SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
WESTERN WIRELESS CORPORATION
(Name of Issuer)
CLASS A COMMON STOCK
(Title of Class of Securities)
95988E204
(CUSIP Number)
Leonard Q. Slap, Esq.
Edwards & Angell
101 Federal Street
Boston, MA 02110-1800
(617) 439-4444
(Name, address and telephone number of person authorized
to receive notices and communications)
OCTOBER 31, 1997
(Date of Event which requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b) (3) or (4), check the following box: ______
<PAGE>
CUSIP NO.
95988E204
1. Name of Reporting Person S.S. or I.R.S. Identification No. of Above Person
Media/Communications Partners II Limited Partnership
04-3119722
2. Check the Appropriate Box if a Member of a Group
(a) X
(b) _____
3. SEC Use Only
4. Source of Funds
AF,OO
5. Check Box if Disclosure of Legal Proceedings is Required Pursuant to Items
2(d) or 2(e)
6. Citizenship or place of Organization
Delaware
Number of 7 Sole Voting Power
Shares
Beneficially 2,893,041
Owned By 8 Shared Voting Power
Each
Reporting -0-
Person With 9 Sole Dispositive Power
2,893,041
10 Shared Dispositive Power
-0-
11. Aggregate Amount Beneficially Owned by Each Reporting Person
2,893,041
12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares X
13. Percent of Class Represented by Amount in Row (11)
15.2% as calculated in accordance with Rule 13d-3(d)(1); 4.0% based on
outstanding shares of Class A Common Stock and Class B Common Stock
14. Type of Reporting Person
PN
<PAGE>
CUSIP NO.
95988E204
1. Name of Reporting Person S.S. or I.R.S. Identification No. of Above Person
M/CP II Limited Partnership
04-3119726
2. Check the Appropriate Box if a Member of a Group (a) X
(b) _____
3. SEC Use Only
4. Source of Funds
AF,OO
5. Check Box if Disclosure of Legal Proceedings is Required Pursuant to Items
2(d) or 2(e)
6. Citizenship or Place of Organization
Delaware
Number of 7 Sole Voting Power
Shares
Beneficially 2,893,041
Owned By 8 Shared Voting Power
Each
Reporting -0-
Person With 9 Sole Dispositive Power
2,893,041
10 Shared Dispositive Power
-0-
11. Aggregate Amount Beneficially Owned by Each Reporting Person
2,893,041
12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares X
13. Percent of Class Represented by Amount in Row (11)
15.2% as calculated in accordance with Rule 13d-3(d)(1); 4.0% based on
outstanding shares of Class A Common Stock and Class B Common Stock
14. Type of Reporting Person
PN
<PAGE>
CUSIP NO.
95988E204
1. Name of Reporting Person S.S. or I.R.S. Identification No. of Above Person
M/C II General Partner-D, Inc.
04-3169188
2. Check the Appropriate Box if a Member of a Group (a) X
(b) _____
3. SEC Use Only
4. Source of Funds
AF,OO
5. Check Box if Disclosure of Legal Proceedings is Required Pursuant to Items
2(d) or 2(e)
6. Citizenship or Place of Organization
Delaware
Number of 7 Sole Voting Power
Shares
Beneficially -0-
Owned By 8 Shared Voting Power
Each
Reporting 2,893,041
Person With 9 Sole Dispositive Power
-0-
10 Shared Dispositive Power
2,893,041
11. Aggregate Amount Beneficially Owned by Each Reporting Person
2,893,041
12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares X
13. Percent of Class Represented by Amount in Row (11)
15.2% as calculated in accordance with Rule 13d-3(d)(1); 4.0% based on
outstanding shares of Class A Common Stock and Class B Common Stock
14. Type of Reporting Person
CO
<PAGE>
CUSIP NO.
95988E204
1. Name of Reporting Person, S.S. or I.R.S. Identification No. of Above Person
M/C II General Partner-R, Inc.
04-3169166
2. Check the Appropriate Box if a Member of a Group (a) X
(b) _____
3. SEC Use Only
4. Source of Funds
AF,OO
5. Check Box if Disclosure of Legal Proceedings is Required Pursuant to Items
2(d) or 2(e)
6. Citizenship or Place of Organization
Delaware
Number of 7 Sole Voting Power
Shares
Beneficially -0-
Owned By 8 Shared Voting Power
Each
Reporting 2,893,041
Person With 9 Sole Dispositive Power
-0-
10 Shared Dispositive Power
2,893,041
11. Aggregate Amount Beneficially Owned by Each Reporting Person
2,893,041
12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares X
13. Percent of Class Represented by Amount in Row (11)
15.2% as calculated in accordance with Rule 13d-3(d)(1); 4.0% based on
outstanding shares of Class A Common Stock and Class B Common Stock
14. Type of Reporting Person
CO
<PAGE>
CUSIP NO.
95988E204
1. Name of Reporting Person, S.S. or I.R.S. Identification No. of Above Person
M/C II General Partner-S, Inc.
04-3169167
2. Check the Appropriate Box if a Member of a Group (a) X
(b) _____
3. SEC Use Only
4. Source of Funds
AF,OO
5. Check Box if Disclosure of Legal Proceedings is Required Pursuant to Items
2(d) or 2(e)
6. Citizenship or Place of Organization
Delaware
Number of 7 Sole Voting Power
Shares
Beneficially -0-
Owned By 8 Shared Voting Power
Each
Reporting 2,893,041
Person With 9 Sole Dispositive Power
-0-
10 Shared Dispositive Power
2,893,041
11. Aggregate Amount Beneficially Owned by Each Reporting Person
2,893,041
12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares X
13. Percent of Class Represented by Amount in Row (11)
15.2% as calculated in accordance with Rule 13d-3(d)(1); 4.0% based on
outstanding shares of Class A Common Stock and Class B Common Stock
14. Type of Reporting Person
CO
<PAGE>
CUSIP NO.
95988E204
1. Name of Reporting Person, S.S. or I.R.S. Identification No. of Above Person
M/C II General Partner-J, Inc.
04-3169170
2. Check the Appropriate Box if a Member of a Group (a) X
(b) _____
3. SEC Use Only
4. Source of Funds
AF,OO
5. Check Box if Disclosure of Legal Proceedings is Required Pursuant to Items
2(d) or 2(e)
6. Citizenship or Place of Organization
Delaware
Number of 7 Sole Voting Power
Shares
Beneficially -0-
Owned By 8 Shared Voting Power
Each
Reporting 2,893,041
Person With 9 Sole Dispositive Power
-0-
10 Shared Dispositive Power
2,893,041
11. Aggregate Amount Beneficially Owned by Each Reporting Person
2,893,041
12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares X
13. Percent of Class Represented by Amount in Row (11)
15.2% as calculated in accordance with Rule 13d-3(d)(1); 4.0% based on
outstanding shares of Class A Common Stock and Class B Common Stock
14. Type of Reporting Person
CO
<PAGE>
CUSIP NO.
95988E204
1. Name of Reporting Person, S.S. or I.R.S. Identification No. of Above Person
M/C II General Partner-C, Inc.
04-3309242
2. Check the Appropriate Box if a Member of a Group (a) X
(b) _____
3. SEC Use Only
4. Source of Funds
AF,OO
5. Check Box if Disclosure of Legal Proceedings is Required Pursuant to Items
2(d) or 2(e)
6. Citizenship or Place of Organization
Delaware
Number of 7 Sole Voting Power
Shares
Beneficially -0-
Owned By 8 Shared Voting Power
Each
Reporting 2,893,041
Person With 9 Sole Dispositive Power
-0-
10 Shared Dispositive Power
2,893,041
11. Aggregate Amount Beneficially Owned by Each Reporting Person
2,893,041
12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares X
13. Percent of Class Represented by Amount in Row (11)
15.2% as calculated in accordance with Rule 13d-3(d)(1); 4.0% based on
outstanding shares of Class A Common Stock and Class B Common Stock
14. Type of Reporting Person
CO
<PAGE>
CUSIP NO.
95988E204
1. Name of Reporting Person, S.S. or I.R.S. Identification No. of Above Person
M/C II General Partner-H, Inc.
04-3169229
2. Check the Appropriate Box if a Member of a Group (a) X
(b) _____
3. SEC Use Only
4. Source of Funds
AF,OO
5. Check Box if Disclosure of Legal Proceedings is Required Pursuant to Items
2(d) or 2(e)
6. Citizenship or Place of Organization
Delaware
Number of 7 Sole Voting Power
Shares
Beneficially -0-
Owned By 8 Shared Voting Power
Each
Reporting 2,893,041
Person With 9 Sole Dispositive Power
-0-
10 Shared Dispositive Power
2,893,041
11. Aggregate Amount Beneficially Owned by Each Reporting Person
2,893,041
12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares X
13. Percent of Class Represented by Amount in Row (11)
15.2% as calculated in accordance with Rule 13d-3(d)(1); 4.0% based on
outstanding shares of Class A Common Stock and Class B Common Stock
14. Type of Reporting Person
CO
<PAGE>
CUSIP NO.
