VOTING AGREEMENT
VOTING AGREEMENT, dated as of July 18, 1999 (this "Agreement"),
between VODAFONE AIRTOUCH PLC, a British corporation ("Parent"), and BCP
COMMNET L.P., a Delaware limited partnership ("Stockholder").
W I T N E S S E T H:
WHEREAS, concurrently herewith, Parent, Pacific Telecom Cellular of
Colorado, Inc., a Colorado corporation and a wholly-owned subsidiary of
Parent ("Merger Sub"), and CommNet Cellular Inc., a Colorado corporation
("CCI"), are entering into an Agreement and Plan of Merger dated as of the
date hereof (the "Merger Agreement"; capitalized terms used but not defined
herein shall have the meanings set forth in the Merger Agreement), pursuant
to which, and subject to the terms and conditions thereof, Merger Sub will
merge with and into CCI (the "Merger");
WHEREAS, as of the date hereof, Stockholder owns of record or
beneficially 19,695,835 shares of common stock, par value $.001 per share, of
CCI ("CCI Common Stock") (such 19,695,835 shares, the "Existing Shares" and,
together with any shares of CCI Common Stock acquired after the date hereof,
whether upon the exercise of options, conversion of convertible securities or
otherwise, the "Shares"); and
WHEREAS, as a condition to its willingness to enter into the Merger
Agreement and to consummate the transactions contemplated thereby, Parent has
required that Stockholder agree (i) simultaneously with the execution of the
Merger Agreement, to execute and deliver this Agreement and (ii) to grant a
proxy to vote all of the Shares owned by Stockholder on the terms and
conditions provided for herein.
NOW, THEREFORE, in consideration of the foregoing and the
respective representations, warranties, covenants and agreements set forth
herein, and intending to be legally bound hereby, the parties agree as
follows:
1. Agreement to Vote; Proxy.
(a) Stockholder agrees that, during the time this Agreement is in
effect, at any meeting of the stockholders of CCI, however called or at
any adjournment thereof, or in connection with any written consent of
the stockholders of CCI, Stockholder shall be present (in person or by
proxy) and vote (or cause to be voted) all of the Shares (i) in favor of
the Merger, the execution and delivery by CCI of the Merger Agreement
and the approval of the terms thereof and each of the other actions
contemplated by the Merger Agreement and this Agreement; (ii) against
any action or agreement that would result in a breach in any material
respect of any covenant, representation or warranty or any other
obligation or agreement of the CCI under the Merger Agreement; and (iii)
against any action or agreement (other than the Merger Agreement or the
transactions contemplated thereby) that, could reasonably be expected to
impede, interfere with or delay the Merger or this Agreement (or is
otherwise inconsistent therewith), including, but not limited to: (A)
any extraordinary corporate transaction, such as a merger, consolidation
or other business combination involving CCI or its subsidiaries (other
than a transaction involving Parent or its Affiliates); (B) a sale,
lease or transfer of a material amount of assets of CCI and its
subsidiaries or a reorganization, recapitalization or liquidation of CCI
or its subsidiaries (other than a transaction involving Parent or its
Affiliates); (C) any change in the management or board of directors of
CCI, except as otherwise agreed to in writing by Parent; (D) any
material change in the present capitalization or dividend policy of CCI
or any amendment of CCI's articles of incorporation; or (E) any other
material change in CCI's corporate structure or business. Stockholder
agrees not to enter into any agreement or understanding with any Person
the effect of which would be inconsistent with any of the foregoing.
(b) STOCKHOLDER HEREBY GRANTS TO, AND APPOINTS, PARENT AND ▇▇▇▇▇
▇▇▇▇▇▇▇ OF PARENT AND ▇▇▇▇▇ ▇▇▇▇▇▇ OF PARENT, IN THEIR RESPECTIVE
CAPACITIES AS OFFICERS OF PARENT, AND ANY INDIVIDUAL WHO SHALL HEREAFTER
SUCCEED TO ANY SUCH OFFICE OF PARENT, AND ANY OTHER DESIGNEE OF PARENT,
EACH OF THEM INDIVIDUALLY, THE STOCKHOLDER'S IRREVOCABLE (UNTIL THE
TERMINATION DATE) PROXY AND ATTORNEY-IN-FACT (WITH FULL POWER OF
SUBSTITUTION) TO VOTE THE SHARES AS INDICATED IN SECTION 1(A) OF THIS
AGREEMENT. STOCKHOLDER INTENDS THIS PROXY TO BE IRREVOCABLE (UNTIL THE
TERMINATION DATE) AND COUPLED WITH AN INTEREST AND WILL TAKE SUCH
FURTHER ACTION OR EXECUTE SUCH OTHER INSTRUMENTS AS MAY BE NECESSARY TO
EFFECTUATE THE INTENT OF THIS PROXY AND HEREBY REVOKES ANY PROXY
PREVIOUSLY GRANTED BY STOCKHOLDER WITH RESPECT TO THE SHARES.
