EXHIBIT 10.13
UBIQUITEL HOLDINGS, INC.
SERIES A
PREFERRED STOCK PURCHASE AGREEMENT
This Agreement dated as of November 23, 1999, is entered into by and
among UbiquiTel Holdings, Inc., a Delaware corporation (the "COMPANY"), The
Xxxxxx Group, Inc., a Washington corporation ("The Xxxxxx Group"), Xxxxxx X.
Xxxxxx ("Xxxxxx"), Xxxx X. Judge ("Judge"), Xxxxx Xxxxxxx ("Xxxxxxx"), and U.S.
Bancorp (individually, a "Founder" and, collectively, the "FOUNDERS"), and the
individuals and entities listed on EXHIBIT A hereto (the "PURCHASERS ").
RECITALS
(A) The Company is the parent company and sole owner of UbiquiTel LLC,
a Delaware limited liability company ("Subsidiary"). The Company is currently
owned by the Founders, and will at the Closings (as hereinafter defined) be the
assignee of a Management Agreement among Sprint Spectrum L.P., WirelessCo, L.P.
and UbiquiTel, L.L.C., a Washington limited liability company ("Old UbiquiTel"),
a services agreement among Sprint Spectrum L.P. and Old UbiquiTel, a trademark
and license agreement between Sprint Communications Company, L.P. and Old
UbiquiTel, and a trademark and service xxxx license agreement between Sprint
Spectrum L.P. and Old UbiquiTel, each dated as of September, 1998 (the foregoing
agreements being referred to collectively as the "Management Agreement"),
pursuant to which the Company has the right as Manager to construct and manage
the Service Area Network in the Reno/Tahoe Service Area (all as defined in the
Management Agreement) as well as the right to assign its rights under the
Management Agreement to Subsidiary. The Company and Sprint may agree to amend
the Management Agreement to include Northern California in the Service Area
Network, in which case approximately $15,000,000 in equity and debt will be
required.
(B) Subject to the terms and conditions of this Agreement, the
Purchasers agree to purchase collectively $1,000,000 of Series A Preferred Stock
of the Company when the Company has firm commitments for at least $33,000,000 in
senior and subordinated debt financing, and an additional $16,008,500 in Series
A Preferred Stock when the Company and the senior and subordinated lenders have
executed loan agreements and other documentation required in connection with
such financing.
Now, therefore, the parties agree as follows:
1. AUTHORIZATION AND SALE OF SHARES.
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1.1 AUTHORIZATION. The Company has, or before the Interim Closing (as
defined in Section 2) will have, duly authorized the sale and issuance, pursuant
to the terms of this Agreement, of 17,008,500 shares of its Series A Preferred
Stock, $0.001 par value per share (the "SERIES A PREFERRED"), having the rights,
restrictions, privileges and preferences set forth in the Certificate of
Designation attached hereto as EXHIBIT B (the "CERTIFICATE OF DESIGNATION"). The
Company has, or before the Interim Closing will have, adopted and filed the
Certificate of Designation with the Secretary of State of the State of Delaware.
1.2 SALE OF SHARES. Subject to the terms and conditions of this
Agreement, (i) at the Interim Closing (as defined in Section 2), the Company
shall issue and sell to each Purchaser and each Purchaser shall purchase the
number of shares of Series A Preferred set forth opposite such Purchaser's name
on EXHIBIT A under the heading "Interim Closing", for an aggregate of
$1,000,000; and (ii) at the Subsequent Closing (as defined in Section 2), the
Company shall issue and sell to each Purchaser and each Purchaser shall purchase
the number of shares of Series A Preferred set forth opposite such Purchaser's
name on EXHIBIT A under the heading "Subsequent Closing", for an aggregate of
$16,008,500. The purchase price shall be one dollar ($1.00) per share (the
"Purchase Price"). The shares of Series A Preferred sold under this Agreement
are referred to as the "Shares." The Company's agreement with each Purchaser is
a separate agreement, and the sale of Shares to each Purchaser is a separate
sale.
1.3 USE OF PROCEEDS. The Company will use the proceeds from the sale
of the Shares to construct and manage the Service Area Network and for general
corporate purposes.
2. THE INTERIM AND SUBSEQUENT CLOSING. (a) The initial purchase and
sale of the Series A Preferred by Purchasers in the amounts listed on EXHIBIT A
(the "INTERIM CLOSING") shall take place at the offices of Xxxxxxxxx Xxxxxxx,
0000 Xxxxxx Xxxxxxxxx, XxXxxx, Xxxxxxxx, on 23, 1999, commencing at 10:00 a.m.,
or at such other time, date, and place as are mutually agreeable to the Company
and the Purchasers, but in no event later than December 15, 1999. At the
Interim Closing, all conditions precedent to Closing except the condition set
forth in Section 6.9(b) shall have been fulfilled. At the Interim Closing, the
Company shall deliver to each Purchaser a certificate for the number of Shares
being purchased by such Purchaser at that time, registered in the name of such
Purchaser, against payment to the Company of the Purchase Price, by wire
transfer of immediately available funds. If at the Interim Closing any of the
other conditions specified in Section 6 shall not have been fulfilled, each
Purchaser shall, at his or its election, be relieved of all of his or its
obligations under this Agreement without thereby waiving any other rights he or
it may have by reason of such failure or such non-fulfillment.
