CUSTODY AGREEMENT AND POWER OF ATTORNEY
FOR
SALE OF COMMON STOCK OF
WESTERN WIRELESS CORPORATION
(THE "COMPANY")
------------------------------
(Name of Selling Shareholder)
To: Xxxxxxx X. Xxxxxxxx
Xxxxxxx X'Xxxxx
Xxxxx Xxxxxxxxx
Xxxxxxx Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
as Attorneys-in-Fact for the
Selling Shareholder
(the "Attorneys-in-Fact")
The undersigned and certain other shareholders of the Company (the
undersigned and such other shareholders being hereinafter referred to as the
"Selling Shareholders") propose to sell certain shares of Class B Common Stock
of the Company (the "Common Stock") to underwriters (the "Underwriters") for
whom (i) Xxxxxxx, Xxxxx & Co., Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and Xxxxx Xxxxxx
Inc. will act as representatives (the "U.S. Representatives") in the United
States offering and (ii) Xxxxxxx Xxxxx International, Xxxxxxxxx, Lufkin &
Xxxxxxxx Securities Corporation, Xxxxxxx Xxxxx International and Xxxxxxx Xxxxx
Barney will act as representatives in the international offering (the
"International Representatives" and, collectively with the U.S. Representatives,
the "Representatives"), for the distribution under a Registration Statement on
Form S-3 (the "Registration Statement") to the public at a price and on terms to
be hereafter determined. It is understood that at this time there is no
commitment on the part of the Underwriters to purchase any shares of Common
Stock, and no assurance that an offering of Common Stock will take place. The
shares of Common Stock of the Company to be sold by the undersigned to the
Underwriters pursuant to the Underwriting Agreements will upon sale be converted
to Class A Common Stock, and are referred to hereinafter as the "Sold Shares."
1. Appointment and Powers of Attorneys-in-Fact.
A. The undersigned hereby irrevocably constitutes and appoints the
Attorneys-in-Fact, and each of them, his or her true and lawful agents and
attorneys with respect to all matters arising in connection with the public
offering and sale of the Sold Shares, including, but not limited to, the power
and authority on behalf of the undersigned to do or cause to be done any of the
following things:
(i) negotiate, determine and agree upon (a) the price
at which the Sold Shares will be offered to the public by the
Underwriters pursuant to the Underwriting Agreements, as hereinafter
defined, (b) the underwriting discount with respect to the Sold Shares
and (c) the price at which the Sold Shares will be sold to the
Underwriters by the Selling Shareholders pursuant to the Underwriting
Agreements, ALL OF WHICH SHALL BE WITHOUT REGARD TO ESTIMATES OR RANGES
CONTAINED IN THE REGISTRATION STATEMENT OR ELSEWHERE, OR ANY OTHER ORAL
OR WRITTEN COMMUNICATIONS RELATING TO THE PROPOSED OFFERING SUPPLIED TO
THE SELLING SHAREHOLDERS;
(ii) make, execute and deliver the underwriting
agreements (collectively, the "Underwriting Agreements") with respect
to the Offerings, as such term is defined in the Registration
Statement, with such terms and conditions (specifically including, but
not limited to, the price at which the Sold Shares will be sold) as any
Attorney-in-Fact in his or her sole discretion shall approve, such
approval to be conclusively evidenced by the execution and delivery of
the Underwriting Agreements by the Attorneys-in-Fact or any of them;
and carry out and comply with all of the provisions of the Underwriting
Agreements, including the making of all representations and agreements
provided in the Underwriting Agreements to be made by, and the exercise
of all authority thereunder vested in, the undersigned;
(iii) sell, assign, transfer and deliver to the
Underwriters pursuant to the Underwriting Agreements under the
respective circumstances hereinafter described the number of Sold
Shares identified in Schedule I hereto;
(iv) take any and all steps deemed necessary or
desirable by the Attorneys-in-Fact in connection with the registration
with the Securities and Exchange Commission (the "Commission") of the
Sold Shares under the Securities Act of 1933, as amended (the
"Securities Act"), and under the securities or "blue sky" laws of any
jurisdiction;
(v) employ Xxxxx Xxxxxxxxx, or such other counsel as
specifically agreed to by the Company and the undersigned, to render
the legal opinions required by the Underwriting Agreements; and
(vi) otherwise take all actions and do all things
necessary or proper, required, contemplated or deemed advisable or
desirable by the Attorneys-in-Fact or any of them in his or her
discretion, including the execution and delivery of all documents, and
generally act for and in the name of the undersigned with respect to
the sale of the Sold Shares to the Underwriters and the reoffering of
the Sold Shares by the Underwriters as fully as could the undersigned
if then personally present and acting.
