EXHIBIT 4
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") is entered
into as of May 23, 1997, by and between PRICE COMMUNICATIONS
CORPORATION, a New York corporation ("Acquiror"), and XXXXXX
COMMUNICATIONS INCORPORATED, a Delaware corporation ("PCI").
WHEREAS, PCI is the record and beneficial owner of all
of the issued and outstanding shares of Class B Common Stock, par
value $.01 per share, of Xxxxxx Wireless, Inc., a Delaware
corporation (the "Company");
WHEREAS, Acquiror, Price Communications Cellular Merger
Corp., a Delaware corporation and a wholly-owned subsidiary of
Acquiror ("Merger Sub"), and the Company have entered into an
Agreement and Plan of Merger (the "Merger Agreement") dated as of
the date hereof, which provides, among other things, for the
merger (the "Merger") of Merger Sub with and into the Company,
with the result that the surviving corporation will become a
wholly-owned subsidiary of Acquiror; and
WHEREAS, to induce Acquiror to enter into the Merger
Agreement and to effect the Merger, PCI has agreed to enter into
this Agreement.
NOW, THEREFORE, in consideration of the premises and
for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
Section 1. Disposition of Shares
PCI agrees that it will not sell, transfer, pledge, assign
or otherwise encumber or dispose of, or enter into any contract,
option or other agreement with respect to, the sale, transfer,
pledge, assignment or other encumbrance or disposition of, any
shares of common stock of the Company now owned or hereafter
acquired beneficially or of record by PCI, including, without
limitation, dispositions through dividends or liquidating or
other distributions of such common stock to stockholders of PCI,
except for the conversion of any such shares in accordance with
the terms of the Merger. PCI agrees that it will not convert any
shares of Class B Common Stock of the Company into shares of
Class A Common Stock of the Company.
Section 2. Voting
PCI agrees to vote all of the shares of common stock of the
Company now owned or hereafter acquired beneficially or of record
by PCI (a) in favor of the Merger and the adoption of the Merger
Agreement and the transactions contemplated thereby (including
any amendments or modifications of the terms thereof approved by
the board of directors of the Company and by Acquiror) in
connection with any meeting of, or solicitation of consents from,
the stockholders of the Company at which or in connection with
which the Merger and the Merger Agreement are submitted for the
consideration and vote of the stockholders of the Company; (b)
against approval or adoption of any extraordinary corporate
transaction (other than the Merger, the Merger Agreement or the
transactions contemplated thereby) including, without limitation,
any transaction involving: (i) the sale or transfer of all or
substantially all of the common stock of the Company, whether by
merger, consolidation or other business combination; (ii) a sale
or transfer of all or substantially all of the assets of the
Company and its subsidiaries, (iii) a reorganization,
recapitalization or liquidation of the Company and its
subsidiaries, or (iv) any charter or bylaw amendment creating any
new class of securities of the Company or otherwise affecting the
rights of any class of security as currently in effect; (c)
against approval or adoption of resolutions which would have the
effect of preventing, materially delaying or otherwise materially
frustrating consummation of the Merger or otherwise preventing or
materially delaying the Company from performing its obligations
under the Merger Agreement; and (d) against any action which
would constitute a material breach of any provision of the Merger
Agreement. To the extent inconsistent with the foregoing
provisions of this Section 2, PCI hereby revokes any and all
previous proxies with respect to the shares of common stock of
the Company owned beneficially or of record by PCI. PCI hereby
waives any rights of appraisal or rights to dissent from the
Merger that it may have.
Section 3. Grant of Option
(a) PCI hereby irrevocably grants to Acquiror an
option (the "Option") to purchase all (but not less than all) of
the common stock now owned or hereafter acquired beneficially or
of record by PCI (the "Option Shares") at a cash exercise price
of Seventeen Dollars and Fifty Cents ($17.50) per share (the
"Exercise Price"), as adjusted upon the declaration of any stock
splits, dividends, recapitalizations or other distributions or
changes affecting the Option Shares.
(b) During the period prior to the termination of this
Agreement, as long as neither Acquiror nor Merger Sub is in
material breach of any agreements or covenants contained in the
Merger Agreement or this Agreement, the Option may be exercised
by Acquiror, in whole (but not in part), at any time upon written
notice to PCI but only upon the occurrence of (and during the
three (3) month period following) the breach by PCI of its
obligations under Section 2 of this Agreement.
Section 4. Representations and Warranties of PCI
PCI represents and warrants to Acquiror as follows:
(a) PCI has the necessary corporate power and
authority to enter into this Agreement, to perform its
obligations hereunder and to consummate the transactions
contemplated hereby. The execution and delivery of this
Agreement by PCI and the consummation by PCI of the transactions
contemplated hereby have been duly and validly authorized by all
necessary corporate action and no other corporate proceedings on
the part of PCI are necessary to authorize this Agreement or to
consummate the transactions contemplated hereby. This Agreement
has been duly executed and delivered by PCI and, assuming the due
authorization, execution and delivery by Acquiror, constitutes a
legal, valid and binding obligation of PCI, enforceable in
accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium and
other similar laws of general applicability relating to or
affecting creditors' rights generally and by the application of
general principles of equity.
