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EXHIBIT 99.3
VOTING AGREEMENT
THIS VOTING AGREEMENT (the "Agreement") is dated January 5, 2000, by and among
East/West Communications, Inc., a Delaware corporation ("East West"), Omnipoint
Corporation, a Delaware corporation ("Omnipoint") and the parties listed on
Schedule I hereto (each an "East West Stockholder" and, collectively, the "East
West Stockholders").
RECITALS
WHEREAS, East West and Omnipoint entered into an Agreement and Plan of
Merger (the "Merger Agreement") pursuant to which, among other things, East West
will merge with and into Omnipoint (such merger, together with the related
transactions contemplated in the Merger Agreement, being referred to herein as
the "Merger");
WHEREAS, each East West Stockholder is the beneficial owner of the number
of shares of East West Class A Common Stock, par value $0.0001 per share, set
forth opposite each East West Stockholders name in Schedule I hereto (the "East
West Shares"); and
WHEREAS, approval of the Merger Agreement by East West stockholders at a
meeting of East West stockholders (the "East West Stockholders' Meeting") is a
condition to the consummation of the Merger.
NOW THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements set forth herein, the parties hereto agree as follows:
1. Agreement to Vote by East West Stockholder.
a. Each East West Stockholder hereby agrees, either (i) to attend the
East West Stockholders' Meeting (if such meeting is held), in person or by proxy
or (ii) by written consent, to vote (or cause to be voted) all East West Shares,
and any other voting securities of East West, beneficially owned by such East
West Stockholder (whether issued heretofore or hereafter) that such East West
Stockholder owns or has the right to vote, in favor of adoption and approval of
the Merger Agreement, the Merger, and any other matters necessary to consummate
the transactions contemplated in the Merger Agreement. Such agreement to vote
shall apply also to any adjournment or adjournments of the East West
Stockholders' Meeting.
b. From and after the date hereof through the earlier of the effective
time of the Merger and the termination of the Merger Agreement, each East West
Stockholder hereby agrees not to sell, transfer, pledge, encumber or otherwise
dispose of (collectively, "Transfer") any East West Shares and any other voting
securities of East West beneficially owned by such East West Stockholder on the
date hereof. Any such Transfer of East West Shares shall be null and void, and
such transferee shall have no rights as a stockholder of East West.
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c. To the extent inconsistent with the foregoing provisions of this
Section 1, each East West Stockholder hereby revokes any and all previous
proxies granted by such East West Stockholder with respect to such East West
Stockholder's East West Shares or any other voting securities of East West.
2. Representations and Warranties of East West and the East West
Stockholders.
a. East West represents and warrants as follows: (i) this Agreement has
been approved by the Board of Directors of East West and (ii) this Agreement has
been duly executed and delivered by East West and constitutes its valid and
binding agreement, enforceable against it in accordance with its terms, except
as may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium and other similar laws of general application which may affect the
enforcement of creditors' rights generally and by general equitable principles.
b. Each East West Stockholder represents and warrants as follows: (i)
this Agreement has been duly executed and delivered by such East West
Stockholder and constitutes its valid and binding agreement, enforceable against
it in accordance with its terms, except as may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium and other similar laws of
general application which may affect the enforcement of creditors' rights
generally and by general equitable principles; and (ii) the East West Shares
listed next to the name of such East West Stockholder on Schedule I hereto are
the only voting securities of East West owned (beneficially or of record) by it.
3. Effectiveness and Termination. In the event that the Merger Agreement is
terminated in accordance with its terms, this Agreement shall automatically
terminate and be of no further force or effect. Upon such termination, except
for any rights any party may have in respect of any breach by any other party of
its or his obligations hereunder, none of the parties hereto shall have any
further obligation or liability hereunder.
4. Miscellaneous.
a. Notice. All notices, requests and other communications to any party
hereunder shall be in writing (including facsimile transmission) and shall be
given,
if to East West, to it at:
East/West Communications, Inc.
000 Xxxxxxxxxx Xxxxxx
Xxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
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With a copy to:
Xxxxxx & Xxxxxxx
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxx Xxxxxx, Esq.
Xxxxxx X. Xxxxxx, Esq.
Phone: (000) 000-0000
Fax: (000) 000-0000
if to Omnipoint, to it at:
Omnipoint Corporation
0 Xxxxxxxx Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Fax: 000-000-0000
with a copy to:
Xxxxx Xxxxxxx Xxxxxxx & Xxxxx LLP
0000 Xxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxx X. Xxxxxx, Xx., Esq.
Fax: (000) 000-0000
if to any East West Stockholder, to it at:
Xxxxx, Xxxx & Xxxxx, L.L.C.
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
or such other address or facsimile number as such party may hereafter specify
for the purpose by notice to the other parties hereto. All such notices,
requests and other communications shall be deemed received on the date of
receipt by the recipient thereof if received prior to 5 p.m. on a Business Day,
in the place of receipt. Otherwise, any such notice, request or communication
shall be deemed not to have been received until the next succeeding Business Day
in the place of receipt.
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b. Amendments; No Waivers.
(i) Subject to applicable law, any provision of this Agreement may be
amended or waived, but only if such amendment or waiver is in writing and is
signed, in the case of an amendment, by each party to this Agreement or, in the
case of a waiver, by each party against whom the waiver is to be effective.
