EXHIBIT 10.1
EXECUTION COPY
VOTING AGREEMENT
VOTING AGREEMENT (this "Agreement") dated as of January 9, 2005, among
ALLTEL Corporation, a corporation organized under the laws of the State of
Delaware ("Parent"), and each person listed on the signature page hereof as a
shareholder (each, a "Shareholder" and, collectively, the "Shareholders").
RECITALS
A. Western Wireless Corporation is a corporation organized under the laws
of the State of Washington (the "Company"). Each Shareholder "beneficially owns"
(as such term is defined in Rule 13d-3 promulgated under the Securities Exchange
Act of 1934, as amended) and is entitled to dispose of (or to direct the
disposition of) and to vote (or to direct the voting of) the number of shares of
Class A Common Stock, no par value per share, of the Company (the "Class A
Common Stock") and of Class B Common Stock, no par value per share, of the
Company (the "Class B Common Stock" and, together with the Class A Common Stock,
the "Common Stock") set forth opposite such Shareholder's name on Schedule A
hereto (such shares of Common Stock, together with all other shares of capital
stock of the Company acquired by any Shareholder after the date hereof and
during the term of this Agreement, being collectively referred to herein as the
"Subject Shares").
B. Concurrently with the execution and delivery of this Agreement, Parent,
Wigeon Acquisition LLC, a limited liability company organized under the laws of
the State of Washington ("Merger Sub"), and the Company are entering into an
Agreement and Plan of Merger (the "Merger Agreement") providing for the merger
of the Company with and into Merger Sub, with Merger Sub surviving the Merger
(the "Merger") upon the terms and subject to the conditions set forth therein.
C. As a condition to entering into the Merger Agreement, Parent has
required that the Shareholders enter into this Agreement, and the Shareholders
desire to enter into this Agreement to induce Parent to enter into the Merger
Agreement.
D. The Board of Directors of the Company has taken all actions so that the
restrictions contained in the Company's articles of incorporation and the
Washington Business Corporation Act (the "WBCA") applicable to a "significant
business transaction" (as defined in Section 23B.19 of the WBCA) will not apply
to the execution, delivery or performance of this Agreement or the Merger
Agreement, or to the consummation of the Merger, this Agreement and the Merger
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual premises,
representations, warranties, covenants and agreements contained herein, the
parties hereto, intending to be legally bound, hereby agree as follows:
1. Representations and Warranties of Each Shareholder.
Each Shareholder, jointly and severally, represents and warrants to Parent
as follows:
(a) Authority. Such Shareholder, if not an individual, is duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation or organization (as applicable). Such Shareholder
has all requisite legal power (corporate or other) and authority to execute and
deliver this Agreement and to consummate the transactions contemplated hereby.
This Agreement has been duly authorized, executed and delivered by such
Shareholder and constitutes a valid and binding obligation of such Shareholder
enforceable in accordance with its terms subject to (i) bankruptcy, insolvency,
moratorium and other similar laws now or hereafter in effect relating to or
affecting creditors' rights generally, and (ii) general principles of equity
(regardless of whether considered in a proceeding at law or in equity). If such
Shareholder is married and the Subject Shares of such Shareholder constitute
community property or otherwise need spousal or other approval for this
Agreement to be legal, valid and binding with respect to such Subject Shares,
this Agreement has been duly authorized, executed and delivered by, and
constitutes a valid and binding agreement of, such Shareholder's spouse,
enforceable against such spouse in accordance with its terms subject to (i)
bankruptcy, insolvency, moratorium and other similar laws now or hereafter in
effect relating to or affecting creditors' rights generally, and (ii) general
principles of equity (regardless of whether considered in a proceeding at law or
in equity). If such Shareholder is a trust, no consent of any beneficiary is
required for the execution and delivery of this Agreement or the consummation of
the transactions contemplated hereby.
