdrawn;
WHEREAS, the Stockholders are executing this Agreement (i) as an inducement to
Teleglobe to enter into and execute and to cause North Sub to enter into and
execute the Merger Agreement and (ii) in reliance upon the representations,
warranties, agreements and covenants of Teleglobe set forth in Sections 3.2(ad)
and 5.13 thereof; and
WHEREAS, certain holders of common shares of Teleglobe capital stock are
concurrently executing the Teleglobe Consent and Voting Agreements as an
inducement to Excel to enter into and execute the Merger Agreement.
NOW THEREFORE, in consideration of the foregoing and the mutual covenants and
agreements set forth herein, the parties hereto agree as follows:
Section 1. Consent and Agreement to Vote. Each Stockholder agrees
(for itself and not as to any other Stockholder) that immediately following the
execution and delivery of this Agreement and the Merger Agreement, it shall
execute and deliver, or cause to be executed and delivered by the record owner
thereof, in accordance with Section 228 of the DGCL, the Excel Stockholders
Consent in the form of Exhibit A hereto (the "Consent"), which shall be
irrevocable, with respect to all Shares that are owned beneficially or of record
by such Stockholder or as to which such Stockholder has, directly or indirectly,
the right to vote or direct the voting.
Each Stockholder hereby further agrees (for itself and not as to any
other Stockholder) that, during the term of this Agreement, it shall, from time
to time, at the request of Teleglobe, at any meeting (whether annual or special
and whether or not an adjourned or postponed meeting) of stockholders of the
Company, however called, or in connection with any written consent of the
holders of Company Common Stock, in either case, prior to the earlier of the
Effective Time and the termination of this Agreement, if a meeting is held,
appear at such meeting or otherwise cause the Shares to be counted as present
thereat for purposes of establishing a quorum, and it shall vote or consent (or
cause to be voted or consented), in person or by proxy, all Shares, and any
other voting securities of the Company (whether acquired heretofore or
hereafter), that are beneficially owned by such Stockholder or its wholly owned
Affiliates or as to which such Stockholder has, directly or indirectly, the
right to vote or direct the voting, in favor of the approval and adoption of the
Merger Agreement. Each Stockholder agrees, during the period commencing on the
date hereof and ending on the earlier of the Effective Time and the termination
of this Agreement, not to, and not to permit any of its wholly owned Affiliates
to, vote or execute any written consent in lieu of a stockholders meeting or
vote of the Company, if such consent or vote by the stockholders of the Company
would be inconsistent with or frustrate the purposes of the other agreements of
such Stockholder pursuant to this paragraph.
In furtherance and not in limitation of the foregoing, each
Stockholder hereby grants to, and appoints, Teleglobe and each of Xxxxxx Xxxxxx,
Xxxxxxxx Xxxxxx and
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Xxxxx Xxxxxxxxxxx, in their respective capacities as officers of Teleglobe, and
any individual who shall hereafter succeed to any such officer of Teleglobe, and
any other designee of Teleglobe, each of them individually, its irrevocable
proxy and attorney-in-fact (with full power of substitution) to vote the Shares
as indicated in this Section 1. Each Stockholder intends this proxy to be
irrevocable and coupled with an interest and will take such further action and
execute such other instruments as may be necessary to effectuate the intent of
this proxy.
Each Stockholder hereby revokes any and all previous proxies with
respect to such Person's Shares or any other voting securities of the Company
that relate to the approval of the Merger Agreement.
Section 2. Securities Act Covenants and Representations. In addition
to, and not in lieu of, the other covenants and representations set forth
herein, each Stockholder hereby agrees and represents to Teleglobe that such
Stockholder understands that, to the extent such Stockholder is an "affiliate"
(as such term is defined in Rule 405 under the Securities Act) of the Company at
the time the Consent is executed or the Merger Agreement is submitted for a vote
of the stockholders of the Company, any public offering, sale or other
disposition by such Stockholder or any of its wholly owned Affiliates of any
Teleglobe Common Shares received by such Person in the Merger (collectively, the
"Restricted Sales") will, under current law, require any of (i) the further
registration under the Securities Act of any Teleglobe Common Shares to be sold
by such Person, (ii) compliance with applicable provisions of Rule 145
promulgated by the SEC under the Securities Act or (iii) the availability of
another exemption from such registration under the Securities Act. Each
Stockholder agrees not to, and not to cause or permit any of its wholly owned
Affiliates to, make any Restricted Sale unless the conditions of clause (i),
(ii) or (iii) are met.
