SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO RULES 13d-l(a) AND AMENDMENTS THERETO FILED
PURSUANT TO 13d-2(a)
(Amendment No. 1)/1/
EXCEL Communications, Inc.
---------------------------
(Name of Issuer)
Common Stock $.001 par value per share
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(Title of Class of Securities)
30065K 10 4
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(CUSIP Number)
J. Christopher Dance, Esq.
8750 North Central Expressway, Suite 2000, Dallas, Texas 75231, (214)863-8000
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(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
June 14, 1998
----------------
(Date of Event Which Requires Filing of This Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box
[ ].
Note. Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Rule 13d-7(b) for other
parties to whom copies are to be sent.
/1/ The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which would
alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
<PAGE>
SCHEDULE 13D
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1. NAME OF REPORTING PERSON - Troutt Partners, Ltd.
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY) - 75-2664332
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
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3. SEC USE ONLY
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4. SOURCE OF FUNDS
00
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5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(D) OR 2(E) [ ]
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6. CITIZENSHIP OR PLACE OF ORGANIZATION
Texas
7. SOLE VOTING POWER
0
NUMBER OF
SHARES 8. SHARED VOTING POWER
BENEFICIALLY 53,000,000
OWNED BY
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON WITH 0
10. SHARED DISPOSITIVE POWER
53,000,000
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11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON
53,000,000
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12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ]
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13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
40.0%
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14. TYPE OF REPORTING PERSON
PN
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SCHEDULE 13D
CUSIP No. 300903101
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1. NAME OF REPORTING PERSON - Troutt Family Trust
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY) - The Trust does
not have an I.R.S. identification number (since it is not required for
federal income tax purposes).
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
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3. SEC USE ONLY
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4. SOURCE OF FUNDS
00
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5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(D) OR 2(E) [ ]
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6. CITIZENSHIP OR PLACE OF ORGANIZATION
Texas
7. SOLE VOTING POWER
0
NUMBER OF
SHARES 8. SHARED VOTING POWER
BENEFICIALLY 63,680,000
OWNED BY
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON WITH 0
10. SHARED DISPOSITIVE POWER
63,680,000
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11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON
63,680,000
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12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ]
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13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
48.1%
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14. TYPE OF REPORTING PERSON
OO
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SCHEDULE 13D
CUSIP No. 300903101
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1. NAME OF REPORTING PERSON - Kenny A. Troutt
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY) - ###-##-####
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
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3. SEC USE ONLY
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4. SOURCE OF FUNDS
00
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5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(D) OR 2(E) [ ]
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6. CITIZENSHIP OR PLACE OF ORGANIZATION
United States
7. SOLE VOTING POWER
0
NUMBER OF
SHARES 8. SHARED VOTING POWER
BENEFICIALLY 63,680,800
OWNED BY
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON WITH 0
10. SHARED DISPOSITIVE POWER
63,680,000
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11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON
63,680,000
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12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ]
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13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
48.1%
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14. TYPE OF REPORTING PERSON
IN
<PAGE>
This constitutes Amendment No. 1 to the Schedule 13D (the
"Statement") filed with the Securities and Exchange Commission (the
"Commission") by Trout Partners, Ltd., a Texas limited partnership (the
"Partnership"), the Trout Family Trust, a trust formed under the laws of the
State of Texas (the "Family Trust"), and Kenny A. Troutt (collectively with the
Partnership and the Family Trust, the "Reporting Persons"), with respect to the
Common Stock, $.001 par value (the "Common Stock"), of Excel Communications,
Inc. a Delaware corporation (the "Issuer"). The percentage of Common Stock
reported in this Amendment No. 1 as being beneficially owned by the Reporting
Persons is based upon 132,259,389 shares of Common Stock outstanding,
representing the number of shares of Common Stock outstanding as of June 14,
1998 and after giving effect to the number of shares of Common Stock
beneficially owned by the Reporting Persons.
Item 4. Purpose of Transaction.
----------------------
The information in Item 6 of this Amendment No. 1 is incorporated
herein by reference.