B. The Custodians (as defined in Section 2(A) below), Representatives
and all other persons dealing with the Attorneys-in-Fact in such capacity may
rely and act upon any writing believed in good faith to be signed by the
Attorneys-in-Fact.
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C. The Attorneys-in-Fact shall not receive any compensation for
services rendered hereunder.
2. Appointment of Custodians and Deposit of Sold Shares.
A. For the purposes of the sale of the Sold Shares to the Underwriters,
the undersigned hereby appoints Xxxxxxx Xxxxx & Xxxxx LLP and Xxxx X. Xxxxxx as
Custodians (the "Custodians"), and herewith deposits with the Custodians one or
more certificates for shares of the Company's Common Stock which represent no
less than the total number of Sold Shares identified on Schedule I hereto. Each
such certificate so deposited is in proper deliverable form accompanied by an
executed stock power with the signature of the undersigned guaranteed by a bank
or trust company or by a member of the New York, Midwest, Pacific or American
Stock Exchange. The Custodians are hereby authorized and directed, subject to
the instructions of the Attorneys-in-Fact, (i) to hold in custody the
certificate(s) representing the shares identified on Schedule I deposited
herewith, or to make such other appropriate arrangements as may be necessary for
the safekeeping of such certificate(s); (ii) to cause the Sold Shares to be
delivered as specified in and pursuant to the Underwriting Agreements to be
transferred upon the books of the Company into such names and in such
denominations as the Representatives shall have instructed the
Attorneys-in-Fact; (iii) to purchase all transfer tax stamps (if any) necessary
in connection with the transfer of the Sold Shares as aforesaid; and (iv) after
closing of the sale, to return to the undersigned a new certificate for the
shares of Class B Common Stock, no par value per share (the "Class B Common
Stock"), which are represented by the certificates deposited herewith and which
are not sold pursuant to the Underwriting Agreements.
B. Until the shares of Common Stock have been delivered against payment
therefor in accordance with the Underwriting Agreements, the undersigned shall
retain all rights of ownership with respect to the shares deposited herewith
including the right to vote and to receive all dividends and payments thereon,
except the right to retain custody of or dispose of such shares, and subject to
any lien created pursuant to the Underwriting Agreements which right is subject
to this Agreement and the Underwriting Agreements.
3. Sale of Sold Shares; Remitting Net Proceeds.
The Custodians are hereby authorized and directed, upon the advice of
one of the Attorneys-in-Fact hereunder, to deliver certificates for the Sold
Shares to the Representatives as provided in the Underwriting Agreements,
against delivery to such Attorneys-in-Fact for the account of the undersigned of
the net proceeds of sale payable by the Underwriters (the "Net Proceeds"). Any
Attorney-in-Fact is authorized, on behalf of the undersigned, to accept and
acknowledge receipt of the Net Proceeds, and such party shall promptly remit the
Net Proceeds to the undersigned.
4. Representations, Warranties and Agreements.
The undersigned represents and warrants to, and agrees with, the other
Selling Shareholders, the Company, the Underwriters, the Attorneys-in-Fact and
the Custodians as
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follows. ANY EXCEPTIONS TO THE FOLLOWING REPRESENTATIONS, WARRANTIES AND
AGREEMENTS ARE SET FORTH ON SCHEDULE II HERETO.
A. The undersigned has been fully advised and informed by the Company
that: (i) the Class B Common Stock will be automatically converted into Class A
Common Stock upon a transfer by the current holder, (ii) the Class A Common
Stock and Class B Common Stock will be identical in all respects except that
each share of Class B Common Stock will entitle the holder to ten votes and each
share of Class A Common Stock will entitle the holder to one vote on matters
submitted to a vote of shareholders and (iii) the shares sold by the undersigned
in the offering will be Class A Common Stock and the balance of any shares held
by the undersigned and not sold in the offering will be Class B Common Stock.
B. The undersigned has full right, power and authority to enter into
this Agreement and the Underwriting Agreements.
