Exhibit 10.9
UBIQUITEL HOLDINGS, INC.
STOCKHOLDERS' VOTING AGREEMENT
This Agreement dated as of November 23, 1999, is entered into by
and among UbiquiTel Holdings, Inc., a Delaware Company (the "COMPANY"), the
persons and entities listed on EXHIBIT A hereto (individually, a "PURCHASER" or
"PURCHASER GROUP" and collectively, the "PURCHASERS"), ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
("▇▇▇▇▇▇"), ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇. Judge, U.S Bancorp, and The ▇▇▇▇▇▇ Group,
Inc., a State of Washington corporation ("The ▇▇▇▇▇▇ Group"), (individually, a
"Founder" and collectively, the "Founders"). The Purchasers and the Founders
are sometimes referred to in this Agreement collectively as the "STOCKHOLDERS."
RECITALS:
A. The Founders own Voting Common Stock and Non-Voting Common Stock ,
par value $0.001 per share ("COMMON STOCK"), of the Company;
B. Concurrently herewith and pursuant to the Series A Preferred Stock
Purchase Agreement of even date herewith (the "PURCHASE AGREEMENT"), the
Purchasers are purchasing the Series A Preferred Stock of the Company;
C. In some cases individual Purchasers are members of a Purchaser
Group as identified and indicated on EXHIBIT A; and
D. The Purchasers and Founders wish to provide for their continuing
representation on the Board of Directors of the Company in the manner set forth
below.
Now, therefore, the parties agree as follows:
1. VOTING OF SHARES.
(a) In any and all elections of directors of the Company (whether at a
meeting or by written consent in lieu of a meeting), each Stockholder shall vote
or cause to be voted all Shares (as defined in Section 2 below) owned by him or
it, or over which he or it has voting control, and otherwise use his or its
respective best efforts, so as to fix the number of directors of the Company at
five (5) and to elect (i) one director designated by each of the Brookwood
Purchaser Group, the Lancaster Purchaser Group, and the Westower Purchaser
Group, (ii) one member designated by The ▇▇▇▇▇▇ Group, and (iii) ▇▇▇▇▇▇, for so
long as he is employed by and the chief executive officer of the Company. Each
of the Brookwood Purchaser Group, the Lancaster Purchaser Group, and the
Westower Purchaser Group, and The ▇▇▇▇▇▇ Group shall upon the execution of this
Agreement designate a director and the director so designated shall upon such
designation become a director of the Company.
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(b) No Stockholder shall vote to remove ▇▇▇▇▇▇ as a director, any
director designated by the Purchaser Groups, or the director designated by The
▇▇▇▇▇▇ Group, except for bad faith or willful misconduct, provided, however,
that ▇▇▇▇▇▇ shall cease to be a director if he ceases to be employed by and be
the chief executive officer of the Company.
(c) The Company shall provide the Stockholders with 30 days' prior
written notice of any intended mailing of a notice to stockholders for a meeting
at which directors are to be elected or of any intended mailing of a written
consent electing directors. Each Purchaser Group and The ▇▇▇▇▇▇ Group shall
give written notice to all other parties to this Agreement, no later than 20
days prior to such mailing, of the persons designated by the Purchaser Group and
The ▇▇▇▇▇▇ Group as nominees for election as directors. The Company agrees to
nominate and recommend for election as directors only the individuals so
designated, or to be designated, pursuant to Section 1(a). If the Purchaser
Group or The ▇▇▇▇▇▇ Group shall fail to give notice to the Company as provided
above, it shall be deemed that the designees then serving as directors shall be
their designees for reelection.
(d) Any vacancy occurring in the board of directors due to
resignation, removal, death or disability of a director elected pursuant to
Section 1(a) shall be filled only by a designee of the same Stockholder or
Purchaser Group, which nominated the director whose position became vacant.
2. SHARES. "SHARES" shall mean and include the Series A Preferred
being issued pursuant to the Purchase Agreement, the shares of Common Stock
issued or issuable upon the conversion of the Series A Preferred, and any other
shares of Voting Common Stock now owned or subsequently acquired by a
Stockholder, including without limitation stock acquired as a result of stock
splits and stock dividends.
3. TERMINATION. This Agreement shall terminate on the earliest of
(a) the tenth anniversary of the date of this Agreement, (b) the closing of the
Company's initial public offering of shares of Common Stock pursuant to an
effective registration statement under the Securities Act of 1933, as amended
(the "ACT"), resulting in at least $30,000,000 of gross proceeds to the Company,
or (c) the sale of all or substantially all of the assets or business of the
Company, by merger, sale of assets or otherwise.
4. NO REVOCATION. The voting agreements contained herein are coupled
with an interest and may not be revoked, except by an amendment, modification or
termination of this Agreement.