Except as described in such Item 6, the Reporting Persons currently
have no plans or proposals which relate to or would result in any of the actions
enumerated in clauses (a) through (j) of Item 4 of Schedule 13D.
Item 5. Interest in Securities of the Issuer.
------------------------------------
The second paragraph of Item 5 of the Statement is amended in its
entirety to read as follows:
As of the date hereof, (i) the Partnership owns beneficially and of
record 53,000,000 shares of Common Stock as to which it has shared voting power
and shared dispositive power; (ii) the Family Trust beneficially owns 63,680,000
shares of the Common Stock as to which it has shared voting power and shared
dispositive power and (iii) Kenny A. Trout beneficially owns 63,680,000 shares
of Common Stock as to which he has shared voting power and shared dispositive
power.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
to Securities of the Issuer.
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On June 14, 1998, the Issuer, Teleglobe Inc., a corporation governed
by the Canada Business Corporations Act ("Teleglobe"), and North Merger Sub
Corporation, a Delaware corporation and a wholly owned subsidiary of Teleglobe
("Merger Sub"), entered into an Agreement and Plan of Merger (the "Merger
Agreement") pursuant to which Merger Sub will be merged (the "Merger") with and
into the Issuer, with the Issuer surviving the Merger as a wholly owned
subsidiary of Teleglobe. At the effective time of the Merger, among other
things, each issued and outstanding share of the Common Stock automatically will
be converted into .855 of a common share of Teleglobe capital stock.
As an inducement to Teleglobe to enter into and execute, and to
cause Merger Sub to enter into and execute, the Merger Agreement, and in
reliance on certain representations and warranties of Teleglobe contained in the
Merger Agreement, the Reporting Persons and Austex Enterprises, Ltd.,
("Austex"), the beneficial owner of 7,367,933 shares of Common Stock as of June
14, 1998 (representing approximately 5.6% of the Common Stock outstanding as of
<PAGE>
June 14, 1998, each entered into a Consent and Voting Agreement with Teleglobe
(the "Agreement").
Pursuant to the Agreement, the Reporting Persons and Austex
severally executed irrevocable written consents in lieu of a meeting of
stockholders of the Issuer approving the Merger Agreement and the Merger. In
addition, the Reporting Persons and Austex severally agreed that, during the
term of the Agreement, if requested by Teleglobe, they would vote their shares
of the Common Stock in favor of approving the Merger Agreement and the Merger at
any meeting of stockholders of the Company, however called, or provide a written
consent in favor of the same in lieu of voting at a meeting of the stockholders,
as the case may be.
In furtherance of the foregoing, the Reporting Persons and Austex
severally granted to Teleglobe an irrevocable proxy, and appointed certain
officers of Teleglobe as their attorneys-in-fact, to vote their shares in favor
of approving the Merger Agreement and the Merger. As a result of the granting of
the irrevocable proxies, Teleglobe may be deemed to share voting power with
respect to the shares of the Common Stock owned by the Reporting Persons.
If the Merger Agreement is terminated in accordance with its terms,
the Agreement will automatically terminate. In addition, if the exchange ratio
or the merger consideration is changed, or if the conditions precedent to the
consummation of the Merger are amended or any material condition precedent is
waived, in each case, without the prior written consent of the Reporting
Persons, the Reporting Persons may terminate the Agreement.
Item 7. Material to be Filed as Exhibits.
--------------------------------
Exhibit 1 Excel Consent and Voting Agreement
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this Statement is true, complete and
correct.
TROUTT PARTNERS, LTD.
By: The Troutt Family Trust,
its general partner
By: /s/ KENNY A. TROUTT
----------------------------
Trustee Date: June 19, 1998
THE TROUTT FAMILY TRUST
By: /s/ KENNY A. TROUTT
----------------------------
Trustee Date: June 19, 1998
/s/ KENNY A. TROUTT
----------------------------
Kenny A. Troutt, individually Date: June 19, 1998
<PAGE>
Exhibit Index
----------------
Exhibit 1 Excel Consent and Voting Agreement
EXECUTION COPY
EXCEL CONSENT AND VOTING AGREEMENT
EXCEL CONSENT AND VOTING AGREEMENT, dated as of June 14, 1998 (this
"Agreement"), by and among TELEGLOBE INC., a corporation governed by the Canada
Business Corporations Act ("Teleglobe"), and each of the other signatories
hereto (each, a "Stockholder" and, collectively, the "Stockholders").