(b) No Conflicts. (i) No filing by any Shareholder with any
governmental body or authority, and no authorization, consent or approval of any
other person is necessary for the execution of this Agreement by any Shareholder
and the consummation by any Shareholder of the transactions contemplated hereby
and (ii) none of the execution and delivery of this Agreement by such
Shareholders, the consummation by any Shareholder of the transactions
contemplated hereby or compliance by any Shareholder with any of the provisions
hereof shall (A) if such shareholder is not an individual, conflict with or
result in any breach of the organizational documents of any Shareholder, (B)
result in, or give rise to, a violation or breach of or a default under (with or
without notice or lapse of time, or both) any of the terms of any material
contract, trust agreement, loan or credit agreement, note, bond, mortgage,
indenture, lease, permit, understanding, agreement or other instrument or
obligation to which any Shareholder is a party or by which any Shareholder or
any of its Subject Shares or assets may be bound, or (C) violate any applicable
order, writ, injunction, decree, judgment, statute, rule or regulation, except
for any of the foregoing as would not reasonably be expected to prevent any
Shareholder from performing its obligations under this Agreement.
(c) The Subject Shares. Schedule A sets forth, opposite each
Shareholder's name, the number of Subject Shares over which such Shareholder has
record or beneficial ownership as of the date hereof. As of the date hereof,
each Shareholder is the record or beneficial owner of the Subject Shares denoted
as being
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owned by such Shareholder on Schedule A (or is trustee of a trust that is the
record holder of and whose beneficiaries are the beneficial owners of such
Subject Shares) and has the sole power to vote (or cause to be voted) such
Subject Shares. Except as set forth on such Schedule A, no Shareholder nor any
controlled affiliate of a Shareholder owns or holds any right to acquire any
additional shares of any class of capital stock of the Company or other
securities of the Company or any interest therein or any voting rights with
respect to any securities of the Company. Each Shareholder has good and valid
title to the Subject Shares denoted as being owned by such Shareholder on
Schedule A, free and clear of any and all pledges, mortgages, liens, charges,
proxies, voting agreements, encumbrances, adverse claims, options, security
interests and demands of any nature or kind whatsoever, other than those created
by this Agreement, as disclosed on Schedule A, or as would not prevent any
Shareholder from performing its obligations under this Agreement.
(d) Reliance By Parent. Such Shareholder understands and
acknowledges that Parent is entering into, and causing Merger Sub to enter into,
the Merger Agreement in reliance upon such Shareholder's execution and delivery
of this Agreement.
(e) Litigation. As of the date hereof, there is no action,
proceeding or investigation pending or threatened against such Shareholder that
questions the validity of this Agreement or any action taken or to be taken by
such Shareholder in connection with this Agreement.
2. Representations and Warranties of Parent.
Parent hereby represents and warrants to the Shareholders as follows:
(a) Due Organization, etc. Parent is duly organized, validly
existing and in good standing under the laws of the State of Delaware. Parent
has all requisite corporate power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby. This Agreement
has been duly authorized, executed and delivered by Parent and constitutes a
valid and binding obligation of Parent enforceable in accordance with its terms
subject to (i) bankruptcy, insolvency, moratorium and other similar laws now or
hereafter in effect relating to or affecting creditors' rights generally, and
(ii) general principles of equity (regardless of whether considered in a
proceeding at law or in equity).
(b) Conflicts. (i) No filing by Parent with any governmental body or
authority, and no authorization, consent or approval of any other person is
necessary for the execution of this Agreement by Parent and the consummation by
Parent of the transactions contemplated hereby and (ii) none of the execution
and delivery of this Agreement by Parent, the consummation by Parent of the
transactions contemplated hereby or compliance by Parent with any of the
provisions hereof shall (A) conflict with or result in any breach of the
organizational documents of Parent, (B) result in, or give rise to, a violation
or breach of or a default under (with or without notice or lapse of time, or
both) any of the terms of any material contract, loan or credit agreement, note,
bond,
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mortgage, indenture, lease, permit, understanding, agreement or other instrument
or obligation to which Parent is a party or by which Parent or any of its assets
may be bound, or (C) violate any applicable order, writ, injunction, decree,
judgment, statute, rule or regulation, except for any of the foregoing as would
not prevent Parent from performing its obligations under this Agreement.
(c) Reliance by the Shareholders. Parent understands and
acknowledges that the Shareholders are entering into this Agreement in reliance
upon the execution and delivery of the Merger Agreement by Parent.
