EXHIBIT 10.9
AGREEMENT TO EXCHANGE
6% CUMULATIVE CONVERTIBLE PREFERRED STOCK
AND SPECIAL PREFERRED STOCK
This AGREEMENT TO EXCHANGE SPECIAL PREFERRED STOCK dated as of March 1,
1996 ("Exchange Agreement"), is made by and among Fairchild Industries, Inc., a
Delaware corporation ("Fairchild"), RHI Holdings, Inc., a Delaware corporation
("RHI"), The Fairchild Corporation, a Delaware corporation ("TFC"), and Shared
Technologies Inc., a Delaware corporation ("Shared Technologies"). Terms not
otherwise defined herein which are defined in that certain Agreement and Plan of
Merger dated as of November 9, 1995, as amended by the First Amendment to
Agreement and Plan of Merger dated as of February 2, 1996 (the "First
Amendment"), as further amended by the Second Amendment to Agreement and Plan of
Merger dated as of February 23, 1996 (the "Second Amendment"), as further
amended by the Third Amendment to Agreement and Plan of Merger dated as of
February 23, 1996 (the "Third Amendment"), including the exhibits and schedules
thereto (the Agreement and Plan of Merger, as amended by the First Amendment,
the Second Amendment and the Third Amendment, are referred to collectively
herein as the "Merger Agreement") by and among Fairchild, RHI, TFC and Shared
Technologies, shall have the same respective meanings herein as therein.
WHEREAS, Section 3.1 of the Merger Agreement provides that RHI will be
issued the 6% Cumulative Convertible Preferred Stock and the Special Preferred
Stock of the Surviving Corporation which stock has been authorized by Shared
Technologies' Board of Directors and designated as Series G and Series H
respectively (the "Series G and Series H Stock"); and
WHEREAS, the terms for such Series G and Series H Stock contain certain
provisions which would be inconsistent with certain financing arrangements
currently being negotiated by the Surviving Corporation; and
WHEREAS, RHI has agreed to exchange the Series G and Series H Stock to
be issued to it upon the consummation of the Merger for an equivalent number of
shares of 6% Cumulative Convertible Preferred Stock and Special Preferred Stock
which stock has also been authorized by Shared
Technologies' Board of Directors and designated as Series I and Series J
respectively (the "Series I and Series J Stock") containing such powers,
designations, preferences and other rights, qualifications, restrictions and
limitations as described herein (the "Exchange").
NOW, THEREFORE, in consideration of the premises and mutual agreements
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
POST-MERGER EXCHANGE OF PREFERRED STOCK
1.1 Immediately following the filing of the Certificate of Merger
contemplated by Section 1.2 of the Merger Agreement, RHI shall surrender to the
Surviving Corporation all of the shares of the Series G and Series H Stock
issued to it in connection with the Merger in exchange for an equivalent number
of shares of the Series I and Series J Stock. All shares of the Series G and
Series H Stock and the Special Preferred Stock surrendered to the Surviving
Corporation shall be canceled on the books and records of the Surviving
Corporation.
1.2 The powers, designations, preferences and other rights,
qualifications, restrictions and limitations of the Series I and Series J Stock
shall be as set forth in the Designations thereof appended hereto as Annexes A
and B.
1.3. Shared Technologies agrees that upon the Exchange, the
representations, warranties and indemnifications made by Shared Technologies
with respect to the Series G and Series H Stock in the Merger Agreement shall be
applicable to the Series I and Series J Stock and Fairchild and TFC hereby agree
that the Series I and Series J Stock will be substituted for the Series G and
Series H Stock pursuant to the Pledge Agreement and all references to the Series
G and Series H Stock in such Pledge Agreement, the Shareholders' Agreement and
Indemnification Agreements shall be deemed to refer to the Series I and Series J
Stock.
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ARTICLE II
PROVISIONS OF GENERAL APPLICATION
2.1 Any notice or communication to any party hereto shall be duly given
if sent in the form and manner prescribed in the Merger Agreement.
2.2 This Exchange Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
2.3 This Exchange Agreement may be varied or amended only by written
action of all of the parties hereto. This Exchange Agreement shall be governed
by, and construed in accordance with laws of the State of Delaware without
regard to principles of conflicts of laws.
IN WITNESS WHEREOF, the parties hereto have caused this Exchange
Agreement to be executed by their duly authorized officers, all as of the day
and year first above written.
SHARED TECHNOLOGIES INC. THE FAIRCHILD CORPORATION
By: /s/ Vincent DiVincenzo By: /s/ Michael T. Alcox
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FAIRCHILD INDUSTRIES, INC. RHI HOLDINGS, INC.
By: /s/ Michael T. Alcox By: /s/ Michael T. Alcox
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ACCEPTED AND AGREED TO BY:
FAIRCHILD HOLDING CORP.
By: /s/ Michael T. Alcox
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