WHEREAS, concurrently herewith, Teleglobe, North Merger Sub Corporation, a
Delaware corporation and a wholly owned subsidiary of Teleglobe ("North Sub"),
and Excel Communications, Inc., a Delaware corporation (the "Company"), are
entering into an Agreement and Plan of Merger (the "Merger Agreement";
capitalized terms used without definition herein having the meanings ascribed
thereto in the Merger Agreement);
WHEREAS, each Stockholder is the record and beneficial owner of the number of
shares ("Shares") of common stock, par value $.001 per share, of the Company
("Company Common Stock") set forth opposite such Stockholder's name in Schedule
I hereto;
WHEREAS, approval and adoption of the Merger Agreement by the Company's
stockholders is a condition to the consummation of the Merger;
WHEREAS, the Board of Directors of the Company has, prior to the execution of
this Agreement, duly and validly approved and adopted the Merger Agreement and
approved this Agreement, and such approvals and adoption have not been
withdrawn;
WHEREAS, the Stockholders are executing this Agreement (i) as an inducement to
Teleglobe to enter into and execute and to cause North Sub to enter into and
execute the Merger Agreement and (ii) in reliance upon the representations,
warranties, agreements and covenants of Teleglobe set forth in Sections 3.2(ad)
and 5.13 thereof; and
WHEREAS, certain holders of common shares of Teleglobe capital stock are
concurrently executing the Teleglobe Consent and Voting Agreements as an
inducement to Excel to enter into and execute the Merger Agreement.
<PAGE>
NOW THEREFORE, in consideration of the foregoing and the mutual covenants and
agreements set forth herein, the parties hereto agree as follows:
Section 1. Consent and Agreement to Vote. Each Stockholder agrees
(for itself and not as to any other Stockholder) that immediately following the
execution and delivery of this Agreement and the Merger Agreement, it shall
execute and deliver, or cause to be executed and delivered by the record owner
thereof, in accordance with Section 228 of the DGCL, the Excel Stockholders
Consent in the form of Exhibit A hereto (the "Consent"), which shall be
irrevocable, with respect to all Shares that are owned beneficially or of record
by such Stockholder or as to which such Stockholder has, directly or indirectly,
the right to vote or direct the voting.
Each Stockholder hereby further agrees (for itself and not as to any
other Stockholder) that, during the term of this Agreement, it shall, from time
to time, at the request of Teleglobe, at any meeting (whether annual or special
and whether or not an adjourned or postponed meeting) of stockholders of the
Company, however called, or in connection with any written consent of the
holders of Company Common Stock, in either case, prior to the earlier of the
Effective Time and the termination of this Agreement, if a meeting is held,
appear at such meeting or otherwise cause the Shares to be counted as present
thereat for purposes of establishing a quorum, and it shall vote or consent (or
cause to be voted or consented), in person or by proxy, all Shares, and any
other voting securities of the Company (whether acquired heretofore or
hereafter), that are beneficially owned by such Stockholder or its wholly owned
Affiliates or as to which such Stockholder has, directly or indirectly, the
right to vote or direct the voting, in favor of the approval and adoption of the
Merger Agreement. Each Stockholder agrees, during the period commencing on the
date hereof and ending on the earlier of the Effective Time and the termination
of this Agreement, not to, and not to permit any of its wholly owned Affiliates
to, vote or execute any written consent in lieu of a stockholders meeting or
vote of the Company, if such consent or vote by the stockholders of the Company
would be inconsistent with or frustrate the purposes of the other agreements of
such Stockholder pursuant to this paragraph.
