Exhibit 99.9
IRREVOCABLE PROXY AGREEMENT
THIS IRREVOCABLE PROXY AGREEMENT (the "AGREEMENT"), dated as of May
21, 1999, made by and between C. Xxxxx XxXxxxx (the "STOCKHOLDER"), HW Partners
L.P., a Texas limited partnership ("HW PARTNERS"), as representative for
Infinity Investors Limited and IEO Holdings Limited, and Equalnet Communications
Corp., a Texas corporation ("EQUALNET");
WHEREAS, an acquisition subsidiary of Equalnet ("MERGER SUB"),
Equalnet and Orix Global Communications Inc., a Nevada corporation ("ORIX") have
entered into an Agreement and Plan of Merger dated as of May 21, 1999 (the
"MERGER AGREEMENT"), which will provide, among other things, for the merger of
Merger Sub with and into Orix (the "MERGER");
WHEREAS, the Stockholder is the record and beneficial owner of each
share of its voting stock of Equalnet (including all voting stock in the form of
a convertible security and all voting stock which the Stockholder would own upon
the conversion of any voting or non-voting convertible debt or equity security
or options or warrants) (the "STOCK"), as set forth opposite the Stockholder's
name on EXHIBIT A hereto, and desires to enter into this Agreement in order to
induce Orix to enter into the Merger Agreement; and
WHEREAS, as a condition to its willingness to enter into the Merger
Agreement, Orix has requested that the Stockholder agrees, and the Stockholder
hereby agrees, to grant Orix an irrevocably proxy with respect to the
Stockholder's Stock (as defined below) in accordance with the terms hereof.
NOW THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein, and intending to be legally bound
hereby, the parties hereto agree as follows:
1. DEFINITIONS. Capitalized terms used but not otherwise defined
herein shall have the meanings ascribed to such terms in the Merger Agreement.
2. STOCKHOLDER'S STOCK. For all purposes of this Agreement, the
term "STOCKHOLDER'S STOCK" shall include the Stock set forth on EXHIBIT A and
any other Stock which the Stockholder currently has record or beneficial
ownership of or obtains record or beneficial ownership of during the term of
this Agreement and shall further include any securities issued or exchanged at
any time in the future with respect to the Stockholder's Stock.
3. REVOCATION OF PROXIES; GRANT OF PROXY. The Stockholder hereby
revokes any and all previous proxies with respect to the Stockholder's Stock.
Subject to the terms and conditions hereof, the Stockholder hereby appoints HW
Partners, with full power of substitution, as proxy holder to represent and to
vote the Stockholder's Stock in favor of (i) the Merger Agreement and the
transactions contemplated thereby, including the Merger (including with respect
to any procedural matters related thereto), (ii) the amendment of the Articles
of Incorporation of Equalnet to increase the authorized number of shares of
common stock of Equalnet, (iii) the authorization of the issuance of shares of
common stock of Equalnet in connection with the transactions contemplated by the
Merger Agreement under all applicable
laws, rules and regulations, including, without limitation, the rules of
NASDAQ and (iv) the conversion into common stock of Equalnet of each
convertible security held by such Stockholder prior to the Merger at any
meeting (whether special or annual), and whether or not adjourned or by
written action of the stockholders of Equalnet, and against any proposal
brought before the stockholders of Equalnet which would conflict with the
Merger and the transactions contemplated by the Merger Agreement, including,
without limitation, any proposal to remove any one or more directors of
Equalnet designated by Orix.
THE AUTHORITY GRANTED HEREUNDER (THE "PROXY") SHALL BE IRREVOCABLE UNTIL THE
PROXY TERMINATION DATE (AS DEFINED BELOW) AND DEEMED TO BE COUPLED WITH AN
INTEREST SUFFICIENT IN LAW AS REQUIRED BY SECTION 2.29.C OF THE TEXAS BUSINESS
CORPORATION ACT. The Proxy shall be effective until the earlier of the
consummation of the Merger or the termination of the Merger Agreement in
accordance with its terms (the "PROXY TERMINATION DATE").
