Voting Agreement - J.J. Cramer & Co. and Tel-Save Holdings Inc.
VOTING AGREEMENT
This Voting Agreement ("Agreement") is entered into as of July 16, 1997
by and between J.J. Cramer & Co., ("Cramer"), 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 and 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 and 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, Cramer owns (either beneficially or of
record) the number of shares (the "Shares") of Company Common Stock set forth
opposite such Cramer'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 Cramer execute and deliver to
Acquiror and Merger Sub this Agreement;
NOW, THEREFORE, the parties agree as follows:
1. Agreement to Vote Shares. Cramer agrees to vote the Shares and any
other shares of Company Common Stock which Cramer, 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.
<PAGE>
-2-
2. Covenants. Cramer agrees with respect to itself and the Shares it
owns that:
(a) It 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
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,
Cramer may transfer its Shares if such transferee becomes a party to
and bound by all of the terms of this Agreement.
(b) It 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 Cramer herein contained
not being true and correct at and as of the time immediately after the
occurrence of such transaction, action or event.
3. Representations and Warranties. Cramer represents and warrants with
respect to itself and the Shares it owns that:
(a) It is the record or beneficial owner of the number of
Shares set forth on Schedule A opposite its name and, except for the
Shares, it 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
Cramer and constitutes the legal, valid and binding obligation of
Cramer, enforceable against Cramer in accordance with its terms. Cramer
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 Cramer of the transactions
contemplated hereby will result in a
<PAGE>
-3-
violation of, or a default under, or conflict with, any contract,
trust, commitment, agreement, understanding, arrangement or restriction
of any kind to which Cramer is a party or bound or to which the Shares
are subject which would materially impair the ability of Cramer to
perform hereunder. Consummation by Cramer 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 Cramer 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 Cramer with respect to the Company Common Stock.
(c) The Shares owned by Cramer and the certificates
representing such Shares are now and at all times during the term
hereof will be held by Cramer or by a nominee or custodian for its
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.
(d) 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
Cramer.
4. Certain Events. Cramer agrees that this Agreement and the
obligations hereunder shall attach to the Shares owned by it 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 Cramer, 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 Cramer. 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
<PAGE>
-4-
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. Cramer expressly
acknowledges that damages alone will not be adequate remedy for any breach by
Cramer 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 Cramer 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.
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 Cramer:
Cramer Berkowitz & Co.
100 Wall Street
8th Floor
New York, New York 10005
Attention: Mr. Jeffrey Berkowitz
Telecopy No:
<PAGE>
-5-
with a copy to:
Wiley Rein & Fielding
1776 K Street
Washington, D.C. 20006
Attention: Ida Draim, Esq.
Telecopy No.: (202) 429-7049
(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 Cramer and its 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
<PAGE>
-6-
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) Cramer hereby 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 Cramer 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 or 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 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.
<PAGE>
-7-
IN WITNESS WHEREOF, the parties have caused this agreement to
be executed by their duly authorized officers all as of the day and year first
above written.
J.J. CRAMER & CO.
By: /s/ Jeffrey L. Berkowitz
--------------------------------------
Name: Jeffrey L. Berkowitz
-----------------------------------
Title:
-----------------------------------
TEL-SAVE HOLDINGS, INC.
By: /s/ Edward B. Meyercord, III
--------------------------------------
Name: Edward B. Meyercord, III
-----------------------------------
Title: Executive Vice President
-----------------------------------
<PAGE>
SCHEDULE A
Stockholder Number of Shares Owned
J.J. Cramer & Co. 955,000