(b) The Subsequent Closing shall take place when the condition set
forth in Section 6.9(b) has been fulfilled, such time, date, and place as is
designated by the Company and notified to the Purchasers not less than five days
prior to such Closing, but in no event later than December 15, 1999. At the
Subsequent Closing, the Company shall deliver to each Purchaser a certificate
for the number of Shares being purchased by such Purchaser at that time,
registered in the name of such Purchaser, against payment to the Company of the
Purchase Price, by wire transfer of immediately available funds. If at the
Subsequent Closing any of the conditions specified in Section 6 shall not have
been fulfilled, each Purchaser shall, at his or its election, be
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relieved of all of his or its obligations under this Agreement without
thereby waiving any other rights he or it may have by reason of such failure
or such non-fulfillment.
(c) The Interim and Subsequent Closings are referred to collectively
as "both Closings" or "each Closing".
3. REPRESENTATIONS OF THE COMPANY. Except as disclosed by the
Company in EXHIBIT C hereto, the Company hereby represents and warrants to each
Purchaser that the statements contained in this Section 3 are true, complete,
and correct and will be true, complete, and correct at each Closing. EXHIBIT C
shall be arranged in paragraphs corresponding to the numbered and lettered
paragraphs contained in this Section 3 and the disclosures in any paragraph of
EXHIBIT C shall qualify only the corresponding paragraph of this Section 3,
unless otherwise specified.
3.1 ORGANIZATION AND STANDING. (a) The Company is a corporation duly
organized, validly existing, and in good standing under the laws of the State of
Delaware and has full corporate power and authority to conduct its business as
presently conducted and as proposed to be conducted by it and to enter into and
perform this Agreement and all other agreements required to be executed by the
Company at or prior to the Interim Closing pursuant to Section 6.4 (the
"ANCILLARY AGREEMENTS") and to carry out the transactions contemplated by this
Agreement and the Ancillary Agreements. The Company is duly qualified to do
business as a foreign corporation and at each Closing will be in good standing
in the states of Nevada and California, which are the only jurisdictions in
which the failure so to qualify would have a material adverse effect on the
business, prospects, assets or condition (financial or otherwise) of the Company
(a "COMPANY MATERIAL ADVERSE EFFECT"). The Company has furnished to each
Purchaser true and complete copies of its Certificate of Incorporation and
Bylaws, each as amended to date and presently in effect. The Company has at all
times complied with the provisions of its Certificate of Incorporation and
Bylaws and is not in default under, or in violation of, any such provision.
(b) The Subsidiary is a limited liability company duly organized,
validly existing, and in good standing under the laws of the State of Delaware
and has full corporate power and authority to conduct its business as presently
conducted and as proposed to be conducted by it and to carry out the
transactions contemplated by this Agreement and the Ancillary Agreements. The
Subsidiary will be duly qualified to do business as a foreign limited liability
company and will be in good standing in the states of Nevada and California at
each Closing. The Subsidiary has furnished to each Purchaser true and complete
copies of its Certificate of Formation and Operating Agreement, each as amended
to date and presently in effect. The Subsidiary has at all times complied with
the provisions of its Certificate of Formation and Operating Agreement and is
not in default under, or in violation of, any such provision.
3.2 CAPITALIZATION. The authorized capital stock of the consists of
(i) 150,000,000 shares of common stock, $0.001 par value per share (the "COMMON
STOCK"), of which 3,417,000 shares are issued and outstanding, 2,040,000
shares have been reserved for issuance pursuant to the 1999 Stock Incentive Plan
of the Company, 3,060,000 are expected to be reserved in
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connection with senior and mezzanine bank financing, (ii) 16,000,000
shares of non voting common stock, $0.001 par value per share (the "Non
Voting Common Stock, of which 16,000,000 shares are issued and outstanding
and subject to repurchase by the Company at a price equal to the par value
thereof pursuant to a Founders Stock Agreement between the Company and the
Founders attached as EXHIBIT D), and 125,000,000 shares of preferred stock,
of which 17,008,500 are designated as Series A Preferred, none of which are
issued or outstanding, and all of which are intended to be issued pursuant to
this Agreement. All of the issued and outstanding shares of Common Stock and
Non Voting Common Stock have been duly authorized and validly issued and are
fully paid and nonassessable. Except as provided in this Agreement and the
Ancillary Agreements, (i) no subscription, warrant, option, convertible
security or preemptive or other right (contingent or otherwise) to purchase
or acquire any shares of capital stock of the Company is authorized or
outstanding, (ii) the Company has no obligation (contingent or otherwise) to
issue any subscription, warrant, option, convertible security or other such
right or to issue or distribute to holders of any shares of its capital stock
any evidences of indebtedness or assets of the Company, (iii) the Company has
no obligation (contingent or otherwise) to purchase, redeem or otherwise
acquire any shares of its capital stock or any interest therein or to pay any
dividend (other than the obligation to pay a dividend on the Series A
Preferred pursuant to the Certificate of Designation) or make any other
distribution in respect thereof, and (iv) there are no outstanding or
authorized stock appreciation, phantom stock or similar rights with respect
to the Company. All of the issued and outstanding shares of capital stock of
the Company have been offered, issued and sold by the Company in compliance
with applicable federal and state securities laws.
