This VOTING TRUST AGREEMENT, dated as of February 22, 1997, among DANIEL BORISLOW (\"Trustee\"), AMERICA ONLINE, INC., a Delaware corporation(\"AOL\") and TEL-SAVE HOLDINGS, INC., a Delaware corporation (\"Holdings\"). Capitalized terms used herein without definition shall have the meanings set forth in the Marketing Agreement described in the first recital below.
WHEREAS, AOL, Tel-Save, Inc., a Pennsylvania corporation (\"TS\") and Holdings have entered into a telecommunications marketing agreement (the\"Marketing Agreement\"), dated as of February 22, 1997, pursuant to which AOL has agreed to market telecommunications services to be provided by TS to customers of AOL\'s online services on the terms and subject to the conditions set forth therein;
WHEREAS, pursuant to the terms of the Marketing Agreement, Holdings
entered into two Warrant Agreements, each dated as of the date hereof (together with each Additional Warrant described below, the \"Warrants\" or individually, a \"Warrant\"), one giving AOL the right to acquire 5,000,000 shares of the common stock, par value $.01 per share, of Holdings (the \"Holdings Common Stock\") on the terms and subject to the conditions thereof, and the other giving AOL the right to acquire up to 7,000,000 shares of Holdings Common Stock on the terms and subject to the conditions thereof;
WHEREAS, upon the terms and conditions of the Marketing Agreement, in
connection with each of the first two Extension Periods elected by AOL, if any, Holdings shall deliver to AOL an Additional Warrant to purchase up to 1,000,000 shares of Holdings Common Stock;
WHEREAS, pursuant to the terms and conditions of the Marketing
Agreement, AOL, TS and Holdings have entered into a Warrantholder and Stockholders Agreement, dated as of the date hereof (the \"Warrantholder and Stockholder Agreement\"), pursuant to which AOL has been granted certain registration rights in connection with the Holdings Common Stock issuable to AOL pursuant to the exercise of the Warrants in accordance with its terms and has agreed to certain restrictions on the resale of the Holdings Common Stock; and
WHEREAS, AOL has agreed to give Trustee the right to vote all of the
shares of Holdings Common Stock to be issued to it upon exercise of its
Warrants, upon the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the terms and conditions herein
contained, each of the parties, intending to be legally bound hereby, agree as follows:
1. Creation of Voting Trust. Upon exercise of any of the Warrants by AOL, AOL agrees, subject to Section 3 below, that the certificates for those shares of Holdings Common Stock issued upon such exercise will be registered in the name of AOL and AOL shall immediately transfer and deposit with Trustee, duly endorsed, or accompanied by duly executed stock powers in favor of Trustee pursuant to Section 6 below, all such certificates for the purpose of vesting in Trustee such rights and voting powers as are more fully set forth herein and subject to the terms and conditions set forth herein. All voting securities of Holdings received by AOL with respect to the Holdings Common Stock originally transferred to Trustee, including, but not limited to, stock dividends, stock splits, and other recapitalizations, shall likewise be held in trust with the Trustee. Such voting securities of Holdings received with respect, and in addition, to the Holdings Common Stock originally transferred to Trustee are hereafter referred to collectively as the \"Trust Stock.\" (b) In exchange for such Trust Stock, Trustee shall issue to AOL (or any transferee of AOL provided AOL gives written notice to Trustee of the name and address of the transferee) voting trust certificates (\"Trust Certificates\"), in the form attached hereto as Appendix 1. All distributions received with respect to the Trust Stock that are not in the form of voting securities of Holdings, including, but not limited to, cash dividends, cash distributions and non-voting securities, shall be promptly transferred by Trustee to AOL or to the then holder of the Trust Certificates if AOL has advised Trustee in writing of any transfer of the Trust Certificates as provided above. Trustee hereby accepts his appointment as[page]
voting trustee hereunder.
2. Power and Authority of Trustee. Trustee shall possess and be
entitled to exercise all of the voting rights and voting powers of an absolute
owner of the Trust Stock including, but not limited to, the power to vote (i)
for election or removal of directors, (ii) for amendments to Holdings\' Articles
of Incorporation or By-laws, and (iii) to merge, consolidate, liquidate or
dissolve Holdings or sell all or substantially all of the assets of Holdings.
Further, in connection with the election of a Company Designee(s) (as defined in the Warrantholder and Stockholders Agreement), Trustee shall vote such Trust Stock and any shares of Holdings Common Stock beneficially owned by Trustee in favor of such Company Designee(s).
3. Term. The trust hereby created shall terminate upon the earlier to occur of (i) Trustee ceasing to serve as either the Chief Executive Officer or
Chairman of the Board (and as Chairman is involved in the business affairs of Holdings) of Holdings; (ii) the sale of all of the Trust Stock issued and
issuable to AOL upon exercise of its Warrants in accordance with the terms and conditions hereof; and (iii) a \"change of control\" of Holdings. A \"change of control\" shall be deemed to have occurred upon the happening of any of the following events:
（1） A person other than Mr. Borislow or Gary McCulla is elected by the Board of Directors to serve as the Holdings\' principal executive
officer;
（2）During any period of twelve consecutive months, individuals who at the beginning of such period constituted the Board of Directors of Holdings (together with any new or replacement directors whose election by the Board of Directors or whose nomination for election by Holdings\' stockholders was approved by a vote of at least 66-2/3% of the directors then still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the directors then in office;
（3） Within any period of twelve consecutive months, any \"person\" or \"group\" (each as defined in Section 13(d) of the Securities Exchange Act of 1934, as amended (the \"Exchange Act\")), who or which was not an \"Affiliate\" (as defined in the Exchange Act) of Holdings at the beginning of
such period, becomes the \"beneficial owner\" (as defined in Rule 13d-3 under the Exchange Act) of more than 50% of the total voting power of all classes of voting stock of Holdings; or
（4） Any merger, consolidation, sale of all or substantially all of the assets of Holdings or stock acquisition. Upon termination of this Agreement (either pursuant to this Section 3 or Section 4), the Trustee shall deliver certificates for the Trust Stock then held by the Trustee to AOL or the then holders of the Trust Certificates.
