EXHIBIT H
VOTING AGREEMENT
THIS VOTING AGREEMENT, dated as of July 23, 1996
(this "Agreement"), is entered into by and among OCC Acquisition
Company, Inc., a Delaware corporation ("Mergeco"), Osborn
Communications Corporation, a Delaware corporation ("Osborn"),
and the other signatories hereto (collectively, the "Stockholders").
WHEREAS, concurrently herewith, Mergeco, Osborn and
OCC Holding Corporation, a Delaware corporation, are entering into
that certain Agreement and Plan of Merger of even date herewith (the
"Merger Agreement"), providing for the merger (the "Merger") of
Mergeco with and into Osborn;
WHEREAS, each Stockholder is the beneficial owner of the
number of shares of Common Stock set forth beside his name in
Schedule I hereto (all such shares of Common Stock now owned and
which may hereafter be acquired by such Stockholder prior to
termination of this Agreement being referred to herein as the
"Shares");
WHEREAS, approval of the Merger Agreement by Osborn's
stockholders is a condition to the consummation of the Merger;
WHEREAS, the Stockholders fully support the Merger and,
in order to encourage Mergeco to enter into the Merger Agreement
with Osborn, the Stockholders are willing to enter into certain
arrangements with respect to Shares owned by them; and
WHEREAS, all capitalized terms used without definition
herein have the meanings given to such terms in the Merger
Agreement.
NOW THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements set forth herein, the parties hereto
agree as follows:
ARTICLE I
VOTING
Section 1.1 Agreement to Vote or Consent. Each
Stockholder hereby agrees (a) to attend the Osborn Stockholders
Meeting, in person or by proxy, and to vote, or cause to be voted (or,
if the stockholders of Osborn act by written consent, to consent in
writing, or cause to consent in writing, with respect to) his Shares,
and any other voting securities of Osborn that such Stockholder owns
or has the right to vote or consent with respect to, (i) for approval and
adoption of the Merger Agreement and the Merger, such agreement
to vote to apply also to any adjournment or adjournments of Osborn
Stockholders Meeting, and (ii) against any proposal or other matter
that may interfere or be inconsistent with the Merger (including,
without limitation, a Business Combination
PAGE 2
Transaction) and (b) not
to solicit, encourage or recommend to other stockholders of Osborn
that (A) they vote their shares of Common Stock in any contrary
manner, (B) they not vote their shares at all, (C) they sell, transfer,
tender or otherwise dispose of their shares of Common Stock or (D)
they attempt to execute any statutory dissenters' or other similar
rights they may have.
Section 1.2 Revocation of Proxies and Consents. To the
extent inconsistent with Section 1.1 hereof, each Stockholder hereby
revokes any and all previous proxies or written consents with respect
to such Stockholder's Shares or any other voting securities of Osborn.
Section 1.3 Stockholders' Support of the Merger. From the
date hereof until the first to occur of the Closing or the termination of
the Merger Agreement:
(a) No Stockholder or affiliate or associate
thereof, other than Osborn and its subsidiaries (collectively
with respect to each Stockholder, a "Stockholder Group"),
will, directly or indirectly, sell, transfer, pledge or otherwise
dispose of, or grant a proxy with respect to, any Shares to any
person other than Mergeco or its designee, or grant an option
with respect to any of the foregoing, or enter into any other
agreement or arrangement with respect to any of the
foregoing.