95988E204
1. Name of Reporting Person, S.S. or I.R.S. Identification No. of Above Person
David D. Croll
###-##-####
2. Check the Appropriate Box if a Member of a Group (a) X
(b) _____
3. SEC Use Only
4. Source of Funds
AF,OO
5. Check Box if Disclosure of Legal Proceedings is Required Pursuant to Items
2(d) or 2(e)
6. Citizenship or Place of Organization
USA
Number of 7 Sole Voting Power
Shares
Beneficially -0-
Owned By 8 Shared Voting Power
Each
Reporting 3,015,396
Person With 9 Sole Dispositive Power
-0-
10 Shared Dispositive Power
3,015,396
11. Aggregate Amount Beneficially Owned by Each Reporting Person
3,015,396
12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares
13. Percent of Class Represented by Amount in Row (11)
15.8% as calculated in accordance with Rule 13d-3(d)(1); 4.2% based on
outstanding shares of Class A Common Stock and Class B Common Stock
14. Type of Reporting Person
IN
<PAGE>
CUSIP NO.
95988E204
1. Name of Reporting Person, S.S. or I.R.S. Identification No. of Above Person
Richard H. Churchill, Jr.
###-##-####
2. Check the Appropriate Box if a Member of a Group (a) X
(b) _____
3. SEC Use Only
4. Source of Funds
AF,OO
5. Check Box if Disclosure of Legal Proceedings is Required Pursuant to Items
2(d) or 2(e)
6. Citizenship or Place of Organization
USA
Number of 7 Sole Voting Power
Shares
Beneficially -0-
Owned By 8 Shared Voting Power
Each
Reporting 3,015,396
Person With 9 Sole Dispositive Power
-0-
10 Shared Dispositive Power
3,015,396
11. Aggregate Amount Beneficially Owned by Each Reporting Person
3,015,396
12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares
13. Percent of Class Represented by Amount in Row (11)
15.8% as calculated in accordance with Rule 13d-3(d)(1); 4.2% based on
outstanding shares of Class A Common Stock and Class B Common Stock
14. Type of Reporting Person
IN
<PAGE>
CUSIP NO.
95988E204
1. Name of Reporting Person, S.S. or I.R.S. Identification No. of Above Person
Stephen F. Gormley
###-##-####
2. Check the Appropriate Box if a Member of a Group (a) X
(b) _____
3. SEC Use Only
4. Source of Funds
AF,OO
5. Check Box if Disclosure of Legal Proceedings is Required Pursuant to Items
2(d) or 2(e)
6. Citizenship or Place of Organization
USA
Number of 7 Sole Voting Power
Shares
Beneficially -0-
Owned By 8 Shared Voting Power
Each
Reporting 3,015,396
Person With 9 Sole Dispositive Power
-0-
10 Shared Dispositive Power
3,015,396
11. Aggregate Amount Beneficially Owned by Each Reporting Person
3,015,396
12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares
13. Percent of Class Represented by Amount in Row (11)
15.8% as calculated in accordance with Rule 13d-3(d)(1); 4.2% based on
outstanding shares of Class A Common Stock and Class B Common Stock
14. Type of Reporting Person
IN
<PAGE>
CUSIP NO.
95988E204
1. Name of Reporting Person, S.S. or I.R.S. Identification No. of Above Person
James F. Wade
###-##-####
2. Check the Appropriate Box if a Member of a Group (a) X
(b) _____
3. SEC Use Only
4. Source of Funds
AF,OO
5. Check Box if Disclosure of Legal Proceedings is Required Pursuant to Items
2(d) or 2(e)
6. Citizenship or Place of Organization
USA
Number of 7 Sole Voting Power
Shares
Beneficially -0-
Owned By 8 Shared Voting Power
Each
Reporting 3,015,396
Person With 9 Sole Dispositive Power
-0-
10 Shared Dispositive Power
3,015,396
11. Aggregate Amount Beneficially Owned by Each Reporting Person
3,015,396
12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares
13. Percent of Class Represented by Amount in Row (11)
15.8% as calculated in accordance with Rule 13d-3(d)(1); 4.2% based on
outstanding shares of Class A Common Stock and Class B Common Stock
14. Type of Reporting Person
IN
<PAGE>
CUSIP NO.
95988E204
1. Name of Reporting Person, S.S. or I.R.S. Identification No. of Above Person
Christopher S. Gaffney
###-##-####
2. Check the Appropriate Box if a Member of a Group (a) X
(b) _____
3. SEC Use Only
4. Source of Funds
AF,OO
5. Check Box if Disclosure of Legal Proceedings is Required Pursuant to Items
2(d) or 2(e)
6. Citizenship or Place of Organization
USA
Number of 7 Sole Voting Power
Shares
Beneficially -0-
Owned By 8 Shared Voting Power
Each
Reporting 2,893,041
Person With 9 Sole Dispositive Power
-0-
10 Shared Dispositive Power
2,893,041
11. Aggregate Amount Beneficially Owned by Each Reporting Person
2,893,041
12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares X
13. Percent of Class Represented by Amount in Row (11)
15.2% as calculated in accordance with Rule 13d-3(d)(1); 4.0% based on
outstanding shares of Class A Common Stock and Class B Common Stock
14. Type of Reporting Person
IN
<PAGE>
CUSIP NO.
95988E204
1. Name of Reporting Person, S.S. or I.R.S. Identification No. of Above Person
John G. Hayes
###-##-####
2. Check the Appropriate Box if a Member of a Group (a) X
(b) _____
3. SEC Use Only
4. Source of Funds
AF,OO
5. Check Box if Disclosure of Legal Proceedings is Required Pursuant to Items
2(d) or 2(e)
6. Citizenship or Place of Organization
USA
Number of 7 Sole Voting Power
Shares
Beneficially -0-
Owned By 8 Shared Voting Power
Each
Reporting 2,893,041
Person With 9 Sole Dispositive Power
-0-
10 Shared Dispositive Power
2,893,041
11. Aggregate Amount Beneficially Owned by Each Reporting Person
2,893,041
12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares X
13. Percent of Class Represented by Amount in Row (11)
15.2% as calculated in accordance with Rule 13d-3(d)(1); 4.0% based on
outstanding shares of Class A Common Stock and Class B Common Stock
14. Type of Reporting Person
IN
<PAGE>
ITEM 1. SECURITY AND ISSUER.
This Statement on Schedule 13D relates to the Class A Common Stock, no par value
per share (the "Class A Common Stock"), of Western Wireless Corporation, a
Washington corporation (the "Company").
The principal executive offices of the Company are located at 2001 NW Sammamish
Road, Issaquah, Washington 98027.
ITEM 2. IDENTITY AND BACKGROUND.
This Statement is being filed by Media/Communications Partners II Limited
Partnership ("M/C Partners II"), M/CP II Limited Partnership ("M/CP"), M/C II
General Partner-D, Inc. ("M/C-D"), M/C II General Partner-R, Inc. ("M/C-R"), M/C
II General Partner-S, Inc. ("M/C-S"), M/C II General Partner-J, Inc. ("M/C-J"),
M/C II General Partner-C, Inc. ("M/C-C"), M/C II General Partner-H, Inc.
("M/C-H"), David D. Croll ("Croll"), Richard H. Churchill, Jr. ("Churchill"),
Stephen F. Gormley ("Gormley"), James F. Wade ("Wade"), Christopher F. Gaffney
("Gaffney") and John G. Hayes ("Hayes") (collectively, the "Filing Persons")./1/
/1/ Neither the present filing nor anything contained herein shall be construed
as an admission that any Filing Person constitutes a "person" for any purpose
other than Section 13(d) of the Securities Exchange Act of 1934.
The principal business address of each of M/C Partners II, M/CP, M/C-D, M/C-R,
M/C-S, M/C-J, M/C-C and M/C-H is 75 State Street, Suite 2500, Boston, MA 02109.
M/C Partners II, a Delaware limited partnership, was formed for the purpose of
investing in equity and equity-related securities primarily acquired or issued
in venture capital investments and other private equity transactions in the
media and communications industry. M/CP, a Delaware limited partnership, was
formed to serve as the sole general partner of M/C Partners II. M/C-D, M/C-R,
M/C-S, M/C-J, M/C-C and M/C-H, each of which is a Massachusetts corporation,
were formed to serve as the six general partners of M/CP. Croll owns 100% of the
issued and outstanding capital stock of M/C-D; Churchill owns 100% of the issued
and outstanding capital stock of M/C-R; Gormley owns 100% of the issued and
outstanding capital stock of M/C-S; Wade owns 100% of the issued and outstanding
capital stock of M/C-J; Gaffney owns 100% of the issued and outstanding capital
stock of M/C-C and Hayes owns 100% of the issued and outstanding capital stock
of M/C-H.
