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Execution Version
EXHIBIT 99.1
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "AGREEMENT") is made and entered into as of
November 2, 2000, by and between Startec Global Communications Corporation, a
Delaware corporation ("ACQUIROR"), Stars Acquisition Corp., a Delaware
corporation ("MERGER SUB"), Walt Anderson ("ANDERSON") and Gold & Appel
Transfer, S.A., a British Virgin Islands corporation ("G&A"). G&A is a
stockholder (the "STOCKHOLDER") of Capsule Communications, Inc., a Delaware
corporation ("TARGET").
RECITALS
A. Concurrently with the execution of this Agreement, Acquiror,
Merger Sub, G&A, Foundation for the International Non-Governmental Development
of Space, a Delaware corporation ("FINDS") and Target are entering into an
Agreement and Plan of Reorganization (the "REORGANIZATION AGREEMENT") providing
for the merger of Merger Sub with and into Target (such merger, or any
alternative merger structure adopted pursuant to the Reorganization Agreement,
the "MERGER"), on the terms and subject to the conditions set forth therein (a
draft of which has been provided to G&A and Anderson). Unless otherwise
indicated, capitalized terms not defined herein have the meanings set forth in
the Reorganization Agreement.
B. G&A is the record holder and beneficial owner of such number and
class of shares of the outstanding capital stock of Target as is indicated on
the final page of this Agreement (the "G&A SHARES").
C. Anderson is the Secretary of G&A and currently has
power-of-attorney to control G&A's actions vis-a-vis the G&A Shares.
D. As a material inducement to enter into the Reorganization
Agreement, Acquiror and Merger Sub (1) are requiring that G&A agree, and G&A is
willing, among other things, to agree (a) to vote the G&A Shares and any other
shares of capital stock of Target hereafter acquired by it so as to facilitate
consummation of the Merger, and (b) not to engage in certain solicitation
activities relating to an Acquisition Proposal, and (2) are requiring that
Anderson agree, and Anderson is willing, among other things, to agree to cause
the Stockholder to fulfill all of its obligations under this Agreement.
NOW, THEREFORE, in consideration of these premises and mutual
agreements, covenants and provisions herein contained, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
1. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER AND ANDERSON.
G&A and Anderson hereby jointly and severally represent and warrant to Acquiror
and Merger Sub as follows:
(i) G&A is the record and beneficial owner of and has the
sole right, power and authority to (a) vote, or direct the voting of, (b)
dispose, or direct the disposal of, and
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(c) convert, demand appraisal rights with respect to, and agree to all of the
matters set forth in this Agreement with respect to, the G&A Shares. G&A has
good and marketable title to the G&A Shares. The G&A Shares are free and clear
of any Lien, claim, option, subscription, warrant, put, call, charge, right of
first refusal, proxy or voting restrictions, rights of conversion or exchange,
or other encumbrance or restriction except for the Lien created on 5,671,300 G&A
Shares pursuant to that certain Amended and Restated Stock Pledge Agreement
dated as of October 18, 2000 by and among G&A, FINDS, Revision LLC, Anderson and
Donald A. Burns, in the form attached hereto as ANNEX II (the "BURNS PLEDGE
AGREEMENT"). Other than pursuant to this Agreement and the Burns Pledge
Agreement, G&A is not obligated under any agreement or understanding of any
character, to transfer or sell any G&A Shares or any New Shares (as defined
below). G&A will transfer and deliver to Acquiror immediately upon Closing valid
title to the G&A Shares and any New Shares then owned by G&A free and clear of
any Lien, claim, option, subscription, warrant, put, call, charge, right of
first refusal, proxy or voting restrictions, rights of conversion or exchange,
or other encumbrance or restriction, and together with all rights now or
hereafter attaching to such shares.
(ii) G&A does not own, directly or indirectly, either
beneficially or of record, or manage or control, any shares of capital stock of
Target, or any securities or other interests convertible into or exercisable or
exchangeable for, any shares of capital stock of Target, other than the G&A
Shares and any shares of the capital stock of Target owned by FINDS, as to which
G&A disclaims beneficial ownership. For the purposes of this Agreement,
beneficial ownership has the meaning set forth in Rule 13d-3 of the Exchange
Act.
