EXHIBIT 2
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT (this "AGREEMENT"), dated as of November 24, 1997,
between INTERMEDIA COMMUNICATIONS INC., a Delaware corporation ("BUYER"), RHI
HOLDINGS, INC., a Delaware corporation (the "SELLER") and Shared Technologies
Fairchild Inc., a Delaware corporation (the "COMPANY").
R E C I T A L S :
Seller desires to sell to Buyer and Buyer desires to purchase from Seller,
all right, title and interest in and to 250,000 shares of Series I 6% Cumulative
Convertible Preferred Stock, par value $.01 per share (the "PREFERRED STOCK")
issued by the Company and owned by Seller, all upon the terms and subject to
conditions contained herein.
NOW, THEREFORE, in consideration of the mutual promises and agreements set
forth herein, the parties hereto hereby agree as follows:
1. PURCHASE AND SALE
1.1. PURCHASE AND SALE. In consideration of the payment by Buyer of the
Convertible Purchase Price (as defined in Section 1.2(a) below), Seller hereby
agrees to sell, assign, transfer, convey and deliver to Buyer, and Buyer hereby
agrees to purchase, acquire and take assignment and delivery of, all the right,
title and interest of Seller on the day designated by Seller (the "Closing
Date") in and to the Preferred Stock.
1.2. PURCHASE PRICE. The aggregate purchase price for the Convertible
Preferred Stock (the "CONVERTIBLE PURCHASE PRICE") shall be $62,827,425 plus any
accrued dividends from November 24, 1997 to the Closing Date. The Convertible
Purchase Price is payable on the Closing Date in cash, by certified or bank
check or by wire transfer of immediately available funds to such accounts as the
Seller may designate in writing.
1.3. DELIVERY OF THE PREFERRED STOCK. On the Closing Date, Seller shall
deliver to Buyer certificate(s) representing the Preferred Stock duly endorsed
in blank or accompanied by stock powers or other instruments of transfer duly
endorsed in blank, and bearing or accompanied by all requisite stock transfer
stamps.
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2. REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Buyer and the Company as follows:
2.1. ORGANIZATION OF SELLER. Seller is a corporation duly organized,
validly existing and in good standing under the laws of its jurisdiction of
incorporation.
2.2. AUTHORITY. Seller has all requisite power and authority to execute
and deliver this Agreement and to carry out its obligations hereunder. Seller
has obtained all necessary corporate approvals for the execution and delivery of
this Agreement and the performance of its obligations hereunder. This Agreement
has been duly executed and delivered by Seller and (assuming due authorization,
execution and delivery by the other parties hereto) constitutes Seller's legal,
valid and binding obligation, enforceable against it in accordance with its
terms.
2.3. AUTHORIZED CAPITAL. Seller owns the Preferred Stock beneficially
and of record, free and clear of all liens, pledges, security interests, claims,
voting restrictions and agreements, proxies or other encumbrances ("LIENS"),
except as may be otherwise provided for (i)in that certain Shareholder's
Agreement, dated March 13, 1996, among Seller, the Company and Anthony D.
Autorino and that certain Pledge Agreement dated as of March 13, 1996 by RHI in
favor of Gadsby & Hannah as pledge agent (the "PLEDGE AGREEMENT") and (ii) that
certain Amended and Restated Pledge Agreement dated as of July 18, 1997 between
RHI and Citicorp USA Inc. (the "CITICORP PLEDGE AGREEMENT"). Upon consummation
of the transactions contemplated hereby, Buyer will acquire good and marketable
title to the Convertible Preferred Stock free and clear of any Liens.
2.4. BROKERS, FINDERS, ETC. All negotiations relating to this Agreement
and the transactions contemplated hereby have been carried on without the
participation of any person or entity acting on behalf of Seller in such manner
as to give rise to any valid claim against Buyer for any brokerage or finder's
fee, commission or similar compensation.
2.5. NO MISSTATEMENTS OR OMISSIONS. No representation or warranty made
in this Agreement by Seller is false or misleading as to any material fact, or
omits to state a material fact required to make any of the statements made
herein not misleading in any material respect.
