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EXHIBIT 5
VOTING AGREEMENT
This VOTING AGREEMENT (the "Agreement"), is made and entered into as
of May 20, 1999, between the E. ▇▇▇ ▇▇▇▇▇▇ Revocable Trust Agreement dated June
7, 1995 and E. ▇▇▇ ▇▇▇▇▇▇ as an individual (collectively, the "Shareholder"), a
shareholder of AmeriLink Corporation, an Ohio corporation ("Target"), and Tandy
Corporation, a Delaware corporation ("Acquiror").
WHEREAS, concurrently with the execution and delivery of this
Agreement, Target and Acquiror are entering into an Agreement and Plan of
Reorganization dated as of the date hereof (the "Reorganization Agreement"),
providing for the merger of a wholly owned subsidiary of Acquiror with and into
Target (the "Merger") pursuant to the terms and conditions thereof; and
WHEREAS, as a condition and an inducement to Acquiror entering into
the Reorganization Agreement, pursuant to which Shareholder will receive the
consideration provided for in the Reorganization Agreement in exchange for the
common shares, without par, of Target (the "Target Common Shares") owned by
Shareholder, Acquiror has required that Shareholder agree, and Shareholder has
so agreed, to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements set forth herein and in the Reorganization Agreement,
the receipt, sufficiency and adequacy of which is hereby acknowledged, the
parties hereto agree as follows:
1. Representations of the Shareholder. Shareholder represents and
warrants to Acquiror that:
(a) Shareholder is the beneficial owner of that number of Target
Common Shares set forth on Exhibit A (collectively, the "Shareholder's
Shares"), and no other person owns, directly or indirectly, any interest in the
Shareholder's Shares;
(b) Shareholder does not beneficially own (as such term is defined in
the Securities Exchange Act of 1934, as amended (the "Exchange Act")) or own of
record any Target Common Shares other than the Shareholder's Shares, but
excluding any Target Common Shares which Shareholder has the right to obtain
upon the exercise of stock options outstanding on the date hereof;
(c) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ is, and at all times relevant hereto has been, the
duly appointed, qualified and acting Trustee of the E. ▇▇▇ ▇▇▇▇▇▇ Revocable
Trust Agreement dated June 7, 1995 (the "Trust"), a trust established under the
laws of Ohio, and as such is authorized to execute and deliver this Voting
Agreement on behalf of the Trust; the Trust has never been amended; and the
agreement governing the Trust is in full force and effect on the date hereof;
(d) Shareholder has the right, power and authority to execute and
deliver this Agreement and to perform Shareholder's obligations under this
Agreement, and this Agreement has been duly executed and delivered by
Shareholder and constitutes a valid and legally binding agreement of
Shareholder, enforceable in accordance with its terms; and such execution,
delivery and performance by Shareholder of this Agreement will not (i) conflict
with, require a
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consent, waiver or approval under, or result in a breach of or default under,
any of the terms of any contract, agreement, understanding, commitment or other
obligation (written or oral) to which Shareholder is a party or by which
Shareholder is bound; (ii) violate any order, judgment, writ, injunction,
decree or statute, or any rule or regulation, applicable to Shareholder or any
of the properties or assets of Shareholder (including without limitation any
provision of the Ohio General Corporation Law applicable to a business
combination, control share acquisition or similar transaction); or (iii) result
in the creation of, or impose any obligation on Shareholder to create, any
lien, charge or other encumbrance of any nature whatsoever upon the
Shareholder's Shares, other than in favor of Acquiror or its affiliates; and
(e) Shareholder has not granted any proxy to any person to vote the
Shareholder's Shares.
The representations and warranties contained herein shall be made as
of the date hereof and as of each date from the date hereof through and
including the date that the Merger is consummated or this Agreement is
terminated in accordance with its terms.