(b) The execution and delivery of this Agreement and
the consummation of the transactions herein contemplated will not
conflict with or violate any law, regulation, court order,
judgment or decree applicable to PCI or by which the property of
PCI is bound or affected, or conflict with or result in any
breach of or constitute a default under any contract or agreement
to which PCI is a party or by which PCI or its properties are
bound or affected, which conflict, violation, breach or default
would adversely affect PCI's ability to perform its obligations
under this Agreement.
(c) Seventeen million two hundred ninety-three
thousand five hundred seventy-eight (17,293,578) shares of Class
B Common Stock, par value $.01 per share, of the Company (the
"Shares") are the only shares of voting stock owned beneficially
or of record by PCI and PCI holds no options, warrants, or other
rights to acquire shares of any class of capital stock of the
Company. PCI has the sole power respecting voting and transfer
of the Shares. The Shares and the certificates representing such
Shares are now, and at all times during the term hereof will be,
owned beneficially and of record by PCI, free and clear of all
liens, claims, security interests, proxies, options, warrants or
other rights, voting trusts or agreements, understandings or
arrangements or any other encumbrances whatsoever, except for any
such encumbrances or proxies arising hereunder.
Section 5. Further Assurances
PCI shall execute and deliver such additional instruments
and other documents and shall take such further actions as may be
reasonably necessary to effectuate, carry out and comply with all
of its obligations under this Agreement. Without limiting the
generality of the foregoing, none of the parties hereto shall
enter into any agreement or arrangement (or alter, amend or
terminate any existing agreement or arrangement) or transaction
if such action would materially impair or materially interfere
with the ability of any party to effectuate, carry out and comply
with all of the terms of this Agreement.
Section 6. Specific Performance
PCI acknowledges and agrees that Acquiror would be
irreparably damaged in the event any of the provisions of this
Agreement were not performed by PCI in accordance with their
specific terms or were otherwise breached. It is accordingly
agreed that Acquiror shall be entitled to an injunction or
injunctions to prevent breaches of the provisions of this
Agreement and to enforce specifically the terms and provisions
hereof and thereof in any court of the United States or any state
hereof having jurisdiction, in addition to any other remedy to
which Acquiror may be entitled at law or equity. PCI hereby
waives any objection to the imposition of such relief or to the
posting of a bond in connection therewith.
Section 7. Governing Law
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE WITHOUT GIVING
EFFECT TO THE PRINCIPLE OF CONFLICTS OF LAW.
Section 8. Parties in Interest
This Agreement shall be binding upon PCI and its successors
and assigns. Subject to the preceding sentence hereof, this
Agreement shall be binding upon and inure solely to the benefit
of each party hereto, and nothing in this Agreement, express or
implied, is intended to or shall confer upon any other person or
persons any rights, benefits or remedies of any nature whatsoever
under or by reason of this Agreement.
Section 9. Amendment
This Agreement shall not be amended, altered or modified
except by an instrument in writing duly executed and delivered on
behalf of each of the parties hereto.
Section 10. Notices
All notices required to be given hereunder shall be deemed
given if mailed, first class, postage prepaid, to the respective
party at its address as set out in the following:
If to PCI:
Xxxxxx Communications Incorporated
0000 Xxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxxx, Xxxx 00000
Attention: Xxxxxx XxXxxxxx,
Tax Manager
Telecopy No.: (000) 000-0000
If to Acquiror:
Price Communications Corporation
00 Xxxxxxxxxxx Xxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxx
Telecopy No.: (000) 000-0000
With a copy (which shall not constitute notice) to:
Proskauer Xxxx Xxxxx & Xxxxxxxxxx LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
Telecopy No.: (000) 000-0000
Section 11. Entire Agreement; Assignment
This Agreement (a) constitutes the entire agreement between
the parties hereby pertaining to the subject matter hereof and
supersedes all prior agreements, understandings, negotiations and
discussions, whether oral or written, of the parties and (b)
shall not be assigned by operation of law or otherwise, except
that this Agreement shall be binding upon PCI and its successors
and assigns.
Section 12. Headings
Section headings are included solely for convenience and are
not considered to be part of this Agreement and are not intended
to be an accurate description of the contents thereof.
Section 13. Counterparts
This Agreement may be executed in one or more counterparts,
all of which shall be considered one and the same agreement, and
shall become effective when one or more counterparts have been
signed by each of the parties and delivered to the other parties,
it being understood that all parties need not sign the same
counterpart.
Section 14. Termination
This Agreement and the Option hereunder shall terminate on
the earlier to occur of (a) the date on which the Merger is
consummated or (b) the date on which the Merger Agreement is
terminated; provided, however, that the provisions of Sections 1
and 3 hereof shall survive the termination of this Agreement
under clause (b) for the three (3) month period specified in
Section 3(b) hereof if Acquiror shall have the right to exercise
the Option as of the date of such termination; provided, further,
however, that nothing herein shall relieve any party for any
breach of this Agreement if this Agreement is terminated pursuant
to clause (b) above.
IN WITNESS WHEREOF, the parties hereto have duly executed
and delivered this Voting Agreement, or have caused this Voting
Agreement to be duly executed and delivered on their behalf as of
the date first above written.
PRICE COMMUNICATIONS CORPORATION
By:/s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: Xxxxxxxxx
XXXXXX COMMUNICATIONS INCORPORATED
By:/s/ Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: President
