EXHIBIT 9.1
FORM OF STOCKHOLDER VOTING AGREEMENT
This Agreement, made to be effective the 5th day of October, 1999, by and
among those individuals and entities named as Stockholders on the signature
pages hereto (each of whom is individually designated herein as a "Stockholder"
and collectively referred to herein as the "Stockholders"); AMERICAN CELLULAR
CORPORATION, a Delaware corporation (the "Company"); ACC ACQUISITION LLC, a
Delaware limited liability company ("Parent"); and ACC ACQUISITION CO., a
Delaware corporation ("Merger Sub").
WITNESSETH:
WHEREAS, the Company, Parent and Merger Sub are concurrently with the
execution of this Agreement entering into an Agreement and Plan of Merger (as it
may be modified or amended from time to time, the "Merger Agreement");
WHEREAS, capitalized terms used herein and not otherwise defined herein
have the meaning given such terms in the Merger Agreement;
WHEREAS, the Stockholders have reviewed a copy of the Merger Agreement;
WHEREAS, each Stockholder owns of record and beneficially and has the
unrestricted power to vote the shares of Class A Common Stock of the Company
(the "Shares") listed opposite such Stockholder's name on Exhibit A hereto;
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WHEREAS, the Stockholders have executed a written consent of stockholders
in lieu of a meeting approving the adoption of the Merger Agreement and the
transactions contemplated thereby including the Merger (the "Stockholder
Consent");
WHEREAS, under the terms of the Merger Agreement, the Company has agreed to
call a meeting of its stockholders for the purpose of voting upon the approval
of the Merger described in the Merger Agreement (such meeting, together with any
adjournments thereof, the "Stockholders' Meeting"); and
WHEREAS, the Company, Parent and Merger Sub have made it a condition to
entering into the Merger Agreement that the Stockholders shall have agreed to
vote their Shares in favor of the Merger.
NOW, THEREFORE, in consideration of the Company, Parent and Merger Sub
entering into the Merger Agreement and to encourage the Company, Parent and
Merger Sub to enter into the Merger Agreement and complete the Merger, the
parties hereto agree as follows:
1. Agreement to Vote. Each Stockholder agrees to vote all of its Subject
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Securities (as defined in Section 4(a) below) as follows:
(a) in favor of the adoption of the Merger Agreement and the
transactions contemplated thereby including the Merger at the Stockholders'
Meeting and at any
adjournment thereof and in connection with any written consent of
stockholders in lieu of a meeting; and
(b) against the approval of an offer, indication of interest or
proposal to acquire all or a majority of the Company's consolidated
business or more than a total of 9.9% of any class of the Company's capital
stock, whether by merger, consolidation or other business combination,
purchase of assets, tender or exchange offer or otherwise (other than the
transactions contemplated by this Agreement) (each of the foregoing, an
"Acquisition Proposal").
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(c) against any other 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.
2. PROXY. EACH STOCKHOLDER HEREBY GRANTS TO, AND APPOINTS MERGER SUB AND
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THE PRESIDENT OF MERGER SUB AND THE CHIEF FINANCIAL OFFICER OF MERGER SUB, IN
THEIR RESPECTIVE CAPACITIES AS OFFICERS OF MERGER SUB, AND ANY INDIVIDUAL WHO
SHALL HEREAFTER SUCCEED TO ANY SUCH OFFICE OF MERGER SUB, AND ANY OTHER DESIGNEE
OF MERGER SUB, EACH OF THEM INDIVIDUALLY, SUCH STOCKHOLDER'S PROXY AND ATTORNEY-
IN-FACT (WITH FULL POWER OF SUBSTITUTION) TO VOTE OR ACT BY WRITTEN CONSENT WITH
RESPECT TO THE SUBJECT SECURITIES WITH RESPECT TO THE MATTERS IN CLAUSES (a),
(b), and (c) OF SECTION I ABOVE. THIS PROXY IS COUPLED WITH AN INTEREST AND
SHALL BE IRREVOCABLE, AND EACH STOCKHOLDER WILL TAKE SUCH FURTHER ACTION OR
EXECUTE SUCH OTHER INSTRUMENTS AS MAY BE REASONABLY NECESSARY TO EFFECTUATE THE
INTENT OF THIS PROXY AND HEREBY REVOKES ANY PROXY PREVIOUSLY GRANTED BY IT WITH
RESPECT TO THE SUBJECT SECURITIES.
3. Termination. This Agreement shall terminate on the earlier of:
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(a) the date on which the Merger Agreement is terminated in
accordance with its terms, or
(b) the date on which the Merger is consummated.
