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EXHIBIT 9.1
VOTING AGREEMENT
THIS VOTING AGREEMENT (the "Agreement") is dated January 5, 2000,
by and among East/West Communications, Inc., a Delaware corporation ("East
West"), Omnipoint Corporation, a Delaware corporation ("Omnipoint") and the
parties listed on Schedule I hereto (each an "East West Stockholder" and,
collectively, the "East West Stockholders").
RECITALS
WHEREAS, East West and Omnipoint entered into an Agreement and
Plan of Merger (the "Merger Agreement") pursuant to which, among other things,
East West will merge with and into Omnipoint (such merger, together with the
related transactions contemplated in the Merger Agreement, being referred to
herein as the "Merger");
WHEREAS, each East West Stockholder is the beneficial owner of the
number of shares of East West Class A Common Stock, par value $0.0001 per share,
set forth opposite each East West Stockholders name in Schedule I hereto (the
"East West Shares"); and
WHEREAS, approval of the Merger Agreement by East West
stockholders at a meeting of East West stockholders (the "East West
Stockholders' Meeting") is a condition to the consummation of the Merger.
NOW THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein, the parties hereto agree as follows:
1. Agreement to Vote by East West Stockholder.
a. Each East West Stockholder hereby agrees, either (i)
to attend the East West Stockholders' Meeting (if such meeting is held), in
person or by proxy or (ii) by written consent, to vote (or cause to be voted)
all East West Shares, and any other voting securities of East West, beneficially
owned by such East West Stockholder (whether issued heretofore or hereafter)
that such East West Stockholder owns or has the right to vote, in favor of
adoption and approval of the Merger Agreement, the Merger, and any other matters
necessary to consummate the transactions contemplated in the Merger Agreement.
Such agreement to vote shall apply also to any adjournment or adjournments of
the East West Stockholders' Meeting.
b. From and after the date hereof through the earlier
of the effective time of the Merger and the termination of the Merger Agreement,
each East West Stockholder hereby agrees not to sell, transfer, pledge, encumber
or otherwise dispose of (collectively, "Transfer") any East West Shares and any
other voting securities of East West beneficially owned by such East West
Stockholder on the date hereof. Any such Transfer of East West Shares shall be
null and void, and such transferee shall have no rights as a stockholder of East
West.
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c. To the extent inconsistent with the foregoing
provisions of this Section 1, each East West Stockholder hereby revokes any and
all previous proxies granted by such East West Stockholder with respect to such
East West Stockholder's East West Shares or any other voting securities of East
West.
2. Representations and Warranties of East West and the East
West Stockholders.
a. East West represents and warrants as follows: (i)
this Agreement has been approved by the Board of Directors of East West and (ii)
this Agreement has been duly executed and delivered by East West and constitutes
its valid and binding agreement, enforceable against it in accordance with its
terms, except as may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other similar laws of general application which
may affect the enforcement of creditors' rights generally and by general
equitable principles.
b. Each East West Stockholder represents and warrants
as follows: (i) this Agreement has been duly executed and delivered by such East
West Stockholder and constitutes its valid and binding agreement, enforceable
against it in accordance with its terms, except as may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium and other similar laws of
general application which may affect the enforcement of creditors' rights
generally and by general equitable principles; and (ii) the East West Shares
listed next to the name of such East West Stockholder on Schedule I hereto are
the only voting securities of East West owned (beneficially or of record) by it.
3. Effectiveness and Termination. In the event that the Merger
Agreement is terminated in accordance with its terms, this Agreement shall
automatically terminate and be of no further force or effect. Upon such
termination, except for any rights any party may have in respect of any breach
by any other party of its or his obligations hereunder, none of the parties
hereto shall have any further obligation or liability hereunder.
4. Miscellaneous.
a. Notice. All notices, requests and other
communications to any party hereunder shall be in writing (including facsimile
transmission) and shall be given,
if to East West, to it at:
East/West Communications, Inc.
000 Xxxxxxxxxx Xxxxxx
Xxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
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Xxxxxx & Xxxxxxx
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxx Xxxxxx, Esq.
Xxxxxx X. Xxxxxx, Esq.
Phone: (000) 000-0000
Fax: (000) 000-0000
if to Omnipoint, to it at:
Omnipoint Corporation
0 Xxxxxxxx Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Fax: 000-000-0000
with a copy to:
Xxxxx Xxxxxxx Xxxxxxx & Xxxxx LLP
0000 Xxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxx X. Xxxxxx, Xx., Esq.
Fax: (000) 000-0000
if to any East West Stockholder, to it at:
Xxxxx, Xxxx & Xxxxx, L.L.C.
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
or such other address or facsimile number as such party may hereafter specify
for the purpose by notice to the other parties hereto. All such notices,
requests and other communications shall be deemed received on the date of
receipt by the recipient thereof if received prior to 5 p.m. on a Business Day,
in the place of receipt. Otherwise, any such notice, request or communication
shall be deemed not to have been received until the next succeeding Business Day
in the place of receipt.
b. Amendments; No Waivers.
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(i) Subject to applicable law, any provision of
this Agreement may be amended or waived, but only if such amendment or waiver is
in writing and is signed, in the case of an amendment, by each party to this
Agreement or, in the case of a waiver, by each party against whom the waiver is
to be effective.