3.3 SUBSIDIARIES, ETC. Other than the Subsidiary, the Company does
not own or control, directly or indirectly, any shares of capital stock of
any other corporation or any interest in any partnership, joint venture or
other non-corporate business enterprise. The Subsidiary is wholly owned by
the Company, and no subscription, warrant, option, convertible security or
preemptive or other right (contingent or otherwise) to purchase or acquire
any membership interest in the Subsidiary is authorized or outstanding, and
the Subsidiary has no obligation (contingent or otherwise) to issue any
subscription, warrant, option, convertible security or other such right or to
issue or distribute to the members any evidences of indebtedness or assets of
the Subsidiary.
3.4 SECURITYHOLDER AGREEMENTS. Except as provided in this Agreement
and the Ancillary Agreements, there are no agreements, written or oral,
between the Company and any holder of its securities, or, to the best of the
Company's knowledge, among any holders of its securities, relating to the
acquisition (including without limitation rights of first refusal,
antidilution or pre-emptive rights), disposition, registration under the
Securities Act of 1933, as amended (the "SECURITIES ACT"), or voting of the
capital stock of the Company.
3.5 ISSUANCE OF SHARES. The issuance, sale and delivery of the Shares
in accordance with this Agreement, and the issuance and delivery of the shares
of Common Stock issuable upon conversion of the Shares, have been, or will be on
or prior to the Interim Closing, duly authorized by all necessary corporate
action on the part of the Company, and all such shares have been or will be duly
reserved for issuance. The Shares when so issued, sold and delivered
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against payment therefor in accordance with the provisions of this Agreement,
and the shares of Common Stock issuable upon conversion of the Shares, when
issued upon such conversion, will be duly and validly issued, fully paid and
nonassessable.
3.6 AUTHORITY FOR AGREEMENT; NO CONFLICT. The execution, delivery and
performance by the Company of this Agreement and the Ancillary Agreements, and
the consummation by the Company of the transactions contemplated hereby and
thereby, have been duly authorized by all necessary corporate action. This
Agreement has been, and the Ancillary Agreements when executed at the Interim
Closing will be, duly executed and delivered by the Company and constitute valid
and binding obligations of the Company enforceable in accordance with their
respective terms. The execution of and performance of the transactions
contemplated by this Agreement and the Ancillary Agreements and compliance with
their respective provisions by the Company will not (a) conflict with or violate
any provision of the Certificate of Incorporation or Bylaws of the Company, (b)
require on the part of the Company any filing with, or any permit,
authorization, consent or approval of, any court, arbitration tribunal,
administrative agency or commission or other governmental or regulatory
authority or agency (each of the foregoing is hereafter referred to as a
"GOVERNMENTAL ENTITY"), (c) conflict with, result in a breach of, constitute
(with or without due notice or lapse of time or both) a default under, result in
the acceleration of, create in any party the right to accelerate, terminate,
modify or cancel, or require any notice, consent or waiver under, any contract,
lease, sublease, license, sublicense, franchise, permit, indenture, agreement or
mortgage for borrowed money, instrument of indebtedness, Security Interest (as
defined below) or other arrangement to which the Company is a party or by which
the Company is bound or to which its assets are subject, (d) result in the
imposition of any Security Interest upon any assets of the Company or (e)
violate any order, writ, injunction, decree, statute, rule or regulation
applicable to the Company or any of its properties or assets. For purposes of
this Agreement, "SECURITY INTEREST" means any mortgage, pledge, security
interest, encumbrance, charge, or other lien (whether arising by contract or by
operation of law).
3.7 GOVERNMENTAL CONSENTS.
No consent, approval, order or authorization of, or registration,
qualification, designation, declaration or filing with, any Governmental Entity
is required on the part of the Company in connection with the execution and
delivery of this Agreement or the Ancillary Agreements, the offer, issuance,
sale and delivery of the Shares, the issuance and delivery of the shares of
Common Stock issuable upon conversion of the Shares or the other transactions to
be consummated at the Interim Closing, as contemplated by this Agreement and the
Ancillary Agreements, except filings required to be made after each Closing
under applicable federal and state securities laws. Based on the representations
made by each Purchaser in Section 5 of this Agreement, the offer and sale of the
Shares to each Purchaser will comply with applicable federal and state
securities laws.
3.8 LITIGATION. There is no action, suit or proceeding, or
governmental inquiry or investigation, pending, or, to the best of the Company's
knowledge, any basis therefor or threat thereof, against the Company, the
Subsidiary, or any Founder, which questions the validity of
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this Agreement or any of the Ancillary Agreements or the right of the Company
or any Founder to enter into it, or which might result, either individually
or in the aggregate, in a Company Material Adverse Effect, nor is there any
litigation pending, or, to the best of the Company's knowledge, any basis
therefor or threat thereof, against the Company or any Founder by reason of
the past employment relationships of any of the Founders, the proposed
activities of the Company, or negotiations by the Company and/or any Founder
with possible investors in the Company. The Company is not subject to any
outstanding judgement, order or decree.
3.9 ABSENCE OF UNDISCLOSED LIABILITIES. Neither the Company nor the
Subsidiary has previously conducted any business activities and neither has any
liability (whether known or unknown and whether absolute or contingent), except
for liabilities arising under or in connection with this Agreement and the
Ancillary Agreements, and the Management Agreement.
