Exhibit 10.3
EXECUTION COPY
EXCHANGE AGREEMENT
dated as of
December 18, 2001
among
PRICE COMMUNICATIONS CORPORATION,
PRICE COMMUNICATIONS CELLULAR INC.,
PRICE COMMUNICATIONS CELLULAR HOLDINGS, INC.,
PRICE COMMUNICATIONS WIRELESS, INC.,
VERIZON COMMUNICATIONS INC.,
VERIZON WIRELESS INC.
CELLCO PARTNERSHIP
AND
VERIZON WIRELESS OF THE EAST LP
TABLE OF CONTENTS
----------------------
PAGE
----
ARTICLE 1
---------
DEFINITIONS
-----------
SECTION 1.01. DEFINITIONS......................................................................2
ARTICLE 2
---------
EXCHANGE OF ELP INTEREST
------------------------
SECTION 2.01. EXCHANGE INTO VWI STOCK..........................................................7
SECTION 2.02. EXCHANGE INTO VCI STOCK..........................................................8
SECTION 2.03. REVALUATION OF ASSETS AND LIABILITIES...........................................10
SECTION 2.04. INDEMNIFICATION OBLIGATIONS.....................................................10
SECTION 2.05. ALLOCATION OF PROFIT OR LOSS....................................................10
SECTION 2.06. ANTI-DILUTION WITH RESPECT TO VCI STOCK.........................................11
SECTION 2.07. ANTI-DILUTION WITH RESPECT TO VWI STOCK.........................................16
ARTICLE 3
---------
REPRESENTATIONS AND WARRANTIES OF THE PRICE CORPORATIONS
--------------------------------------------------------
SECTION 3.01. EXISTENCE AND POWER.............................................................19
SECTION 3.02. AUTHORIZATION...................................................................19
SECTION 3.03. GOVERNMENTAL AUTHORIZATION......................................................20
SECTION 3.04. NONCONTRAVENTION................................................................21
SECTION 3.05. DISCLOSURE DOCUMENTS............................................................21
SECTION 3.06. LITIGATION......................................................................22
ARTICLE 4
---------
REPRESENTATIONS AND WARRANTIES OF VCI AND VWI
---------------------------------------------
SECTION 4.01. EXISTENCE AND POWER.............................................................22
SECTION 4.02. AUTHORIZATION...................................................................22
SECTION 4.03. GOVERNMENTAL AUTHORIZATION......................................................23
SECTION 4.04. NONCONTRAVENTION................................................................23
SECTION 4.05. LITIGATION......................................................................24
SECTION 4.06. SEC FILINGS.....................................................................24
ARTICLE 5
---------
COVENANTS
---------
SECTION 5.01. STOCKHOLDER MEETING; PROXY MATERIALS............................................24
SECTION 5.02. VCI AND VWI REGISTRATION STATEMENTS.............................................25
SECTION 5.03. SHELF REGISTRATION STATEMENT....................................................25
SECTION 5.04. RESERVATION OF SHARES...........................................................26
SECTION 5.05. LISTING.........................................................................26
PAGE
----
SECTION 5.06. 1934 ACT REPORTS................................................................26
SECTION 5.07. TAX TREATMENT...................................................................27
SECTION 5.08. IDENTITY OF ISSUER..............................................................27
SECTION 5.09. POST-CLOSING LITIGATION.........................................................27
SECTION 5.10. 1940 ACT........................................................................28
SECTION 5.11. FURTHER ASSURANCES..............................................................28
SECTION 5.12. SOLVENCY CERTIFICATE............................................................28
ARTICLE 6
---------
CONDITIONS TO CLOSING
---------------------
SECTION 6.01. CONDITIONS TO OBLIGATIONS OF EACH PARTY.........................................28
SECTION 6.02. CONDITIONS TO OBLIGATION OF VWI.................................................29
SECTION 6.03. CONDITIONS TO OBLIGATION OF VCI.................................................30
SECTION 6.04. CONDITIONS TO OBLIGATIONS OF THE PRICE CORPORATIONS.............................31
ARTICLE 7
---------
SURVIVAL
--------
SECTION 7.01. SURVIVAL........................................................................32
ARTICLE 8
---------
TERMINATION
-----------
SECTION 8.01. TERMINATION.....................................................................32
SECTION 8.02. EFFECT OF TERMINATION...........................................................32
ARTICLE 9
---------
MISCELLANEOUS
-------------
SECTION 9.01. NOTICES.........................................................................32
SECTION 9.02. AMENDMENTS AND WAIVERS..........................................................34
SECTION 9.03. EXPENSES........................................................................34
SECTION 9.04. SUCCESSORS AND ASSIGNS..........................................................34
SECTION 9.05. GOVERNING LAW...................................................................35
SECTION 9.06. JURISDICTION....................................................................35
SECTION 9.07. WAIVER OF JURY TRIAL............................................................35
SECTION 9.08. COUNTERPARTS; THIRD PARTY BENEFICIARIES.........................................35
SECTION 9.09. ENTIRE AGREEMENT................................................................36
SECTION 9.10. JOINT AND SEVERAL LIABILITY.....................................................36
SECTION 9.11. APPOINTMENT OF AGENT............................................................36
SECTION 9.12. SEVERABILITY....................................................................36
SECTION 9.13. INTERPRETATION..................................................................36
iii
EXCHANGE AGREEMENT
AGREEMENT dated as of December 18, 2001 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, Inc., a Delaware corporation (together with any Person
to which it may have assigned its rights and obligations pursuant to Section
9.04 of this Agreement, the "COMPANY" and, together with Price Parent, Price
Cellular and Price Shareholder, the "PRICE CORPORATIONS"), Verizon
Communications Inc., a Delaware corporation ("VCI"), Verizon Wireless Inc., a
Delaware corporation (or any Substitute Issuer to which it may have assigned its
rights and obligations pursuant to Section 9.04 of this Agreement, "VWI"),
Cellco Partnership, a Delaware general partnership ("CELLCO"), and Verizon
Wireless of the East LP, a newly formed Delaware limited partnership ("NEW LP").
W I T N E S S E T H :
WHEREAS, simultaneously with the execution of this Agreement (i) the
Price Corporations, Cellco Partnership, a Delaware general partnership
("CELLCO"), and New LP are entering into a Transaction Agreement (the
"TRANSACTION AGREEMENT"), pursuant to which, among other things, the Company
will make the Company Asset Contribution and the Company Cash Contribution to
New LP in exchange for the ELP Interest, (ii) Cellco, New LP and certain other
Persons (such other Persons, the "STOCKHOLDERS") are entering into a Voting
Agreement (the "VOTING AGREEMENT"), pursuant to which the Stockholders have
agreed, among other things, to vote the shares of stock of the Price
Corporations held by them in favor of the transactions contemplated by the
Transaction Agreement and this Agreement and (iii) the Price Corporations are
entering into Lock-up Agreements with each of VCI and VWI (the "LOCK-UP
AGREEMENTS") that limit, in certain respects, the transfer by the Price
Corporations of any shares of VWI or VCI issued pursuant to this Agreement;
WHEREAS, the parties hereto desire that the ELP Interest shall be
exchangeable for VWI Stock or VCI Stock upon the terms and subject to the
conditions set forth herein;
The parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. DEFINITIONS. (a) Capitalized terms used but not
defined herein shall have the respective meanings set forth in the
Transaction Agreement. In addition, the following terms, as used herein, have
the following meanings:
"AVERAGE VCI STOCK PRICE" means, for any measurement date, the average
of the Daily Price per share of VCI Stock for the 20 consecutive trading days
immediately prior to such measurement date; PROVIDED that, if a VCI Adjustment
Event has occurred during such period, "Average VCI Stock Price" shall mean the
average of the Daily Price per share of VCI Stock for the consecutive trading
days beginning the first trading day after such VCI Adjustment Event and ending
the trading day immediately prior to such measurement date.
"AVERAGE VWI STOCK PRICE" means, for any measurement date, the average
of the Daily Price per share of VWI Stock for the 20 consecutive trading days
immediately prior to such measurement date; PROVIDED that, if a VWI Adjustment
Event has occurred during such period, "Average VWI Stock Price" shall mean the
average of the Daily Price per share of VWI Stock for the consecutive trading
days beginning the first trading day after such VWI Adjustment Event and ending
the trading day immediately prior to such measurement date.
"COMMON VOTING STOCK" means common stock of a corporation which
entitles the holders thereof to vote in the election of directors of such
corporation.
"DAILY PRICE" means, for any securities, as of any day, (i) if such
securities are listed and traded on the
New York Stock Exchange, Inc. ("NYSE"),
the price at the close of the regular session of trading on such day as reported
on the NYSE Consolidated Tape, (ii) if such securities are not listed and traded
on the NYSE, the closing price on such day as reported by the principal national
securities exchange on which such securities are listed and traded at the close
of the regular session of trading for such exchange, (iii) if such securities
are not listed and traded on any such securities exchange, the last reported
sale price not identified as having been reported late, on such day on the
National Association of Securities Dealers, Inc. Automated Quotation Market
System ("NASDAQ"), or (iv) if such securities are quoted but not traded on
Nasdaq, the average of the highest reported bid and lowest reported asked price
not identified as having been reported late, on such day as reported by Nasdaq.
2
"ELPI PLEDGE TRANSFER" means a transfer of ownership of the ELP
Interest to a pledgee pursuant to a pledge granted by the Company under Article
10 of the New LP Agreement.
"EXCHANGE" means a VWI Exchange or a VCI Exchange.
"EXCHANGE CLOSING DATE" means the date of consummation of an Exchange.
"EXCHANGE NOTICE DEADLINE" means the 60th day following the Exchange
Trigger Date.
"EXCHANGE TRIGGER DATE" means the later of (i) the one year anniversary
of the Closing Date and (ii) the date of the VWI IPO.
