Exhibit 9-1(a)
VOTING TRUST AGREEMENT
AGREEMENT, made this 5th day of November, 1996, among Landover Holdings
Corp. ("LHC"), Xxxxxxxx Xxxxxxxxx ("KZ") and Xxxxxxx Xxxxx Xxxxxxxxx Trust (the
"Z Trust"), each a stockholder of Advanced Radio Telecom Corp. (formerly
Advanced Radio Technologies Corporation) (the "Company") a corporation organized
and existing under the laws of the State of Delaware, and Xxxxxx X.
Xxxxxxxxxxxx, Xxxxxx X. Xxxxxx and Xxxx X. Xxxxxxxx, who are hereinafter called
the Trustees.
WHEREAS, a subsidiary of the Company has merged (the "Merger") with ART
Licensing Corp. (formerly Advanced Radio Telecom Corp.); and
WHEREAS, the Company on the date hereof is making an underwritten initial
public offering (the "IPO") of its Common Stock, par value $0.001 per share (the
"Common Stock") and, in connection therewith, the Company and LHC deem it to be
in the best interests of the Company and its stockholders that the Company
obtain a listing of the Common Stock on the Nasdaq National Market ("Nasdaq") in
order to improve the liquidity and marketability of the Common Stock; and
WHEREAS, after giving effect to the Merger, LHC owns 2,936,938 shares, KZ
owns 36,364 shares and the Z Trust owns 36,364 shares (collectively, the
"Current Shares") of the Common Stock including 16,545 shares of Common Stock
issuable upon exercise of warrants, but not including 107,086 shares, 500,254
shares, and 34,807 shares of Common Stock held by E1 Holdings, L.P.,
E2 Holdings, L.P. and E2-3 Holdings, L.P., respectively, each a limited
partnership which was controlled by LHC but dissolved on the date hereof; and
WHEREAS, Xxxxxxxx X. Xxxxxxxxx ("Xxxxxxxxx") controls LHC; and
WHEREAS, in order to assist the Company to obtain such listing on Nasdaq,
LHC, KZ and Z Trust have agreed to enter into this Agreement and to deposit the
LHC Securities (as defined below) into the trust created hereby; and
WHEREAS, pursuant to the Cooperation Agreement dated as of November 5, 1996
by and between LHC, Xxxxxxxxx and the Company, Xxxxxxxxx and LHC have agreed to
deposit, or cause the deposit into the trust created hereby of, the Current
Shares and any other shares of capital stock of the Company (the "Other Shares")
that may hereafter be acquired or beneficially owned by LHC, Xxxxxxxxx, KZ, Z
Trust, members of Xxxxxxxxx'x immediate family or any entity(ies) in which any
of LHC, Xxxxxxxxx, KZ, Z Trust or members of Xxxxxxxxx'x immediate family have,
directly or indirectly, a controlling interest or more than 10% of such entity's
equity or debt (the "LHC Affiliates", acting as a group or severally as the
context requires), including without limitation any shares of capital stock of
the Company that may be issued upon exercise of any rights, warrants or options
to purchase or otherwise acquire,
or other securities convertible into, Common Stock, and any rights, warrants or
options to purchase or otherwise acquire, or other securities convertible into
such capital stock (collectively, with the Current Shares and Other Shares, the
"LHC Securities"); and
WHEREAS, in order to induce the Trustees to act hereunder the Company has
agreed to indemnify the Trustees for any costs relating to their services
hereunder; and
WHEREAS, 145,685 of the Current Shares, issuable upon consummation of the
Merger, (the "Option Shares") are held by Xxxxxxx & Xxxxxxx L.L.P. (the "Escrow
Agent") pursuant to an escrow agreement (the "Escrow Agreement") subject to an
option agreement, each dated February 2, 1996 among LHC, the holders of Series D
Preferred Stock of the Company, and, in the case of the Escrow Agreement, the
Escrow Agent; and
WHEREAS, in the interests of all the stockholders of the Company, the
parties hereto are desirous of creating a trust;
NOW THEREFORE the parties hereby agree as follows:
1. (a) The LHC Affiliates shall forthwith, and from time to time in the
future if any of the LHC Affiliates acquires additional LHC Securities, indorse
in blank and assign and deliver to the Trustees all certificates for the LHC
Securities (other than the Option Shares) and shall do all things necessary for
the transfer of the LHC Securities (other than the Option Shares) to the
Trustees on the books of the Company and shall become parties hereto to the
extent they are not previously parties hereto. The Trustees shall issue and
deliver in exchange therefor voting trust certificates for the LHC Securities so
transferred to the Trustees in substantially the form attached hereto as
APPENDIX I.