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3. REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Seller and the Company as follows:
3.1. ORGANIZATION OF BUYER. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of Delaware.
3.2. AUTHORITY. Buyer has all requisite power and authority to execute
and deliver this Agreement and to carry out its obligations hereunder. Buyer
has obtained all necessary corporate approvals for the execution and delivery of
this Agreement and the performance of its obligations hereunder. This Agreement
has been duly executed and delivered by Buyer and (assuming due authorization,
execution and delivery by the other parties hereto) constitutes Buyer's legal,
valid and binding obligation, enforceable against it in accordance with its
terms.
3.3. BROKERS, FINDERS, ETC. All negotiations relating to this Agreement
and the transactions contemplated hereby have been carried on without the
participation of any person or entity acting on behalf of Buyer in such manner
as to give rise to any valid claim against Seller for any brokerage or finder's
fee, commission or similar compensation, other than Bear, Stearns & Co. Inc.,
whose fees shall be paid by Buyer.
3.4. NO MISSTATEMENTS OR OMISSIONS. No representation or warranty made
in this Agreement by Buyer is false or misleading as to any material fact stated
therein, or omits to state a material fact required to make any of the
statements made therein not misleading in any material respect.
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to Seller and Buyer as follows:
4.1. ORGANIZATION OF THE COMPANY. The Company is a corporation duly
organized, validly existing and in good standing under the laws of Delaware.
4.2. AUTHORITY. The Company has all requisite power and authority to
execute and deliver this Agreement and to carry out its obligations hereunder.
The Company has obtained all necessary corporate approvals for the execution and
delivery of this Agreement and the performance of its
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obligations hereunder. This Agreement has been duly executed and delivered by
the Company and (assuming due authorization, execution and delivery by the other
parties hereto) constitutes the Company's legal, valid and binding obligation,
enforceable against it in accordance with its terms.
4.3. NO MISSTATEMENTS OR OMISSIONS. No representation or warranty made
in this Agreement by the Company is false or misleading as to any material fact
stated therein, or omits to state a material fact required to make any of the
statements made therein not misleading in any material respect.
5. INDEMNIFICATION
5.1. INDEMNIFICATION BY SELLER. Seller agrees to defend, indemnify and
hold harmless Buyer, any subsidiary or affiliate thereof and its officers,
directors, shareholders and controlling persons, employees, agents, successors
and assigns from and against any and all liabilities, losses, damages, claims,
costs, expenses, judgments, interest and penalties (including, without
limitation, attorneys', accountants' and outside advisors' fees and
disbursements) (collectively, "LOSSES") incurred as a result of, arising out of
or resulting from (i) the breach of any representation or warranty made by
Seller and contained in this Agreement or (ii) the breach of any covenant or
agreement made by Seller and contained in this Agreement.
5.2. INDEMNIFICATION BY BUYER. Buyer agrees to defend, indemnify and
hold harmless Seller, any subsidiary or affiliate thereof and its officers,
directors, shareholders and controlling persons, employees, agents, successors
and assigns from and against any and all Losses incurred as a result of, arising
out of or resulting from (i) the breach of any representation or warranty made
by Buyer and contained in this Agreement or (ii) the breach of any covenant or
agreement made by Buyer and contained in this Agreement.
5.3. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations,
warranties, covenants and agreements made by Buyer and Seller shall survive the
signing and consummation of this Agreement. All representations, covenants and
warranties made by Seller in this Agreement will be deemed to have been relied
upon by Buyer (notwithstanding any investigation by Buyer). All
representations, covenants and warranties made by Buyer in this Agreement will
be deemed to have been relied upon by Seller (notwithstanding any investigation
by Seller).
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5.4. NOTICE OF CLAIMS. An indemnified party shall give prompt written
notice to the indemnifying party of any claim against the indemnified party
which might give rise to a claim by the indemnified party against the
indemnifying party under the indemnification provisions contained herein,
stating the nature and basis of the claim and the actual or estimated amount
thereof, PROVIDED, HOWEVER, that failure to give such notice will not effect the
obligation of the indemnifying party to provide indemnification in accordance
with the terms of Section 5.1 or 5.2 unless, and only to the extent that, the
indemnifying party is actually prejudiced thereby. In the event that any
action, suit or proceeding is brought against any indemnified party with respect
to which the indemnifying party may have liability under the indemnification
provisions contained herein, the indemnifying party shall, upon written
acknowledgement by the indemnifying party that such action, suit or proceeding
is an indemnifiable Loss pursuant to Section 5.1 or 5.2, have the right, at the
cost and expense of the indemnifying party, to defend such action in the name
and on behalf of the indemnified party (using counsel satisfactory to the
indemnified party), and, in connection with any such action, the indemnified
party and the indemnifying party agree to render to each other such assistance
as may reasonably be required in order to ensure proper and adequate defense of
such action, PROVIDED, HOWEVER, that an indemnified party shall have the right
to retain its own counsel, with fees and expenses paid by the indemnifying
party, if representation of such indemnified party by counsel retained by the
indemnifying party would be inappropriate because of actual or potential
differing interests between such indemnified party and the indemnifying party.
