Voting Agreement - Talk.com Inc. and Access One Communications Corp.
VOTING AGREEMENT
THIS VOTING AGREEMENT (the "Agreement") is dated as of March
24, 2000 by and among TALK.COM, INC., a Delaware corporation ("Parent"), ALADDIN
ACQUISITION CORP., a Delaware corporation and a wholly-owned subsidiary of
Parent ("Parent Subsidiary"), ACCESS ONE COMMUNICATIONS CORP., a New Jersey
corporation ("Company") and all of the other signatories identified on the
signature pages hereto (collectively, the "Stockholder").
W I T N E S S E T H:
WHEREAS, Parent, Company and Parent Subsidiary are entering
into an Agreement and Plan of Merger of even date herewith (the "Merger
Agreement"), pursuant to which Parent will acquire all of the outstanding shares
of voting common stock, $0.001 par value per share and all derivative securities
issued by the Company convertible or exercisable into such Company voting common
stock (collectively, the "Common Stock"), of the Company pursuant to a merger of
Parent Subsidiary with and into Company (the "Merger");
WHEREAS, Stockholder collectively owns, as of the date hereof,
15,885,786 shares of Common Stock (the "Existing Shares," and together with any
shares of Common Stock acquired by Stockholder after the date hereof and prior
to the termination hereof, the "Shares") as reflected on Exhibit A attached
hereto;
WHEREAS, as a condition to their willingness to enter into the
Merger Agreement, and in reliance on Stockholder's representations, warranties,
covenants and agreements hereunder, Parent and Parent Subsidiary have requested
that Stockholder agree, and Stockholder has agreed, to enter into this
Agreement; and
WHEREAS, this Agreement is being entered into concurrently
with the execution of the Merger Agreement.
NOW, THEREFORE, in consideration of the representations,
warranties, covenants and agreements herein contained, the parties agree as
follows. Capitalized terms not otherwise defined herein shall have the meaning
set forth in the Merger Agreement.
1. Agreement to Vote. Stockholder hereby agrees that, during the term of this
Agreement, at any meeting of the stockholders of Company, however called, and in
any action by consent of the stockholders of Company, however taken, Stockholder
shall cause the Shares to be present for quorum purposes and to vote at such
meeting and shall cause the Shares to be voted in any such consent, and in
either case, shall: (a) vote the Shares in favor of the adoption of the Merger
Agreement; (b) vote the Shares against any action or agreement that would, or
could reasonably be expected to, result in a breach of any covenant,
representation or warranty or any other obligation or agreement of Company or
its stockholders under the Merger Agreement or that would result in a failure to
satisfy any condition on the part of the Company or its stockholders to be
satisfied under the Merger Agreement; (c) vote the Shares against any action or
agreement
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that would, or could reasonably be expected to, impede, interfere with, delay,
postpone or attempt to discourage the Merger, including but not limited to (i)
any extraordinary corporate transaction (other than the Merger), such as a
merger, other business combination, recapitalization, reorganization or
liquidation, involving the Company (a "Business Combination Transaction"), (ii)
a sale or transfer of a material amount of assets of the Company or any of its
Subsidiaries, (iii) any change in the management or board of directors of the
Company, except as otherwise agreed to in writing by Parent, (iv) any material
change in the present capitalization of the Company or (v) any other material
change in the corporate structure or business of the Company; and (d) without
limiting the foregoing, consult with Parent prior to any such meeting or consent
and, in either case, vote the Shares in such manner as is determined by Parent
to be in compliance with the provisions of this Section 1. Stockholder
acknowledges receipt and review of a copy of the Merger Agreement. In
furtherance of this Section 1, Stockholder hereby irrevocably grants to, and
appoints, Parent, and any individual designated in writing by Parent, and each
of them individually, as its proxy and attorney-in-fact (with full power of
substitution), for and in its name, place and stead, to vote the Shares at any
meeting of the stockholders of the Company called with respect to any of the
matters specified in this Agreement. Stockholder understands and acknowledges
that Parent is entering into the Merger Agreement in reliance on Stockholder's
execution and delivery of this Agreement. Stockholder hereby affirms that the
irrevocable proxy set forth in this Section 1 is given in connection with the
execution of the Merger Agreement, and that such irrevocable proxy is given to
secure the performance of the duties of Stockholder under this Agreement. Except
as otherwise provided for herein, Stockholder hereby (i) affirms that the
irrevocable proxy is coupled with an interest and may under no circumstances be
revoked, (ii) ratifies and confirms all that the proxies appointed hereunder may
lawfully do or cause to be done by virtue hereof and (iii) affirms that this
irrevocable proxy is executed and intended to be irrevocable in accordance with
the provisions of Section 14A:5-19 of the New Jersey Business Corporation Act.