3.10 MATERIAL CONTRACTS AND OBLIGATIONS. EXHIBIT C sets forth a list
of all material agreements or commitments of any nature to which the Company or
the Subsidiary is a party or by which either of them is bound. The Company has
delivered to Purchasers copies of such agreements. All of such agreements are
valid, binding and in full force and effect. Neither the Company or the
Subsidiary, nor, to the Company's knowledge, any other party thereto, is in
default of any of its obligations under any of the agreements or contracts
listed on EXHIBIT C, in a manner which could have a Company Material Adverse
Effect.
3.11 BOOKS AND RECORDS. The minute books of the Company contain
complete and accurate records of all meetings and other corporate actions of its
stockholders and its Board of Directors and committees thereof. The stock
ledger of the Company is complete and reflects all issuances, transfers,
repurchases and cancellations of shares of capital stock of the Company.
3.12 DISCLOSURE. This Agreement and the Ancillary Agreements do not
contain any untrue statement of material fact by the Company or the Subsidiary,
and do not omit to state any material fact necessary in order to make the
statements made herein or therein, in light of circumstances under which they
are made, not misleading.
4. REPRESENTATIONS OF XXXXXX AND FOUNDERS. Each Founder, and Xxxxxx
and Judge as to Section 4.1, severally represents and warrants to the
Purchasers as follows:
4.1 CONFLICTING AGREEMENTS. Xxxxxx and Judge are not and will not
be, as a result of the nature of the business conducted or proposed to be
conducted by the Company or for any other reason, in violation of (i) any
fiduciary or confidential relationship, (ii) any term of any contract or
covenant (either with the Company or with another entity) relating to
employment, patents, assignment of inventions, proprietary information
disclosure, non-competition or non-solicitation, or (iii) any other contract or
agreement, or any judgment, decree or order of any court or administrative
agency, relating to or affecting the right of such Founder to be employed by the
Company. No such relationship, term, contract, agreement, judgment, decree, or
order conflicts with Xxxxxx' and Judge's obligations to use his best efforts to
promote the interests of the Company nor does the execution and delivery of this
Agreement, nor the carrying on of the
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Company's business as an officer or key employee of the Company, conflict
with any such relationship, term, contract, agreement, judgment, decree or
order.
4.2 LITIGATION. There is no action, suit or proceeding, or
governmental inquiry or investigation, pending or, to the best of such Founder's
knowledge, threatened against such Founder, relating to or in connection with
the Company, the business of the Company, or the Founder's relationship to the
Company, and, to the best of such Founder's knowledge, there is no basis for
any such action, suit, proceeding, or governmental inquiry or investigation.
4.3 STOCKHOLDER AGREEMENTS. Except as contemplated by or disclosed in
this Agreement or the Ancillary Agreements, such Founder is not a party to and
has no knowledge of any agreements, written or oral, relating to the
acquisition, disposition, registration under the Securities Act, or voting of
the securities of the Company.
4.4 REPRESENTATIONS AND WARRANTIES. To the best of such Founder's
knowledge, the representations and warranties of the Company set forth in
Section 3 are true and correct.
4.5 AUTHORITY. Each Founder has full authority to enter into and be
bound by this Agreement and, in the case of any Founder that is a corporation,
has taken all corporate action necessary to authorize the execution and delivery
of this Agreement.
5. REPRESENTATIONS OF THE PURCHASERS. Each Purchaser severally
represents and warrants to the Company as follows:
5.1 INVESTMENT. Such Purchaser is acquiring the Shares, and
the shares of Common Stock into which the Shares may be converted, for his, her
or its own account for investment and not with a view to, or for sale in
connection with, any distribution thereof, nor with any present intention of
distributing or selling the same; and, except as contemplated by this Agreement
and the Exhibits hereto, such Purchaser has no present or contemplated
agreement, undertaking, arrangement, obligation, indebtedness or commitment
providing for the disposition thereof. Such Purchaser is an "accredited
investor" as defined in Rule 501(a) under the Securities Act.
5.2 AUTHORITY. Such Purchaser has full power and authority to
enter into and to perform this Agreement in accordance with its terms.
5.3 EXPERIENCE. Such Purchaser has carefully reviewed the
representations concerning the Company contained in this Agreement, and has made
detailed inquiry concerning the Company, its business and its personnel; the
officers of the Company have made available to such Purchaser any and all
written information which he, she or it has requested and have answered to such
Purchaser's satisfaction all inquiries made by such Purchaser; and such
Purchaser has sufficient knowledge and experience in finance and business that
he, she or it is capable of evaluating the risks and merits of his, her or its
investment in the Company and such Purchaser is able financially to bear the
risks thereof. Each Purchaser understands that its investment in the Company
will for some period of time be illiquid.
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6. CONDITIONS TO THE OBLIGATIONS OF THE PURCHASERS. The obligation
of each Purchaser to purchase its Shares is subject to the fulfillment, or the
waiver by such Purchaser, of each of the following conditions on or before the
Interim Closing or Subsequent Closing, as applicable:
6.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES. Each
representation and warranty contained in Sections 3 and 4 shall be true on and
as of the date of each Closing, with the same effect as though such
representation and warranty had been made on and as of each Closing.
6.2 PERFORMANCE. The Company and each Founder shall have
performed and complied with all agreements and conditions contained in this
Agreement required to be performed or complied with by the Company or such
Founder prior to or at the Interim Closing or at the Subsequent Closing.