Each of the Filing Persons that is a natural person, consisting of Croll,
Churchill, Gormley, Wade, Gaffney and Hayes, has a business address at c/o TAC
Partners, Inc., 75 State Street, Suite 2500, Boston, MA 02109, and each such
person is an employee of TAC Partners, Inc. TAC Partners, Inc. provides
administrative and accounting services for several venture capital funds with
whom such persons are affiliated, including but not limited to M/C Partners II.
Each of the Filing Persons that is a natural person is a citizen of the United
States.
During the last five years, none of the Filing Persons (i) has been convicted in
a criminal proceeding (excluding traffic violations or similar misdemeanors) or
(ii) has been a party to a civil proceeding of a judicial or administrative body
of competent jurisdiction and as a result of such proceeding was or is subject
to a judgment decree or final order enjoining future violations of, or
prohibiting or mandating activities subject to, federal or state securities
laws, or finding any violation with respect to such laws.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
The Company was formed in July 1994 as the result of a business combination (the
"Business Combination") of General Cellular Corp. and Pacific Northwest
Cellular. Between October 1992 and November 1994, M/C Partners II and
Media/Communications Investors Limited Partnership, a Massachusetts limited
partnership ("M/C Investors"), purchased the common stock of General Cellular
Corp. in a series of venture capital investment transactions. M/C Investors'
general partners consist of four Massachusetts corporations; the sole
stockholder of each such corporation is Croll, Churchill, Gormley and Wade,
respectively. The funds used by M/C Partners II and M/C Investors to purchase
the shares of General Cellular Corp. common stock described below were obtained
by each of them from capital contributions made by their respective partners:
Purchasing Entity Date Shares Purchase Price
M/C Partners II 10/22/92 669,798 $8,957,625
10/26/92 27,569 303,255
11/8/93 121,282 1,516,025
11/17/93 1,982 24,775
M/C Investors 10/22/92 25,302 $ 338,374
M/C Investors 10/26/92 1,041 11,455
M/C Investors 11/8/93 4,582 58,275
M/C Investors 11/17/93 75 938
In connection with the Business Combination, each share of outstanding General
Cellular Corp. common stock was exchanged for one share of the Company's Class B
Common Stock, no par value per share ("Class B Common Stock", and, together with
the Class A Common Stock, the "Common Stock"). Accordingly, on November 7, 1994
the Company issued 820,631 shares of Class B Common Stock to M/C Partners II in
exchange for its 820,631 shares of General Cellular Corp. common stock, and
issued 31,000 shares of Class B Common Stock to M/C Investors in exchange for
its 31,000 shares of General Cellular Corp. common stock.
On July 27, 1995, M/C Investors purchased from Craig W. Viehweg ("Viehweg")
7,812 shares of Class B Common Stock for an aggregate purchase price of
$273,000, which purchase price was funded from the capital contributions made by
the partners of M/C Investors.
On or about May 22, 1996, each share of Class B Common Stock was converted into
3.1 shares of Class B Common Stock.
As a result of these transactions, M/C Partners II beneficially owned 2,543,956
shares and M/C Investors beneficially owned 120,317 shares of Class B Common
Stock, respectively. Pursuant to the Company's Articles of Incorporation, shares
of Class B Common Stock are convertible at any time into shares of Class A
Common Stock on a one- for-one basis and generally convert automatically into
shares of Class A Common Stock immediately upon any transfer of the Class B
Common Stock other than a transfer from an original holder of Class B Common
Stock to certain affiliates of such holder.
On May 29, 1996, the Company consummated its initial public offering ("IPO") of
Class A Common Stock. M/C Partners II converted 848,699 shares of Class B
Common Stock into Class A Common Stock on a one-for-one basis, and sold such
shares in the IPO. M/C Investors converted 40,139 shares of Class B Common Stock
into Class A Common Stock on a one-for-one basis, and sold such shares in the
IPO. On December 4, 1996, M/C Partners II converted 668,388 shares of Class B
Common Stock, and M/C Investors converted 31,612 shares of Class B Common Stock,
respectively, into Class A Common Stock on a one-for-one basis, for the purpose
of anticipated sales of such shares. On October 30, 1997, M/C Partners II sold
45,000 shares of Class A Common Stock in a privately negotiated transaction at a
price of $17.00 per share, for gross proceeds of $765,000.
Pursuant to the terms of an Agreement and Plan of Merger dated April 24, 1997,
which closed on October 31, 1997 (the "Merger Agreement"), by and among the
Company, Minnesota Cellular Corporation, a Delaware corporation ("Western Sub"),
Triad Investment Minnesota, Inc., a Delaware corporation ("TIM"), Barry B. Lewis
("Lewis") Viehweg, Terry E. Purvis ("Purvis") Triad Cellular L.P., a Delaware
limited partnership, Triad Minnesota, L.P., a Delaware limited partnership , M/C
Partners II and M/C Investors, TIM was merged with and into Western Sub, with
TIM as the surviving corporation (the "Merger"). TIM operates cellular
telecommunications systems in various Rural Service Area markets in Minnesota.
In connection with the Merger, all of the 3,000 shares of TIM common stock
outstanding immediately prior to the Merger were exchanged for and converted
into 1,600,000 shares of Class A Common Stock, plus cash of approximately
$191,354, which amount is subject to further post-closing adjustments. The
1,600,000 shares of Class A Common Stock and cash were distributed to TIM's
stockholders (consisting of M/C Partners II, M/C Investors, Barry, Viehweg and
Purvis), in proportion to their relative holdings of TIM common stock. M/C
Partners II received 1,242,784 shares and approximately $148,625 in cash and M/C
Investors received 42,176 shares of Class A Common Stock and approximately
$5,045 in cash. In order to secure certain indemnification obligations of TIM's
stockholders under the Merger Agreement and related agreements, a pro rata
portion of each TIM stockholder's shares of Class A Common Stock issued upon the
closing of the Merger (an aggregate of 480,000 shares) have been placed into
escrow in accordance with the terms of an Escrow Agreement dated October 31,
1997 (the "Escrow Agreement").
ITEM 4. PURPOSE OF THE TRANSACTION
The foregoing acquisitions of the Common Stock of the Company were made for
investment purposes. None of the Filing Persons has any present plans or
intention which would result in or relate to any of the transactions described
in subparagraphs (a) through (j) of Item 4 of Schedule 13D.
Each of Filing Persons, however, expects to evaluate on an ongoing basis the
Company's financial condition, business, operations and prospects, the market
price of the Class A Common Stock, conditions in the securities markets
generally, general economic and industry conditions and other factors. The
Filing Persons may purchase additional shares of Class A Common Stock or may
sell shares of Common Stock from time to time in public or private transactions
(subject to any applicable limitations imposed on the sale of any of their
shares of Common Stock by the Securities Act of 1933, as amended).
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
(a) Each of M/C Partners II, M/CP, M/C-D, M/C-R, M/C-S, M/C-J, M/C-C, M/C-H,
Gaffney and Hayes beneficially owns 2,893,041 shares of Common Stock (consisting
of 1,866,172 shares of Class A Common Stock and 1,026,869 shares of Class B
Common Stock). Each of Croll, Churchill, Gormley and Wade beneficially owns
3,015,396 shares of Common Stock (consisting of 1,939,960 shares of Class A
Common Stock and 1,075,436 shares of Class B Common Stock). Based on information
obtained telephonically from the Company on November 4, 1997, 17,988,582 shares
of Class A Common Stock and 53,688,432 shares of Class B Common Stock were
issued and outstanding as of October 31, 1997. Based on the foregoing, (i) each
of M/C Partners II, M/CP, M/C-D, M/C-R, M/C-S, M/C-J, M/C-C, M/C-H, Gaffney and
Hayes beneficially own 15.2% of the Class A Common Stock, as calculated in
accordance with Rule 13d-3(d)(1) and assuming conversion of all shares of Class
B Common Stock beneficially owned by it or him into Class A Common Stock on a
one-for-one basis, or 4.0% based on outstanding shares of Common Stock, and (ii)
each of Croll, Churchill, Gormley and Wade beneficially owns 15.8% of the Class
A Common Stock, as calculated in accordance with Rule 13d-3(d)(1) and assuming
conversion of all shares of Class B Common Stock beneficially owned by him into
Class A Common Stock on a one-for-one basis, or 4.2% based on outstanding shares
of Common Stock.
