EXHIBIT 10.3
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AMENDMENT NO. 1 TO THE VOTING AGREEMENT
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This Amendment No. 1, dated as of April 16, 1998 ("Amendment No. 1"),
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to the Voting Agreement dated as of February 3, 1998 (the "Voting Agreement"),
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is entered into by and between the person identified as a Shareholder of TRESCOM
INTERNATIONAL, INC., a Florida corporation (the "Company"), on the signature
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page below (the "Shareholder") and PRIMUS TELECOMMUNICATIONS GROUP,
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INCORPORATED, a Delaware corporation (the "Purchaser"). The Shareholder and the
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Purchaser are referred to collectively herein as the "Parties". Capitalized
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terms not otherwise defined herein have the meanings set forth in the Voting
Agreement.
WITNESSETH:
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WHEREAS, the Parties previously entered into a Voting Agreement and
now desire to amend the Voting Agreement as set forth below;
WHEREAS, concurrently with this Amendment No. 1, and as a condition
hereto, Purchaser, the Company and Taurus Acquisition Corporation, a Florida
corporation and wholly-owned subsidiary of the Purchaser ("Purchaser
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Subsidiary"), are entering into an amendment to the Agreement and Plan of Merger
dated as of February 3, 1998 (as so amended, as previously amended and as
hereafter amended, the "Merger Agreement");
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NOW, THEREFORE, in consideration of the premises and 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 agree as follows:
1. Section 1 of the Voting Agreement is hereby amended to delete the
last sentence thereof.
2. The Voting Agreement is hereby amended to create a new Section 20
which shall read in its entirety:
"20. Purchaser Option
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20.1. Shareholder hereby grants to the Purchaser an irrevocable option,
exercisable as provided herein (the "Purchaser Option"), to purchase all of the
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Shares (the "Purchaser Option Shares") at an exercise price determined as set
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forth below. The exercise price per Share shall be payable in shares of common
stock, par value $.01 per share, of the Purchaser ("Purchaser Common Stock",
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each a "Purchaser Share") and shall equal the Per Share Merger Consideration (as
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defined in the Merger Agreement), it being understood that for purposes of
determining the Per Share Merger Consideration in connection with this
Agreement, the Weighted Average Sales Price (as defined in the Merger Agreement)
of a Purchaser Share shall be determined with reference to the applicable
exercise date of the Purchaser Option as opposed to the Closing Date (as defined
in the Merger Agreement).
20.2. The Purchaser Option may be exercised by the Purchaser at any
time after the Merger Agreement is terminated under circumstances which entitle
the Purchaser to receive the amount provided for under Section 7(b)(ii) of the
Merger Agreement until the 30th day following the termination of the Merger
Agreement. If the Purchaser wishes to exercise the Purchaser Option, the
Purchaser shall give written notice to the Shareholder of its exercise of the
Purchaser Option, specifying the place, time and date, not earlier than three
business days and not later than 20 days from the date such notice is given, for
the closing of such purchase (the "Closing"). The exercise of the Purchaser
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Option shall be effective on the date such notice of exercise is given. The
Closing shall be held on the date specified in such notice unless, on such date,
there shall be any preliminary or permanent injunction or other order by any
court of competent jurisdiction or any other legal restraint or prohibition
preventing the consummation of such purchase, in which event the Closing shall
be held as soon as practicable following the lifting, termination or suspension
of such injunction, order, restraint or prohibition (each party agreeing to use
its best efforts to have such injunction, order, restraint or prohibition
lifted, terminated or suspended), but in any event within two days thereof.
Shareholder's obligations to sell Purchaser Option Shares upon exercise of the
Purchaser Option are subject to the condition that there shall be no preliminary
or permanent injunction or other order preventing or restricting the issuance of
the Purchaser Option Shares to the Purchaser or the issuance of Purchaser Common
Stock to Shareholder.