2. Agreement to Vote Shares. Shareholder shall be present (in person
or by proxy) at and vote the Shareholder's Shares (including any New Shares (as
defined in Section 4 hereof)), and shall cause any holder of record of the
Shareholder's Shares (including any New Shares) to be present and vote, (a) in
favor of adoption and approval of the Reorganization Agreement and the Merger
(and each other action and transaction contemplated by the Reorganization
Agreement or by this Agreement) and (b) against any Takeover Proposal (as
defined in the Reorganization Agreement) other than the Merger (or any other
Takeover Proposal of Acquiror) and against any proposed action or transaction
that would prevent or intentionally delay consummation of the Merger (or other
Takeover Proposal of Acquiror) or is otherwise inconsistent therewith
(including, without limitation, (A) any action or agreement that would result
in a breach in any respect of any covenant, representation or warranty or any
other obligation or agreement of Target under the Reorganization Agreement or
of Shareholder under this Agreement, (B) any extraordinary corporate
transaction, such as a merger, consolidation or other business combination
involving Target or its Subsidiaries (as defined in the Reorganization
Agreement), (C) a sale, lease or transfer of a material amount of assets of
Target or its Subsidiaries, or a reorganization, recapitalization, dissolution
or liquidation of Target or its Subsidiaries, (D) (1) any change in the present
capitalization of Target or any amendment of Target's Articles of Incorporation
or Code of Regulations, (2) any other material change in Target's corporate
structure or business, or (3) any other action involving Target or its
Subsidiaries which is intended, or could reasonably be expected, to materially
delay or materially and adversely affect the Merger and the transactions
contemplated by this Agreement and the Reorganization Agreement at every
meeting of the shareholders of Target at which any such matters are considered
and at every adjournment thereof (and, if applicable, in connection with any
request or solicitation of written consents of shareholders). Notwithstanding
anything in this Agreement to the contrary, Shareholder shall not be obligated
under this Agreement to vote a particular way with respect to the election of
directors of Target, and Acquiror shall not have any right under this Agreement
to exercise or direct the exercise of any voting rights with respect to the
election of directors of Target.
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Any such vote shall be cast, or consent shall be given, in accordance
with such procedures relating thereto as shall ensure that it is duly counted
for purposes of determining that a quorum is present and for purposes of
recording the results of such vote or consent. Shareholder hereby revokes any
and all previous proxies granted with respect to the Shareholder's Shares.
Shareholder shall also use reasonable best efforts to take, or cause to be
taken, all action, and do, or cause to be done, all things necessary or
advisable in order to consummate and make effective the transactions
contemplated by this Agreement, and shall not enter into any agreement or
understanding with any person or entity the effect of which would be
inconsistent with or violative of the provisions and agreements contained in
this Agreement.
3. No Voting Trusts. After the date hereof, Shareholder shall not, nor
shall Shareholder permit any entity under Shareholder's control to, deposit any
of the Shareholder's Shares (including any New Shares) in a voting trust or
subject any of the Shareholder's Shares (including any New Shares) to any lien
or agreement, proxy, arrangement or understanding with respect to the voting of
the Shareholder's Shares (including any New Shares) other than in accordance
with Section 2.
4. Additional Purchases. Shareholder agrees that in the event (a) of
any stock dividend, stock split, recapitalization, reclassification,
combination or exchange of shares of stock of Target on, of or affecting the
Shareholder's Shares, (b) Shareholder purchases or otherwise acquires
beneficial ownership of any Target Common Shares after the execution of this
Agreement (including by exercise of options), or (c) Shareholder acquires the
right to vote or share in the voting of any Target Common Shares other than the
Shareholder's Shares theretofore beneficially owned (collectively, "New
Shares"), such New Shares shall in all respects be subject to the terms of this
Agreement and shall in all respects constitute the Shareholder's Shares to the
same extent as if they were owned by Shareholder on the date hereof.
5. No Encumbrances.
(a) Except as expressly contemplated by this Agreement, the
Shareholder's Shares and the certificates representing the Shareholder's Shares
are now, and at all times during the term hereof shall be, held by Shareholder,
or by a nominee or custodian for the benefit of Shareholder, free and clear of
all liens, claims, security interests, proxies, voting trusts or agreements,
understandings or arrangements or any other encumbrances whatsoever (other than
to the extent set forth on Schedule 1 to this Agreement), except for any such
encumbrances or proxies arising hereunder.