4. AOL\'s Right to Sell Trust Stock. AOL shall have the right, at any time, to withdraw Trust Stock from the Voting Trust created hereunder if it intends to immediately sell such stock, either privately or publicly; provided
that such sale is made pursuant to the terms and conditions of the Warrantholder and Stockholders Agreement (including the provisions restricting the resale of such Trust Stock) and not in violation of the provisions of subparagraph (b) below. If AOL shall elect to exercise such right, the Voting Trustee shall use all reasonable efforts to withdraw the Trust Stock from the Voting Trust as soon as practicable to permit such sale; provided that if such sale is not effected, AOL shall promptly return any such stock to the Voting Trust and such stock shall, until such sale, continue to be Voting Stock.
(b) For the term of this Agreement, AOL shall not be permitted to do,
either directly or indirectly, any of the following:
(i) knowingly sell any of the Trust Stock to any person or group(within the meaning of Section 13(d) of the Securities Exchange Act of 1934, as amended and related rules (the \"Exchange Act\") who has publicly indicated the desire or intention to acquire Holdings by merger, consolidation or other form of business combination or to acquire any or all or substantially all of the assets of Holdings;[page]
(ii) knowingly become a member of a group other than with any related person(s) for the purpose of acquiring, holding, disposing or voting of securities of Holdings (within the meaning of Section 13(d) of the Exchange Act and related rules);unless, in the event of clause (i), Mr. Borislow shall have indicated his ntention to sell to such group and, in the case of clause (ii), the Board of Directors of Holdings shall not have rejected the offer.
(c) Upon the sale of such Trust Stock in accordance with the terms
and conditions hereof, such stock shall cease to be Trust Stock.
5. Trustee\'s Duties and Immunities. In voting the shares of Trust Stock or in doing any act with respect to the control or management of Holdings or its affairs, either in person or by proxy, Trustee shall act in good faith. AOL hereby waives any conflict of interest that Trustee may personally have so
long as Trustee has acted in good faith. Trustee shall not be liable for any
error of judgment or mistake of law or other mistake, and shall not be
responsible for any act or omission with respect to his duties and
responsibilities as voting trustee, or for any losses that may result therefrom,
unless such losses can be proven by clear and convincing evidence to be the result of willful misconduct, gross negligence or bad faith.
6. Endorsement. The certificates for shares of Holdings Common Stock
issued to AOL and transferred and assigned to Trustee hereunder shall be endorsed as follows:The shares represented by this certificate are subject to restrictions imposed by the federal Securities Act of 1933, as amended and applicable state securities laws. The shares may not be sold or transferred in the absence of registration or an exemption therefrom under such Securities Act of 1933 and such applicable state securities laws.In addition, all shares represented by this certificate are subject to a Warrantholder and Stockholder Agreement dated as of February 22, 1997, and a Voting Trust Agreement, dated as of the same date, both of which are at the office of Tel-Save Holdings,Inc., New Hope, Pennsylvania.
7. Trustee\'s Indemnity. Trustee shall be entitled to be indemnified fully against all costs, charges, expenses and other liabilities properly incurred by Trustee in the exercise of any power conferred upon him by these presents; and AOL hereby covenants with Trustee that in the event that AOL shall hold harmless and keep indemnified Trustee from all loss or damage that he may sustain or be put to by reason of anything he may lawfully do in the execution of this Agreement.
8. Appointment of Substitute Trustee. In the event that Trustee is unable for any reason to vote the Trust Stock, but continues to hold the office of Chief Executive Officer or Chairman of the Board (and as Chairman is involved in the business affairs of Holdings) of Holdings, Trustee shall appoint a substitute Trustee (and give notice to AOL of such appointment), and any person so appointed shall thereupon be vested with all the duties, powers and authority of a Trustee hereunder as if originally named herein for the sole purpose of casting a particular vote at the direction of Trustee.
9. Reports. Trustee is hereby authorized and instructed to prepare
and file any reports with respect to the Trust Stock as may be required under state or federal securities laws. AOL will cooperate in any way as may be reasonably necessary for the preparation and filing of any such reports.
10. General. This Agreement contains the entire understanding and
agreement of the parties with respect to the subject matter contained herein. No amendment or supplement to this Agreement or waiver hereof shall be binding unless reduced to writing and signed by all of the parties hereto. Words shall be construed to be of such number and gender as the circumstances require. This Agreement shall inure to the benefit of and be legally binding upon the parties hereto and the heirs, executors, administrators, successors, assigns, and transferees of them and each of them. This Agreement shall be construed and enforced in accordance with the laws of the State of Delaware applicable to contracts made and to be performed solely in the State of Delaware. This Agreement may be executed in one or more counterparts, each of which so executed shall be deemed to be an original and such counterparts shall, together, constitute and be one and the same document.[page]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
the day and year first above written.
TEL-SAVE HOLDINGS, INC. AMERICA ONLINE, INC
By:_________________________ By:_________________________
Name: Daniel Borislow Name: David M. Colburn
Title: Chairman & CEO Title: Senior Vice-President
By:_________________________
DANIEL BORISLOW,
Voting Trustee
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