Exhibit 10.4
EXECUTION COPY
LOCK-UP AGREEMENT
LOCK-UP AGREEMENT dated as of December 18, 2001 by and among Price
Communications Corporation, a New York corporation ("PRICE PARENT"), Price
Communications Cellular Inc., a Delaware corporation ("PRICE CELLULAR"), Price
Communications Cellular Holdings, Inc., a Delaware corporation ("PRICE
SHAREHOLDER"), Price Communications Wireless, a Delaware corporation (the
"COMPANY" and, together with Price Parent, Price Cellular and Price Shareholder,
the "PRICE CORPORATIONS"), and Verizon Wireless Inc., a Delaware corporation
("VWI").
WHEREAS, the Price Corporations, Cellco Partnership, a Delaware
partnership ("CELLCO"), and Verizon Wireless of the East LP, a newly formed
Delaware limited partnership ("NEW LP"), are parties to a Transaction Agreement
dated as of December 18, 2001 (the "TRANSACTION AGREEMENT");
WHEREAS, the Price Corporations, VWI, Verizon Communications Inc.,
a Delaware corporation, and New LP are parties to an Exchange Agreement
dated as of December 18, 2001 (the "EXCHANGE AGREEMENT"); and
WHEREAS, the parties hereto desire to provide for certain restrictions
on the sale of shares of VWI issued pursuant to the Exchange Agreement.
NOW, THEREFORE, for and in consideration of the mutual covenants
contained herein, in the Transaction Agreement and in the Exchange Agreement,
and other good and valuable consideration the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
SECTION 1. DEFINITIONS. Capitalized terms used herein and not otherwise
defined shall have the meanings given such terms in the Exchange Agreement. In
addition, the following terms, as used herein, have the following meanings:
"COMPLYING DISTRIBUTION" means a distribution of all or a portion of
the Shares (other than any Pledged Shares) to the shareholders of Price Parent
at any time after five business days prior to the first anniversary of the
Exchange Closing Date.
"EXEMPT SHARES" means a number of Shares equal to (i) $30,000,000
DIVIDED BY (ii) the VWI IPO Price (subject to appropriate adjustment for stock
splits, stock dividends, subdivisions, combinations, reclassifications or
similar events occurring after the date of the VWI IPO); PROVIDED that the
Exempt Shares shall not include any Pledged Shares.
"HOLDER" means the Company or any Pledgee or other transferee pursuant
to a Transfer of Shares under Section 3(a)(ii), (iii) or (iv).
"LOCK-UP RELEASE DATE" means the date which is 270 days after the later
of (i) the VWI IPO and (ii) the first anniversary of the Closing Date (as
defined in the Transaction Agreement); PROVIDED that, notwithstanding the
foregoing, such date shall not occur prior to 180 days after the Exchange
Closing Date.
"MAXIMUM AMOUNT" means, with respect to a Holder and any particular
day, (i) at any time prior to the occurrence of any transaction referred to in
Section 3(a)(iii), a number of Shares equal to 25% of the average daily trading
volume of shares of VWI Stock for the 10 consecutive trading days immediately
preceding such day, and (ii) at any time after the occurrence of any transaction
referred to in Section 3(a)(iii), a number of Shares equal to (A) a number of
Shares equal to 25% of the average daily trading volume of shares of VWI Stock
for the 10 consecutive trading days immediately preceding such day MULTIPLIED BY
(B) the quotient obtained by dividing (x) the number of Shares initially
transferred to such Holder pursuant to this Agreement by (y) the total number of
Shares.
"OFFERING" means an underwritten offering, or a non-underwritten
offering approved by VWI, of Shares (other than any Pledged Shares) by a Holder;
PROVIDED that (i) any such offering shall be effected at a time which is
reasonably acceptable to VWI, (ii) any underwriters and any investment bankers
or managers to be used in connection with such offering shall be reasonably
acceptable to VWI, and (iii) VWI shall provide indemnification to any
underwriters in connection with such offering with respect to any prospectus of
VWI used by such underwriters (such indemnification to be consistent with any
such indemnification provided by VWI to underwriters in connection with the VWI
IPO).
"PERMITTED TRANSFER" means a Transfer to any Price Corporation of all
of the Shares held by any other Price Corporation pursuant to the liquidation of
such other Price Corporation or a merger with such other Price Corporation.
2
"PLEDGED SHARES" means, at any time, any Shares which are subject to
security interests under the Pledge Agreement (as defined in the Transaction
Agreement) at such time.
"SHARES" means the shares of VWI Stock issued pursuant to the Exchange
Agreement (including, without limitation, any such shares issued pursuant to
Section 2.05 of the Exchange Agreement).
