Exhibit 10.32
EXECUTION COPY
VOTING AGREEMENT
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") 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 the UbiquiTel Stock 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.
Date:
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VIA WIRELESS, LLC
By:
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Name:
Title:
IN WITNESS WHEREOF, the undersigned have executed this VOTING
AGREEMENT as of the date first set forth above.
Date:
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STOCKHOLDERS:
XXXXXX XXXXXXXXX
NUMBER OF SHARES: 700,050
By:
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Name: XXXXXX XXXXXXXXX
XXXXXX XXXXXXXXX AND XXXXX X. XXXXXXXXX,
TENANTS BY THE ENTIRETY
By:
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Name: XXXXXX XXXXXXXXX
XXXXXX XXXXXXXXX XXX, BEAR XXXXXXX SOC.
CORP. CUST.
By:
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Name: XXXXXX XXXXXXXXX
LANCASTER INVESTMENT PARTNERS, L.P.
NUMBER OF SHARES: 2,001,000
By:
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Name: XXXXXX XXXXXXXXX
TOTAL COMBINED NOS. OF SHARES: 2,701,050 SHARES
IN WITNESS WHEREOF, the undersigned have executed this VOTING
AGREEMENT as of the date first set forth above.
Date:
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XXXXXX X. XXXXXX
NUMBER OF SHARES: 3,789,802
By:
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Name: XXXXXX X. XXXXXX
XXXXXX FAMILY TRUST
NUMBER OF SHARES: 240,000
By:
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Name: XXXXXX XXXXXXXX, TRUSTEE
TOTAL COMBINED NOS. OF SHARES: 4,029,802 SHARES
IN WITNESS WHEREOF, the undersigned have executed this VOTING
AGREEMENT as of the date first set forth above.
Date:
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CBT WIRELESS INVESTMENTS, L.L.C.
NUMBER OF SHARES: 4,322,160
By:
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Name:
Title:
BET ASSOCIATES, L.P.
NUMBER OF SHARES: 4,380,350
By:
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Name:
Title:
XXXXXX X. XXXXX
NUMBER OF SHARES: 1,377,402
By:
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THE XXXXXX GROUP, INC.
NUMBER OF SHARES: 2,614,034
By:
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Name:
Title:
XXXXXXXXX, XXXXXX & XXXXXXXX
MERCHANT BANKING PARTNERS II, L.P.
NUMBER OF SHARES: 4,297,696
By:
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Name:
Title:
XXXX X. JUDGE
NUMBER OF SHARES: 819,324
By:
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