C. The undersigned has full legal capacity to execute this Agreement
and is subject to no restriction or other disability, contractual or otherwise,
that would impair his, her or its ability or authority to enter into this
Agreement.
D. The undersigned has no knowledge of any lien, encumbrance, equity,
security interest or claim, actual or alleged, by any third party against the
undersigned's interest in the Sold Shares and none of such shares is subject to
any interest or claim of any other person or entity.
E. There are no pending attachment or sale proceedings relating to or
affecting the Sold Shares.
F. Neither the undersigned nor any of its assets is subject to any
federal or state tax lien or any other statutory lien of any kind.
G. The undersigned has not entered or agreed to enter into any
agreement granting, creating or purporting to grant or create, directly or
indirectly, any option to purchase or other rights in the Sold Shares to any
person or entity other than as contemplated hereby.
H. The undersigned has reviewed the representations and warranties to
be made by the undersigned as a Selling Shareholder as contained in the draft of
the U.S. Underwriting Agreement provided herewith, and does hereby represent,
warrant and covenant that each of such representations and warranties is true
and correct as of the date hereof and, except as set forth on Schedule II
hereto, will be true and correct at the time of the closing of the sale of the
Sold Shares to the Underwriters.
I. Upon execution and delivery of the Underwriting Agreements by the
Attorneys-in-Fact on behalf of the undersigned, the undersigned agrees to be
bound by and to perform each of the covenants and agreements of the undersigned
as a Selling Shareholder in the Underwriting Agreements.
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J. The undersigned agrees to deliver to the Attorneys-in-Fact such
documentation as the Attorneys-in-Fact, the Company, the Underwriters, the
Selling Shareholders or the Custodians or any of their respective counsel may
reasonably request to effectuate any of the provisions hereof or of the
Underwriting Agreements, all of the foregoing to be in the form and substance
satisfactory in all respects to such requesting parties. The foregoing
representations, warranties and agreements are made for the benefit of, and may
be relied upon by, the other Selling Shareholders, the Attorneys-in-Fact, the
Underwriters, the Company and their respective counsel, including Xxxxxxx Xxxxx
& Xxxxx LLP, Xxxxxxxx & Xxxxxxxx, and Xxxxx Xxxxxxxxx, representatives and
agents.
5. Irrevocability of Instruments; Termination of this Agreement.
A. This Agreement, the deposit of the Sold Shares pursuant hereto, and
all authority hereby conferred, is granted, made and conferred subject to and in
consideration of the interests of the Attorneys-in-Fact, the Underwriters, the
Company and the other Selling Shareholders who may become parties to the
Underwriting Agreements, for the purpose of completing the transactions
contemplated hereunder and by the Underwriting Agreements; and the Attorneys-in-
Fact are hereby further vested with an estate, right, title and interest in and
to the shares of Common Stock deposited herewith for the purpose of irrevocably
empowering and securing to them authority sufficient to consummate said
transactions. Accordingly, this Agreement shall be irrevocable prior to August
15, 1998, provided the Underwriting Agreements are executed and delivered prior
to June 30, 1998, and shall remain in full force and effect until that date.
Furthermore, for the consideration herein referred to and in consideration of
the said interests in the Sold Shares deposited herewith, the undersigned agrees
that this Agreement is irrevocable and shall not be terminated by operation of
law upon the occurrence of any event whatsoever, including the death, disability
or incompetence of any Selling Shareholder, including the undersigned. If any
event referred to in the preceding sentence shall occur, whether with or without
notice thereof to the Attorneys-in-Fact, any of the Underwriters or any other
person, the Attorneys-in-Fact shall nevertheless be authorized and empowered to
deliver and deal with the shares deposited herewith by or on behalf of the
undersigned in accordance with the terms and provisions of the Underwriting
Agreements and this Agreement as if such event had not occurred.
B. Notwithstanding any of the foregoing provisions, if the Underwriting
Agreements are not executed and delivered prior to June 30, 1998, or if the sale
of the Sold Shares contemplated by this instrument is not completed by August
15, 1998, this Custody Agreement and Power of Attorney shall terminate upon the
first of such conditions to fail to occur, and the Attorneys-in-Fact shall cause
the Custodians to return to the undersigned the certificates for the shares
deposited herewith.
