1
Exhibit 10.25
STOCKHOLDERS AGREEMENT
----------------------
AGREEMENT dated as of June 20, 1997 by and among Sygnet Wireless,
Inc., an Ohio corporation (the "COMPANY"), Boston Ventures Limited Partnership
V, a Delaware limited partnership ("BOSTON VENTURES"), and X.X. Xxxxxxxxxx, XX
and Xxxxxx X. Xxxxxxxxxx, III, each an individual resident of Ohio (the
"WILLIAMSONS").
Introduction
------------
In order to induce Boston Ventures to make an investment in the
Company, and to provide for the ongoing ownership and governance of the
Company, the Company, Boston Ventures and the Williamsons, who are principal
stockholders of the Company, wish to enter into this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
ARTICLE I. CERTAIN DEFINITIONS.
---------- --------------------
SECTION 1.01. CERTAIN DEFINITIONS. As used herein, "INVESTMENT
AGREEMENT" means the Investment Agreement dated June 20, 1997 among the Company
and Boston Ventures, as amended from time to time. As used herein, "ORIGINAL
STOCKHOLDERS" means the Williamsons and each other Stockholder that first
becomes a Stockholder as a result of acquiring Stock from one of the
Williamsons or from another Original Stockholder on or after the date hereof.
As used herein, "INVESTORS" means Boston Ventures, and each other Stockholder
that first becomes a Stockholder as a result of acquiring Stock from Boston
Ventures or from another Investor. As used herein, "STOCK" means all
outstanding capital stock of the Company. As used herein, "STOCKHOLDERS" means
the Investors and the Original Stockholders.
ARTICLE II. BOARD OF DIRECTORS; VOTING.
----------- ---------------------------
SECTION 2.01. BOARD SIZE. At all meetings (and written actions in lieu
of meetings) of stockholders of the Company at which the number of directors of
the Company is to be determined, each Stockholder shall vote all of such
Stockholder's Stock to
2
fix the number of directors of the Company at not more than eleven.
SECTION 2.02. ELECTION OF DIRECTORS. Except as provided in Section
2.04 below, at all meetings (and written actions in lieu of meetings) of
stockholders of the Company at which directors are to be elected, each
Stockholder shall vote all of such Stockholder's Stock so that there will be
(in addition to any other directors of the Company) two directors designated by
Boston Ventures (the "INVESTOR DIRECTORS").
SECTION 2.03. REMOVAL. Each Stockholder agrees to vote such
Stockholder's Stock, at all meetings (and written actions in lieu of meetings)
of stockholders of the Company to remove any director designated under Section
2.02, if so requested by Boston Ventures. Each Stockholder agrees not to vote
such Stockholder's Stock in favor of the removal of any such director other
than in accordance with the preceding sentence.
SECTION 2.04. VACANCIES. Each Stockholder agrees to vote such
Stockholder's Stock, at all meetings (and written actions in lieu of meetings)
of stockholders of the Company to fill any vacancy on the Board of Directors
caused by the resignation or removal of any director to be designated under
2.02, with a nominee selected as provided therein.
SECTION 2.05. COVENANTS. Each Stockholder agrees to vote such
Stockholder's Stock, at all meetings (and written actions in lieu of meetings)
of stockholders of the Company in a manner that is consistent with the
covenants of the Company contained in the Investment Agreement, including
without limitation Section 5.05 therein, and which will not result in a breach
thereof.
ARTICLE III. TRANSFER RESTRICTIONS; RIGHTS OF FIRST REFUSAL AND
------------ --------------------------------------------------
CO-SALE.
--------
SECTION 3.01. NO TRANSFER. No Stockholder may sell, pledge, give,
assign, distribute, hypothecate, mortgage or transfer (all hereinafter referred
to as "TRANSFER") any Stock owned by such Stockholder, directly or indirectly,
to any other person or entity, except (a) after January 1, 2000 and upon
compliance with the other provisions of this Article III or (b) as permitted by
Section 3.05.
