VOTING AGREEMENT
AGREEMENT dated as of February 3, 1998 by and among the person
identified as a Shareholder of TRESCOM INTERNATIONAL, INC., a Florida
corporation (the "COMPANY"), on the signature page below (the "SHAREHOLDER") and
PRIMUS TELECOMMUNICATIONS GROUP, INC., a Delaware corporation (the "PURCHASER").
WHEREAS, the Shareholder owns, as of the date hereof, 30,595 shares
of Common Stock (the "EXISTING SHARES", together with any shares of common
stock, par value $.0419 per share, of the Company (the "COMMON STOCK"), acquired
after the date hereof and prior to the termination hereof (including shares of
Common Stock acquired pursuant to the exercise of employee stock options issued
by the Company (the "OPTIONS")), hereinafter collectively referred to as the
"SHARES");
WHEREAS, concurrently herewith, the Company and Purchaser are
entering into an Agreement and Plan of Merger (the "MERGER AGREEMENT") for the
merger of a subsidiary of the Company with and into the Company (the "MERGER");
WHEREAS, as a condition to their willingness to enter into the
Merger Agreement, and in reliance upon Shareholder's representations,
warranties, covenants and agreements hereunder, the Purchaser has requested that
the Shareholder agree, and the Shareholder has agreed, to enter into this
Agreement;
WHEREAS, to induce the Purchaser to enter into the Merger Agreement,
the Shareholder is willing to execute and deliver this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained and for such other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, and intending to be
legally bound hereby, it is agreed as follows:
1. AGREEMENT TO VOTE. The Shareholder hereby agrees that, except as expressly
set forth below, during the time this Agreement is in effect, at any meeting of
the stockholders of the Company, however called, and in any action by consent of
the stockholders of the Company, the Shareholder shall: (a) vote the Shares in
favor of the Merger; (b) vote the Shares against any action or agreement that
would result in a breach of any covenant, representation or warranty or any
other obligation or agreement of the Company under the Merger Agreement; (c)
vote the Shares against any action or agreement that would impede, interfere
with, delay, postpone or attempt to discourage the Merger including, but not
limited to, (i) any extraordinary corporate transaction (other than the Merger),
such as a merger, other business combination, reorganization or liquidation
involving the Company, (ii) a sale or transfer of a material amount of assets of
the Company or any of its Subsidiaries, (iii) any change in the management or
board of directors of the Company, except as otherwise agreed to in writing by
the Purchaser, (iv) any material change in the present capitalization of the
Company, or (v) any other material change in the corporate structure or business
of the Company; and (d)
without limiting the foregoing, consult with the Purchaser prior to any such
vote and vote such Shares in such manner as is determined by the Purchaser to be
in compliance with the provisions of this Section 1. The Shareholder
acknowledges receipt and review of a copy of the Merger Agreement. In
furtherance thereof, the Shareholder hereby grants to the Purchaser an
irrevocable proxy to vote the Shares in accordance with the terms and conditions
of this Agreement, it being understood that such proxy is coupled with an
interest. Notwithstanding the foregoing, if the Board of Directors of the
Company enters into an agreement with another person or entity to effect a
Superior Offer (as defined in the Merger Agreement), and the Company is not
otherwise in violation of its obligations under Section 5(g) of the Merger
Agreement, then the obligations of the Shareholder set forth in this Section 1,
and the proxy granted by this Section 1, may be terminated by the Shareholder.
2. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDER. The Shareholder
represents and warrants to the Purchaser as follows:
2.1. OWNERSHIP OF SHARES. On the date hereof the Existing Shares are all
of the Shares currently beneficially owned (which, for purposes of this
Agreement shall be determined in accordance with Rule 13d-3 under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"); PROVIDED, that beneficial
ownership shall be determined solely with reference to Shares over which such
person has voting power as described in subsection (a)(1) of such Rule) by the
Shareholder or any Affiliate (as defined in the Merger Agreement) of the
Shareholder. On the Closing Date (as defined in the Merger Agreement), the
Shares will constitute all of the shares of Common Stock owned beneficially by
the Shareholder or any Affiliate of the Shareholder. The Shareholder does not
have any rights to acquire any additional shares of Common Stock. The
Shareholder currently has with respect to the Existing Shares, and at Closing
will have with respect to the Shares, good, valid and marketable title, free and
clear of all liens, encumbrances, restrictions, options, warrants, rights to
purchase, voting agreements or voting trusts, and claims of every kind (other
than the encumbrances created by this Agreement and other than restrictions on
transfer under applicable Federal and State securities laws).