(b) LHC shall use its best efforts to cause the Escrow Agreement to
be amended to provide that any Option Shares that may be otherwise released to
LHC under the Escrow Agreement shall be assigned and delivered to the Trustees,
indorsed in blank, as LHC Securities subject to this Voting Trust Agreement.
2. (a) The Trustees shall hold the LHC Securities so transferred to them
in trust hereunder for the benefit of LHC, under the terms and conditions set
forth herein.
(b) Notwithstanding any provision hereof, each of the LHC Affiliates
shall have the right to sell, assign, transfer or pledge any or all of the LHC
Securities to third parties and the Trustees shall use their reasonable efforts
to cause any LHC Securities so sold, assigned, transferred or hypothecated to be
transferred promptly to the purchaser, assignee, transferee or pledgee thereof
against delivery of the voting trust certificates representing the LHC
Securities; provided in the case of a pledge that the pledgee shall not have any
right to vote the LHC Securities. LHC Securities sold, assigned, transferred or
hypothecated to an affiliate of any of the LHC Affiliates shall
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remain in trust hereunder subject to the terms of this Agreement. LHC
Securities sold or transferred to third parties not affiliated with the LHC
Affiliates shall be released from the trust upon such sale or transfer. A third
party shall be deemed "affiliated" for purposes of this Section 2(b) if such
third party is controlled by, controls or under common control with LHC,
Xxxxxxxxx or a member of the immediate family of Xxxxxxxxx, is retained by LHC,
Xxxxxxxxx or a member of the immediate family of Xxxxxxxxx as a consultant
generally operating at the direction of such person, is employed, directly or
indirectly, by such person, or has made substantial business investments of any
nature in any entity with LHC, Xxxxxxxxx or a member of the immediate family of
Xxxxxxxxx. The term "substantial business investments" refers to investments by
a third party comprising more than 5% of the equity or debt of a company,
partnership or joint venture in which any of the LHC Affiliates or an affiliate
of any of the LHC Affiliates has an investment of at least 5%.
3. The Trustees shall surrender to the proper officers of the Company for
cancellation all certificates of stock which shall be assigned and delivered to
them as hereinbefore provided, and in their stead shall procure new certificates
to be issued to them as Trustees under this Agreement.
4. (a) The Trustees shall have only the powers set forth in this
Agreement.
(b) With respect to all LHC Securities held in trust by the Trustees
hereunder, the LHC Affiliates shall severally retain the entire economic and
beneficial ownership rights therein, including without limitation the right to
receive dividends and distributions on the LHC Securities and the right to
direct the Trustees in any order whatsoever to sell, assign, transfer, encumber
or grant any option therein to or in favor of any person other than LHC or an
affiliate of LHC or agree to do any such thing, except that the Trustees shall
have the exclusive and absolute right in respect of such LHC Securities to vote
(in person, by proxy, by written consent or otherwise) the LHC Securities at all
times during the term of this Agreement, including without limitation the right
to vote at any election of directors and in favor of or in opposition to any
resolution, any dissolution, liquidation, merger or consolidation of the
Company, any sale of all or substantially all the Company's assets, any issuance
or authorization of securities, or any action of any character whatsoever which
may be presented at any meeting or require the consent of stockholders of the
Company. In exercising the Trustees' powers and duties hereunder, the Trustees
shall at all times vote in respect of any action as follows: (i) if the matter
concerned is the election of directors, then the Trustees shall vote the whole
number of shares held by the trust created hereunder for each director (or
nominee for director) for which such shares are eligible to vote by multiplying
the total number of votes held by the trust by a fraction, the numerator of
which is the number of votes cast in respect of shares of the Company other than
LHC Securities (the "Nonaffiliated Votes") for such person and
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the denominator of which is the sum of the total number of Nonaffiliated Votes
represented by all shares casting any votes in the election of such directors;
(ii) where the matter under Delaware law or the Certificate of Incorporation of
the Company requires an absolute majority (but not a supermajority) of all
outstanding shares of common stock of the Company in order to be effected, then
the Trustees shall vote all of the LHC Securities in same manner as the majority
of all Nonaffiliated Votes are cast for or against the matter; and (iii) on all
other matters, including without limitation any amendment of this Agreement for
which a stockholders vote is required under Section 9 hereof, the Trustees shall
at all times vote all of the LHC Securities for, against the matter, or shall
abstain or cause to have the same effect as broker non-votes, in the same
proportion in favor of, in opposition to, or in abstention or as broker
non-votes with respect to, such matter as Nonaffiliated Votes are cast for,
against, or in abstention or are broker non-votes with respect to, the matter.