(b) Notwithstanding the foregoing, Shareholder shall be permitted to
sell (or pledge to Target in support of a loan) such portion of New Shares (but
may not sell any New Shares to Target or its Subsidiaries (as defined in the
Reorganization Agreement)) solely to pay the exercise price of any employee
stock options and tax liabilities in respect of an exercise of employee stock
options; provided that any such New Shares sold (or pledged) shall be subject
to the terms of this Agreement.
6. No Solicitation. Shareholder shall not, directly or indirectly (i)
take any action to solicit, initiate or encourage any Takeover Proposal (as
defined in the Reorganization
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Agreement) or (ii) engage in negotiations or discussions with, or disclose any
nonpublic information relating to Target or any of its Subsidiaries, to any
person that has advised Target that it may be considering making, or that has
made, a Takeover Proposal. Shareholder will promptly notify Acquiror after
receipt of any Takeover Proposal or any notice that any person is considering
making a Takeover Proposal or any request for nonpublic information relating to
Target or any of its Subsidiaries or for access to the properties, books or
records of Target or any of its Subsidiaries by any person that has advised
Target that it may be considering making, or that has made a Takeover Proposal
and will keep Acquiror fully informed of the status and details of any such
Takeover Proposal notice, and shall provide Acquiror with a true and complete
copy of such Takeover Proposal notice or any amendment thereto, if it is in
writing, or a complete written summary thereof, if it is not in writing.
7. Appraisal Rights. Shareholder agrees not to exercise any rights
(including, without limitation, under Sections 1701.84 and 1701.85 of the Ohio
General Corporation Law) to demand appraisal of any Target Common Shares which
may arise with respect to the Merger.
8. Reliance by Acquiror. Shareholder understands and acknowledges that
Acquiror is entering into the Reorganization Agreement in reliance upon
Shareholder's execution, delivery and performance of this Agreement.
9. Action in Shareholder Capacity Only. Shareholder does not hereunder
make any agreement or understanding in his or her capacity as an officer or
director of Target. Shareholder signs this Agreement solely in Shareholder's
capacity as a beneficial owner of the Shares, and nothing herein shall limit or
affect any actions taken in Shareholder's capacity as an officer or director of
Target.
10. Specific Performance. Shareholder acknowledges that it will be
impossible to measure in money the damage to the Acquiror if Shareholder fails
to comply with any of the obligations imposed by this Agreement, that every
such obligation is material and that, in the event of any such failure,
Acquiror will not have an adequate remedy at law or damages. Accordingly,
Shareholder agrees that injunctive relief or other equitable remedy, in
addition to remedies at law or damages, is the appropriate remedy for any such
failure and will not oppose the granting of such relief on the basis that
Acquiror has an adequate remedy at law. Shareholder agrees that Shareholder
will not seek, and agrees to waive any requirement for, the securing or posting
of a bond in connection with Acquiror's seeking or obtaining such equitable
relief.
11. Heirs, Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective heirs,
successors and assigns and shall not be assignable without the written consent
of all other parties hereto other than any assignment in whole or in part by
Acquiror. Any such purported assignment in violation of this Section 11 shall
be void.
12. Entire Agreement. This Agreement supersedes all prior agreements,
written or oral, among the parties hereto with respect to the subject matter
hereof and contains the entire agreement among the parties with respect to the
subject matter hereof. This Agreement may not be amended, supplemented or
modified, and no provisions hereof may be modified or waived,
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except by an instrument in writing signed by all the parties hereto. No waiver
of any provisions hereof by any party shall be deemed a waiver of any other
provisions hereof by any such party, nor shall any such waiver be deemed a
continuing waiver of any provision hereof by such party.
13. Miscellaneous.
(a) Expenses. Each of the parties hereto shall bear and pay all costs
and expenses incurred by it or on its behalf in connection with the negotiation
of this Agreement, including fees and expenses of its own financial
consultants, investment bankers, accountants and counsel.
(b) Amendment. This Agreement may not be amended, except by an
instrument in writing signed on behalf of each of the parties.
(c) Governing Law. This Agreement shall be deemed a contract made
under, and for all purposes shall be construed in accordance with, the internal
laws of the State of Ohio without regard to principles of conflicts of law.
