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STOCK SUBSCRIPTION AGREEMENT
BY AND AMONG
WESTERN WIRELESS CORPORATION,
▇▇▇▇▇▇▇▇▇ TELECOMMUNICATIONS LIMITED
AND
▇▇▇▇▇▇▇▇▇ TELECOMMUNICATIONS HOLDINGS (USA) LIMITED
(formerly known as Better Profit International Limited)
DATED: October 14, 1997
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ARTICLE 1 DEFINITIONS...................................................................1
ARTICLE 2 PURCHASE OF STOCK; CLOSING....................................................3
2.01 Purchase of Stock......................................................3
2.02 Closing................................................................3
ARTICLE 3 COVENANTS AND AGREEMENTS......................................................4
3.01 Covenants of the Company...............................................4
3.02 Covenants of the Investor..............................................4
3.03 HSR Act................................................................4
ARTICLE 4 REPRESENTATIONS AND WARRANTIES................................................4
4.01 Representations and Warranties of the Company..........................4
4.02 Representations and Warranties of the Investor.........................6
ARTICLE 5 CONDITIONS TO OBLIGATIONS.....................................................9
5.01 Conditions to the Obligation of the Company............................9
5.02 Conditions to the Obligation of the Investor...........................9
ARTICLE 6 MISCELLANEOUS................................................................10
6.01 Expenses..............................................................10
6.02 Equitable Remedies....................................................10
6.03 Notices...............................................................11
6.04 Entire Agreement......................................................12
6.05 Remedies Cumulative...................................................12
6.06 Governing Law.........................................................13
6.07 Counterparts..........................................................13
6.08 Waivers...............................................................13
6.09 Successors and Assigns................................................13
6.10 Further Assurances....................................................13
6.11 Disclosures...........................................................13
6.12 Termination...........................................................14
6.13 Jurisdiction; Consent to Service of Process...........................14
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STOCK SUBSCRIPTION AGREEMENT
STOCK SUBSCRIPTION AGREEMENT, dated October 14, 1997 (the
"Agreement"), by and among Western Wireless Corporation, a Washington
corporation (the "Company"), ▇▇▇▇▇▇▇▇▇ Telecommunications Limited, a Hong Kong
corporation ("HTL") and ▇▇▇▇▇▇▇▇▇ Telecommunications Holdings (USA) Limited
(formerly known as Better Profit International Limited), a British Virgin
Islands corporation (the "Investor").
W I T N E S S E T H :
WHEREAS, the Company is engaged in the communications business in the
United States;
WHEREAS, Investor is a wholly-owned subsidiary of HTL, and HTL is
engaged directly or through Affiliates in the communications business in, among
other places, Hong Kong;
WHEREAS, the Company and HTL are among the leaders in their respective
countries in the provision of mobile telecommunications services and supporting
systems; and
WHEREAS, upon the terms and conditions set forth in this Agreement, the
Company has determined to issue and sell, and the Investor has determined to
purchase, 3,888,888 shares of the Company's Class A Common Stock, without par
value (the "Class A Common Stock").
NOW, THEREFORE, in consideration of the mutual covenants, conditions and
promises hereinafter set forth, the parties hereby agree as follows:
ARTICLE 1
DEFINITIONS
Unless the context otherwise requires, the terms defined hereunder shall
have the meanings therein specified for all purposes of this Agreement,
applicable to both the singular and plural forms of any of the terms defined
herein. For purposes of this Agreement:
"Affiliate" shall mean, with respect to any party hereto, any
corporation or other business entity which directly or indirectly through stock
ownership or through any other arrangement either controls, is controlled by or
is under common control with, such party. The term "control" shall mean the
power to direct the affairs of such person by reason of ownership of voting
stock or other equity interests, by contract or otherwise.
"Agreement" shall have the meaning set forth in the preamble hereof.
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"Business Day" shall mean any day other than a Saturday, Sunday or a
legal holiday in New York, New York, Seattle, Washington or Hong Kong or any
other day on which commercial banks in those locations are authorized by law or
governmental decree to close.
"Class A Common Stock" shall have the meaning set forth in the preamble
hereof.
"Closing" shall have the meaning set forth in SECTION 2.02.