3. Covenants of Each Shareholder.
Until the termination of this Agreement in accordance with Section 5, each
Shareholder, in its capacity as such, agrees as follows:
(a) At the Company Meeting or at any adjournment, postponement or
continuation thereof or in any other circumstances occurring prior to the
Company Meeting upon which a vote, consent or other approval (including by
written consent) with respect to the Merger and the Merger Agreement is sought ,
each Shareholder shall vote (or cause to be voted) the Subject Shares (and each
class thereof) (i) in favor of the approval of the Merger and the approval and
adoption of the Merger Agreement; and (ii) except with the written consent of
Parent, against any Company Alternative Proposal. Any such vote shall be cast or
consent shall be given in accordance with such procedures relating thereto so as
to 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. Each
Shareholder agrees not to enter into any agreement or commitment with any person
the effect of which would be inconsistent with or violative of the provisions
and agreements contained in this Section 3(a).
(b) Each Shareholder agrees not to, directly or indirectly, (i)
sell, transfer, tender, pledge, encumber, assign or otherwise dispose of
(collectively, a "Transfer") or enter into any agreement, option or other
arrangement with respect to, or consent to a Transfer of, or convert or agree to
convert, any or all of the Subject Shares to any person if such Transfer or
agreement, option or other arrangement would result in the Shareholder's
inability to perform his or her obligations under Section 3(a) hereof, other
than in accordance with the Merger Agreement, or (ii) grant any proxies (other
than the Company proxy card in connection with the Company Meeting if and to the
extent such proxy is consistent with the Shareholder's obligations under Section
3(a) hereof), deposit any Subject Shares into any voting trust or enter into any
voting arrangement, whether by proxy, voting agreement or otherwise, with
respect to any of the Subject Shares, other than pursuant to this Agreement.
Each Shareholder further agrees not to commit or agree to take any of the
foregoing actions or take any action that would have the effect of preventing,
impeding, interfering with or adversely affecting its ability to perform its
obligations under this Agreement.
(c) Such Shareholder shall not, nor shall such Shareholder permit
any controlled affiliate of such Shareholder to, nor shall such Shareholder act
in concert with
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or permit any controlled affiliate to act in concert with any person to make, or
in any manner participate in, directly or indirectly, a "solicitation" (as such
term is used in the rules of the Securities and Exchange Commission) of proxies
or powers of attorney or similar rights to vote, or seek to advise or influence
any person with respect to the voting of, any shares of Common Stock intended to
facilitate any Company Alternative Proposal or to cause shareholders of the
Company not to vote to approve and adopt the Merger Agreement. Such Shareholder
shall not, and shall direct any investment banker, attorney, agent or other
adviser or representative of such Shareholder not to, directly or indirectly,
through any officer, director, agent or otherwise, enter into, solicit,
initiate, conduct or continue any discussions or negotiations with, or knowingly
encourage or respond to any inquiries or proposals by, or provide any
information to, any person, other than Parent, relating to any Company
Alternative Proposal. Each Shareholder hereby represents that, as of the date
hereof, it is not engaged in discussions or negotiations with any party other
than Parent with respect to any Company Alternative Proposal.
4. Shareholder Capacity.
No Person executing this Agreement who is or becomes during the term of
this Agreement a director or officer of the Company shall be deemed to make any
agreement or understanding in this Agreement in such Person's capacity as a
director or officer. Each Shareholder is entering into this Agreement solely in
his or her capacity as the record holder or beneficial owner of, or the trustee
of a trust whose beneficiaries are the beneficial owners of, such Shareholder's
Subject Shares and nothing herein shall limit or affect any actions taken by a
Shareholder in his or her capacity as a director or officer of the Company to
the extent specifically permitted by the Merger Agreement or following the
termination of the Merger Agreement.
5. Termination.
This Agreement shall terminate (i) upon the earlier of (A) the approval
and adoption of the Merger Agreement at the Company Meeting, (B) provided that
the Company Meeting shall have concluded, the failure of the shareholders of the
Company to approve and adopt the Merger Agreement at the Company Meeting, and
(C) the termination of the Merger Agreement, or (ii) at any time upon notice by
Parent to the Shareholders. No party hereto shall be relieved from any liability
for intentional breach of this Agreement by reason of any such termination.
Notwithstanding the foregoing, Section 6 and Sections 10 through 22, inclusive,
of this Agreement shall survive the termination of this Agreement.
6. Appraisal Rights.
To the extent permitted by applicable law, each Shareholder hereby waives
any rights of appraisal or rights to dissent from the Merger that it may have
under applicable law.
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7. Publication.