6. Liability and Indemnification of the Attorneys-in-Fact and Custodians.
The Attorneys-in-Fact and the Custodians are authorized to accept this
Agreement and take any and all actions hereunder as they shall, in their own
discretion, determine. The
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Attorneys-in-Fact and Custodians assume no responsibility or liability to the
undersigned or to any other person, other than to deal with the Sold Shares and
any other shares of Common Stock of the Company held and received by the
Attorneys-in-Fact or deposited with the Custodians pursuant to the terms of this
Agreement in accordance with the provisions hereof. The undersigned does hereby
agree to indemnify and hold the Attorneys-in-Fact and the Custodians harmless
with respect to anything done by them in good faith in connection with any and
all matters contemplated by this Agreement or the Underwriting Agreements.
7. Interpretation.
A. This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original and all of which together shall be
deemed to be one and the same instrument.
B. The validity, enforceability, interpretation and construction of
this Agreement shall be determined in accordance with the laws of the state of
Washington and shall inure to the benefit of, and this Agreement shall be
binding upon, the undersigned and the undersigned's heirs, executors,
administrators, successors and assigns, as the case may be.
C. If any word, phrase, clause, portion or provision of this Agreement
shall be held or deemed to be, or shall in fact be, inoperative or unenforceable
as applied in any particular case or circumstance in any applicable jurisdiction
or jurisdictions because it conflicts with any other provisions hereof, or any
constitution, statute or rule of public policy, or for any reason, such
eventuality shall not render any of the aforesaid inoperative or unenforceable
in any other case or circumstance, or render any one or more or combination of
any other words, phrase, clauses, portions or provisions herein invalid,
inoperative, ultra xxxxx or unenforceable to any extent whatsoever.
8. Delivery of Net Proceeds.
Unless otherwise indicated below, the Net Proceeds from the sale of the
Sold Shares shall be delivered by check delivered to the address set forth on
the signature page hereof. If the Net Proceeds are to be deposited in an
account, please attach a deposit slip for such account if available, otherwise
indicate the account number and the name and address of the bank at which such
account is maintained
_________________________________________
(account number)
_________________________________________
(bank) (ABA number)
_________________________________________
(bank address)
_________________________________________
(city) (state) (zip)
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IN WITNESS WHEREOF, the undersigned has caused this Custody Agreement and Power
of Attorney to be executed this _____ day of _____________, 1998.
___________________________________________
Please sign exactly as your name appears on
your stock certificate(s)
Address to which notices shall be sent.
_________________________________________________________
(Street)
_________________________________________________________
(City) (State) (Zip)
(NOTE: THE SIGNATURE(S) ON YOUR STOCK CERTIFICATES OR STOCK POWERS MUST BE
GUARANTEED BY A BANK OR TRUST COMPANY, OR BY YOUR BROKER WHO MUST BE A MEMBER OF
THE NEW YORK, MIDWEST, PACIFIC OR AMERICAN STOCK EXCHANGE.)
ACCEPTED on behalf of the Attorneys-in- ACCEPTED on behalf of the Custodians as
Fact as of the date above set forth: of the date above set forth:
XXXXXXX XXXXX & XXXXX LLP
______________________________________
Attorney-in-Fact By__________________________________
____________________________________
Xxxx X. Xxxxxx
ACCEPTED on behalf of the Company as of
the date above set forth:
By_____________________________________
Xxxx X. Xxxxxxx
Chairman and Chief Executive Officer
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SCHEDULE I
SHARES TO BE SOLD IN THE OFFERING
Certificate for Shares of
Western Wireless Corporation
Deposited Herewith
__________________________________
Number of Shares of Stock from
Certificate Number this Certificate to be sold*
__________ _________________
__________ _________________
__________ _________________
__________ _________________
__________ Total _________________
________________________________ __________________
(print your name) (initial here)
______________________
* Shares sold in the offering will be Class A Common Stock (one vote
per share) and the balance of the shares not sold, if any, will be
returned to you as shares of the Class B Common Stock (10 votes per
share if you have delivered Class B Common Stock for registration).
I-1
SCHEDULE II
SCHEDULE OF EXCEPTIONS TO SECTION 4
REPRESENTATIONS, WARRANTIES AND AGREEMENTS
In the space below please list any exceptions or inaccuracies contained
in the representations, warranties and agreements contained in Section 4 of the
Custody Agreement. IF YOU ARE AWARE OF NO SUCH INACCURACIES PLEASE WRITE "NONE."
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
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