VOTING AGREEMENT
AGREEMENT dated as of March 6,1998 among AMERICAN CELLULAR
CORPORATION, a Delaware corporation ("Buyer"), PRICELLULAR CORPORATION, a
Delaware corporation (the "Company") and the SHAREHOLDERS executing a
counterpart of this Agreement (collectively, the "Shareholders").
WHEREAS, the Shareholders are each beneficial owners of Class A
Common Stock, par value $.01 per share ("Class A Common Stock"), Class B Common
Stock, par value $.01 per share ("Class B Common Stock"), or Series A Cumulative
Convertible Preferred Stock, par value $.01 per share (the "Series A
Preferred"), of the Company (collectively, the "Securities"), as listed on
Schedule I hereto;
WHEREAS, the Shareholders are each parties to one or more stockholder
agreements and voting agreements with each other and/or the Company in their
capacity as shareholders of the Company (collectively, and together with any
amendments thereto, the "Prior Shareholder Agreements"), including, without
limitation, the Voting Agreement dated as of December 28, 1995 by and among the
Company and the other parties thereto (as amended, the "Voting Agreement");
WHEREAS, in connection with Buyer entering into an Agreement and Plan
of Merger, dated as of the date hereof (the "Merger Agreement"), with the
Company, which provides for the merger (the "Merger") of Buyer with and into the
Company, Buyer has requested each Shareholder, and each Shareholder has agreed,
to enter into this Agreement with respect to all Securities of the Company that
such Shareholder beneficially owns; and
WHEREAS, the voting provisions of this Agreement will be in effect
only so long as the Merger Agreement is in full force and effect;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
GRANT OF PROXY; VOTING AGREEMENT
SECTION 1.01. Capitalized Terms. Capitalized terms used but not
defined herein shall have the respective meanings set forth in the Merger
Agreement.
SECTION 1.02. Voting Agreement. Notwithstanding anything to the
contrary in any of the Prior Shareholder Agreements, each Shareholder hereby
agrees to vote all Securities that such Shareholder is entitled to vote at the
time of any vote (i) to approve and adopt the Merger Agreement and the Merger
and the other transactions contemplated thereby (subject to Section 1.04 hereof)
at any meeting of the stockholders of the Company, and at any adjournment
thereof, at which such Merger Agreement and the Merger, or such other
transactions or actions, are submitted for the consideration and vote of the
stockholders of the Company, and (ii) against any (w) Acquisition Proposal, (x)
reorganization, recapitalization, liquidation or winding up of the Company or
any other extraordinary transaction involving the Company, or (y) corporate
action the consummation of which would frustrate the purposes, or be
inconsistent with the other agreements of such Shareholder pursuant to this
paragraph (it being understood that the Shareholders may vote for transactions
permitted by the Merger Agreement and not be bound by these provisions if the
Merger Agreement has been terminated and that AWS' obligations pursuant to this
Section 1.02 shall terminate if the Board of Directors of the Company shall have
withdrawn or materially modified its approval or recommendation of the Merger or
shall have resolved to do so).
SECTION 1.03. Prior Proxy. Each Shareholder hereby revokes any and
all previous proxies granted with respect to the Securities owned by such
Shareholder except as may be deemed to exist pursuant to Section 1.01 of the
Voting Agreement.
SECTION 1.04. Conflict with Prior Shareholders Agreements.
Notwithstanding anything to the contrary contained elsewhere in this Agreement,
nothing contained in this Agreement shall require a Shareholder to take any
action inconsistent with the requirements of Section 1.01 of the Voting
Agreement.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS
Each Shareholder, severally but not jointly, represents and warrants
to Buyer that:
SECTION 2.01. Corporate Authorization. If such Shareholder is a
corporation, the execution, delivery and performance by such Shareholder of this
Agreement and the consummation by such Shareholder of the transactions
contemplated hereby are within the corporate powers of such Shareholder and have
been duly authorized by all necessary corporate action. This Agreement
constitutes a valid and binding Agreement of such Shareholder.
