EXHIBIT 2.4
VOTING AGREEMENT
VOTING AGREEMENT, dated as of April 26, 1999 (this
"Agreement"), between CFW Communications Foundation (the "Stockholder") and
Sprint Corporation, a Kansas corporation (the "Parent").
WHEREAS, American Telecasting, Inc., a Delaware corporation
(the "Company"), Parent, and DD Acquisition, Corp., a Delaware corporation
and a wholly owned subsidiary of Parent ("Purchaser"), have, substantially
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 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 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 74,322 shares of Company Common Stock and may receive a
transfer from CFW Communications Company of an additional 200,000 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").
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.
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.
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
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.
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
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, 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
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 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 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, CFW Communications Company, Telecopy No: 000-000-0000.
7. Entire Agreement. This Agreement constitutes the entire agreement
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
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
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 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
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 choice of law principles) shall govern all issues concerning
the validity of this Agreement, the 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
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
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.
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 FOUNDATION
__________________________________
Name: Xxxxx X. Xxxxxxxxx
Title:
SPRINT CORPORATION
By:_______________________________
Name: Xxxxxxxx X. Xxxxxx
Title: Senior Vice President
Strategic Planning
& Corporate Development