6.3 OPINION OF COUNSEL. Each Purchaser shall have received an
opinion from Xxxxxxxxx Xxxxxxx, counsel for the Company, dated as of the date of
each of the Interim and Subsequent Closing, addressed to the Purchasers, and
satisfactory in form and substance to each Purchaser, to the effect set forth on
EXHIBIT E.
6.4 ANCILLARY AGREEMENTS.
(a) STOCKHOLDERS' VOTING AGREEMENT. The Stockholders' Voting
Agreement attached hereto as EXHIBIT F (the "STOCKHOLDERS' VOTING AGREEMENT")
shall have been executed and delivered by the Company, by each Purchaser, and by
each Founder. All such action shall have been taken as may be necessary to
elect a Board of Directors of the Company, effective upon the Interim Closing,
in accordance with the Stockholders' Voting Agreement.
(b) REGISTRATION RIGHTS AGREEMENT. The Registration Rights
Agreement attached hereto as EXHIBIT G (the "REGISTRATION RIGHTS AGREEMENT")
shall have been executed and delivered by the Company and each Purchaser.
(c) CO-SALE AGREEMENT. The Co-Sale Agreement attached hereto,
containing "drag-along" and "take-along" rights, as EXHIBIT H (the "Co-Sale
Agreement") shall have been executed and delivered by each Purchaser, each
Founder, and the other parties named therein.
(d) EMPLOYMENT AND NON-COMPETITION AGREEMENT. Xxxxxx and the
Company shall have entered into an Employment and Non-Competition Agreement in
the form attached as EXHIBIT I.
(e) FOUNDERS STOCK AGREEMENT. The Founders Stock Agreement
dated as of and attached hereto as EXHIBIT D, previously executed by and
between the Company and each Founder, shall be in full force and effect, and
shall not have been amended.
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6.5 CERTIFICATES AND DOCUMENTS. The Company shall have
delivered to each Purchaser:
(a) The Certificate of Incorporation of the Company and
Certificate of Formation of the Subsidiary, as amended and in effect as of date
of the Interim Closing Date (including the Certificate of Designation),
certified by the Secretary of State of the State of Delaware;
(b) Certificates of good standing of the Company and the
Subsidiary, as of the most recent practicable dates, issued by the Secretary of
State of the State of Delaware and the Secretary of the State of Nevada and the
Secretary of State of the State of California.
(c) Bylaws of the Company and Operating Agreement of the
Subsidiary, certified by their respective Secretaries or Assistant Secretaries
as of the Interim and Subsequent Closing Dates;
(d) Resolutions of the Board of Directors and stockholders of
the Company, authorizing and approving all matters in connection with this
Agreement and the transactions contemplated hereby, certified by the Secretary
or Assistant Secretary of the Company as of the Interim and Subsequent Closing
Dates; and
6.6 MINIMUM INVESTMENT. Purchasers shall have paid at the
Interim Closing not less than $1,000,000 and at the Subsequent Closing aggregate
consideration of not less than $16,008,500 for the purchase of Shares.
6.7 COMPLIANCE CERTIFICATES. The Company shall have delivered
to the Purchasers a certificate, executed by the President of the Company, dated
the Interim and Subsequent Closing Dates, certifying fulfillment of the
conditions specified in Sections 6.1, 6.2, 6.4, 6.5 and 6.6 of this Agreement.
6.8 ASSIGNMENT OF CONTRACTS. All necessary consents to the
assignment or transfer of control of the Material Contracts shall have been
obtained, and the Company shall have delivered to the Purchasers copies of all
documents and instruments of assignment relating to assignment of all Material
Contracts to the Subsidiary.
6.9 SENIOR AND SUBORDINATED DEBT FINANCING.
(a) For the Interim Closing, the Company shall have received
firm commitments from the lenders of senior and subordinated debt financing in a
total amount of not less than $33,000,000 on terms satisfactory to the
Purchasers.
(b) For the Subsequent Closing, the Company and the lenders
shall have executed loan agreements and other documentation satisfactory to the
Purchasers with respect to the financing described in subsection (a) and all
conditions to the initial disbursement of funds thereunder shall have been
satisfied.
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6.10 OTHER MATTERS. All corporate and other proceedings in
connection with the transactions contemplated by this Agreement and all
documents and instruments incident to such transactions shall be reasonably
satisfactory in substance and form to the Purchasers and their special counsel,
and the Purchasers and special counsel shall have received all such counterpart
originals or certified or other copies of such documents as they may reasonably
request.
7. CONDITION TO THE OBLIGATIONS OF THE COMPANY. The obligations of
the Company under Section 1.2 of this Agreement are subject to fulfillment, or
the waiver, of the following condition on or before the Interim Closing or
Subsequent Closing, as applicable:
7.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties of the Purchasers contained in Section 5 shall be
true on and as of the dates of Interim and Subsequent Closing with the same
effect as though such representations and warranties had been made on and as of
that date.
7.2 MINIMUM INVESTMENT. Purchasers shall have paid at the
Interim Closing aggregate consideration of not less than $1,000,000 and at the
Subsequent Closing aggregate consideration of not less than $16,008,500 for the
purchase of Shares.