(iii) Each of G&A and Anderson has full legal capacity,
power and authority to make, enter into and carry out the terms of this
Agreement, the Reorganization Agreement in the case of G&A, the Stock
Restriction Agreement, and all other documents, certificates and instruments
prepared in connection with the Merger (collectively, the "TRANSACTION
DOCUMENTS"). G&A is a corporation duly organized and validly existing in good
standing under the laws of the British Virgin Islands, and has all corporate
powers required to carry on its business as now conducted. The execution and
delivery of the Transaction Documents by each of G&A and Anderson, the
performance by each of G&A and Anderson of its obligations thereunder, and the
consummation of the transactions contemplated thereby, are within the corporate
powers of G&A, have been duly and validly authorized by all necessary action on
the part of G&A, and no other proceedings on the part of G&A or Anderson are
necessary or advisable, and, assuming due authorization, execution and delivery
by Acquiror and Merger Sub, each Transaction Document constitutes a legal, valid
and binding obligation of each of G&A and Anderson, enforceable against each in
accordance with its terms. The execution and delivery of each Transaction
Document by G&A and Anderson does not, and the performance of G&A's obligations
and Anderson's obligations thereunder will not, conflict with, violate, 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 right to
terminate, amend, accelerate or cancel any right or obligation under, or result
in the creation of any Lien on any G&A Shares or New Shares (as hereinafter
defined) pursuant to, the certificate of incorporation, bylaws or analogous
documents of G&A or any voting agreement, stockholders agreement, voting trust,
trust agreement, pledge agreement, loan or credit agreement, note, bond,
mortgage, indenture, contract, lease, or any other agreement, concession,
license, permit, franchise or other instrument or obligation to which G&A or
Anderson is a party or by which G&A or Anderson or the G&A Shares or New Shares
are or will be bound or affected, or violate any judgment, order,
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notice, decree, statute, law, ordinance, rule or regulation applicable to G&A or
any of its assets or to Anderson.
(iv) Other than the filing of the Certificate of Merger in
accordance with Delaware law and compliance with any applicable HSR
requirements, no filing with, and no permit, authorization, consent or approval
of, any Governmental Entity or any other person or entity is necessary or
advisable for the execution, delivery or performance of any Transaction Document
by G&A and by Anderson.
(v) There is no action, suit, investigation or proceeding
pending against, or to the knowledge of G&A or Anderson, threatened against or
affecting, G&A or any of its subsidiaries, or Anderson, or any of their
respective properties, before any Governmental Entity which in any manner
challenges or seeks to prevent, enjoin, alter or materially delay the Merger or
any of the other transactions contemplated by the Transaction Documents. Neither
G&A nor Anderson is aware of any fact or condition now existing that may give
rise to any action, suit, proceeding, claim, arbitration or investigation
against Target or any of the Target Subsidiaries or any of its or their
properties or any of its or their officers of directors (in their capacities as
such).
(vi) Neither G&A nor Anderson, directly or through any
subsidiary, director, officer or affiliate, is currently in discussions with any
third party in relation to any Acquisition Proposal.
(vii) There is no outstanding Liability (actual or
contingent) owing from Target to G&A, Anderson, or any affiliate or associate
thereof, nor is there any Liability owing to Target from any such person.
(viii) Except for Ferris, Baker Watts, Inc. (whose fees and
expenses shall be borne by the Company in the amount of $510,000), there is no
investment banker, broker, finder or other intermediary which has been retained
by or is authorized to act on behalf of G&A or Anderson or any of G&A's
subsidiaries who might be entitled to a fee or commission upon consummation of
the transactions contemplated by this Agreement and by the other Transaction
Documents.
(ix) Anderson is the Secretary of G&A and has a valid and
binding power-of-attorney to control the voting and disposition of the G&A
Shares. Other than pursuant to this Agreement, and the Burns Pledge Agreement,
Anderson is not obligated under any agreement or understanding of any character,
to transfer, vote or sell any G&A Shares or any New Shares. Anderson does not
own, directly or indirectly, either beneficially or of record, any shares of
capital stock of Target or any securities or other interests convertible into or
exercisable or exchangeable for, any shares of capital stock of Target other
than the G&A Shares (and any shares of the capital stock of Target owned by
FINDS, as to which Anderson disclaims beneficial ownership). For the purposes of
this Agreement, beneficial ownership has the meaning set forth in Rule 13d-3 of
the Exchange Act.