SECTION 3.02. OFFER TO COMPANY AND STOCKHOLDERS; CO-SALE. If a
Stockholder (the "TRANSFERRING STOCKHOLDER") desires to transfer any of such
Stockholder's shares of Stock, such Stockholder shall first offer such shares
to the Company and the other Stockholders by written notice (the "INITIAL
NOTICE") stating the name of the proposed transferee, the number of shares such
Stockholder desires to transfer and the proposed price
-2-
3
(expressed in U.S. dollars) and terms of transfer (which shall be for cash
payable at the time of transfer). The Company and the other Stockholders shall
then have 30 days within which to give notice (the "RETURN NOTICE") of the
maximum number of such shares they wish to acquire at the specified price and
terms. Copies of each Return Notice shall be sent to the Company and to the
other Stockholders.
Subject to any applicable restrictions on the Company (including
without limitation under the Investment Agreement), the Company shall be
entitled to purchase any or all of the shares offered. If the Company elects to
purchase fewer than all of the shares offered, the other Stockholders (other
than the Transferring Stockholder) shall be entitled to acquire the balance of
the shares remaining on a pro rata basis, calculated as a fraction, the
numerator of which is the number of shares of Common Stock owned by such
Stockholder and the denominator of which is the number of shares of Common
Stock owned by all Stockholders (other than the Transferring Stockholder). If
any Stockholder elects to acquire less than such Stockholder's pro rata portion
of the available Stock, the other Stockholders (other than the Transferring
Stockholder) may acquire a pro rata portion of the balance of the Stock
remaining.
In addition to the foregoing, in the Return Notice, the other
Stockholders shall indicate whether, if the Company and the Stockholders do not
elect to acquire all Stock offered by the Transferring Stockholder, they desire
to have a proportionate number of their shares of Stock transferred in the same
transaction. In that event, the Transferring Stockholder may not transfer any
Stock unless the transferee also acquires a proportionate amount of the Stock
of each other Stockholder who requested that Stock be included in such
transfer, on the price and terms specified in the Initial Notice. For purposes
of this Section, all classes of Common Stock shall be treated as a single
class.
SECTION 3.03. PAYMENT. If the Company and the other Stockholders give
notice of their intention to acquire all of the shares of Stock pursuant to
Section 3.02, the Company shall, at the close of the 30-day period provided in
Section 3.02 for delivery of the Return Notice, confirm by notice to the
Transferring Stockholder and the other Stockholders the number of shares to be
acquired by the other Stockholders and by the Company. Payment for such shares
shall be delivered within 20 days thereafter at the price and on the terms
specified in the Initial Notice, against receipt from the Transferring
Stockholder of certificates for the shares purchased, duly endorsed for
transfer, free and clear of all liens, restrictions, claims and encumbrances,
except under applicable securities laws and this Agreement.
-3-
4
SECTION 3.04. RIGHT TO SELL. If, at the close of the 30-day period
provided in Section 3.02 for delivery of the Return Notice, the Company and the
other Stockholders have not sent notice of their intention to acquire, in the
aggregate, all of the Stock offered, the Transferring Stockholder shall have 90
days to transfer the Stock which is not being purchased by the Company or a
Stockholder to the third party specified in the Initial Notice, together with
any additional Stock to be included in such transfer pursuant to the last
paragraph of Section 3.02, at the price and on the terms specified therein. The
Stockholders shall, in order to be entitled to have Stock transferred, deliver
on no less than 20 days' notice from the Transferring Stockholder certificates
representing the shares of Stock to be transferred, duly endorsed for transfer,
free and clear of all liens, restrictions, claims and encumbrances, except
under applicable securities laws and this Agreement.