8. AFFIRMATIVE COVENANTS OF THE COMPANY. For so long as the Series A
Preferred has not been converted into Common Stock, the Company shall fulfill
and observe the following affirmative covenants:
8.1 INSPECTION AND OBSERVATION. The Company shall permit each
Purchaser who holds not less than 1,000,000 shares of Series A Preferred, or any
authorized representative thereof, to visit and inspect the properties of the
Company once annually, including its corporate and financial records, and to
discuss its business and finances with officers of the Company, during normal
business hours following reasonable notice.
8.2 FINANCIAL STATEMENTS AND OTHER INFORMATION.
(a) The Company shall deliver to each Purchaser:
(i) Within 120 days after the end of each fiscal year of
the Company, an audited balance sheet of the Company as at the end of such year
and audited statements of income and of cash flows of the Company for such year,
certified by certified public accountants of established national reputation
selected by the Company, and prepared in accordance with GAAP;
(ii) within 60 days after the end of each fiscal quarter
of the Company, an unaudited balance sheet of the Company as at the end of such
quarter, and
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unaudited statements of income and of cash flows of the Company for such
fiscal quarter and for the current fiscal year to the end of such fiscal
quarter;
(iii) as soon as available, but in any event prior to the
commencement of each new fiscal year, a business plan and projected financial
statements for such fiscal year;
(iv) such other notices, information and data with
respect to the Company as the Company delivers to the holders of its capital
stock at the same time it delivers such items to such holders.
(b) The foregoing financial statements shall be prepared on a
consolidated or combined basis if the Company then has any subsidiaries. The
financial statements delivered pursuant to clause (ii) of paragraph (a) shall be
accompanied by a certificate of the chief financial officer of the Company
stating that such statements have been prepared in accordance with GAAP
consistently applied (except as noted) and fairly present the financial
condition and results of operations of the Company at the date thereof and for
the periods covered thereby.
8.3 MATERIAL CHANGES AND LITIGATION. The Company shall promptly
notify the Purchasers of any material adverse change in the business, prospects,
assets or condition, financial or otherwise, of the Company and of any
litigation or governmental proceeding or investigation brought or, to the best
of the Company's knowledge, threatened against the Company, or against any
Founder, officer, director, key employee or principal stockholder of the Company
which, if adversely determined, would have a Company Material Adverse Effect.
8.4 AGREEMENTS WITH EMPLOYEES. The Company shall require all persons
now or hereafter employed by the Company who have access to confidential and
proprietary information of the Company to enter into employment agreements
containing nondisclosure and assignment of inventions clauses substantially in
the form of EXHIBIT I, or such other form as may be approved by the Board of
Directors.
8.5 DIRECTORS.
(a) The Company shall have a Board of Directors consisting of
five persons selected in accordance with the Stockholders' Voting Agreement,
provided that if the Company concludes a private equity offering prior to
September 30, 2000 which results in net proceeds to the Company of $100,000,000
or more, the number of directors and the composition and method of selecting
the Board of Directors shall be modified as may be required in connection with
such offering. The Bylaws of the Company shall at all times provide that the
affirmative vote of a majority of all members of the Board of Directors shall be
required to approve issuances of equity securities, corporate acquisitions,
adoption of annual budgets, adoption of an equity stock plan for employees, and
borrowings in excess of $1,000,000.
11
(b) The Company shall reimburse each director of the Company
who is not an employee of the Company and who was elected as a director by the
holders of Series A Preferred for all of his or her reasonable out-of-pocket
expenses incurred in attending each meeting of the Board of Directors or any
committee thereof.
(c) The Board of Directors shall meet at least quarterly,
unless otherwise agreed by a majority of all members of the Board of Directors.
8.6 RESERVATION OF COMMON STOCK. The Company shall reserve and
maintain a sufficient number of shares of Common Stock for issuance upon
conversion of all of the outstanding Shares.
8.7 RELATED PARTY TRANSACTIONS. The Company shall not enter into any
agreement with any stockholder, officer or director of the Company, or any
"affiliate" or "associate" of such persons (as such terms are defined in the
rules and regulations promulgated under the Securities Act), including without
limitation any agreement or other arrangement providing for the furnishing of
services by, rental of real or personal property from, or otherwise requiring
payments to, any such person or entity, without the consent of at least a
majority of the members of the Company's Board of Directors having no interest
in such agreement or arrangement.
8.8 INSURANCE. The Company will maintain valid policies of D&O
insurance, workers' compensation insurance and insurance with respect to its
proposed business of the kinds and in the amounts not less than is customarily
obtained by corporations of established reputation engaged in the same or
similar business and similarly situated, including, without limitation,
insurance against loss, damage, fire, theft, public liability and other risks.
8.A AFFIRMATIVE COVENANT OF XXXXXX AND THE XXXXXX GROUP. Xxxxxx and
The Xxxxxx Group severally agree that each of them will not pursue any Sprint
PCS affiliation except through the Company or subsidiaries of the Company.
8.B NEGATIVE COVENANT OF FOUNDER AND THE COMPANY. The Founders and
the Company will not amend the Founders Stock Agreement without the consent of
the Holders of 75% of the Series A Preferred.
9. TRANSFER OF SHARES.
9.1 RESTRICTED SHARES. "Restricted Shares" means (i) the Shares, (ii)
the shares of Common Stock issued or issuable upon conversion of the Shares, and
(iii) any other shares of capital stock of the Company issued in respect of such
shares (as a result of stock splits, stock dividends, reclassifications,
recapitalizations, or similar events); PROVIDED, HOWEVER, that shares of Common
Stock which are Restricted Shares shall cease to be Restricted Shares (x) upon
any sale pursuant to a registration statement under the Securities Act, Section
4(l) of the Securities Act, or Rule 144 under the Securities Act or (y) at such
time as they become eligible for sale under Rule 144(k) under the Securities
Act.