(x) Anderson and G&A participated in the preparation of the
Registration Statement and in conferences with officers and representatives of
Target, Acquiror and FINDS at which the contents of the Registration Statement
and related matters were discussed. Nothing has come to the attention of either
G&A or Anderson that would lead it or
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him to believe that the Registration Statement or any amendment thereto
(including documents incorporated by reference therein) as of the date thereof
or as of the date hereof, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or necessary to
make the statements therein not misleading.
(xi) Neither G&A nor Anderson owns, directly or indirectly,
either beneficially or of record, or manages or controls, any shares of capital
stock of Acquiror, or any securities or other interests convertible into or
exercisable or exchangeable for, any shares of capital stock of Acquiror.
2. COVENANTS OF THE STOCKHOLDER AND ANDERSON.
2.1 AGREEMENT TO VOTE SHARES. The Stockholder hereby agrees
that during the time this Agreement is in effect, at any meeting of the
stockholders of Target, however called (whether annual, special or adjourned),
and in any action by written consent of the stockholders of Target, such
Stockholder shall vote or cause to be voted the G&A Shares and any New Shares
(as hereinafter defined) and any other equity interests in Target over which
Stockholder has the sole or joint right to vote or control the voting (or
execute, or control the execution of, as stockholder, any consent, certificate
or other document relating to the Target that the law of the State of Delaware
may permit or require): (i) in favor of (A) approval and adoption of the
Reorganization Agreement and the Merger, and (B) any matter or transaction that
is reasonably required to effect the Merger and the other transactions
contemplated by the Reorganization Agreement, and (ii) against any Acquisition
Proposal, and against any other matter which could reasonably be expected to
facilitate any Acquisition Proposal. The Stockholder shall be present, in person
or by proxy, at all meetings of shareholders of the Target or at any adjournment
or adjournments thereof so that all G&A Shares and New Shares are counted for
the purpose of determining the presence of a quorum at such meetings.
2.2 NEW SHARES. The Stockholder and Anderson hereby agree that
it shall not, and shall not permit any affiliate or associate, or any company,
trust or other entity controlled in whole or in part by it to, without the prior
written consent of Acquiror, purchase or otherwise acquire any shares of capital
stock or other equity interest in Target or any other interest convertible into
or exercisable or exchangeable therefor, or agree to do so, whether
conditionally or unconditionally. Should the Stockholder or Anderson obtain
ownership of additional interests in Target through stock split or dividend, it
will notify Acquiror in writing promptly of such event. The Stockholder and
Anderson agree that any shares of capital stock or other equity interest of
Target or any other interest convertible into or exercisable or exchangeable
therefor that the Stockholder or Anderson, with the prior written consent of
Acquiror, purchases or with respect to which the Stockholder or Anderson
otherwise acquires record or beneficial ownership (including, without
limitation, by stock split or dividend, by exercise or grant of options,
warrants or other convertible or derivative securities, by exchange or
conversion of other instruments, or otherwise) after the execution of this
Agreement and prior to the Expiration (as hereinafter defined) ("NEW SHARES")
shall be subject to the terms and conditions of this Agreement to the same
extent as if they constituted G&A Shares. As used herein, the term "EXPIRATION"
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
Reorganization Agreement, or (ii) such date and time as the Reorganization
Agreement shall have been terminated in accordance with its terms.
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2.3 PROHIBITION AGAINST TRANSFER.
(i) Each of Anderson and the Stockholder agrees that it
shall not, and shall not permit any affiliate or associate, or any company,
trust or other entity controlled in whole or in part by it, to (a) transfer
(except as may be specifically required by court order or by operation of law,
in which case any such transferee shall agree to be bound hereby), tender,
assign, sell, exchange, pledge, hypothecate, or offer to transfer or sell or
otherwise dispose of or encumber or create or suffer to exist any Lien, claim,
option, subscription, warrant, put, call, charge, right of first refusal, proxy
or voting restrictions, or rights of conversion or exchange, or other
encumbrance or restriction, or grant any proxy or power of attorney, deposit
into a voting trust or enter into a voting agreement, understanding or
arrangement with respect to, any G&A Shares or any New Shares, or make any offer
or agreement relating thereto, at any time prior to the Expiration, or (b) take
any action that would have the effect of preventing, delaying or disabling
Anderson or the Stockholder from performing their obligations under this
Agreement. Notwithstanding the foregoing, the Stockholder retains the right to
pledge the G&A Shares and the New Shares in the normal course of business as
collateral for loans that may be extended to it, provided that the pledgee
agrees in writing to all of the terms and restrictions of this Agreement and the
Stock Restriction Agreement to the same extent as the Stockholder.
