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EXHIBIT 10.1
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:
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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 vo
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