Exhibit 10.33
EXECUTION COPY
VOTING AGREEMENT
(XXXXXXX)
THIS VOTING AGREEMENT ("AGREEMENT") is made and entered into as of
February 22, 2001, among the undersigned stockholders (the "STOCKHOLDERS") of
UbiquiTel Inc., a Delaware corporation ("UBIQUITEL"), and VIA Wireless, LLC, a
California limited liability company ("VIA").
RECITALS
A. Concurrently with the execution of this Agreement,
UbiquiTel, UbiquiTel Operating Company, VIA and related parties have entered
into a Merger Agreement (the "MERGER AGREEMENT") which provides for mergers
resulting in UbiquiTel obtaining control of VIA (the "MERGERS").
B. As a condition to its willingness to enter into the Merger
Agreement, VIA has requested that the Stockholders agree to certain matters
regarding the retention and voting of the UbiquiTel Stock (as defined below)
in connection with any meeting of UbiquiTel stockholders held to approve the
Mergers.
AGREEMENT
The parties agree as follows:
1. AGREEMENT NOT TO TRANSFER UBIQUITEL STOCK.
The Stockholders agree not to transfer, donate, or sell, (in
each case, other than as a result of death) ("TRANSFER") more than fifty percent
(50%) of any (i) UbiquiTel common stock as to which they currently have voting
rights or (ii) any UbiquiTel common stock that they hereafter acquire and as to
which they have voting rights (the shares of common stock referred to in
Subsections 1(i) and 1(ii) are collectively referred to herein as the "UBIQUITEL
STOCK") at any time prior to the earlier to occur of the UbiquiTel Stockholders'
Meeting referred to in Section 11.3 of the Merger Agreement or the termination
of the Merger Agreement pursuant to its terms, except to a person or entity who
agrees to be bound by this Agreement and delivers a duly executed copy of this
Agreement to UbiquiTel and to VIA to evidence such agreement.
2. AGREEMENT TO VOTE UBIQUITEL STOCK AND GRANT PROXY. At every
meeting of the stockholders of UbiquiTel called to approve the Mergers, each
Stockholder agrees, severally and not jointly, to vote all of the shares of
UbiquiTel Stock held by such Stockholder at the record date for, and the time
of, such meeting(s) in favor of approval of the Merger Agreement and the
Mergers and any matter that could reasonably be expected to facilitate the
Mergers. Each Stockholder further agrees that he, she or it will not directly
or indirectly take any action to solicit or encourage any person or entity to
vote against approval of the Mergers or to abstain from voting for approval of
the Mergers.
3. TERMINATION. This Agreement shall terminate and shall have
no further force or effect as of the earlier to occur of the stockholders'
meeting referred to in Section 11.3 of the Merger Agreement or the termination
of the Merger Agreement pursuant to its terms, provided that any action to
enforce a breach of this Agreement by the Stockholders shall survive such
termination.
4. MISCELLANEOUS.
4.1 BINDING EFFECT AND ASSIGNMENT. This Agreement and
all of the provisions hereof shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and permitted assigns, but,
except as otherwise specifically provided herein, neither this Agreement nor
any of the rights, interests or obligations of the parties hereto may be
assigned by either of the parties without prior written consent of the other.
4.2 AMENDMENTS AND MODIFICATION. This Agreement may not
be modified, amended, altered or supplemented except upon the execution and
delivery of a written agreement executed by the parties hereto.
4.3 SPECIFIC PERFORMANCE; INJUNCTIVE RELIEF. The
parties hereto acknowledge that VIA will be irreparably harmed and that there
will be no adequate remedy at law for a violation of any of the covenants or
agreements of the Stockholders set forth herein. Therefore, it is agreed that,
in addition to any other remedies that may be available to VIA upon any such
violation, VIA shall have the right to enforce such covenants and agreements
by specific performance, injunctive relief or by any other means available to
VIA at law or in equity.
4.4 GOVERNING LAW. This Agreement shall be governed by,
construed and enforced in accordance with, the internal laws of the State of
Delaware as such laws are applied to contracts entered into and to be
performed entirely within Delaware.
4.5 COUNTERPARTS. This Agreement may be executed in
several counterparts, each of which shall be an original, but all of which
together shall constitute one and the same agreement.
4.6 EFFECT OF HEADINGS. The section headings herein are
for convenience only and shall not affect the construction or interpretation
of this Agreement.
[SIGNATURE PAGE FOLLOWS.]
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IN WITNESS WHEREOF, the undersigned have executed this VOTING AGREEMENT
as of the date first set forth above.
VIA WIRELESS, INC.
By:
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Name:
Title:
[SIGNATURE PAGE TO VOTING AGREEMENT]
IN WITNESS WHEREOF, the undersigned have executed this VOTING AGREEMENT
as of the date first set forth above.
STOCKHOLDERS:
XXXXX X. XXXXXXX & XXX XXXXX XXXXXXX,
as Joint Tenants
NUMBER OF SHARES: 905,158
By:
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Name: XXXXX X. XXXXXXX
By:
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Name: XXX XXXXX XXXXXXX
[SIGNATURE PAGE TO VOTING AGREEMENT]
