<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
-----------------------
SCHEDULE 13D
Amendment No. 2
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO
RULES 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO 13d-2(a)
VOICESTREAM WIRELESS CORPORATION
- -------------------------------------------------------------------------------
(Name of Issuer)
COMMON STOCK, NO PAR VALUE
- -------------------------------------------------------------------------------
(Title of Class of Securities)
928615103
- -------------------------------------------------------------------------------
(CUSIP Number)
Hellman & Friedman Capital Partners II, L.P.
One Maritime Plaza, Suite 1200
San Francisco, California 94111
(415) 788-5111
with a copy to:
Timothy G. Hoxie, Esq.
Heller Ehrman White & McAuliffe
333 Bush Street
San Francisco, California 94104
(415) 772-6000
- -------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
June 23, 1999
- -------------------------------------------------------------------------------
(Date of Event Which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box
|_|.
(Continued on following pages)
(Page 1 of 10 Pages)
<PAGE>
CUSIP No. 928615103 SCHEDULE 13D Page 2 of 10 Pages
---------
- -------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON
IRS IDENTIFICATION NO. OF ABOVE PERSONS (ENTITIES ONLY)
HELLMAN & FRIEDMAN CAPITAL PARTNERS II, L.P.
94-3139964
- -------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) |X|
(b) |_|
- -------------------------------------------------------------------------------
3. SEC USE ONLY
- -------------------------------------------------------------------------------
4. SOURCE OF FUNDS*
OO
- -------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) |_|
- -------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OR ORGANIZATION
CALIFORNIA
- -------------------------------------------------------------------------------
Number of Shares 7. SOLE VOTING POWER NONE
Beneficially Owned By Each
Reporting Person With
--------------------------------------------------
8. SHARED VOTING POWER 6,592,285
--------------------------------------------------
9. SOLE DISPOSITIVE POWER NONE
--------------------------------------------------
10. SHARED DISPOSITIVE POWER 6,592,285
- -------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,592,285
- -------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
|_|
- -------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.90%
- -------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON*
PN
- -------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
CUSIP No. 928615103 SCHEDULE 13D Page 3 of 10 Pages
---------
- -------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON
IRS IDENTIFICATION NO. OF ABOVE PERSONS (ENTITIES ONLY)
H&F ORCHARD PARTNERS, L.P.
94-3139972
- -------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) |X|
(b) |_|
- -------------------------------------------------------------------------------
3. SEC USE ONLY
- -------------------------------------------------------------------------------
4. SOURCE OF FUNDS*
OO
- -------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) |_|
- -------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OR ORGANIZATION
CALIFORNIA
- -------------------------------------------------------------------------------
Number of Shares 7. SOLE VOTING POWER NONE
Beneficially Owned By Each
Reporting Person With
--------------------------------------------------
8. SHARED VOTING POWER 589,693
--------------------------------------------------
9. SOLE DISPOSITIVE POWER NONE
--------------------------------------------------
10. SHARED DISPOSITIVE POWER 589,693
- -------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
589,693
- -------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
|_|
- -------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.62%
- -------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON*
PN
- -------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
CUSIP No. 928615103 SCHEDULE 13D Page 4 of 10 Pages
---------
- -------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON
IRS IDENTIFICATION NO. OF ABOVE PERSONS (ENTITIES ONLY)
H&F INTERNATIONAL PARTNERS, L.P.
94-3148959
- -------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) |X|
(b) |_|
- -------------------------------------------------------------------------------
3. SEC USE ONLY
- -------------------------------------------------------------------------------
4. SOURCE OF FUNDS*
OO
- -------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) |_|
- -------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OR ORGANIZATION
CALIFORNIA
- -------------------------------------------------------------------------------
Number of Shares 7. SOLE VOTING POWER NONE
Beneficially Owned By Each
Reporting Person With
--------------------------------------------------
8. SHARED VOTING POWER 117,019
--------------------------------------------------
9. SOLE DISPOSITIVE POWER NONE
--------------------------------------------------
10. SHARED DISPOSITIVE POWER 117,019
- -------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
117,019
- -------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
|_|
- -------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.12%
- -------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON*
PN
- -------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
CUSIP No. 928615103 SCHEDULE 13D Page 5 of 10 Pages
---------
- -------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON
IRS IDENTIFICATION NO. OF ABOVE PERSONS (ENTITIES ONLY)
HELLMAN & FRIEDMAN INVESTORS, L.P.
94-3124217
- -------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) |X|
(b) |_|
- -------------------------------------------------------------------------------
3. SEC USE ONLY
- -------------------------------------------------------------------------------
4. SOURCE OF FUNDS*
OO
- -------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) |_|
- -------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OR ORGANIZATION
CALIFORNIA
- -------------------------------------------------------------------------------
Number of Shares 7. SOLE VOTING POWER NONE
Beneficially Owned By Each
Reporting Person With
--------------------------------------------------
8. SHARED VOTING POWER 7,299,497
--------------------------------------------------
9. SOLE DISPOSITIVE POWER NONE
--------------------------------------------------
10. SHARED DISPOSITIVE POWER 7,299,497
- -------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
7,299,497
- -------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
|_|
- -------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.64%
- -------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON*
PN
- -------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
CUSIP No. 928615103 SCHEDULE 13D Page 6 of 10 Pages
---------
- -------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON
IRS IDENTIFICATION NO. OF ABOVE PERSONS (ENTITIES ONLY)
HELLMAN & FRIEDMAN INVESTORS, INC.