None of the Filing Persons beneficially owns any shares of Common Stock as
of November 6, 1997 other than as set forth herein.
(b) Each of M/C Partners II and M/CP has sole power to vote or direct the vote
of 2,893,041 shares of Common Stock (consisting of 1,866,172 shares of Class A
Common Stock and 1,026,869 shares of Class B Common Stock), shared power to vote
or direct the vote of no shares of Common Stock, sole power to dispose or direct
the disposition of 2,893,041 shares of Common Stock (consisting of 1,866,172
shares of Class A Common Stock and 1,026,869 shares of Class B Common Stock),
and shared power to dispose or direct the disposition of no shares of Common
Stock. Each of M/C-D, M/C-R, M/C-S, M/C-J, M/C-C, M/C-H, Gaffney and Hayes has
sole power to vote or direct the vote of no shares of Common Stock, shared power
to vote or direct the vote of 2,893,041 shares of Common Stock (consisting of
1,866,172 shares of Class A Common Stock and 1,026,869 shares of Class B Common
Stock), sole power to dispose or direct the disposition of no shares of Common
Stock, and shared power to dispose or direct the disposition of 2,893,041 shares
of Common Stock (consisting of 1,866,172 shares of Class A Common Stock and
1,026,869 shares of Class B Common Stock). Each of Croll, Churchill, Gormley and
Wade has sole power to vote or direct the vote of no shares of Common Stock,
shared power to vote or direct the vote of 3,015,396 shares of Common Stock
(consisting of 1,939,960 shares of Class A Common Stock and 1,075,436 shares of
Class B Common Stock), sole power to dispose or direct the disposition of no
shares of Common Stock, and shared power to dispose or direct the disposition of
3,015,396 shares of Common Stock (consisting of 1,939,960 shares of Class A
Common Stock and 1,075,436 shares of Class B Common Stock). Each of M/C-D,
M/C-R, M/C-S, M/C-J, M/C-C, M/C-H, Gaffney and Hayes shares voting and
dispositive power with each other and with each of Croll, Churchill, Gormley and
Wade. Each of Croll, Churchill, Gormley and Wade shares voting and dispositive
power with each other and with each of M/C-D, M/C-R, M/C-S, M/C-J, M/C-C, M/C-H,
Gaffney, Hayes and M/C Investors.
Each of M/C Partners II, M/CP, M/C-D, M/C-R, M/C-S, M/C-J, M/C-C, M/C-H, Gaffney
and Hayes disclaims beneficial ownership of any shares of Common Stock held by
M/C Investors. The filing of this statement on Schedule 13D shall not be
construed as an admission that any such Filing Person is, for the purposes of
Section 13(d) or 13(g) of the Securities Exchange Act of 1934, as amended, the
beneficial owner of such securities.
(c) Except as set forth in Item 2 with respect to (i) the sale on October 30,
1997 by M/C Partners II of 45,000 shares of Class A Common Stock in a privately
negotiated transaction, at a price of $17.00 per share for gross proceeds of
$765,000 and (ii) the Merger of Western Sub and TIM on October 31, 1997,
pursuant to which M/C Partners II received 1,242,784 shares of Class A Common
Stock and approximately $148,625 in cash and M/C Investors received 42,176
shares of Class A Common Stock and approximately $5,045 in cash in exchange for
their respective shares of TIM common stock, no transactions in the Common Stock
were effected by the Filing Persons during the past sixty days. As of the date
that the Merger Agreement was executed by the parties thereto, the parties
assigned a value per share of $12.50 to the Class A Common Stock to be issued in
the Merger.
(d) No other person is known by any Filing Person to have the right to receive
or the power to direct the receipt of dividends from, or the proceeds from the
sale of, any shares of Common Stock beneficially owned by any Filing Person.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO
SECURITIES OF THE ISSUER
In connection with the Merger described in Item 2 above, the Company, the TIM
stockholders receiving shares of Class A Common Stock, certain related parties,
and First Trust of California, National Association, as Escrow Agent ("Escrow
Agent"), entered into an Escrow Agreement dated October 31, 1997 (the "Escrow
Agreement"). A copy of the Escrow Agreement is attached hereto as Exhibit
99.1.1. Under the terms of the Escrow Agreement, the TIM stockholders (including
M/C Partners II and M/C Investors) receiving an aggregate of 1,600,000 shares of
Class A Common Stock in the Merger were required, as collateral security for
certain indemnification obligations they have under the Merger Agreement and
related agreements, to deposit into escrow 480,000 of the 1,600,000 shares of
Class A Common Stock issuable upon consummation of the Merger. Of these 480,000
shares, 372,816 shares were deposited into escrow by M/C Partners II and 12,672
shares were deposited into escrow by M/C Investors. The escrowed shares will be
used to satisfy all or a portion of any indemnification claims made by one or
more parties entitled to be indemnified under the Merger Agreement and related
agreements, on the terms described in the Escrow Agreement. Subject to the
satisfaction of certain conditions described in the Escrow Agreement, a portion
of the shares may be released from escrow on the date that is one year after the
date of the Escrow Agreement, and the remainder is subject to release on the
date that is one year and one hundred eighty (180) days from the date of the
Escrow Agreement. The Escrow Agreement also permits any party whose shares of
Class A Common Stock are escrowed thereunder to substitute a cash amount in
lieu of some or all of such shares, at a value of $12.50 per share.
Except as described herein, none of the Filing Persons is a party to any
contract, arrangement, understanding or relationship with respect to any
securities of the Company.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
Exhibit 99.1.1 Escrow Agreement by and among the Company, M/C Partners II, M/C
Investors, Escrow Agent and the other signatories thereto,
dated October 31, 1997.
Exhibit 99.1.2 Joint Filing Agreement, dated as of November 10, 1997.
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
Date: November 10, 1997 MEDIA/COMMUNICATIONS PARTNERS II
LIMITED PARTNERSHIP
By: M/CP II Limited Partnership,
as general partner
By: M/C II General Partner-J, Inc.,
a general partner
By: /S/ JAMES F. WADE
--------------------------------
James F. Wade
Title: President
Date: November 10, 1997 M/CP II LIMITED PARTNERSHIP
By: M/C II General Partner-J, Inc.,
a general partner
By: /S/ JAMES F. WADE
--------------------------------
James F. Wade
Title: President
Date: November 10, 1997 M/C II GENERAL PARTNER-D, INC.
By: /S/ DAVID D. CROLL
---------------------------------
David D. Croll
Title: President
Date: November 10, 1997 M/C II GENERAL PARTNER-R, INC.
By: /S/ RICHARD H. CHURCHILL, JR.
--------------------------------
Richard H. Churchill, Jr.
Title: President
Date: November 10, 1997 M/C II GENERAL PARTNER-S, INC.
By: /S/ STEPHEN F. GORMLEY
--------------------------------
Stephen F. Gormley
Title: President
Date: November 10, 1997 M/C II GENERAL PARTNER-J, Inc.
By: /S/ JAMES F. WADE
--------------------------------
James F. Wade
Title: President
Date: November 10, 1997 M/C II GENERAL PARTNER-C, INC.
By: /S/ CHRISTOPHER S. GAFFNEY
--------------------------------
Christopher S. Gaffney
Title: President
Date: November 10, 1997 M/C II GENERAL PARTNER-H, INC.
By: /S/ JOHN G. HAYES
--------------------------------
John G. Hayes
Title: President
Date: November 10, 1997 /S/ DAVID D. CROLL
------------------------------------
David D. Croll
Date: November 10, 1997 /S/ RICHARD H. CHURCHILL, JR.
------------------------------------
Richard H. Churchill, Jr.
Date: November 10, 1997 /S/ STEPHEN F. GORMLEY
------------------------------------
Stephen F. Gormley
Date: November 10, 1997 /S/ JAMES F. WADE
------------------------------------
James F. Wade
Date: November 10, 1997 /S/ CHRISTOPHER S. GAFFNEY
------------------------------------
Christopher S. Gaffney
Date: November 10, 1997 /S/ JOHN G. HAYES
------------------------------------
John G. Hayes
EXHIBIT 99.1.1
ESCROW AGREEMENT
ESCROW AGREEMENT (the "Escrow Agreement"), made this 31st day of October,
1997, by and among WESTERN WIRELESS CORPORATION, a Washington corporation
("Buyer"), TRIAD TEXAS, L.P., a Delaware limited partnership ("TTLP"), TRIAD
OKLAHOMA, L.P. ("TOLP"), TRIAD UTAH, L.P., a Delaware limited partnership
("TULP"), BARRY B. LEWIS ("LEWIS"), CRAIG W. VIEHWEG ("VIEHWEG"), TERRY E.
