Voting Agreement - Anthony D. Autorino and Tel-Save Holdings Inc.
VOTING AGREEMENT
This Voting Agreement ("Agreement") is entered into as of July 16, 1997
by and between Anthony D. Autorino (the "Stockholder") and Tel-Save Holdings,
Inc., a Delaware corporation ("Acquiror").
WHEREAS, Shared Technologies Fairchild Inc., a Delaware corporation
(the "Company"), Acquiror and TSHCo, Inc., a Delaware corporation, a wholly
owned subsidiary of Acquiror ("Merger Sub"), are parties to an Agreement and
Plan of Merger dated as of July 16, 1997 (the "Merger Agreement") which
provides, among other things, for the merger of the Company with and into Merger
Sub (the "Merger"), with Merger Sub as the surviving corporation becoming a
wholly owned subsidiary of Acquiror and which must be approved by holders of the
requisite percentages of the outstanding shares of capital stock of the Company
entitled to vote upon the Merger (such shares of capital stock, the "Company
Common Stock") at a special meeting of the Company's stockholders (the "Special
Meeting") called for the purpose of approving the Merger, all in accordance with
the requirements of the Delaware General Corporation Law, the Company's
Certificate of Incorporation and the Company's By-Laws;
WHEREAS, as of the date hereof, the Stockholder owns (either
beneficially or of record) the number of shares (the "Shares") of Company Common
Stock set forth opposite such Stockholder's name on Schedule A hereto; and
WHEREAS, as a condition to the willingness of Acquiror to enter into
the Merger Agreement, Acquiror has requested that the Stockholder execute and
deliver to Acquiror and Merger Sub this Agreement;
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NOW, THEREFORE, the parties agree as follows:
1. Agreement to Vote Shares. The Stockholder agrees to vote the Shares
and any other shares of Company Common Stock which he, directly or indirectly,
controls at the Special Meeting or at any other meeting of the stockholders of
the Company, however called, and in any action by consent of the stockholders of
the Company (a) in favor of the Merger, (b) in favor of the Merger Agreement,
and (c) against any amendment of the Company's Certificate of Incorporation or
By-Laws or other proposal or transaction involving the Company or any of its
subsidiaries which amendment or other proposal or transaction would in any
manner impede, frustrate, prevent or nullify, or result in a breach of any
covenant, representation or warranty or any other obligation or agreement of the
Company under or with respect to, the Merger, the Merger Agreement or any of the
other transactions contemplated by the Merger Agreement.
2. Covenants. The Stockholder agrees with respect to himself and the
Shares he owns that:
(a) He shall not, except consistent with the terms of this
Agreement, (i) transfer (which term shall include, without limitation,
for the purposes of this Agreement, any sale, gift, pledge or other
disposition), or consent to any transfer of, any or all of the Shares
or any interest therein, (ii) enter into any contract, option or other
agreement or understanding with respect to any transfer of any or all
of the Shares or any interest therein, (iii) take any other action that
would in any way restrict, limit or interfere with the performance of
his or its obligations hereunder or the transactions contemplated
hereby, or (iv) grant any proxies or powers of attorney with respect to
any of the Shares, deposit any Shares into a voting trust or enter into
a voting agreement with respect to such Shares. Notwithstanding the
foregoing, the Stockholder may transfer his or its Shares if such
transferee becomes a party to and bound by all of the terms of this
Agreement.
(b) He will not enter into any transaction, take any action,
or directly or indirectly cause any event to occur that would result in
any of the representations or warranties of the Stockholder herein
contained not being true and correct at and as of the time immediately
after the occurrence of such transaction, action or event.
(c) He has no present intention to sell the Company Common
Stock acquired by him pursuant to the
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Merger. He agrees that he will not sell, transfer or otherwise dispose
of any Company Common Stock for 30 days prior to the effective date of
the Merger or any Company Common Stock received by him in the Merger
until after such time as results covering at least 30 days of combined
operations of the Company and Acquiror have been published by Acquiror,
in the form of a quarterly earnings report, a report to the SEC on Form
10-K, 10-Q or 8-K, or any other public filing or announcement which
includes such combined results of operations.
3. Representations and Warranties. The Stockholder represents and
warrants with respect to himself and the Shares he owns that:
(a) He is the record or beneficial owner of the number of
Shares set forth on Schedule A opposite his name and, except for the
Shares, he is not the record or beneficial owner of any shares of the
Company Common Stock.
(b) This Agreement has been duly executed and delivered by the
Stockholder and constitutes the legal, valid and binding obligation of
the Stockholder, enforceable against the Stockholder in accordance with
its terms. The Stockholder has all necessary power and authority to
execute and deliver this Agreement, to perform its obligations
hereunder and to consummate the transactions contemplated hereby.
Neither the execution and delivery of this Agreement nor the
consummation by the Stockholder of the transactions contemplated hereby
will result in a violation of, or a default under, or conflict with,
any contract, trust, commitment, agreement, understanding, arrangement
or restriction of any kind to which the Stockholder is a party or bound
or to which the Shares are subject which would materially impair the
ability of the stockholder to perform hereunder. Consummation by the
Stockholder of the transactions contemplated hereby will not violate,
or require any consent, approval, or notice under, any provision of
any judgment, order, decree, statute, law, rule or regulation
applicable to the Stockholder or the Shares, except for any filing
under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended, and the filing of an amendment to the Schedules 13D, if any,
filed by the Stockholder with respect to the Company Common Stock.