2.2. POWER; BINDING AGREEMENT. The Shareholder has the full legal right,
power and authority to enter into and perform all of the Shareholder's
obligations under this Agreement. The execution and delivery of this Agreement
by the Shareholder will not violate any other agreement to which the Shareholder
is a party including, without limitation, any voting agreement, stockholder's
agreement or voting trust. This Agreement has been duly executed and delivered
by the Shareholder and constitutes a legal, valid and binding agreement of the
Shareholder, enforceable in accordance with its terms. Neither the execution or
delivery of this Agreement, nor the consummation by the Shareholder of the
transactions contemplated hereby, will (a) require any consent or approval of or
filing with any governmental or other regulatory body, or (b) constitute a
violation of, conflict with or constitute a default under, any contract,
commitment, agreement, understanding, arrangement or other restriction of any
kind to which the Shareholder is a party or by which the Shareholder is bound.
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2.3. FINDER'S FEES. No person is, or will be, entitled to any commission
or finder's fees from the Shareholder in connection with this Agreement or the
transactions contemplated hereby, exclusive of any commission or finder's fees
referred to in the Merger Agreement.
3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser represents
and warrants to the Shareholder as follows:
3.1. AUTHORITY. The Purchaser has full legal right, power and authority to
enter into and perform all of its obligations under this Agreement. The
execution and delivery of this Agreement by the Purchaser will not violate any
other agreement to which the Purchaser is a party. This Agreement has been duly
executed and delivered by the Purchaser and constitutes a legal, valid and
binding agreement of the Purchaser, enforceable in accordance with its terms.
Neither the execution of this Agreement nor the consummation by the Purchaser of
the transactions contemplated hereby will (a) require any consent or approval of
or filing with any governmental or other regulatory body, or (b) constitute a
violation of, conflict with or constitute a default under, any contract,
commitment, agreement, understanding, arrangement or other restriction of any
kind to which the Purchaser is a party or by which it is bound.
3.2. FINDER'S FEES. No person is, or will be, entitled to any commission
or finder's fee from the Purchaser in connection with this Agreement or the
transactions contemplated hereby, exclusive of any commission or finder's fees
referred to in the Merger Agreement.
4. TERMINATION. This Agreement (other than the provisions of Sections 5 and 6,
which shall survive any termination of this Agreement) shall terminate on the
earliest of (a) 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. The foregoing is in addition to the
termination rights of the Shareholder set forth in Section 1 above.
5. EXPENSES. Except as provided in Section 18, each party hereto will pay
all of its expenses in connection with the transactions contemplated by this
Agreement, including, without limitation, the fees and expenses of its counsel
and other advisers.
6. CONFIDENTIALITY. The Shareholder recognizes that successful consummation of
the transactions contemplated by this Agreement may be dependent upon
confidentiality with respect to these matters. In this connection, pending
public disclosure, the Shareholder agrees that it will not disclose or discuss
these matters with anyone (other than officers, directors, legal counsel and
advisors of the Shareholder, the Purchaser or the Company) not a party to this
Agreement, without prior written consent of the Purchaser, except for filings
required pursuant to the Exchange Act, and the rules and regulations thereunder,
or disclosures which the Shareholder's legal counsel advises in writing are
necessary in order to fulfill the Shareholder's obligations imposed by law, in
which event the Shareholder shall give prompt prior notice of such disclosure to
the Purchaser.
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7. CERTAIN COVENANTS OF THE SHAREHOLDER.
7.1. Except in accordance with the provisions of this Agreement, the
Shareholder agrees, prior to the termination of this Agreement as provided in
Section 4 above, not to, directly or indirectly:
(a) sell, transfer, pledge, encumber, assign or otherwise dispose
of, or enter into any contract, option or other arrangement or understanding
with respect to the sale, transfer, pledge, encumbrance, assignment or other
disposition of, any of the Shares; or
(b) grant any proxies, deposit any Shares into a voting trust or
enter into a voting agreement with respect to any Shares; or
(c) take any action to encourage, initiate or solicit any inquiries
or the making of any Acquisition Proposal (as defined in the Merger Agreement),
engage in any negotiations concerning or provide any confidential information or
data to, or have any discussions with, any person or entity relating to an
Acquisition Proposal, or otherwise assist or facilitate any effort or attempt by
any person or entity (other than the Company, or their officers, directors,
representatives, agents, affiliates or associates) to make or implement an
Acquisition Proposal. The Shareholders will immediately cease and cause to be
terminated any existing activities, discussions or negotiations on its part with
any parties conducted heretofore with respect to any of the foregoing, and will
notify the Company promptly if they become aware of any such inquiries or that
any proposals are received by, any such information is requested from, or any
such negotiations or discussions are sought to be instituted or continued with,
the Company (or its officers, directors, representatives, agents, affiliates or
associates), such notice to include the material terms communicated.
7.2. The Shareholder agrees, while this Agreement is in effect, to notify
the Purchaser promptly of the number of any shares of Common Stock acquired by
the Shareholder after the date hereof.
8. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations,
warranties, covenants and agreements made by the Shareholder or the Purchaser in
this Agreement shall survive regardless of any investigation at any time made by
or on behalf of any party.