(ii) Each of Anderson and the Stockholder understands and
agrees that if Anderson or such Stockholder attempts to transfer, vote or
provide any other person with the authority to transfer or vote any of the G&A
Shares or New Shares other than in compliance with this Agreement, Target shall
not, and the Stockholder and Anderson hereby unconditionally and irrevocably
instructs Target to not, permit any such transfer on its books and records,
issue a new certificate representing any of the G&A Shares or New Shares or
record such vote unless and until the Stockholder and Anderson shall have
complied with the terms of this Agreement.
2.4 INDEMNIFICATION.
(i) Anderson and the Stockholder (each, an "INDEMNIFYING
PARTY") undertakes and agrees, jointly and severally, to indemnify and hold
harmless Acquiror and Merger Sub, and Target after the Closing, and each of
their respective current and future officers, directors, agents and employees,
and each person, if any, who now and hereafter controls or may control Acquiror,
Merger Sub or Target within the meaning of the Securities Act (each an
"INDEMNIFIED PERSON") from and against any and all losses, costs, damages,
liabilities and expenses arising from claims, demands, actions, causes of
action, or otherwise including, without limitation, reasonable legal fees, net
of any recoveries under existing insurance policies or indemnities from third
parties, arising out of any misrepresentation or nonfulfillment or breach of or
default in connection with any of the undertakings, representations, warranties,
covenants and agreements given or made by such Indemnifying Party in this
Agreement, or caused by or attributable to such Indemnifying Party or to its
agents, employees, or representatives. The indemnification set forth herein
shall be in addition to any liability that Anderson or the Stockholder may
otherwise have to the Indemnified Persons under the Reorganization Agreement or
otherwise. Nothing in this Agreement shall limit the liability of Anderson or
the Stockholder for any breach of any representation, warranty, undertaking,
covenant or agreement if the Merger is not consummated.
(ii) Promptly after receiving definitive notice of any claim
in respect of which an Indemnified Person may seek indemnification under this
Agreement, such Indemnified
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Person shall submit notice thereof to the applicable Indemnifying Party. The
omission by the Indemnified Person so to notify any Indemnifying Party of any
such claim shall not relieve any Indemnifying Party from any liability they may
have hereunder except to the extent that (a) such liability was caused or
increased by such omission, or (b) the ability of such Indemnifying Party to
reduce or defend against such liability was adversely affected by such omission.
The failure of the Indemnified Person so to notify any Indemnifying Party of any
such Claim shall not relieve Anderson or the Stockholder from any liability they
may have otherwise than hereunder. The Indemnified Persons and the Indemnifying
Parties shall cooperate with and assist one another in the defense of any claim
and any action, suit or proceeding arising in connection therewith. The
Indemnifying Party shall have the right to participate in any defense of such
claim. The Indemnified Person shall have the right in its sole discretion to
settle any such claim; PROVIDED, HOWEVER, that such Indemnified Person may not
effect the settlement of any such claim without the consent of such Indemnifying
Party, which consent shall not be unreasonably withheld, conditioned or delayed.
In the event that any Indemnifying Party has consented to any such settlement,
such consent shall be binding on the other as if the Stockholder and Anderson
gave such consent.
2.5 IRREVOCABLE PROXY. At Acquiror's request, the Stockholder
and Anderson agree to promptly execute and deliver to Acquiror a proxy in the
form attached hereto as ANNEX I (the "PROXY"), which shall be irrevocable, with
respect to the G&A Shares, and any New Shares acquired by it. The parties agree
that, by reason of the Reorganization Agreement, the Proxy is a proxy coupled
with an interest in accordance with Section 212 of the Delaware General
Corporation Law.
2.6 Anderson hereby covenants and agrees to cause the
Stockholder to fulfill in all respects its obligations hereunder.
2.7 ADDITIONAL DOCUMENTS. Anderson and the Stockholder hereby
covenant and agree to execute and deliver all additional documents and
instruments reasonably required to carry out the intent of this Agreement.