"MANDATORY EXCHANGE DATE" means:
(i) the fourth anniversary of the Closing Date, if (A) no Exchange
Trigger Date occurs prior to such fourth anniversary or (B) the Company has a
right to deliver and delivers a VWI Exchange Revocation Notice in compliance
with Section 2.01(d) prior to such fourth anniversary;
(ii) the fourth anniversary of the delivery by the Company of a VWI
Exchange Notice in compliance with Section 2.01 if (A) the stockholders of Price
Parent approve the VWI Exchange contemplated by such VWI Exchange Notice, (B)
the VWI Exchange is not consummated prior to the fourth anniversary of the
delivery of such VWI Exchange Notice and the failure to consummate the VWI
Exchange is not the result of a failure by any Price Corporation or VWI to have
performed, in all material respects, their respective obligations under this
Agreement that are required to be performed by them prior to such fourth
anniversary and (C) the ELP Interest has not been exchanged for VCI Stock
pursuant to Section 2.02(b);
(iii) the business day following the date of delivery of a VWI Exchange
Revocation Notice in compliance with Section 2.01(d) if such VWI Exchange
Revocation Notice is delivered after the fourth anniversary of the Closing Date;
and
(iv) the tenth anniversary of the Closing Date if (a) the ELP Interest
has not been exchanged for VCI Stock pursuant to Section 2.02(b) and (b) the
Mandatory Exchange Date does not, for any reason whatsoever, occur under clause
(i), (ii) or (iii) above, including, without limitation, instances where the
Exchange Trigger Date occurs prior to the fourth anniversary of the Closing Date
3
and either (A) the Company does not deliver a VWI Exchange Notice in accordance
with Section 2.01(a) prior to the Exchange Notice Deadline and the ELP Interest
has not been exchanged for VCI Stock pursuant to Section 2.02(b) or (B) the
Company delivers a VWI Exchange Notice prior to the Exchange Notice Deadline and
either (x) the stockholders of Price Parent do not approve the VWI Exchange
contemplated by such VWI Exchange Notice or (y) the failure to consummate the
VWI Exchange is the result of the failure by the Price Corporations to perform,
in any material respect, their obligations under this Agreement that are
required to be performed prior to the Exchange Closing Date.
"PERMITTED TRANSFEREE" has the meaning assigned to such term in the New
LP Agreement.
"PRE-DEADLINE MAXIMUM PRICE" means, subject to Section 2.06, $74.
"PRE-DEADLINE MINIMUM PRICE" means, subject to Section 2.06, $40.
"POST-DEADLINE MINIMUM PRICE" means, subject to Section 2.06, $55.30.
"PRICE CHANGE OF CONTROL" means any Person (other than a Passive
Institutional Investor and other than Xxxxxx Xxxxx and any 13D Group as to which
he has sole voting authority) or 13D Group having or acquiring beneficial
ownership (as defined in Rule 13d-3 under the 0000 Xxx) of voting securities of
Price Parent representing more than 30% of the total voting power of all
outstanding voting securities of Price Parent (PROVIDED that a "Price Change of
Control" shall not be deemed to exist solely by reason of an acquisition of
voting securities of Price Parent by Price Parent which, by reducing the number
of voting securities of Price Parent outstanding, increases the proportionate
number of voting securities of Price Parent beneficially owned by such Person or
13D Group to more than 30% of the total voting power of all outstanding voting
securities of Price Parent).
"PUBLICLY TRADED SECURITIES" means securities which are listed and
traded on any national securities exchange or quoted and traded on Nasdaq.
"RELEVANT VCI PRICES" means the Pre-Deadline Minimum Price, the Pre-
Deadline Maximum Price and the Post-Deadline Minimum Price.
"SEC" means the Securities and Exchange Commission.
"VCI CONTROLLED SUBSIDIARY" means a corporation that is controlled by
VCI within the meaning of Section 368(c) of the Code.
4
"VCI EXCHANGE" means a VCI Mandatory Exchange or a VCI Call Exchange.
"VCI EXCHANGE AMOUNT" means, subject to Sections 2.03, 2.04 and 2.05,
(i)(a) for any VCI Exchange occurring under the circumstances contemplated by
clauses (i), (ii) or (iii) of the definition of "Mandatory Exchange Date" and
(b) for any VCI Exchange occurring pursuant to clause (i)(B), clause (ii) or
clause (iii) of Section 2.02(b), a number of shares of VCI Stock equal to (A)
the amount of the Company Capital Account as of the date of such VCI Exchange
DIVIDED by (B) the Average VCI Stock Price for such date (provided that, for
purposes of clause (B), (w) if such price is less than the Pre-Deadline Minimum
Price, the Average VCI Stock Price shall be deemed to be equal to the
Pre-Deadline Minimum Price and (x) if such price is greater than the
Pre-Deadline Maximum Price, the Average VCI Stock Price shall be deemed to be
equal to the Pre-Deadline Maximum Price), or (ii) for any VCI Exchange occurring
under the circumstances contemplated by clause (iv) of the definition of
"Mandatory Exchange Date"and for any VCI Exchange occurring pursuant to clause
(i)(A) of Section 2.02(b), a number of shares of VCI Stock equal to (A) the
amount of the Company Capital Account as of the date of such VCI Exchange
DIVIDED by (B) the greater of (y) the Average VCI Stock Price for such date and
(z) the Post-Deadline Minimum Price; provided that, in each case, the number of
shares of VCI Stock shall be rounded down to the nearest whole share if the
foregoing calculation would result in a fractional share of less than 0.5 and
shall be rounded up to the nearest whole share if such calculation would result
in a fractional share of 0.5 or greater.
"VCI REGISTRATION STATEMENT" means the registration statement of VCI
(as amended or supplemented) filed with the SEC pursuant to Section 5.02.
"VCI STOCK" means, subject to Section 2.06, the common stock, par value
$0.10 per share, of VCI.
"VERIZON ISSUER" means (i) VCI, in the case of a VCI Exchange, and (ii)
VWI, in the case of a VWI Exchange.
"VWI EXCHANGE AMOUNT" means, subject to Sections 2.03, 2.04 and 2.05, a
number of shares of VWI Stock equal to (i) the amount of the Company Capital
Account as of the date of exchange DIVIDED BY (ii) the VWI IPO Price (as
adjusted pursuant to Section 2.07); PROVIDED that such number of shares shall be
rounded down to the nearest whole share if the foregoing calculation would
result in a fractional share of less than 0.5 and shall be rounded up to the
nearest whole share if such calculation would result in a fractional share of
0.5 or greater.
5
"VWI IPO" means the initial public offering of shares of VWI Stock at
any time prior to the fourth anniversary of the Closing Date which initial
public offering (i) is pursuant to an effective registration statement under the
1933 Act, (ii) is underwritten, on a firm commitment basis, by one or more
investment banks of nationally recognized standing, and (iii) results in (A)
gross proceeds to the issuer of at least $4 billion and (B) the issuance to the
issuer of partnership units representing at least 4% of the aggregate
partnership units in Cellco which are outstanding immediately after completion
of such offering.
"VWI IPO PRICE" means the price per share at which shares of VWI Stock
are offered for sale to the public pursuant to the VWI IPO.
"VWI REGISTRATION STATEMENT" means the registration statement of VWI
(as amended or supplemented) which may be filed with the SEC pursuant to
Section 5.02.
"VWI STOCK" means common stock of VWI which is Common Voting Stock and
which is of the same class as the shares offered to the public in the VWI IPO.
(b) Each of the following terms is defined in the Section set forth
opposite such terms.
TERM SECTION
Adjusted Pro Forma VCI Share Price 2.06(c)
Adjusted VCI Exchange Amount 2.06(c)
Audited Profit/Loss 2.05(c)
Cellco Preamble
Company Preamble
Estimated Profit/Loss 2.05(a)
Lock-up Agreement 3.01
New LP Preamble
non-electing VCI share 2.06(f)
Price Cellular Preamble
Price Shareholder Preamble
Price Parent Preamble
Price Corporations Preamble
Price Proxy Materials 3.05(a)
Pro Forma VCI Share Price 2.06(c)
Reorganization 5.07(a)
Revocation Deadline 2.01(d)
Shelf Registration Statement 5.03(a)
6
TERM SECTION
Stockholders Preamble
Substitute Issuer 5.08
Transaction Agreement Preamble
VCI Preamble
VCI Acquiror 2.06(d)
VCI Adjustment Event 2.06(a)
Voting Agreement Preamble
VCI Call Exchange 2.02(b)
VCI Call Exchange Closing 2.02(b)
VCI Distribution Amount 2.06(c)
VCI Exercise Notice 2.02(b)
VCI Extraordinary Divided 2.06(a)
VCI Mandatory Exchange 2.02(a)
VCI Required Value 2.06(c)
VWI Preamble
VWI Acquiror Shares 2.07(g)
VWI Exchange 2.01(b)
VWI Exchange Closing 2.01(b)
VWI Exchange Notice 2.01(a)
VWI Exchange Revocation Notice 2.01(d)
VWI Merger Event 2.07(d)
ARTICLE 2
EXCHANGE OF ELP INTEREST
SECTION 2.01. EXCHANGE INTO VWI STOCK. (a) At any time on or after the
Exchange Trigger Date, the Company shall have the right to elect to exchange the
ELP Interest, free and clear of all Liens (other than any Liens under the Pledge
Agreement), in whole and not in part, for a number of shares of VWI Stock equal
to the VWI Exchange Amount (as such amount may be adjusted in accordance with
Section 2.07); PROVIDED that, to exercise this right, the Company must deliver
to VWI, VCI and New LP no later than the Exchange Notice Deadline, a written
irrevocable (subject to Section 2.01(d)) notice of exercise (a "VWI EXCHANGE
NOTICE"). Any VWI Exchange Notice may provide that such exercise is subject to
satisfaction or waiver of any of the conditions set forth in Article 6
applicable to a VWI Exchange.
(b) The exchange of the ELP Interest for the VWI Exchange Amount
pursuant to this Section 2.01 shall take place at a closing (the "VWI EXCHANGE
7
CLOSING") which shall occur promptly after receipt of a VWI Exchange Notice and
satisfaction or waiver of the conditions described in Sections 6.01(a), 6.02 and
6.04. At the VWI Exchange Closing, VWI shall deliver to the Company a number of
fully paid and non-assessable shares of VWI Stock equal to the VWI Exchange
Amount and the Company shall take such actions as may reasonably be required to
transfer to VWI the ELP Interest free and clear of any Liens (other than any
Liens under the Pledge Agreement) (the "VWI EXCHANGE").
(c) VWI and the Company will each pay 50% of any and all documentary
stamp or similar issue or transfer taxes payable in respect of the issue or
delivery of shares of VWI Stock upon consummation of the VWI Exchange, except to
the extent such taxes are imposed by law on the recipient of such shares.