4. Representations and Warranties of the Stockholders. Each Stockholder
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severally (not jointly and severally) represents and warrants to Parent and
Merger Sub as follows:
(a) Ownership of Securities. Such Stockholder is the record and
beneficial owner of the number of Shares (together with any Shares
hereafter acquired by such Stockholder, the "Subject Securities") set forth
on Exhibit A attached hereto. Such Stockholder has sole voting power and
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sole power to issue instructions with respect to the voting of the Subject
Securities, sole power of disposition, sole power of exercise or conversion
and the sole power to demand appraisal rights, in each case with respect to
all of the Subject Securities. As of the date hereof, such Stockholder
does not beneficially or of record own any Shares other than those set
forth on Exhibit A.
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(b) Power; Binding Agreement. Such Stockholder has the legal
capacity, power and authority to enter into and perform all of such
Stockholder's obligations under this Agreement. The execution, delivery
and performance of this Agreement by such Stockholder will not violate any
other agreement to which such Stockholder is a party including, without
limitation, any trust agreement, voting agreement, stockholders' agreement
or voting trust. This Agreement has been duly and validly authorized,
executed and delivered by such Stockholder and constitutes a valid and
binding agreement of such Stockholder, enforceable against such Stockholder
in accordance with its terms, except to the extent that enforceability may
be limited by applicable bankruptcy, reorganization, insolvency, moratorium
or other laws affecting the enforcement of creditors' rights generally and
by general principles of equity, regardless of whether such enforceability
is considered in a proceeding at law or in equity.
(c) No Conflicts. Except as contemplated by the Merger Agreement,
no filing with, and no permit, authorization, consent or approval of, any
state or federal public body or authority is necessary for the execution of
this Agreement by such Stockholder and the consummation by such Stockholder
of the transactions contemplated hereby and neither the execution and
delivery of this Agreement by such Stockholder nor the consummation by such
Stockholder of the transactions contemplated hereby nor compliance by such
Stockholder with any of the provisions hereof shall conflict with or result
in any breach of any applicable partnership or other organizational
documents applicable to such Stockholder, result in a violation or breach
of, or constitute (with or without notice or lapse of time or both) a
default (or give rise to any third-party right of termination,
cancellation, material modification or acceleration) under any of the
terms, conditions or provisions of any note, bond, mortgage, indenture,
license, contract, commitment, arrangement, understanding, agreement or
other instrument or obligation of any kind to which such Stockholder is a
party or by which such Stockholder's properties or assets may be bound or
violate any order, writ, injunction, decree, judgment, order, statute, rule
or regulation applicable to such Stockholder or any of such Stockholder's
properties or assets.
(d) No Liens. The Subject Securities are now and at all times
during the term hereof will be held by such Stockholder, or by a nominee or
custodian for the benefit of such Stockholder, free and clear of all liens,
claims, security interests, proxies, voting trusts or agreements (except
for the Stockholders Agreement, dated as of March 15, 1998, among the
Company and the stockholders named on the signature pages therein, the
provisions of which, in any event, shall in no way limit such stockholder's
ability to enter into, or perform its obligations (including without
limitation, voting its Subject Securities in favor of the Merger) under
this Agreement), understandings or arrangements or any other encumbrances
whatsoever, except for any encumbrances arising hereunder and under
applicable securities laws.
5. Covenants of the Stockholders. Each Stockholder hereby agrees and
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covenants that:
(a) No Solicitation. Such Stockholder shall not, directly or
indirectly, solicit (including by way of furnishing information) or respond
to the making of any proposal by
3
any Person (other than Parent or Merger Sub and other than advising such
Person of the existence of this Agreement) with respect to the Company that
constitutes or could reasonably be expected to lead to an Acquisition
Proposal. If such Stockholder receives any such proposal, then it shall
promptly inform Parent of the terms and conditions, if any, of such
proposal and the identity of the Person making it. Such Stockholder will
immediately cease and cause to be terminated any existing discussions or
negotiations with any parties conducted heretofore with respect to any of
the foregoing.
(b) Restriction on Transfer, Proxies and Noninterference. Such
Stockholder shall not, directly or indirectly: (i) except pursuant to the
terms of the Merger Agreement, offer for sale, sell, transfer, tender,
pledge, encumber, assign or otherwise dispose of, or enter into any
contract, option or other arrangement or understanding with respect to or
consent to the offer for sale, sale, transfer, tender, pledge, encumbrance,
assignment or other disposition of, any or all of such Stockholder's
Subject Securities; (ii) except as contemplated hereby, grant any proxies
or powers of attorney, deposit any Subject Shares into a voting trust or
enter into a voting agreement with respect to any Subject Shares; or (iii)
take any action that would make any representation or warranty contained
herein untrue or incorrect or have the effect of preventing or disabling
such Stockholder from performing its obligations under this Agreement.
