Exhibit 9-1(c)
COOPERATION AGREEMENT
This Cooperation Agreement (the "Agreement") is made as of the 5th day of
November, 1996 by and between Landover Holdings Corp. ("LHC"), Xxxxxxxx X.
Xxxxxxxxx ("Xxxxxxxxx") and Advanced Radio Technologies Corporation, a Delaware
corporation (the "Company").
RECITALS
WHEREAS, a subsidiary of the Company has merged (the "Merger") with
Advanced Radio Telecom Corp. ("Telecom"), and the Company also implemented a one
for 2.75 reverse stock split; and
WHEREAS, after the Merger the Company changed its name to Advanced Radio
Telecom Corp.; and
WHEREAS, the Company is preparing to make 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, LHC is controlled by Xxxxxxxxx; and
WHEREAS, after giving effect to the Merger and the conversion of the
Company's preferred stock into Common Stock as a consequence of the IPO, LHC
owns 2,936,938 shares and affiliates of LHC, including Xxxxxxxx Xxxxxxxxx ("KZ")
and Xxxxxxx Xxxxx Xxxxxxxxx Trust ("Z Trust"), own 72,727 shares (collectively,
the "Current Shares"), of the Common Stock, including (i) 2,892,455 shares of
Common Stock and (ii) 16,545 shares of Common Stock issuable upon exercise of
warrants, but (iii) 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 is controlled by
LHC but which will dissolve on consummation of the IPO; and
WHEREAS, for purposes of this Agreement, the term "LHC Affiliates" shall
mean 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; and
WHEREAS, in order to assist the Company to obtain such listing and for
other consideration, LHC has agreed to enter into, and LHC and Xxxxxxxxx have
agreed to cause KZ and Z Trust to enter into, a Voting Trust Agreement (the
"Voting Trust") on the date of the IPO, with Xxxx X. Xxxxxxxx, Xxxxxx X. Xxxxxx,
and Xxxxxx X. Xxxxxxxxxxxx (the "Trustees") and to deposit, or to
cause to be deposited (i) the Current Shares, (ii) any other shares of capital
stock of the Company (the "Other Shares") that may hereafter be acquired or
beneficially owned by any LHC Affiliates, 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 other securities convertible into,
Common Stock and (iii) any rights, warrants or options to purchase, or other
securities convertible into such capital stock (collectively, with the Current
Shares and Other Shares, the "LHC Securities") into the trust created thereby;
and
WHEREAS, the Voting Trust provides that the Trustees shall vote the LHC
Securities in the manner specified therein; and
WHEREAS, in order for the Trustees to act thereunder the Company has agreed
to indemnify the Trustees for any costs relating to their services thereunder;
and
WHEREAS, 145,685 of the Current Shares, issuable upon consummation of the
Merger, (the Option Securities") 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;
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
LHC, Xxxxxxxxx and the Company hereby agree as follows:
1. EFFECTIVENESS. This Agreement shall become effective, and the Voting
Trust shall be executed, upon the date of execution of the underwriting
agreement for the IPO.
2. EXECUTION OF VOTING TRUST.
(a) Each of LHC and Xxxxxxxxx hereby agrees that in the event the
Voting Trust terminates by reason of the incapacity (as defined therein) of each
Trustee, LHC will execute, and LHC and Xxxxxxxxx will cause any LHC Affiliates
that own or acquire LHC Securities to execute, a voting trust, substantially in
the form and with the effect of the Voting Trust, appointing another person or
entity reasonably acceptable to the Board of Directors of the Company to act in
the same capacity as the Trustees under the Voting Trust.
(b) In the event any LHC Affiliate acquires any LHC Securities during
the term of the Voting Trust, LHC and Xxxxxxxxx agree (i) to deposit, or to use
their best efforts to cause the deposit of, such LHC Securities in trust
pursuant to the Voting Trust, (ii) to become subject to the obligations imposed
on persons holding LHC Securities deposited under the Voting Trust and (iii) to
cause the persons holding such LHC Securities to become parties to the Voting
Trust. LHC and
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Xxxxxxxxx further agree to take, or cause to be taken, any additional actions
requested by the Company or the Trustees to confirm the obligations of such LHC
Affiliate under the Voting Trust.
