EX-99.4 5 ex99-4.htm EXHIBIT 99.4 Exhibit 4 -- Shareholder Voting Agreement
EXHIBIT 4


 
 



SHAREHOLDER VOTING AGREEMENT
 
among
 
MANHATTAN
 
and
 
THE INDIVIDUALS LISTED ON THE SIGNATURE PAGE HERETO
 
Dated as of June 20, 2006
 
 


 
TABLE OF CONTENTS
 
 

   
Page
 
SECTION 1.
Representations and Warranties of the Shareholders
1
SECTION 2.
Representations and Warranties of Purchaser
2
SECTION 3.
Covenants of the Shareholder
3
SECTION 4.
Further Assurances
4
SECTION 5.
Assignment
4
SECTION 6.
Transfers
4
SECTION 7.
Termination
4
SECTION 8.
General Provisions
4
SECTION 9.
Jurisdiction
6
SECTION 10.
Service of Process
6
SECTION 11.
Waiver of Jury Trial
6
SECTION 12.
Headings
6


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SHAREHOLDER VOTING AGREEMENT dated as of June 20, 2006 (this “Agreement”), among MANHATTAN TELECOM B.V., a private limited liability company with its registered office at The Maanplein 55, The Hague, and incorporated under the laws of the Netherlands (“Purchaser”), and THE PARTIES LISTED ON THE SIGNATURE PAGE HERETO (such persons are individually referred to herein as a “Shareholder” and collectively as the “Shareholders”).
 
WHEREAS Purchaser and Volcano, a Delaware corporation (the “Company”), propose to enter into a Share Purchase and Sale Agreement dated as of the date hereof and in the form attached hereto as Exhibit A (the “Share Purchase Agreement”), providing for the purchase by the Purchaser of newly issued ordinary shares of common stock, par value $0.001 per share (the “Shares”), that shall represent, immediately after issuance, 51 % of the Fully Diluted number of shares of Common Stock of the Company at the close of business on the day before the Closing Date, in exchange for (i) all of the issued and outstanding shares of the newly created subsidiary of Purchaser that, together with its subsidiaries and WVS-I U.S., encompasses Purchaser’s international traffic trading business and (ii) $55,000,000 in cash, upon the terms and subject to the conditions set forth in the Share Purchase Agreement;
 
WHEREAS each Shareholder will notify Purchaser, on June 21, 2006, of the number of shares of capital stock of the Company which it beneficially owns (such shares of capital stock of the Company, together with any other shares of capital stock of the Company subsequently acquired (of record or beneficially) by such Shareholder, the “Subject Shares”); and
 
WHEREAS as a condition to its willingness to enter into the Share Purchase Agreement, Purchaser has required that the Shareholders enter into this Agreement.
 
NOW, THEREFORE, in consideration of the foregoing and the representations, warranties, covenants and agreements set forth herein, the parties hereto agree as follows. Terms used but not defined herein shall have the meaning set forth in the Share Purchase Agreement:
 
SECTION 1. Representations and Warranties of the Shareholders. Each Shareholder, severally and not jointly, hereby represents and warrants to Purchaser as follows:
 
(a) Execution and Delivery; Enforceability. This Agreement has been duly executed and delivered by such Shareholder and, assuming the due execution and delivery by Purchaser, this Agreement constitutes a legal, valid and binding obligation of such Shareholder, enforceable against such Shareholder in accordance with its terms subject, as to enforcement, to applicable bankruptcy, insolvency, moratorium, reorganization or similar laws affecting creditors’ rights
 

 
 

 
generally and to general equitable principles. The execution and delivery by such Shareholder of this Agreement and the consummation of the transactions contemplated by this Agreement and compliance by such Shareholder with the provisions of this Agreement do not and will not conflict with, or result in any breach of, or constitute default under, or result in the creation of any Lien upon any of the Subject Shares of such Shareholder under, any provision of (1) its organizational documents, if applicable, (ii) any Contract to which such Shareholder is a party or by which any of its properties or assets is bound or (iii) any Judgment or Applicable Law applicable to such Shareholder or its properties or assets, other than, in the case of clauses (ii) and (iii) above, any such items that, individually or in the aggregate, have not had and could not reasonably be expected to have a material adverse effect on the ability of such Shareholder to perform its obligations under this Agreement. No Consent of, or registration, declaration or filing with, any Governmental Entity is required to be obtained or made by or with respect to such Shareholder in connection with the execution, delivery and performance of this Agreement or the consummation of the transactions contemplated by this Agreement, other than (A) such filings under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated in this Agreement and (B) such other consents, approvals, orders, authorizations, registrations, declarations and filings the failure of which to be obtained or made individually or in the aggregate would not or would not reasonably be expected to impair in any material respect the ability of such Shareholder to perform his obligations under this Agreement or prevent the consummation of any of the transactions contemplated by this Agreement.
 