"Closing Date" shall have the meaning set forth in SECTION 2.02.
"Company" shall have the meaning set forth in the preamble hereof.
"Disclosures" shall have the meaning set forth in SECTION 6.11.
"Dollar" or "$" shall mean the basic unit of the lawful currency of the
United States of America.
"Exchange Act" shall mean the Securities Exchange Act of 1934, and any
similar or successor Federal statute, and the rules and regulations promulgated
thereunder, all as amended, and as the same may be in effect from time to time.
"HSR Act" shall mean the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of
1976, as amended.
"Investor" shall have the meaning set forth in the preamble hereof.
"Liens" shall mean any lien, claim, security interest, charge,
encumbrance or title retention agreement of any nature.
"Material Adverse Effect on the Company" shall mean a material adverse
effect on the financial condition, operations or business of the Company and its
subsidiaries, taken as a whole, or the ability of the Company to enter into and
consummate the transactions contemplated by this Agreement in accordance with
its terms.
"Person" shall mean any general or limited partnership, corporation,
joint venture, trust, business trust, governmental agency, cooperative,
association, individual or other entity, and heirs, executors, administrators,
legal representatives, successors and assigns of such person.
"Purchase Price" shall have the meaning set forth in Section 2.01.
"Purchased Shares" shall have the meaning set forth in SECTION 2.01.
"SEC" shall mean the Securities and Exchange Commission or its
successors.
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"Securities Act" shall mean the Securities Act of 1933, and any similar
or successor Federal statute, and the rules and regulations promulgated
thereunder, all as amended, and as the same may be in effect from time to time.
When a reference is made in this Agreement to a SECTION, such reference
shall be to a SECTION of this Agreement unless otherwise indicated. Whenever the
words "include," "includes" or "including" are used in this Agreement, they
shall be deemed to be followed by the words "without limitation." The use of a
gender herein shall be deemed to include the neuter, masculine and feminine
genders whenever necessary or appropriate. Whenever the word "herein" or
"hereof" is used in this Agreement, it shall be deemed to refer to this
Agreement and not to a particular SECTION of this Agreement unless expressly
stated otherwise.
ARTICLE 2
PURCHASE OF STOCK; CLOSING
2.1 Purchase of Stock. The Investor hereby subscribes for and agrees to
purchase from the Company, and the Company hereby accepts the Investor's
subscription for and agrees to sell to the Investor, 3,888,888 shares of Class A
Common Stock (the "Purchased Shares") for a purchase price (in Dollars) per
share equal to the average of the mean of the high and low sales prices of the
Class A Common Stock on the NASDAQ National Market on each of the 13 trading
days immediately preceding the public announcement of the transactions described
herein. HTL hereby irrevocably and unconditionally agrees to cause the Investor
to perform its obligations (including causing or enabling it to make the payment
of the Purchase Price) hereunder. The aggregate purchase price for all Purchased
Shares is hereinafter referred to as the "Purchase Price."
2.2 Closing.
(a) Closing Date. Consummation of the transactions contemplated
hereby (the "Closing") shall take place, subject to the satisfaction (or express
written waiver) of all conditions to the Closing under Article 5 hereof, on the
fifth (5th) Business Day after the day on which all applicable waiting periods
under the HSR Act shall have expired or been terminated without objection by the
Federal Trade Commission. The date on which the Closing takes place shall be
referred to herein as the "Closing Date."
(b) Location. The Closing shall take place at 11:00 A.M. on the
Closing Date, at the offices of the Company located at ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or at such other place as the parties hereto shall
agree. At the Closing the Company shall, upon receipt of the Purchase Price by
wire transfer of immediately available funds to the account specified therefor
by the Company, promptly deliver to the Investor duly executed and issued stock
certificates evidencing the Purchased Shares.
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ARTICLE 3
COVENANTS AND AGREEMENTS
3.1 Covenants of the Company. From and after the execution and delivery
of this Agreement to and including the Closing Date, the Company shall use its
best efforts to cause the transactions contemplated by this Agreement to be
consummated in accordance with the terms hereof.
3.2 Covenants of the Investor. From and after the execution and delivery
of this Agreement to and including the Closing Date, the Investor shall use its
best efforts to cause the transactions contemplated by this Agreement to be
consummated in accordance with the terms hereof.