(b) No Stockholder or any other member of any
Stockholder Group will , directly or indirectly, through any
officer, director, agent or otherwise, solicit, initiate or
encourage the submission of any proposal or offer from any
person relating to any acquisition or purchase of all or any
material portion of the assets of, or any equity interest in,
Osborn or any of its subsidiaries or any merger, consolidation,
share exchange, business combination or other similar
transaction with Osborn or any of its subsidiaries or
participate in any negotiations regarding, or furnish to any
other person any information with respect to, or otherwise
cooperate in any way with, or assist or participate in, facilitate
or encourage, any effort or attempt by any other person to do
or seek any of the foregoing; provided, however, that prior to
the receipt of the requisite vote or consent for approval and
adoption by the holders of Common Stock of the Merger
Agreement and the transactions contemplated thereby, nothing
contained in this Section 1.3(b) shall prohibit any Stockholder
or any officer, director, employee or agent of any Stockholder
who is a member of the Osborn Board, and who is acting in
such capacity, from furnishing information to, or entering into
discussions or negotiations with, any person in connection
with an unsolicited proposal by such person to acquire Osborn
pursuant to a merger, consolidation, share exchange, business
combination or other similar transaction or to acquire all or
substantially all of the assets of Osborn received by Osborn
after the date of the Merger Agreement, if, and only to the
extent that, (i) the Osborn Board determines in good faith that
such action is required in order for the Osborn Board not to
breach its fiduciary duties to stockholders imposed by
applicable law, such determination being based on
consultations with Alex. Brown and the written opinion of its
independent legal counsel that such action is required in order
for the Osborn Board not to breach its fiduciary duties to
stockholders imposed by applicable law, and prior to
furnishing such information to, or entering into discussions or
negotiations with, such person, the Stockholder or the Osborn
Board gives Mergeco as promptly as practicable prior written
notice of Osborn's intention to furnish such information or
begin such discussions and
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(ii) receives from such person an
executed confidentiality agreement on terms no less favorable
to Osborn than those contained in the Confidentiality
Agreement. Any Stockholder or any officer, director,
employee or agent of any Stockholder who is a member of the
Osborn Board, and who is acting in such capacity, shall
promptly communicate to Mergeco the material terms of any
such proposal (and the identity of the party making such
proposal) which it may receive. Any Stockholder or any
officer, director, employee or agent of any Stockholder who
is a member of the Osborn Board, and who is acting in such
capacity, shall not agree to release any third party from, or
waive any provision of, any confidentiality or standstill
agreement to which Osborn is a party. From and after the
receipt of the requisite vote or consent for approval and
adoption by the holders of Common Stock of the Merger
Agreement and the transactions contemplated thereby, no
Stockholder or any other member of any Stockholder Group
will , directly or indirectly, through any officer, director, agent
or otherwise, solicit, initiate or encourage the submission of
any proposal or offer from any person relating to any
acquisition or purchase of all or any material portion of the
assets of, or any equity interest in, Osborn or any of its
subsidiaries or any merger, consolidation, share exchange,
business combination or other similar transaction with Osborn
or any of its subsidiaries or participate in any negotiations
regarding, or furnish to any other person any information with
respect to, or otherwise cooperate in any way with, or assist
or participate in, facilitate or encourage, any effort or attempt
by any other person to do or seek any of the foregoing.
Section 1.4 Legend. From and after the date of this
Agreement, each certificate representing Shares shall bear the
following legend:
On the front side:
VOTING OF THE SHARES REPRESENTED BY THIS
CERTIFICATE IS SUBJECT TO THE PROVISIONS OF A
VOTING AGREEMENT.
On the reverse side:
VOTING OF SHARES REPRESENTED BY THIS
CERTIFICATE IS SUBJECT TO THE PROVISIONS OF A
VOTING AGREEMENT DATED AS OF JULY __, 1996
(THE "AGREEMENT"), BY AND AMONG OCC
ACQUISITION COMPANY, INC., A DELAWARE
CORPORATION, OSBORN COMMUNICATIONS
CORPORATION, A DELAWARE CORPORATION
("OSBORN"), AND THE OTHER SIGNATORIES
THERETO, A COUNTERPART OF WHICH HAS BEEN
DEPOSITED WITH OSBORN AT ITS PRINCIPAL
OFFICE. IN ADDITION, THE TRANSFER OF
SECURITIES REPRESENTED BY THIS CERTIFICATE IS
RESTRICTED PURSUANT TO THE AGREEMENT.
OSBORN SHALL FURNISH A COPY OF THE
AGREEMENT WITHOUT CHARGE TO THE
RECORDHOLDER OF THIS CERTIFICATE UPON
WRITTEN REQUEST TO OSBORN AT ITS PRINCIPAL
PLACE OF BUSINESS OR REGISTERED OFFICE.