(d) Severability. If any provision of this Agreement or the
application of such provision to any person or circumstances shall be held
invalid by a court of competent jurisdiction, the remainder of the provision
held invalid and the application of such provision to persons or circumstances,
other than the party as to which it is held invalid, shall not be affected.
(e) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
(f) Termination. This Agreement shall terminate and be of no further
force and effect upon the earliest to occur of (A) the Effective Time (as
defined in the Reorganization Agreement), (B) the termination of the
Reorganization Agreement pursuant to Section 7.1 thereof (other than a
termination in connection with which Acquiror is or will be entitled to any
payments as specified in Sections 7.3(b) or (c) thereof); (C) 181 days
following any termination of the Reorganization Agreement in connection with
which Acquiror is or will be entitled to a payment as specified in Section
7.3(b) thereof; (D) 12 months and one day following any termination of the
Reorganization Agreement in connection with which Acquiror is or could be
entitled to a payment as specified in Section 7.3(c) thereof; (E) the day after
the date on which Target pays Acquiror the $2,500,000 termination fee and all
other amounts payable to Acquiror pursuant to Section 7.3(b) or 7.3(c) of the
Reorganization Agreement; or (F) the date Acquiror specifies in a written
notice of termination of this Agreement provided by Acquiror, in its sole
discretion, to Shareholder; provided further that no such termination shall
extinguish any liability of a party for breach of its obligations under this
Agreement.
(g) Headings. All Section headings herein are for convenience of
reference only and are not part of this Agreement and no construction or
reference shall be derived therefrom.
(h) Notices. All notices, requests, claims, demands, and other
communications under this Agreement must be in writing and shall be deemed
given if delivered personally or by
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commercial delivery service, or mailed by registered or certified mail (return
receipt requested) or sent via facsimile (with confirmation of receipt) to the
parties at the following address (or at such other address for a party as shall
be specified by like notice):
if to Acquiror, to: Tandy Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
if to Shareholder, to: E. ▇▇▇ ▇▇▇▇▇▇
P. O. ▇▇▇ ▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
with copies to: The E. ▇▇▇ ▇▇▇▇▇▇ Revocable Trust Agreement
dated June 7, 1995
c/o ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
and
Squire, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
(i) Restrictive Legend. Shareholder shall cause certificates for the
Shareholder's Shares and New Shares to have typed or printed thereon a
restrictive legend which shall read substantially as follows (if and to the
extent true and necessary in light of legal and factual circumstances existing
at such time):
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"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
PROVISIONS AS SET FORTH IN THAT CERTAIN VOTING AGREEMENT, DATED AS OF MAY 20,
1999, A COPY OF WHICH WILL BE MAILED BY AMERILINK CORPORATION TO THE
SHAREHOLDER WITHOUT CHARGE WITHIN FIVE DAYS AFTER RECEIPT OF A WRITTEN REQUEST
THEREFOR, WHICH CONTAINS RESTRICTIONS ON THE VOTING AND TRANSFER THEREOF."
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement as of the date first written above.
TANDY CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Title: Chairman, President & CEO
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SHAREHOLDER:
E. ▇▇▇ ▇▇▇▇▇▇ REVOCABLE TRUST
AGREEMENT DATED JUNE 7, 1995
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, TRUSTEE
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Trustee
/s/ E. ▇▇▇ ▇▇▇▇▇▇ BY ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ P.O.A.
-------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ as attorney-in-fact for E.
▇▇▇ ▇▇▇▇▇▇ in his individual capacity
The undersigned spouse of E. ▇▇▇ ▇▇▇▇▇▇ hereunto subscribes her name
in evidence of and in consent to E. ▇▇▇ ▇▇▇▇▇▇'▇ agreements made concerning the
Common Shares of AmeriLink Corporation referred to in the foregoing Voting
Agreement, and to all other provisions thereof, as of the 20th day of May,
1999.
N/A
-----------------------------------------
Name:
-----------------------------------
Spouse of E. ▇▇▇ ▇▇▇▇▇▇
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EXHIBIT A
Number of
Target Common Shares
Name Beneficially Owned Type of Ownership
---------------- -------------------------------- ------------------------
E. ▇▇▇ ▇▇▇▇▇▇ 611,186