Notwithstanding any other provision of this Agreement, the irrevocable proxy
granted hereunder shall automatically terminate on the termination of this
Agreement pursuant to Section 4.
2. Representations and Warranties of Stockholder. Stockholder represents and
warrants to Parent and Parent Subsidiary with respect to that part of the
Existing Shares owned by it as follows:
2.1 Ownership of Shares. On the date hereof, Stockholder is the sole record
and beneficial owner of the Existing Shares, except as set forth on Schedule 2.1
attached hereto. For purposes of this Agreement, beneficial ownership of
securities shall be determined in accordance with Rule 13d-3 under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"). On the date
hereof and at the Closing Date, neither Stockholder nor any Affiliate of
Stockholder (other than Company) owns or will own, of record or beneficially,
solely or jointly with others, (i) any shares of Common Stock other than the
Existing Shares and shares of Common Stock acquired on the exercise of employee
stock options granted by the Company or warrants issued by the Company (as
listed on Schedule 2.1 attached hereto) or (ii) any securities convertible into
or exchangeable or exercisable for shares of Common Stock or any rights to
acquire any shares of Common Stock other than employee stock options granted by
Company or warrants issued by the Company (as listed on Schedule 2.1 attached
hereto). Except as set forth on Schedule 2.1 attached hereto, Stockholder
currently has with respect to the Existing Shares, and at Closing will have with
respect to the Shares, good, valid and marketable title, free and clear of all
liens,
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encumbrances, restrictions, options, warrants, rights to purchase, voting
agreements or voting trusts, and claims of every kind (other than the
encumbrances created by this Agreement and other than restrictions on transfer
under applicable federal and state securities laws).
2.2 Power; Binding Agreement. Stockholder has the full legal right, power
and authority to enter into and perform all of Stockholder's obligations under
this Agreement. The execution, delivery and performance of this Agreement by
Stockholder will not violate any other agreement to which Stockholder is a party
including, without limitation, any voting agreement, stockholder agreement or
voting trust. This Agreement has been duly executed and delivered by Stockholder
and constitutes a legal, valid and binding agreement of Stockholder, enforceable
in accordance with its terms. Neither the execution or delivery of this
Agreement nor the consummation by Stockholder of the transactions contemplated
hereby will (a) require any consent or approval of or filing with any third
party, including any governmental or other regulatory body, other than filings
required under the federal securities laws and consents or waivers listed on
Schedule 2.2 attached hereto, all of which have been obtained, or (b) constitute
a violation of, conflict with or constitute a default under, any contract,
commitment, agreement, understanding, arrangement or other restriction of any
kind to which Stockholder is a party or by which Stockholder or its property is
bound.
2.3 Finder's Fees. No person or entity is, or will be, entitled to any
commission or finder's fees from Stockholder in connection with this Agreement
or the transactions contemplated herein exclusive of any commission or finder's
fees referred to in the Merger Agreement.