In furtherance and not in limitation of the foregoing, each
Stockholder hereby grants to, and appoints, Teleglobe and each of Claude Seguin,
Francois Laurin and
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Andre Bourbonnais, in their respective capacities as officers of Teleglobe, and
any individual who shall hereafter succeed to any such officer of Teleglobe, and
any other designee of Teleglobe, each of them individually, its irrevocable
proxy and attorney-in-fact (with full power of substitution) to vote the Shares
as indicated in this Section 1. Each Stockholder intends this proxy to be
irrevocable and coupled with an interest and will take such further action and
execute such other instruments as may be necessary to effectuate the intent of
this proxy.
Each Stockholder hereby revokes any and all previous proxies with
respect to such Person's Shares or any other voting securities of the Company
that relate to the approval of the Merger Agreement.
Section 2. Securities Act Covenants and Representations. In addition
to, and not in lieu of, the other covenants and representations set forth
herein, each Stockholder hereby agrees and represents to Teleglobe that such
Stockholder understands that, to the extent such Stockholder is an "affiliate"
(as such term is defined in Rule 405 under the Securities Act) of the Company at
the time the Consent is executed or the Merger Agreement is submitted for a vote
of the stockholders of the Company, any public offering, sale or other
disposition by such Stockholder or any of its wholly owned Affiliates of any
Teleglobe Common Shares received by such Person in the Merger (collectively, the
"Restricted Sales") will, under current law, require any of (i) the further
registration under the Securities Act of any Teleglobe Common Shares to be sold
by such Person, (ii) compliance with applicable provisions of Rule 145
promulgated by the SEC under the Securities Act or (iii) the availability of
another exemption from such registration under the Securities Act. Each
Stockholder agrees not to, and not to cause or permit any of its wholly owned
Affiliates to, make any Restricted Sale unless the conditions of clause (i),
(ii) or (iii) are met.
Section 3. Pooling Covenants and Representations. In addition to,
and not in lieu of, the other covenants and representations set forth herein,
each Stockholder that is an "affiliate" of the Company hereby agrees and
represents to Teleglobe that from and after the date hereof, such Stockholder
will not, and will not permit any of its wholly owned Affiliates to, sell,
pledge, transfer or otherwise dispose of, or hedge or otherwise reduce its risk
with respect to, any Shares (whether owned as of the date hereof or hereafter
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<PAGE>
acquired) or any Teleglobe Common Shares received by such Stockholder in the
Merger or other shares of capital stock of Teleglobe, from the 30th day prior to
the Effective Time to such time as results covering at least 30 days of combined
operations of the Company and Teleglobe have been published by Teleglobe in the
form of a quarterly earnings report, an effective registration statement filed
with the SEC, a report to the SEC on Form 6-K or any other public filing or
announcement which includes the combined results of operations of Teleglobe and
Excel, except for transfers or other dispositions that, in the reasonable
opinion of Excel's or Teleglobe's independent accountants, will not prevent
Teleglobe from accounting for the Merger as a pooling of interests, taking into
account the actions of other wholly owned Affiliates of the Company, Teleglobe
or the Stockholders.
Section 4. Further Assurances. Each party shall execute and deliver
such additional instruments and other documents and shall take such further
actions as may be necessary or appropriate to effectuate, carry out and comply
with all of its obligations under this Agreement. Without limiting the
generality of the foregoing, none of the parties hereto shall enter into any
agreement or arrangement (or alter, amend or terminate any existing agreement or
arrangement) if such action would materially impair the ability of such party to
effectuate, carry out or comply with all of the terms of this Agreement.
Section 5. Representations and Warranties of Teleglobe. Teleglobe
represents and warrants to each Stockholder as follows:
(a) This Agreement has been approved by the Board of Directors of
Teleglobe, representing all necessary corporate action on the part of Teleglobe
for the execution and performance hereof and thereof by Teleglobe (no action by
the stockholders of Teleglobe being required).
(b) This Agreement has been duly executed and delivered by a duly
authorized officer of Teleglobe.
(c) This Agreement constitute a valid and binding agreement of
Teleglobe, enforceable against Teleglobe in accordance with their terms, except
as such enforceability may be limited by bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws relating to or affecting
creditors generally by general
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<PAGE>
equity principles (regardless of whether enforceability is considered in a
proceeding in equity or at law) or by an implied covenant of good faith and fair
dealing.