5. RESTRICTIVE LEGEND. All certificates representing Shares owned or
hereafter acquired by the Stockholders or any transferee of the Stockholders
bound by this Agreement shall have affixed thereto a legend substantially in the
following form:
"The shares of stock represented by this certificate are subject to
certain restrictions on transfer and to certain voting agreements as set
forth in a Series A Preferred Stock Purchase Agreement and various
Ancillary Agreements, as
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amended from time to time, by and among the registered owner of this
certificate, the Company, and certain other stockholders of the Company,
copies of which are available for inspection at the offices of the
Secretary of the Company."
6. TRANSFERS OF RIGHTS. Any transferee to whom Shares are
transferred by a Stockholder, whether voluntarily or by operation of law, shall
be bound by the voting obligations imposed upon the transferor under this
Agreement, to the same extent as if such transferee were a Stockholder hereunder
and no Stockholder shall transfer any Shares unless the transferee agrees in
writing to be bound by this Agreement.
7. GENERAL.
(a) SEVERABILITY. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability
of any other provision of this Agreement.
(b) SPECIFIC PERFORMANCE. In addition to any and all other
remedies that may be available at law in the event of any breach of this
Agreement, each Purchaser shall be entitled to specific performance of the
agreements and obligations of the Stockholders hereunder and to such other
injunctive or other equitable relief as may be granted by a court of
competent jurisdiction.
(c) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Delaware
(without reference to the conflicts of law provisions thereof).
(d) NOTICES. All notices, demands, requests or other
communications which may be or are required to be given, served or sent by
any party pursuant to this Agreement shall be in writing and shall be hand
delivered (including delivery by overnight courier) or mailed by first-class,
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to the Company, to UbiquiTel Holdings, Inc., at its principal
offices.
If to any Purchaser, to address(es) for notice set forth below such
Purchaser's signature on the applicable execution page hereof.
If to any Founder, to address(es) for notice set forth below such
Founder's signature on the applicable execution page hereof.
(e) AMENDMENTS. No amendment, modification or termination
of, or waiver under, any provision of this Agreement shall be valid unless in
writing and signed by (i) ▇▇▇▇▇▇, (ii) The ▇▇▇▇▇▇ Group, and (iii)
Purchasers holding a majority of the voting power of the Shares then held by
each Purchaser Group, provided that this Agreement may be amended with
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the consent of less than all of the Purchasers only in a manner which affects
all Purchasers in the same fashion), and any such amendment, modification,
termination or waiver shall be binding on all parties hereto.
(f) COUNTERPARTS; FACSIMILE SIGNATURES. This Agreement may
be executed in any number of counterparts, each of which shall be deemed to
be an original, and all of which together shall constitute one and the same
document. This Agreement may be executed by facsimile signatures.
[SIGNATURE PAGES FOLLOWING]
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SIGNATURE PAGE FOR STOCKHOLDERS' VOTING AGREEMENT
The foregoing agreement is hereby executed as of the date set forth on the
first page:
COMPANY:
UBIQUITEL HOLDINGS, INC.
By:
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President and CEO
▇ ▇▇▇▇ ▇▇▇▇▇ - ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (fax)
FOUNDERS:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (fax)
----------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (fax)
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▇▇▇▇ ▇. Judge
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
(▇▇▇)▇▇▇-▇▇▇▇ (fax)
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THE ▇▇▇▇▇▇ GROUP
By:
-----------------------------
Name:
-----------------------------
Title:
-----------------------------
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (fax)
US BANCORP.
By:
-----------------------------
Name:
-----------------------------
Title:
-----------------------------
▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ - ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
PURCHASERS:
-----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
BROOKWOOD FINANCIAL
PARTNERS, LLC
By:
----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman and CEO
▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (fax)
Copy to:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Ungaretti & ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
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LANCASTER INVESTMENT PARTNERS
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇ - ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (fax)
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (fax)
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▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (fax)
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
c/o ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Express Marine, Inc.
▇▇▇▇ ▇▇▇▇▇▇ on the Delaware
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (fax)
▇▇▇▇▇▇ PARTNERS, LP
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (fax)
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BALLYSHANNON PARTNERS LP
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (fax)
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▇▇▇▇▇ ▇▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (fax)
▇▇▇▇▇▇▇▇ COMMUNICATIONS,
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
▇▇▇▇ ▇ ▇▇▇▇▇▇, #▇▇▇-▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Copy to:
▇▇▇▇▇▇▇▇ Communications Ltd.
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (fax)
SPECTRASITE COMMUNICATIONS
By:
------------------------------
Name:
------------------------------
Title:
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▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ - ▇▇▇▇▇ ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (fax)
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▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (fax)
Copy to:
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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(▇▇▇) ▇▇▇-▇▇▇▇ (fax)
New Ventures, LLC
By:
------------------------------
Name:
------------------------------
Title:
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▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (fax)
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