Section 3. Pooling Covenants and Representations. In addition to,
and not in lieu of, the other covenants and representations set forth herein,
each Stockholder that is an "affiliate" of the Company hereby agrees and
represents to Teleglobe that from and after the date hereof, such Stockholder
will not, and will not permit any of its wholly owned Affiliates to, sell,
pledge, transfer or otherwise dispose of, or hedge or otherwise reduce its risk
with respect to, any Shares (whether owned as of the date hereof or hereafter
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acquired) or any Teleglobe Common Shares received by such Stockholder in the
Merger or other shares of capital stock of Teleglobe, from the 30th day prior to
the Effective Time to such time as results covering at least 30 days of combined
operations of the Company and Teleglobe have been published by Teleglobe in the
form of a quarterly earnings report, an effective registration statement filed
with the SEC, a report to the SEC on Form 6-K or any other public filing or
announcement which includes the combined results of operations of Teleglobe and
Excel, except for transfers or other dispositions that, in the reasonable
opinion of Excel's or Teleglobe's independent accountants, will not prevent
Teleglobe from accounting for the Merger as a pooling of interests, taking into
account the actions of other wholly owned Affiliates of the Company, Teleglobe
or the Stockholders.
Section 4. Further Assurances. Each party shall execute and deliver
such additional instruments and other documents and shall take such further
actions as may be necessary or appropriate to effectuate, carry out and comply
with all of its obligations under this Agreement. Without limiting the
generality of the foregoing, none of the parties hereto shall enter into any
agreement or arrangement (or alter, amend or terminate any existing agreement or
arrangement) if such action would materially impair the ability of such party to
effectuate, carry out or comply with all of the terms of this Agreement.
Section 5. Representations and Warranties of Teleglobe. Teleglobe
represents and warrants to each Stockholder as follows:
(a) This Agreement has been approved by the Board of Directors of
Teleglobe, representing all necessary corporate action on the part of Teleglobe
for the execution and performance hereof and thereof by Teleglobe (no action by
the stockholders of Teleglobe being required).
(b) This Agreement has been duly executed and delivered by a duly
authorized officer of Teleglobe.
(c) This Agreement constitute a valid and binding agreement of
Teleglobe, enforceable against Teleglobe in accordance with their terms, except
as such enforceability may be limited by bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws relating to or affecting
creditors generally by general
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equity principles (regardless of whether enforceability is considered in a
proceeding in equity or at law) or by an implied covenant of good faith and fair
dealing.
(d) The execution and delivery of this Agreement by Teleglobe does
not violate or breach, and will not give rise to any violation or breach, of
Teleglobe's charter or bylaws, or, except as will not materially impair its
ability to effectuate, carry out or comply with all of the terms of this
Agreement, any Law, Governmental Entity approval or Contract by which Teleglobe
or its Subsidiaries or their respective assets or properties may be bound.
Section 6. Representations and Warranties of the Stockholders. Each
Stockholder, as to such Stockholder only, represents and warrants to Teleglobe
as follows:
(a) Schedule I sets forth, opposite such Stock- holder's name, the
number and type of Shares of which such Stockholder is the record or beneficial
owner. Such Stockholder is the lawful owner of such Shares, free and clear of
all liens, charges, options, rights, encumbrances, stockholders agreements,
voting agreements, agreements to transfer or otherwise dispose of such Shares
and commitments of every kind, other than this Agreement and as disclosed in
Schedule I and has the sole power to vote (or cause to be voted) the Shares as
set forth in this Agreement and the Consent. Except as set forth on such
Schedule I, neither such Stockholder nor any of its Affiliates owns or holds any
rights to acquire any additional shares of Company Common Stock or other
securities of the Company or any interest therein or any voting rights with
respect to any additional shares of Company Common Stock or any other securities
of the Company.
(b) This Agreement and the Consent each have been duly executed and
delivered by a duly authorized officer of such Stockholder or, if the
Stockholder is a natural person, the Stockholder has the legal capacity to
execute this Agreement.
(c) This Agreement and the Consent constitute the valid and binding
agreements of such Stockholder, enforceable against such Stockholder in
accordance with their terms, except as such enforceability may be limited by
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws relating to or affecting creditors generally by general equity
principles (regardless of whether
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enforceability is considered in a proceeding in equity or at law) or by an
implied covenant of good faith and fair dealing.
(d) The execution and delivery of this Agreement and the Consent by
such Stockholder does not violate or breach, and will not give rise to any
violation or breach, of such Stockholder's charter, by-laws, trust instrument or
partnership agreement, to the extent applicable or, except as will not
materially impair the ability of such Stockholder to effectuate, carry out or
comply with all of the terms of this Agreement, any Law, third party consent,
Governmental Entity approval or Contract by which such Stockholder or its assets
or properties may be bound.