PURVIS ("PURVIS"), MEDIA/COMMUNICATIONS PARTNERS II LIMITED PARTNERSHIP, a
Delaware limited partnership ("M/C II"), MEDIA/COMMUNICATIONS INVESTORS LIMITED
PARTNERSHIP, a Massachusetts limited partnership ("M/C INVESTORS"), TRIAD
CELLULAR CORPORATION, a Delaware corporation ("TCC"), and TRIAD CELLULAR L.P., a
Delaware limited partnership ("TCLP"; TTLP, TOLP, TULP, LEWIS, VIEHWEG, PURVIS,
M/C II, M/C INVESTORS, TCC and TCLP are hereinafter individually referred to as
a "Seller" and collectively as "Sellers"), TCC, as agent for each of the
Sellers, and FIRST TRUST OF CALIFORNIA, NATIONAL ASSOCIATION (the "Escrow
Agent").
W I T N E S S E T H:
WHEREAS, pursuant to the (i) Purchase Agreement, dated April 24, 1997, by
and among the Buyer, TTLP, TULP, TOLP, TCC and TCLP (the "Asset Purchase
Agreement"), (ii) Purchase Agreement, dated April 24, 1997, by and between the
Buyer and TCC (the "PCS Agreement"), (iii) Purchase Agreement, dated April 24,
1997, by and between Buyer and TCLP (the "Texas 1 Agreement"), and (iv)
Agreement and Plan of Merger, dated April 24, 1997, by and among the Buyer,
Minnesota Cellular Corporation, a Delaware corporation, Triad Investment
Minnesota, Inc., a Delaware corporation, Lewis, Viehweg, Purvis, M/C II, M/C
INVESTORS, TCC, TCLP and Triad Minnesota, L.P., a Delaware limited partnership
(the "Merger Agreement"; the Asset Purchase Agreement, the PCS Agreement, the
Texas 1 Agreement and the Merger Agreement are hereinafter referred to
individually as a "Purchase Agreement" and collectively as the "Purchase
Agreements"), Buyer has agreed to purchase, and Sellers have agreed to sell, the
Authorizations and Businesses (as such terms are defined in each of the
respective Purchase Agreements), all as more particularly set forth in the
respective Purchase Agreements;
WHEREAS, concurrently with the consummation of the transactions
contemplated by the Asset Purchase Agreement and the Merger Agreement, as
collateral security for Sellers' respective indemnification obligations under
all of the Purchase Agreements, Section 7.02(d) of each of the Purchase
Agreements requires the deposit by Sellers, at Sellers' option, of an aggregate
of Six Million ($6,000,000) Dollars comprised of any combination of up to Six
Million ($6,000,000) Dollars in cash (the "Cash Deposit") and up to Four Hundred
Eighty Thousand (480,000) shares of Buyer's Class A Common Stock, no par value
(valued for purposes hereof at Twelve Dollars Fifty Cents ($12.50) per share)
issued to Sellers in accordance with the Merger Agreement (the "WWC Shares"; the
escrow established hereby to hold the Cash Deposit and/or WWC Shares, and all
interest accrued thereon or dividends, distributions or other payments of cash,
other property or capital stock made with respect thereto, being hereinafter
referred to as the "Escrow Fund"); and
WHEREAS, the Escrow Fund has been deposited with the Escrow Agent by
Sellers on the date hereof and shall be held and disposed of by the Escrow Agent
pursuant to the terms and conditions hereof.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto hereby agree as follows:
1. All terms used herein, unless otherwise defined herein, shall have the
meanings ascribed to such terms in the Purchase Agreements.
2. The Escrow Agent is hereby appointed as escrow agent to hold and
distribute the Escrow Fund in accordance with the terms of this Escrow
Agreement, and the Escrow Agent hereby accepts such appointment and agrees to
act in such capacity in accordance with the terms hereof.
3. Each of the Sellers hereby appoints TCC as its agent for all purposes,
including receipt or delivery of notices on their behalf, in connection with
this Escrow Agreement, and hereby further agrees that all actions taken and all
documents, instruments or notices executed by TCC hereunder shall be binding
upon and enforceable against each and all of the Sellers.
4. The Sellers are hereby depositing in accordance with, and as collateral
security for Sellers' respective indemnification obligations under, Article 7 of
each of the Purchase Agreements (i) the Cash Deposit, or (ii) a stock
certificate or certificates representing all of the WWC Shares, together with
duly executed, undated stock powers attached thereto. In the event that the Cash
Deposit shall constitute all or any portion of the Escrow Fund, the Escrow Agent
shall as promptly as reasonably practicable invest the Cash Deposit in United
States Treasury Bills having a maturity not exceeding ninety (90) days, or other
maturities, or United States Treasury money market accounts, as may be directed
by joint written instructions signed by TCC and the Buyer. In the absence of
such joint written instructions, the Cash Deposit will be invested by the Escrow
Agent in a First Bank money market account. In the event that any portion of the
Escrow Fund shall be comprised of WWC Shares, TCC shall have the right
exercisable at any time prior to the Final Release Date (as hereinafter defined
in Section 8(c) hereof), upon ten (10) days prior written notice to Buyer and
the Escrow Agent (any such notice is a "Substitution Notice"), to substitute for
each WWC Share held in escrow an amount in cash equal to Twelve Dollars Fifty
Cents ($12.50) (as adjusted upward or downward, as the case may be, to reflect
stock splits, stock dividends and other similar changes in Buyer's
capitalization, notice of which has theretofore been provided to the Escrow
Agent by Buyer). Such right shall include the right to cause the Escrow Agent to
sell all or any portion of the WWC Shares held in escrow by the Escrow Agent
pursuant to the terms hereof and to deposit the net cash proceeds therefrom in
the Escrow Fund. In the event that the Escrow Agent shall determine, in its sole
discretion, that the anticipated net cash proceeds of any such sale when added
to (i) the amount of the Cash Deposit then held in the Escrow Fund, plus (ii)
the amount obtained by multiplying the remaining number of WWC Shares that would
be held in the Escrow Fund, following any anticipated sale of WWC Shares in
accordance with any Substitution Notice furnished by TCC to Buyer and the Escrow
Agent, by Twelve Dollars Fifty Cents ($12.50) (as adjusted, upward or downward,
as the case may be, to reflect stock splits, stock dividends and other similar
changes in Buyer's capitalization, notice of which has theretofore been provided
to the Escrow Agent by Buyer (the sum of the amounts determined in accordance
with this sentence being referred to herein as the "Escrow Balance")), will be
less than the then applicable Required Balance (as hereinafter defined in this
Section 4), the Escrow Agent shall not sell any such WWC Shares unless prior
thereto TCC shall have deposited with the Escrow Agent an amount of cash
sufficient, when aggregated with the applicable Escrow Balance, to increase the
total amount of the Escrow Fund to an amount equal to the then Required Balance.
In the event that the sum of the net cash proceeds of any such sale of WWC
Shares made in accordance with a Substitution Notice, when added to the total
Escrow Fund at the time of such sale exceeds the applicable Required Balance,
the Escrow Agent shall, upon written request from TCC, deliver to TCC on behalf
of the Sellers a cash payment from the Escrow Fund in the amount of such excess.
TCC shall not have the right to substitute WWC Shares for any portion of the
Escrow Fund comprised of the Cash Deposit. For the purposes of this Escrow
Agreement, the term "Required Balance" shall mean (i) prior to the First Release
Date (as hereinafter defined in Section 8(b) hereof), the sum of $6,000,000 and
(ii) on and after the First Release Date, the sum of $4,500,000 or, if higher
than $4,500,000, the Reserve Amount (as hereinafter defined in Section 8(b)
hereof) required to be retained in the Escrow Fund in accordance with Section 8
hereof.
5. This Escrow Agreement and the escrow established hereby is the "Escrow
Agreement" and "Escrow Fund", respectively, contemplated by Article 7 of each of
the Purchase Agreements. This Escrow Agreement and the deposit of the Escrow
Fund with the Escrow Agent pursuant hereto do not expand or limit any of
Sellers' or Buyer's respective rights, liabilities or obligations under any of
the Purchase Agreements.
6. The Escrow Agent shall retain the Escrow Fund as security for any matter
for which Buyer and its Affiliates are entitled to indemnification pursuant to
Article 7 of any of the Purchase Agreements.
7. The following procedures shall govern the application of the Escrow Fund
to satisfy claims, if any, for any Losses incurred by the Buyer and its
Affiliates and their respective officers, directors, shareholders, agents and
representatives which Sellers have agreed to indemnify jointly and severally and
hold harmless the Buyer and its Affiliates from and against pursuant to Article
7 of the Purchase Agreements.