PAGE 4
ARTICLE II
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 2.1 Representations, Warranties and Covenants of
the Stockholders. Each Stockholder hereby represents and warrants
to, and covenants and agrees with, Mergeco as follows:
(a) Other than the Shares set forth by such
Stockholder's name in Schedule I hereto and, in the case of
Frank D. Osborn, options granted to Frank D. Osborn under
the Option Plan, such Stockholder does not own of record or
beneficially, or have any interest in, any shares of capital stock
of Osborn, any securities exercisable for, convertible into or
exchangeable for capital stock of Osborn, or any other right to
acquire any such capital stock or other securities.
(b) Such Stockholder has good and marketable
title to all his Shares, free and clear of all security interests,
liens, claims, pledges, charges, options, rights of first refusal
agreements and other encumbrances of any nature. Such
Stockholder has not appointed or granted any proxy, which
appointment or grant is still effective, with respect to his
Shares. Such Stockholder has sole voting power with respect
to his Shares.
(c) Such Stockholder has full legal capacity to
execute and deliver this Agreement and to perform his
obligations hereunder. This Agreement has been duly and
validly executed and delivered by such Stockholder and,
assuming the due authorization, execution and delivery by
Mergeco, constitutes a legal, valid and binding obligation of
such Stockholder enforceable against him in accordance with
its terms, except to the extent that such enforcement may be
subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws
affecting creditors' rights and remedies generally and subject,
as to enforceability, to general principles of equity, including
principles of commercial reasonableness, good faith and fair
dealing (regardless of whether enforcement is sought in a
proceeding at law or in equity).
(d) The execution and delivery of this Agreement
by such Stockholder does not, and the performance of this
Agreement by such Stockholder will not, (i) conflict with or
violate any law, rule, regulation, order, judgment or decree
applicable to such Stockholder, (ii) result in any breach of or
constitute a default (or an event that with notice or lapse of
time or both would become a default) under, or give to others
any rights of termination, amendment, acceleration or
cancellation of, or result in the creation of a lien or
encumbrance on any of its Shares pursuant to any note,
indenture, agreement, lease, license, permit or other
instrument or obligation to which such Stockholder is a party
or by which such Stockholder or its Shares are bound or
affected, or (iii) require any consent, approval, authorization
or permit from any governmental regulatory body, except
where such breach or default or failure to obtain such
consents, approvals, authorizations or permits or to make such
filings would not prevent or delay the performance by such
Stockholder of its obligations under this Agreement.
PAGE 5
Section 2.2 Representations and Warranties of Mergeco.
Mergeco represents and warrants to each Stockholder as follows:
(a) Mergeco has all requisite corporate power and
authority to enter into this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery
of this Agreement by Mergeco and the consummation by it of
the transactions contemplated hereby have been duly
authorized by all necessary corporate action on the part of
Mergeco. This Agreement has been duly executed and
delivered and constitutes the valid and binding obligation of
Mergeco, enforceable against it in accordance with its terms,
subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws
affecting creditors' rights and remedies generally and subject,
as to enforceability, to general principles of equity, including
principles of commercial reasonableness, good faith and fair
dealing (regardless of whether enforcement is sought in a
proceeding at law or in equity).
(b) The execution and delivery of this Agreement
does not, and the consummation of the transactions
contemplated hereby and compliance with the provisions
hereof will not, conflict with, or result in any violation of, or
default (with or without notice or lapse of time, or both)
under, or give rise to a right of termination, cancellation or
acceleration of any material obligation or to a loss of a
material benefit under, any provision of the Certificate of
Incorporation or Bylaws of Mergeco or any loan or credit
agreement, note, bond, mortgage, indenture, lease or other
agreement, instrument, permit, concession, franchise, license,
judgment, order, decree, statute, law, ordinance, rule or
regulation applicable to Mergeco or its properties or assets,
except for any such conflicts, violations or defaults or
terminations, cancellations or accelerations which individually
or in the aggregate do not have a material adverse effect on
Mergeco's ability to consummate its obligations hereunder.