SECTION 2.02. Partnership Authorization. If such Shareholder is a
partnership, the execution, delivery and performance by such Shareholder of this
Agreement and the consummation by such Shareholder of the transactions
contemplated hereby have been duly authorized and approved by all necessary
partnership action on the part of such Shareholder. This Agreement constitutes a
valid and binding Agreement of such Shareholder.
SECTION 2.03. Individual Authorization. If such Shareholder is an
individual and is married, and the Securities set forth on the signature page
hereto opposite such Shareholder's name constitute community property under
applicable laws, this Agreement has been duly authorized, executed and delivered
by, and constitutes the valid and binding agreement of, such Shareholder's
spouse. If this Agreement is being executed in a representative or fiduciary
capacity, the Person signing this Agreement has full power and authority to
enter into and perform this Agreement.
SECTION 2.04. Non-Contravention. The execution, delivery and
performance by such Shareholder of this Agreement and the consummation of the
transactions contemplated hereby do not and will not (i) violate the certificate
of incorporation or bylaws (or agreement of limited partnership, if applicable)
of such Shareholder, (ii) violate any applicable law, rule, regulation,
judgment, injunction, order or decree, (iii) require any consent or other action
by any Person under, constitute a default under, or give rise to any right of
termination, cancellation or acceleration or to a loss of any benefit to which
such Shareholder is entitled under any provision of any agreement or other
instrument binding on such Shareholder or (iv) result in the imposition of any
Lien on any asset of such Shareholder.
SECTION 2.05. Ownership of Shares. Such Shareholder is the record and
beneficial owner of the Securities set forth on Schedule I hereto opposite such
Shareholder's name, free and clear of any Lien and any other limitation or
restriction (including any restriction on the right to vote or otherwise dispose
of the Securities) other than the Prior Shareholder Agreements. None of the
Securities is subject to any voting trust or other agreement or arrangement with
respect to the voting of such Securities other than the Prior Shareholder
Agreements.
SECTION 2.06. Total Shares. Except for the Securities set forth on
Schedule I hereto opposite such Shareholder's name and except for options on
Class A Shares granted pursuant to the Company's employee stock option plan,
such Shareholder does not beneficially own any (i) shares of capital stock or
voting securities of the Company, (ii) securities of the Company convertible
into or exchangeable for shares of capital stock or voting securities of the
Company or (iii) options or other rights to acquire from the Company any capital
stock, voting securities or securities convertible into or exchangeable for
capital stock or voting securities of the Company.
SECTION 2.07. Finder's Fees. No investment banker, broker, finder or
other intermediary is entitled to a fee or commission from Buyer or the Company
in respect of this Agreement based upon any arrangement or agreement made by or
on behalf of such Shareholder.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to each Shareholder:
SECTION 3.01. Organizational Authorization. The execution, delivery
and performance by Buyer of this Agreement and the consummation by Buyer of the
transactions contemplated hereby are within the organizational powers of Buyer
and have been duly authorized by all necessary organizational action. This
Agreement constitutes a valid and binding Agreement of Buyer.
SECTION 3.02. Non-contravention. The execution, delivery and
performance by Buyer of this Agreement and the consummation of the transactions
contemplated hereby do not and will not (i) violate the certificate of
incorporation or bylaws (or agreement of limited partnership, if applicable) of
Buyer, (ii) violate any applicable law, rule, regulation, judgment, injunction,
order or decree, (iii) require any consent or other action by any Person under,
constitute a default under, or give rise to any right of termination,
cancellation or acceleration or to a loss of any benefit to which Buyer is
entitled under any provision of any agreement or other instrument binding on
Buyer or (iv) result in the imposition of any Lien on any asset of Buyer.
ARTICLE 4
COVENANTS OF EACH SHAREHOLDER
Each Shareholder hereby covenants and agrees that:
SECTION 4.01. No Proxies for or Encumbrances on Securities. (a)
Except pursuant to the terms of this Agreement and the Merger Agreement, and
notwithstanding anything to the contrary in any of the Prior Shareholder
Agreements (subject to Section 1.04 hereof), such Shareholder shall not, without
the prior written consent of Buyer, directly or indirectly, (i) grant any
proxies or enter into any voting trust or other agreement or arrangement with
respect to the voting of any Securities or (ii) sell, assign, transfer, encumber
or otherwise dispose of, or enter into any contract, option or other arrangement
or understanding with respect to the direct or indirect sale, assignment,
transfer, encumbrance or other disposition of, any Securities during the term of
this Agreement, including, without limitation, dispositions of such Securities
through dividends or liquidation or other distributions of such Securities to
any stockholders or partners of such Shareholder.