"THIRD PARTY SALE" means a private negotiated sale by any Price
Corporation of all of the Shares held by the Price Corporations (other than any
Pledged Shares) to a purchaser that agrees in writing (in a form reasonably
acceptable to VWI) to be subject to the restrictions contained in Section 2 of
this Agreement with respect to such Shares.
SECTION 2. LOCK-UP AGREEMENT. (a) Except as set forth in Section 3,
until the Lock-Up Release Date, a Holder shall not, without the prior written
consent of VWI, (1) directly or indirectly, offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant to purchase or otherwise transfer or
dispose of any Shares, or file any registration statement under the Securities
Act of 1933, as amended, with respect to any of the foregoing or (2) enter into
any swap or any other agreement or any transaction that has substantially the
same effect as a transaction described in (1), or that transfers, in whole or in
part, directly or indirectly, a substantial portion of the economic consequence
of ownership of the Shares ((1) and (2) collectively, a "TRANSFER"), whether any
such Transfer is to be settled by delivery of Shares or other securities, in
cash or otherwise.
(b) Except in connection with an Offering, a Complying Distribution or
a Third Party Sale, on and after the Lock-Up Release Date until the fifth
anniversary of the Exchange Closing Date, a Holder may not Transfer more than
the Maximum Amount of Shares on any particular day; PROVIDED that no more than
two Offerings may be conducted during such period, and any such Offerings shall
be conducted at least 180 days apart from each other; PROVIDED FURTHER that,
except in connection with a Complying Distribution, a Holder shall not
distribute any Shares to the shareholders of Price Parent during such period.
SECTION 3. PERMITTED TRANSACTIONS. (a) Notwithstanding Section 2, a
Holder may enter into any of the following transactions with respect to the
Shares at any time after the Exchange Closing Date:
(i) Transfer the Exempt Shares (provided that the Holder may
not Transfer more than the Maximum Amount of Shares on any particular
day);
3
(ii) a Permitted Transfer;
(iii) a pledge of Shares (other than any Pledged Shares) to
any bank or other financial institution of recognized standing (a
"PLEDGEE") in connection with any bona fide financing transaction and,
upon default under any such financing transaction, such Shares may be
transferred to a Pledgee or another third party as a result of a
foreclosure sale under the Uniform Commercial Code or the exercise of
other remedies in connection with such pledge; PROVIDED, in each case,
that such Pledgee or other third party (a "PLEDGE TRANSFEREE") agrees
in writing (in a form reasonably acceptable to VWI) to be subject to
the restrictions contained in Section 2 of this Agreement with respect
to such Shares; and
(iv) a Third Party Sale.
(b) Notwithstanding any provision of this Agreement, nothing in this
Agreement shall impair the ability of any Price Corporation to enter into any
transaction involving any shares of VWI Stock to the extent that such shares of
VWI Stock were acquired by any Price Corporation in open-market transactions and
were not received by any Price Corporation pursuant to the Exchange Agreement or
the transactions contemplated thereby.
SECTION 4. MISCELLANEOUS.
(a) GOVERNING LAW/JURISDICTION. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
(b) ENTIRE AGREEMENT/AMENDMENTS. This Agreement, the Transaction
Agreement and the other Ancillary Agreements (as defined in the Transaction
Agreement) constitute the entire agreement between the parties with respect to
the subject matter of this Agreement and supersedes all prior agreements and
understandings, both oral and written, between the parties with respect to the
subject matter of this Agreement.
(c) BINDING EFFECT; AMENDMENTS AND WAIVERS; THIRD PARTY BENEFICIARIES.
This Agreement shall be binding upon and inure to the benefit of each party
hereto and its successors and assigns. Any provision of this Agreement may be
amended or waived, but only if such amendment or waiver is in writing and is
signed by all parties.
4
(d) COUNTERPARTS. This Agreement may be signed in counterparts, each
of which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
(e) This Agreement shall terminate on the earlier of (i) termination
of the Transaction Agreement in accordance with its terms or (ii) the Exchange
Closing Date in respect of the VCI Exchange.
5
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
PRICE COMMUNICATIONS
CORPORATION
By: /s/
--------------------------------
Name:
Title:
PRICE COMMUNICATIONS
CELLULAR, INC.
By: /s/
--------------------------------
Name:
Title:
PRICE COMMUNICATIONS
CELLULAR HOLDINGS, INC.
By: /s/
--------------------------------
Name:
Title:
PRICE COMMUNICATIONS WIRELESS
By: /s/
--------------------------------
Name:
Title:
VERIZON WIRELESS INC.
By: /s/
--------------------------------
Name:
Title:
