EXHIBIT 5
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VOTING AGREEMENT
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VOTING AGREEMENT, dated as of April 26, 1999 (this "Agreement"),
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between CFW Communications Company (the "Stockholder") and Sprint Corporation,
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a Kansas corporation (the "Parent").
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WHEREAS, American Telecasting, Inc., a Delaware corporation (the
"Company"), Parent, and DD Acquisition, Corp., a Delaware corporation and a
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wholly owned subsidiary of Parent ("Purchaser"), have, substantially
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contemporaneously with the execution of this Agreement, entered into an
Agreement and Plan of Merger, dated as of the date hereof (as the same may be
amended, supplemented or otherwise modified, the "Merger Agreement"), which
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provides, among other things, that Purchaser shall be merged with and into the
Company (the "Merger"), upon the terms and subject to the conditions set forth
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in the Merger Agreement (capitalized terms used but not defined herein having
the respective meanings ascribed to them in the Merger Agreement);
WHEREAS, as a condition to the willingness of Parent to enter into the
Merger Agreement, Parent has required that the Stockholder agree, and in order
to induce Parent to enter into the Merger Agreement, the Stockholder has agreed,
to enter into this Agreement;
WHEREAS, as of the date hereof, the Stockholder is the record owner of
1,412,112 shares of Company Common Stock (such shares of Company Common Stock,
together with associated Rights, being collectively referred to herein as the
"Voting Agreement Shares").
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NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, the parties hereto expressly agree as
follows:
1. Restrictions on Transfer and Conversion.
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a. The Stockholder hereby covenants and agrees that the Stockholder
shall not, except with respect to existing pledge agreements or
as otherwise consented to in writing by Parent in its sole
discretion, prior to the termination of this Agreement, (i)
either directly or indirectly, offer or otherwise sell, assign,
pledge, hypothecate, transfer, exchange, tender, dispose or grant
an option to dispose of any Voting Agreement Shares or any
interest therein, or agree to do any of the foregoing, or (ii)
take any action which would have the effect of preventing or
disabling the Stockholder from performing the Stockholder's
obligations under this Agreement; provided, that the Stockholder
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may
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transfer up to 200,000 Voting Agreement Shares to CFW
Communications Foundation.
b. No violation of the foregoing provisions of this Section 1 shall
operate to terminate this Agreement.
2. Stockholder's Rights. The Stockholder shall, as to the Voting
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Agreement Shares, possess and be entitled to exercise all
stockholder's rights and powers of every kind as the beneficial owner
thereof, including the right to vote the Voting Agreement Shares and
the right to take part in, or give or withhold consent to, any
corporate or stockholders' action with respect to which such Voting
Agreement Shares are entitled to be voted, except as such rights are
limited by this Agreement.
3. Voting Agreement.
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a. The Stockholder has revoked or terminated any proxies, voting
agreements or similar arrangements previously given or entered
into with respect to the Voting Agreement Shares as to the
matters set forth below and hereby irrevocably appoints Parent,
during the term of this Agreement, as proxy for the Stockholder
to: (i) vote all of the Voting Agreement Shares in favor of the
adoption and approval of the Merger Agreement; and (ii) vote all
of the Voting Agreement Shares against: (A) any extraordinary
corporate transaction (other than the Merger), such as a merger,
consolidation, business combination, tender or exchange offer,
reorganization, recapitalization, liquidation or other change of
control involving the Company or any of its subsidiaries,
including, but not limited to, any Acquisition Proposal, and (B)
any sale or transfer of a material amount of the assets or
securities of the Company or any of its Subsidiaries (other than
pursuant to the Merger).
b. The Stockholder shall vote on all issues other than those
specified in Section 3(a) that come before any meeting of
stockholders of the Company in such Stockholder's sole
discretion, provided that such vote is not inconsistent with the
purposes of this Agreement.
4. Representations and Warranties of the Stockholder. The Stockholder
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hereby represents and warrants to Parent as follows:
a. This Agreement has been duly and validly executed and delivered
by the Stockholder and, assuming it constitutes a valid and
binding agreement of Parent, constitutes a legal, valid and
binding agreement of the Stockholder enforceable against the
Stockholder in accordance with its terms, except that the
enforcement hereof may be limited by (i) bankruptcy, insolvency,
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reorganization, moratorium or other similar laws now or hereafter
in effect relating to creditors' rights generally and (ii)
general principles of equity (regardless of whether
enforceability is considered in a proceeding in equity or at
law).
b. The execution and delivery of this Agreement by the Stockholder
does not, and the performance of this Agreement by the
Stockholder will not, 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 the
Voting Agreement Shares pursuant to, any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise
or other instrument or obligation to which the Stockholder is a
party or by which the Stockholder or the Voting Agreement Shares
are bound or affected, except, in the case of each of the
foregoing, for any such conflicts, violations, breaches, defaults
or other occurrences which would not prevent or materially delay
the performance by the Stockholder of its obligations under this
Agreement or the transactions contemplated hereby.
c. As of the date hereof, the Stockholder is the record owner of the
Voting Agreement Shares and has the right to vote or direct the
voting of the Voting Agreement Shares. The Voting Agreement
Shares, or a portion thereof, may be subject to existing security
interests, liens, claims or pledges. The Stockholder has not
appointed or granted any proxy, which appointment or grant is
still effective, with respect to the Voting Agreement Shares.