(d) If the Company delivers a VWI Exchange Notice pursuant to Section
2.01(a) and the stockholders of Price Parent subsequently approve the VWI
Exchange at a meeting held pursuant to Section 5.01, the Company shall have the
right to revoke such VWI Exchange Notice if (i) the VWI Exchange does not occur
prior to the earlier of (A) the first anniversary of the Exchange Notice
Deadline or (B) the day which is 180 days after the fourth anniversary of the
Closing Date (the "REVOCATION DEADLINE"), and (ii) the failure to consummate the
VWI Exchange prior to the Revocation Deadline is solely a result of a breach by
VWI of any of its obligations under this Agreement; PROVIDED that, to exercise
this right, the Company must deliver to VWI, VCI and New LP no later than 30
days after the Revocation Deadline a written irrevocable notice of exercise (a
"VWI EXCHANGE REVOCATION NOTICE"). Upon delivery of a VWI Exchange Revocation
Notice, the Company shall no longer have any right to Exchange the ELP Interest
for VWI Stock pursuant to this Agreement and, subject to the satisfaction of the
conditions set forth in Sections 6.01(b), 6.03 and 6.04, the ELP Interest will
be exchanged for VCI Stock under Section 2.02. The delivery by the Company of a
VWI Exchange Revocation Notice will not constitute a waiver by the Company of
any rights that it may have against VWI in connection with any VWI breach giving
rise to the Company's right to deliver the VWI Exchange Revocation Notice.
SECTION 2.02. EXCHANGE INTO VCI STOCK. (a) Subject to satisfaction or
waiver of the conditions set forth in Sections 6.01(b), 6.03 and 6.04, on the
Mandatory Exchange Date, if any, the Company shall take such actions as may
reasonably be required to transfer to VCI (or to a VCI Controlled Subsidiary
designated by VCI) the ELP Interest, free and clear of any Liens (other than any
Liens under the Pledge Agreement), and VCI (or such VCI Controlled Subsidiary)
shall deliver to the Company a number of fully paid and nonassessable shares of
VCI Stock equal to the VCI Exchange Amount (as such amount may be adjusted
8
pursuant to Section 2.06) applicable to such Mandatory Exchange Date (the "VCI
MANDATORY EXCHANGE").
(b) Subject to satisfaction or waiver of the conditions set forth in
Sections 6.01(b), 6.03 and 6.04, (i) if both the Exchange Notice Deadline and
the second anniversary of the Closing Date shall have occurred and either (A)
the Company shall not have delivered a VWI Exchange Notice in accordance with
Section 2.01(a) or (B) the Company shall have delivered a VWI Exchange Notice
and subsequently delivered a VWI Exchange Revocation Notice pursuant to Section
2.01(d), (ii) if there shall have occurred after the Closing Date any Price
Change of Control or (iii) if there shall have occurred an ELPI Pledge Transfer,
then, (x) in the case of clause (i), at any time after the occurrence of the
events described in such clause (i), (y) in the case of clause (ii), at any time
prior to the fourth anniversary of the Price Change of Control and (z) in the
case of clause (iii), at any time after the occurrence of the ELPI Pledge
Transfer, VCI shall have the right to cause the Company to take such actions as
may be required to transfer to VCI (or to a VCI Controlled Subsidiary designated
by VCI) the ELP Interest, in whole and not in part, free and clear of any Liens
(other than any Liens under the Pledge Agreement), and, in exchange therefor,
VCI (or such VCI Controlled Subsidiary) shall deliver to the Company a number of
fully paid and nonassessable shares of VCI Stock equal to the VCI Exchange
Amount (as such amount may be adjusted pursuant to Section 2.06) applicable at
such time. To exercise its rights under this Section 2.02(b), VCI shall deliver
to the Company a written notice of exercise at least 30 days prior to the date
VCI proposes to effect such transfer and exchange (a "VCI EXERCISE NOTICE"). Any
VCI Exercise Notice may provide that such exercise is subject to satisfaction or
waiver of any of the conditions set forth in Article 6 applicable to a VCI
Exchange. The exchange of the ELP Interest for the VCI Exchange Amount pursuant
to this Section 2.02(b) shall take place at a closing (the "VCI CALL EXCHANGE
CLOSING") which shall occur promptly after receipt by the Company of a VCI
Exercise Notice and satisfaction or waiver of the conditions set forth in
Sections 6.01(b), 6.03 and 6.04. At the VCI Call Exchange Closing, the Company
will transfer the ELP Interest to VCI (or to a VCI Controlled Subsidiary
designated by VCI) free and clear of any Liens (other than any Liens under the
Pledge Agreement) and VCI (or such VCI Controlled Subsidiary) will deliver to
the Company such VCI Stock (the "VCI CALL EXCHANGE").
(c) VCI and the Company will each pay 50% of any and all documentary
stamp or similar issue or transfer taxes payable in respect of the issue or
delivery of shares of VCI Stock upon consummation of a VCI Exchange, except to
the extent such taxes are imposed by law on the recipient of such shares.
9
SECTION 2.03. REVALUATION OF ASSETS AND LIABILITIES. At the election of
the Company at any time prior to the later of (x) 30 days after an Exchange and
(y) if the Company has requested an audit pursuant to Section 2.05(b), 10 days
after a determination by New LP pursuant to Section 2.05(c), the following shall
take place effective upon an Exchange:
(i) all assets and liabilities of New LP shall be revalued at
their current market values based on an appraisal thereof conducted by
a Person designated by the Company (the costs of any such appraisal to
be shared equally between New LP and the Company); PROVIDED that such
Person (A) shall not be an Affiliate of the Company, VCI or VWI, and
(B) must be approved by VWI and VCI (such approval not to be
unreasonably withheld); and
(ii) solely for the purpose of determining the VCI Exchange
Amount or the VWI Exchange Amount, any unrealized gain or loss
resulting from the revaluation of the New LP assets and liabilities
shall be allocated to each Capital Account in accordance with the terms
of Article 4 of the New LP Agreement as if it were an item of Profit or
Loss.
SECTION 2.04. INDEMNIFICATION OBLIGATIONS. Solely for purposes of
calculating the VCI Exchange Amount or the VWI Exchange Amount, if a Default (as
defined in the Pledge Agreement) has occurred and is continuing as of the date
of an Exchange, the Company Capital Account shall be reduced by the amount of
any Secured Obligations (as defined in the Pledge Agreement) subject to such
Default.
SECTION 2.05. ALLOCATION OF PROFIT OR LOSS. (a) Solely for purposes of
calculating the VWI Exchange Amount or the VCI Exchange Amount, upon an
Exchange, New LP shall estimate in good faith Profit or Loss for the period from
the beginning of the fiscal year in which such Exchange occurs (the "EXCHANGE
YEAR") until the Exchange Closing Date, and shall allocate to Price LP's Capital
Account Price LP's share of such Profit or Loss in accordance with the terms of
the New LP Agreement (such share of Profit or Loss is hereafter referred to as
the "ESTIMATED PROFIT/LOSS"). New LP will advise Price LP of its preliminary
estimate a reasonable period of time prior to the Exchange Closing Date and will
consider in good faith any revisions suggested by Price LP.
(b) If, within 30 days after such Exchange, the Company requests in
writing that New LP perform an audit with respect to the calculations referred
to in Section 2.05(a), New LP shall promptly prepare (or cause to be prepared)
its income statement for the period from the beginning of the Exchange Year
until the Exchange Closing Date, and shall cause such income statement to be
audited
10
by its independent auditors. The costs of any such audit shall be shared
equally between New LP and the Company.
(c) Promptly after completion of an audit conducted pursuant to
Section 2.05(b), and solely for purposes of determining the accuracy of the
calculations referred to in Section 2.05(a), New LP shall determine Price LP's
share of any Profit or Loss (the "AUDITED PROFIT/LOSS") for the period from the
beginning of the Exchange Year until the Exchange Closing Date based on the
audited income statement.
(d) If the Audited Profit/Loss is greater (i.e., a larger Profit or a
smaller Loss) than the Estimated Profit/Loss, the Verizon Issuer shall promptly
(subject to satisfaction or waiver of the conditions set forth in Section
6.01(a) or Section 6.01(b), as the case may be) (A) issue to the Company a
number of shares of VCI Stock or VWI Stock, as the case may be, equal to (x) the
amount of such excess DIVIDED by (y) the denominator used to calculate the VCI
Exchange Amount or the VWI Exchange Amount, as the case may be, for purposes of
the Exchange, and (B) deliver to the Company any distributions made on such
shares between the Exchange Closing Date and the date of such issuance. If the
Audited Profit/Loss is less (i.e., a smaller Profit or a larger Loss) than the
Estimated Profit/Loss, the Company shall promptly return to the Verizon Issuer
(A) a number of shares of VCI Stock or VWI Stock, as the case may be, equal (x)
the amount of such deficit DIVIDED by (y) the denominator used to calculate the
VCI Exchange Amount or the VWI Exchange Amount, as the case may be, for purposes
of the Exchange, and (B) any distributions made on such shares between the
Exchange Closing Date and the date of such return. The number of shares to be
issued or returned pursuant to the preceding two sentences shall be rounded up
or down to the nearest whole share in accordance with the proviso to the
definition of VCI Exchange Amount or VWI Exchange Amount in Section 1.01. If the
Audited Profit/Loss is equal to the Estimated Profit/Loss, the Verizon Issuer
shall not be required to issue any additional shares and the Company shall not
be required to return any shares to the Verizon Issuer.
(e) Capitalized terms used in this Section 2.05 but not defined herein
or in the Transaction Agreement shall have the respective meanings set forth in
the New LP Agreement.
SECTION 2.06. ANTI-DILUTION WITH RESPECT TO VCI STOCK. (a) If VCI at
any time after the Closing Date (i) subdivides or splits the outstanding VCI
Stock (including by means of paying a dividend payable solely in shares of VCI
Stock), (ii) combines or reclassifies the outstanding VCI Stock into a smaller
number of shares, (iii) consolidates with, merges into or is converted into any
other Person, (iv) pays any VCI Extraordinary Dividend in respect of the VCI
Stock or (v)
11
consummates any other transaction having an effect on the VCI Stock
substantially similar to the effect of the other transactions described in this
Section 2.06(a), including, without limitation, any issuance of any shares of
its capital stock in a reclassification of VCI Stock (including any such
reclassification in connection with a consolidation or merger in which VCI is
the surviving corporation), the securities to be issued upon any VCI Exchange
consummated after the record date for the determination of stockholders entitled
to such dividend in the case of the dividend referred to in clause (i), (iv) or,
if applicable, clause (v) or after the effective date of the other events
referred to in clauses (i) through (v) above will be adjusted as set forth in
this Section 2.06 (each such record date or effective date, a "VCI ADJUSTMENT
EVENT"). For purposes of this Section 2.06, "VCI EXTRAORDINARY DIVIDEND" means
the payment by VCI of any dividend on, or the making by VCI of any distribution
in respect of, the VCI Stock (other than a dividend or distribution payable
solely in shares of VCI Stock), whether payable in cash, securities or other
property; PROVIDED that cash dividends paid by VCI in the ordinary course of its
business shall not constitute VCI Extraordinary Dividends; PROVIDED FURTHER
that, without limiting the immediately preceding proviso, any cash dividend
which, on an annualized basis, represents 10% or less of the Average VCI Stock
Price for the date of such dividend shall be presumed to have been paid in the
ordinary course of business.