12
9.2 REQUIREMENTS FOR TRANSFER.
(a) Restricted Shares shall not be sold or transferred unless
either (i) they shall have been registered under the Securities Act, or (ii) the
Company shall have been furnished with an opinion of legal counsel, reasonably
satisfactory to the Company, to the effect that such sale or transfer is exempt
from the registration requirements of the Securities Act.
(b) Notwithstanding the foregoing, no registration or opinion
of counsel shall be required for (i) a transfer by a Purchaser which is a
corporation to a wholly owned subsidiary of such corporation, a transfer by a
Purchaser which is a partnership to a partner of such partnership or a retired
partner of such partnership who retires after the date hereof, or to the estate
of any such partner or retired partner, or a transfer by a Purchaser which is a
limited liability company to a member of such limited liability company or a
retired member who resigns after the date hereof or to the estate of any such
member or retired member; or a transfer by a Purchaser which is an individual to
a member of the immediate family of such individual or to a trust solely for the
benefit of such individual or the members of the immediate family of such
individual or to the estate of such individual, provided that the transferee in
each case agrees in writing to be subject to the terms of this Section 9 to the
same extent as if it were the original Purchaser hereunder, or (ii) a transfer
made in accordance with Rule 144 under the Securities Act.
9.3 LEGEND. Each certificate representing Restricted Shares shall
bear a legend substantially in the following form:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL SUCH SHARES ARE
REGISTERED UNDER SUCH ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY
IS OBTAINED TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED."
10. MISCELLANEOUS.
10.1 SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and inure to the benefit of the parties and their respective successors and
permitted assigns. This Agreement, and the rights and obligations of each
Purchaser hereunder, may be assigned by such Purchaser to any person or entity
to which Shares are transferred by such Purchaser, and such transferee shall be
deemed a "Purchaser" for purposes of this Agreement; provided that the
transferee provides written notice of such assignment to the Company. The
Company may not assign its rights under this Agreement.
10.2 CONFIDENTIALITY. Each Purchaser agrees that he, she or it
will keep confidential and will not disclose, divulge or use for any purpose
other than to monitor his, her
13
or its investment in the Company any confidential, proprietary or secret
information which such Purchaser may obtain from the Company pursuant to
financial statements, reports and other materials submitted by the Company to
such Purchaser pursuant to this Agreement, or pursuant to visitation or
inspection rights granted hereunder ("CONFIDENTIAL INFORMATION"), unless such
Confidential Information is known, or until such Confidential Information
becomes known, to the public (other than as a result of a breach of this
Section 10.2 by such Purchaser); PROVIDED, HOWEVER, that a Purchaser may
disclose Confidential Information (i) to its attorneys, accountants,
consultants, and other professionals to the extent necessary to obtain their
services in connection with monitoring its investment in the Company, (ii) to
any prospective purchaser of any Shares from such Purchaser as long as such
prospective purchaser agrees in writing to be bound by the provisions of this
Section 10.2, (iii) to any affiliate of such Purchaser or to a partner,
stockholder or subsidiary of such Purchaser, provided that such person agrees
in writing to be bound by the provisions of this Section 10.2, or (iv) as may
otherwise be required by law, provided that the Purchaser takes reasonable
steps to minimize the extent of any such required disclosure.
10.3 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
agreements, representations and warranties contained herein shall survive the
execution and delivery of this Agreement and the closing of the transactions
contemplated hereby.
10.4 EXPENSES. Each party to this Agreement shall pay its own
expenses in connection with the preparation of this Agreement and the Ancillary
Agreements and the closing of the transactions contemplated hereby.
10.5 BROKERS. The Company, each Founder, and each Purchaser (i)
represents and warrants to the other parties hereto that he, she or it has not
retained a finder or broker in connection with the transactions contemplated by
this Agreement for which any other party may become liable (except that US Bank
Corp has been retained and will be paid by the Company in connection with this
transaction), and (ii) will indemnify and save the other parties harmless from
and against any and all claims, liabilities or obligations with respect to
brokerage or finders' fees or commissions, or consulting fees in connection with
the transactions contemplated by this Agreement asserted by any person on the
basis of any statement or representation alleged to have been made by such
indemnifying party.
10.6 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).
10.7 NOTICES. All notices, requests, consents, and other
communications under this Agreement shall be in writing and shall be delivered
by messenger, or via a reputable nationwide overnight courier service
guaranteeing next business day delivery, or by facsimile followed by first class
mail, in each case to the intended recipient as set forth below:
If to the Company, to:
UbiquiTel Holdings, Inc., at its principal address
14
Attention: President
or at such other address or addresses as may have been furnished in
writing by the Company to the Purchasers.
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.
Any party may change the address to which notices, requests, consents or
other communications hereunder are to be delivered by giving the other parties
notice in the manner set forth in this Section.
10.8 COMPLETE AGREEMENT. This Agreement (including its
Exhibits) and the Ancillary Agreements constitute the entire agreement and
understanding of the parties hereto with respect to the subject matter hereof
and supersedes all prior agreements and understandings relating to such subject
matter.