4. NO SOLICITATION OF OTHER OFFERS. (a) The Stockholder shall, and
shall cause its Affiliates, officers, directors, employees, representatives,
consultants, investment bankers, attorneys, accountants and other agents to,
immediately cease any discussions or negotiations with any other parties that
may be ongoing with respect to any Acquisition Proposal in connection with the
transactions contemplated by the Merger Agreement. The Stockholder agrees that
it shall not, directly or indirectly, take (and shall not permit its Affiliates,
officers, directors, employees, representatives, consultants, investment
bankers, attorneys, accountants or other agents, to so take) any action to (i)
solicit, initiate or encourage the making of any Acquisition Proposal, (ii)
participate in any way in discussions or negotiations with, or furnish or
disclose any information to, any Person (other than Orix or the agents or
representatives of Orix) in connection with, or take any other action to
encourage any inquiries or the making of any proposal that is reasonably
expected to lead to, any Acquisition Proposal, (iii) enter into any agreement,
arrangement or understanding with respect to any Acquisition Proposal, (iv)
withdraw or modify, or propose to withdraw or modify, in a manner adverse to
Orix, the approval of the Merger Agreement, the Merger or the purchase of any
Stock under the Stock Purchase Agreement dated May 21, 1999 or (v) approve or
propose to approve, any Acquisition Proposal.
(b) In addition to the obligations of the Stockholder set forth in
Section 4(a) hereof, promptly after receipt thereof, the Stockholder agrees that
it shall advise Orix of any request for information or of any Acquisition
Proposal, or any inquiry, proposal, discussions or negotiation with respect to
any Acquisition Proposal, the terms and conditions of such request, Acquisition
Proposal, inquiry, proposal, discussion or negotiation and the Stockholder shall
promptly provide to Orix copies of any written materials received by the
Stockholder in connection with any of the foregoing, and the identity of the
Person making any such Acquisition Proposal or such request, inquiry or proposal
or with whom any discussion or negotiation are taking place.
5. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER. The
Stockholder hereby represents and warrants to HW Partners as follows:
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(a) The Stockholder has all necessary power, capacity and
authority to enter into this Agreement and is the sole record or beneficial
owner of the Stockholder's Stock. The Stockholder has good and valid title to
the Stockholder's Stock, free and clear of any and all claims, liens, charges,
pledges, assessments, options, equities, encumbrances and security interests
whatsoever. Except pursuant to this Agreement, none of the Stockholder's Stock
is subject to any proxy, voting trust or other agreement or arrangement with
respect to the voting of the Stockholder's Stock. The Stockholder's Stock
(other than any Stockholder Stock evidenced by convertible debt) is validly
authorized, issued and outstanding, fully paid and non-assessable with no
personal liability attaching to the ownership thereof.
(b) This Agreement has been duly authorized, executed and
delivered by the Stockholder and constitutes the valid and binding agreement of
the Stockholder, enforceable against the Stockholder in accordance with its
terms.
(c) The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby will not, without
the passing of time or the giving of notice or both, violate or conflict with,
constitute a breach of or a default under, result in the loss of any benefit
under, or permit the acceleration of or entitle any person to accelerate any
obligation under or pursuant to, any contract, commitment, agreement,
understanding, mortgage, lien, lease, instrument, order, award, judgment or
decree to which the Stockholder is a party or by which the Stockholder's assets
or Stockholder's Stock is bound or subject.
(d) Neither the execution and delivery of this Agreement, nor
the performance by the Stockholder of the Stockholder's obligations hereunder,
will violate any provision of law applicable to the Stockholder.
(e) No investment banker, broker or finder is entitled to any
commission or fee in respect of this Agreement or the Merger Agreement based
upon any arrangement or agreement made by or on behalf of the Stockholder.
(f) The Proxy granted hereunder is legal, valid and effective
and will confer upon HW Partners or its substitute all of the voting power of
the Stockholder's Stock under law and Equalnet's Articles of Incorporation and
Bylaws with respect to the matters specified in Section 3 hereof until the Proxy
Termination Date.
6. COVENANTS OF THE STOCKHOLDER.
(a) The Stockholder hereby covenants and agrees with HW Partners
that (i) until the Proxy Termination Date, the Stockholder will not directly or
indirectly, grant any proxies or enter into any voting trust or other agreement
or arrangement with respect to the voting of any Stock, or (ii) until the
earlier of the termination of the Merger Agreement and the six (6) month
anniversary of the consummation of the Merger, the Stockholder will not sell,
assign, transfer, pledge, encumber or otherwise dispose of the Stockholder's
Stock, or enter into any contract, option or other arrangement or understanding
with respect to the direct or indirect sale, assignment, transfer, pledge,
encumbrance or other disposition of the Stockholder's Stock
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other than, following the consummation of the Merger, pursuant to, and in
compliance with, Rule 144 of the Securities Act.