(b) If the VCI Adjustment Event is the subdivision or split of the
outstanding VCI Stock into a larger number of shares (including by means of
paying a dividend payable solely in shares of VCI Stock) of the same class or
the combination or reclassification of the outstanding VCI Stock into a smaller
number of shares of the same class, then, for purposes of computing the VCI
Exchange Amount in respect of any VCI Exchange occurring after such VCI
Adjustment Event, each Relevant VCI Price will be proportionately adjusted by
dividing such Relevant VCI Price by the number of shares of VCI Stock (or
fraction thereof) into which one share of VCI Stock was subdivided, split,
combined or reclassified as a result of such VCI Adjustment Event.
(c) If the VCI Adjustment Event is a VCI Extraordinary Dividend, then
the VCI Exchange Amount applicable to any VCI Exchange occurring after such VCI
Adjustment Event will be equal to the "ADJUSTED VCI EXCHANGE AMOUNT" calculated
pursuant to the following formula:
VCI REQUIRED VALUE
ADJUSTED VCI EXCHANGE AMOUNT = ------------------
CURRENT VCI PRICE
where, for purposes of this Section 2.06(c):
12
"VCI REQUIRED VALUE" means (i) the amount of the
Company Capital Account as of the date of such VCI Exchange
DIVIDED BY the Adjusted Pro Forma VCI Share Price, MULTIPLIED
BY (ii) the Pro Forma VCI Share Price.
"ADJUSTED PRO FORMA VCI SHARE PRICE" means (i)for any
VCI Exchange occurring under the circumstances contemplated by
clauses (i), (ii) or (iii) of the definition of "Mandatory
Exchange Date " and for any VCI Exchange occurring pursuant to
clause (i)(B), clause (ii) or clause (iii) of Section 2.02(b),
the Current VCI Price PLUS the VCI Distribution Amount;
PROVIDED that, such amount shall not be less than the
Pre-Deadline Minimum Price or greater than the Pre-Deadline
Maximum Price and (ii) for any VCI Exchange occurring under
the circumstances contemplated by clause (iv) of the
definition of "Mandatory Exchange Date" and for any VCI
Exchange pursuant to clause (i)(A) of Section 2.02(b), an
amount equal to the greater of (A) an amount equal to the
Current VCI Price for such date PLUS the VCI Distribution
Amount and (B) the Post-Deadline Minimum Price.
"PRO FORMA VCI SHARE PRICE" means an amount equal to
the Current VCI Price PLUS the VCI Distribution Amount.
"VCI DISTRIBUTION AMOUNT" means the aggregate per
share amount of all VCI Extraordinary Dividends paid by VCI
after the Closing Date and prior to such VCI Exchange;
PROVIDED that, for purposes of this Section 2.06(c), the per
share amount of any non-cash VCI Extraordinary Dividend shall
be equal to (i) to the extent that any non-cash VCI
Extraordinary Dividend is comprised of property other than
Publicly Traded Securities, an amount equal to (A) the Average
VCI Stock Price for the date of such VCI Extraordinary
Dividend MINUS the sum of (B)(1) the average of the Daily
Price per share of VCI Stock for the 20 consecutive trading
days immediately after such VCI Extraordinary Dividend and (2)
the value, if any, derived from clause (ii) below, and (ii) to
the extent that any non-cash VCI Extraordinary Dividend is
comprised of securities which are Publicly Traded Securities,
an amount equal to the average Daily Price per security of
such securities for the 20 consecutive trading days
immediately after such VCI Extraordinary Dividend MULTIPLIED
BY the number of such securities distributed per share of VCI
Stock.
13
"CURRENT VCI PRICE" means the Average VCI Stock Price
for the date of such VCI Exchange.
(d) If the VCI Adjustment Event is a transaction pursuant to which VCI
consolidates with, merges or converts into, or is acquired by any other Person
(the "VCI ACQUIROR"), and pursuant to such transaction the VCI Stock is
consolidated, merged, converted or exchanged into securities other than VCI
Stock or is acquired for cash and/or such securities (a "VCI MERGER EVENT"),
then (subject to Section 2.02(b)) upon any VCI Exchange occurring after such VCI
Merger Event, the holder of the ELPI Interest shall be entitled to receive (in
lieu of the VCI Exchange Amount) consideration with a value equal to the
Required VCI Exchange Value in the same form and, if a combination of forms, in
the same proportion as the consideration that was provided to other holders of
VCI Stock in connection with such VCI Merger Event. For purposes of this Section
2.06(d), the "REQUIRED VCI EXCHANGE VALUE" for any such VCI Exchange shall be
equal to the Adjusted VCI Merger Value MULTIPLIED BY the VCI Per Share Value,
where:
"ADJUSTED VCI MERGER VALUE" means the amount of the
Company Capital Account as of the date of such VCI Exchange
DIVIDED BY the Adjusted VCI Per Share Value.
"ADJUSTED VCI PER SHARE VALUE" means (i) for any VCI
Exchange occurring under the circumstances contemplated by
clauses (i), (ii) or (iii) of the definition of "Mandatory
Exchange Date" and for any VCI Exchange occurring pursuant to
clause (i)(B), clause (ii) or clause (iii) of Section 2.02(b),
an amount equal to the VCI Per Share Value for such VCI Merger
Event; PROVIDED that such VCI Per Share Value shall not be
less than the Pre- Deadline Minimum Price or greater than the
Pre-Deadline Maximum Price and (ii) for any VCI Exchange
occurring under the circumstances contemplated by clause (iv)
of the definition of "Mandatory Exchange Date" and for any VCI
Exchange occurring pursuant to clause (i)(A) of Section
2.02(b), an amount equal to the greater of (A) the VCI Per
Share Value for such VCI Merger Event and (B) the
Post-Deadline Minimum Price.
"VCI PER SHARE VALUE" means the value of the
consideration paid per share of VCI Stock in connection with
such VCI Merger Event; PROVIDED that, for purposes of this
Section 2.06(d), the per share amount of any non-cash
consideration shall be (i) to the extent that such
consideration is comprised of securities which are Publicly
Traded Securities, an amount equal to
14
the value of such consideration determined by reference to the
Daily Price per security of such securities on the first full
trading day following such VCI Merger Event and (ii) to the
extent that such consideration is comprised of property other
than cash or Publicly Traded Securities, an amount equal to
(A) the VCI Stock Price as of the end of the trading day
immediately preceding the date of such VCI Merger Event MINUS
(B) the sum of the consideration per share of VCI Stock paid
in cash or in Publicly Traded Securities (valued as described
above).
(e) If the VCI Adjustment Event is any VCI Adjustment Event other than
those described in paragraphs (b) through (d) of this Section 2.06, the
securities to be issued upon a VCI Exchange occurring after the VCI Adjustment
Event and/or the Relevant VCI Prices shall be adjusted as determined by the
board of directors of VCI in its reasonable good faith judgment, to reflect, on
a basis consistent with the adjustment principles described in such paragraphs
(b) through (d), the effect of such VCI Adjustment Event.
(f) For purposes of applying this Section 2.06, (i) in connection with
any VCI Adjustment Event pursuant to which holders of VCI Stock are entitled to
elect to receive Common Voting Stock as the sole consideration, the holder of
the ELP Interest shall be deemed to have elected to receive such Common Voting
Stock as the sole consideration in connection with such VCI Adjustment Event
(provided that such election shall take into account and be subject to (x) any
restrictions or limits imposed on the elections of the holders of VCI Stock and
(y) the elections actually made by the holders of VCI Stock), and (ii) if the
holders of VCI Stock are entitled to make an election as to the form of
consideration receivable in connection with a VCI Adjustment Event, but are not
entitled to elect Common Voting Stock as the sole consideration, and the form of
consideration receivable upon such VCI Adjustment Event is not the same for each
share of VCI Stock held immediately prior to such VCI Adjustment Event by any
Person other than a party to the VCI Adjustment Event or an Affiliate thereof
and in respect of which such rights of election shall not have been exercised
("NON-ELECTING VCI SHARE"), then, for purposes of this Section 2.06, the kind
and amount of consideration receivable upon such VCI Adjustment Event shall be
deemed to be the kind and amount so receivable per share by a plurality of the
non-electing VCI shares.
(g) Any adjustments required to be made pursuant to this Section 2.06
shall be made successively whenever any VCI Adjustment Event shall occur. To the
extent that a VCI Adjustment Event occurs after any VCI Merger Event which
involves the issuance of shares of stock of the VCI Acquiror ("VCI ACQUIROR
SHARES") to holders of shares of VCI Stock, the adjustments provided for in this
15
Section 2.06 shall apply to the VCI Acquiror Shares on terms nearly as
equivalent as practicable to the provisions contained in this Section 2.06.
(h) If, at any time as a result of this Section 2.06, the holder of
the ELP Interest shall become entitled to receive any shares of capital stock of
VCI other than VCI Stock, the number of such other shares so receivable shall
thereafter be subject to adjustment from time to time in a manner and on terms
as nearly equivalent as practicable to the provisions contained in this Section
2.06.