2. Termination. This Agreement, the proxy contained herein and
Parent's right to vote the Shares shall terminate on the Termination Date.
As used herein, the term "Termination Date" means the first to occur of (a)
the Effective Time and (b) termination of the Merger Agreement in accordance
with its terms.
3. Representation and Warranties of Parent. Parent hereby
represents and warrants to Stockholder as follows:
(a) Organization, Standing and Power. Parent is a corporation
duly organized, validly existing and in good standing under the laws of
its jurisdiction of incorporation and has all requisite power and
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authority to own, lease and operate its properties and to carry on its
business as now being conducted.
(b) Authority. Parent has all requisite corporate power and
authority to enter into this Agreement and to perform its obligations
hereunder. The execution and delivery of this Agreement by Parent and
the performance by Parent of its obligations hereunder have been duly
authorized by all necessary corporate action on the part of Parent. This
Agreement has been duly executed and delivered by Parent and constitutes
a valid and binding agreement of Parent, enforceable against it in
accordance with its terms, except as such enforceability may be limited
by bankruptcy, insolvency, reorganization, moratorium and other similar
laws relating to or affecting creditors generally, or by general equity
principles (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(c) No Conflicts. The execution and delivery of this Agreement
does not or will not, as the case may be, and the performance by Parent
of its obligations hereunder will not, result in any Violation of: (A)
any provision of the Organizational Documents of Parent or (B) any loan
or credit agreement, note, mortgage, bond, indenture, lease, benefit
plan or other agreement, obligation, instrument, permit, concession,
franchise, license, judgment, order, decree, statute, law, ordinance,
rule or regulation applicable to Parent or its properties or assets.
(d) No Consents. No consent, approval, order or authorization of,
or registration, declaration or filing with, any Governmental Entity is
required by or with respect to Parent in connection with the execution
and delivery of this Agreement by Parent or the performance by Parent of
its obligations hereunder.
4. Representations and Warranties of Stockholder. Stockholder
hereby represents and warrants to Parent as follows:
(a) Ownership of Shares. On the date hereof, the Existing Shares
are owned of record or beneficially by the Stockholder, and, on the date
hereof, the Existing Shares constitute all of the shares of Company
Common Stock owned of record or beneficially by Stockholder.
Stockholder has sole voting power and sole power of disposition with
respect to all of the Existing Shares, with no restrictions, subject to
applicable federal securities laws on Stockholder's rights of
disposition pertaining thereto. Stockholder has not granted any proxy
which is still in effect with respect to the Existing Shares.
(b) Organization, Standing and Power. Stockholder is a limited
partnership duly organized, validly existing and in good standing under
the laws of its jurisdiction of incorporation and has all requisite
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power and authority to own, lease and operate its properties and to
carry on its business as now being conducted.
(c) Authority. Stockholder has all requisite partnership power
and authority to enter into this Agreement and to perform its
obligations hereunder. The execution and delivery of this Agreement by
Stockholder and the performance by Stockholder of its obligations
hereunder have been duly authorized by all necessary action on the part
of Stockholder. This Agreement has been duly executed and delivered by
Stockholder and constitutes a valid and binding agreement of
Stockholder, enforceable against it in accordance with its terms, except
as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to or
affecting creditors generally, or by general equity principles
(regardless of whether such enforceability is considered in a proceeding
in equity or at law).
(d) No Conflicts. The execution and delivery of this Agreement
does not or will not, as the case may be, and the performance by
Stockholder of its obligations hereunder will not, result in any
Violation of: (A) any provision of the Organizational Documents of
Stockholder or (B) any loan or credit agreement, note, mortgage, bond,
indenture, lease, benefit plan or other agreement, obligation,
instrument, permit, concession, franchise, license, judgment, order,
decree, statute, law, ordinance, rule or regulation applicable to
Stockholder or its properties or assets.
(e) No Consents. No consent, approval, order or authorization of,
or registration, declaration or filing with, any Governmental Entity is
required by or with respect to Stockholder in connection with the
execution and delivery of this Agreement by Stockholder or the
performance by Stockholder of its obligations hereunder.
5. Certain Covenants of Stockholder. In accordance with the terms
of this Agreement, Stockholder hereby covenants and agrees as follows:
(a) Restriction on Transfer, Proxies and Non-Interference.