(d) The execution and delivery of this Agreement by Teleglobe does
not violate or breach, and will not give rise to any violation or breach, of
Teleglobe's charter or bylaws, or, except as will not materially impair its
ability to effectuate, carry out or comply with all of the terms of this
Agreement, any Law, Governmental Entity approval or Contract by which Teleglobe
or its Subsidiaries or their respective assets or properties may be bound.
Section 6. Representations and Warranties of the Stockholders. Each
Stockholder, as to such Stockholder only, represents and warrants to Teleglobe
as follows:
(a) Schedule I sets forth, opposite such Stock- holder's name, the
number and type of Shares of which such Stockholder is the record or beneficial
owner. Such Stockholder is the lawful owner of such Shares, free and clear of
all liens, charges, options, rights, encumbrances, stockholders agreements,
voting agreements, agreements to transfer or otherwise dispose of such Shares
and commitments of every kind, other than this Agreement and as disclosed in
Schedule I and has the sole power to vote (or cause to be voted) the Shares as
set forth in this Agreement and the Consent. Except as set forth on such
Schedule I, neither such Stockholder nor any of its Affiliates owns or holds any
rights to acquire any additional shares of Company Common Stock or other
securities of the Company or any interest therein or any voting rights with
respect to any additional shares of Company Common Stock or any other securities
of the Company.
(b) This Agreement and the Consent each have been duly executed and
delivered by a duly authorized officer of such Stockholder or, if the
Stockholder is a natural person, the Stockholder has the legal capacity to
execute this Agreement.
(c) This Agreement and the Consent constitute the valid and binding
agreements of such Stockholder, enforceable against such Stockholder in
accordance with their terms, except as such enforceability may be limited by
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws relating to or affecting creditors generally by general equity
principles (regardless of whether
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enforceability is considered in a proceeding in equity or at law) or by an
implied covenant of good faith and fair dealing.
(d) The execution and delivery of this Agreement and the Consent by
such Stockholder does not violate or breach, and will not give rise to any
violation or breach, of such Stockholder's charter, by-laws, trust instrument or
partnership agreement, to the extent applicable or, except as will not
materially impair the ability of such Stockholder to effectuate, carry out or
comply with all of the terms of this Agreement, any Law, third party consent,
Governmental Entity approval or Contract by which such Stockholder or its assets
or properties may be bound.
Section 7. Effectiveness and Termination. In the event the Merger
Agreement is terminated in accordance with its terms, this Agreement shall
automatically terminate and be of no further force or effect. Upon such
termination, except for any rights any party may have in respect of any breach
by any other party of its obligations hereunder, none of the parties hereto
shall have any further obligation or liability hereunder; provided however (A)
that any amendment by the parties to the Merger Agreement to (x) the Exchange
Ratio or the Merger Consideration (each as defined in Section 1.8(a) of the
Merger Agreement), (y) Article VI of the Merger Agreement entitled "Conditions
Precedent" or (z) Article VII of the Merger Agreement entitled "Termination and
Amendment" or (B) the waiver on or prior to the Closing Date by Teleglobe and/or
Excel of any material Condition Precedent set forth in Article VI of the Merger
Agreement, shall require the written consent of the Shareholders, failing which
this Agreement may be terminated in writing by any Shareholder who has not
consented to such amendment or such waiver. In any event, if the Effective Time
shall not have occurred on or before December 31, 1999, this Agreement may be
terminated in writing by any Shareholder and it shall be of no further force or
effect as to such Shareholder.
Section 8. Miscellaneous.
(a) Notices. All notices, requests and other communications
hereunder shall be in writing and shall be deemed duly given (a) on the date of
delivery if delivered personally, or by telecopy or facsimile, upon confirmation
of receipt, (b) on the first Business Day following the date of dispatch if
delivered by a recognized next-day courier service or (c) on the third Business
Day following the date
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of mailing if delivered by registered or certified mail, return receipt
requested, postage prepaid. All notices hereunder shall be delivered as set
forth below, or pursuant to such other instructions as may be designated in
writing by the party to receive such notice:
(i) if to Teleglobe, to
Teleglobe Inc.