2.8 NO SOLICITATION. The Stockholder and Anderson agree that
neither they nor any of their respective officers, directors, or employees (as
applicable) shall, and the Stockholder and Anderson shall direct and use
commercially reasonable efforts to cause their associates, agents and
representatives (including, without limitation, any investment banker, attorney,
or accountant retained by them) not to, directly or indirectly, take any action
to solicit, encourage, entertain, review, initiate or participate in any
Acquisition Proposal, or engage in any negotiations concerning, or provide any
confidential information or data to, or have any discussions with, any person
relating to an Acquisition Proposal. As of the date hereof, neither the
Stockholder nor Anderson is engaged in any negotiations or discussions relating
to an Acquisition Proposal, and is not assisting, cooperating with or
encouraging any Acquisition Proposal. The Stockholder and Anderson shall
promptly notify Acquiror orally and in writing of, and keep it fully and
currently informed on, any Acquisition Proposal or any inquiries with respect
thereto, such written notification to include the identity of the person making
such inquiry or Acquisition Proposal and such other information with respect
thereto as is reasonably necessary to apprise Acquiror of the material terms of
such Acquisition Proposal. The Stockholder and Anderson shall give Acquiror
contemporaneous written notice upon engaging in discussions or negotiations
with, or providing any information to, any such person regarding an Acquisition
Proposal. Each party to this Agreement acknowledges that this SECTION 2.8 was a
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significant inducement for Acquiror to enter into this Agreement and the
Reorganization Agreement and the absence of such provision would have resulted
in either (i) a material reduction in the Merger consideration to be paid to the
Stockholder, Anderson, and the other stockholders of Target or (ii) a failure to
induce Acquiror to enter into this Agreement or the Reorganization Agreement.
2.9 The Stockholder and Anderson will take such further actions,
if any, as are necessary to waive any rights the Stockholder and Anderson may
have under Delaware Law to make a demand for appraisal with respect to the G&A
Shares or New Shares it owns.
2.10 The Stockholder and Anderson hereby agree that through and
until the Expiration, they shall not, and shall not permit any affiliate or
associate, or any company, trust or other entity controlled in whole or in part
by it or him to, purchase or otherwise acquire any shares of capital stock or
other equity interest in Acquiror or any other interest convertible into or
exercisable or exchangeable therefor, or agree to do so, whether conditionally
or unconditionally.
2.11 The Stockholder and Anderson undertake to promptly disclose
to Acquiror, in writing, any matter or thing which may arise or become known to
it or him after the date hereof and before the Effective Date which is
inconsistent with any of the above representations, warranties or covenants or
which might make any of them inaccurate or misleading if they were given at any
and all times from the date hereof down to the Effective Date.
3. CONSENT AND WAIVER. Anderson and the Stockholder hereby give any
consents or waivers, without the payment of any premium, payments, penalties or
other payment of any consideration of any kind whatsoever or triggering of any
change of control or other rights, that are required for the consummation of the
Merger under the terms of any agreements to which Anderson or the Stockholder is
a party or pursuant to any other rights Anderson or the Stockholder may have.
4. SURVIVAL. This Agreement shall terminate upon Expiration, except
Sections 1, 2.4 and 5 hereof which shall survive termination of this Agreement
5. MISCELLANEOUS.
5.1 SEVERABILITY. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, then the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated. 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.
5.2 INTERPRETATION. The words "include," "includes," and
"including" when used herein shall be deemed in each case to be followed by the
words "without limitation."
5.3 BINDING EFFECT AND ASSIGNMENT. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns, but, except as
otherwise specifically provided herein, neither
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this Agreement nor any of the rights, interests or obligations of the parties
hereto may be assigned by either of the parties hereto (whether by operation of
law or otherwise) without prior written consent of the other parties hereto.
5.4 AMENDMENTS AND MODIFICATION. This Agreement may not be
modified, amended, altered or supplemented except upon the execution and
delivery of a written agreement executed by the parties hereto.
5.5 SPECIFIC PERFORMANCE; INJUNCTIVE RELIEF. The parties hereto
acknowledge that Acquiror will be irreparably harmed and that there will be no
adequate remedy at law for a violation of any of the covenants or agreements of
the Stockholder or Anderson set forth herein. Therefore, it is agreed that, in
addition to any other remedies that may be available to Acquiror upon any such
violation, Acquiror shall have the right to enforce such covenants and
agreements by specific performance, injunctive relief or by any other means
available to Acquiror at law or in equity and each of Anderson and the
Stockholder hereby waive any and all defenses which could exist in its favor in
connection with such enforcement and waive any requirement for the security or
posting of any bond in connection with such enforcement.