Each Shareholder hereby authorizes Parent and the Company to publish and
disclose in the Proxy Statement and the Registration Statement (including any
and all documents and schedules filed with the Securities and Exchange
Commission relating thereto) its identity and ownership of shares of Common
Stock and the nature of its commitments, arrangements and understandings
pursuant to this Agreement.
8. Affiliate Letters.
Each Shareholder agrees to execute an affiliate agreement in substantially
the form attached as Exhibit B to the Merger Agreement, as soon as practicable
after the date hereof.
9. Governing Law.
This Agreement shall be governed by and construed in accordance with the
laws of the State of Washington, without regard to any principles or rules of
conflicts of laws thereof.
10. Jurisdiction; Waiver of Jury Trial.
(a) Each of the parties hereto irrevocably and unconditionally (i)
agrees that any legal suit, action or proceeding brought by any party hereto
arising out of or based upon this Agreement or the transactions contemplated
hereby may be brought in the courts of the State of Delaware or the United
States District Court for the District of Delaware (each, a "Delaware Court"),
(ii) waives, to the fullest extent it may effectively do so, any objection which
it may now or hereafter have to the laying of venue of any such proceeding
brought in any Delaware Court, and any claim that any such action or proceeding
brought in any Delaware Court has been brought in an inconvenient forum, and
(iii) submits to the non-exclusive jurisdiction of Delaware Courts in any suit,
action or proceeding. Each of the parties agrees that a judgment in any suit,
action or proceeding brought in a Delaware Court shall be conclusive and binding
upon it and may be enforced in any other courts to whose jurisdiction it is or
may be subject, by suit upon such judgment.
(b) Each of the parties agrees and acknowledges that any controversy
that may arise under this Agreement is likely to involve complicated and
difficult issues, and therefore each such party hereby irrevocably and
unconditionally waives any right such party may have to a trial by jury in
respect of any litigation directly or indirectly arising out of or relating to
this Agreement, or the breach, termination or validity of this Agreement.
11. Specific Performance.
Each Shareholder acknowledges and agrees that (i) the covenants,
obligations and agreements of such Shareholder contained in this Agreement
relate to special, unique and extraordinary matters, (ii) Parent is and will be
relying on such covenants in connection
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with entering into the Merger Agreement and the performance of its obligations
under the Merger Agreement, and (iii) a violation of any of the terms of such
covenants, obligations or agreements will cause Parent irreparable injury for
which adequate remedies are not available at law. Therefore, each Shareholder
agrees that Parent shall be entitled to seek an injunction, restraining order or
such other equitable relief (without the requirement to post bond) as a court of
competent jurisdiction may deem necessary or appropriate to restrain such
Shareholder from committing any violation of such covenants, obligations or
agreements.
12. Amendment, Waivers, Etc.
Neither this Agreement nor any term hereof may be amended or otherwise
modified other than by an instrument in writing signed by Parent and the
Shareholders. No provision of this Agreement may be waived, discharged or
terminated other than by an instrument in writing signed by the party against
whom the enforcement of such waiver, discharge or termination is sought.
13. Assignment; No Third Party Beneficiaries.
This Agreement shall not be assignable or otherwise transferable by a
party without the prior consent of the other parties, and any attempt to so
assign or otherwise transfer this Agreement without such consent shall be void
and of no effect; provided, however, that Parent may, in its sole discretion,
assign or transfer all or any of its rights under this Agreement to Merger Sub
or any direct or indirect wholly-owned subsidiary of Parent; provided that any
such assignment shall not relieve Parent of its obligations hereunder. This
Agreement shall be binding upon the respective heirs, legal representatives and
permitted transferees of the parties hereto. Nothing in this Agreement shall be
construed as giving any Person, other than the parties hereto and their heirs,
legal representatives and permitted transferees, any right, remedy or claim
under or in respect of this Agreement or any provision hereof. No failure or
delay by any party in exercising any right, power or privilege under this
Agreement shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies provided herein
shall be cumulative and not exclusive of any rights or remedies provided by law.