3.3 HSR Act. It is understood that the consummation of this transaction
is subject to the filing with the Federal Trade Commission and the Antitrust
Division of the Department of Justice of all reports and notifications which are
required under the HSR Act and the expiration or termination of certain
applicable waiting periods under the HSR Act without objection by such
authorities. Within twenty-one (21) Business Days of the date of execution
hereof, HTL, the Investor and the Company shall file, or cause to be filed, with
the Federal Trade Commission and the Antitrust Division of the Department of
Justice any and all such reports or notifications and any other filings required
under any other Federal law or administrative regulations in connection with the
purchase of the Purchased Shares under this Agreement.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
4.1 Representations and Warranties of the Company. The Company
represents and warrants to the Investor, which representations and warranties
shall survive the execution and delivery of this Agreement and the consummation
of the transactions herein contemplated, as follows:
(a) Due Organization. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of Washington.
(b) Power and Authority; No Violation. The Company has full power
and authority to execute, deliver and perform its obligations under this
Agreement and to consummate the transactions contemplated hereby. This Agreement
and all transactions contemplated hereby have been duly and validly authorized
by all necessary action on the part of the Company and this Agreement
constitutes a legal, valid and binding obligation of the
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Company enforceable in accordance with its terms except as such enforceability
may be limited by bankruptcy, insolvency, moratorium or other similar laws
affecting or relating to enforcement of creditors' rights generally. Neither the
execution, delivery or performance of this Agreement nor the consummation of the
transactions contemplated hereby by the Company will, with or without the giving
of notice or the passage of time, or both, (i) conflict with, result in a
default or loss of rights (or give rise to any right of termination,
cancellation or acceleration) under, or result in the creation of any Lien,
pursuant to (A) any provision of the certificate of incorporation, by-laws,
stockholders agreements or other constituent documents of the Company; (B) any
material note, bond, indenture, mortgage, deed of trust, contract, agreement,
lease or other instrument or obligation to which the Company is a party or by
which the Company or its property may be bound or affected; or (C) any law,
order, judgment, ordinance, rule, regulation or decree to which the Company is a
party or by which it or its property is bound or affected; or (ii) give rise to
any right of first refusal or similar right with respect to any interest, or any
properties or assets, of the Company. Except for the filings under the HSR Act
and the expiration or termination of certain applicable waiting periods under
the HSR Act, no permit, consent, approval, authorization, qualification or
registration of, or declaration to or filing with any governmental or regulatory
authority or agency or third party is required to be obtained or made by the
Company in connection with the execution and delivery of this Agreement or the
consummation of the transactions contemplated hereby or thereby in order to (A)
render this Agreement or the transactions contemplated hereby or thereby valid
and effective and (B) enable the Company to sell the Purchased Shares.
(c) Legal Matters. Except as set forth on EXHIBIT 4.01(c) annexed
hereto, there is no claim, legal action, counterclaim, suit, arbitration,
governmental investigation or other legal, administrative or tax proceeding, nor
any order, decree or judgment, in progress or pending, or to the knowledge of
the Company threatened, against or relating to the right of the Company to
perform its obligations under this Agreement, nor does the Company know or have
reason to be aware of any basis for the same. There is outstanding no order,
writ, injunction, judgment or decree of any court, governmental agency or
arbitration tribunal which would individually or in the aggregate impair in any
material respect the performance of the obligations of the Company hereunder or
the consummation of the transactions contemplated by this Agreement other than
orders or decrees involving the wireless telephone industry in general.
(d) Truth and Correctness. No representation or warranty by the
Company in this Agreement contains or will contain any untrue statement of a
material fact or omits or will omit to state a material fact necessary to make
the statements contained herein or therein, in light of the circumstances under
which such statements are made, not misleading.
(e) Purchased Shares. The Purchased Shares (i) have been duly
authorized by all necessary corporate action on the part of the Company, (ii)
shall be (when issued in accordance with the terms of this Agreement) validly
issued and outstanding, fully paid and nonassessable, and (iii) shall not be
subject to any preemptive rights of the holders of any other class or series of
the capital stock of the Company. Upon the issuance of the Purchased Shares to
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the Investor at the Closing, the Purchased Shares shall be free and clear of all
Liens, with the exception of any restrictions on transferability under the
Securities Act or any securities laws of any jurisdiction.