Section 7. Effectiveness and Termination. In the event the Merger
Agreement is terminated in accordance with its terms, this Agreement shall
automatically terminate and be of no further force or effect. Upon such
termination, except for any rights any party may have in respect of any breach
by any other party of its obligations hereunder, none of the parties hereto
shall have any further obligation or liability hereunder; provided however (A)
that any amendment by the parties to the Merger Agreement to (x) the Exchange
Ratio or the Merger Consideration (each as defined in Section 1.8(a) of the
Merger Agreement), (y) Article VI of the Merger Agreement entitled "Conditions
Precedent" or (z) Article VII of the Merger Agreement entitled "Termination and
Amendment" or (B) the waiver on or prior to the Closing Date by Teleglobe and/or
Excel of any material Condition Precedent set forth in Article VI of the Merger
Agreement, shall require the written consent of the Shareholders, failing which
this Agreement may be terminated in writing by any Shareholder who has not
consented to such amendment or such waiver. In any event, if the Effective Time
shall not have occurred on or before December 31, 1999, this Agreement may be
terminated in writing by any Shareholder and it shall be of no further force or
effect as to such Shareholder.
Section 8. Miscellaneous.
(a) Notices. All notices, requests and other communications
hereunder shall be in writing and shall be deemed duly given (a) on the date of
delivery if delivered personally, or by telecopy or facsimile, upon confirmation
of receipt, (b) on the first Business Day following the date of dispatch if
delivered by a recognized next-day courier service or (c) on the third Business
Day following the date
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of mailing if delivered by registered or certified mail, return receipt
requested, postage prepaid. All notices hereunder shall be delivered as set
forth below, or pursuant to such other instructions as may be designated in
writing by the party to receive such notice:
(i) if to Teleglobe, to
Teleglobe Inc.
0000, xxx xx Xx Xxxxxxxxxxx xxxxx
Xxxxxxxx, Xxxxxx X0X 0X0
Attention: Vice President, Legal Affairs and
Corporate Secretary
Facsimile: 000-000-0000
with a copy to
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx III, Esq.
Facsimile: 000-000-0000
(ii) if to any Stockholder, to
Excel Communications, Inc.
0000 Xxxxx Xxxxxxx Xxxxxxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
Attention: Executive Vice President,
Secretary and General Counsel
Facsimile: 000-000-0000
with a copy to
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxxxx X. Xxxxx, Esq.
Facsimile: 000-000-0000
(b) Interpretation. When a reference is made in this Agreement to
Sections, such reference shall be to a Section of this Agreement unless
otherwise indicated. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement. Whenever the words "include", "includes" or "including" are used
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in this Agreement, they shall be deemed to be followed by the words "without
limitation".
(c) 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 party, it being understood that both
parties need not sign the same counterpart.
(d) Entire Agreement; No Third Party Beneficiaries. This Agreement
constitutes the entire agreement and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof. This Agreement shall be binding upon and inure solely to
the benefit of each party hereto, and nothing in this Agreement, express or
implied, is intended to or shall confer upon any other Person any right, benefit
or remedy of any nature whatsoever under or by reason of this Agreement.
(e) Waiver of Jury Trial. Each party hereto waives, to the fullest
extent permitted by applicable law, any right it may have to a trial by jury in
respect of any litigation directly or indirectly arising out of, under or in
connection with this Agreement.
(f) Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Delaware, without regard to the
principles of conflicts of laws of such state.
(g) Severability. If any term or other provision of this Agreement
is invalid, illegal or incapable of being enforced by any law or public policy,
all other terms and provisions of this Agreement shall nevertheless remain in
full force and effect so long as the economic or legal substance of the
transactions contemplated hereby is not affected in any manner materially
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner in order
that the transactions contemplated hereby are consummated as originally
contemplated to the greatest extent possible.
(h) Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto, in whole or in part (whether by
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operation of law or otherwise), without the prior written consent of the other
party and the written undertaking of the assignee to be bound by the terms of
this Agreement, and any attempt to make any such assignment without such consent
shall be null and void. Subject to the preceding sentence, this Agreement will
be binding upon, inure to the benefit of and be enforceable by the parties and
their respective successors and permitted assigns.