(c) Stockholder Consent. Such Stockholder will not agree to modify,
amend or rescind the Stockholder Consent without the prior written approval
of Buyer.
6. Appraisal Rights. Such Stockholder agrees not to exercise any rights
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(including, without limitation, under Section 262 of the General Corporation Law
of the State of Delaware) to demand appraisal of any Subject Securities which
may arise with respect to the Merger.
7. Action in Stockholder Capacity Only. No Stockholder makes any
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agreement or understanding hereunder as a director or officer of the Company.
Each Stockholder signs this Agreement solely in his, her or its capacity as
record and beneficial owners of the Subject Securities, and nothing herein shall
limit or affect any actions taken in such Stockholder's capacity as an officer
or director of the Company, including, without limitation, any actions taken by
such person in the exercise of such person's fiduciary duties as a director of
the Company.
8. Condition Precedent to Effectiveness. This Agreement shall be
------------------------------------
effective from and after such time as Stockholders holding at least 70% of the
Shares shall have executed this Agreement.
9. Specific Performance. Each Stockholder hereby acknowledges that
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damages would be an inadequate remedy for any breach of the provisions of this
Agreement and agrees that the obligations of the Stockholder shall be
specifically enforceable and that Parent and Merger Sub shall be entitled to
injunctive or other equitable relief upon such a breach by any Stockholder. Each
Stockholder further agrees to waive any bond in connection with the obtaining of
any such injunctive or equitable relief. This provision is without prejudice to
any other rights that Parent and Merger Sub may have against a Stockholder for
any failure to perform the Stockholder's obligations under this Agreement. The
liability of each Stockholder hereunder shall be several
4
and not joint and several and the liability of each Stockholder shall in all
events be limited to the value of the Subject Securities owned by such
Stockholder.
10. Governing Law. This Agreement shall be enforceable under and
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construed in accordance with the laws of the State of Delaware.
11. Amendments; No Waivers.
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(a) Any provision of this Agreement may be amended or waived prior
to the Effective Time if, and only if, such amendment or waiver is in
writing and signed, in the case of an amendment, by the Stockholders, the
Company, Parent and Merger Sub or in the case of a waiver, by the party
against whom the waiver is to be effective.
(b) 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.
12. Further Actions. Each of the parties agrees to cooperate fully in the
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effectuation of the transactions contemplated hereby and to execute any and all
additional documents or take such additional actions as shall be reasonably
necessary or appropriate for such purpose.
13. Successors and Assigns. The provisions of this Agreement shall be
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binding upon and inure to the benefit of the parties hereto and their respective
heirs, executors, administrators, successors and assigns; provided that no party
may assign, delegate or otherwise transfer any of its rights or obligations
under this Agreement without the prior written consent of the other parties
hereto.
14. Exclusive Jurisdiction. The parties agree that any legal action, suit
----------------------
or proceeding arising out of or relating to this Agreement or the agreements and
transactions contemplated hereby shall be instituted in any federal court
located in the State of Delaware or any Delaware state court, which shall be the
exclusive jurisdiction and venue of said legal proceedings, and each party
hereto consents to the personal jurisdiction of such courts and waives any
objection that such party may now or hereafter have to the personal jurisdiction
of such courts or the laying of venue of any such action, suit or proceeding.
15. Counterparts; Effectiveness. This Agreement may be signed in any
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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.
16. Severability. If any term or other provision of this Agreement is
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invalid, illegal, or incapable of being enforced by any rule or law, or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the legal substance of the rights and
obligations contemplated by this Agreement are 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
5
possible in order that the Merger and other transactions contemplated by this
Agreement be consummated as originally contemplated to the fullest extent
possible.
[SIGNATURE PAGES FOLLOW]
6
IN WITNESS WHEREOF, each Stockholder, the Company, Parent and Merger Sub
have executed this Agreement to be effective as of the date set forth in the
first paragraph above.
AMERICAN CELLULAR CORPORATION,
a Delaware corporation
By:____________________________________
Title:_________________________________
ACC ACQUISITION LLC,
a Delaware limited liability company
By: Xxxxxx XX Company, Member
By:_______________________________
Name:_____________________________
Title:____________________________
By: AT&T Wireless Services JV Co., Member
By:_______________________________
Name:_____________________________
Title:____________________________
ACC ACQUISITION CO.,
a Delaware corporation
By:____________________________________
Title:_________________________________
[SIGNATURE PAGE TO STOCKHOLDER VOTING AGREEMENT]
The Stockholders:
SPECTRUM EQUITY INVESTORS II, L.P.