(f) Investment Company Act. The Company is not an "investment
company" within the meaning of the Investment Company Act of 1940, as amended.
(g) No Brokers. Except for ▇▇▇▇▇▇▇, Sachs & Co., no agent, broker,
investment banker, Person or firm is or will be entitled to any broker's or
finder's fee or any other commission or similar fee directly or indirectly in
connection with the transactions contemplated by this Agreement based in any way
on any arrangements, agreements or understandings made by or on behalf of the
Company or an Affiliate thereof, and the Company hereby agrees to indemnify the
Investor and agrees to hold harmless the Investor against and in respect of any
claims (including those of ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.) for brokerage and other
commissions relating to such transactions based in any way on any arrangements,
agreements or understandings made by or on behalf of the Company or an Affiliate
thereof.
(h) Reports and Financial Statements. The Company has filed all
reports required to be filed with the SEC since June 30, 1996 (collectively,
including all exhibits thereto, the "SEC Reports"). None of such SEC Reports, as
of their respective dates (as amended through October 14, 1997), contained any
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading. Each of the
financial statements (including the related notes) included in the SEC Reports
presents fairly, in all material respects, the consolidated financial position
and consolidated results of operations and cash flows of the Company and its
subsidiaries as of the respective dates or for the respective periods set forth
therein, all in conformity with generally accepted accounting principles
consistently applied during the periods involved, subject, in the case of the
unaudited interim financial statements, to normal year-end adjustments and any
other adjustments described therein. All such SEC Reports, as of their
respective dates (as amended through October 14, 1997), complied in all material
respects with the requirements of the Exchange Act.
(i) No Material Adverse Effect on the Company. During the period
since June 30, 1997, there has not been any change or event which would have a
Material Adverse Effect on the Company.
4.2 Representations and Warranties of the Investor. Each of HTL and the
Investor, jointly and severally, represents and warrants to the Company, which
representations and warranties shall survive the execution and delivery of this
Agreement and the consummation of the transactions herein contemplated, as
follows:
(a) Due Organization. HTL is a corporation duly organized, validly
existing and in good standing under the laws of Hong Kong. The Investor is a
corporation duly
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organized, validly existing and in good standing under the laws of the British
Virgin Islands.
(b) Power and Authority; No Violation. Each of HTL and the Investor
has full power and authority to execute, deliver and perform its obligations
under this Agreement and to consummate the transactions contemplated hereby.
This Agreement and all transactions contemplated hereby have been duly and
validly authorized by all necessary action on the part of HTL and the Investor
and this Agreement constitutes a legal, valid and binding obligation of HTL and
the Investor enforceable in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, moratorium or other
similar laws affecting or relating to enforcement of creditors' rights
generally. Neither the execution, delivery or performance of this Agreement nor
the consummation of the transactions contemplated hereby by HTL or the Investor
will, with or without the giving of notice or the passage of time, or both, (i)
conflict with, result in a default or loss of rights (or give rise to any right
of termination, cancellation or acceleration) under, or result in the creation
of any Lien, pursuant to (A) any provision of the memorandum and articles of
association, certificate of incorporation, by-laws, stockholders agreements or
other constituent documents of HTL or the Investor; (B) any material note, bond,
indenture, mortgage, deed of trust, contract, agreement, lease or other
instrument or obligation to which HTL or the Investor is a party or by which it
or its property may be bound or affected; or (C) any law, order, judgment,
ordinance, rule, regulation or decree to which HTL or the Investor is a party or
by which it or its property is bound or affected; or (ii) give rise to any right
of first refusal or similar right with respect to any interest, or any
properties or assets, of HTL or the Investor. Except for the filings under the
HSR Act and the expiration or termination of certain applicable waiting periods
under the HSR Act, no permit, consent, approval, authorization, qualification or
registration of, or declaration to or filing with any governmental or regulatory
authority or agency or third party is required to be obtained or made by HTL or
the Investor in connection with the execution and delivery of this Agreement or
the consummation of the transactions contemplated hereby in order to (A) render
this Agreement or the transactions contemplated hereby valid and effective and
(B) enable the Investor to purchase the Purchased Shares.