3. Representations and Warranties of Parent and Parent Subsidiary. Each of
Parent and Parent Subsidiary represents and warrants to Stockholder as follows:
3.1 Authority. Each of Parent and Parent Subsidiary has the full legal
right, power and authority to enter into and perform all of its obligations
under this Agreement. The execution, delivery and performance of this Agreement
by each of Parent and Parent Subsidiary will not violate or conflict with any
other agreement to which it is a party. This Agreement has been duly executed
and delivered by each of Parent and Parent Subsidiary and constitutes a legal,
valid and binding agreement of each of Parent and Parent Subsidiary, enforceable
against Parent and Parent Subsidiary in accordance with its terms. Neither the
execution or delivery of this Agreement nor the consummation of the transactions
contemplated hereby by each of Parent and Parent Subsidiary will (a) require any
consent or approval of or filing with any third party, including any
governmental or other regulatory body, other than filings required under the
federal securities laws, or (b) constitute a violation of, conflict with or
default under, any contract, commitment, agreement, understanding, arrangement
or other restriction of any kind to which Parent or Parent Subsidiary is a party
or by which either of them or their property is bound.
3.2 Finder's Fees. No person or entity is, or will be, entitled to any
commission or finder's fee from Parent or Parent Subsidiary in connection with
this Agreement or the transactions contemplated herein exclusive of any
commission or finder's fees referred to in the Merger Agreement.
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4. Termination. The term of this Agreement commences on the execution and
delivery of this Agreement by all of the parties hereto and continues until it
is terminated in accordance with its terms. This Agreement shall terminate on
the earliest of (a) the Effective Time (as defined in the Merger Agreement) or
(b) the date 90 days after the termination of the Merger Agreement in accordance
with its terms and, in addition, (i) the provisions of Sections 5 and 7 through
17 shall survive any termination of this Agreement, and (ii) the provisions of
Sections 2 and 3 shall survive for a period of one year after any termination of
this Agreement.
5. Expenses. Each party hereto will pay all of its expenses in connection with
the transactions contemplated by this Agreement, including, without limitation,
the fees and expenses of its counsel and other advisers.
6. Covenants
6.1 Except in accordance with the provisions of this Agreement, Stockholder
(and the Company, pursuant to Section 6.3 hereof) agrees, prior to the
termination of this Agreement as provided in Section 4 above, not to, directly
or indirectly:
(a) sell, transfer, pledge, encumber, assign or otherwise dispose of
(including by merger, testamentary disposition, interspousal disposition
pursuant to a domestic relations proceeding or otherwise or otherwise by
operation of law), or enter into any contract, option or other arrangement or
understanding with respect to the sale, transfer, pledge, encumbrance,
assignment or other disposition of, any of the Shares; except that Stockholder
may transfer Shares, with the prior written consent of Parent which shall not be
unreasonably withheld, to a trust of which there are no beneficiaries other than
the parents, spouse or children of Stockholder, or otherwise make transfers for
estate planning purposes, so long as the trust and the trustee(s) or other
transferee(s) thereof deliver a written agreement to Parent, reasonably
acceptable to Parent, to be bound by the restrictions set forth in this
Agreement, and Parent receives an opinion of counsel reasonably satisfactory to
it that this Agreement is binding on such trust and the trustee(s) or other
transferee(s) thereof, as if such trust and trustee(s) or other transferee(s)
were Stockholder. Any action taken in violation of this Section 6.1(a) shall be
void and of no effect;
(b) grant any proxies with respect to any Shares, deposit any Shares
into a voting trust or enter into a voting agreement with respect to any Shares;
or
(c) take any action to solicit, initiate or encourage any inquiries or
proposals that constitute, or could reasonably be expected to lead to, an
Acquisition Proposal (as defined in the Merger Agreement) or engage in
negotiations or discussions with any person or entity (or group of persons
and/or entities) other than Parent or its Affiliates concerning, or provide any
non-public information to any person or entity relating, to an Acquisition
Proposal or otherwise assist or facilitate any effort or attempt by any person
or entity (other than Parent and Parent Subsidiary) to make or implement an
Acquisition Proposal. Stockholder will immediately cease and terminate any
existing solicitation, initiation, encouragement, activity, discussion or
negotiation on its part with any parties conducted heretofore with respect to
any proposed, potential or contemplated Acquisition Proposal, and will notify
Parent promptly if it becomes aware of any Acquisition Proposal or any request
for non-public information in connection with
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an Acquisition Proposal or for access to the properties, books or records of the
Company by any person or entity that informs the Company (or its officers,
directors, representatives, agents, Affiliates or associates) that it is
considering making or has made an Acquisition Proposal. Such notice shall be
made orally and in writing and shall indicate the identity of the offeror and
the terms and conditions of such proposal, inquiry or contact.