(b) Notwithstanding the foregoing, each of AT&T Wireless Services,
Inc. ("AWS"), ▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (in each case on behalf of
themselves or their respective children) may sell up to 150,000 Shares each in
open market transactions (subject to the provisions of the Prior Shareholder
Agreements) upon not less than two business days written notice to Buyer. After
receiving any such written notice, Buyer may elect to purchase such Shares
(subject to the provisions of the Prior Shareholder Agreements) directly from
AWS, ▇▇▇▇▇▇ ▇▇▇▇▇ or ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ at a price equal to the closing price for
the Shares on the American Stock Exchange on the day immediately preceding the
day on which such individuals propose to sell such Shares.
SECTION 4.02. Other Offers. Such Shareholder shall not, directly or
indirectly, (i) take any action to solicit, initiate or encourage any
Acquisition Proposal or (ii) subject to any fiduciary duties of such Shareholder
as an officer, director or shareholder of the Company under applicable law as
advised by the Company's counsel, engage in discussions or negotiations with, or
disclose any nonpublic information relating to the Company or any Subsidiary or
afford access to the properties, books or records of the Company or any
Subsidiary to, any Person that such Shareholder knows or has reason to know may
be considering making, or has made, an Acquisition Proposal or has agreed to
endorse an Acquisition Proposal. Such Shareholder will promptly notify Buyer
after receipt of an Acquisition Proposal or any indication that any Person is
considering making an Acquisition Proposal or any request for nonpublic
information relating to the Company or any Subsidiary or for access to the
properties, books or records of the Company or any of its Subsidiaries by any
Person that may be considering making, or has made, an Acquisition Proposal,
which notification shall include the identity of the offeror and the terms and
conditions of any Acquisition Proposal (but only to the extent such Shareholder
may disclose such information without breaching its fiduciary duties as advised
by counsel and as determined in good faith and without violating any of the
conditions of such Acquisition Proposal), and will keep Buyer fully informed of
the status and details (subject to such fiduciary duties) of any such
Acquisition Proposal, indication or request.
SECTION 4.03. Appraisal Rights. Such Shareholder agrees not to
exercise any rights (including, without limitation, under Section 262 of the
General Corporation Law of the State of Delaware) to demand appraisal of any
Securities which may arise with respect to the Merger.
SECTION 4.04. Waiver. Such Shareholder waives any rights it may have
in respect of the Securities owned by another Shareholder to the extent (but
only to the extent) that such rights would arise as a result of (i) the
execution of the Merger Agreement, (ii) the execution of this Voting Agreement
or the performance of covenants hereunder or (iii) the consummation of the
Merger.
SECTION 4.05. Redemption Rights; Amendment to Charter. (a) If such
Shareholder is a holder of any Series A Preferred, such Shareholder agrees not
to exercise its right (if any), under Section 5(b) of the Certificate of
Designation of the Series A Preferred, to require the Company to redeem any or
all of its Series A Preferred, to the extent that the right to do so arises
solely from board of director or shareholder approval of the Merger, the
execution by the Company of the Merger Agreement, the execution of this
Agreement or the consummation of the Merger.
(b) Such Shareholder agrees to vote all Securities that such
Shareholder is entitled to vote at the time of any vote to approve and adopt an
amendment to the Certificate of Designation of the Series A Preferred, which
amendment shall provide that the holders of the Series A Preferred shall have no
rights under Section 5(b) of such Certificate of Designation, to the extent that
such rights would have otherwise arisen solely from board of director or
shareholder approval of the Merger, the execution by the Company of the Merger
Agreement, the execution of this Agreement or the consummation of the Merger.