(c) Legal Matters. There is no claim, legal action, counterclaim,
suit, arbitration, governmental investigation or other legal, administrative or
tax proceeding, nor any order, decree or judgment, in progress or pending, or to
the knowledge of HTL or the Investor threatened, against or relating to HTL's or
the Investor's right to perform its obligations under this Agreement, nor does
HTL or the Investor know or have reason to be aware of any basis for the same.
There is outstanding no order, writ, injunction, judgment or decree of any
court, governmental agency or arbitration tribunal which would individually or
in the aggregate impair in any material respect the performance of HTL's or the
Investor's obligations hereunder or the consummation of the transactions
contemplated by this Agreement other than orders or decrees involving the
wireless telephone industry in general.
(d) Securities Representation. Each of HTL and the Investor
acknowledges that: (i) it is not a United States person (as defined in
Regulation S under the Securities Act) and,
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in determining to make its purchase hereunder, has made its buying decision
outside the United States; (ii) it is an accredited investor (as defined in Rule
501 under the Securities Act); (iii) it has such knowledge and experience in
financial and business matters that it is capable of evaluating the merits and
risks of investing in the Company as contemplated hereby or, alternatively, that
it has engaged the services of a representative who has such knowledge and
experience in financial and business matters as to be capable of evaluating the
merits and risks of the proposed investment and who has reviewed the proposed
investment on its behalf; (iv) the Purchased Shares being delivered by the
Company to the Investor have not been registered under the Securities Act or
under the securities laws of any state in reliance upon Federal and state
exemptions for offshore transactions or transactions not involving a public
offering and are not being acquired with a view to the distribution thereof
except pursuant to a registration statement in compliance with Federal and state
securities laws or an exemption therefrom; (v) the Purchased Shares must be held
by the Investor indefinitely unless subsequently so registered or if an
exemption from such registration is available; and (vi) it has received
information concerning the Company and has had the opportunity to obtain
additional information as desired in order to evaluate the merits and risks
inherent in holding the Purchased Shares. The Investor agrees that the share
certificate(s) which the Investor receives from the Company shall be legended
with the following legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND NO
TRANSFER OR OTHER DISTRIBUTION THEREOF CAN BE MADE IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT FOR THE SHARES UNDER THE ACT, OR AN
OPINION OF COUNSEL PRESENTED AND SATISFACTORY TO THE COMPANY AND ITS
COUNSEL PRIOR TO THE PROPOSED TRANSACTION THAT REGISTRATION IS NOT
REQUIRED UNDER THE ACT OR ANY APPLICABLE STATE SECURITIES LAWS."
(e) Investment Company Act. Neither HTL nor the Investor is an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
(f) Truth and Correctness. No representation or warranty by HTL or
the Investor in this Agreement contains or will contain any untrue statement of
a material fact or omits or will omit to state a material fact necessary to make
the statements contained herein or therein, in light of the circumstances under
which such statements are made, not misleading.
(g) No Brokers. Except for ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇, no agent,
broker, investment banker, Person or firm is or will be entitled to any broker's
or finder's fee or any other commission or similar fee directly or indirectly in
connection with the transactions contemplated by this Agreement based in any way
on any arrangements, agreements or understandings made by or on behalf of either
HTL or the Investor or an Affiliate thereof, and each of HTL and the Investor
hereby agrees to indemnify the Company and agrees to hold harmless the Company
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against and in respect of any claims (including those of ▇▇▇▇▇▇▇▇▇, Lufkin &
▇▇▇▇▇▇▇▇) for brokerage and other commissions relating to such transactions
based in any way on any arrangements, agreements or understandings made by or on
behalf of either HTL or the Investor or an Affiliate of HTL or the Investor.
(h) No Interest in FCC Licenses. Neither HTL nor any of its
subsidiaries has any license to provide or is providing, or owns, directly or
indirectly, any interest in any entity which has a license to provide or which
is providing, commercial mobile radio services in the United States.