6.2 Stockholder agrees, during the term of this Agreement, to notify Parent
promptly of the number of any shares of Common Stock acquired by Stockholder
after the date hereof.
6.3 The Company recognizes and agrees to use its best efforts to enforce
the transfer restrictions placed on the Shares under this Agreement.
7. Survival of Representations and Warranties. Except as expressly provided
otherwise, all representations, warranties, covenants and agreements made by
Stockholder, Parent or Parent Subsidiary in this Agreement shall survive the
termination of this Agreement as set forth in Section 4 and any investigation at
any time made by or on behalf of any party.
8. Notices. All notices or other communications required or permitted hereunder
shall be in writing (except as otherwise provided herein), given in the manner
provided in the Merger Agreement, and shall be deemed duly given when received,
addressed as follows:
If to Parent or Parent Subsidiary:
Talk.com, Inc.
6805 Route 202
New Hope, Pennsylvania 18938
Aloysius T. Lawn, IV, Esq.
Executive Vice President -
General Counsel and Secretary
Facsimile: (215) 862-1960
With a copy to:
Kelley Drye & Warren LLP
1200 19th Street, N.W.
Suite 500
Washington, D.C. 20036
Attention: Joseph B. Hoffman, Esq.
Facsimile: (202) 955-9792
If to Stockholder:
To the address and facsimile number set forth
on the signature page opposite such
Stockholder's name
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If to Company:
Access One Communications Corp.
3427 NW 55th Street
Fort Lauderdale, FL 33309
Attention: Kenneth G. Baritz
Facsimile: (954) 739-2476
With a copy to:
Blank Rome Tenzer Greenblatt LLP
405 Lexington Avenue
New York, NY 10174
Attn: Michael S. Mullman, Esq.
Facsimile: (212) 885-5001
9. Entire Agreement; Amendment. This Agreement, together with the documents
expressly referred to herein, constitute the entire agreement among the parties
hereto with respect to the subject matter contained herein and supersede all
prior agreements and understandings among the parties with respect to such
subject matter. This Agreement may not be modified, amended, altered or
supplemented except by an agreement in writing executed by Parent, Parent
Subsidiary, Company and Stockholder.
10. Legend. In addition to any other legend that may be required by applicable
law, each share certificate representing Shares that are subject to this
Agreement shall have endorsed, to the extent appropriate, on its face the
following words:
THE SECURITIES REPRESENTED BY THIS
CERTIFICATE MAY NOT BE OFFERED, SOLD,
TRANSFERRED, PLEDGED, ASSIGNED,
HYPOTHECATED OR OTHERWISE DISPOSED OF
UNLESS SUCH TRANSFER COMPLIES WITH THE
PROVISIONS OF A VOTING AGREEMENT DATED
AS OF MARCH __, 2000 (THE "VOTING
AGREEMENT"), A COPY OF WHICH IS ON FILE
AND MAY BE INSPECTED AT THE PRINCIPAL
OFFICE OF THE COMPANY. NO TRANSFER OF
THE SECURITIES WILL BE MADE ON THE BOOKS
OF THE COMPANY UNLESS ACCOMPANIED BY
EVIDENCE OF COMPLIANCE WITH THE TERMS OF
SUCH VOTING AGREEMENT. THE SECURITIES
REPRESENTED BY THIS CERTIFICATE ARE ALSO
SUBJECT TO OTHER RIGHTS AND OBLIGATIONS
AS SET FORTH IN THE VOTING AGREEMENT.
11. Assigns. This Agreement shall be binding on and inure to the benefit of the
parties hereto and their respective successors, assigns and personal
representatives, but neither this Agreement
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nor any of the rights, interests or obligations hereunder
shall be assigned by any of the parties hereto without the
prior written consent of the other parties.