10.9 AMENDMENTS AND WAIVERS. This Agreement may be amended only
by a written amendment signed by all parties. No waivers of or exceptions to any
term, condition or provision of this Agreement, in any one or more instances,
shall be deemed to be, or construed as, a further or continuing waiver of any
such term, condition or provision.
10.12 PRONOUNS. Whenever the context may require, any pronouns
used in this Agreement shall include the corresponding masculine, feminine or
neuter forms, and the singular form of nouns and pronouns shall include the
plural, and vice versa.
10.13 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 shall constitute one and the same document. This
Agreement may be executed by facsimile signatures.
10.14 SECTION HEADINGS. The section headings are for the
convenience of the parties and in no way alter, modify, amend, limit, or
restrict the contractual obligations of the parties.
[Signature pages follow]
15
SIGNATURE PAGE FOR
SERIES A STOCK PURCHASE AGREEMENT
The foregoing agreement is hereby executed as of the date set forth on
the first page:
COMPANY:
UBIQUITEL HOLDINGS, INC.
By:
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President and CEO
0 Xxxx Xxxxx - Xxxxx 000
Xxxx Xxxxxx, XX 00000
(000) 000-0000 (fax)
FOUNDERS:
-----------------------------------
Xxxxxx X. Xxxxxx
000 Xxxxxxxx Xxxx
Xx. Xxxxxx, XX 00000
(000) 000-0000 (fax)
-----------------------------------
Xxxxx Xxxxxxx
000 Xxxxxxx Xxxxxx X.
Xxxxxxxxxx Xxxxxx, XX 00000
(000) 000-0000 (fax)
-----------------------------------
Xxxx X. Judge
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000-0000
(000)000-0000 (fax)
THE XXXXXX GROUP
By:
-----------------------------
16
Name:
-----------------------------
Title:
-----------------------------
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000-0000
(000) 000-0000 (fax)
US BANCORP.
By:
-----------------------------
Name:
-----------------------------
Title:
-----------------------------
000 XX 0xx Xxxxxx - 0xx Xxxxx
Xxxxxxxx, XX 00000
(000) 000-0000
PURCHASERS:
-----------------------------------
Xxxxxx X. Xxxxxx
BROOKWOOD FINANCIAL
PARTNERS, LLC
By:
-----------------------------
Name: Xxxxxx X. Xxxxx
Title: Chairman and CEO
00 Xxxxx Xxxx
Xxxxxxx, XX 00000
(000) 000-0000 (fax)
Copy to:
Xxxxx X. Xxxxxxxxxx
Ungaretti & Xxxxxx
0000 Xxxxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
(000) 000-0000
LANCASTER INVESTMENT PARTNERS
By:
-----------------------------
17
Name:
-----------------------------
Title:
-----------------------------
000 X. Xxxxx Xxxx - Xxxxx 000
Xxxx xx Xxxxxxx, XX 00000
(000) 000-0000 (fax)
-----------------------------------
Xxxxxxx X. Xxxxxx
000 Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
(000) 000-0000 (fax)
-----------------------------------
Xxxxxx Xxxxxxxxx
000 Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
(000) 000-0000 (fax)
-----------------------------------
Xxxxxxx X. Xxxxxxx, Xx.
c/o Xxxxxxx X. Xxxxxxx, Xx.
Express Marine, Inc.
00xx Xxxxxx on the Delaware
Xxxxxx, XX 00000
(000) 000-0000 (fax)
XXXXXX PARTNERS, LP
By:
-----------------------------
Name:
-----------------------------
Title:
-----------------------------
000 Xxxxxxxxx, Xxxxx 000X
Xxxx Xxxxxx, XX 00000
(000) 000-0000 (fax)
BALLYSHANNON PARTNERS LP
18
By:
-----------------------------
Name:
-----------------------------
Title:
-----------------------------
000 Xxxx Xxxx Xxxxxx
Xxxx Xxxx, XX 00000
(000) 000-0000 (fax)
------------------------------
Xxxxx Xxxxxx
(000) 000-0000 (fax)
XXXXXXXX COMMUNICATIONS,
By:
-----------------------------
Name:
-----------------------------
Title:
-----------------------------
0000 X Xxxxxx, #000-000
Xxxxxx, XX 00000
Copy to:
Xxxxxxxx Communications Ltd.
00000 00 Xxxxxx
Xxxxxx XX X00 0X0
(000) 000-0000 (fax)
SPECTRASITE COMMUNICATIONS
By:
-----------------------------
Name:
-----------------------------
Title:
-----------------------------
000 Xxxxxxx Xxxxxx Xxxxx
- Xxxxx 000
Xxxx, XX 00000
(000) 000-0000 (fax)
-----------------------------------
Xxxx Xxxxxxxx
19
-----------------------------------
Xxxxx Xxxxxxxx
X.X. Xxx 000
Xxxxx, XX 00000
(000) 000-0000 (fax)
Copy to:
Xxxx Xxxxxxxx
Xxxxx Xxxxxx Xxxxxxx
0000 XX 0xx Xxxxxx, Xxxxx 0000
Xxxxxxxx, XX 00000
(000) 000-0000 (fax)
New Ventures, LLC
By:
----------------------------
Name:
----------------------------
Title:
----------------------------
000 X. Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
(000) 000-0000 (fax)
20