5.6 NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and deemed to be sufficient if
delivered in person, by telecopy or sent by mail (registered or certified mail,
postage prepaid, return receipt requested) or nationally-recognized courier
(prepaid) to the respective parties as follows:
IF TO ACQUIROR:
Startec Global Communications Corporation
10411 Motor City Drive
Bethesda, MD 20817
Telecopy: (301) 365-8787
Attn: Yolanda Stefanou Faerber, Senior Vice President and
General Counsel
WITH A COPY TO:
Piper Marbury Rudnick & Wolfe LLP
6225 Smith Avenue
Baltimore, MD 21209-3600
Telecopy: (410) 580-3001
Attn: Wm. David Chalk
IF TO G&A OR ANDERSON:
C/o Revision LLC
1023 31st Street
Suite 300
Washington, DC 20007
Telecopy: (202) 736-5065
Attn: Walt Anderson
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WITH A COPY TO:
Swidler Berlin Shereff Friedman, LLP
3000 K Street, N.W., Suite 300
Washington, D.C. 20007
Telecopy: (202) 424-7643
Attn: Sean P. McGuinness
or to such other address as any party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall only be
effective upon receipt.
5.7 GOVERNING LAW; WAIVER OF JURY TRIAL. THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF
THE STATE OF DELAWARE WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF
LAW PROVISION OR RULE (WHETHER OF THE STATE OF DELAWARE OR ANY OTHER
JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION
OTHER THAN THE STATE OF DELAWARE. EACH OF THE PARTIES HERETO IRREVOCABLY
CONSENTS TO THE EXCLUSIVE JURISDICTION OF ANY COURT LOCATED WITHIN THE STATE OF
DELAWARE, IN CONNECTION WITH ANY MATTER BASED UPON OR ARISING OUT OF THIS
AGREEMENT OR THE REORGANIZATION AGREEMENT OR THE MATTERS CONTEMPLATED HEREIN,
AGREES THAT PROCESS MAY BE SERVED UPON THEM IN ANY MANNER AUTHORIZED BY THE LAWS
OF THE STATE OF DELAWARE FOR SUCH PERSONS AND WAIVES AND COVENANTS NOT TO ASSERT
OR PLEAD ANY OBJECTION WHICH THEY MIGHT OTHERWISE HAVE TO SUCH JURISDICTION AND
SUCH PROCESS. THE PARTIES HERETO HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVE THE RIGHT ANY OF THEM MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
AGREEMENT AND ANY OTHER TRANSACTION DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE
OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE PARTIES
HERETO. THIS PROVISION IS A MATERIAL INDUCEMENT FOR ACQUIROR TO ENTER INTO THIS
AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS.
5.8 ENTIRE AGREEMENT. This Agreement contains the entire
understanding of the parties in respect of the subject matter hereof, and
supersedes all prior negotiations, agreements and understandings, both written
and oral, between the parties with respect to such subject matter. This
Agreement is not intended to confer upon any other person any rights or remedies
hereunder.
5.9 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 parties, it being understood that all
parties need not sign the same counterpart.
5.10 EFFECT OF HEADINGS. The section headings herein are for
convenience only and shall not affect the construction or interpretation of this
Agreement.
5.11 LEGENDS. Any stock certificates representing the G&A Shares
or the New Shares shall be legended at the request of Acquiror to reflect the
agreements set forth in this Agreement.
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5.12 REMEDIES CUMULATIVE. Except as otherwise provided herein,
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.
5.13 RULES OF CONSTRUCTION. The parties hereto agree that they
have been represented by counsel during the negotiation, preparation and
execution of this Agreement and, therefore, 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.
[SIGNATURE PAGES FOLLOW]
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Execution Version
IN WITNESS WHEREOF, the parties have caused this Voting Agreement to
be duly executed on the date and year first above written.
GOLD & APPEL TRANSFER, S.A.
ATTEST:
/s/ Suzanna Kang (SEAL) /s/ Walt Anderson (SEAL)
--------------------------- -----------------------------------
Suzanna Kang Name: Walt Anderson
Title: Attorney-in-fact
Number and Class(es) of Shares Held Beneficially or of Record by Gold & Appel
Transfer, S.A. COMMON STOCK: 14,461,301 SHARES OWNED BENEFICIALLY AND 14,461,301
SHARES OWNED OF RECORD.
