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EXHIBTI 2.2
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") is entered into as of
May 23, 1997, by and between PRICE COMMUNICATIONS CORPORATION, a New York
corporation ("Acquiror"), and XXXXXX COMMUNICATIONS INCORPORATED, a Delaware
corporation ("PCI").
WHEREAS, PCI is the record and beneficial owner of all of the
issued and outstanding shares of Class B Common Stock, par value $.01 per share,
of Xxxxxx Wireless, Inc., a Delaware corporation (the "Company");
WHEREAS, Acquiror, Price Communications Cellular Merger Corp.,
a Delaware corporation and a wholly-owned subsidiary of Acquiror ("Merger Sub"),
and the Company have entered into an Agreement and Plan of Merger (the "Merger
Agreement") dated as of the date hereof, which provides, among other things, for
the merger (the "Merger") of Merger Sub with and into the Company, with the
result that the surviving corporation will become a wholly-owned subsidiary of
Acquiror; and
WHEREAS, to induce Acquiror to enter into the Merger Agreement
and to effect the Merger, PCI has agreed to enter into this Agreement.
NOW, THEREFORE, in consideration of the premises and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. DISPOSITION OF SHARES
PCI agrees that it will not sell, transfer, pledge, assign or otherwise
encumber or dispose of, or enter into any contract, option or other agreement
with respect to, the sale, transfer, pledge, assignment or other encumbrance or
disposition of, any shares of common stock of the Company now owned or hereafter
acquired beneficially or of record by PCI, including, without limitation,
dispositions through dividends or liquidating or other distributions of such
common stock to stockholders of PCI, except for the conversion of any such
shares in accordance with the terms of the Merger. PCI agrees that it will not
convert any shares of Class B Common Stock of the Company into shares of Class A
Common Stock of the Company.
SECTION 2. VOTING
PCI agrees to vote all of the shares of common stock of the Company now
owned or hereafter acquired beneficially or of record by PCI (a) in favor of the
Merger and the adoption of the Merger Agreement and the transactions
contemplated thereby (including any amendments or modifications of the terms
thereof approved by the board of directors of the Company and by Acquiror) in
connection with any meeting of, or solicitation of consents from, the
stockholders of
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the Company at which or in connection with which the Merger and the Merger
Agreement are submitted for the consideration and vote of the stockholders of
the Company; (b) against approval or adoption of any extraordinary corporate
transaction (other than the Merger, the Merger Agreement or the transactions
contemplated thereby) including, without limitation, any transaction involving:
(i) the sale or transfer of all or substantially all of the common stock of the
Company, whether by merger, consolidation or other business combination; (ii) a
sale or transfer of all or substantially all of the assets of the Company and
its subsidiaries, (iii) a reorganization, recapitalization or liquidation of the
Company and its subsidiaries, or (iv) any charter or bylaw amendment creating
any new class of securities of the Company or otherwise affecting the rights of
any class of security as currently in effect; (c) against approval or adoption
of resolutions which would have the effect of preventing, materially delaying or
otherwise materially frustrating consummation of the Merger or otherwise
preventing or materially delaying the Company from performing its obligations
under the Merger Agreement; and (d) against any action which would constitute a
material breach of any provision of the Merger Agreement. To the extent
inconsistent with the foregoing provisions of this Section 2, PCI hereby revokes
any and all previous proxies with respect to the shares of common stock of the
Company owned beneficially or of record by PCI. PCI hereby waives any rights of
appraisal or rights to dissent from the Merger that it may have.
SECTION 3. GRANT OF OPTION
(a) PCI hereby irrevocably grants to Acquiror an option (the
"Option") to purchase all (but not less than all) of the common stock now owned
or hereafter acquired beneficially or of record by PCI (the "Option Shares") at
a cash exercise price of Seventeen Dollars and Fifty Cents ($17.50) per share
(the "Exercise Price"), as adjusted upon the declaration of any stock splits,
dividends, recapitalizations or other distributions or changes affecting the
Option Shares.
(b) During the period prior to the termination of this
Agreement, as long as neither Acquiror nor Merger Sub is in material breach of
any agreements or covenants contained in the Merger Agreement or this Agreement,
the Option may be exercised by Acquiror, in whole (but not in part), at any time
upon written notice to PCI but only upon the occurrence of (and during the three
(3) month period following) the breach by PCI of its obligations under Section 2
of this Agreement.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF PCI
PCI represents and warrants to Acquiror as follows:
(a) PCI has the necessary corporate power and authority to
enter into this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement by PCI and the consummation by PCI of the transactions
contemplated hereby have been duly and validly
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authorized by all necessary corporate action and no other corporate proceedings
on the part of PCI are necessary to authorize this Agreement or to consummate
the transactions contemplated hereby. This Agreement has been duly executed and
delivered by PCI and, assuming the due authorization, execution and delivery by
Acquiror, constitutes a legal, valid and binding obligation of PCI, enforceable
in accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium and other similar laws of
general applicability relating to or affecting creditors' rights generally and
by the application of general principles of equity.
(b) The execution and delivery of this Agreement and the
consummation of the transactions herein contemplated will not conflict with or
violate any law, regulation, court order, judgment or decree applicable to PCI
or by which the property of PCI is bound or affected, or conflict with or result
in any breach of or constitute a default under any contract or agreement to
which PCI is a party or by which PCI or its properties are bound or affected,
which conflict, violation, breach or default would adversely affect PCI's
ability to perform its obligations under this Agreement.