1000, rue de La Gauchetiere ouest
Montreal, Quebec H3B 4X5
Attention: Vice President, Legal Affairs and
Corporate Secretary
Facsimile: 514-868-7438
with a copy to
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017
Attention: Philip T. Ruegger III, Esq.
Facsimile: 212-455-2502
(ii) if to any Stockholder, to
Excel Communications, Inc.
8750 North Central Expressway
Suite 2000
Dallas, TX 75231
Attention: Executive Vice President,
Secretary and General Counsel
Facsimile: 214-863-8838
with a copy to
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153-0119
Attention: Frederick S. Green, Esq.
Facsimile: 212-310-8007
(b) Interpretation. When a reference is made in this Agreement to
Sections, such reference shall be to a Section of this Agreement unless
otherwise indicated. 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. Whenever the words "include", "includes" or "including" are used
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in this Agreement, they shall be deemed to be followed by the words "without
limitation".
(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 both
parties need not sign the same counterpart.
(d) Entire Agreement; No Third Party Beneficiaries. This Agreement
constitutes the entire agreement and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof. This Agreement shall be binding upon and inure solely to
the benefit of each party hereto, and nothing in this Agreement, express or
implied, is intended to or shall confer upon any other Person any right, benefit
or remedy of any nature whatsoever under or by reason of this Agreement.
(e) Waiver of Jury Trial. Each party hereto waives, to the fullest
extent permitted by applicable law, any right it may have to a trial by jury in
respect of any litigation directly or indirectly arising out of, under or in
connection with this Agreement.
(f) Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Delaware, without regard to the
principles of conflicts of laws of such state.
(g) Severability. If any term or other provision of this Agreement
is invalid, illegal or incapable of being enforced by any law or public policy,
all other terms 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 determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto 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 in order
that the transactions contemplated hereby are consummated as originally
contemplated to the greatest extent possible.
(h) Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto, in whole or in part (whether by
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operation of law or otherwise), without the prior written consent of the other
party and the written undertaking of the assignee to be bound by the terms of
this Agreement, and any attempt to make any such assignment without such consent
shall be null and void. Subject to the preceding sentence, this Agreement will
be binding upon, inure to the benefit of and be enforceable by the parties and
their respective successors and permitted assigns.
(i) Submission to Jurisdiction; Waivers. Each of Teleglobe and each
Stockholder irrevocably agrees that any legal action or proceeding with respect
to this Agreement or for recognition and enforcement of any judgment in respect
hereof brought by the other party hereto or its successors or assigns may be
brought and determined in the Chancery or other Courts of the State of Delaware,
and each of Teleglobe and each Stockholder hereby irrevocably submits with
regard to any such action or proceeding for itself and in respect to its
property, generally and unconditionally, to the exclusive jurisdiction of the
aforesaid courts. Each of Teleglobe and each Stockholder hereby irrevocably
waives, and agrees not to assert, by way of motion, as a defense, counterclaim
or otherwise, in any action or proceeding with respect to this Agreement, (a)
any claim that it is not personally subject to the jurisdiction of the
above-named courts for any reason other than the failure to serve process in
accordance with this Section 8(i), (b) that it or its property is exempt or
immune from jurisdiction of any such court or from any legal process commenced
in such courts (whether through service of notice, attachment prior to judgment,
attachment in aid of execution of judgment, execution of judgment or otherwise),
and (c) to the fullest extent permitted by applicable law, that (i) the suit,
action or proceeding in any such court is brought in an inconvenient forum, (ii)
the venue of such suit, action or proceeding is improper or (iii) this
Agreement, or the subject matter hereof, may not be enforced in or by such
courts.