(c) The Shares owned by him and the certificates representing
such Shares are now and at all times during the term hereof will be
held by the Stockholder
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or by a nominee or custodian for his benefit, free and clear of all
liens, claims, security interests, proxies, voting trusts or
agreements, understandings or arrangements or any other encumbrances
whatsoever, except for any such encumbrances or proxies arising
hereunder.
No broker, investment banker, financial adviser or other
person is entitled to any broker's, finder's, financial adviser's or
other similar fee or commission in connection with the transactions
contemplated hereby based upon arrangements made by or on behalf of
such Stockholder.
4. Certain Events. The Stockholder agrees that this Agreement and the
obligations hereunder shall attach to the Shares owned by him and shall be
binding upon any person or entity to which legal or beneficial ownership of such
Shares shall pass, whether by operation of law or otherwise, including without
limitation such person's heirs, guardians, administrators or successors. In the
event of any stock split, stock dividend, merger, reorganization,
recapitalization or other change in the capital structure of the Company
affecting the Company Common Stock, or the acquisition of additional shares of
Company Common Stock by the Stockholder, this Agreement and the obligations
hereunder shall attach to any additional shares of Company Common Stock or other
voting securities of the Company issued to or acquired by the Stockholder. In
the event of a stock dividend or distribution, or any change in Company Common
Stock by reason of any stock dividend, split-up, recapitalization, combination,
exchange of shares or the like, the term "Shares" shall be deemed to refer to
and include the Shares as well as all such stock dividends and distributions and
any shares into which or for which any or all of the Shares may be changed or
exchanged.
5. Specific Enforcement of Voting Agreement. The Stockholder expressly
acknowledges that damages alone will not be adequate remedy for any breach by
the Stockholder of this Agreement and that Acquiror, in addition to any other
remedies it may have, will be entitled as a matter of right, to injunctive
relief, including specific performance, in any court of competent jurisdiction
with respect to any actual or threatened breach by the Stockholder of the
provisions of this Agreement.
6. Termination. This Agreement, and all rights and obligations of the
parties hereunder, shall terminate upon the first to occur of (a) the
consummation of the Merger, (b) January 15, 1998, or (c) the date of termination
of the Merger Agreement by any of the parties thereto.
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7. Miscellaneous.
(a) All communication under this Agreement shall be in writing
and shall be deemed given if delivered personally or sent by overnight
courier (providing proof of delivery) to the parties at the following
addresses (or at such other address for a party as shall be specified
by like notice):
If to Acquiror:
6805 Route 202
New Hope, Pennsylvania 18938
Attention: Aloysius T. Lawn, IV
Telecopy: (215) 862-1085
with a copy to:
Arnold & Porter
399 Park Avenue
New York, New York 10022
Attention: Jonathan C. Stapleton
Telecopy: (215) 715-1399
If to the Stockholder:
c/o Shared Technologies Fairchild Inc.
100 Great Meadow Road
Wethersfield, CT 06109
Attention: Kenneth Dorros
Telecopy: (860) 258-2455
with a copy to:
Cahill Gordon & Reindel
80 Pine Street
New York, New York 10005
Attention: James J. Clark, Esq.
Telecopy No.: (212) 269-5420
(b) 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.
(c) This Agreement constitutes the entire agreement relating
to the subject matter covered herein, and supersedes all prior
agreements and understandings, both written and oral, among the parties
with respect to the subject matter hereof.
(d) Neither this Agreement nor any of the rights, interests or
obligations under this Agreement shall be assigned, in whole or in
part, by operation of law or otherwise, by any of the parties without
the prior written consent of the other parties, except that this
Agreement shall be binding upon the Stockholder and his
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successors and assigns and except as provided in Section 2(a).
(e) The construction and performance of this Agreement will be
governed by the laws of the State of Delaware, regardless of the laws
that might otherwise govern under applicable principles of conflicts of
laws thereof.
(f) If any term, provision, covenant or restriction herein, or
the application thereof to any circumstance, shall, to any extent, be
held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions herein and the application thereof to any other
circumstances, shall remain in full force and effect, shall not in any
way be affected, impaired or invalidated, and shall be enforced to the
fullest extent permitted by law.
(g) The Stockholders agrees that irreparable damage would
occur and that Acquiror would not have any adequate remedy at law in
the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that Acquiror shall be entitled to
an injunction or injunctions to prevent breaches by any Stockholder of
this Agreement and to enforce specifically the terms and provisions of
this Agreement in any court, in addition to any other remedy to which
it is entitled at law or in equity. In addition, each of the parties
hereto (i) consents to submit such party to the personal jurisdiction
of any Federal court located in the State of Delaware or any Delaware
state court in the event any dispute arises out of this Agreement or
any of the transactions contemplated hereby, (ii) agrees that such
party will not attempt to deny or defeat such personal jurisdiction by
motion or other request for leave from any such court and (iii) agrees
that such party will not bring any action relating to this Agreement of
any of the transactions contemplated hereby in any court other than a
Federal court sitting in the State of Delaware or a Delaware state
court.
(h) No amendment, modification or waiver in respect of this
Agreement shall be effective against any party unless is shall be in
writing and signed by such party.
(i) This Agreement may be executed in one or more
counterparts, all of which shall be considered one and
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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.
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IN WITNESS WHEREOF, the parties hereto have caused this
agreement to be duly executed all as of the day and year first above written.
/s/ Anthony D. Autorino
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Anthony D. Autorino
TEL-SAVE HOLDINGS, INC.
By: /s/ Edward B. Meyercord, III
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Name: Edward B. Meyercord, III
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Title: Executive Vice President
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SCHEDULE A
Stockholder Number of Shares Owned
Anthony D. Autorino 779,618