Exhibit 10
EXECUTION
COPY
VOTING
AGREEMENT
VOTING AGREEMENT (this
“Agreement”) dated as of January 9, 2005, among
ALLTEL Corporation, a corporation organized under the laws of the
State of Delaware (“Parent”), and each person listed on
the signature page hereof as a shareholder (each, a
“Shareholder” and, collectively, the
“Shareholders”).
RECITALS
A. Western Wireless Corporation
is a corporation organized under the laws of the State of
Washington (the “Company”). Each Shareholder
“beneficially owns” (as such term is defined in Rule
13d-3 promulgated under the Securities Exchange Act of 1934, as
amended) and is entitled to dispose of (or to direct the
disposition of) and to vote (or to direct the voting of) the number
of shares of Class A Common Stock, no par value per share, of
the Company (the “Class A Common Stock”) and of
Class B Common Stock, no par value per share, of the Company
(the “Class B Common Stock” and, together with the
Class A Common Stock, the “Common Stock”) set
forth opposite such Shareholder’s name on
Schedule A hereto (such shares of Common Stock,
together with all other shares of capital stock of the Company
acquired by any Shareholder after the date hereof and during the
term of this Agreement, being collectively referred to herein as
the “Subject Shares”).
B. Concurrently with the
execution and delivery of this Agreement, Parent, Wigeon
Acquisition LLC, a limited liability company organized under the
laws of the State of Washington (“Merger Sub”), and the
Company are entering into an Agreement and Plan of Merger (the
“Merger Agreement”) providing for the merger of the
Company with and into Merger Sub, with Merger Sub surviving the
Merger (the “Merger”) upon the terms and subject to the
conditions set forth therein.
C. As a condition to entering
into the Merger Agreement, Parent has required that the
Shareholders enter into this Agreement, and the Shareholders desire
to enter into this Agreement to induce Parent to enter into the
Merger Agreement.
D. The Board of Directors of the
Company has taken all actions so that the restrictions contained in
the Company’s articles of incorporation and the Washington
Business Corporation Act (the “WBCA”) applicable to a
“significant business transaction” (as defined in
Section 23B.19 of the WBCA) will not apply to the execution,
delivery or performance of this Agreement or the Merger Agreement,
or to the consummation of the Merger, this Agreement and the Merger
Agreement.
NOW, THEREFORE, in consideration of
the foregoing and the mutual premises, representations, warranties,
covenants and agreements contained herein, the parties hereto,
intending to be legally bound, hereby agree as follows:
1. Representations and
Warranties of Each Shareholder .
Each Shareholder, jointly and
severally, represents and warrants to Parent as follows:
(a)
Authority . Such Shareholder, if not an individual, is duly
organized, validly existing and in good standing under the laws of
its jurisdiction of incorporation or organization (as applicable).
Such Shareholder has all requisite legal power (corporate or other)
and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. This Agreement has
been duly authorized, executed and delivered by such Shareholder
and constitutes a valid and binding obligation of such Shareholder
enforceable in accordance with its terms subject to
(i) bankruptcy, insolvency, moratorium and other similar laws
now or hereafter in effect relating to or affecting
creditors’ rights generally, and (ii) general principles
of equity (regardless of whether considered in a proceeding at law
or in equity). If such Shareholder is married and the Subject
Shares of such Shareholder constitute community property or
otherwise need spousal or other approval for this Agreement to be
legal, valid and binding with respect to such Subject Shares, this
Agreement has been duly authorized, executed and delivered by, and
constitutes a valid and binding agreement of, such
Shareholder’s spouse, enforceable against such spouse in
accordance with its terms subject to (i) bankruptcy,
insolvency, moratorium and other similar laws now or hereafter in
effect relating to or affecting creditors’ rights generally,
and (ii) general principles of equity (regardless of whether
considered in a proceeding at law or in equity). If such
Shareholder is a trust, no consent of any beneficiary is required
for the execution and delivery of this Agreement or the
consummation of the transactions contemplated hereby.
(b)
No Conflicts . (i) No filing by any Shareholder with
any governmental body or authority, and no authorization, consent
or approval of any other person is necessary for the execution of
this Agreement by any Shareholder and the consummation by any
Shareholder of the transactions contemplated hereby and
(ii) none of the execution and delivery of this Agreement by
such Shareholders, the consummation by any Shareholder of the
transactions contemplated hereby or compliance by any Shareholder
with any of the provisions hereof shall (A) if such
shareholder is not an individual, conflict with or result in any
breach of the organizational documents of any Shareholder,
(B) result in, or give rise to, a violation or breach of or a
default under (with or without notice or lapse of time, or both)
any of the terms of any material contract, trust agreement, loan or
credit agreement, note, bond, mortgage, indenture, lease, permit,
understanding, agreement or other instrument or obligation to which
any Shareholder is a party or by which any Shareholder or any of
its Subject Shares or assets may be bound, or (C) violate any
applicable order, writ, injunction, decree, judgment, statute, rule
or regulation, except for any of the foregoing as would not
reasonably be expected to prevent any Shareholder from performing
its obligations under this Agreement.