If any calculation of votes under the preceding sentence would require a
fractional vote, the Trustees shall vote the next lower number of whole shares.
The Trustees shall use all reasonable commercial efforts to ensure, with respect
to the LHC Securities held in trust by the Trustees hereunder, that all of the
LHC Securities are counted as being present for the purposes of any quorum
required for stockholder action of the Company and to vote as set forth above.
(c) The Trustees may vote with respect to all the LHC Securities held
hereunder in person or by such person or persons as it may from time to time
select as their PROXY provided that the Trustees shall at all times do so in
conformity with the provisions of Section 4(b) hereof.
(d) The Trustees shall have no authority to sell or otherwise dispose
of or to pledge, encumber or hypothecate, any of the stock deposited pursuant to
the provisions of this Agreement, unless directed to do so by the LHC Affiliates
as provided in Section 2(b) above.
5. To the fullest extent permitted by law, the Trustees shall not be
liable for any vote cast, or consent given by them, or for any other action
hereunder taken or omitted by them hereunder, in good faith, or in the absence
of gross negligence or willful misconduct. To the fullest extent permitted by
law, the Trustees shall not be liable in acting on any notice, request, consent,
certificate, instruction, or other paper or document or signature reasonably
believed to be genuine and to have been signed by the proper party. The Trustees
may consult with legal counsel (reasonably competent for the purpose) and, to
the fullest extent permitted by law, any act or omission undertaken by the
Trustees in good faith in accordance with the opinion of such legal counsel
shall not result in any liability of the Trustees.
6. The Trustees shall collect and receive all dividends that may accrue
upon the shares of stock subject to this trust, and shall distribute the same to
the LHC Affiliates in accordance with
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their respective ownership, except that dividends payable in stock of the
Company shall be held in trust as additional LHC Securities hereunder.
7. In the event of any Trustee ceasing to serve as a director of the
Company, dying or resigning or refusing or becoming unable to act (any of which
is deemed incapacity), the surviving or other Trustees or Trustee shall appoint
a Trustee or Trustees from among the directors of the Company to fill the
vacancy or vacancies, and any person so appointed shall thereupon be vested with
all the duties, powers, and authority of a Trustee hereunder as if originally
named herein. No successor Trustee shall be liable for actions or omissions of
the other Trustees or any other successor Trustee.
8. This Agreement and the trust created herein shall be effective upon
completion of the Merger and shall terminate (a) if the IPO fails to close by
December 1, 1996 or (b) upon the earlier to occur of (i) the death of Xxxxxxxxx,
(ii) November 1, 2006, (iii) the sale of all the LHC shares and (iv) prior to
July 15, 2006 in the event that a business combination occurs in which (A)
holders of ART Common Stock receive common equity securities in the new company
representing less than 50% of the voting power of the new company, (B) less than
half of the directors of the new company on a going-forward basis are former ART
directors, and (C) the LHC Affiliates' equity represents less than 5% of the
voting power of the new company. However, notwithstanding any of the foregoing,
this Agreement shall not terminate if its continued existence is required by a
third party regulatory agency, for example, as a condition to continued listing
of the Company's (or any acquiring company's) equity securities on the Nasdaq
National Market System or other principal trading market for such equity
securities. Upon the termination of this Agreement the Trustees shall assign
and transfer to LHC or its designee(s) all the LHC Securities remaining in trust
hereunder.