SECTION 2.07. ANTI-DILUTION WITH RESPECT TO VWI STOCK. (a) If VWI at
any time after the VWI IPO but before a VWI Exchange (i) subdivides or splits
the outstanding VWI Stock (including by means of paying a dividend payable
solely in shares of VWI Stock), (ii) combines or reclassifies the outstanding
VWI Stock into a smaller number of shares, (iii) consolidates with, merges into
or is converted into any other Person, (iv) pays any VWI Extraordinary Dividend
in respect of the VWI Stock or (v) consummates any other transaction having an
effect on the VWI Stock substantially similar to the effect of the other
transactions described in this Section 2.07(a), including, without limitation,
any issuance of any shares of its capital stock in a reclassification of VWI
Stock (including any such reclassification in connection with a consolidation or
merger in which VWI is the continuing corporation), the securities to be issued
upon any VWI Exchange consummated after the record date for the determination of
stockholders entitled to such dividend in the case of the dividend referred to
in clause (i), (iv) or, if applicable, clause (v) or after the effective date of
the other events referred to in clauses (i) through (v) above will be adjusted
as set forth in this Section 2.07 (each such record date or effective date, a
"VWI ADJUSTMENT EVENT"). For purposes of this Section 2.07, "VWI EXTRAORDINARY
DIVIDEND" means the payment by VWI of any dividend on, or the making by VWI of
any distribution in respect of, the VWI Stock (other than a dividend or
distribution payable solely in shares of VWI Stock), whether payable in cash,
securities or other property; PROVIDED that cash dividends paid by VWI in the
ordinary course of its business shall not constitute VWI Extraordinary
Dividends; PROVIDED FURTHER that, without limiting the immediately preceding
proviso, that any cash dividend which, on an annualized basis, represents 10% or
less of the Average VWI Stock Price for the date of such dividend shall be
presumed to have been paid in the ordinary course of business.
(b) If the VWI Adjustment Event is the subdivision or split of the
outstanding VWI Stock into a larger number of shares of the same class or the
combination or reclassification of the outstanding VWI Stock into a smaller
number of shares (including by means of paying a dividend payable solely in
shares of VWI Stock) of the same class, then, for purposes of computing the VWI
Exchange Amount in respect of any VWI Exchange occurring after such VWI
16
Adjustment Event, the VWI IPO Price will be proportionately adjusted by dividing
such VWI IPO Price by the number of shares of VWI Stock (or fraction thereof)
into which one share of VWI Stock was subdivided, split, combined or
reclassified as a result of such VWI Adjustment Event.
(c) If the VWI Adjustment Event is the payment of a VWI Extraordinary
Dividend, then the VWI Exchange Amount applicable to any VWI Exchange occurring
after such VWI Adjustment Event will be equal to the "ADJUSTED VWI EXCHANGE
AMOUNT" calculated pursuant to the following formula:
where, for purposes of this Section 2.07(c):
| VWI DISTRIBUTION AMOUNT |
ADJUSTED VWI EXCHANGE AMOUNT = INITIAL VWI EXCHANGE AMOUNT x | 1 + ----------------------- |
| CURRENT VWI PRICE |
"INITIAL VWI EXCHANGE AMOUNT" means the amount of the Company Capital
Account as of the date of such VWI Exchange DIVIDED BY the VWI IPO Price (as
adjusted pursuant to this Section 2.07).
"VWI DISTRIBUTION AMOUNT" means the aggregate per share amount of all
VWI Extraordinary Dividends paid by VWI after the VWI IPO and prior to such VWI
Exchange; PROVIDED that, for purposes of this Section 2.07(c), the per share
amount of any non-cash VWI Extraordinary Dividend shall be equal to (i) to the
extent that any non-cash VWI Extraordinary Dividend is comprised of property
other than Publicly Traded Securities, an amount equal to (A) the Average VWI
Stock Price for the date of such VWI Extraordinary Dividend MINUS the sum of
(B)(1) the average of the Daily Price per share of VWI Stock for the 20
consecutive trading days immediately after such VWI Extraordinary Dividend and
(2) the value, if any, derived from clause (ii) below, and (ii) to the extent
that any non-cash VWI Extraordinary Dividend is comprised of securities which
are Publicly Traded Securities, an amount equal to the average Daily Price per
security of such securities for the 20 consecutive trading days immediately
after such VWI Extraordinary Dividend MULTIPLIED BY the number of such
securities distributed per share of VWI Stock.
"CURRENT VWI PRICE" means the Average VWI Stock Price for the date of
such VWI Exchange.
(d) If the VWI Adjustment Event is a transaction pursuant to which VWI
consolidates with, merges or converts into, or is acquired by any other Person
(the "VWI ACQUIROR"), and pursuant to such transaction the VWI Stock is
consolidated, merged, converted or exchanged into securities other than VWI
Stock or is acquired for cash and/or such securities (a "VWI MERGER EVENT"),
17
then upon any VWI Exchange occurring after such VWI Merger Event, the holder of
the ELPI Interest shall be entitled to receive consideration with a value equal
to the VWI Exchange Amount in the same form and, if a combination of forms, in
the same proportion as the consideration that was provided to other holders of
VWI Stock in connection with such VWI Merger Event.
(e) If the VWI Adjustment Event is any VWI Adjustment Event other than
those described in paragraphs (b) through (d) of this Section 2.07, the
securities to be issued upon a VWI Exchange occurring after the VWI Adjustment
Event shall be adjusted as determined by the board of directors of VWI in its
reasonable good faith judgment, to reflect, on a basis consistent with the
adjustment principles described in such paragraphs (b) through (d), the effect
of such VWI Adjustment Event.
(f) For purposes of applying this Section 2.07, (i) in connection with
any VWI Adjustment Event pursuant to which holders of VWI Stock are entitled to
elect to receive Common Voting Stock as the sole consideration, the holder of
the ELP Interest shall be deemed to have elected to receive such Common Voting
Stock as the sole consideration in connection with such VWI Adjustment Event
(provided that such election shall take into account and be subject to (x) any
restrictions or limits imposed on the elections of the holders of VWI Stock and
(y) the elections actually made by the holders of VWI Stock), and (ii) if the
holders of VWI Stock are entitled to make an election as to the form of
consideration receivable in connection with a VWI Adjustment Event, but are not
entitled to elect Common Voting Stock as the sole consideration, and the form of
consideration receivable upon such VWI Adjustment Event is not the same for each
share of VWI Stock held immediately prior to such VWI Adjustment Event by any
Person other than a party to the VWI Adjustment Event or an Affiliate thereof
and in respect of which such rights of election shall not have been exercised
("NON-ELECTING VWI SHARE"), then, for purposes of this Section 2.06, the kind
and amount of consideration receivable upon such VWI Adjustment Event shall be
deemed to be the kind and amount so receivable per share by a plurality of the
non-electing VWI shares.
(g) Any adjustments required to be made pursuant to this Section 2.07
shall be made successively whenever any VWI Adjustment Event shall occur. To the
extent that an VWI Adjustment Event occurs after any VWI Merger Event which
involves the issuance of shares of stock of the VWI Acquiror ("VWI ACQUIROR
SHARES") to holders of shares of VWI Stock, the adjustments provided for in this
Section 2.07 shall apply to the VWI Acquiror Shares on terms nearly as
equivalent as practicable to the provisions contained in this Section 2.07.
18
(h) If, at any time as a result of this Section 2.07, the holder of
the ELP Interest shall become entitled to receive any shares of capital stock of
VWI other than VWI Stock, the number of such other shares so receivable shall
thereafter be subject to adjustment from time to time in a manner and on terms
as nearly equivalent as practicable to the provisions contained in this Section
2.07.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE PRICE CORPORATIONS
Each of the Price Corporations represents and warrants to VCI and VWI,
jointly and severally, as of the date hereof and as of the Exchange Closing Date
that:
SECTION 3.01. EXISTENCE AND POWER. Each of the Price Corporations is
duly organized, validly existing and in good standing under the laws of its
jurisdiction of organization and has all corporate powers and all necessary
governmental licenses, authorizations, permits, consents and approvals required
to carry on its business as now conducted, except for such failures as would
not, and would not reasonably be expected to, individually or in the aggregate,
prevent or delay consummation of the transactions contemplated hereunder in any
material respect or otherwise prevent the Price Corporations from performing, in
any material respect, their respective obligations under this Agreement or
prevent the Company from performing, in any material respect, its obligations
under the VWI Lock-up Agreement or the VCI Lock-up Agreement (as the case may
be, the "LOCK-UP AGREEMENT"). Each of the Price Corporations is duly qualified
to do business as a foreign corporation and is in good standing in each
jurisdiction where such qualification is necessary, except for those
jurisdictions where failure to be so qualified would not reasonably be expected
to, individually or in the aggregate, prevent or delay consummation of the
transactions contemplated hereunder in any material respect or otherwise prevent
the Price Corporations from performing, in any material respect, their
respective obligations under this Agreement in any material respect or prevent
the Company from performing, in any material respect, its obligations under the
Lock-up Agreement.
SECTION 3.02. AUTHORIZATION. (a) The execution, delivery and
performance by each of the Price Corporations of this Agreement and by the
Company of the Lock-up Agreement, and the consummation of the transactions
contemplated hereby and thereby, are within each of the Price Corporations'
corporate powers and, except for any required approval of Price Parent's
stockholders in connection with the transactions contemplated by this Agreement,
have been duly authorized by all necessary corporate action on the part of each
of
19
the Price Corporations. The (i) affirmative vote of the holders of two-thirds or
a majority of the outstanding shares of the common stock, $0.01 par value, of
Price Parent and (ii) approval of the shareholders of each of the Price
Corporations (other than Price Parent), as the sole shareholder of another Price
Corporation, all of which have been obtained, are the only actions required by
the stockholders of any of the Price Corporations in connection with the
transactions contemplated by this Agreement. This Agreement constitutes a valid
and binding agreement of each of the Price Corporations, and upon execution and
delivery thereof, the Lock-up Agreement will constitute a valid and binding
agreement of the Company, in each case, enforceable against each of them in
accordance with its terms, except as such enforceability may be limited by
bankruptcy laws and other similar laws affecting creditors' rights generally,
and except that the remedy of specific performance and injunctive relief and
other forms of equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be brought.
(b) At a meeting duly called and held on December 13, 2001, Price
Parent's Board of Directors (i) unanimously determined that this Agreement and
the transactions contemplated hereby (other than the VWI Exchange) are fair to
and in the best interests of Price Parent's stockholders, (ii) unanimously
approved and adopted this Agreement and the transactions contemplated hereby
(other than the VWI Exchange) and (iii) unanimously resolved (subject to Section
9.09 of the Transaction Agreement) to recommend approval and adoption of the
transactions contemplated hereby (other than the VWI Exchange) by Price Parent's
stockholders.