(j) Specific Performance. Each party acknowledges that if it fails
to perform any of its obligations under this Agreement, immediate and
irreparable harm or injury would be caused to the other party for which money
damages would not be an adequate remedy. In such event, each party agrees that
the other party shall have the right, in addition to any other rights it may
have, to specific performance of this Agreement. Accordingly, if either party
should institute an action or proceeding seeking specific enforcement of the
provisions hereof, the other party in respect of such claim hereby waives the
claim or defense that the other party has an adequate remedy at law and hereby
agrees not to assert in any such action or proceeding the claim or defense that
such a remedy at law exists. Each party further agrees to waive
9
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any requirements for the securing or posting of any bond in connection with
obtaining any such equitable relief.
(k) Expenses. Each of Teleglobe and each Stockholder shall bear its
own expenses incurred in connection with this Agreement and the transactions
contemplated hereby.
(l) Action in Stockholder Capacity Only. No Stockholder makes any
agreement or understanding herein as a director or officer of the Company or in
any capacity other than as a stockholder of the Company. Each Stockholder signs
solely in its capacity as a record holder and beneficial owner of Shares and
nothing herein shall limit or affect any actions taken by a representative of
such Stockholder in such representative's capacity as an officer or director of
the Company.
(m) Obligations Several. The obligations of each Stockholder under
this Agreement shall be several and not joint. No Stockholder shall have any
liability, duty or obligation arising out of or resulting from any failure by
any other Stockholder (or any Affiliate thereof) to comply with the terms and
conditions of this Agreement.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the date first above written.
TELEGLOBE INC.
By: /s/ Charles Sirois
----------------------------------
Name: Charles Sirois
Title: Chairman and Chief
Executive Officer
TROUTT PARTNERS, LTD.
By: The Troutt Family Trust, its
general partner
By: /s/ Kenny A. Troutt
----------------------------------
Name: Kenny A. Troutt
Title: Trustee
THE TROUTT FAMILY TRUST
By: /s/ Kenny A. Troutt
----------------------------------
Name: Kenny A. Troutt
Title: Trustee
AUSTEX ENTERPRISES, LTD.
By: Starah Corporation, its
general partner
By: /s/ Stephen R. Smith
----------------------------------
Name: Stephen R. Smith
Title: President
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EXHIBIT A
STOCKHOLDER CONSENT
Action Taken by the Written
Consent of Stockholders
of
Excel
June 14, 1998
The undersigned stockholders of Excel, a Delaware corporation,
acting by written consent in lieu of a meeting pursuant to Section 228 of the
General Corporation Law of the State of Delaware, hereby irrevocably consent to
the adoption of and adopt the following resolution with respect to the shares of
the common stock, par value $.001 per share, of Excel owned of record by such
stockholders on the date hereof:
RESOLVED, that the Merger Agreement, dated as of June 14, 1998 (the
"Merger Agreement"), among Teleglobe, a corporation amalgamated under the Canada
Business Corporations Act, North Sub, a direct and wholly-owned subsidiary of
Teleglobe, and Excel, a Delaware corporation, a copy of which has been furnished
to the undersigned stockholders, be, and it hereby is, adopted and approved by
the undersigned stockholders.
The action of the stockholders of Excel approved pursuant hereto
shall become effective when one or more consents have been (a) signed by
stockholders holding shares having a majority of the outstanding shares of Excel
Common Stock, being not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted and (b) delivered to Excel at
its principal place of business.
--------------------------------------
--------------------------------------
(Print Name)
By:
-----------------------------------
Name:
--------------------------
Title:
--------------------------
Number of Shares:
--------------------
Address of the stockholder:
--------------------------------------
--------------------------------------
--------------------------------------
Date of Execution:
--------------------
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Schedule I
----------
Share Ownership
---------------
Name and Address Number of Shares
of Shareholder Beneficially Owned
- -------------- ------------------
Troutt Partners, Ltd. 53,000,000
8750 North Central Expressway
Suite 2000
Dallas, Texas 75231
Troutt Family Trust 10,680,000
8750 North Central Expressway
Suite 2000
Dallas, Texas 75231
Austex Enterprises, Ltd. 7,367,933
8750 North Central Expressway
Suite 2000
Dallas, Texas 75231
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Schedule II
-----------
Liens on Shares
[Austex has liens on portions of shares.]
14