20.3 Delivery of Exercise Price and Purchaser Option Shares. At any
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Closing hereunder (a) the Purchaser shall make payment to the Shareholder of the
aggregate Exercise Price for the Purchaser Option Shares so purchased by
delivery of a certificate or certificates duly executed by the Purchaser and
registered in the name of Shareholder, representing the number of shares of
Purchaser Common Stock as determined pursuant to this Section 20, and (b) the
Shareholder shall deliver or cause to be delivered to the Purchaser a
certificate or certificates, duly executed by the Company and registered in the
name of the Purchaser, representing the number of Purchaser Option Shares so
purchased."
20.4 Shareholder's Investment Representation. In connection with any
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exercise of the Purchaser Option and the issuance of shares of Purchaser Common
Stock to Shareholder pursuant thereto, Shareholder represents and warrants to
the Purchaser that he is an "accredited investor" within the meaning of Rule 501
under the Securities Act (an "Accredited Investor"). Shareholder has such
knowledge and experience in financial and business matters that he is capable of
evaluating the merits and risks of the transactions contemplated hereby. He is
acquiring the shares of Purchaser Common Stock for his own account, and not with
a view to, or for offer or sale in connection with, any distribution thereof in
violation of the Securities Act of 1933, as amended (the "Securities Act"),
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subject to any requirement of law that the disposition of his property be at all
times within his control and subject to his ability to resell any such shares of
Purchaser Common Stock pursuant to any exemption from registration available
under the Securities Act or pursuant to the registration
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rights granted below in this Agreement. He understands and acknowledges that
the shares of Purchaser Common Stock will not have been registered under the
Securities Act or any other applicable securities laws and, unless so
registered, may not be offered, sold or otherwise transferred except in
compliance with the registration requirements of the Securities Act and any
other applicable securities laws, or pursuant to an exemption therefrom or in a
transaction not subject thereto. He is aware that he may be required to bear the
economic risk of an investment in the shares of Purchaser Common Stock for an
indefinite period of time and he is able to bear that risk for an indefinite
period. He agrees that the shares of Purchaser Common Stock will bear a legend
in substantially the following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OR ANY OTHER APPLICABLE SECURITIES LAWS AND, UNLESS SO
REGISTERED, MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED EXCEPT IN
COMPLIANCE WITH THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND ANY
OTHER APPLICABLE SECURITIES LAWS, OR PURSUANT TO AN EXEMPTION THEREFROM OR
IN A TRANSACTION NOT SUBJECT THERETO."
3. Section 4 of the Voting Agreement is hereby amended and restated
to read in its entirety, as follows:
"4. Termination. This Agreement shall terminate on the earliest of (a)
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the Effective Time (as defined in the Merger Agreement), (b) the date
immediately following the termination of the Merger Agreement in accordance with
its terms, and (c) October 31, 1998; provided, however, (i) the provisions of
Section 1 shall survive any termination of this Agreement for so long as the
Purchaser Option remains exercisable pursuant to Section 20, (ii) the provisions
of Sections 5, 6 and 20 shall survive any termination of this Agreement, (iii)
the provisions of Section 21 shall survive (x) the Effective Time if this
Agreement otherwise terminates at the Effective Time or (y) if the Purchaser
Option is exercisable or exercised pursuant to Section 20 and this Agreement
otherwise terminates and (iv) the provisions of Section 22 shall survive if the
Purchaser Option is exercisable or exercised pursuant to Section 20 and this
Agreement otherwise terminates."
4. The Voting Agreement is hereby amended to create a new Section 21
which shall read in its entirety:
"21. Piggyback Registration.
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21.1 Definitions. As used herein, unless the context otherwise requires,
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the following terms have the following respective meanings:
"Commission" means the United States Securities and Exchange
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Commission.
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"Registrable Securities" means all the Purchaser Shares received by
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the Shareholder at the Effective Time or pursuant to any exercise of the
Purchaser Option, together with any additional Purchaser Shares received by the
Shareholder as a result of any stock dividend, extraordinary dividend or
distribution, split-up, recapitalization, combination, exchange of shares or the
like and involving the Purchaser Shares received by the Shareholder at the
Effective Time or pursuant to any exercise of the Purchaser Option; provided,
however, such securities shall cease to be Registrable Securities when they
become freely saleable to the public under Rule 145(d) and Rule 144, without
volume limitation, as the case may be.