5. Termination. This Agreement shall terminate upon the earliest to
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occur of (i) the termination of the Merger Agreement in accordance
with its terms, (ii) the Effective Time, and (iii) the recommendation
by the Company Board of Directors in accordance with the provisions of
Section 5.6 of the Merger Agreement of a Superior Proposal that would,
if consummated in accordance with its terms, provide to the Company or
the stockholders of the Company a per share consideration equal to or
greater than $1.00 per share in excess of the Merger Consideration.
6. Notices. All notices and other communications given or made pursuant
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hereto shall be in writing and shall be deemed to have been duly given
or made and shall be effective upon receipt of delivery, if delivered
personally, mailed by registered or certified mail (postage prepaid,
return receipt requested) or delivered by a recognized national
overnight courier 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 (provided that a
confirmation copy is sent by another approved means): (i) if to
Parent, to the address set forth in Section 8.13 of the
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Merger Agreement; and (ii) if to the Stockholder, 000 Xxxxxx Xxxx,
Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Xxxxx X. Xxxxxxxxx,
President and Chief Executive Officer, Telecopy No: 000-000-0000.
7. Entire Agreement. This Agreement constitutes the entire agreement
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among the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written
and oral, among the parties or any of them with respect to the subject
matter hereof.
8. Parties in Interest. All covenants and agreements contained herein
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shall be binding upon, and inure to the benefit of, the Stockholder or
Parent, whichever is applicable under the terms hereof. Nothing in
this Agreement, whether express or implied, shall be construed to give
to any Person, other than the Stockholder or Parent, any legal or
equitable right, remedy or claim under or in respect of this Agreement
(and any covenants, conditions or provisions contained herein).
9. Assignment. Neither this Agreement nor any of the rights, interests
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or obligations under this Agreement shall be assigned, in whole or in
part, by operation of law or otherwise, by any of the parties hereto
without the prior written consent of each of the other parties hereto.
10. Amendment and Waivers. This Agreement may be amended, supplemented or
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otherwise modified, and compliance with any provision hereof may be
waived, only in a writing signed by or on behalf of the parties
hereto. A copy of any such amendment, supplement or modification shall
be filed in the registered office of the Company in the State of
Delaware. Neither the failure nor delay on the part of any party to
exercise any right, remedy, power or privilege under this Agreement
shall operate as a waiver thereof.
11. Severability. If any term or other provision of this Agreement is
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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. 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 to the parties as closely as possible to the fullest extent
permitted by applicable law in a mutually acceptable manner in order
that the terms of this Agreement remain as originally contemplated to
the fullest extent possible.
12. Governing Law. The laws of the State of Delaware (irrespective of its
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choice of law principles) shall govern all issues concerning the
validity of this Agreement, the
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construction of its terms, and the interpretation and enforcement of
the rights and duties of the parties.
13. Enforcement of Agreement. The parties agree that irreparable damage
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would occur and that the parties would not have any adequate remedy at
law in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent breaches of this Agreement
and to enforce specifically the terms and provisions of this Agreement
in any Federal court located in the State of Delaware or in Delaware
state court, this being in addition to any other remedy to which they
are entitled at law or in equity. Each of the parties hereto (i)
consents to submit to the personal jurisdiction of any Federal court
located in the State of Delaware or any Delaware state court in the
event any dispute arises out of this Agreement or any of the
transactions contemplated hereby, (ii) agrees that such party will not
attempt to deny or defeat such personal jurisdiction by motion or
other request for leave from any such court and (iii) agrees that such
party will not bring any action relating to this Agreement or any of
the transactions contemplated hereby in any court other than a Federal
court sitting in the State of Delaware or a Delaware state court.
Notwithstanding the foregoing, the parties agree that any and all
monetary damages that Parent may be entitled to by reason of a breach
by the Stockholder of this Agreement shall solely be the
responsibility of the Company under the Merger Agreement.
14. Counterparts. For the convenience of the parties hereto, this
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Agreement may be executed in any number of counterparts, each such
counterpart being deemed to be an original instrument, and all such
counterparts shall together constitute the same agreement.
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IN WITNESS WHEREOF, each of the parties hereto have executed this
Agreement, or caused this Agreement to be duly executed, as of the date hereof.
CFW COMMUNICATIONS COMPANY
/s/ XXXXX X. XXXXXXXXX
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Name: Xxxxx X. Xxxxxxxxx
Title: President and Chief Executive Officer
SPRINT CORPORATION
By: /s/ XXXXXXXX X. XXXXXX
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Name: Xxxxxxxx X. Xxxxxx
Title: Senior Vice President Strategic Planning
& Corporate Development
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