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EXHIBIT 99.2
VOTING AGREEMENT
THIS VOTING AGREEMENT (the "Agreement") is dated October 22, 1999, by
and among East/West Communications, Inc., a Delaware corporation ("East West"),
Omnipoint Corporation, a Delaware corporation ("Omnipoint"), and the entity set
forth on Schedule I hereto (the "East West Stockholder").
RECITALS
WHEREAS, concurrently herewith, East West and Omnipoint are entering
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, the East West Stockholder is the beneficial owner of the
number of shares of East West capital stock set forth opposite the East West
Stockholder's name in Schedule I hereto (the "East West Shares");
WHEREAS, approval of the Merger Agreement by the East West Stockholder
is a condition to the consummation of the Merger; and
WHEREAS, as a condition to its entering into the Merger Agreement,
Omnipoint has required that the East West Stockholder agree, and the East West
Stockholder has agreed, to enter into this Agreement;
AGREEMENT
NOW THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein, the parties hereto agree as follows:
1. Definitions. Capitalized terms used herein and not otherwise
defined have the meaning ascribed to such terms in the Merger Agreement.
2. Agreement to Vote by East West Stockholder.
a. The 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 the
East West Stockholder (whether issued heretofore or hereafter) that the 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
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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 and the termination of the Merger Agreement, the East West
Stockholder hereby agrees not to sell, transfer, pledge, encumber or otherwise
dispose of (collectively, "Transfer") any East West Shares beneficially owned by
the 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.
c. To the extent inconsistent with the foregoing provisions of this
Section 2, the East West Stockholder hereby revokes any and all previous proxies
granted by the East West Stockholder with respect to the East West Stockholder's
East West Shares or any other voting securities of East West.
3. Representations and Warranties of East West and Omnipoint.
a. East West represents and warrants to Omnipoint as follows: (i)
each of this Agreement and the Merger Agreement has been approved by the Board
of Directors of East West and (ii) each of this Agreement and the Merger
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. Omnipoint represents and warrants to East West and the East West
Stockholder as follows: (i) each of this Agreement and the Merger Agreement has
been approved by the Board of Directors of Omnipoint and (ii) each of this
Agreement and the Merger Agreement has been duly executed and delivered by
Omnipoint 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.
4. Representations and Warranties of the East West Stockholder. The
East West Stockholder represents and warrants to Omnipoint as follows: (i) this
Agreement has been duly executed and delivered by the 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 the East West Stockholder on Schedule I hereto are the only voting
securities of East West owned (beneficially or of record) by it.
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5. Effectiveness and Termination. It is a condition precedent to
the effectiveness of this Agreement that the Merger Agreement shall have been
executed and delivered and be in full force and effect. In the event 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.
6. 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:
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 any East West Stockholder, to it at the address set forth on Schedule I
hereto;
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
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with a copy to:
Piper & Marbury L.L.P.
0000 Xxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxx X. Xxxxxx, Xx., 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.
(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
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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 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, together with the Merger
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.
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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 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:
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Xxxxxxxx X. Xxxx
Chief Executive Officer
OMNIPOINT CORPORATION
By:
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Xxxxxxx X. Xxxxx
Chief Executive Officer
EAST WEST STOCKHOLDER
AER FORCE COMMUNICATIONS, INC.
By:
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Name: Xxxxxxxx X. Xxxx
Title:
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SCHEDULE I
EAST WEST STOCKHOLDER
NUMBER AND CLASS
NAME AND ADDRESS OF STOCKHOLDER OF EAST WEST SHARES
Aer Force Communications, Inc. 1,779,301 shares of
000 Xxxxxxxxxx Xxxxxx Class X Xxxxxx Xxxxx
Xxx, Xxx Xxxx 00000