"Registration Expenses" means all expenses incurred by the Purchaser
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incident to the Purchaser's performance of this Section 21, including, without
limitation, all registration, filing and National Association of Securities
Dealers, Inc. fees, all listing fees, all fees and expenses of complying with
securities or blue sky laws (including, without limitation, reasonable fees and
disbursements of counsel for the underwriters in connection with blue sky
qualifications of the Registrable Securities), all printing expenses, the fees
and disbursements of counsel for the Purchaser and of the Purchaser's
independent public accountants, including the expenses of "comfort" letters, its
expenses incurred in connection with any "road show" presentations in which it
may participate and any fees and disbursements of underwriters customarily paid
by issuers or sellers of securities.
"Selling Expenses" means all expenses incurred by the Shareholder
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incident to the Shareholder's performance of this Section 21, including, without
limitation, all underwriting discounts and commissions, the fees and
disbursements of its advisors, including its counsel and its accountants, and
its expenses incurred in connection with any "road show" presentations in which
it may participate.
21.2 Right to Include Registrable Securities. If the Purchaser at any time
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proposes to register any of its securities under the Securities Act by
registration on Forms X-0, X-0, X-0 or any successor or similar form(s) (except
registrations on such forms or similar forms solely for registration of
securities in connection with (i) an employee benefit plan or dividend
reinvestment plan or a merger or consolidation or (ii) debt securities which are
not convertible into Purchaser Common Stock), whether or not for sale for its
own account, it shall each such time give written notice to the Shareholder of
its intention to do so at least 30 days prior to the anticipated filing date of
a registration statement with respect to such registration with the Commission.
Upon the written request of the Shareholder made as promptly as practicable and
in any event within 10 business days after the receipt of any such notice, which
request shall specify the Registrable Securities intended to be disposed of by
the Shareholder, the Purchaser shall use reasonable efforts to effect the
registration under the Securities Act of all Registrable Securities which the
Purchaser has been so requested to register by the Shareholder; provided,
however, that if, at any time after giving written notice of its intention to
register any securities and prior to the effective date of the registration
statement filed in
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connection with such registration, the Purchaser shall determine for any reason
not to register or to delay registration of such securities, the Purchaser may,
at its election, give written notice of such determination to the Shareholder
and (i) in the case of a determination not to register, shall be relieved of its
obligation to register any Registrable Securities in connection with such
registration, without prejudice, and (ii) in the case of a determination to
delay registering, shall be permitted to delay registering any Registrable
Securities for the same period as the delay in registering such other
securities. If an underwritten offering, any right of the Shareholder to
participate in a registration pursuant to this Section 21.2 shall be conditioned
upon it agreeing to offer and sell Registrable Securities in accordance with the
plan of distribution applicable to the other Purchaser Shares sought to be
offered and sold in such registration.
(b) Expenses. The Purchaser shall pay the Registration Expenses in
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connection with any registration effected pursuant to this Section 21.2 and the
Shareholder shall pay the Selling Expenses in connection with any registration
effected pursuant to this Section 21.2.
(c) Selection of Underwriters and Form of Registration Statement. In
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connection with each public offering effected pursuant to this Section 21.2, the
Purchaser shall promptly select the managing underwriters, if any, and the form
of registration statement to be used in connection with any such offering.
