EXHIBIT (c)(2)
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") is entered into as of May 23, 1997,
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by and between PRICE COMMUNICATIONS CORPORATION, a New York corporation
("Acquiror"), and XXXXXX COMMUNICATIONS INCORPORATED, a Delaware corporation
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("PCI").
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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");
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WHEREAS, Acquiror, Price Communications Cellular Merger Corp., a Delaware
corporation and a wholly-owned subsidiary of Acquiror ("Merger Sub"), and the
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Company have entered into an Agreement and Plan of Merger (the "Merger
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Agreement") dated as of the date hereof, which provides, among other things, for
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the merger (the "Merger") of Merger Sub with and into the Company, with the
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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 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
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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
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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")
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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
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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.
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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 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
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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
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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 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:
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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
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 Rose 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.
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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
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of Sections 1 and 3 hereof shall survive the termination of this Agreement under
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clause (b) for the three (3) month period specified in Section 3(b) hereof if
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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
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party for any breach of this Agreement if this Agreement is terminated pursuant
to clause (b) above.
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:
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Title:
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XXXXXX COMMUNICATIONS
INCORPORATED
By: /s/ Xxxxxx X. XxXxxxxx
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Name:
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Title:
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