(a) If prior to one (1) year and one hundred eighty (180) days after the
date hereof, the Escrow Agent receives written notice from the Buyer that the
Buyer is entitled to receive all or any portion of the Escrow Fund (a "Notice of
Claim"), the Escrow Agent shall deliver a copy thereof to TCC in accordance with
Section 14 hereof. If on or prior to the 30th calendar day following the date
the copy of such Notice of Claim is deemed delivered to TCC in accordance with
Section 14 hereof the Escrow Agent shall not have received a written notice from
TCC disputing all or part of such claim (a "Dispute Notice"), the Escrow Agent
shall disburse to the Buyer on the first Business Day following the end of such
30-day period a portion of the Escrow Fund equal to the entire amount set forth
in such Notice of Claim.
(b) If the Escrow Agent shall have received a Dispute Notice within the
30-day period specified in Section 7(a) from TCC with respect to any amounts
which are the subject of a Notice of Claim (such amounts which are disputed
being referred to as "Disputed Amounts"), the Escrow Agent shall promptly give a
copy thereof to the Buyer in accordance with Section 14 hereof and continue to
hold the Disputed Amounts until it shall have received either (A) written
instructions signed by both TCC and the Buyer, or (B) written notice of (along
with a copy thereof) a court order or judgment of a court of competent
jurisdiction, which order or judgment has become a Final Order (as hereinafter
defined in this Section 7(b)), declaring either that the Buyer is not entitled
to any portion of a Disputed Amount or that the Buyer is entitled to all or a
portion of such Disputed Amount (any such instructions or order or judgment,
being referred to as a "Resolution Notice"), in which case the Escrow Agent
shall disburse or continue to hold the Escrow Fund (or portion thereof) in
accordance with such Resolution Notice. The Escrow Agent shall disburse to the
Buyer on the first Business Day following the end of such 30-day period the
amount, if any, of the Escrow Fund that the Buyer has requested pursuant to a
Notice of Claim and as to the disposition of which TCC has not disputed pursuant
to a Dispute Notice provided to the Escrow Agent prior to the expiration of the
30-day period specified in Section 7(a) hereof. For the purposes of this Escrow
Agreement, the term "Final Order" shall mean an action or decision as to which:
(i) no request for a stay is pending, no stay is in effect, and any deadline for
filing such request that may be designated by statute or regulation has passed;
(ii) no petition for rehearing or reconsideration or application for review is
pending and the time for filing any such petition or application has passed;
(iii) no court, arbitration panel or other alternative dispute resolution body,
board or panel has the action or decision under reconsideration on its own
motion and the time for initiating such reconsideration has passed; and (iv) no
appeal is pending or in effect and any deadline for filing any such appeal that
may be designated by statute or rule has passed.
(a) The Escrow Agent shall retain custody of the Escrow Fund and shall not
make any delivery or other disposition of any funds or property then held by it
under this Escrow Agreement except pursuant to Sections 7(a) or 7(b) hereof,
this Section 8 or otherwise in accordance with the terms and conditions of this
Escrow Agreement.
(b) On the day which is one (1) year from the date of the execution and
delivery of this Escrow Agreement (or the next succeeding Business Day if such
day is not a Business Day) (the "First Release Date"), the Escrow Fund shall be
reduced to an amount equal to the greater of (x) Four Million Five Hundred
Thousand ($4,500,000) Dollars, or (y) the sum of (i) all then Disputed Amounts
which have not been resolved in accordance with Section 7(b) hereof by the
delivery of a Resolution Notice to the Escrow Agent plus (ii) all amounts for
which the Escrow Agent has received a Notice of Claim from Buyer pursuant to the
terms hereof with respect to which the time for TCC to submit a Dispute Notice
pursuant to Section 7(a) hereof has not yet expired (the sum of the amount
referred to in this clause (y) is the "Reserve Amount"). In the event that the
Escrow Fund shall contain any WWC Shares, then for purposes of clause (x) or (y)
of the foregoing sentence. each WWC Share shall be valued at Twelve Dollars
Fifty Cents ($12.50) per share (such amount to be adjusted upward or downward,
as the case may be, to reflect stock splits, stock dividends and other similar
changes in Buyer's capitalization, notice of which has theretofore been provided
to the Escrow Agent by Buyer). Any amounts in the Escrow Fund on the First
Release Date in excess of the Required Balance required to be retained in
accordance with the foregoing sentences shall be promptly disbursed by the
Escrow Agent to TCC on behalf of the Sellers. On and after the First Release
Date, upon receipt by the Escrow Agent of any Resolution Notices concerning the
Reserve Amounts, the Escrow Agent shall promptly disburse to the Buyer from the
Escrow Fund the amount of the Reserve Amounts to which the Buyer is entitled in
accordance with such Resolution Notices, and shall promptly disburse from the
Escrow Fund the remainder, if any, of the Reserve Amounts in excess of
$4,500,000 to TCC on behalf of the Sellers.
(c) On the day which is one (1) year and one hundred eighty (180) days from
the date of this Escrow Agreement (or the next succeeding Business Day if such
day is not a Business Day) (the "Final Release Date"), the Escrow Agent shall
disburse to TCC on behalf of the Sellers the balance of the Escrow Fund
(including, without limitation, all WCC Shares) then held by the Escrow Agent in
escrow pursuant to the terms hereof; provided, however, that the Escrow Agent
shall retain in the Escrow Fund an amount sufficient to satisfy any and all
outstanding Disputed Amounts and the aggregate amounts specified by the Buyer in
any Notice of Claim with respect to which the time for TCC to submit a Dispute
Notice has not yet expired pursuant to Section 7(a) hereof as of the Final
Release Date. Upon receipt by the Escrow Agent of any Resolution Notice in the
case of (x) Disputed Amounts, or (y) Notices of Claims for which a Dispute
Notice is thereafter timely received by the Escrow Agent, the Escrow Agent shall
promptly disburse to the Buyer from such amounts withheld on the Final Release
Date the aggregate amount to which the Buyer is entitled in accordance with such
Resolution Notices, and shall promptly disburse the remainder, if any, of such
withheld amounts to TCC on behalf of the Sellers. In the event no Dispute Notice
is provided by TCC to the Escrow Agent pursuant to Section 7(a) hereof with
respect to a Notice of Claim pending on the Final Release Date, the Escrow Agent
shall, in accordance with Section 7(a) hereof, disburse to the Buyer on the
first Business Day following the end of such 30-day period a portion of the
Escrow Fund equal to the amount set forth in such Notice of Claim.
(d) The Escrow Agent shall disburse all or any portion of the Escrow Fund
(i) to and only to the Buyer in accordance with written instructions at any time
received by the Escrow Agent from TCC, (ii) to and only to TCC in accordance
with written instructions at any time received by the Escrow Agent from the
Buyer and (iii) in accordance with any joint written instructions received at
any time by the Escrow Agent from both the Buyer and TCC.
(e) The Escrow Agent shall disburse to TCC, on behalf of the Sellers, on or
prior to the expiration of twenty (20) Business Days following the completion of
each calendar quarter during the term of this Escrow Agreement (commencing with
the calendar quarter ended January 31, 1998), all interest accrued on the cash
portion of the Escrow Fund maintained with the Escrow Agent. The Escrow Agent
shall only make any such disbursement of interest if the applicable Escrow
Balance following such disbursement would be sufficient to ensure that the total
amount of the Escrow Fund shall be equal to the then applicable Required
Balance.
(f) If the Escrow Agent is to disburse any amount of the Escrow Fund to TCC
while the Escrow Fund is comprised of both the Cash Deposit and WWC Shares, and
if, after giving effect to such disbursement, amounts are to be retained by the
Escrow Agent in the Escrow Fund, the Escrow Agent shall disburse such amount to
TCC, at TCC's option, in cash, in WWC Shares or both as directed by TCC in
writing to the Escrow Agent at least two (2) Business Days prior to the date of
such disbursement. Whenever any WWC Shares are disbursed to TCC hereunder, such
shares shall be valued for all purposes hereof at Twelve Dollars Fifty Cents
($12.50) per share (such amount to be adjusted upward or downward, as the case
may be, to reflect stock splits, stock dividends and other similar changes in
the Buyer's capitalization, notice of which has theretofore been provided to the
Escrow Agent by Buyer). In the absence of such direction from TCC, the Escrow
Agent shall make such disbursement in WWC Shares, valued as set forth in the
preceding sentence. If the Escrow Agent is to disburse any amount of the Escrow
Fund to the Buyer while the Escrow Fund is comprised of both cash and WWC
Shares, and if, after giving effect to such disbursement, amounts are to be
retained by the Escrow Agent in the Escrow Fund, the Escrow Agent shall disburse
such amount to Buyer, at TCC's option, in cash, in WWC Shares or both as
directed by TCC in writing to the Escrow Agent at least two (2) Business Days
prior to the date of such disbursement (such written direction to include a
calculation of the value of the WWC Shares in accordance with the following
sentence, including appropriate supporting documentation from The Wall Street
Journal). Whenever any WWC Shares are disbursed to Buyer hereunder, such shares
shall be valued for all purposes hereof at the average closing price therefor on
NASDAQ (as reported in THE WALL STREET JOURNAL) for the six (6) trading days
immediately preceding the date on which such WWC Shares are disbursed to the
Buyer. In the absence of such direction from TCC, the Escrow Agent shall make
such disbursement in WWC Shares with the number of WWC Shares to be disbursed to
Buyer to be determined by Buyer as of the date on which the Escrow Agent gives
written notice to Buyer that it intends to disburse such shares to Buyer (such
determination to be made by Buyer and delivered to the Escrow Agent and to be
based upon a calculation of the value of such shares in accordance with the
preceding sentence for the six (6) trading days immediately preceding the date
of such notice from the Escrow Agent, including appropriate supporting
documentation from THE WALL STREET JOURNAL).