12. Governing Law. Except as expressly set forth below, this Agreement shall be
governed by and construed in accordance with the domestic laws of the State of
Delaware without giving effect to any choice 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 submits to the jurisdiction of any state or
federal court sitting in the Commonwealth of Virginia in any action or
proceeding arising out of or relating to this Agreement and agrees that all
claims in respect of the action or proceeding may be heard and determined in any
such court. Each party hereto also agrees not to bring any action or proceeding
arising out of or relating to this Agreement in any other court. Each of the
parties hereto waives any defense of inconvenient forum to the maintenance of
any action or proceeding so brought and waives any bond, surety or other
security that might be required of any other party with respect thereto. Each
party hereto appoints C-T Corporation (the "Process Agent") as his or its agent
to receive on his or its behalf service of copies of the summons and complaint
and any other process that might be served in the action or proceeding. Any
party hereto may make service on any other party by sending or delivering a copy
of the process (A) to the party to be served at the address and in the manner
provided for the giving of notices in Section 8 above or (B) to the party to be
served in care of the Process Agent at the address and in the manner provided
for the giving of notices in Section 8 above. Nothing in this Section 12,
however, shall affect the right of any party hereto to serve legal process in
any other manner permitted by law or at equity. Each party hereto agrees that a
final judgment in any action or proceeding so brought shall be conclusive and
may be enforced by suit on the judgment or in any other manner provided by law
or at equity. EACH OF PARENT, PARENT SUBSIDIARY, COMPANY AND STOCKHOLDER HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL RIGHTS TO TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED UPON CONTRACT,
TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE
TRANSACTIONS CONTEMPLATED HEREBY.
13. Injunctive Relief. The parties agree that in the event of a breach of any
provision of this Agreement, the aggrieved party may be without an adequate
remedy at law. The parties therefore agree that in the event of a breach of any
provision of this Agreement, the aggrieved party shall be entitled to obtain in
any court of competent jurisdiction a decree of specific performance or to
enjoin the continuing breach of such provision, in each case without the
requirement that a bond be posted and without having to prove actual damages, as
well as to obtain damages for breach of this Agreement. By seeking or obtaining
such relief, the aggrieved party will not be precluded from seeking or obtaining
any other relief to which it may be entitled.
14. Counterparts; Facsimile Signatures. This Agreement may be executed,
including execution by facsimile, in any number of counterparts, each of which
shall be deemed to be an original and all of which together shall constitute one
and the same document.
15. Severability. Any term or provision of this Agreement that is invalid or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such invalidity or unenforceability without rendering invalid
or unenforceable the remaining terms and provisions
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of this Agreement or affecting the validity or enforceability of any of the
terms or provisions of this Agreement in any other jurisdiction. If any
provision of this Agreement is so broad as to be unenforceable, such provision
shall be interpreted to be only so broad as is enforceable.
16. Further Assurances. Each party hereto shall execute and deliver such
additional documents and take such additional actions as may be necessary or
desirable to consummate the transactions contemplated by this Agreement.
17. Third Party Beneficiaries. Nothing in this Agreement, expressed or implied,
shall be construed to give any person or entity other than the parties hereto
any legal or equitable right, remedy or claim under or by reason of this
Agreement or any provision contained herein.
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IN WITNESS WHEREOF, Parent, Parent Subsidiary, Stockholder and Company have
executed this Agreement or caused this Agreement to be executed by their duly
authorized officers, as the case may be, each as of the date and year first
above written.
ACCESS ONE COMMUNICATIONS CORP.
By:
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Name:
Title:
ALADDIN ACQUISITION CORP.
By:
-------------------------------
Name:
Title:
TALK.COM, INC.
By:
-------------------------------
Name:
Title:
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---------------------- Kenneth G. Baritz
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---------------------- Kevin Griffo
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[SIGNATURES CONTINUED ON FOLLOWING PAGE]
[SIGNATURES CONTINUED FROM PRECEDING PAGE]
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