VOTING AGREEMENT
Exhibit
99.2
THIS
VOTING AGREEMENT (this “Agreement”)
is
made and entered into as of October 12, 2006 by and between Internap Network
Services Corporation, a Delaware corporation (“Parent”)
and
the undersigned stockholder (“Stockholder”)
of
VitalStream Holdings, Inc., a Nevada corporation (the “Company”).
Capitalized terms used but not otherwise defined herein shall have the meanings
ascribed to them in the Merger Agreement (as defined below).
RECITALS
A. As
an
inducement for Parent to enter into that certain Agreement and Plan of Merger
by
and among Parent, Ivy Acquisition Corp., a Nevada corporation and a wholly
owned
subsidiary of Parent (“Merger
Sub”)
and
the Company (the “Merger
Agreement”),
which
provides, among other things, for the merger of Merger Sub with and into the
Company (the “Merger”),
Parent has requested that Stockholder execute and deliver this
Agreement.
B. Pursuant
to the Merger, all of the issued and outstanding shares of capital stock of
the
Company will be converted into the right to receive the consideration set forth
in the Merger Agreement, all upon the terms and subject to the conditions set
forth in the Merger Agreement.
C. Stockholder
is the Beneficial Owner (as defined below) of the number of outstanding shares
of capital stock of the Company and other securities convertible into, or
exercisable or exchangeable for, shares of capital stock of the Company, all
as
set forth on the signature page of this Agreement (collectively, the
“Shares”).
For
purposes hereof, “Beneficial
Owner”
shall
have the meaning set forth in Rule 13d-3 promulgated under the Securities
Exchange Act of 1934, as amended (the “Exchange
Act”);
provided,
however,
that
for purposes of this Agreement, beneficial ownership shall not include any
securities to which Stockholder has the right to acquire beneficial ownership
within sixty days, as described in Rule 13d-3(d)(1).
D. As
an
inducement for Parent to enter into the Merger Agreement, Stockholder has agreed
to restrict the transfer or disposition of any of the Shares, or any other
shares of capital stock of the Company acquired by Stockholder hereafter and
prior to the Expiration Date (as defined in Section 1(a)
hereof)
and desires to vote the Shares and any other such shares of the capital stock
of
the Company so as to facilitate the consummation of the Merger. The execution
and delivery of this Agreement and of the attached form of irrevocable proxy
is
a material condition to Parent’s willingness to enter into the Merger
Agreement.
NOW,
THEREFORE, the parties hereto hereby agree as follows:
1. Agreement
to Retain Shares.
(a) Transfer
and Encumbrance.
Stockholder agrees, during the period beginning on the date hereof and ending
on
the Expiration Date (as defined below), (i) not to transfer, sell, exchange,
pledge or otherwise dispose of or encumber (collectively, “Transfer”)
any of
the Shares or any New Shares (as defined in Section 1(b)
hereof),
or to discuss, negotiate, or make any offer or agreement relating thereto,
other
than to or with Parent, and (ii) not to deposit (or
permit
the deposit of) any Shares or New Shares in a voting trust or grant any proxy
or
enter into any voting agreement or similar agreement in contravention of the
obligations of Stockholder under this Agreement with respect to any of the
Shares or New Shares, in each case without the prior written consent of Parent.
Stockholder acknowledges that the intent of the foregoing sentences is to ensure
that Parent retains the right under the Proxy (as defined in Section 3
hereof)
to vote the Shares and any New Shares in accordance with the terms of the Proxy.
As used herein, the term “Expiration
Date”
shall
mean the earlier to occur of (x) such date and time as the Merger shall become
effective in accordance with the terms and provisions of the Merger Agreement
and (y) the termination of the Merger Agreement in accordance with its
terms.
(b) New
Shares.
Stockholder agrees that any shares of capital stock of the Company that
Stockholder purchases or with respect to which Stockholder otherwise acquires
Beneficial Ownership after the date of this Agreement and prior to the
Expiration Date (“New
Shares”),
shall
be subject to the terms and conditions of this Agreement to the same extent
as
if they constituted Shares.
2. Agreement
to Vote Shares.