(g) For purposes of this Agreement the term "Business Day" means a day
other than a Saturday, Sunday or legal holiday in the States of California,
Washington, and, if different, the jurisdiction wherein the Escrow Agent
maintains its principal place of business.
2. The Escrow Fund and the Escrow Agent's obligations under this Escrow
Agreement shall be deemed to be terminated at such time on and after the Final
Release Date that the Escrow Agent shall have delivered all remaining funds from
the Escrow Funds in accordance with this Escrow Agreement and at such time the
Escrow Agent shall thereupon and thereafter be freed and discharged of all of
its duties, liabilities and obligations hereunder. The Escrow Agent shall not
terminate its duties, liabilities and obligations hereunder or deliver the
Escrow Fund to the Sellers or the Buyer except as and in the manner herein
provided.
3. Upon the disbursement of any portion of the Escrow Fund to Sellers or
Buyer pursuant to the terms of this Escrow Agreement, the Escrow Agent shall in
conjunction therewith send a written statement to Buyer and TCC specifying the
date and amount of such disbursement and the amount of the Escrow Fund retained
in escrow by the Escrow Agent following such disbursement.
(a) It is understood by the parties hereto that the Escrow Agent's duties
are purely ministerial in nature and that it shall not be liable as Escrow Agent
for any error in judgment, fact or law or any act done or omitted to be done
except for its own willful misconduct or gross negligence. The Escrow Agent may
consult with counsel of its own choosing and shall be fully protected with
respect to any action taken, suffered or omitted by it in accordance with the
advice of such counsel.
(b) The Escrow Agent may rely on any certificate, statement, request,
consent, agreement or other instrument which it believes in good faith to be
genuine and to have been signed or presented by a proper person or persons. The
Escrow Agent shall be fully protected in acting in accordance with any
instruction given to it under this Escrow Agreement, and believed by it in good
faith to have been signed by the proper person or persons. The Escrow Agent may
assume that any person purporting to give any notice or instructions in
accordance with the provisions of this Escrow Agreement has been duly authorized
to do so. The proper person or persons shall be, in the case of Buyer, any
officer thereof, or in the case of Sellers, the President or Treasurer of TCC.
The Escrow Agent shall not be bound by a modification to or amendment of this
Escrow Agreement unless in writing and signed by Buyer and TCC, and if its
duties as Escrow Agent hereunder are affected, unless the Escrow Agent shall
have given its prior written consent thereto. The Escrow Agent shall not be
deemed to have notice of any amendment or modification of the Escrow Agreement
until it has received a copy of the amendment or modification, duly certified to
be true and correct by Buyer and TCC. In the event that the Escrow Agent shall
be uncertain as to its duties or rights hereunder or shall receive instructions
from Buyer or TCC with respect to the Escrow Fund which, in its opinion, are in
conflict with each other or with any of the provisions of this Escrow Agreement,
the Escrow Agent shall be entitled (i) to refrain from taking any action other
than to retain the Escrow Fund until it shall receive (i) a Final Order of a
court of competent jurisdiction directing delivery of the Escrow Fund or (ii) a
written agreement or instruction letter executed by both TCC and the Buyer
directing delivery of the Escrow Fund, in which event the Escrow Agent shall
promptly disburse the Escrow Fund in accordance with such Final Order or
agreement or instruction letter.
(c) The Escrow Agent shall not be obligated to initiate litigation or other
legal proceedings in connection with the performance of its duties hereunder;
provided, however, if the Escrow Agent is threatened by or reasonably
anticipates litigation by reason hereof, it is hereby authorized to interplead
all interested parties in any court of competent jurisdiction and deposit with
the clerk of such court any funds, deeds or other property held by it pursuant
hereto and, thereupon, the Escrow Agent shall stand fully relieved and
discharged of any further duties, liabilities and obligations hereunder.
(d) TCC and Buyer jointly and severally agree to indemnify and hold
harmless the Escrow Agent against all costs, damages, expenses, fees and
liabilities (including judgments, costs and reasonable attorneys' fees),
resulting from or arising out of the exercise, in good faith, by the Escrow
Agent, of its duties and obligations under this Escrow Agreement, including any
suit or interpleader action which may be instituted by it. The Escrow Agent
shall not be liable for any loss which may be incurred by reason of any
investments of any funds which it holds hereunder, provided that the Escrow
Agent shall have complied with the terms of Section 4 hereof.
(e) The Escrow Agent may resign at any time by (i) giving thirty (30) days
prior written notice to that effect to TCC and Buyer, and (ii) designating in
that notice a successor Escrow Agent which shall be a national bank having
capital and surplus in excess of $100,000,000. If the designated successor
Escrow Agent refuses to serve, then the Escrow Agent may substitute another
successor Escrow Agent by giving thirty (30) days prior written notice to that
effect to TCC and Buyer. The Escrow Agent's resignation shall be effective upon
the expiration of the applicable thirty-day period. On the effective date of its
resignation, the Escrow Agent shall assign and deliver to its successor the
Escrow Fund or its interest in the Escrow Fund. Notwithstanding the foregoing
provisions, the Escrow Agent's duties shall terminate when, and only when, (a)
it assigns and delivers to the successor Escrow Agent all of the Escrow Fund or
its interest in the Escrow Fund and (b) the successor Escrow Agent accepts the
Escrow Fund or such interest therein and agrees to serve as Escrow Agent
hereunder by executing and delivering to each of the Buyer and TCC a counterpart
of this Escrow Agreement. If an Escrow Agent fails to designate a successor
Escrow Agent as prescribed or if the designated successor Escrow Agent refuses
to accept the Escrow Fund or interest therein, then the resigning Escrow Agent
shall retain safely the Escrow Fund or interest and shall continue to serve as
Escrow Agent hereunder until a successor Escrow Agent is designated and accepts
the Escrow Fund or interest therein.
4. The Escrow Agent agrees that it will be entitled to receive the fees and
reimbursements of expenses which are set forth on Exhibit A attached hereto as
payment in full for the services to be rendered by the Escrow Agent hereunder.
In addition, the Escrow Agent shall also be reimbursed by the Sellers and the
Buyer for all other reasonable fees and expenses, including out-of-pocket costs
and expenses and reasonable attorneys' fees, incurred by the Escrow Agent in
connection with the performance of its duties hereunder. Any fees, expenses or
disbursements payable to the Escrow Agent hereunder shall be payable one-half by
the Sellers and one-half by the Buyer.
(a) This Escrow Agreement shall be binding upon and shall inure to the
benefit of the respective heirs, legal representatives, successors and assigns
of the parties hereto.
(b) This Escrow Agreement shall be governed by and construed in accordance
with the laws and decisions of the State of California applicable to contracts
made and performed entirely therein.
(c) This Escrow Agreement contains the entire understanding between its
parties concerning its subject matter. A waiver or breach by any party of any of
the terms and conditions of this Escrow Agreement shall not be deemed a waiver
of the term or condition for the future, or any other term, condition, or
subsequent breach of this Escrow Agreement.
(d) This Escrow Agreement may be executed in separate counterparts, each of
which shall be an original, but all such counterparts shall together constitute
a single instrument.
(e) In the event of any conflict between the Purchase Agreement and this
Escrow Agreement, this Escrow Agreement shall control.
5. All notices, requests, consents and other communications under this
Escrow Agreement shall be in writing and shall be sent via commercial overnight
delivery service, by facsimile or by hand:
If to the Escrow Agent, to:
First Trust of California, National Association
550 S. Hope Street
Suite 500
Los Angeles, California 90071
Attention: Ms. Andrea Freeman, Trust Officer
Facsimile No. (213) 533-8736
If to any Seller or TCC, to: Triad Cellular Corporation
2420 Sand Hill Road
Menlo Park, California 94025
Attention: Mr. Barry B. Lewis
Facsimile No.: (415) 854-4512
With a copy (which shall not constitute notice) to:
Edwards & Angell
101 Federal Street
Boston, Massachusetts 02110
Attention: Stephen O. Meredith, Esq.
