IRREVOCABLE PROXY
Exhibit
10.6
IRREVOCABLE
PROXY
This
Irrevocable Proxy (this “Proxy”)
between Counsel
Corporation, an Ontario corporation, Counsel Capital Corporation, an Ontario
corporation, Counsel LLC, a Delaware limited liability company, Counsel
Communications, LLC, a Delaware limited liability company, CounselCare Ltd, a
Delaware corporation, Counsel Corporation (US), a Delaware
corporation (collectively,
the “Stockholders”) and
Acceris
Management and Acquisition LLC, a Minnesota limited liability
company (the
“Proxy
Holder”), takes
effect on the Execution Date. Capitalized terms used but not defined in this
Proxy have the meanings ascribed to them in that certain Asset Purchase
Agreement of even date between the Counsel Corporation, the Proxy Holder and
certain other parties (the “Asset
Purchase Agreement”).
RECITALS
A. |
The
Stockholders beneficially own an aggregate of 17,517,269 shares of the
common stock (the “Acceris
Stock”)
of Acceris Communications Inc., a Florida corporation (the “Company”),
as described in the Company’s Schedule 13D, Amendment No. 3, filed with
the United States Securities and Exchange Commission on February 16, 2005
(the “Schedule
13D”). |
B. |
In
order to induce the Proxy Holder to enter into the Asset Purchase
Agreement, the Stockholders have agreed to appoint the Proxy Holder as
their proxy to vote all of the Acceris Stock or other equity securities of
the Company now held or hereafter directly or indirectly acquired by the
Stockholders (with the Acceris Stock, the “Shares”).
|
C. |
This
Proxy is delivered by the Stockholders to the Proxy Holder in satisfaction
of the terms and conditions of Section 5.16 of the Asset Purchase
Agreement. |
PROXY
In
consideration of the above recitals and the promises set forth in this Proxy,
the parties agree as follows:
1. Irrevocable
Proxy.
1.1 |
The
Stockholders hereby irrevocably appoint the Proxy Holder as their true and
lawful attorney-in-fact and proxy, with full power of substitution for and
in their name, to vote the Shares and any other capital stock or equity
securities of the Company hereinafter acquired by the Stockholders, in
favor of the approval
of the Asset Purchase Agreement, the Transaction Documents and the
transactions contemplated by the Asset Purchase Agreement at
any meetings of the stockholders of the Company (or by written action in
lieu thereof) where such matters are to be voted upon or
approved.. |
1.2 |
The
parties acknowledge and agree that the appointment and proxy granted by
the Stockholders to the Proxy Holder set forth in this Section 1 is
irrevocable and, because of the consideration being provided by the Proxy
Holder, this Proxy is coupled with an interest within the meaning of
Delaware General Corporation Law Title 8, ch. 1, § 212. This Proxy
will not terminate by operation of law, or by dissolution, bankruptcy or
adjudication of incompetence or insanity of the Stockholders or the
occurrence of any other event except as set forth in this Proxy. By
executing this Proxy, the Stockholders hereby revoke and terminate any
proxy previously given with respect to the Shares.
|
1.3 |
By
executing this Proxy, the Stockholders acknowledge and agree that any
officer or manager of the Proxy Holder may be designated to represent the
Proxy Holder at any meetings of the stockholders of the Company (or by
written action in lieu thereof) and at any other time the Shares are
required to or may be voted or acted upon with respect to the Asset
Purchase Agreement, the Transaction Documents and the transactions
contemplated under the Asset Purchase
Agreement. |
1.4 |
The
Stockholders will defend and indemnify the Proxy Holder against any and
all claims of any kind asserted or made against the Proxy Holder relating
to any and all actions taken by the Proxy Holder with respect to exercise
of the Proxy, which indemnity obligations shall follow the terms of and be
governed by the language of Section 7 of the Asset Purchase Agreement with
regard to the indemnity obligations of the Seller Indemnitors, with the
term Seller Indemnitors being replaced with the term Stockholders under
this Proxy for purposes of the indemnification of the Proxy
Holder. |
2. |
Term.
This Proxy and the appointment specified herein will terminate on the
earlier of (a) the date on which the Asset Purchase Agreement is
terminated, in accordance with the terms and conditions of the Asset
Purchase Agreement or otherwise, or (b) the
Closing. |
3. |
Representation
and Warranty.
The Stockholders jointly and severally represent and warrant to the Proxy
Holder that (a) they have full power and authority to enter into this
Proxy and to revoke and terminate any previously granted proxies with
respect to the Shares without the need to give notice to, make any filing
with, or obtain the authorization, consent, or approval of any
governmental authority or other person in order to grant this Proxy, and
(b) as of the Execution Date, the Stockholders hold the Acceris Stock in
the manner and amounts set forth on the Schedule
13D. |
4. |
Recapitalization.
This Proxy is intended to apply to all of the capital stock and other
equity securities of the Company now or hereafter held by the
Stockholders, including without limitation any shares issued upon any
reorganization of the Company or any split, exchange or other change in
the capitalization of the Company. |
5. |
Benefit
and Burden.
This Proxy will inure to the benefit of, and will be binding upon the
parties hereto and their respective legatees, distributees, estates,
executors, administrators, personal representatives and legal
representatives. |
6. |
Modifications.
Neither this Proxy, nor any provision hereof, may be modified, waived,
discharged or terminated orally, but only by an instrument in writing
executed by the parties hereto. |
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7. |
Applicable
Law.
This Proxy will be construed and enforced in accordance with the laws of
the State of Delaware, without regard to conflict of law
principles. |
8. |
Proxy
Binding Upon Transferees.
In the event that at any time or from time to time any of the Shares are
transferred to any party, the transferee will take the Shares pursuant to
all provisions, conditions and covenants of this Proxy, and, as a
condition precedent to the transfer of such Shares, the transferee will
agree as a condition to such transfer (for and on behalf of himself,
herself or itself, his, her or its legal and personal representatives and
his, her or its transferees and assigns) in writing to be bound by all
provisions of this Proxy. |
9. |
Construction.
This Proxy is solely intended to be an irrevocable proxy and is not
intended to be or construed as a voting trust, voting agreement or pooling
agreement. |
[REMAINDER
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The
Stockholders have executed this Proxy to be made effective as of the Execution
Date (as defined in the Asset Purchase Agreement).
STOCKHOLDERS: | |||
COUNSEL CORPORATION | COUNSEL COMMUNICATIONS, LLC | ||
/s/ | /s/ | ||
By: |
By: | ||
Its: | Its: |
COUNSEL CAPITAL CORPORATION | COUNSELCARE LTD | ||
/s/ | /s/ | ||
By: |
By: | ||
Its: | Its: |
| |||
COUNSEL LLC |
COUNSEL
CORPORATION (US) | ||
/s/ | /s/ | ||
By: |
By: | ||
Its: | Its: |
PROXY HOLDER: | |||
ACCERIS MANAGEMENT AND ACQUISITION
LLC | |||
/s/ | |||
By: Xxxx Xxxx | |||
Its: Chief Executive Officer |
[Signature
Page to Irrevocable Proxy]
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