SECTION 3.03. GOVERNMENTAL AUTHORIZATION. The execution, delivery and
performance by each of the Price Corporations of this Agreement and by the
Company of the Lock-up Agreement, and the consummation by such Persons of the
transactions contemplated hereby and thereby, require no action by or in respect
of, or filing with, any Governmental Entity, domestic, foreign or supranational,
other than (i) compliance with the requirements of the HSR Act, (ii) the filing
with the SEC of the Price Proxy Materials in definitive form, (iii) the filing
and declaration by the SEC of the effectiveness of the VCI Registration
Statement and the VWI Registration Statement (if any), (iv) compliance with any
other applicable securities laws, (v) compliance with the applicable
requirements of the Communications Act, and (vi) such actions or filings the
absence of which would not reasonably be expected to, individually or in the
aggregate, prevent or delay consummation of the transactions contemplated
hereunder in any material respect or otherwise prevent the Price Corporations
from performing, in any material respect, their respective obligations under
this Agreement or prevent the Company from performing, in any material respect,
its obligations under the Lock-up Agreement and will not have, and would not
reasonably be expected to
20
have, individually, or in the aggregate, a material adverse effect on the Price
Corporations or the ELP Interest.
SECTION 3.04. NONCONTRAVENTION. The execution, delivery and performance
by each of the Price Corporations of this Agreement and by the Company of the
Lock-up Agreement, and the consummation by such Persons of the transactions
contemplated hereby and thereby, do not and will not (i) violate the certificate
of incorporation, bylaws, or other organizational documents of any of the Price
Corporations, (ii) assuming compliance with the matters referred to in Section
3.03, violate any applicable law, rule, regulation, judgment, injunction, order
or decree applicable to any of the Price Corporations or by which any of their
respective properties or assets are bound, (iii) constitute a default under or
give rise to any right of termination, cancellation or acceleration of any right
or obligation of any of the Price Corporations or to a loss of any benefit to
which any of the Price Corporations is entitled under any provision of any
agreement or other instrument binding upon any of the Price Corporations or by
which any of the assets of the Price Corporations is or may be bound or (iv)
result in the creation or imposition of any Lien on any asset of the Price
Corporations, except in the case of clauses (ii), (iii) and (iv) above, such
violations or defaults that will not and would not reasonably be expected to,
individually or in the aggregate, prevent or delay consummation of the
transactions contemplated hereunder in any material respect, or otherwise
prevent the Price Corporations from performing, in any material respect, their
respective obligations under this Agreement or prevent the Company from
performing, in any material respect, its obligations under the Lock-up
Agreement.
SECTION 3.05. DISCLOSURE DOCUMENTS. (a) Each document filed by any of
the Price Corporations with the SEC in connection with the meetings of the
stockholders of Price Parent described in Section 7.22(a) of the Transaction
Agreement and Section 5.01 of this Agreement, including, without limitation, the
proxy or information statements of Price Parent and any amendments or
supplements thereto (the "PRICE PROXY MATERIALS") will, when filed, comply as to
form in all material respects with the applicable requirements of the 1934 Act.
(b) Each time any Price Proxy Materials are distributed to
stockholders of Price Parent or any other solicitation of stockholders of Price
Parent is made by or on behalf of the Price Corporations or any Affiliate of the
Price Corporations, and at the time such stockholders vote on adoption of the
transactions contemplated by the Transaction Agreement and this Agreement, the
Price Proxy Materials (as supplemented and amended, if applicable), will not
contain an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements made therein, in the light of the
circumstances under which they were made, not false or misleading. The
representations and
21
warranties contained in this Section 3.05(b) will not apply to statements or
omissions included in the Price Proxy Materials based upon information furnished
in writing to the Price Corporations in writing by VCI or VWI specifically for
use therein.
(c) None of the information provided by the Price Corporations for
inclusion in the VCI Registration Statement or the VWI Registration Statement
(if any) or any amendment or supplement thereto, at the time such registration
statement or any amendment or supplement becomes effective, will contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein not
misleading.
SECTION 3.06. LITIGATION. As of the date hereof, there is no action,
suit, investigation or proceeding pending against, or to the knowledge of any of
the Price Corporations threatened against or affecting, any of the Price
Corporations before any court or arbitrator or any Governmental Entity which in
any manner challenges or seeks to prevent, enjoin, alter or materially delay the
transactions contemplated by this Agreement or the Lock-up Agreement.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF VCI AND VWI
VCI and VWI represent and warrant, each with respect to itself, to each
of the Price Corporations, jointly and severally, as of the date hereof and as
of the Exchange Closing Date that:
SECTION 4.01. EXISTENCE AND POWER. Each of VCI and VWI is duly
organized, validly existing and in good standing under the laws of its
jurisdiction of organization and has all corporate powers and all necessary
governmental licenses, authorizations, permits, consents and approvals required
to carry on its business as now conducted except for such failures as will not
have, and would not reasonably be expected to have, individually or in the
aggregate, a material adverse effect on either VCI or VWI.
SECTION 4.02. AUTHORIZATION. The execution, delivery and performance by
VCI and VWI of this Agreement and the Lock-up Agreement to which it is a party
and the consummation of the transactions contemplated hereby and thereby are
within the corporate powers of VCI and VWI. All such transactions have been, or,
in the case of the VWI IPO and the issuance of the VWI Stock or the VCI Stock on
the Exchange Closing Date, will be as of the Exchange Closing Date, duly
authorized by all necessary corporate action on the part of VCI and
22
VWI. This Agreement constitutes and the Lock-up Agreement to which it is a party
will constitute, upon execution and delivery thereof by VWI or VCI as
applicable, a valid and binding agreement of VCI and VWI, as applicable,
enforceable against each of them in accordance with its terms, except as such
enforceability may be limited by bankruptcy laws and other similar laws
affecting creditors' rights generally, and except that the remedy of specific
performance and injunctive relief and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court before which
any proceeding therefor may be brought.
SECTION 4.03. GOVERNMENTAL AUTHORIZATION. The execution, delivery and
performance by VCI and VWI of this Agreement and the Lock-up Agreement to which
it is a party, and the consummation by VCI and VWI of the transactions
contemplated hereby and thereby, require no material action by or in respect of,
or material filing with, any Governmental Entity other than (i) compliance with
the applicable requirements of the HSR Act, (ii) the filing and declaration by
the SEC of the effectiveness of the VCI Registration Statement, the VWI
Registration Statement (if any) and the Shelf Registration Statement, (iii)
compliance with any other applicable securities laws, (iv) compliance with the
applicable requirements of the Communications Act, and (v) such actions or
filings the absence of which will not, and would not reasonably be expected to,
individually or in the aggregate, prevent or delay consummation of the
transactions contemplated hereunder in any material respect, or otherwise
prevent VCI and VWI from performing their respective obligations under this
Agreement or the Lock-up Agreement to which it is a party in any material
respect, and will not have, and would not reasonably be expected to have,
individually or in the aggregate, a material adverse effect on either VCI or
VWI.
SECTION 4.04. NONCONTRAVENTION. The execution, delivery and performance
by VCI and VWI of this Agreement and the Lock-up Agreement to which it is a
party and the consummation of the transactions contemplated hereby and thereby
do not and will not (i) violate the certificate of incorporation, bylaws or
other organizational documents of either VCI or VWI, (ii) assuming compliance
with the matters referred to in Section 4.03, violate any applicable material
law, rule, regulation, judgment, injunction, order or decree binding on either
VCI or VWI or (iii) constitute a default under or give rise to any right of
termination, cancellation or acceleration of any right or obligation of either
VCI or VWI or to a loss of any benefit to which either VCI or VWI is entitled
under any provision of any Contract binding upon either VCI or VWI or to which
any of their respective assets may be bound, except in the case of clauses (ii)
and (iii) above, violations or defaults that will not have, and would not
reasonably be expected to have, individually or in the aggregate, a material
adverse effect on either VCI or VWI.
23
SECTION 4.05. LITIGATION. There is no action, suit, investigation or
proceeding pending against, or to the knowledge of either VCI or VWI threatened
against or affecting, either VCI or VWI before any court or arbitrator or any
Governmental Entity which in any manner challenges or seeks to prevent, enjoin,
alter or materially delay the transactions contemplated by this Agreement or the
Lock-up Agreement to which it is a party or which would have a material adverse
effect on either VCI or VWI.
SECTION 4.06. SEC FILINGS. (a) At the time the VCI Registration
Statement or the VWI Registration Statement (if any) or any amendment or
supplement thereto becomes effective, such registration statement, as amended or
supplemented, will not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make
the statements therein not misleading, and such registration statement and any
supplement or amendment thereto will, when filed, comply as to form in all
material respects with the applicable requirements of the 1933 Act.
(b) The representations and warranties contained in this Section 4.06
will not apply to statements or omissions in the VCI Registration Statement or
the VWI Registration Statement (if any) or any amendment or supplement thereto
based upon information furnished to VWI or VCI by the Price Corporations in
writing specifically for use therein.
(c) None of the information provided by VCI or VWI for inclusion in
the Price Proxy Materials, at the time such materials are filed, will contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading.
ARTICLE 5
COVENANTS
SECTION 5.01. STOCKHOLDER MEETING; PROXY MATERIALS. (a) Price Parent
shall cause a meeting of its stockholders to be duly called and held (i) as soon
as reasonably practicable for the purpose of voting on and approving the
transactions contemplated by the Transaction Agreement and the Ancillary
Agreements (other than the VWI Exchange) and (ii) in the event that the Company
delivers a VWI Exchange Notice pursuant to Section 2.01, as soon as reasonably
practicable after delivery of such VWI Exchange Notice, for the purpose of
voting on and approving the VWI Exchange. The board of directors of Price Parent
shall, subject to their fiduciary duties under applicable law as advised by
counsel, recommend approval of such transactions by Price Parent's stockholders.
In connection with each meeting referred to above, Price Parent (x) will
promptly
24
prepare and file with the SEC, will use its best efforts to have cleared by the
SEC and will thereafter mail to its stockholders as promptly as practicable a
proxy or information statement and all other Price Proxy Materials for such
meeting as may be required under applicable law, (y) will use its best efforts
to obtain the necessary approval of the transactions referred to above by its
stockholders and (z) will otherwise comply with all legal requirements
applicable to each such meeting.
SECTION 5.02. VCI AND VWI REGISTRATION STATEMENTS. (a) Promptly after
the date hereof, VCI shall prepare and file with the SEC the VCI Registration
Statement and shall use its best efforts to cause the VCI Registration Statement
to be declared effective as soon as practicable thereafter. Promptly after the
later of (i) the date which is 9 months after the Closing Date and (ii) the VWI
IPO, VWI shall prepare and file with the SEC the VWI Registration Statement and
shall use its best efforts to cause the VWI Registration Statement to be
declared effective as soon as practicable thereafter.