9. The Company and its stockholders are hereby expressly made third party
beneficiaries of this Agreement, and accordingly, to the fullest extent
permitted by law, this Agreement may not be amended without the prior written
consent of the Company, acting by unanimous vote of its Board of Directors, and
approval of the Company's stockholders acting by the affirmative vote of
two-thirds of the total voting power of the capital stock of the Company
generally entitled to vote on matters submitted to a stockholder vote; provided,
however, that the parties hereto may enter into any amendment of this Agreement,
without regard to this Section 9, and the LHC Affiliates agree to enter into any
such amendment, if such amendment is in the opinion of legal counsel to the
Company necessary or appropriate to maintain compliance of this agreement with
the laws of the State of Delaware.
10. The Trustees are expressly authorized to incur and pay such reasonable
expenses and charges, to employ and pay such agents, attorneys and counsel, and
to incur and pay such other charges and expenses as the Trustees may deem
reasonably necessary and proper for administering this Agreement.
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11. (a) All of the covenants and agreements contained in this Agreement
shall be binding upon, and inure to the benefit of, the respective parties and
their successors, assigns, heirs, executors, administrators and other legal
representatives, as the case may be.
(b) This Agreement, and the rights of the parties hereto, shall be
governed by and construed in accordance with the laws of the State of Delaware.
(c) This Agreement may be executed in one or more counterparts, each
of which will be deemed an original but all of which together shall constitute
one and the same instrument.
(d) If any provision of this Agreement shall be declared void or
unenforceable by any court or administrative board of competent jurisdiction,
such provision shall be deemed to have been severed from the remainder of the
Agreement and this Agreement shall continue in all respects to be valid and
enforceable. Each of the parties hereto shall take any and all actions
necessary for the enforceability of this Agreement under Delaware Law, including
without limitation any necessary filings or actions required by Section 218 of
the General Corporation Law of Delaware.
(e) Whenever the context of this Agreement shall so require, the use
of the singular number shall include the plural and the use of the gender shall
include all genders.
IN WITNESS WHEREOF, the subscribers have hereunto set their hands and
seals, and set opposite their respective signatures the number of shares held by
them respectively, and the Trustees, in token of their acceptance of the trust
hereby created, have hereunto set their hands and seals.
TRUSTEES: ______________________________
Xxxxxx X. Xxxxxxxxxxxx
______________________________
Xxxxxx X. Xxxxxx
______________________________
Xxxx X. Xxxxxxxx
LHC: LANDOVER HOLDINGS CORPORATION
By:___________________________
Xxxxxxxx X. Xxxxxxxxx
KZ: ______________________________
Xxxxxxxx Xxxxxxxxx
Z Trust: XXXXXXX XXXXX XXXXXXXXX TRUST
By:___________________________
Xxxxxxxx Xxxxxxxxx, Trustee
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APPENDIX I
VOTING TRUST CERTIFICATE
ADVANCED RADIO TELECOM CORP.
VOTING TRUST CERTIFICATE
No. __________ __________ SHARES
This is to certify that ___________________ is the owner of __________
shares of capital stock, or rights, warrants or options to purchase, or other
securities convertible into ___ shares of Capital Stockof Advanced Radio Telecom
Corp., held by the undersigned as Trustee subject and pursuant to the terms,
conditions and stipulations of a Voting Trust Agreement dated November, 1996, a
copy of which Agreement is on file in the registered office of the Company in
Delaware, reference being had thereto as to all the terms, conditions, and
requirements of said Agreement.
This certificate is transferable only on the books of the Trustees by the
holder thereof in person or by attorney upon the surrender of this certificate
properly endorsed.
IN WITNESS WHEREOF, the Trustee have caused this certificate to be signed
this ____ day of __________, 1996.
________________________, Trustee
________________________, Trustee
________________________, Trustee
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