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EXHIBIT
10.9
Voting Support and
Standstill Agreement
This VOTING SUPPORT AND
STANDSTILL AGREEMENT, dated as of July 13, 2007 (the
“Agreement”), is by and between Arbinet-thexchange,
Inc., a Delaware corporation (“Arbinet”), and the
individuals and entities listed on Schedule A hereto
(collectively, the “Stockholders”).
WHEREAS, the Stockholders are
the beneficial owners of shares of common stock, par value $0.001
per share, of Arbinet (the “Common Stock”);
and
WHEREAS, by letter dated
March 19, 2007, Karen Singer, as trustee for the Singer
Children’s Management Trust (the “Trust”),
provided notice to Arbinet of her intention to nominate Shawn
O’Donnell, Jill Thoerle, and Stanley Kreitman for election as
directors of Arbinet at its 2007 annual meeting of stockholders
(the “Stockholder Nomination”); and
WHEREAS, Arbinet has informed
the Stockholders that it intends to provide for, among other
matters, enlargement of the Board of Directors of Arbinet (the
“Board”) from six (6) to nine (9) members and
for the appointment of Shawn O’Donnell, Jill Thoerle, and
Stanley Kreitman to the Board to fill the vacancies resulting
therefrom.
NOW, THEREFORE, in
consideration of the mutual covenants and agreements contained
herein, and for other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties hereto
hereby agree as follows:
Section 1.
Representations.
(a) Binding Agreement:
Authority . Arbinet hereby represents and warrants that this
Agreement has been duly authorized, executed and delivered by
Arbinet, and is a valid and binding obligation of Arbinet,
enforceable against Arbinet in accordance with its terms. Each of
the Stockholders represents and warrants that this Agreement has
been duly authorized, executed and delivered by such Stockholder,
and is a valid and binding obligation of such Stockholder,
enforceable against such Stockholder in accordance with its
terms.
(b) Share Ownership of
Common Stock . Each of the Stockholders hereby represents and
warrants that, as of the date hereof, it is the “beneficial
owner” (as such term is hereinafter defined) of the shares of
Common Stock set forth opposite its name on Schedule A
hereto (the “Shares”), that neither it nor its
Affiliates or Associates (as such terms are hereinafter defined)
beneficially own, or have any rights, options or agreements to
acquire or vote, any other shares of Common Stock, and that no
person or entity other than itself or its Affiliates and Associates
may be deemed the beneficial owner of the Shares set forth on
Schedule A hereto.
(c) Defined Terms .
For purposes of this Agreement, the term “Affiliate”
and “Associate” shall have the respective meanings set
forth in Rule 12b-2 promulgated by the Securities and Exchange
Commission (the “SEC”) under the Securities Exchange
Act of 1934, as
amended (the “Exchange
Act”). For purposes of this Agreement, the terms
“beneficial owner” and “beneficially own”
shall have the same meanings as set forth in Rule 13d-3 promulgated
by the SEC under the Exchange Act, except that a person shall also
be deemed to be the beneficial owner of all shares of Common Stock
that such person has the right to acquire pursuant to the exercise
of any rights in connection with any securities or any agreement,
regardless of when such rights may be exercised and whether they
are conditional.
Section 2.
Directors.
(a) Additional
Directors . Arbinet agrees that as promptly as practicable (but
in no event more than the second (2 nd
) business day) following the execution of this
Agreement by the parties hereto, the Board will increase the size
of the Board to nine (9) members and (i) appoint Shawn
O’Donnell and Jill Thoerle (together with any successor
nominees appointed by the Stockholders pursuant to this Agreement,
the “Class III Nominees”) to fill the newly created
directorships on the Board as Class III directors whose term shall
expire at Arbinet’s 2007 annual meeting of stockholders, and
(ii) appoint Stanley Kreitman to fill the newly created
directorships on the Board as a Class II director whose term shall
expire at Arbinet’s 2009 annual meeting of
stockholders.
(b) Nominations .