Stockholder hereby agrees, while this Agreement is in effect, and except
as contemplated hereby, not to (i) sell, transfer, pledge, encumber,
assign or otherwise dispose of, or enter into any contract, option or
other arrangement or understanding with respect to the sale, transfer,
pledge, encumbrance, assignment or other disposition of, any of the
Existing Shares or Shares acquired after the date hereof, or any
interest in any of the foregoing or (ii) grant any proxies or powers of
attorney, deposit any Shares into a voting trust or enter into a voting
agreement with respect to any Shares.
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(b) Additional Shares. Stockholder hereby agrees, while this
Agreement is in effect, to promptly notify Parent of the number of any
new Shares of CCI Common Stock acquired by Stockholder, if any, after
the date hereof.
(c) No Solicitations. Stockholder agrees that neither it nor any
of its Affiliates, officers, directors, employees, agents or
representatives (collectively, "Representatives") shall, directly or
indirectly: (i) initiate, solicit, encourage or otherwise facilitate
any inquiries or the making of any Acquisition Proposal or (ii) provide
any information or data to, or engage in any discussions or negotiations
with, any Person (other than Parent) relating to or in contemplation of
an Acquisition Proposal. Stockholder will notify Parent immediately if
any inquiries, proposals or offers respecting an Acquisition Proposal
are received by, or any such information or data is requested from, or
any such discussions or negotiations are sought to be initiated or
continued with Stockholder or its Representatives indicating, in
connection with such notice, the name of such Person and the material
terms and conditions of any proposals or offers, and keep Parent
apprised with respect to the status and terms thereof. The provisions
of this Section 5(c) shall not restrict activities of CCI or any other
Person permitted in accordance with Section 5.4 of the Merger Agreement.
6. Further Assurances. From time to time, at the other party's
request and without further consideration, each party hereto shall execute
and deliver such additional documents and take all such further action as may
be necessary or desirable to consummate and make effective, in the most
expeditious manner practicable, the transactions contemplated by this
Agreement.
7. General Provisions.
(a) Notices. All notices and other communications hereunder shall
be in writing and shall be deemed duly given (a) on the date of delivery
if delivered personally or delivered by facsimile (but in the case of
facsimile transmission, transmitted on the same day by the method
described in clause (b)), (b) on the first Business Day following the
date of dispatch if delivered by a recognized next-day courier service,
or (c) on the tenth Business Day following the date of mailing if
delivered by registered or certified mail, return receipt requested,
postage prepaid. All notices hereunder shall be delivered as set forth
below, or pursuant to such other instructions as may be designated in
writing by the party to receive such notice:
(i) If to Parent, to Vodafone Airtouch PLC, ▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇
▇▇▇▇▇▇, Director, Corporate Development, Facsimile
No. (▇▇▇) ▇▇▇-▇▇▇▇.
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(ii) If to Shareholder, to BCP CommNet L.P., c/o Blackstone
Management Associates II L.L.C., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Facsimile No.
(▇▇▇) ▇▇▇-▇▇▇▇ with a copy to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, Esq., Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇.
(b) Descriptive Headings. The descriptive headings used herein
are inserted for convenience of reference only and are not intended to
be part of or to affect the meaning or interpretation of this Agreement.
(c) 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 party, it
being understood that both parties need not sign the same counterpart.
(d) Entire Agreement; No Third Party Beneficiaries. This
Agreement (i) constitutes the entire agreement and supersedes all prior
agreements and understandings, both written and oral, between the
parties with respect to the subject matter hereof and (ii) 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 any right, benefit or remedy of any nature
whatsoever under or by reason of this Agreement.
(e) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
(f) Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any law
or public policy, all other terms and provisions of this Agreement shall
nevertheless remain in full force and effect 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 determination
that any term or other provision is invalid, illegal or incapable of
being enforced, the parties hereto 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 in order that the
transactions contemplated hereby are consummated as originally
contemplated to the greatest extent possible.
(g) Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the
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parties hereto, in whole or in part (whether by operation of law or
otherwise), without the prior written consent of the other party, and
any attempt to make any such assignment without such consent shall be
null and void.
(h) Enforcement. The parties agree that irreparable damage would
occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms. It is accordingly
agreed that the parties shall be entitled to specific performance of the
terms hereof, this being in addition to any other remedy to which they
are entitled at law or in equity.
(i) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY
AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY AND FOR ANY COUNTERCLAIM THEREIN.
(j) Amendments. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto.
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IN WITNESS WHEREOF, Parent and Stockholder have caused this
Agreement to be duly executed as of the day and year first above written.
VODAFONE AIRTOUCH PLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Financial Officer
BCP COMMNET L.P.
By: Blackstone CCI Capital
Partners L.P., general partner
By: Blackstone Management
Associates II L.L.C., general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Member
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