(i) Submission to Jurisdiction; Waivers. Each of Teleglobe and each
Stockholder irrevocably agrees that any legal action or proceeding with respect
to this Agreement or for recognition and enforcement of any judgment in respect
hereof brought by the other party hereto or its successors or assigns may be
brought and determined in the Chancery or other Courts of the State of Delaware,
and each of Teleglobe and each Stockholder hereby irrevocably submits with
regard to any such action or proceeding for itself and in respect to its
property, generally and unconditionally, to the exclusive jurisdiction of the
aforesaid courts. Each of Teleglobe and each Stockholder hereby irrevocably
waives, and agrees not to assert, by way of motion, as a defense, counterclaim
or otherwise, in any action or proceeding with respect to this Agreement, (a)
any claim that it is not personally subject to the jurisdiction of the
above-named courts for any reason other than the failure to serve process in
accordance with this Section 8(i), (b) that it or its property is exempt or
immune from jurisdiction of any such court or from any legal process commenced
in such courts (whether through service of notice, attachment prior to judgment,
attachment in aid of execution of judgment, execution of judgment or otherwise),
and (c) to the fullest extent permitted by applicable law, that (i) the suit,
action or proceeding in any such court is brought in an inconvenient forum, (ii)
the venue of such suit, action or proceeding is improper or (iii) this
Agreement, or the subject matter hereof, may not be enforced in or by such
courts.
(j) Specific Performance. Each party acknowledges that if it fails
to perform any of its obligations under this Agreement, immediate and
irreparable harm or injury would be caused to the other party for which money
damages would not be an adequate remedy. In such event, each party agrees that
the other party shall have the right, in addition to any other rights it may
have, to specific performance of this Agreement. Accordingly, if either party
should institute an action or proceeding seeking specific enforcement of the
provisions hereof, the other party in respect of such claim hereby waives the
claim or defense that the other party has an adequate remedy at law and hereby
agrees not to assert in any such action or proceeding the claim or defense that
such a remedy at law exists. Each party further agrees to waive
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any requirements for the securing or posting of any bond in connection with
obtaining any such equitable relief.
(k) Expenses. Each of Teleglobe and each Stockholder shall bear its
own expenses incurred in connection with this Agreement and the transactions
contemplated hereby.
(l) Action in Stockholder Capacity Only. No Stockholder makes any
agreement or understanding herein as a director or officer of the Company or in
any capacity other than as a stockholder of the Company. Each Stockholder signs
solely in its capacity as a record holder and beneficial owner of Shares and
nothing herein shall limit or affect any actions taken by a representative of
such Stockholder in such representative's capacity as an officer or director of
the Company.
(m) Obligations Several. The obligations of each Stockholder under
this Agreement shall be several and not joint. No Stockholder shall have any
liability, duty or obligation arising out of or resulting from any failure by
any other Stockholder (or any Affiliate thereof) to comply with the terms and
conditions of this Agreement.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the date first above written.
TELEGLOBE INC.
By: /s/ Xxxxxxx Xxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Chairman and Chief
Executive Officer
XXXXXX PARTNERS, LTD.
By: The Xxxxxx Family Trust, its
general partner
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Trustee
THE XXXXXX FAMILY TRUST
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Trustee
AUSTEX ENTERPRISES, LTD.
By: Starah Corporation, its
general partner
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
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EXHIBIT A
STOCKHOLDER CONSENT
Action Taken by the Written
Consent of Stockholders
of
Excel
June 14, 1998
The undersigned stockholders of Excel, a Delaware corporation,
acting by written consent in lieu of a meeting pursuant to Section 228 of the
General Corporation Law of the State of Delaware, hereby irrevocably consent to
the adoption of and adopt the following resolution with respect to the shares of
the common stock, par value $.001 per share, of Excel owned of record by such
stockholders on the date hereof:
RESOLVED, that the Merger Agreement, dated as of June 14, 1998 (the
"Merger Agreement"), among Teleglobe, a corporation amalgamated under the Canada
Business Corporations Act, North Sub, a direct and wholly-owned subsidiary of
Teleglobe, and Excel, a Delaware corporation, a copy of which has been furnished
to the undersigned stockholders, be, and it hereby is, adopted and approved by
the undersigned stockholders.
The action of the stockholders of Excel approved pursuant hereto
shall become effective when one or more consents have been (a) signed by
stockholders holding shares having a majority of the outstanding shares of Excel
Common Stock, being not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted and (b) delivered to Excel at
its principal place of business.
--------------------------------------
--------------------------------------
(Print Name)
By:
-----------------------------------
Name:
--------------------------
Title:
--------------------------
Number of Shares:
--------------------
Address of the stockholder:
--------------------------------------
--------------------------------------
--------------------------------------
Date of Execution:
--------------------
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Schedule I
----------
Share Ownership
---------------
Name and Address Number of Shares
of Shareholder Beneficially Owned
-------------- ------------------
Xxxxxx Partners, Ltd. 53,000,000
0000 Xxxxx Xxxxxxx Xxxxxxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Xxxxxx Family Trust 10,680,000
0000 Xxxxx Xxxxxxx Xxxxxxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Austex Enterprises, Ltd. 7,367,933
0000 Xxxxx Xxxxxxx Xxxxxxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
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Schedule II
-----------
Liens on Shares
[Austex has liens on portions of shares.]
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