SECTION 3.05. EXCEPTIONS TO RESTRICTIONS. Notwithstanding any other
provision of this Agreement (other than Section 4.05), the following transfers
of Stock may be consummated without restriction:
(a) Transfers of Stock of an Original Stockholder,
representing an aggregate of not more than 40% of the Stock held by such
Original Stockholder, to the trustees of a trust revocable by him alone, the
beneficiaries of which consist solely of the Original Stockholder and
transferees enumerated in Subsection (d) below;
(b) Transfers of Stock between an Original Stockholder and
his guardian or conservator;
(c) Transfers of Stock of a deceased Original Stockholder to
his executors or administrators or to trustees under his will and thereafter to
transferees enumerated in Subsection (d) below;
(d) Transfers of Stock of an Original Stockholder,
representing an aggregate of not more than 40% of the Stock held by such
Original Stockholder, to the Original Stockholder's spouse, to any of his
children or their issue (or to custodians for the benefit of minor children or
issue), or to the Original Stockholder's parents or siblings;
(e) Transfers of Stock by Boston Ventures to any of its
partners in accordance with the terms of its Agreement of Limited Partnership;
and
(f) Transfers of Stock by a Stockholder to Boston Ventures at
the Subsequent Closing pursuant to the Investment Agreement.
-4-
5
All Stock transferred pursuant to this Section shall remain subject to
the restrictions contained herein applicable to the initial Stockholders in the
hands of the transferee, PROVIDED, HOWEVER, that such Stock may not be further
transferred, except to a person or entity to which the initial Stockholders
could have transferred such Stock pursuant to Subsections (a) through (e)
above, without first complying with the provisions of Sections 3.02.
SECTION 3.06. LEGENDS. All certificates representing shares of Stock
issued to a Stockholder shall bear substantially the following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS ON TRANSFER AND OTHER OBLIGATIONS CONTAINED IN A
STOCKHOLDERS AGREEMENT BETWEEN THE COMPANY AND CERTAIN OF ITS
STOCKHOLDERS, A COPY OF WHICH IS ON FILE WITH THE COMPANY AND WILL
BE FURNISHED WITHOUT COST TO THE HOLDER HEREOF UPON WRITTEN
REQUEST TO THE SECRETARY.
SECTION 3.07. FAILURE TO DELIVER SHARES. If any Stockholder fails to
deliver the shares of Stock to be acquired by the Company or any Stockholder
hereunder, the acquiror may elect to establish a segregated account in the
amount of the price to be paid therefor, such account to be turned over to the
Transferring Stockholder upon delivery of the certificates representing the
shares of Stock as required herein. If a segregated account is so established,
the Company shall take such action as is appropriate to transfer record title
of the shares of Stock from the Transferring Stockholder to the acquiror. Each
Stockholder hereby irrevocably grants the Company a power of attorney to
effectuate the purposes of this Section.
-5-
6
ARTICLE IV. MISCELLANEOUS.
----------- --------------
SECTION 4.01. NOTICES. All notices to a party hereunder shall be in
writing and shall be deemed to have been adequately given if delivered in
person, by facsimile transmission with receipt acknowledged or by delivery by a
recognized courier for overnight delivery, or mailed, certified mail, return
receipt requested, to such party at its address set forth below (or such other
address as it may from time to time designate in writing to the other parties
hereto).
The Company: Sygnet Wireless, Inc.
0000-X Xxxxxxx Xxxxx
Xxxxxxxx, Xxxx 00000
Attention: Xxxxx X. Xxxxxx
Fax: (000) 000-0000
With a copy to:
Xxxxxxx Xxxxxxxx, Esquire
Xxxxx Xxxx LLP
000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Fax: (000) 000-0000
X.X. Xxxxxxxxxx, XX: c/o Sygnet Wireless, Inc.
0000-X Xxxxxxx Xxxxx
Xxxxxxxx, Xxxx 00000
Fax: (000) 000-0000
With a copy to:
Xxxxx X. Xxxxx, Esquire
Xxxxxxxxxx & Xxxxxxxx, Ltd.
0000 Xxxxxxxx Xxxx Xxxxxxxx
Xxxxxxxxxx, Xxxx 00000
Fax: (000) 000-0000
Xxxxxx X. Xxxxxxxxxx, III: c/o Sygnet Wireless, Inc.
0000-X Xxxxxxx Xxxxx
Xxxxxxxx, Xxxx 00000
Fax: (000) 000-0000
With a copy to:
Xxxxx X. Xxxxx, Esquire
Xxxxxxxxxx & Xxxxxxxx, Ltd.