(c)
The Subject Shares . Schedule A sets forth,
opposite each Shareholder’s name, the number of Subject
Shares over which such Shareholder has record or beneficial
ownership as of the date hereof. As of the date hereof, each
Shareholder is the record or beneficial owner of the Subject Shares
denoted as being
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owned by such Shareholder
on Schedule A (or is trustee of a trust that is the
record holder of and whose beneficiaries are the beneficial owners
of such Subject Shares) and has the sole power to vote (or cause to
be voted) such Subject Shares. Except as set forth on such
Schedule A , no Shareholder nor any controlled
affiliate of a Shareholder owns or holds any right to acquire any
additional shares of any class of capital stock of the Company or
other securities of the Company or any interest therein or any
voting rights with respect to any securities of the Company. Each
Shareholder has good and valid title to the Subject Shares denoted
as being owned by such Shareholder on Schedule A , free
and clear of any and all pledges, mortgages, liens, charges,
proxies, voting agreements, encumbrances, adverse claims, options,
security interests and demands of any nature or kind whatsoever,
other than those created by this Agreement, as disclosed on
Schedule A , or as would not prevent any Shareholder
from performing its obligations under this Agreement.
(d)
Reliance By Parent . Such Shareholder understands and
acknowledges that Parent is entering into, and causing Merger Sub
to enter into, the Merger Agreement in reliance upon such
Shareholder’s execution and delivery of this Agreement.
(e)
Litigation . As of the date hereof, there is no action,
proceeding or investigation pending or threatened against such
Shareholder that questions the validity of this Agreement or any
action taken or to be taken by such Shareholder in connection with
this Agreement.
2. Representations and
Warranties of Parent .
Parent hereby represents and warrants
to the Shareholders as follows:
(a)
Due Organization, etc. Parent is duly organized, validly
existing and in good standing under the laws of the State of
Delaware. Parent has all requisite corporate power and authority to
execute and deliver this Agreement and to consummate the
transactions contemplated hereby. This Agreement has been duly
authorized, executed and delivered by Parent and constitutes a
valid and binding obligation of Parent enforceable in accordance
with its terms subject to (i) bankruptcy, insolvency, moratorium
and other similar laws now or hereafter in effect relating to or
affecting creditors’ rights generally, and (ii) general
principles of equity (regardless of whether considered in a
proceeding at law or in equity).
(b)
Conflicts . (i) No filing by Parent with any
governmental body or authority, and no authorization, consent or
approval of any other person is necessary for the execution of this
Agreement by Parent and the consummation by Parent of the
transactions contemplated hereby and (ii) none of the execution and
delivery of this Agreement by Parent, the consummation by Parent of
the transactions contemplated hereby or compliance by Parent with
any of the provisions hereof shall (A) conflict with or result
in any breach of the organizational documents of Parent,
(B) result in, or give rise to, a violation or breach of or a
default under (with or without notice or lapse of time, or both)
any of the terms of any material contract, loan or credit
agreement, note, bond,
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mortgage, indenture, lease,
permit, understanding, agreement or other instrument or obligation
to which Parent is a party or by which Parent or any of its assets
may be bound, or (C) violate any applicable order, writ,
injunction, decree, judgment, statute, rule or regulation, except
for any of the foregoing as would not prevent Parent from
performing its obligations under this Agreement.
(c)
Reliance by the Shareholders . Parent understands and
acknowledges that the Shareholders are entering into this Agreement
in reliance upon the execution and delivery of the Merger Agreement
by Parent.
3. Covenants of Each
Shareholder .
Until the termination of this
Agreement in accordance with Section 5, each Shareholder, in
its capacity as such, agrees as follows:
(a) At
the Company Meeting or at any adjournment, postponement or
continuation thereof or in any other circumstances occurring prior
to the Company Meeting upon which a vote, consent or other approval
(including by written consent) with respect to the Merger and the
Merger Agreement is sought , each Shareholder shall vote (or cause
to be voted) the Subject Shares (and each class thereof)
(i) in favor of the approval of the Merger and the approval
and adoption of the Merger Agreement; and (ii) except with the
written consent of Parent, against any Company Alternative
Proposal. Any such vote shall be cast or consent shall be given in
accordance with such procedures relating thereto so as to ensure
that it is duly counted for purposes of determining that a quorum
is present and for purposes of recording the results of such vote
or co
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