ARTICLE 5
CONDITIONS TO OBLIGATIONS
5.1 Conditions to the Obligation of the Company. The obligation of the
Company to perform, fulfill or carry out its agreements, undertakings and
obligations herein made or expressed to be performed, fulfilled or carried out
on the Closing Date is and shall be subject to fulfillment of or compliance
with, on or prior to the Closing Date, the following conditions precedent, any
of which may be waived by the Company in its sole discretion, in whole or in
part:
(a) Representations and Warranties True. Each of HTL's and the
Investor's representations and warranties contained in this Agreement shall be
deemed to have been made again at and as of the time of the Closing Date and
shall then be true in all material respects. Each of HTL and the Investor shall
have performed and complied in all material respects with all agreements and
covenants required by this Agreement to be performed or complied with by it
prior to or at the Closing Date. The Company shall have been furnished with a
certificate of each of HTL and the Investor signed by one of its senior
executive officers, dated the Closing Date, certifying to the fulfillment of the
foregoing conditions by it and to the truth and correctness in all material
respects, except for changes contemplated by this Agreement, as of the Closing
Date, of the representations and warranties made by it contained herein and the
satisfaction on the part of HTL and the Investor of all conditions to the
obligations of the Company under this Section 5.01.
(b) HSR Act. The waiting periods, if applicable, of the HSR Act
shall have expired or been terminated.
(c) Purchase Price. The Investor shall have delivered the Purchase
Price to the Company as required hereunder.
(d) Resolutions. The Company shall have been furnished with
certified copies of the resolutions duly adopted by the boards of directors of
HTL and the Investor authorizing the execution, delivery and performance of this
Agreement.
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(e) No New Statutes. No statute, rule or regulation shall have been
enacted by any state or Federal government or governmental agency in the United
States or Hong Kong which would render the consummation of this Agreement
unlawful.
5.2 Conditions to the Obligation of the Investor. The obligation of each
of HTL and the Investor to perform, fulfill or carry out its agreements,
undertakings and obligations herein made or expressed to be performed, fulfilled
or carried out on the Closing Date is and shall be subject to fulfillment of or
compliance with, on or prior to the Closing Date, the following conditions
precedent, any of which may be waived by HTL or the Investor, in its sole
discretion, in whole or in part:
(a) Representations and Warranties True. Each of the Company's
representations and warranties contained in this Agreement shall be deemed to
have been made again at and as of the time of the Closing Date and shall then be
true in all material respects. The Company shall have performed and complied in
all material respects, with all agreements and covenants required by this
Agreement to be performed or complied with by it prior to or at the Closing
Date. HTL and the Investor shall have been furnished with a certificate of the
Company signed by one of its senior executive officers, dated the Closing Date,
certifying to the fulfillment of the foregoing conditions by it and to the truth
and correctness in all material respects, except for changes contemplated by
this Agreement, as of the Closing Date, of the representations and warranties of
made by it contained herein and the satisfaction on the part of the Company of
all conditions to the obligations of the Investor under this Section 5.02.
(b) HSR Act. The waiting periods, if applicable, of the HSR Act
shall have expired or been terminated.
(c) Stock Certificates. The Company shall have delivered to the
Investor duly executed and issued stock certificates representing the Purchased
Shares.
(d) Resolutions. The Company shall have delivered to HTL and the
Investor a certified copy of the resolution or resolutions duly adopted by its
board of directors authorizing the execution, delivery and performance of this
Agreement.
(e) No New Statutes. No statute, rule or regulation shall have been
enacted by any state or Federal government or governmental agency in the United
States or Hong Kong which would render the consummation of this Agreement
unlawful.
ARTICLE 6
MISCELLANEOUS
6.1 Expenses. Each party shall bear its own expenses incident to the
negotiation,
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preparation, authorization and consummation of this Agreement and the
transactions contemplated hereby, including all fees and expenses of its counsel
and accountants, whether or not such transactions are consummated.
6.2 Equitable Remedies. The parties hereto agree that irreparable damage
would occur in the event that any of the provisions of this Agreement were not
performed in accordance with the specific terms of the provisions or were
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions hereof in any court of the United
States or any state having jurisdiction, this being in addition to any other
remedy to which they are entitled at law or in equity. Each party agrees that it
will not assert, as a defense against a claim for specific performance, that the
party seeking specific performance has an adequate remedy at law.