SECTION 4.06. Acquisition Proposals. Each Shareholder agrees that in
the event that after the later of (x) the 25th day following the date hereof and
(y) the contribution of $25,000,000 of equity capital to Buyer as contemplated
by Section 4.09 of the Merger Agreement, the Merger Agreement is terminated
pursuant to Section 9.01(d), (e) or (f) thereto (or by Buyer pursuant to Section
9.01(g) thereto if there is an Acquisition Proposal pending at such time of
termination) and such Shareholder shall thereafter but prior to the first
anniversary of the termination date of the Merger Agreement sell or otherwise
transfer or dispose of by operation of law (by merger or otherwise) any
Securities when an Acquisition Proposal is pending, such Shareholder shall
promptly pay to Buyer an amount equal to the excess, if any, of (i) the
aggregate consideration received by such Stockholder pursuant to such transfer
over (ii) the product of (x) $14.00 and (y) the sum of the number of shares of
Class A Common Stock and Class B Common Stock so transferred and the number of
shares of Class A Common Stock issuable upon conversion of any shares of Series
A Preferred Stock so transferred; provided, however, that this Section 4.06
shall not apply if the Merger Agreement is terminated on or after the date that
is ten weeks from the date hereof and at such time Buyer shall not have either
(i) consummated the High Yield Financing the proceeds of which shall continue to
be held in escrow or (ii) obtained the irrevocable waiver of the Initial Lenders
of the conditions set forth in Sections 3(c), Section 4 (paragraph 2) and under
the caption entitled "Conditions to Effectiveness and to Interim Loan", the
references to the accuracy of representations and warranties of the Target in
the first paragraph thereof and subparagraphs (l) and (r) of the Bridge Loan
Commitment.
ARTICLE 5
MISCELLANEOUS
SECTION 5.01. Action in Shareholder Capacity Only. No Shareholder
makes any agreement or understanding hereunder as a director or officer of the
Company. Each Shareholder signs this Agreement solely in his, her or its
capacity as record and beneficial owners of the Securities, and nothing herein
shall limit or affect any actions taken in such Shareholder's capacity as an
officer or director of the Company.
SECTION 5.02. Indemnification. (a) Buyer agrees to indemnify and hold
harmless each Shareholder from and against any and all losses, claims, damages
and liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) related to the execution and performance of this Agreement or
any actions taken pursuant hereto except insofar as such losses, claims, damages
or liabilities result from the breach of any representation or warranty of such
Shareholder contained herein.
(b) The Company hereby agrees to indemnify, defend and hold harmless
each Shareholder and its directors, officers, employees, affiliates, successors
and assigns (collectively the "Indemnified Party") from and against all actions,
causes of actions, suits, claims, complaints, demands, litigations, proceedings,
losses, liabilities, damages, deficiencies, judgments, assessments, fines
(including, without limitation, interest, penalties, taxes, fees and reasonable
expenses and disbursements of attorneys, experts, personnel and consultants,
reasonably incurred in connection with the defense or investigation thereof,
including, without limitation, allocated costs of in-house counsel, experts,
personnel and consultants) (collectively, "Losses") based upon, relating to,
arising out of or otherwise in respect of the Merger Agreement, the Merger, the
Consent and Waiver between the Company and AWS, this Voting Agreement with Buyer
and the transactions contemplated by these agreements. Notwithstanding the
foregoing, the Company shall not be responsible for Losses that are finally
judicially determined to have resulted from the bad faith of the Indemnified
Party and Losses that Buyer has indemnified the Indemnified Party for pursuant
to the immediately preceding paragraph but only to the extent that the
Indemnified Party has actually been paid. Upon the making of any payment
pursuant to Section 5.02(b) with respect to any claim that Buyer has indemnified
such indemnified person for pursuant to Section 5.02(a), the Company shall be
subrogated to the rights of such indemnified person against Buyer with respect
thereto.