If the indemnifying party shall fail to defend such action, suit or proceeding,
then the indemnified party shall have the right to defend such action without
prejudice to its rights to indemnification under Section 5.1 or 5.2 and, in
connection therewith, the indemnified party and the indemnifying party agree to
render to each other such assistance as may reasonably be required in order to
ensure proper and adequate defense of such action. Neither the indemnified
party nor the indemnifying party shall make any settlement of any claim which
might give rise to liability of the indemnifying party under the indemnification
provisions contained herein without the written consent of each party, which
consent shall not be unreasonably withheld, delayed or conditioned.
6. OTHER AGREEMENTS
6.1. TERMINATION OF PLEDGE. Each of Buyer and the Company hereby
consents to the termination of the Pledge
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Agreement and the release of the proceeds from the sale of the Preferred Stock
to Seller pursuant hereto, subject to any claims of Citicorp USA Inc. pursuant
to the Citicorp Pledge Agreement.
7. GENERAL
7.1. EXPENSES. All expenses of the preparation, execution and
consummation of this Agreement and of the transactions contemplated hereby
including, without limitation, attorneys', accountants' and outside advisors'
fees and disbursements, shall be borne by the party incurring such expense.
7.2. ENTIRE AGREEMENT. This Agreement contains the entire understanding
of the parties and supersede all prior agreements and understandings relating to
the subject matter hereof and this Agreement shall not be amended except by a
written instrument hereafter signed by all of the parties hereto.
7.3. ASSIGNMENT. None of the parties hereto may assign its rights or
delegate its obligations under this Agreement without the written consent of the
other parties hereto. This Agreement and all of the provisions hereof shall be
binding upon and inure only to the benefit of the parties hereto and their
respective heirs, executors, personal representatives and successors.
7.4. FURTHER ACTION. Each of the parties hereto shall use all
reasonable efforts to do, or cause to be done, all things necessary, proper or
advisable under applicable law to carry out the provisions of this Agreement and
shall execute and deliver such documents and other papers as may be required to
carry out the provisions of this Agreement.
7.5. NOTICES. All notices, requests, claims, demands and ther
communications hereunder shall be in writing and shall be deemed given if
delivered personally or by fax or mailed by registered or certified mail (return
receipt requested) to the parties at the following addresses (or at such other
address for a party as shall be specified by like notice):
if to Buyer, a copy to:
Intermedia Communications Inc.
3625 Queen Palm Drive
Tampa, Florida 33619
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Attention: Chief Financial Officer
Telecopy: (813) 829-2470
with a copy to:
Kronish, Lieb, Weiner & Hellman LLP
1114 Avenue of the Americas
New York, NY 10036
Attention: Ralph J. Sutcliffe, Esq.
Telecopy: (212) 479-6275
if to Seller, a copy to:
RHI Holdings, Inc.
c/o The Fairchild Corporation
300 West Service Road
P.O. Box 10803
Chantilly, VA 22021
Telecopy No.: (703) 478-5775
Attention: Donald E. Miller, Esq.
if to the Company, a copy to:
Shared Technologies, Inc.
100 Great Meadow Road, Suite 104
Wethersfield, CT 06109
Telecopy No.: (860) 258-2455
Attention: Kenneth M. Dorros, Esq.
with a copy to:
Cahill Gordon & Reindel
80 Pine Street
New York, NY 10005
Telecopy No.: (212) 269-5420
Attention: James J. Clark, Esq.
7.6. SPECIFIC PERFORMANCE. The parties agree that due to the unique
subject matter of this transaction, monetary damages will be insufficient to
compensate the non-breaching party in the event of a breach of any part of this
Agreement. Accordingly, the parties agree that the non-breaching party shall
be entitled (without prejudice to any other right or remedy to which it may be
entitled) to an appropriate decree of specific performance, or an injunction
restraining any violation of this Agreement or other equitable remedies to
enforce this Agreement (without establishing the likelihood of irreparable
injury or posting bond or other security), and the
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breaching party waives in any action or proceeding brought to enforce this
Agreement the defense that there exists an adequate remedy at law.