SECTION 5.03. SHELF REGISTRATION STATEMENT. (a) The Verizon Issuer
shall, promptly after the earlier to occur of (i) delivery of a VWI Exchange
Notice pursuant to Section 2.01(a) and (ii) the Exchange Closing Date, file with
the SEC and thereafter use its reasonable best efforts to cause to be declared
effective as soon as reasonably practicable after the issuance of the VCI Stock
or the VWI Stock, as the case may be, but in any event no later than 120 days
after the Exchange Closing Date, a registration statement (the "SHELF
REGISTRATION STATEMENT") on an appropriate form under the 1933 Act relating to
the offer and sale of the shares of VCI Stock or VWI Stock, as the case may be,
issued to the Company pursuant to this Agreement, by the Company from time to
time in accordance with the methods of distribution set forth in the Shelf
Registration Statement and Rule 415 under the 1933 Act; PROVIDED that, any such
offer and sale of shares shall be subject to the terms of the Lock-up Agreement.
In addition, if the Company shall transfer any of such shares of VCI Stock or
VWI Stock, as the case may be, pursuant to a Permitted Transfer or to a Pledge
Transferee (each, as defined in the Lock-up Agreement), then upon request by
such transferee, VWI or VCI, as the case may be, shall prepare and file with the
SEC, as promptly as reasonably practicable after receipt of such notice and
receipt of such other information regarding the transferee as VCI or VWI, as the
case may be, may reasonably request, a supplement to the prospectus contained in
such Shelf Registration Statement including such transferee as a selling
shareholder thereunder.
(b) The Verizon Issuer shall use its best efforts to keep the Shelf
Registration Statement continuously effective in order to permit the prospectus
included therein to be lawfully delivered by the Company until the first
25
anniversary of the Exchange Closing Date or such shorter period that will
terminate when all the shares covered by the Shelf Registration Statement (i)
have been sold pursuant thereto or (ii) are freely saleable pursuant to Rule 145
under the 1933 Act, or any successor rule thereto.
(c) The Verizon Issuer shall cause the Shelf Registration Statement
and the related prospectus and any amendment or supplement thereto, as of the
effective date of the Shelf Registration Statement, amendment or supplement, not
to contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading (except with respect to the information referred to in Section
5.03(d)), and such registration statement and any supplement or amendment
thereto will, when filed, comply as to form in all material respects with the
applicable requirements of the 1933 Act.
(d) The Price Corporations shall ensure that none of the information
provided by the Price Corporations for inclusion in the Shelf Registration
Statement and the related prospectus, or any amendment or supplement thereto, as
of the effective date of the Shelf Registration Statement, amendment or
supplement, contains any untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
SECTION 5.04. RESERVATION OF SHARES. VCI shall, from the Closing Date
until the Exchange Closing Date, and VWI shall, from the date of the VWI IPO
until the Exchange Closing Date, keep reserved for issuance a sufficient number
of shares of VCI Stock and VWI Stock, respectively, to satisfy its exchange
obligations under this Agreement.
SECTION 5.05. LISTING. The Verizon Issuer shall use its best efforts to
cause the shares of VCI Stock or VWI Stock, as the case may be, issued upon an
Exchange pursuant to this Agreement, to be listed on each securities exchange or
quoted on each inter-dealer quotation system on which the VCI Stock or VWI
Stock, as the case may be, is then listed or quoted.
SECTION 5.06. 1934 ACT REPORTS. On and after the Exchange Closing
Date until the second anniversary of the Exchange Closing Date, the Verizon
Issuer shall timely file all reports required to be filed by it under the
1934 Act.
SECTION 5.07. TAX TREATMENT. (a) If the Company or Price Parent
advises the Verizon Issuer in writing that it is treating the Exchange as a
reorganization
26
within the meaning of Code Section 368(a) (a "REORGANIZATION"), the parties
hereto shall, and shall cause their Affiliates to, each treat on all tax returns
such Exchange as a Reorganization, and not take any position inconsistent
therewith in any tax return, tax filing or tax proceeding but only if the
Company or Price Parent obtains an opinion (in form and substance reasonably
satisfactory to the Verizon Issuer) addressed to the Company or Price Parent, as
the case may be, and to the Verizon Issuer from a nationally recognized law firm
selected by the Company or Price Parent, with the approval of the Verizon Issuer
(such approval not to be unreasonably withheld), stating that the Exchange
should be treated as a Reorganization.
(b) Prior to the closing of any Exchange that occurs within four and a
half years from the Closing Date, VWI and VCI (and any VCI Controlled Subsidiary
designated by VCI pursuant to Section 2.02) shall not enter into a legally
binding agreement that obligates, or adopt any board resolution approving the
terms of a specific transaction that would obligate, and shall not sign a
memorandum of understanding or a letter of intent that contains specific terms
and conditions for, (i) VCI or VWI (or such VCI Controlled Subsidiary) to
dispose after the Exchange of more than 50 percent of the ELP Interest received
in the Exchange, or (ii) New LP to dispose after the Exchange of more than 66
percent of its assets, other than, in each case, a transfer of such interest or
such assets to Cellco or to the members of the VCI or VWI "qualified group" as
defined in Treasury regulations Section 1.368-1(d)(4).
SECTION 5.08. IDENTITY OF ISSUER. If a public offering of shares of
Common Voting Stock of a corporation other than VWI occurs, and such offering
satisfies clauses (i), (ii) and (iii) of the definition of "VWI IPO" in Section
1.01, Cellco hereby covenants and agrees to take all appropriate actions to
cause such corporation (a "SUBSTITUTE ISSUER") to perform the obligations of VWI
under this Agreement.
SECTION 5.09. POST-CLOSING LITIGATION. The Price Corporations hereby
indemnify VWI, VCI and their respective Affiliates against and agree to hold
each of them harmless from any Damages incurred or suffered by any of VWI, VCI
or any of their respective Affiliates after consummation of the Exchange arising
out of any action, suit, investigation or proceeding which, as of the Exchange
Closing Date, is pending against, or to the knowledge of any of the Price
Corporations is threatened against or affecting, any of the Price Corporations
before any court or arbitrator or any Governmental Entity, which in any manner
challenges or seeks to prevent, enjoin, alter or materially delay the
transactions contemplated by this Agreement or the Lock-up Agreement.
27
SECTION 5.10. 1940 ACT. The Price Corporations shall use their
reasonable best efforts to obtain prior to the Exchange Closing Date an order
from the Division of Investment Management of the SEC exempting Price Parent
from all provisions, rules and regulations of the 1940 Act which might otherwise
apply as a result of the transactions contemplated to occur on the Exchange
Closing Date pursuant to this Agreement. If the Price Corporations are
unsuccessful in obtaining such an order, the Price Corporations shall take such
other actions as are necessary to satisfy the condition set forth in Section
6.02(d) or Section 6.03(d), as applicable.
SECTION 5.11. FURTHER ASSURANCES. Each party to this Agreement will use
its best efforts to take, or cause to be taken, all actions and to do, or cause
to be done, all things necessary or desirable under applicable laws and
regulations or otherwise to consummate at the earliest reasonably practicable
time the transactions contemplated by this Agreement; PROVIDED that the
foregoing shall not obligate VCI or VWI to effect the VWI IPO. Each party to
this Agreement agrees to execute and deliver or cause to be executed and
delivered such other documents, certificates, agreements and other writings and
to take such other actions as may be necessary or desirable in order to
consummate or implement expeditiously the transactions contemplated by this
Agreement.
SECTION 5.12. SOLVENCY CERTIFICATE. (a) Subject to Section 5.12(b), the
Price Corporations shall have the right, exercisable by written notice to VWI
and VCI, to cause VWI and VCI to waive compliance by the Price Corporations with
the conditions set forth in Sections 6.02(a) and 6.03(a).
(b) The Price Corporations agree that, if they exercise their right
under Section 5.12(a), none of the Price Corporations will consummate any
distribution to its stockholders, whether by means of liquidation, dividend or
otherwise, of any shares of VWI Stock or VCI Stock received by it upon an
Exchange, unless it shall have previously delivered to VWI and VCI a solvency
certificate, dated as of a date reasonably close to the distribution date, that
satisfies the criteria set forth in Section 6.02(a) and 6.03(a).
ARTICLE 6
CONDITIONS TO CLOSING
SECTION 6.01. CONDITIONS TO OBLIGATIONS OF EACH PARTY. (a) The
obligations of the Price Corporations and VWI to consummate the VWI Exchange
are subject to the satisfaction of each of the following conditions:
28
(i) the Closing shall have occurred and the approval of the
stockholders of Price Parent of the VWI Exchange, as required by
applicable law, shall have been obtained;
(ii) the VWI Registration Statement shall have been declared
effective and no stop order suspending the effectiveness of the VWI
Registration Statement shall be in effect and no proceedings for such
purpose shall be pending before or threatened by the SEC;
(iii) any applicable waiting period under the HSR Act relating
to such exchange shall have expired or been terminated; and
(iv) no provision of any applicable law or regulation and no
judgment, injunction, order or decree shall prohibit such exchange.
(b) The obligations of the Price Corporations and VCI to consummate a
VCI Exchange are subject to the satisfaction of each of the following
conditions:
(i) the Closing shall have occurred;
(ii) the VCI Registration Statement shall have been declared
effective and no stop order suspending the effectiveness of the VCI
Registration Statement shall be in effect and no proceedings for such
purpose shall be pending before or threatened by the SEC;
(iii) any applicable waiting period under the HSR Act relating
to such exchange shall have expired or been terminated; and
(iv) no provision of any applicable law or regulation and no
judgment, injunction, order or decree shall prohibit such exchange.
SECTION 6.02. CONDITIONS TO OBLIGATION OF VWI. The obligation of VWI to
consummate the VWI Exchange is subject to the satisfaction of the following
further conditions:
(a) Subject to Section 5.12, VWI shall have received a favorable
opinion of a third party reasonably acceptable to VWI as to the solvency of the
Price Corporations in form reasonably acceptable to VWI.
(b) (i) The Price Corporations shall have performed in all material
respects their obligations hereunder required to be performed by them on or
prior to the Exchange Closing Date, (ii) the representations and warranties of
the Price Corporations contained in this Agreement and in any certificate
delivered by the
29
Price Corporations pursuant hereto shall be true at and as of the Exchange
Closing Date, as if made at and as of such date, except for such inaccuracies in
such representations and warranties as will not, individually or in the
aggregate, prevent consummation of the transactions contemplated hereby or have
a material adverse effect on the value of the ELP Interest and (iii) VWI shall
have received a certificate signed by an executive officer of each of the Price
Corporations to the foregoing effect.