(c) In case any proceeding shall be instituted involving any
Shareholder in respect of which indemnity may be sought pursuant to either the
two immediately preceding paragraphs, such Shareholder shall promptly notify
Buyer or the Company, as the case may be, in writing and Buyer or the Company,
as the case may be, upon request of such Shareholder, shall retain counsel
reasonably satisfactory to such Shareholder to represent such Shareholder in
such proceeding and shall pay the fees and disbursements of such counsel related
to such proceeding. The Shareholders as a group may retain one law firm (in
addition to local counsel) to represent them with respect to any action or
proceeding involving one or more Shareholders. In any such proceeding, an
individual Shareholder shall have the right to retain its own counsel, but the
fees and expenses of such counsel shall be at the expense of such Shareholder.
Neither Buyer nor the Company shall be liable for any settlement of any
proceeding effected without its written consent (which consent will not be
unreasonably withheld or delayed), but if settled with such consent, or if there
be a final judgment for the plaintiff, Buyer or the Company, as the case may be,
agrees to indemnify such Shareholder from and against any loss or liability by
reason of such settlement or judgment. Notwithstanding the immediately preceding
sentence, if the Buyer or the Company shall have materially breached its
obligations pursuant to this Section 5.02 (which breach shall have continued for
90 days after written notice thereof), such indemnifying party shall be liable
for any such settlement effected without its written consent.
(d) No Shareholder shall be entitled to indemnification in respect of
claims that are determined by the final judgment of court to arise from such
Shareholder's willful misconduct.
SECTION 5.03. Amendments; Termination. 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. This Agreement, other than Sections 4.06 and this Article 5, shall
terminate upon the termination of the Merger Agreement in accordance with its
terms.
SECTION 5.04. Expenses. All costs and expenses incurred in
connection with this Agreement shall be paid by the party incurring such cost or
expense.
SECTION 5.05. 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 the other parties hereto, except that Buyer may
transfer or assign its rights and obligations to a wholly owned subsidiary of
Buyer.
SECTION 5.06. Governing Law. This Agreement shall construed in
accordance with and governed by the laws of the State of Delaware.
SECTION 5.07. 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.
SECTION 5.08. Severability. If any term, provision or covenant 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 and
covenants of this Agreement shall remain in full force and effect and shall in
no way be affected, impaired or invalidated.
SECTION 5.09. Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement is
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof in addition to any other
remedy to which they are entitled at law or in equity.
SECTION 5.10. Entire Agreements. Each Shareholder represents to the
other Shareholders that the Merger Agreement, this Agreement, the Consent and
Waiver between the Company and AWS and the binding term sheet for the Operating
Agreement between the Company and AWS constitute the entire agreement of the
Shareholders with Buyer, the Company and their affiliates with respect to the
Merger and the other transactions contemplated by such agreements except as
otherwise disclosed in or contemplated by such agreements.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
AMERICAN CELLULAR CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Chairman, Chief Executive
Officer
PRICELLULAR CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: President, Chief Executive
Officer
AT&T WIRELESS SERVICES, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Financial Vice President
▇▇▇▇▇▇ ▇. ▇▇▇ EQUITY FUND III, L.P.
By: THL Equity Advisors III Limited
Partnership,
as its General Partner
By: THL Equity Trust III,
as its General Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director
THL-CCI INVESTORS LIMITED PARTNERSHIP
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇ ▇▇▇▇▇▇▇, by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ as
custodian (with respect to shares held
until age 21 under the Uniform Gift to
Minors Act) and a natural guardian
(with respect to shares held by joint
tenancy)
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
as custodian (with respect to shares
held until age 21 under the Uniform
Gift to Minors Act) and as natural
guardian (with respect to shares held
by joint tenancy)
Schedule I
Number of Shares
Name of Shareholder Class Of Stock Owned
------------------- -------------- ----------------
AT&T Wireless Class A Common Stock 3,911,763
Wireless Services, Inc. Class B Common Stock 2,625,781
▇▇▇▇▇▇ ▇. ▇▇▇ Series A Preferred 54,600
Equity Fund III, L.P.
THL-CCI Investors Series A Preferred 5,400
Limited Partnership
▇▇▇▇▇▇ ▇▇▇▇▇ Class A Common Stock 30,038
Class B Common Stock 3,080,537
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Class A Common Stock 1,000
Class B Common Stock 2,176,208
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, as custodian for Class B Common Stock 761,718
▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, as custodian for Class B Common Stock 761,718
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