(c) Seventeen million two hundred ninety-three thousand five
hundred seventy-eight (17,293,578) shares of Class B Common Stock, par value
$.01 per share, of the Company (the "Shares") are the only shares of voting
stock owned beneficially or of record by PCI and PCI holds no options, warrants,
or other rights to acquire shares of any class of capital stock of the Company.
PCI has the sole power respecting voting and transfer of the Shares. The Shares
and the certificates representing such Shares are now, and at all times during
the term hereof will be, owned beneficially and of record by PCI, free and clear
of all liens, claims, security interests, proxies, options, warrants or other
rights, voting trusts or agreements, understandings or arrangements or any other
encumbrances whatsoever, except for any such encumbrances or proxies arising
hereunder.
SECTION 5. FURTHER ASSURANCES
PCI shall execute and deliver such additional instruments and other
documents and shall take such further actions as may be reasonably necessary to
effectuate, carry out and comply with all of its obligations under this
Agreement. Without limiting the generality of the foregoing, none of the parties
hereto shall enter into any agreement or arrangement (or alter, amend or
terminate any existing agreement or arrangement) or transaction if such action
would materially impair or materially interfere with the ability of any party to
effectuate, carry out and comply with all of the terms of this Agreement.
SECTION 6. SPECIFIC PERFORMANCE
PCI acknowledges and agrees that Acquiror would be irreparably damaged
in the event any of the provisions of this Agreement were not performed by PCI
in accordance with their specific terms or were otherwise breached. It is
accordingly agreed that Acquiror shall be
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entitled to an injunction or injunctions to prevent breaches of the provisions
of this Agreement and to enforce specifically the terms and provisions hereof
and thereof in any court of the United States or any state hereof having
jurisdiction, in addition to any other remedy to which Acquiror may be entitled
at law or equity. PCI hereby waives any objection to the imposition of such
relief or to the posting of a bond in connection therewith.
SECTION 7. GOVERNING LAW
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF DELAWARE WITHOUT GIVING EFFECT TO THE PRINCIPLE OF
CONFLICTS OF LAW.
SECTION 8. PARTIES IN INTEREST
This Agreement shall be binding upon PCI and its successors and
assigns. Subject to the preceding sentence hereof, this Agreement shall be
binding upon and inure solely to the benefit of each party hereto, and nothing
in this Agreement, express or implied, is intended to or shall confer upon any
other person or persons any rights, benefits or remedies of any nature
whatsoever under or by reason of this Agreement.
SECTION 9. AMENDMENT
This Agreement shall not be amended, altered or modified except by an
instrument in writing duly executed and delivered on behalf of each of the
parties hereto.
SECTION 10. NOTICES
All notices required to be given hereunder shall be deemed given if
mailed, first class, postage prepaid, to the respective party at its address as
set out in the following:
If to PCI:
Xxxxxx Communications Incorporated
0000 Xxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxxx, Xxxx 00000
Attention: Xxxxxx XxXxxxxx,
Tax Manager
Telecopy No.: (000) 000-0000
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If to Acquiror:
Price Communications Corporation
00 Xxxxxxxxxxx Xxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxx
Telecopy No.: (000) 000-0000
With a copy (which shall not constitute notice) to:
Proskauer Xxxx Xxxxx & Xxxxxxxxxx LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
Telecopy No.: (000) 000-0000
SECTION 11. ENTIRE AGREEMENT; ASSIGNMENT
This Agreement (a) constitutes the entire agreement between the parties
hereby pertaining to the subject matter hereof and supersedes all prior
agreements, understandings, negotiations and discussions, whether oral or
written, of the parties and (b) shall not be assigned by operation of law or
otherwise, except that this Agreement shall be binding upon PCI and its
successors and assigns.
SECTION 12. HEADINGS
Section headings are included solely for convenience and are not
considered to be part of this Agreement and are not intended to be an accurate
description of the contents thereof.
SECTION 13. COUNTERPARTS
This Agreement may be executed in one or more counterparts, all of
which shall be considered one and the same agreement, and shall become effective
when one or more counterparts have been signed by each of the parties and
delivered to the other parties, it being understood that all parties need not
sign the same counterpart.
SECTION 14. TERMINATION
This Agreement and the Option hereunder shall terminate on the earlier
to occur of (a) the date on which the Merger is consummated or (b) the date on
which the Merger Agreement is terminated; provided, however, that the provisions
of Sections 1 and 3 hereof shall survive the
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termination of this Agreement under clause (b) for the three (3) month period
specified in Section 3(b) hereof if Acquiror shall have the right to exercise
the Option as of the date of such termination; provided, further, however, that
nothing herein shall relieve any party for any breach of this Agreement if this
Agreement is terminated pursuant to clause (b) above.
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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Voting Agreement, or have caused this Voting Agreement to be duly executed
and delivered on their behalf as of the date first above written.
PRICE COMMUNICATIONS
CORPORATION
By: /s/ XXXXXX XXXXX
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Name: Xxxxxx Xxxxx
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Title: President
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XXXXXX COMMUNICATIONS INCORPORATED
By: /s/ XXXXXX XXXXXXXX
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Name: Xxxxxx XxXxxxxx
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Title: Vice-President
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