(ii) No failure or delay by any party in
exercising any right, power or privilege hereunder 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 herein provided shall be cumulative and not
exclusive of any rights or remedies provided by law.
c. Successors and Assigns. This Agreement shall be
binding upon and shall inure to the benefit of and be enforceable by the parties
and their respective successors and assigns, including, without limitation, in
the case of any corporate party hereto any corporate successor by merger or
otherwise, and in the case of any individual party hereto any trustee, executor,
heir, legatee or personal representative succeeding to the ownership of such
party's shares of East West stock or other securities subject to this Agreement.
Notwithstanding any Transfer of shares of East West stock, the transferor shall
remain liable for the performance of all obligations of such transferor under
this Agreement.
d. Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of Delaware, without
regard to the conflicts of law rules of such State.
e. Jurisdiction. Any suit, action or proceeding seeking
to enforce any provision of, or based on any matter arising out of or in
connection with, this Agreement or the transactions contemplated hereby shall be
brought in any federal court located in the State of Delaware or any Delaware
state court, and each of the parties hereby consents to the exclusive
jurisdiction of such courts (and of the appropriate appellate courts therefrom)
in any such suit, action or proceeding and irrevocably waives, to the fullest
extent permitted by law, any objection that it may now or hereafter have to the
laying of the venue of any such suit, action or proceeding in any such court or
that any such suit, action or proceeding brought in any such court has been
brought in an inconvenient forum. Process in any such suit, action or proceeding
may be served on any party anywhere in the world, whether within or without the
jurisdiction of any such court. Without limiting the foregoing, each party
agrees that service of process on such party as provided in Section 6.a shall be
deemed effective service of process on such party.
f. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
g. Counterparts; Effectiveness. This Agreement may be
signed in any number of counterparts, each of which shall be an original, with
the same effect as if the signatures
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thereto and hereto were upon the same instrument. This Agreement shall become
effective when each party hereto shall have received counterparts hereof signed
by all of the other parties hereto. No provision of this Agreement is intended
to confer any rights, benefits, remedies, obligations or liabilities hereunder
upon any Person other than the parties hereto and their respective successors
and assigns.
h. Entire Agreement. This Agreement constitutes 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 such subject matter.
i. Captions. The captions herein are included for
convenience of reference only and shall be ignored in the construction or
interpretation hereof.
j. Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction or
other authority to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated
so long as the economic or legal substance of the transactions contemplated
hereby is not affected in any manner materially adverse to any party. Upon such
a determination, the parties shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner so that the transactions contemplated hereby be
consummated as originally contemplated to the fullest extent possible.
k. Specific Performance. The parties hereto agree that
irreparable damage would occur if any provision of this Agreement were not
performed in accordance with the terms hereof and that the parties shall be
entitled to an injunction or injunctions to prevent breaches of this Agreement
or to enforce specifically the performance of the terms and provisions hereof in
any federal court located in the State of Delaware or any Delaware state court,
in addition to any other remedy to which they are entitled at law or in equity.
l. Remedies Cumulative. All rights, powers and remedies
provided under this Agreement or otherwise available in respect hereof at law or
in equity shall be cumulative and not alternative, and the exercise or beginning
of the exercise of any thereof by any party shall not preclude the simultaneous
or later exercise of any other such right, power or remedy by such party.
m. Limitation on Liability. No party hereto shall have
any liability hereunder for any actions or omissions of any other party hereto.
n. Expenses. Each party hereto shall bear its own
expenses incurred in connection with this Agreement.
o. Further Assurances. Each party hereto agrees that
such party shall execute and deliver such additional instruments and other
documents and shall take such further
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actions as may be necessary or appropriate to effectuate, carry out and comply
with all of their obligations under this Agreement. Without limiting the
generality of the foregoing, none of the parties hereto shall enter into any
agreement or arrangement (or alter, amend or terminate any existing agreement or
arrangement) if such action would impair the ability of any party to effectuate,
carry out or comply with all the terms of this Agreement.
[Signatures on following pages.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed as of the day and year first above written.
EAST/WEST COMMUNICATIONS, INC.
By: /s/ Xxxxxxxx X. Xxxx
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Xxxxxxxx X. Xxxx
Chief Executive Officer
WPG Merger Arbitrage Fund, L.P.
By: Xxxxx, Xxxx & Xxxxx, L.L.C.
its General Partner
By: /s/ Xxx Xxxxxxxxxx
--------------------------------
Xxx Xxxxxxxxxx
Principal
WPG Merger Arbitrage Overseas Fund, Ltd.
By: Xxxxx, Xxxx & Xxxxx, L.L.C.;
its General Partner
By: /s/ Xxx Xxxxxxxxxx
--------------------------------
Xxx Xxxxxxxxxx
Principal
Xxxxxxx Capital Inv. Ltd.
By: Xxxxx, Xxxx & Xxxxx, L.L.C.;
its Attorney-in-Fact
By: /s/ Xxx Xxxxxxxxxx
--------------------------------
Xxx Xxxxxxxxxx
Principal
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RAM Trading Ltd.
By: Xxxxx, Xxxx & Xxxxx, L.L.C.;
its Attorney-in-Fact
By: /s/ Xxx Xxxxxxxxxx
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Xxx Xxxxxxxxxx
Principal
OMNIPOINT CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
President
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SCHEDULE I
EAST WEST STOCKHOLDERS
NAME AND ADDRESS OF STOCKHOLDER NUMBER OF EAST WEST SHARES
WPG Merger Arbitrage Fund, L.P. 60,070
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
WPG Merger Arbitrage Overseas Fund, Ltd. 13,000
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
Xxxxxxx Capital Inv. Ltd. 25,215
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
RAM Trading Ltd. 25,215
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