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9. NOTICES. All notices or other communications required or permitted hereunder
shall be in writing (except as otherwise provided herein), given in the manner
provided in the Merger Agreement, and shall be deemed duly given when received,
addressed as follows:
If to the Purchaser:
Primus Telecommunications Group, Inc.
0000 Xxxxx Xxxxxx Xxxx
Xxxxxx, XX 00000
Attention: K. Xxxx Xxxxx, Chairman and CEO
Facsimile: (000) 000-0000
With a copy to:
Xxxxxx Xxxxxxxx LLP
0000 Xxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxxxx, Esquire
Facsimile: (000) 000-0000
If to the Shareholder:
c/o TresCom International, Inc.
000 Xxxx Xxxxxxx Xxxx.
Xx. Xxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
With a copy to:
Xxxxxx Xxxx & Xxxxxx LLP
Two Stamford Plaza
000 Xxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Fax: (000) 000-0000
Attention: Xxxx X. Xxxxxxx, Esquire
10. ENTIRE AGREEMENT; AMENDMENT. This Agreement, together with the documents
expressly referred to herein, constitute the entire agreement among the parties
hereto with respect to the subject matter contained herein and supersede all
prior agreements and understandings among the parties with respect to such
subject matter. This Agreement may not be modified, amended, altered or
supplemented except by an agreement in writing
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executed by the party against whom such modification, amendment, alteration or
supplement is sought to be enforced.
11. ASSIGNS. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors, assigns and personal
representatives, but neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any of the parties hereto without the
prior written consent of the other parties.
12. GOVERNING LAW. Except as expressly set forth below, this Agreement shall be
governed by and construed in accordance with the laws of the State of Florida,
regardless of the laws that might otherwise govern under applicable principles
of conflicts of laws thereof. In addition, each of the Shareholders and the
Purchaser hereby agree that any dispute arising out of this Agreement or the
Merger shall be heard in the primary trial court of the State of Florida or in
the United States District Court for the Southern District of Florida and, in
connection therewith, each party to this Agreement hereby consents to the
jurisdiction of such courts and agrees that any service of process in connection
with any dispute arising out of this Agreement or the Merger may be given to any
other party hereto by certified mail, return receipt requested, at the
respective addresses set forth in Section 9 above.
13. INJUNCTIVE RELIEF. The parties agree that in the event of a breach of any
provision of this Agreement, the aggrieved party may be without an adequate
remedy at law. The parties therefore agree that in the event of a breach of any
provision of this Agreement, the aggrieved party shall be entitled to obtain in
any court of competent jurisdiction a decree of specific performance or to
enjoin the continuing breach of such provision, in each case without the
requirement that a bond be posted, as well as to obtain damages for breach of
this Agreement. By seeking or obtaining such relief, the aggrieved party will
not be precluded from seeking or obtaining any other relief to which it may be
entitled.
14. COUNTERPARTS; FACSIMILE SIGNATURES. This Agreement may be executed,
including execution by facsimile, in any number of counterparts, each of which
shall be deemed to be an original and all of which together shall constitute one
and the same document.
15. SEVERABILITY. Any term or provision of this Agreement which is invalid or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such invalidity or unenforceability without rendering invalid
or unenforceable the remaining terms and provisions of this Agreement or
affecting the validity or enforceability of any of the terms or provisions of
this Agreement in any other jurisdiction. If any provision of this Agreement is
so broad as to be unenforceable, such provision shall be interpreted to be only
so broad as is enforceable.
16. FURTHER ASSURANCES. Each party hereto shall execute and deliver such
additional documents as may be necessary or desirable to consummate the
transactions contemplated by this Agreement.
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17. THIRD PARTY BENEFICIARIES. Nothing in this Agreement, expressed or implied,
shall be construed to give any person other than the parties hereto any legal or
equitable right, remedy or claim under or by reason of this Agreement or any
provision contained herein.
18. LEGAL EXPENSES. In the event any legal proceeding is commenced by any party
to this Agreement to enforce or recover damages for any breach of the provisions
hereof, the prevailing party in such legal proceeding shall be entitled to
recover in such legal proceeding from the losing party such prevailing party's
costs and expenses incurred in connection with such legal proceedings, including
reasonable attorneys fees.
19. AMENDMENT AND MODIFICATION. This Agreement may be amended, modified and
supplemented by a written document executed by the Purchaser and the
Shareholder.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the Purchaser has caused this Agreement to be
executed by its duly authorized officers, and the Shareholders have duly
executed this Agreement, each as of the date and year first above written.
PURCHASER:
PRIMUS TELECOMMUNICATIONS GROUP, INC.
By: /S/ K. XXXX XXXXX
-----------------------------------------
K. Xxxx Xxxxx, Chief Executive Officer
SHAREHOLDER:
/S/ XXXXXX X. X'XXXXX
--------------------------------------------
Xxxxxx X. X'Xxxxx
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