Until
the Expiration Date, at every meeting of stockholders of the Company called
with
respect to any of the following, and at every adjournment or postponement
thereof, and on every action or approval by written consent of stockholders
of
the Company with respect to any of the following, Stockholder shall vote, to
the
extent not voted by the person(s) appointed under the Proxy (as defined in
Section 3
hereof),
the Shares and any New Shares (to the extent any such Shares and New Shares
may
be voted):
(i) in
favor
of authorization and approval of the Merger, the execution and delivery by
the
Company of the Merger Agreement and the adoption and approval of the terms
thereof and the Plan of Merger therein, and in favor of each of the other
actions contemplated by the Merger Agreement and the Proxy and any action
required in furtherance thereof;
(ii) against
approval of any proposal made in opposition to, or in competition with, the
Merger Agreement, the consummation of the Merger or the transactions
contemplated by the Merger Agreement; and
(iii) against
any of the following actions (other than those actions that relate to the Merger
and the transactions contemplated by the Merger Agreement): (A) any
Acquisition Proposal, and (B) any other action that is intended to, or could
reasonably be expected to, impede, interfere with, delay, postpone, discourage
or adversely affect the Merger or any of the other transactions contemplated
by
the Merger Agreement.
Prior
to
the Expiration Date, Stockholder shall not enter into any agreement or
understanding with any person to vote or give instructions in any manner
inconsistent with this Section 2.
3. Irrevocable
Proxy.
Concurrently with the execution of this Agreement, Stockholder agrees to deliver
to Parent an irrevocable proxy, coupled with an interest, in the form attached
hereto as Appendix A
(the
“Proxy”),
which
shall be irrevocable to the fullest extent permitted by applicable law, covering
the total number of Shares and New Shares of capital stock of the Company
Beneficially Owned by Stockholder as set forth therein.
4. Representations,
Warranties and Covenants of Stockholder.
Stockholder represents, warrants and covenants to Parent as
follows:
(i)
Stockholder
is the Beneficial Owner of the Shares, with the requisite power to vote or
direct the voting of the Shares (to the extent the Shares may be voted), for
and
on behalf of all Beneficial Owners of the Shares, free and clear of any proxy
or
voting restriction other than pursuant to this Agreement other than that certain
Investors Rights Agreement, dated as of June 14, 2004, and that certain Amended
and Restated Investors Rights Agreement, dated as of September 30, 2003, and
as
subsequently amended as of June 14, 2004.
(ii)
Stockholder
has full power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery
of
this Agreement and the consummation of the transactions contemplated hereby
have
been duly authorized by all necessary action on the part of Stockholder. This
Agreement has been duly executed and delivered by or on behalf of Stockholder
and, assuming its due authorization, execution and delivery by Company,
constitutes a legal, valid and binding obligation of Stockholder, enforceable
against Stockholder in accordance with its terms, subject to the effect of
any
applicable bankruptcy, reorganization, insolvency, moratorium or similar laws
affecting creditors’ rights generally and subject, as to enforceability, to the
effect of general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
(iii)
The
execution and delivery of this Agreement by Stockholder do not, and the
performance of this Agreement by Stockholder will not, conflict with or violate
any law, rule, regulation, order, judgment or decree applicable to Stockholder
or by which it or any of its properties is bound or affected, or result in
any
breach of or constitute a default (or an event that with notice or lapse of
time
or both would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, or result in the
creation of a lien or encumbrance on any of the property or assets of
Stockholder pursuant to, any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or obligation
to which Stockholder is a party or by which Stockholder or any of its properties
is bound or affected, except for any such breaches, defaults or other
occurrences that would not cause or create a material risk of non-performance
or
delayed performance by Stockholder of its obligations under this
Agreement.
(iv)
The
execution and delivery of this Agreement by Stockholder do not, and the
performance of this Agreement by Stockholder will not, require any consent,
approval, authorization or permit of, or filing with or notification to, ay
governmental or regulatory authority, domestic or foreign, except (i) for
applicable requirements, if any, of the Exchange Act, and (ii) where the failure
to obtain such consents, approvals, authorizations or permits, or to make such
filings or notifications, would not prevent or delay the performance by
Stockholder of its obligations under this Agreement.
5. Additional
Documents.
Stockholder hereby covenants and agrees to execute and deliver any additional
documents reasonably necessary or desirable, in the good faith, reasonable
opinion of Parent, to carry out the purpose and intent of this Agreement
and the
Merger Agreement. Without limiting the foregoing, Stockholder agrees to execute
and deliver the agreement contemplated by Section 5.15 of the Merger Agreement
to the extent Stockholder is a person who is deemed by the Company to be
an
affiliate for purposes of Rule 145 under the Securities Act.
6. Consents
and Waivers.
Stockholder hereby gives any consents or waivers that are reasonably requested
in good faith for the consummation of the Merger under the terms of any
agreement to which Stockholder is a party or pursuant to any rights Stockholder
may have.
7. Termination.
This
Agreement and the Proxy delivered in connection herewith shall terminate and
shall have no further force or effect as of the Expiration Date, provided,
however,
that
notwithstanding the foregoing, the provisions in Section 9
hereof
shall survive in full force and effect following the consummation of the
Merger.