(c) The VWI Lock-up Agreement shall be in full force and effect.
(d) Price Parent shall have received an order from the Division of
Investment Management of the SEC exempting it from all provisions, rules and
regulations of the 1940 Act, or, if no such order shall have been received and
in effect as of the Exchange Closing Date, shall be in full compliance with all
provisions, rules and regulations of the 1940 Act (it being understood that such
compliance may be achieved, without limitation, by reliance on Rule 3a-2 of the
1940 Act).
SECTION 6.03. CONDITIONS TO OBLIGATION OF VCI. The obligation of VCI to
consummate a VCI Exchange is subject to the satisfaction of the following
further conditions:
(a) Subject to Section 5.12, VCI has received a favorable opinion of a
third party reasonably acceptable to VCI as to the solvency of the Price
Corporations in form reasonably acceptable to VCI.
(b) (i) The Price Corporations shall have performed in all material
respects their obligations hereunder required to be performed by them on or
prior to the Exchange Closing Date, (ii) the representations and warranties of
the Price Corporations contained in this Agreement and in any certificate
delivered by the Price Corporations pursuant hereto shall be true at and as of
the Exchange Closing Date, as if made at and as of such date, except for such
inaccuracies in such representations and warranties as will not, individually or
in the aggregate, prevent consummation of the transactions contemplated hereby
or have a material adverse effect on the value of the ELP Interest, and (iii)
VCI shall have received a certificate signed by an executive officer of each of
the Price Corporations to the foregoing effect.
(c) The VCI Lock-up Agreement shall be in full force and effect.
(d) Price Parent shall have received an order from the Division of
Investment Management of the SEC exempting it from all provisions, rules and
regulations of the 1940 Act, or, if no such order shall have been received and
in
30
effect as of the Exchange Closing Date, shall be in full compliance with all
provisions, rules and regulations of the 1940 Act (it being understood that such
compliance may be achieved, without limitation, by reliance on Rule 3a-2 of the
1940 Act).
SECTION 6.04. CONDITIONS TO OBLIGATIONS OF THE PRICE CORPORATIONS. (a)
The obligation of the Price Corporations to consummate the VWI Exchange is
subject to the satisfaction of the following further conditions:
(i) (A) VWI shall have performed in all material respects all
of its obligations hereunder required to be performed by it at or prior
to the Exchange Closing Date, (B) the representations and warranties of
VWI contained in this Agreement and in any certificate delivered by VWI
pursuant hereto shall be true at and as of the Exchange Closing Date,
as if made at and as of such date, except for such inaccuracies in such
representations and warranties as will not, individually or in the
aggregate, prevent consummation of the transactions contemplated hereby
or have a material adverse effect on VWI, and (C) the Price
Corporations shall have received a certificate signed by an executive
officer of VWI to the foregoing effect; and
(ii) The shares of VWI Stock to be issued in such exchange
shall have been approved for listing on each stock exchange or
quotation on each automated quotation system in which other shares of
VWI Stock are listed or quoted, subject to official notice of issuance.
(b) The obligation of the Price Corporations to consummate a VCI
Exchange is subject to satisfaction of the following further conditions:
(i) (A) VCI shall have performed in all material respects all
of its obligations hereunder required to be performed by it at or prior
to the Exchange Closing Date, (B) the representations and warranties of
VCI contained in this Agreement and in any certificate delivered by VCI
pursuant hereto, shall be true at and as of the Exchange Closing Date,
as if made at and as of such date, except for such inaccuracies in such
representations and warranties as will not, individually or in the
aggregate, prevent consummation of the transactions contemplated hereby
or have a material adverse effect on VCI, and (C) the Price
Corporations shall have received a certificate signed by an executive
officer of VCI to the foregoing effect; and
(ii) the shares of VCI Stock to be issued in such exchange
shall have been approved for listing on each stock exchange or
quotation on
31
each automated quotation system in which other shares of VCI Stock are
listed or quoted, subject to official notice of issuance.
ARTICLE 7
SURVIVAL
SECTION 7.01. SURVIVAL. (a) The representations and warranties of the
parties hereto contained in this Agreement or in any certificate delivered
pursuant hereto or in connection herewith shall remain in full force and effect
until the date which is 18 months after the Exchange Closing Date.
(b) The covenants and agreements of the parties hereto contained in
this Agreement or in any certificate delivered pursuant hereto or in connection
herewith shall remain in full force and effect indefinitely.
ARTICLE 8
TERMINATION
SECTION 8.01. TERMINATION. This Agreement will terminate automatically
upon termination of the Transaction Agreement pursuant to Section 16.01 thereof.
SECTION 8.02. EFFECT OF TERMINATION. If this Agreement is terminated as
permitted by Section 8.01, such termination shall be without liability of any
party (or any stockholder, partner, director, officer, employee, agent,
consultant or representative of such party) to any other party to this
Agreement.
ARTICLE 9
MISCELLANEOUS
SECTION 9.01. NOTICES. All notices, requests and other communications
to any party hereunder shall be in writing (including facsimile transmission)
and shall be given,
32
if to VWI:
S. Xxxx Xxxxxx
Vice President
Legal and External Affairs
Verizon Wireless
000 Xxxxxxxxxx Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Fax: (000) 000-0000
with a copy to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxx
Fax: (000) 000-0000
if to VCI, to:
Verizon Communications Inc.
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxx
Xxxxxx Xxxx
Fax: (000) 000-0000
with a copy to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxx
Fax: (000) 000-0000
if to the Price Corporations:
Xxxxxx Xxxxx
President/Chief Executive Officer
Price Communications Corporation
00 Xxxxxxxxxxx Xxxxx
Xxxxx 0000
00
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
with a copy to:
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx
Fax: (000) 000-0000
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. in the
place of receipt and such day is 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.
SECTION 9.02. AMENDMENTS AND WAIVERS. (a) Any provision of this
Agreement may be amended or waived if, 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 the party against whom the waiver is
to be effective.
(b) 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.
SECTION 9.03. EXPENSES. Except as set forth in the letter agreement
dated as of November 14, 0000 xxxxxxx Xxxxx Xxxx & Xxxxxxxx and
Price
Communications Corporation, all costs and expenses incurred in connection with
this Agreement shall be paid by the party incurring such cost or expense.
SECTION 9.04. SUCCESSORS AND ASSIGNS. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; PROVIDED that, no party may assign, delegate
or otherwise transfer any of its rights or obligations under this Agreement
without the consent of each other party hereto. Notwithstanding the foregoing,
(i) VWI shall assign all of its rights and obligations under this Agreement to
any Substitute Issuer, and shall cause any such Substitute Issuer to agree in
writing in form reasonably acceptable to the Company to be bound by the terms of
this Agreement, (ii) the Price Corporations may cause one or more of the Price
34
Corporations to be liquidated or merged into another Price Corporation, and
(iii) the Company shall assign all of its rights and obligations under this
Agreement to any other Permitted Transferee to whom it transfers the ELP
Interest, provided such Permitted Transferee agrees in writing in form
reasonably acceptable to VWI and VCI to be bound by the terms of this Agreement.
SECTION 9.05. GOVERNING LAW. This Agreement shall be governed and
construed in accordance with the law of the State of
New York.
SECTION 9.06. JURISDICTION. The parties hereto agree that 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 may only be brought in the United States District Court for
the Southern District of
New York or any
New York State court sitting in
New
York City, so long as one of such courts shall have subject matter jurisdiction
over such suit, action or proceeding, and that any cause of action arising out
of this Agreement shall be deemed to have arisen from a transaction of business
in the State of
New York, and each of the parties hereby irrevocably consents to
the 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 which 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 which is 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 9.01 shall be deemed effective service of process on such party.
SECTION 9.07. 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.
SECTION 9.08. COUNTERPARTS; THIRD PARTY BENEFICIARIES. 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 a counterpart hereof signed by the other party hereto. No
provision of this Agreement shall confer upon any Person other than the parties
hereto any rights or remedies hereunder.
35
SECTION 9.09. ENTIRE AGREEMENT. This Agreement, and the Ancillary
Agreements (as relevant), constitute the entire agreement between the parties
with respect to the subject matter of this Agreement and supersede all prior
agreements and understandings, both oral and written, between the parties with
respect to the subject matter of this Agreement.
SECTION 9.10. JOINT AND SEVERAL LIABILITY. Each of the Price
Corporations shall be jointly and severally liable for the performance of all of
the Price Corporations' obligations hereunder.
SECTION 9.11. APPOINTMENT OF AGENT. Each of the Price Corporations
hereby irrevocably constitutes and appoints Price Parent as its agent and true
and lawful attorney in fact with full power and discretion, in the name of and
for and on behalf of each of the Price Corporations, in connection with all
matters arising from, contemplated by or relating to this Agreement. The powers
of Price Parent include, without limitation, the power to represent each of the
Price Corporations with respect to all aspects of this Agreement, which power
shall include, without limitation, the power to (i) waive any conditions of this
Agreement, (ii) amend this Agreement in any respect, (iii) receive notices or
other communications, (iv) deliver any notices, certificates or other documents
required and (v) take all such other action and to do all such other things as
Price Parent deems necessary or advisable with respect to this Agreement. Each
other party to this Agreement shall have the right to rely upon the acts taken
or omitted to be taken by Price Parent on behalf of the Price Corporations, and
shall have no duty to inquire as to the acts and omissions of Price Parent.
SECTION 9.12. SEVERABILITY. If one or more provisions of this
Agreement are held to be unenforceable under applicable law, such provision
shall be executed from this Agreement and the balance of the Agreement shall
be interpreted as if such provision were so excluded and shall be enforced in
accordance with its terms to the maximum extent permitted by law.
SECTION 9.13. INTERPRETATION. The headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
36
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, INC.
By: /s/
--------------------------------
Name:
Title:
VERIZON COMMUNICATIONS INC.
By: /s/
--------------------------------
Name:
Title:
VERIZON WIRELESS INC.
By: /s/
--------------------------------
Name:
Title:
37
CELLCO PARTNERSHIP
By: /s/
--------------------------------
Name:
Title:
VERIZON WIRELESS OF THE EAST LP
By: Verizon Wireless of Georgia LLC, as
managing general partner
By: /s/
--------------------------------
Name:
Title:
38