6.3 Notices. All notices, claims and other communications hereunder
shall be in writing and shall be made by hand delivery, registered or certified
mail (postage prepaid, return receipt requested), facsimile, or overnight air
courier guaranteeing next day delivery
(a) if to the Company, to it at:
Western Wireless Corporation
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
with a copy (which shall not constitute notice) to:
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Constant & ▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
(b) if to HTL, to it at :
▇▇▇▇▇▇▇▇▇ Telecommunications Limited
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇▇-▇▇▇▇
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with a copy (which shall not constitute notice) to:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, LLP
Suite 3907
Asia Pacific Finance ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Facsimile No.: ▇▇▇-▇▇▇▇-▇▇▇▇
(c) if to the Investor, to it at :
▇▇▇▇▇▇▇▇▇ Telecommunications Holdings (USA) Limited
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇
Facsimile No.: 852-2128-1778
with copies (which shall not constitute notice) to:
▇▇▇▇▇▇▇▇▇ Telecommunications Limited
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇
Facsimile No.: 852-2128-1778
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, LLP
Suite 3907
Asia Pacific Finance ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Facsimile No.: ▇▇▇-▇▇▇▇-▇▇▇▇
or at such other address as any party may from time to time furnish to the other
parties by a notice given in accordance with the provisions of this SECTION
6.03. All such notices and communications shall be deemed to have been duly
given at the time delivered by hand, if personally delivered; five (5) Business
Days after being deposited in the mail, first class postage prepaid, return
receipt requested, if mailed; when receipt is confirmed, if sent by facsimile;
and the next Business Day after timely delivery to the courier, if sent by an
overnight air courier service guaranteeing next day delivery.
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6.4 Entire Agreement. This Agreement, together with the Exhibits annexed
hereto, contains the entire understanding among the parties hereto concerning
the subject matter hereof and this Agreement may not be changed, modified,
altered or terminated except by an agreement in writing executed by the parties
hereto. Any waiver by any party of any of its rights under this Agreement or of
any breach of this Agreement shall not constitute a waiver of any other rights
or of any other or future breach.
6.5 Remedies Cumulative. Except as otherwise provided herein, each and
all of the rights and remedies in this Agreement provided, and each and all of
the rights and remedies allowed at law and in equity in like case, shall be
cumulative, and the exercise of one right or remedy shall not be exclusive of
the right to exercise or resort to any and all other rights or remedies provided
in this Agreement or at law or in equity.
6.6 Governing Law. This Agreement shall be construed in accordance with
and subject to the laws and decisions of the State of New York applicable to
contracts made and to be performed entirely therein.
6.7 Counterparts. This Agreement may be executed in several counterparts
hereof, and by the different parties hereto on separate counterparts hereof,
each of which shall be an original; but such counterparts shall together
constitute one and the same instrument.
6.8 Waivers. No provision in this Agreement shall be deemed waived
except by an instrument in writing signed by the party waiving such provision.
6.9 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and to their respective successors
and assigns; provided, however, that except as otherwise expressly set forth in
this Agreement neither the rights nor the obligations of either party may be
assigned or delegated without the prior written consent of the other parties.
6.10 Further Assurances. The Investor shall, at the request of the
Company, and the Company shall, at the request of the Investor, from time to
time, execute and deliver such other assignments, transfers, conveyances and
other instruments and documents and do and perform such other acts and things as
may be reasonably necessary or desirable for effecting complete consummation of
this Agreement and the transactions herein contemplated.
6.11 Disclosures.
(a) Confidentiality. Each of the Investor and the Company
acknowledges and confirms in connection with the negotiation of this Agreement
and the execution hereof, during the period from the date hereof through the
Closing Date, the parties hereto will have furnished to one another certain
materials, information, data and other documentation ("Disclosures")
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concerning their business, financial condition and operations which are
proprietary and confidential. Each party acknowledges the party disclosing such
Disclosures considers them secret and confidential and asserts a proprietary
interest therein. Accordingly, each of HTL and the Investor, on the one hand,
and the Company, on the other hand, covenants and agrees that it shall maintain
all Disclosures made by the other party in strict confidence and shall not use
such Disclosures for its own benefit or disclose them to third parties, except
to its agents, representatives, bankers, investment bankers, counsel and
employees involved in evaluating the transactions contemplated by this
Agreement, its partners (and the partners or other security holders thereof) or
as otherwise required by law (including the requirement of the Company to
disclose such terms under the Securities Act, the Exchange Act or under the
rules of any securities exchange on which the securities of the Company are
registered; and including the requirement of the Investor to disclose such terms
under the securities laws of the United States or Hong Kong, as applicable, or
under the rules of the Hong Kong Stock Exchange or NASDAQ).