8. Legending
of Shares.
If so
requested by Parent, Stockholder agrees that the Shares and any New Shares
shall
bear a legend stating that they are subject to this Agreement and to an
irrevocable proxy. Subject to the terms of Section 1(a)
hereof,
Stockholder agrees that Stockholder will not Transfer the Shares or any New
Shares without first having the aforementioned legend affixed to the
certificates representing the Shares or any New Shares.
9. Miscellaneous.
(a) Notices.
All notices and other communications hereunder shall be in writing and shall
be
deemed given if delivered personally or by commercial delivery service to the
appropriate address, or mailed by registered or certified mail (return receipt
requested) or sent via facsimile (with acknowledgment of complete transmission)
to the parties at the following addresses (or at such other address for a party
as shall be specified by like notice); provided,
however,
that
notices sent by courier or mail will not be deemed given until the date and
time
of acknowledged receipt at the appropriate address:
(i) if
to
Parent, to:
000
Xxxxxxxx Xxxxxx, Xxxxx X-000
Xxxxxxx,
Xxxxxxx 00000
Attention:
Chief Executive Officer
Facsimile
No.:
-4-
with
a
copy (which shall not constitute notice) to:
Xxxxxx,
Xxxxxxx & Xxxxxx, LLP
1600
Atlanta Financial Center
0000
Xxxxxxxxx Xxxx, X.X.
Xxxxxxx,
Xxxxxxx 00000-0000
Attention: Xxxxx
X.
Xxxxxxxxxxxxx, Esq.
Facsimile
No.: (000) 000-0000
(ii) if
to
Stockholder, to the address set forth on the signature page hereto.
(b) Interpretation.
The words “include,” “includes” and “including” when used herein shall be deemed
in each case to be followed by the words “without limitation.” 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.
(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 all parties need not sign the same
counterpart.
(d) Entire
Agreement; Assignment.
This Agreement and the documents and instruments and other agreements among
the
parties hereto referenced herein: (i) constitute the entire agreement among
the parties with respect to the subject matter hereof and supersede all prior
agreements and understandings both written and oral, among the parties with
respect to the subject matter hereof, (ii) are not intended to confer upon
any other person any rights or remedies hereunder, and (iii) shall not be
assigned by operation of law or otherwise, except that Parent may assign its
rights and delegate its obligations hereunder to its affiliates so long as
Parent remains obligated to perform those obligations required to be performed
by Parent hereunder.
(e) Severability.
In the event that any provision of this Agreement or the application thereof,
becomes or is declared by a court of competent jurisdiction to be illegal,
void
or unenforceable, the remainder of this Agreement will continue in full force
and effect and the application of such provision to other persons or
circumstances will be interpreted so as reasonably to effect the intent of
the
parties hereto. The parties further agree to replace such void or unenforceable
provision of this Agreement with a valid and enforceable provision that will
achieve, to the extent possible, the economic, business and other purposes
of
such void or unenforceable provision.
(f) Other
Remedies.
Any and all remedies herein expressly conferred upon a party will be deemed
cumulative with and not exclusive of any other remedy conferred hereby, or
by
law or equity upon such party, and the exercise by a party of any one remedy
will not preclude the exercise of any other remedy.
(g) Governing
Law.
This Agreement shall be governed by and construed in accordance with the laws
of
the State of Nevada, regardless of the laws that might otherwise govern under
applicable principles of conflicts of laws thereof. Each of the parties hereto
irrevocably consents to the non-exclusive jurisdiction and venue of any state
or
federal court within the State of Nevada in connection with any matter based
upon or arising out of this Agreement or the matters or agreements contemplated
herein, and agrees that process may be served upon them in any manner authorized
by the laws of the State of Nevada for such persons and waives and covenants
not
to assert or plead any objection which they might otherwise have to such
jurisdiction, venue and such process.
(h) Rules
of Construction.
The parties hereto agree that they have been represented by counsel during
the
negotiation and execution of this Agreement and, therefor, waive the application
of any law, regulation, holding or rule of construction providing that
ambiguities in an agreement or other document will be construed against the
party drafting such agreement or document.
(i) Specific
Performance.
The parties hereto agree that irreparable damage would occur in the event that
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 an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the terms and provisions
hereof in any state or federal court located in the State of Nevada, this being
in addition to any other remedy to which they are entitled at law or in
equity.
(j) Attorneys’
Fees.