(b) The Stockholder has executed this Agreement in its capacity
as a stockholder of Equalnet and not in its capacity as an officer or director
of Equalnet. Without limiting the foregoing, nothing herein shall limit or
affect any actions taken by the Stockholder in his capacity as an officer or
director of Equalnet in exercising Equalnet's rights under the Merger Agreement.
7. STOP TRANSFER INSTRUCTIONS. Equalnet shall, on the date hereof,
issue stop transfer instructions to its transfer agent in respect of the
Stockholder's Stock and shall cause such stop transfer instructions to remain in
effect through the Proxy Termination Date.
8. WAIVER OF RIGHTS; CONVERSION PRICE. Until the Proxy Termination
Date, the Stockholder hereby waives any and all rights to receive payment upon
the terms and conditions applicable to the Stockholder's Stock set forth on
Exhibit A hereto, including, without limitation, the right to receive dividends,
payment of liquidation preference and any rights to cause Equalnet to redeem the
Stockholder's Stock. The Stockholder agrees that notwithstanding any provision
contained in the Stockholder's Stock or any documentation relating thereto, no
Stockholder's Stock which has a conversion price of less than $.75 or a floating
conversion price shall be converted into common stock of Equalnet at a price
less than $.75 per share of common stock.
9. REMEDIES. The parties hereto agree that if for any reason any of
the Stockholder has failed to perform his respective obligations under this
Agreement, then HW Partners shall be entitled to specific performance and
injunctive and other equitable relief, and the parties hereto further agree to
waive any requirement for the securing or posting of any bond in connection with
the obtaining of any such injunctive or other equitable relief. This provision
is without prejudice to any other rights that any party hereto may have against
any other party hereto for any failure to perform its obligations under this
Agreement.
10. MISCELLANEOUS.
(a) This Agreement shall not be assignable by the Stockholders.
This Agreement shall be binding upon the Stockholder and the Stockholder's
heirs, successors and assigns by will or by the laws of descent.
(b) This Agreement may not be modified, amended, altered or
supplemented, except upon the execution and delivery of a written agreement
executed by each of the parties hereto.
(c) All costs and expenses (including legal fees) incurred in
connection with this Agreement shall be paid by the party incurring such
expense; provided, however, if HW Partners is required to retain counsel to
enforce the terms of this Agreement, the Stockholder shall pay the costs and
expenses of such counsel necessary to enforce the terms of this Agreement.
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(d) From time to time, and without further consideration, each
party will execute and deliver to the other such documents and take such action
as the other may reasonably request in order to consummate more effectively the
terms of this Agreement.
(e) All authority herein conferred or agreed to be conferred by
the Stockholder shall survive the Stockholder's death or incapacity. This
Agreement constitutes the sole understanding of the parties hereto with respect
to the subject matter hereof; provided, however, that this provision is not
intended to abrogate any other written agreement between or among the parties
executed with or after this Agreement or any written agreement pertaining to
another subject matter.
(f) All notices, requests, consents and other communication
hereunder shall be in writing and delivered personally or by telecopy
transmission or sent by registered or certified mail or by any express mail
service, postage or fees prepaid, addressed as follows:
(i) If to HW Partners:
HW Partners, L.P.
0000 Xxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx Xxxxxxxxx
Fax Number: (000) 000-0000
with a copy to White & Case LLP:
White & Case LLP
4900 First Union Financial Center
000 Xxxxx Xxxxxxxx Xxxx.
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Fax Number: (000) 000-0000
(ii) If to Stockholder to:
C. Xxxxx XxXxxxx
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
with a copy to:
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(g) THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF
TEXAS, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF.
(h) This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
(i) The headings contained herein are for convenience of
reference only and shall not affect the meaning or interpretation hereof.
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IN WITNESS WHEREOF, HW Partners and the Stockholder has caused this
Agreement to be signed as of the date first above written.
C. XXXXX XXXXXXX
By: /s/ Xxxxx XxXxxxx
---------------------------------------------
Accepted:
HW PARTNERS L.P.
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Manager of the General Partner, HW Finance, LLC
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EXHIBIT A
SHARES OF
COMMON STOCK
AMOUNT ISSUABLE UPON
STOCKHOLDER DESCRIPTION OF STOCK OF STOCK CONVERSION
----------------------- ---------------------------------- ----------------- --------------------
C. Xxxxx XxXxxxx Common Stock Purchase Warrant 150,000
Common Stock 1,294,800
shares