Arbinet agrees to nominate Michael J. Ruane, Shawn O’Donnell
and Jill Thoerle for election as Class III directors of Arbinet at
its 2007 annual meeting of stockholders, and use its reasonable
best efforts to cause the election of such persons, each to serve
for a three-year term ending upon the election of directors at
Arbinet’s 2010 annual meeting of stockholders and until his
or her successor is duly elected and qualified.
(c) Committees .
Arbinet agrees to appoint (i) Shawn O’Donnell to the
Compensation Committee of the Board, (ii) Jill Thoerle to the
Audit Committee of the Board, and (iii) Stanley Kreitman to
the Nominating and Corporate Governance Committee of the
Board.
Section 3.
Voting.
(a) 2007 Annual
Meeting . The Stockholders, together with their Affiliates and
Associates, will not submit any stockholder proposal (pursuant to
Rule 14a-8 or otherwise), or any notice of nomination or other
business under Arbinet’s Second Amended and Restated By-laws,
and will not nominate or oppose directors for election at the 2007
annual meeting of stockholders of Arbinet. The Stockholders shall
cause all Shares of Common Stock beneficially owned by them, and/or
their Affiliates or Associates, as of the record date for the 2007
annual meeting of stockholders of Arbinet, to be present for quorum
purposes and to be voted in favor of Michael J. Ruane, Shawn
O’Donnell, and Jill Thoerle at such annual meeting or at any
adjournments or postponements thereof.
(b) Other Meetings .
During the Standstill Period (as such term is hereinafter defined),
the Stockholders shall cause all Shares of Common Stock
beneficially owned by them, and/or their Affiliates or Associates,
as of the record date for any other meeting of stockholders of
Arbinet, to be present for quorum purposes and to be voted, at such
meeting or any adjournments or postponements thereof, in favor of
any matter brought before such meeting
2
upon the recommendation of
the Board by a two-thirds (2/3 rd ) vote of those
members voting; provided, however, that this provision will
not restrict the Stockholders from voting as they deem appropriate
in the exercise of their fiduciary duty with respect to a merger,
tender offer, reorganization, recapitalization, sale of assets or
other similar transaction that is submitted for stockholder
approval at such meeting (it being understood that to the extent
any such proposal includes the proposed election of an alternate
slate of directors in lieu of directors nominated by Arbinet, the
Stockholders, together with their Affiliates and Associates, will
in all events be required to vote in favor of Arbinet’s
nominees).
(c) Further Assurances
. The Stockholders further agree to take all action reasonably
necessary to carry out the intention of this Section 3,
including, without limitation, delivering to Arbinet upon its
written request (and compliance by it with applicable laws)
executed proxies naming the proxies appointed by Arbinet for all
shares of Common Stock beneficially owned by the Stockholders
and/or their Affiliates or Associates as of the record dates for
the aforementioned meetings of stockholders.
Section 4. Standstill
Arrangements . Each of the Stockholders agrees that, during the
period from the date of this Agreement through July 13, 2008 (the
“Standstill Period”), neither it nor any of its
Affiliates or Associates will, without the written consent of
Arbinet, directly or indirectly, solicit, request, advise, assist
or encourage others to (a) effect or seek, offer or propose
(whether publicly or otherwise) to effect, or cause or participate
in or in any way assist any other person to effect or seek, offer
or propose (whether publicly or otherwise) to effect or participate
in, (i) any acquisition of any assets of Arbinet or any of its
subsidiaries; provided, however , that the Stockholders
shall be able to communicate directly to the Board and third
parties on a confidential, non-public basis proposals for a
negotiated acquisition of assets of Arbinet or any of its
subsidiaries without the written consent of Arbinet; provided,
further that any third party that the Stockholders communicate
with shall expressly agree not to make any public disclosure or
public announcement about such communications; (ii) any tender
or exchange offer, merger or other business combination involving
Arbinet or any of its subsidiaries; provided, however , that
the Stockholders shall be able to communicate directly to the Board
and third parties on a confidential, non-public basis proposals for
a negotiated tender or exchange offer, merger or other business
combination involving Arbinet or a
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