14. Notices.
All notices, consents, requests, instructions, approvals and other
communications provided for in this Agreement shall be in writing and shall be
deemed validly given upon personal delivery or one day after being sent by
overnight courier service or by telecopy (so long as for notices or other
communications sent by telecopy, the transmitting telecopy machine records
electronic conformation of the due transmission of the notice), at the following
address or telecopy number, or at such other address or telecopy number as a
party may designate to the other parties:
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If to Parent, to:
ALLTEL Corporation
Xxx Xxxxxx Xxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Chief Executive Officer
(with a copy to the Corporate Secretary)
Telecopy: (000) 000-0000
If to any Shareholder, at the address set forth under such Shareholder's
name on Schedule A hereto or to such other address as the party to whom notice
is to be given may have furnished to the other parties in writing in accordance
herewith, with copies to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00(xx) Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxx
Xxxx Xxxxxx
and
Xxxxxxxx, Kaplan, Seiler, Xxxxxxx LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxx
15. Severability.
If any provision of this Agreement is held to be invalid or unenforceable
for any reason, it shall be adjusted rather than voided, if possible, in order
to achieve the intent of the parties hereto to the maximum extent possible. In
any event, the invalidity or unenforceability of any provision of this Agreement
in any jurisdiction shall not affect the validity or enforceability of the
remainder of this Agreement in that jurisdiction or the validity or
enforceability of this Agreement, including that provision, in any other
jurisdiction.
16. Integration.
This Agreement (together with the Merger Agreement to the extent
referenced herein), including Schedule A hereto, constitutes the full and entire
understanding and agreement of the parties with respect to the subject matter
hereof and thereof and supersedes any and all prior understandings or agreements
relating to the subject matter hereof and thereof.
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17. Mutual Drafting.
Each party hereto has participated in the drafting of this Agreement,
which each party acknowledges is the result of extensive negotiations between
the parties.
18. Section Headings.
The section headings of this Agreement are for convenience of reference
only and are not to be considered in construing this Agreement.
19. Counterparts.
This Agreement may be executed in one or more counterparts (including by
facsimile), each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
20. Acknowledgement.
The parties hereto acknowledge and agree that this Agreement is entered
into in accordance with the provisions of Section 23B.07.310 of the Business
Corporation Act of the State of Washington.
21. Capitalized Terms.
For purposes of this Agreement, capitalized terms used and not defined
herein shall have the respective meanings ascribed to them in the Merger
Agreement.
22. Definitions.
References in this Agreement (except as specifically otherwise defined) to
"affiliates" shall mean, as to any person, any other person which, directly or
indirectly, controls, or is controlled by, or is under common control with, such
person. As used in this definition, "control" (including, with its correlative
meanings, "controlled by" and "under common control with") shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of management or policies of a person, whether through the ownership
of securities or partnership or other ownership interests, by contract or
otherwise. References in the Agreement to "person" shall mean an individual, a
corporation, a partnership, an association, a trust or any other entity, group
(as such term is used in Section 13 of the Exchange Act) or organization,
including, without limitation, a governmental body or authority.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and date first above written.
ALLTEL CORPORATION
By:
-----------------------------------------
Name:
Title:
-----------------------------------------
Name: Xxxx. X. Xxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
XXXXXXX FAMILY TRUST
By:
-----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Trustee
PN CELLULAR, INC.
By:
-----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Executive Officer
XXXXXXX COMMUNICATIONS
CORPORPATION
By:
-----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Executive Officer
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Schedule A
SHAREHOLDERS
Class A Common Class B Common
Shareholder Stock Stock Total
----------- ----- ----- -----
Xxxx X. Xxxxxxx and
Xxxxxxx X. Xxxxxxxxx(1) 4,420,919 3,025,668 7,446,587
0000 000xx Xxx,
X.X., Xxxxx 000
Xxxxxxxx,
Xxxxxxxxxx 00000
Xxxxxxx Family Trust 0 64,437 64,437
0000 000xx Xxx,
X.X., Xxxxx 000
Xxxxxxxx,
Xxxxxxxxxx 00000
PN Cellular, Inc. 869,880 1,686,069 2,555,949
0000 000xx Xxx,
X.X., Xxxxx 000
Xxxxxxxx,
Xxxxxxxxxx 00000
Xxxxxxx
Communications
Corporation 576,859 1,274,519 1,851,378
0000 000xx Xxx,
X.X., Xxxxx 000
Xxxxxxxx,
Xxxxxxxxxx 00000
--------- --------- ----------
Total 5,867,658 6,050,693 11,918,351
------------
(1) Xxxxxxx X. Xxxxxxxxx and Xxxx X. Xxxxxxx also hold options to purchase
165,320 and 1,335 shares of Class A Common Stock, respectively.
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