0000 Xxxxxxxx Xxxx Xxxxxxxx
Xxxxxxxxxx, Xxxx 00000
Fax: (000) 000-0000
-6-
7
Boston Ventures: Boston Ventures Limited
Partnership V
00 Xxxxxx Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxx Xxxx
Fax: (000) 000-0000
With a copy to: Xxxxxxx X. X. Xxxxx, Esquire
Xxxxxx, Hall & Xxxxxxx
Exchange Place
Xxxxxx, Xxxxxxxxxxxxx 00000
Fax: (000) 000-0000
or, if the address of a Stockholder is not included herein, at the address of
such Stockholder on the Company's stock records.
SECTION 4.02. BINDING EFFECT AND BENEFIT. This Agreement shall be
binding upon, and inure to the benefit of, the Company and the Stockholders and
their respective heirs, legal representatives, successors and assigns, subject
to the restrictions on transfer contained herein.
SECTION 4.03. WAIVERS, ENTIRE AGREEMENT, MODIFICATIONS. No party shall
be deemed to waive any rights hereunder unless such waiver is in writing and
signed by the Company, Stockholders owning a majority of the shares of Common
Stock held by the Stockholders, and Investors holding a majority of the shares
of Common Stock held by the Investors. A waiver in writing on one occasion
shall not be construed as a consent to or a waiver of any right or remedy on
any future occasion.
SECTION 4.04. GOVERNING LAW, CONSTRUCTION. This Agreement shall be
governed by and construed and enforced in accordance with the internal laws of
the State of Ohio. Wherever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision hereof shall be prohibited by or invalid under any such
law, such provision shall be ineffective to the extent of such prohibition or
invalidity, without invalidating or nullifying the remainder of such provision
or any other provisions of this Agreement.
SECTION 4.05. TRANSFEREES OF STOCKHOLDERS. No Stockholder shall
transfer any Stock (except to the Company) unless the person, firm, corporation
or other entity so acquiring such Stock shall first become a signatory to this
Agreement, agreeing to be bound by all the terms of this Agreement as a
Stockholder. The Company shall not transfer any shares of Stock on its books
which have been transferred in violation of this Agreement, or to treat as the
owner of such shares of Stock, or to accord the right to vote as such owner or
to pay dividends to, any person or entity to which any such shares of Stock
shall have been transferred,
-7-
8
from and after any transfer of any share of Stock made in violation of this
Agreement.
SECTION 4.06. SPECIFIC PERFORMANCE. The parties hereto agree that the
other parties and the Company shall be irreparably harmed if the provisions of
this Agreement are not performed. Accordingly, in the event of any violation or
threatened violation of any provision hereof by any party hereto, each other
party shall, in addition to all other rights and remedies of such parties, be
entitled to injunctive relief and specific performance of the provisions of
this Agreement.
SECTION 4.07. REPRESENTATIONS OF STOCKHOLDERS. Each Stockholder
represents and warrants to each other party that such Stockholder is not bound
by any agreement or commitment that conflicts with or would interfere with the
performance of such Stockholder's obligations under this Agreement.
SECTION 4.07. STOCKHOLDERS' LOCK-UP AGREEMENT. Each Original
Stockholder agrees that such Stockholder will adhere to the restrictions
contained in Section 12 of the Registration Rights Agreement dated June 20,
1997 between the Company and Boston Ventures, as amended or replaced from time
to time, in the circumstances described therein, as if such Original
Stockholder was a party thereto.
SECTION 4.08. TERMINATION. Except for Article II and Section 4.07,
this Agreement shall terminate upon the initial registered underwritten public
offering of the Company's Common Stock, in which the aggregate proceeds to the
Company of the offering are not less than $25,000,000.
-8-
9
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as a sealed instrument as of the date and year first above written.
SYGNET WIRELESS, INC.
By_________________________________
(Title)
___________________________________
X.X. Xxxxxxxxxx, XX
___________________________________
Xxxxxx X. Xxxxxxxxxx, III
BOSTON VENTURES LIMITED PARTNERSHIP V
By: Boston Ventures Company V, L.L.C.,
Its General Partner
By_________________________________
(Title)
-9-