(d) Priority in Piggyback Registrations. Notwithstanding anything in
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Section 21.2 above to the contrary, if the managing underwriter of any
underwritten public offering shall inform the Purchaser by letter of its belief
that the number or type of Registrable Securities requested to be included in
such registration would materially and adversely affect such public offering,
then the Purchaser shall promptly notify the Shareholder of such fact. If the
managing underwriter does not agree to include all (or such lesser amount as the
Shareholder shall, in its discretion, agree to) of the number of the Registrable
Securities initially requested by the Shareholder to be included in such
registration, then the Purchaser shall include in such registration, to the
extent of the number and type which the Purchaser is so advised can be sold in
such Public Offering, (i) first, the Purchaser Shares proposed to be sold by
Purchaser; (ii) second, to the extent additional Purchaser Shares may be
included, the Purchaser Shares proposed to be sold by any members of Quantum
Industrial Partners LDC, S-C Phoenix Holdings, L.L.C., Winston Partners II LDC
and Winston Partners II LLC (collectively, the "Xxxxxxxxx Group"), or any of
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their respective affiliates or transferees, and (iii) third, to the extent
additional Purchaser Shares may be included, the Registrable Securities sought
to be sold by the Shareholder, Purchaser Shares sought to be sold by Warburg,
Xxxxxx Investors, LP ("Warburg, Xxxxxx"), and Xxxxxx X. X'Xxxxx, pro rata among
the Shareholder, Warburg, Xxxxxx and Xx. X'Xxxxx based on the number of
Purchaser Shares so sought to be sold by each of them. In the event that the
proposed registration by Purchaser is pursuant to a contractual demand
registration
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right, the sale of Purchaser Shares by such party making the demand or by any
member of the Xxxxxxxxx Group shall have priority over the sale of the
Registrable Securities."
5. The Voting Agreement is hereby amended to create a new Section 22
which shall read in its entirety:
"22. Put Option.
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22.1 If, upon exercise of the Purchaser Option, Shareholder receives
"restricted securities" within the meaning of Rule 144 under the Securities Act,
Purchaser hereby grants to Shareholder an irrevocable option, exercisable as
provided herein (the "Put Option"), to sell all of the Purchaser Shares acquired
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by the Shareholder in conjunction with the exercise of the Purchaser Option, at
an exercise price determined as set forth below. The exercise price per
Purchaser Share shall be payable in cash and shall equal the Weighted Average
Sales Price of the Purchaser Shares as determined with reference to the
applicable exercise date of the Purchaser Option (the "Put Option
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Consideration"). The Put Option Consideration shall be subject to proportionate
adjustment in the event of any stock split, stock dividend or reverse stock
split.
22.2 The Put Option may be exercised by the Shareholder, in whole or in
part, from time to time by providing notice to the Purchaser. Notice of the
Shareholder's intent to exercise the Put Option must be received by the
Purchaser within thirty (30) calendar days from the date on which the Purchaser
Option is exercised and must include the number of Purchaser Shares to be
subject to the Put Option. Failure to notify the Purchaser within such 30-day
period shall terminate any rights and duties under this provision. The closing
under any such exercise shall take place at the Purchaser's executive offices
twenty (20) days after the date on which the Purchaser first receives notice
from the Shareholder."
6. The Purchaser's address for notices and other communications under
Section 11 of the Voting Agreement is hereby amended as follows:
"If to Purchaser:
Primus Telecommunications Group, Incorporated
0000 Xxx Xxxxxx Xxxx
XxXxxx, XX 00000
Attention: K. Xxxx Xxxxx, Chairman, President and CEO
Facsimile: (000) 000-0000"
7. In the case of any inconsistency or conflict between the provisions of
this Amendment No. 1 and the provisions of the Voting Agreement, the provisions
of this Amendment No. 1 shall govern.
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8. Except as expressly provided for in this Amendment No. 1, all terms,
conditions and obligations contained in the Voting Agreement are hereby
confirmed and shall remain unchanged and in full force and effect.
9. This Amendment No. 1 may be executed by facsimile signature which
shall be deemed to be an original for all purposes and may be executed in any
number of counterparts, each of which shall be deemed to be an original and all
of which, when taken together, shall constitute but one and the same instrument.
10. THIS AMENDMENT NO. 1 SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF FLORIDA, WITHOUT REGARD TO SUCH STATE'S CONFLICTS
OF LAWS RULES.
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