7.7. 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 thereby 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 a mutually acceptable manner in
order that the transactions contemplated by this Agreement be consummated as
originally contemplated to the fullest extent possible.
7.8. HEADINGS. The headings of Sections and Subsections are for
reference only and shall not limit or control the meaning thereof.
7.9. COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
7.10. GOVERNING LAW. THE VALIDITY AND CONSTRUCTION OF THIS AGREEMENT
SHALL BE GOVERNED BY THE INTERNAL LAWS (AND NOT THE PRINCIPLES OF CONFLICT OF
LAWS) OF THE STATE OF DELAWARE.
7.11. VENUE. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT SHALL BE BROUGHT EXCLUSIVELY IN THE COURTS OF THE STATE OF DELAWARE OR
OF THE UNITED STATES OF AMERICA RESIDING IN THE STATE OF DELAWARE AND, BY
EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH PARTY HERETO HEREBY ACCEPT FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE
EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS. EACH PARTY HEREBY WAIVES, AND
AGREES NOT TO ASSERT, AS A DEFENSE IN ANY ACTION, SUIT OR PROCEEDING FOR THE
INTERPRETATION OR ENFORCEMENT OF THIS AGREEMENT THAT IT IS NOT SUBJECT THERETO
OR THAT SUCH ACTION, SUIT OR PROCEEDING MAY NOT BE BROUGHT OR IS NOT
MAINTAINABLE IN SAID COURTS OR THAT THIS AGREEMENT MAY NOT BE ENFORCED IN OR BY
SAID COURTS OR THAT ITS PROPERTY IS EXEMPT OR IMMUNE FROM EXECUTION, THAT THE
SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM, THAT
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THE VENUE OF THE SUIT, ACTION OR PROCEEDING IS IMPROPER OR (PROVIDED THAT
PROCESS SHALL BE SERVED IN ANY MANNER REFERRED TO IN THE FOLLOWING SENTENCE)
THAT SERVICE OF PROCESS UPON SUCH PARTY IS INEFFECTIVE. EACH PARTY AGREES THAT
SERVICE OF PROCESS IN ANY SUCH ACTION, SUIT OR PROCEEDING AGAINST IT WITH
RESPECT TO THIS AGREEMENT MAY BE MADE UPON IT IN ANY MANNER PERMITTED BY THE
LAWS OF THE STATE OF DELAWARE OR THE FEDERAL LAWS OF THE UNITED STATES. SERVICE
OF PROCESS IN ANY MANNER REFERRED TO IN THE PRECEDING SENTENCE SHALL BE DEEMED,
IN EVERY RESPECT, EFFECTIVE SERVICE OF PROCESS UPON SUCH PARTY.
[SIGNATURE PAGE FOLLOWS]
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7.12. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY WAIVES
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY OR AGAINST IT
ON ANY MATTERS WHATSOEVER, IN CONTRACT OR IN TORT, ARISING OUT OF OR IN ANY WAY
CONNECTED WITH THIS AGREEMENT.
IN WITNESS WHEREOF, and intending to be legally bound thereby, the parties
hereto have caused this Agreement to be duly executed and delivered by their
duly authorized officers as of the date and year first above written.
INTERMEDIA COMMUNICATIONS INC.
By: ______________________
Name:
Title:
RHI HOLDINGS, INC.
By: ______________________
Name:
Title:
SHARED TECHNOLOGIES FAIRCHILD INC.
By: ______________________
Name:
Title:
By signing below each of Shared Technologies Fairchild Inc. (formerly known
as Shared Technologies, Inc.), RHI Holdings, Inc. and Anthony D. Autorino hereby
consent to the transactions contemplated by this Agreement and hereby amend the
terms of that certain Shareholder's Agreement, dated March 13, 1996, to the
extent necessary to permit the transactions contemplated by the terms of this
Agreement.
SHARED TECHNOLOGIES FAIRCHILD INC.
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By: ______________________
Name:
Title:
RHI HOLDINGS, INC.
By: ______________________
Name:
Title:
___________________________
ANTHONY D. AUTORINO