Facsimile No.: (617) 439-4170
If to the Buyer, to: Western Wireless Corporation
2001 N.W. Sammamish Road
Issaquah, Washington 98027
Attention: Alan R. Bender, Esq.
Facsimile No.: (206) 313-5520
With a copy (which shall not constitute notice) to:
Rubin Baum Levin Constant & Friedman
30 Rockefeller Plaza
29th Floor
New York, New York 10112
Attention: Barry A. Adelman, Esq.
Facsimile No.: (212) 698-7825
or to such other address or facsimile number of which the addressee shall have
notified the sender in writing. Notices sent by overnight delivery service shall
be deemed given on the next
Business Day after they are placed in the hands of a representative of such
service, notices sent by facsimile machine shall be deemed given when sent, and
notices sent by hand shall be deemed given when delivered.
IN WITNESS WHEREOF, the parties hereto have duly executed this Escrow
Agreement as of the day and year first above written.
BUYER:
WESTERN WIRELESS CORPORATION
By:/s/Alan R. Bender
------------------------------
Name: Alan R. Bender
Title: Senior Vice President
SELLERS:
TRIAD TEXAS, L.P.
By: Triad Cellular Corporation,
its general partner
By:/s/Barry B. Lewiis
------------------------------
Name: Barry B. Lewis
Title: President
TRIAD OKLAHOMA, L.P.
By: Triad Cellular Corporation,
its general partner
By:/s/Barry B. Lewiis
------------------------------
Name: Barry B. Lewis
Title: President
TRIAD UTAH, L.P.
By: Triad Cellular Corporation,
its general partner
By:/s/Barry B. Lewis
------------------------------
Name: Barry B. Lewis
Title: President
/s/ Barry B. Lewis
- ---------------------------------------
Barry B. Lewis
/s/ Craig Viehweg
- ----------------------------------------
Craig Viehweg
/s/ Terry E. Purvis
- ----------------------------------------
Terry E. Purvis
TRIAD CELLULAR CORPORATION
By:/s/Barry B. Lewis
------------------------------
Name: Barry B. Lewis
Title: President
TRIAD CELLULAR L.P.
By: Triad Cellular Corporation,
its general partner
By:/s/Barry B. Lewis
------------------------------
Name: Barry B. Lewis
Title: President
MEDIA/COMMUNICATIONS PARTNERS II LIMITED PARTNERSHIP
By: M/CP II Limited Partnership,
its general partner
By: M/C II General Partner-J., Inc.,
a general partner
By: /s/ James F. Wade
-------------------------------
Name: James F. Wade
Title: President
MEDIA/COMMUNICATIONS INVESTORS LIMITED PARTNERSHIP
By: M/C Investors General Partner-J., Inc.,
a general partner
By: /s/ James F. Wade
-------------------------------
Name: James F. Wade
Title: President
AGENT FOR SELLERS:
TRIAD CELLULAR CORPORATION
By:/s/Barry B. Lewis
------------------------------
Name: Barry B. Lewis
Title: President
ESCROW AGENT:
FIRST TRUST OF CALIFORNIA, NATIONAL
ASSOCIATION
By:/s/Brad E. Scarbrough
------------------------------------
Name: Brad E. Scarbrough
Title: Assistant Vice President
<PAGE>
EXHIBIT A TO ESCROW AGREEMENT
FIRST TRUST OF CALIFORNIA, NATIONAL ASSOCIATION
GLOBAL ESCROW DEPOSITORY SERVICES
FEE SCHEDULE
TRIAD CELLULAR CORPORATION AND WESTERN WIRELESS CORPORATION
I. ACCEPTANCE FEE: $500
Covers the escrow agent's examination of governing instruments and all
supporting documentation as well as set up of required records and accounts.
Payable at opening.
Consideration- IN THE EVENT STOCK IS SOLD AND TRANSFERRED TO CASH, ADDITIONAL
FEES WILL BE BASED ON THE FOLLOWING SCHEDULE. FEES
$0-499,999 $500
$500,000-999,999 $1,000
$1.0-2.49 million $2,000
$2.5-4.9 million $3,000
$5.0-9.99 million $4,000
$10.0 million and above $5,000
PLUS $0.10 PER $1,000
OVER $10 MILLION
II. ANNUAL ADMINISTRATION FEE: $1,000
Covers ordinary escrow agent services, such as maintenance of records,
examination of notices to determine compliance with the governing instrument,
and preparation and distribution of accounting statements. Payable annually in
advance.
III. INVESTMENT PROCESSING FEES:
First Bank System investments NO CHARGE
Outside investments .005% OF INCOME EARNED
(MINIMUM $250)
IV. ACTIVITY FEES:
Deposits and/or Disbursements (per transaction) $20
Wire transfers (incoming or outgoing) $25
(Note: Deposits & Disbursement charges are waived if utilizing wire transfers)
Off-site Closing (California) $500
Out-of-State Closing AT COST
V. OUT-OF-POCKET EXPENSES: BILLED AT COST
Expenses including but not limited to stationery, postage, telephone, insurance,
shipping, Telex/Telegram, services of outside counsel and agents. (Plus indirect
out-of-pocket expenses at 3% of annual administration fees.)
VI. EXTRAORDINARY SERVICES AND EXPENSES:
Charges for performing other escrow services not specifically covered in this
schedule will be determined by an appraisal of the services rendered.
ALL ESCROW FEES ARE
NON-PRORATABLE AND NON-REFUNDABLE THE
FEES SHOWN IN THIS SCHEDULE MAY BE
INCREASED UPON THIRTY (30) DAYS NOTICE.
Exhibit 99.1.2
JOINT FILING AGREEMENT
In accordance with Rule 13d-1(f) promulgated under the Securities Exchange Act
of 1934, the undersigned agree to the joint filing of a Statement on Schedule
13D (including any and all amendments thereto) with respect to the shares of
Class A Common Stock, no par value per share, of Western Wireless Corporation,
and further agree that this Joint Filing Agreement be included as an Exhibit
thereto. In addition, each party to this Agreement expressly authorizes each
other party to this Agreement to file on its behalf any and all amendments to
such Statement.
Date: November 10, 1997 MEDIA/COMMUNICATIONS PARTNERS II
LIMITED PARTNERSHIP
By: M/CP II Limited Partnership,
as general partner
By: M/C II General Partner-J, Inc.,
a general partner
By: /S/ JAMES F. WADE
--------------------------------
James F. Wade
Title: President
Date: November 10, 1997 M/CP II LIMITED PARTNERSHIP
By: M/C II General Partner-J, Inc.,
a general partner
By: /S/ JAMES F. WADE
--------------------------------
James F. Wade
Title: President
Date: November 10, 1997 M/C II GENERAL PARTNER-D, INC.
By: /S/ DAVID D. CROLL
---------------------------------
David D. Croll
Title: President
Date: November 10, 1997 M/C II GENERAL PARTNER-R, INC.
By: /S/ RICHARD H. CHURCHILL, JR.
--------------------------------
Richard H. Churchill, Jr.
Title: President
Date: November 10, 1997 M/C II GENERAL PARTNER-S, INC.
By: /S/ STEPHEN F. GORMLEY
--------------------------------
Stephen F. Gormley
Title: President
Date: November 10, 1997 M/C II GENERAL PARTNER-J, Inc.
By: /S/ JAMES F. WADE
--------------------------------
James F. Wade
Title: President
Date: November 10, 1997 M/C II GENERAL PARTNER-C, INC.
By: /S/ CHRISTOPHER S. GAFFNEY
--------------------------------
Christopher S. Gaffney
Title: President
Date: November 10, 1997 M/C II GENERAL PARTNER-H, INC.
By: /S/ JOHN G. HAYES
--------------------------------
John G. Hayes
Title: President
Date: November 10, 1997 /S/ DAVID D. CROLL
---------------------------------
David D. Croll
Date: November 10, 1997 /S/ RICHARD H. CHURCHILL, JR.
---------------------------------
Richard H. Churchill, Jr.
Date: November 10, 1997 /S/ STEPHEN F. GORMLEY
---------------------------------
Stephen F. Gormley
Date: November 10, 1997 /S/ JAMES F. WADE
---------------------------------
James F. Wade
Date: November 10, 1997 /S/ CHRISTOPHER S. GAFFNEY
----------------------------------
Christopher S. Gaffney
Date: November 10, 1997 /S/ JOHN G. HAYES
----------------------------------
John G. Hayes