By: SPECTRUM EQUITY ASSOCIATES II, L.P.
its Managing General Partner
By:___________________________
Name:_________________________
Title:________________________
PROVIDENCE EQUITY PARTNERS L.P.
By: PROVIDENCE EQUITY PARTNERS, L.L.C.,
its general partner
By:___________________________
Name:_________________________
Title:________________________
TANDEM WIRELESS INVESTMENTS
By: TANDEM WIRELESS CAPITAL, L.L.C.
By:___________________________
Name:_________________________
Title:________________________
21st CENTURY COMMUNICATIONS PARTNERS, L.P.
By: Sandler Investment Partners, L.P.
General Partner
By: Sandler Capital Management
General Partner
By: MJDM CORP., a General Partner
By:___________________________
Name:_________________________
Title:________________________
[SIGNATURE PAGE TO STOCKHOLDER VOTING AGREEMENT]
21st CENTURY COMMUNICATIONS T-E, L.P.
By: Sandler Investment Partners, L.P.
General Partner
By: Sandler Capital Management
General Partner
By: MJDM CORP., a General Partner
By:___________________________
Name:_________________________
Title:________________________
21st CENTURY COMMUNICATIONS FOREIGN PARTNERS, L.P.
By: Sandler Investment Partners, L.P.
General Partner
By: Sandler Capital Management
General Partner
By: MJDM CORP., a General Partner
By:___________________________
Name:_________________________
Title:________________________
SANDLER CAPITAL PARTNERS IV, L.P.
By: Sandler Investment Partners, L.P.
General Partner
By: Sandler Capital Management
General Partner
By: MJDM CORP., a General Partner
By:___________________________
Name:_________________________
Title:________________________
[SIGNATURE PAGE TO STOCKHOLDER VOTING AGREEMENT]
SANDLER CAPITAL PARTNERS IV, FTE, L.P.
By: Sandler Investment Partners, L.P.
General Partner
By: Sandler Capital Management
General Partner
By: MJDM CORP., a General Partner
By:___________________________
Name:_________________________
Title:________________________
TRIUMPH PARTNERS III, L.P.
By: Triumph III Advisors, L.P.
General Partner
By: Triumph III Advisors, Inc.
General Partner
By:___________________________
Name:_________________________
Title:________________________
TRIUMPH III INVESTORS, L.P.
By: Triumph III Advisors, Inc.
General Partner
By:___________________________
Name:_________________________
Title:________________________
FIRST UNION CAPITAL PARTNERS, INC.
By:___________________________
Name:_________________________
Title:________________________
[SIGNATURE PAGE TO STOCKHOLDER VOTING AGREEMENT]
TORONTO DOMINION INVESTMENTS, INC.
By:___________________________
Name:_________________________
Title:________________________
XXXXXXX XXXXX KECALP, L.P. 1997
By:___________________________
Name:_________________________
Title:________________________
XXXXXXX XXXXX KECALP INTERNATIONAL, L.P. 1997
By:___________________________
Name:_________________________
Title:________________________
XXXXXXX XXXXX KECALP, L.P. 1999
By:___________________________
Name:_________________________
Title:________________________
ML IBK POSITIONS, INC.
By:___________________________
Name:_________________________
Title:________________________
[SIGNATURE PAGE TO STOCKHOLDER VOTING AGREEMENT]
KECALP, INC. (acting as nominee for Xxxxxxx Xxxxx KECALP International L.P.
1999)
By:_____________________________
Name:___________________________
Title:__________________________
HARBOURVEST PARTNERS V
By: HVP V - Direct Associates LLC
a Delaware limited partnership
By: HARBOURVEST PARTNERS, LLC
a Delaware limited partnership
By:_____________________________
Name:___________________________
Title:__________________________
INFORMATION ASSOCIATES, L.P.
By: TRIDENT CAPITAL MANAGEMENT, L.L.C.
its general partner
By:_____________________________
Name:___________________________
Title:__________________________
INFORMATION ASSOCIATES-II, L.P.
By:_____________________________
Name:___________________________
Title:__________________________
IA-II AFFILIATES FUND, L.L.C.
By:_____________________________
Name:___________________________
Title:__________________________
[SIGNATURE PAGE TO STOCKHOLDER VOTING AGREEMENT]
INFORMATION ASSOCIATES, C.V.