3. TERMINATION OF AGREEMENT. Notwithstanding the provisions of paragraph
2 above, this Agreement 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 or transfer to third parties not
affiliated with LHC of all the LHC Securities and (iv) the consummation of a
business combination 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) equity held by the
LHC Affiliates represents in the aggregate 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.
4. REPRESENTATIONS OF LHC AND XXXXXXXXX. LHC and Xxxxxxxxx hereby
represent and warrant to the Company that each of LHC, KZ and Z Trust, as the
case may be, (a) owns and has the right to vote the LHC Securities, (b) has full
power to enter into this Agreement and (c) will not take any action inconsistent
with the purposes and provisions of this Agreement.
5. SALE OF LHC SECURITIES. No provision of this Agreement or the Voting
Trust shall in any way limit right or ability of any of the LHC Affiliates to
sell, transfer, assign or pledge any or all of the LHC Securities to a third
party; except that LHC and Xxxxxxxxx will enter into, and cause KZ and Z Trust
to enter into, any lock-up agreements requested by the underwriters of the IPO
and entered into by other principal stockholders of the Company; and provided
that LHC Securities sold, assigned, transferred or hypothecated to an affiliate
of LHC shall remain in trust under the terms of the Voting Trust. LHC
Securities sold or transferred to third parties not affiliated with LHC shall be
released from the trust upon such sale or transfer. For purposes of this
Section 5, a third party shall be deemed "affiliated" if such third party is
controlled by, controls or is 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 investments of any nature with LHC, Xxxxxxxxx or
any member of the immediate family of Xxxxxxxxx. The term "substantial
investments" refers to investments by a third party comprising more than 5% of
the equity or debt of a company,
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partnership or joint venture in which LHC, Xxxxxxxxx or an affiliate of LHC or
Xxxxxxxxx has an investment of at least 5%.
6. TERMINATION OF MANAGEMENT CONSULTING AGREEMENT. The Management
Consulting Agreement, dated as of November 13, 1996, between the Company and LHC
shall terminate upon consummation of the IPO (unless sooner terminated in
accordance with its terms), and LHC shall receive at the closing of the IPO all
amounts otherwise due through November 13, 1996 at the rate of $35,000 per month
as provided in such agreement. Other than compensation aggregating $300,000 for
merger and acquisition advisory services relating to the acquisitions of certain
assets of DCT Communications, Inc. and Extended Communications, Inc., and
documented related expenses, no other amounts are due or may be claimed under
such agreement in respect of services performed during the term of such
agreement or transactions initiated or agreed to during the term of this
agreement.
7. CONFIDENTIALITY. The Company, acting by a majority of its directors,
may from time to time, in its discretion, invite Xxxxxxxxx to attend meetings of
the Board of Directors; provided that Xxxxxxxxx enters into the Confidentiality
Agreement in the form attached hereto as Exhibit A as such agreement may be
amended from time to time in accordance with its terms (the "Confidentiality
Agreement"). LHC hereby guarantees Xxxxxxxxx'x performance under the
Confidentiality Agreement.
8. THE TRUSTEES. 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. The Company agrees to reimburse the Trustees for any such expense and
charges.
9. ENFORCEABILITY; VALIDITY. The Company, LHC and Xxxxxxxxx shall take
any and all actions necessary for the enforceability of this Agreement and the
Voting Trust under Delaware Law, including without limitation any necessary
filings or actions required by Section 218 of the General Corporation Law of
Delaware. Each of LHC and Xxxxxxxxx expressly agrees that this Agreement shall
be specifically enforceable in any court of competent jurisdiction in accordance
with its terms.
10. GENERAL PROVISIONS.
(a) Except as provided in paragraph 3 above, 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.
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(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.
(e) Whenever the context of this Agreement shall so require, the use
of the singular number shall include the plural and the use of any gender shall
include all genders.
(f) The Company's 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,
and LHC and Xxxxxxxxx agree to enter into any such amendment, without regard to
this Section 11(f) 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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
LANDOVER HOLDINGS CORPORATION ADVANCED RADIO TECHNOLOGIES
CORPORATION
By:_______________________ By:_________________________
Xxxxxxxx X. Xxxxxxxxx, Name:
President Title:
__________________________
Xxxxxxxx X. Xxxxxxxxx
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