If any action or other proceeding relating to the enforcement of any provision
of this Agreement is brought by any party hereto, the prevailing party shall
be
entitled to recover reasonable attorneys’ fees, costs, and disbursements (in
addition to any other relief to which the prevailing party may be
entitled).
(k) WAIVER
OF JURY TRIAL.
EACH OF
THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY AND
ANY
ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT, OR
OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF ANY
PARTY HERETO IN NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT
HEREOF.
[Remainder
of page intentionally left blank.]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement on the date
first above written.
By:
_________________________________
Name:
______________________________
Title:
_______________________________
STOCKHOLDER
[NAME
OF STOCKHOLDER]
By:
_________________________________
Name:
______________________________
Title:
_______________________________
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APPENDIX
A
IRREVOCABLE
PROXY
The
undersigned stockholder (“Stockholder”)
of
VitalStream Holdings, Inc., a Nevada corporation (the “Company”),
hereby irrevocably (to the fullest extent permitted by law) appoints the
officers of Internap Network Services Corporation, a Delaware corporation
(“Parent”),
and
each of them individually, as the sole and exclusive attorneys and proxies
of
the undersigned, with full power of substitution and resubstitution, to vote
and
exercise all voting and related rights (to the fullest extent that the
undersigned is entitled to do so) with respect to all of the shares of capital
stock of the Company that now are or hereafter may be beneficially owned by
the
undersigned, and any and all other shares or securities of the Company issued
or
issuable in respect thereof on or after the date hereof (collectively, the
“Shares”),
in
accordance with the terms of this Proxy. Upon the undersigned’s execution of
this Proxy, any and all prior proxies given by each undersigned with respect
to
any Shares are hereby revoked, and the undersigned agrees not to grant any
subsequent proxies with respect to the Shares until after the Expiration Date
(as defined below).
This
Proxy is irrevocable (to the fullest extent permitted by law), is coupled with
an interest and is granted pursuant to that certain Voting Agreement dated
as of
October 12, 2006 by and between Parent and Stockholder (the “Voting
Agreement”),
and
is granted in consideration of Parent entering into that certain Agreement
and
Plan of Merger (the “Merger
Agreement”),
by
and among Parent, Ivy Acquisition Corp., a Nevada corporation and a wholly
owned
subsidiary of Parent (“Merger
Sub”),
the
Company and certain other parties named therein. The Merger Agreement provides,
among other things, for the merger of Merger Sub with and into the Company
in
accordance with its terms (the “Merger”)
pursuant to which Stockholder would receive a portion of the proceeds of the
Merger. As used in this Irrevocable Proxy, the term “Expiration
Date”
shall
mean the earlier to occur of (i) such date and time as the Merger shall become
effective in accordance with the terms and provisions of the Merger Agreement
and (ii) the termination of the Merger Agreement in accordance with its
terms.
The
attorneys and proxies named above, and each of them, are hereby authorized
and
empowered by the undersigned, at any time prior to the Expiration Date, to
act
as the undersigned’s attorney and proxy to vote the Shares, and to exercise all
voting, consent and similar rights of the undersigned with respect to the Shares
(including, without limitation, the power to execute and deliver written
consents) at every annual, special, adjourned or postponed meeting of
stockholders of the Company and in every written consent in lieu of such
meeting:
(i)
in
favor
of authorization and approval of the Merger, the execution and delivery by
the
Company of the Merger Agreement and the adoption and approval of the terms
thereof and the Plan of Merger therein, and in favor of each of the other
actions contemplated by the Merger Agreement and this Proxy and any action
required in furtherance thereof;
(ii)
against
approval of any proposal made in opposition to, or in competition with, the
Merger Agreement, the consummation of the Merger or the transactions
contemplated by the Merger Agreement; and
(iii)
against
any of the following actions (other than those actions that relate to the Merger
and the transactions contemplated by the Merger Agreement): (A) any
Acquisition Proposal and (B) any other action that is intended to, or could
reasonably be expected to, impede, interfere with, delay, postpone, discourage
or adversely affect the Merger or any of the other transactions contemplated
by
the Merger Agreement.
The
attorneys and proxies named above may not exercise this Proxy on any other
matter except as provided in clauses (i), (ii), or (iii) above. Stockholder
may
vote the Shares on all other matters.
Any
obligation of the undersigned hereunder shall be binding upon the successors
and
assigns of the undersigned.
[Remainder
of page intentionally left blank.]
This
Proxy shall terminate, and be of no further force and effect, automatically
upon
the Expiration Date.
Dated:
October 12, 2006
[NAME
OF STOCKHOLDER]
By:
_________________________________
Name:
______________________________
Title:
_______________________________
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SIGNATURE
PAGE TO
PROXY