By: TRIDENT CAPITAL MANAGEMENT, L.L.C.
its investment general partner
By:_____________________________
Name:___________________________
Title:__________________________
XXXXX FAMILY TRUST dated 1/6/89
By:_____________________________
Name:___________________________
Title:__________________________
LION INVESTMENTS LIMITED
By:_____________________________
Name:___________________________
Title:__________________________
WESTPOOL INVESTMENTS TRUST
By:_____________________________
Name:___________________________
Title:__________________________
SGC PARTNERS II, LLC
By:_____________________________
Name:___________________________
Title:__________________________
[SIGNATURE PAGE TO STOCKHOLDER VOTING AGREEMENT]
GENERATION CAPITAL PARTNERS, L.P.
By: GENERATION PARTNERS, L.P.,
its General Partner
By: Generation Capital Company LLC,
its General Partner
By:__________________________
Name: _______________________
Title: ______________________
TRIDENT CAPITAL PARTNERS ACC FACILITATION COMPANY LLC
By:_____________________________
Name:___________________________
Title:__________________________
STATE BOARD OF ADMINISTRATION OF FLORIDA
By: GENERATION PARTNERS, L.P.,
its General Partner
By: Generation Capital Company LLC,
its General Partner
By:__________________________
Name:________________________
Title:_______________________
GENERATION PARALLEL MANAGEMENT PARTNERS, L.P.
By: GENERATION PARTNERS, L.P.,
its General Partner
By: Generation Capital Company LLC,
its General Partner
By:_________________________________
Name:_______________________________
Title:______________________________
[SIGNATURE PAGE TO STOCKHOLDER VOTING AGREEMENT]
PILOT HOLDINGS L.P.
By:_____________________________
Name:___________________________
Title:__________________________
AMERICAN HOME ASSURANCE CORPORATION
By:_____________________________
Name:___________________________
Title:__________________________
By: ___________________________
XXXX XXXXX
By: ___________________________
XXXXX XxXXXXXX
By: ___________________________
XXXXXX X. XXXXXX
By: ___________________________
XXXXX X. XXXXXX
By: ___________________________
XXXXXXXXX X. XXXXXXXXX
By: ___________________________
XXXXXXX X. XXXXXX
[SIGNATURE PAGE TO STOCKHOLDER VOTING AGREEMENT]
By: ___________________________
XXXXX XXXXXXX
By: ___________________________
XXXXX X. XXXXXXXX
[SIGNATURE PAGE TO STOCKHOLDER VOTING AGREEMENT]
By: ___________________________
XXXXXXXX FAMILY TRUST
[SIGNATURE PAGE TO STOCKHOLDER VOTING AGREEMENT]
Exhibit A
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Class A
NAME OF STOCKHOLDER Common Stock
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Spectrum Equity Investors II LP 35,714
Providence Equity Partners LP 35,714
Tandem Wireless Investments 28,571
Triumph Partners III, LP 21,250
Triumph III Investors, LP 179
First Union Capital Partners, Inc. 17,857
HarbourVest Partners V 14,286
Information Associates, LP 2,086
Information Associates, C.V. 57
Information Associates-II, LP 8,572
IA-II Affiliates Fund, LLC 500
Toronto Dominion Investments, Inc 10,714
Westpool Investments Trust 6,069
Lion Investments Limited 1,055
Xxxxx Family Trust dated 1/6/89 16
Xxxx Xxxxx 2,948.375
Xxxxx XxXxxxxx 2,382.25
XxXxxxxx Family Trust 566.125
Xxxxxxx Xxxxx KECALP, LP 1997 5,498
Xxxxxxx Xxxxx KECALP International, LP 1997 1,642
ML IBK Positions, Inc. 357
Trident Capital Partners ACC Facilitation Company LLC 3,071
Class A
NAME OF STOCKHOLDER Common Stock
------------------- ------------
American Home Assurance Corporation 3,571
Generation Capital Partners LP 6,901
State Board Administration of Florida 246
Generation Parallel Management Partners LP 3
Sandler Capital Partners IV, LP 14,012
Sandler Capital Partners IV, FTE, LP 5,739
21/st/ Century Communications Partners LP 5,739
21/st/ Century Communications T-E LP 772
21/st/ Century Communications Foreign Partners LP 1,952
Pilot Holdings LP 358
SGC Partners II LLC 11,786
Xxxxxxx Xxxxx KECALP, LP 1999 3,041
KECALP, Inc., acting as nominee for Xxxxxxx Xxxxx 172
KECALP International L.P. 1999
Xxxxxx X. Xxxxxx 375
Xxxxx X. Xxxxxx 250
Xxxxxxxxx X. Xxxxxxxxx 150
Xxxxxxx X. Xxxxxx 100
Xxxxx X. XxXxxxxx 250
Xxxxx Xxxxxxx 150
==============
TOTAL: 254,671.75