(b) Public Announcements. No public announcement by any party hereto
with regard to the transactions contemplated hereby or the material terms hereof
shall be issued by any party without the mutual prior consent of the other
parties, except that in the event the parties are unable to agree on a press
release and legal counsel for one party is of the opinion that such press
release is required by law and such party furnishes the other party a written
opinion of outside legal counsel, or other counsel reasonably acceptable to the
party being furnished such opinion, to that effect, then such party may issue
the legally required press release.
(c) Non-Confidential Information. This Agreement shall not restrict
any party hereto from using information already known to it, to which it is
entitled under existing agreements, or information generally in the public
domain or any information coming into its possession after it becomes public
knowledge unless it became public knowledge through a breach of this Agreement.
6.12 Termination.
(a) Events Triggering Termination. This Agreement may be terminated
and the transactions contemplated hereby may be abandoned, without further
obligation of the Company, HTL or the Investor, at any time prior to the Closing
Date as follows:
(i) by mutual written consent duly authorized by the boards of
directors of the Company, HTL and the Investor; or
(ii) by the Company, HTL or the Investor if the Closing Date
shall not have occurred on or before December 31, 1997 or such later date, if
any, as the Company, HTL and the Investor shall agree in writing; provided that
the party exercising such right is not in default of its obligations under this
Agreement in a manner which results in the failure to satisfy the conditions to
the transactions contemplated hereby of the other parties; or
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(iii) by the Company, HTL or the Investor if the consummation of
the transactions contemplated hereby shall be prohibited by a final,
non-appealable order, decree or injunction of a court of competent jurisdiction.
(b) No Further Obligation. In the event of a termination of this
Agreement, no party hereto shall have any liability or further obligation to any
other party to this Agreement except that nothing herein will relieve any party
from liability for any breach of this Agreement.
6.13 Jurisdiction; Consent to Service of Process. The Investor hereby
irrevocably appoints United Corporate Services, Inc., at its office at ▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America, and the Company
hereby irrevocably appoints United Corporate Services, Inc., at its office at ▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America, its lawful
agent and attorney to accept and acknowledge service of any and all process
against it in any action, suit or proceeding arising in connection with this
Agreement, and upon whom such process may be served, with the same effect as if
such party were a resident of the State of New York and had been lawfully served
with such process in such jurisdiction, and waives all claim of error by reason
of such service, provided, however that in the case of any service upon such
agent and attorney, the party effecting such service shall also deliver a copy
thereof to the other party at the address and in the manner specified in SECTION
6.03. In the event that such agent and attorney resigns or otherwise becomes
incapable of acting as such, such party will appoint a successor agent and
attorney in New York, reasonably satisfactory to the other party, with like
powers. Each party hereby irrevocably submits to the exclusive jurisdiction of
the United States District Court for the Southern District of New York and any
court of the State of New York located in the City of New York in any such
action, suit or proceeding, and agrees that any such action, suit or proceeding
shall be brought only in such court (and waives any objection based on forum non
conveniens or any other objection to venue therein), provided, however, that
such consent to jurisdiction is solely for the purpose referred to in this
SECTION 6.13 and shall not be deemed to be a general submission to the
jurisdiction of said courts or the State of New York other than for such
purpose.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the date first above written.
WESTERN WIRELESS CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Chairman and Chief Executive
Officer
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▇▇▇▇▇▇▇▇▇ TELECOMMUNICATIONS LIMITED
By: /s/ CANNING FOK
-------------------------------------
DIRECTOR
▇▇▇▇▇▇▇▇▇ TELECOMMUNICATIONS
HOLDINGS (USA) LIMITED:
By: /s/ KHOO CHEK NGEE
-------------------------------------
DIRECTOR
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