(b) The Subject Shares. On June 21, 2006, each Shareholder will provide Purchaser with the number of Subject Shares of which it is the beneficial owner as of the date of this Agreement. Such Shareholder has the sole right to vote such Subject Shares, and such Subject Shares are not subject to any proxies, voting trust or other agreement, understanding, arrangement or restriction with respect to the voting of such Subject Shares, except as contemplated by this Agreement and arising under Federal or state securities laws.
 
SECTION 2. Representations and Warranties of Purchaser. Purchaser represents and warrants to each Shareholder as follows:
 
(a) Organization and Authority. Purchaser is a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation and has full corporate power and authority to conduct its business as presently conducted.
 
(b) Authorization; Noncontravention. Purchaser has full corporate power and authority to execute this Agreement and to consummate the transactions contemplated to be consummated by it by this Agreement. Purchaser has duly executed and delivered this Agreement and, assuming the due execution and delivery by each Shareholder, this Agreement constitutes a legal, valid and binding obligation, enforceable against it in accordance with its terms subject, as
 

 
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to enforcement, to applicable bankruptcy, insolvency, moratorium, reorganization or similar laws affecting creditors’ rights generally and to general equitable principles. The execution and delivery by Purchaser of this Agreement and the consummation by Purchaser of the transactions contemplated to be consummated by it by this Agreement do not and will not conflict with, or result in any breach of or constitute a default under, or result in the creation of any Lien upon any of the shares of Purchaser under, any provision of (i) its organizational documents, (ii) any Contract to which Purchaser is a party or by which any of its properties or assets is bound or (iii) any Judgment or Applicable Law applicable to Purchaser or its properties or assets, other than, in the case of clauses (ii) and (iii) above, any such items that, individually or in the aggregate, have not had and could not reasonably be expected to have a material adverse effect on Purchaser.
 
SECTION 3. Covenants of the Shareholder. Each Shareholder, severally and not jointly, covenants and agrees as follows:
 
(a) To the extent the Share Purchase Agreement has been approved and recommended by the Company’s board of directors, and such approval and consent has not been withdrawn or revoked, at any meeting of the shareholders of the Company called to vote upon the Share Purchase Agreement, the Share Issuance or any of the other transactions or matters contemplated by the Share Purchase Agreement, or at any adjournment thereof, or in any other circumstances upon which a vote, consent or other approval (including by written consent) with respect to the Share Purchase Agreement, the Share Issuance or any of the other transactions or matters contemplated by the Share Purchase Agreement is sought, each Shareholder shall vote (or cause to be voted) all the shares of Company which it beneficially owns at such time in favor of, and shall consent to (or cause to be consented to), the approval of the Share Purchase Agreement, the Share Issuance and the terms thereof and each of the other transactions and matters contemplated by the Share Purchase Agreement.
 
(b) To the extent the Share Purchase Agreement has been approved and recommended by the Company’s board of directors, and such approval and consent has not been withdrawn or revoked, at any meeting of the shareholders of the Company or at any adjournment thereof or in any other circumstances upon which a vote, consent or other approval (including by written consent) of the shareholders of the Company is sought, each Shareholder shall vote (or cause to be voted) all the shares of Company which it owns beneficially at such time against, and shall not consent to (and shall cause not to be consented to) any proposal, action or transaction involving the Company or any of its subsidiaries or any of its shareholders, which proposal, action or transaction would in any manner impede, frustrate, prevent or delay the consummation of the transactions contemplated by the Share Purchase Agreement or this Agreement or change in any manner the voting rights of the holders of the shares of capital stock of the Company (collectively, “Frustrating Transactions”).
 
 
 
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SECTION 4. Further Assurances. Each Shareholder shall, from time to time, execute and deliver, or cause to be executed and delivered, such additional or further consents, documents and other instruments as Purchaser may reasonably request for the purpose of effectuating the matters covered by this Agreement.
 
SECTION 5. Assignment. Neither this Agreement nor any of the rights, interests or obligations under this Agreement shall be assigned, in whole or in part, by operation of law or otherwise, by any of the parties hereto without the prior written consent of the other party hereto, except that Purchaser may assign, in its sole discretion, any of or all its rights, interests and obligations under this Agreement to any direct or indirect wholly owned subsidiary of Purchaser. Any purported assignment in violation of this Section 7 shall be null and void.
 
SECTION 6. Transfers. Nothing in this Agreement shall limit or interfere with each Shareholders’ right to sell, transfer, pledge, assign or otherwise dispose of (including by gift) (collectively, “Transfer”), or consent to or permit any Transfer of, any Subject Shares or any interest therein, or enter into any loan or credit agreement, bond, debenture, note, mortgage, indenture, lease or other contract, commitment, agreement, option, instrument, arrangement, understanding, obligation or undertaking, with respect to the Transfer (including any profit sharing or other derivative arrangement) of any Subject Shares or any interest therein, to any person.
 
SECTION 7. Termination. This Agreement, shall terminate upon the earlier of (i) the Closing and (ii) termination of the Share Purchase Agreement in accordance with its terms, other than with respect to the liability of any party for breach hereof prior to such termination.
 