(ii) No failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise thereof preclude any other or further exercise thereof, or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
c. Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of and be enforceable by the parties and their respective
successors and assigns, including, without limitation, in the case of any
corporate party hereto any corporate successor by merger or otherwise, and in
the case of any individual party hereto any trustee, executor, heir, legatee or
personal representative succeeding to the ownership of such party's shares of
East West stock or other securities subject to this Agreement. Notwithstanding
any Transfer of shares of East West stock, the transferor shall remain liable
for the performance of all obligations of such transferor under this Agreement.
d. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without regard to the
conflicts of law rules of such State.
e. Jurisdiction. Any suit, action or proceeding seeking to enforce any
provision of, or based on any matter arising out of or in connection with, this
Agreement or the transactions contemplated hereby shall be brought in any
federal court located in the State of Delaware or any Delaware state court, and
each of the parties hereby consents to the exclusive jurisdiction of such courts
(and of the appropriate appellate courts therefrom) in any such suit, action or
proceeding and irrevocably waives, to the fullest extent permitted by law, any
objection that it may now or hereafter have to the laying of the venue of any
such suit, action or proceeding in any such court or that any such suit, action
or proceeding brought in any such court has been brought in an inconvenient
forum. Process in any such suit, action or proceeding may be served on any party
anywhere in the world, whether within or without the jurisdiction of any such
court. Without limiting the foregoing, each party agrees that service of process
on such party as provided in Section 6.a shall be deemed effective service of
process on such party.
f. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF
OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
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g. Counterparts; Effectiveness. This Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument. This Agreement
shall become effective when each party hereto shall have received counterparts
hereof signed by all of the other parties hereto. No provision of this Agreement
is intended to confer any rights, benefits, remedies, obligations or liabilities
hereunder upon any Person other than the parties hereto and their respective
successors and assigns.
h. Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter of this Agreement and
supersedes all prior agreements and understandings, both oral and written,
between the parties with respect to such subject matter.
i. Captions. The captions herein are included for convenience of reference
only and shall be ignored in the construction or interpretation hereof.
j. Severability. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction or other authority to be
invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated so long as the
economic or legal substance of the transactions contemplated hereby is not
affected in any manner materially adverse to any party. Upon such a
determination, the parties shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner so that the transactions contemplated hereby be
consummated as originally contemplated to the fullest extent possible.
k. Specific Performance. The parties hereto agree that irreparable damage
would occur if any provision of this Agreement were not performed in accordance
with the terms hereof and that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement or to enforce specifically the
performance of the terms and provisions hereof in any federal court located in
the State of Delaware or any Delaware state court, in addition to any other
remedy to which they are entitled at law or in equity.
l. Remedies Cumulative. All rights, powers and remedies provided under this
Agreement or otherwise available in respect hereof at law or in equity shall be
cumulative and not alternative, and the exercise or beginning of the exercise of
any thereof by any party shall not preclude the simultaneous or later exercise
of any other such right, power or remedy by such party.
m. Limitation on Liability. No party hereto shall have any liability
hereunder for any actions or omissions of any other party hereto.
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n. Expenses. Each party hereto shall bear its own expenses incurred in
connection with this Agreement.
o. Further Assurances. Each party hereto agrees that such party shall
execute and deliver such additional instruments and other documents and shall
take such further actions as may be necessary or appropriate to effectuate,
carry out and comply with all of their obligations under this Agreement. Without
limiting the generality of the foregoing, none of the parties hereto shall enter
into any agreement or arrangement (or alter, amend or terminate any existing
agreement or arrangement) if such action would impair the ability of any party
to effectuate, carry out or comply with all the terms of this Agreement.
[Signatures on following pages.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
EAST/WEST COMMUNICATIONS, INC.
By: ________________________________
Xxxxxxxx X. Xxxx
Chief Executive Officer
WPG Merger Arbitrage Fund, L.P.
By: Xxxxx, Xxxx & Xxxxx, L.L.C.
its General Partner
By: ____________________________
Xxx Xxxxxxxxxx
Principal
WPG Merger Arbitrage Overseas Fund, Ltd.
By: Xxxxx, Xxxx & Xxxxx, L.L.C.;
its General Partner
By: ____________________________
Xxx Xxxxxxxxxx
Principal
Xxxxxxx Capital Inv. Ltd.
By: Xxxxx, Xxxx & Xxxxx, L.L.C.;
its Attorney-in-Fact
By: ____________________________
Xxx Xxxxxxxxxx
Principal
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RAM Trading Ltd.
By: Xxxxx, Xxxx & Xxxxx, L.L.C.;
its Attorney-in-Fact
By: ______________________________
Xxx Xxxxxxxxxx
Principal
OMNIPOINT CORPORATION
By: ________________________________
Name:
Title:
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SCHEDULE I
EAST WEST STOCKHOLDERS
NAME AND ADDRESS OF STOCKHOLDER NUMBER OF EAST WEST SHARES
WPG Merger Arbitrage Fund, L.P. 60,070
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
WPG Merger Arbitrage Overseas Fund, Ltd. 13,000
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
Xxxxxxx Capital Inv. Ltd. 25,215
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
RAM Trading Ltd. 25,215
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