No consent, approval, order or authorization of, or
registration, declaration or filing with, any Governmental
Entity is required by or with respect to Mergeco in connection
with the execution and delivery of this Agreement by Mergeco
or the consummation by it of the transactions contemplated
hereby, except in connection with the HSR Act, the
Communications Act, and the applicable requirements of the
Securities Act and the Exchange Act and the rules and
regulations thereunder and state securities laws.
Section 2.3 Waivers of Appraisal Rights. Each Stockholder
hereby irrevocably waives any appraisal rights such Stockholder may
have pursuant to Section 262 of Delaware Law by reason of the
Merger and agrees that such Stockholder shall not attempt to perfect
any such appraisal right pursuant to such Section 262.
Section 2.4 Further Assurances. Each party hereto shall
execute and deliver such additional instruments and other documents
and shall take such further actions as may be necessary or appropriate
to effectuate, carry out and comply with all of such party's obligations
under this Agreement, including without limitation any actions
reasonably requested by Mergeco in connection with obtaining any
required consents or approvals to the actions contemplated hereby
under the HSR Act, the Communications Act and the applicable
requirements of the Securities Act and the Exchange Act and the rules
and regulations thereunder and state securities laws. Without limiting
the generality
PAGE 6
of the foregoing, none of the parties hereto shall enter
into any agreement or arrangement (or alter, amend or terminate any
existing agreement or arrangement) if such action would materially
impair the ability of any party to effectuate, carry out or comply with
all of the terms of this Agreement.
ARTICLE III
GENERAL
Section 3.1 Notices. All notices and other communications
given or made pursuant hereto shall be in writing and shall be deemed
to have been duly given upon receipt, if delivered personally, mailed
by, nationally recognized overnight courier service, registered or
certified mail (postage prepaid, return receipt requested) to the parties
at the following addresses ( or at such other address for a party as
shall be specified by like changes of address) or sent by electronic
transmission to the telecopier number specified below:
(a) If to Mergeco, to:
OCC Acquisition Company, Inc.
200 Crescent Court, Suite 1600
Dallas, Texas 75201
Attn: Lawrence D. Stuart
Facsimile: (214) 740-7313
with a copy to:
Vinson & Elkins L.L.P.
3700 Trammell Crow Center
2001 Ross Avenue
Dallas, Texas 75201-2975
Attention: Michael D. Wortley
Facsimile: (214) 220-7716
(b) If to Osborn, to:
Osborn Communications Corporation
130 Mason Street
Greenwich, Connecticut 06830
Attn: Frank D. Osborn
Facsimile: (203) 629-1749
PAGE 7
with a copy to:
Paul, Weiss, Rifkind, Wharton & Garrison
1385 Avenue of the Americas
New York, New York 10019
Attn: Robert M. Hirsch
Facsimile: (212) 757-3990
(c) If to the Stockholders, to the address set forth
below such Stockholder's name on the
signature pages hereto.
with a copy to:
Paul, Weiss, Rifkind, Wharton & Garrison
1385 Avenue of the Americas
New York, New York 10019
Attention: Robert M. Hirsh
Facsimile: (212) 757-3990
Section 3.2 Amendments. This Agreement may not be
amended, changed, supplemented, waived or otherwise modified or
terminated except by an instrument in writing signed by Mergeco,
Osborn and each Stockholder.
Section 3.3 Successors and Assigns. This Agreement shall
be binding upon and shall inure to the benefit of and be enforceable by
the parties hereto and their respective successors and assigns,
including without limitation in the case of any corporate party hereto
any corporate successor by merger or otherwise, and in the case of
any individual party hereto any trustee, executor, heir, legatee or
personal representative succeeding to the ownership of such party's
Shares or other securities subject to this Agreement. Notwithstanding
any transfer of such Shares, the transferor shall remain liable for the
performance of all obligations of the transferor under this Agreement.
Section 3.4 Entire Agreement. This Agreement embodies
the entire Agreement and understanding among the parties hereto
relating to the subject matter hereof and supersedes all prior
agreements and understandings relating to such subject matter. There
are no representations, warranties or covenants by the parties hereto
relating to such subject matter other than those expressly set forth in
this Agreement.