SECTION 8. General Provisions.
 
(a) Amendments. This Agreement may not be amended except by an instrument in writing signed on behalf of each of the parties.
 
(b) Notices. All notices, requests, permissions, waivers and other communications hereunder shall be in writing and shall be deemed to have been duly given (a) five business days following sending by registered or certified mail, postage prepaid, (b) when sent, if sent by facsimile, provided that the facsimile transmission is promptly confirmed by telephone, (c) when delivered, if delivered personally to the intended recipient and (d) one business day following sending by overnight delivery via a national courier service and, in each case, addressed to a party at the following address for such party:
 
if to the Purchaser:
 
Manhattan
Maanplein 1, 2516 CK
The Hague, The Netherlands
Attention: Craig Allwright
Facsimile: +31 70 446 0675
 

 
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with a copy to:
 
Cravath, Swaine & Moore LLP
CityPoint
One Ropemaker Street
London EC2Y 9HR
Attention: Philip J. Boeckman, Esq.
Facsimile: +44 207 860 1150
 
if to the Shareholders:
 
c/o Richard Baumfield
Andrews Kurth LLP
450 Lexington Avenue
New York, NY 10017
Facsimile: (212) 850-2929
 
(c) Interpretation. The representations, warranties and covenants contained herein shall be deemed to be made severally, and not jointly, by each of the Shareholders.
 
(d) Counterparts; Effectiveness. This Agreement may be executed by any one or more of the parties hereto in any number of counterparts, all such respective counterparts shall together constitute one and the same instrument, and shall be delivered in person, by facsimile, or by electronic image scan. The effectiveness of this Agreement shall be conditioned upon the execution and delivery of the Share Purchase Agreement by each of the parties thereto in the form attached hereto as Exhibit A.
 
(e) Entire Agreement; No Third-Party Beneficiaries. This Agreement constitutes the entire agreement among the parties hereto with respect to the subject matter hereof and thereof. There are no restrictions, promises, warranties or undertakings, other than those set forth or referred to herein and therein. This Agreement supersedes all prior agreements and understandings among the parties hereto with respect to the subject matter hereof and thereof. This Agreement is for the sole benefit of the parties hereto, their permitted assigns (consistent with Section 7 of this Agreement), and nothing herein expressed or implied shall give or be construed to give to any person, other than the parties hereto and such assigns, any legal or equitable rights hereunder.
 
(f) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF LAW.
 
(g) Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule or law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such
 
 
 
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determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that transactions contemplated hereby are fulfilled to the extent possible.
 
SECTION 9. Jurisdiction. Each party irrevocably agrees that any legal action, suit or proceeding against them arising out of or in connection with this Agreement or the transactions contemplated by this Agreement or disputes relating hereto (whether for breach of contract, tortious conduct or otherwise) shall be brought exclusively in the U.S. District Court for the Southern District of New York, or, if such court does not have subject matter jurisdiction, the state courts of New York located in New York County and hereby irrevocably accepts and submits to the exclusive jurisdiction and venue of the aforesaid courts in personam, with respect to any such action, suit or proceeding.
 
SECTION 10. Service of Process. Each of the parties agrees that service of any process, summons, notice or document by U.S. registered mail to such party’s respective address set forth above shall be effective service of process for any action, suit or proceeding in New York with respect to any matters for which it has submitted to jurisdiction pursuant to Section 9.
 
SECTION 11. Waiver of Jury Trial. Each party hereby waives, to the fullest extent permitted by Applicable Law, any right it may have to a trial by jury in respect to any litigation directly or indirectly arising out of, under or in connection with this Agreement or the transactions contemplated by this Agreement or disputes relating hereto. Each party (a) certifies that no representative, agent or attorney of any other party has represented, expressly or otherwise, that such other party would not, in the event of litigation, seek to enforce the foregoing waiver and (b) acknowledges that it and the other party hereto have been induced to enter into this Agreement by, among other things, the mutual waivers and certifications in this Section 11.
 
SECTION 12. Headings. Section headings are used for convenience only and shall in no way affect the construction of this Agreement.
 
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IN WITNESS WHEREOF, Purchaser has caused this Agreement to be signed by its officer thereunto duly authorized and each Shareholder has signed this Agreement, all as of the date first written above.
 
MANHATTAN,
 
By
 
/S/ KPN TELECOM B.V.
 
Name:
 
Title:


SHAREHOLDERS,
 
 
 
/S/ RICHARD BAUMFIELD
 
LC Capital Master Fund, Ltd.
 
 

 
 
/S/ RICHARD BAUMFIELD
 
Loeb Partners Corporation
 
Name: Richard Baumfield
 
Title: Authorized Agent

 
 
/s/ RICHARD BAUMFIELD
 
Singer Children’s Management Trust
 
Name: Richard Baumfield
 
Title: Authorized Agent
 
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