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
STARTEC GLOBAL COMMUNICATIONS CORPORATION
ATTEST:
/s/ Yolanda Stefanou Faerber (SEAL) /s/ Ram Mukunda (SEAL)
------------------------------ -----------------------------------
Yolanda Stefanou Faerber Name: Ram Mukunda
Secretary Title: President and CEO
ATTEST: STARS ACQUISITION CORP.
/s/ Yolanda Stefanou Faerber (SEAL) /s/ Ram Mukunda (SEAL)
----------------------------- -----------------------------------
Yolanda Stefanou Faerber Name: Ram Mukunda
Secretary Title: President and CEO
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
ATTEST: WALT ANDERSON
/s/ Suzanna Kang (SEAL) /s/ Walt Anderson (SEAL)
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Suzanna Kang Walt Anderson, Individually
[END SIGNATURE PAGES]
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ANNEX I
IRREVOCABLE PROXY
The undersigned stockholder of Capsule Communications, Inc., a
Delaware corporation ("TARGET"), hereby irrevocably (to the fullest extent
permitted by the General Corporation Law of the State of Delaware (the "DGCL"))
appoints Ram Mukunda, the Chief Executive Officer, and Prabhav Maniyar, the
Chief Financial Officer, respectively, of Startec Global Communications
Corporation, a Delaware corporation ("ACQUIROR"), and each of them, or any other
designee of Acquiror, 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 Target that now are or hereafter may be owned beneficially or of record
by the undersigned, and any and all other shares or securities of Target issued
or issuable in respect thereof, or otherwise acquired by the undersigned on or
after the date hereof (collectively, the "SHARES") in accordance with the terms
of this Irrevocable Proxy. The Shares owned beneficially or of record by the
undersigned stockholder of Target as of the date of this Irrevocable Proxy are
listed on the final page of this Irrevocable Proxy. Upon the undersigned's
execution of this Irrevocable Proxy, any and all prior proxies given by the
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 (as defined below).
This Irrevocable Proxy is irrevocable (to the fullest extent provided
by the DGCL), is coupled with an interest and is granted in consideration of
Acquiror entering into the Agreement and Plan of Reorganization (the
"REORGANIZATION AGREEMENT") dated as of November 2, 2000 by and among Acquiror,
Stars Acquisition Corp., a Delaware corporation ("MERGER SUB"), Target, Gold &
Appel Transfer, S.A., and Foundation for the International Non-Governmental
Development of Space, which agreement provides for the merger of Merger Sub with
and into Target (the "MERGER") and in connection with a Voting Agreement dated
as of November 2, 2000, by and among Acquiror, Merger Sub, Gold & Appel
Transfer, S.A. and Walt Anderson. As used herein, the term "EXPIRATION" 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 Reorganization
Agreement, or (ii) such date and time as the Reorganization Agreement shall have
been terminated in accordance with its terms. Unless otherwise indicated,
capitalized terms not defined herein have the meanings set forth in the
Reorganization Agreement.
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, to act as the undersigned's attorney and proxy to vote the Shares,
and to exercise all voting and other rights of the undersigned with respect to
the Shares (including, without limitation, the power to execute and deliver
written consents pursuant to the DGCL), at every annual, special or adjourned
meeting of the stockholders of Target, and in every written consent in lieu of
such meeting as follows: (i) in favor of (A) approval and adoption of the
Reorganization Agreement and the Merger, and (B) any matter or transaction that
is reasonably required to effect the Merger and the other transactions
contemplated by the Reorganization Agreement, and (ii) against any Acquisition
Proposal, and against any other matter which could reasonably be expected to
facilitate any Acquisition Proposal. The attorneys and proxies named above may
not exercise this Irrevocable Proxy on any other matter except as provided
above. The undersigned stockholder may vote the Shares on all other matters.
<PAGE>
All authority herein conferred shall survive the death or incapacity
of the undersigned and any obligation of the undersigned hereunder shall be
binding upon the heirs, personal Representatives, successors and assigns of the
undersigned.
This Irrevocable Proxy is coupled with an interest as aforesaid and is
irrevocable.
Any obligation of the undersigned hereunder shall be binding upon the
heir, personal representatives, successors and assigns of the undersigned. THIS
PROXY IS IRREVOCABLE.
Dated: ____________, 2000
STOCKHOLDER:
GOLD & APPEL TRANSFER, S.A.
By: (SEAL)
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Its:
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______ Shares of Common Stock owned beneficially and _______ shares owned of
record.