Section 3.5 Severability. If any term or other provision of
this Agreement is invalid, illegal or incapable of being enforced by any
rule of law or public policy, all other conditions and provisions of this
Agreement shall nevertheless remain in full force and effect so long as
the economic or legal substance of the transactions contemplated
hereby is not affected in any manner materially adverse to any party.
Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate
in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner to
the end that transactions contemplated hereby are fulfilled to the
extent possible.
PAGE 8
Section 3.6 Specific Performance. The parties hereby
acknowledge and agree that the failure of any party to this Agreement
to perform such party's agreement and covenants hereunder will cause
irreparable injury to the other parties to this Agreement for which
damages, even if available, will not be an adequate remedy.
Accordingly, each of the parties hereto hereby consents to the
issuance of injunctive relief by any court of competent jurisdiction to
compel performance of any party's obligations and to the granting by
any such court of the remedy of specific performance of such party's
obligations hereunder. If any action is brought by a party to enforce
this Agreement, the other party shall waive the defense that there is an
adequate remedy at law.
Section 3.7 Failure or Indulgence Not Waiver; Remedies
Cumulative. No failure or delay on the part of any party hereto in
the exercise of any right hereunder shall impair such right or be
construed to be a waiver of, or acquiescence in, any breach of any
representation, warranty or agreement herein, nor shall any single
or partial exercise of any such right preclude other or further
exercise thereof or of any other right. All rights and remedies
existing under this Agreement are in addition to, and not exclusive
of, any rights or remedies otherwise available.
Section 3.8 No Third Party Beneficiaries. This Agreement
is not intended to be for the benefit of and shall not be enforceable by
any person or entity who or which is not a party hereto.
Section 3.9 Governing Law. THIS AGREEMENT AND
ALL DISPUTES HEREUNDER SHALL BE GOVERNED BY AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF DELAWARE. ANY SUIT OR
PROCEEDING BROUGHT HEREUNDER SHALL BE SUBJECT
TO THE EXCLUSIVE JURISDICTION OF THE COURTS
LOCATED IN DELAWARE.
Section 3.10 Headings. 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.
Section 3.11 Counterparts. This Agreement may be executed
and delivered (including by facsimile transmission) in multiple
counterparts, and by the different parties hereto in separate
counterparts, each of which when executed and delivered (including
by facsimile transmission) shall be deemed to be an original but all of
which taken together shall constitute one and the same agreement.
Section 3.12 Expenses. Mergeco, Osborn and each
Stockholder shall bear their own expenses incurred in connection with
this Agreement and the transactions contemplated hereby.
Section 3.13 Capacity. The parties hereto acknowledge and
agree that the obligations of the Stockholders hereunder are
obligations of such Stockholders in their respective capacities as
stockholders of Osborn and shall not obligate such Stockholders with
respect to actions to be taken by any of such Stockholders as a
director or officer of Osborn.
Section 3.14 Termination. This Agreement shall terminate
upon termination of the Merger Agreement.
IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the date first above written.
MERGECO:
OCC ACQUISITION COMPANY,INC.
By:
Name: Eric C. Neuman
Title: President
OSBORN:
OSBORN COMMUNICATIONS CORPORATION
By:
Name:
Title:
STOCKHOLDERS:
Frank D. Osborn
Address:
Telecopier No:
Brownlee O. Currey, Jr.
Address:
Telecopier No:
Robert K. Zelle
Address:
Telecopier No:
__________________________
Address:
Telecopier No:
__________________________
Address:
Telecopier No:
__________________________
Address:
Telecopier No:
__________________________
Address:
Telecopier No:
__________________________
Address:
Telecopier No:
__________________________
Address:
Telecopier No:
__________________________
Address:
Telecopier No:
__________________________
Address:
Telecopier No:
__________________________
Address:
Telecopier No:
SPOUSAL CONSENT
By executing this Agreement, ________________________,
____________________'s spouse agrees (i) to be bound in all
respects by the terms hereof with respect to her spouse's Shares to the
same extent as ____________________ and (ii) to bind her
community property interest, if any, in such Shares.
SCHEDULE I
Common Stock
Frank D. Osborn
Brownlee O. Currey, Jr.
Robert K. Zelle
_____________________
_____________________
_____________________
_____________________