94-3124214
- -------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) |X|
(b) |_|
- -------------------------------------------------------------------------------
3. SEC USE ONLY
- -------------------------------------------------------------------------------
4. SOURCE OF FUNDS*
OO
- -------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) |_|
- -------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OR ORGANIZATION
CALIFORNIA
- -------------------------------------------------------------------------------
Number of Shares 7. SOLE VOTING POWER NONE
Beneficially Owned By Each
Reporting Person With
--------------------------------------------------
8. SHARED VOTING POWER 7,299,497
--------------------------------------------------
9. SOLE DISPOSITIVE POWER NONE
--------------------------------------------------
10. SHARED DISPOSITIVE POWER 7,299,497
- -------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
7,299,497
- -------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
|_|
- -------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.64%
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14. TYPE OF REPORTING PERSON*
CO
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
CUSIP No. 928615103 SCHEDULE 13D Page 7 of 10 Pages
---------
- -------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON
IRS IDENTIFICATION NO. OF ABOVE PERSONS (ENTITIES ONLY)
HELLMAN FAMILY REVOCABLE TRUST
###-##-####
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) |X|
(b) |_|
- -------------------------------------------------------------------------------
3. SEC USE ONLY
- -------------------------------------------------------------------------------
4. SOURCE OF FUNDS*
OO
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5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) |_|
- -------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OR ORGANIZATION
CALIFORNIA
- -------------------------------------------------------------------------------
Number of Shares 7. SOLE VOTING POWER NONE
Beneficially Owned By Each
Reporting Person With
--------------------------------------------------
8. SHARED VOTING POWER 7,299,497
--------------------------------------------------
9. SOLE DISPOSITIVE POWER NONE
--------------------------------------------------
10. SHARED DISPOSITIVE POWER 7,299,497
- -------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
7,299,497
- -------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
|_|
- -------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.64%
- -------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON*
OO
- -------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
INTRODUCTION
The Reporting Persons herein named hereby file this Amendment No. 2 to
the Statement on Schedule 13D filed by the Reporting Persons on May 13, 1999 (as
amended by Amendment No. 1 thereto on May 25, 1999, the "Statement") in respect
of shares of Common Stock of VoiceStream Wireless Corporation. Defined terms not
otherwise defined herein have the meanings ascribed thereto in the Statement.
Only those Items amended are reported herein.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS INVOLVING
SECURITIES OF THE ISSUER
Item 6 is hereby amended by adding the following additional paragraphs:
The Partnerships, certain other stockholders of the Company, the
Company, Omnipoint Corporation, a Delaware corporation ("Omnipoint") and certain
stockholders of Omnipoint (the "Omnipoint Stockholders") have entered into an
agreement, dated as of June 23, 1999 (the "Merger Voting Agreement"), whereby
the Partnership and certain other stockholders of the Company parties thereto
have agreed to attend the Company's stockholder's meeting, in person or by
proxy, and to vote or cause to be voted the number of shares of Common Stock
beneficially owned by them set forth in a schedule to the Merger Voting
Agreement (the "Scheduled Shares") in favor of (i) the adoption and approval of
the Agreement and Plan of Reorganization, dated as of June 23, 1999, between the
Company, VoiceStream Wireless Holding Corporation and Omnipoint (the
"Reorganization Agreement"), and (ii) the proposed merger contemplated by the
Reorganization Agreement (the "Merger") and any other matters necessary to
consummate the transactions contemplated in the Reorganization Agreement.
In addition, pursuant to the Merger Voting Agreement, the Partnerships
and certain stockholders of the Company have agreed to terminate the Voting
Agreement upon the consummation of the Merger and to enter into a new voting
agreement with Omnipoint Stockholders on terms mutually satisfactory to the
parties thereto.
Finally, from and after the date of the Merger Voting Agreement through
the earlier of the effective time of the transactions contemplated by the
Reorganization Agreement and the termination of the Reorganization Agreement,
each Partnership and each of certain other stockholders of the Company have
agreed not to sell or otherwise dispose of, in a single transaction or a series
of unrelated transactions, more than 30% of the Scheduled Shares beneficially
owned by such stockholder unless, as a condition to such sale, each transferee
of any shares in excess of 30% of the Scheduled Shares
<PAGE>
beneficially owned by such stockholder agrees to be bound by the provisions
of the Merger Voting Agreement applicable to the stockholders of the. This
provision does not limit the ability of the Partnerships to distribute shares
of Common Stock to their partners.
The foregoing description of the Merger Voting Agreement is subject to,
and qualified in its entirety by reference to, the form of Merger Voting
Agreement, which is filed as exhibit 7(3) hereto and incorporated by reference
into this Item 6.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
7(3) Form of Agreement by and among VoiceStream Corporation,
Omnipoint Corporation and certain stockholders of VoiceStream Wireless
Corporation and certain stockholders of VoiceStream Wireless
Corporation.
THE NEXT PAGE IS THE SIGNATURE PAGE]
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is true,
complete and correct.
June 30, 1999
- -------------------
Date Hellman & Friedman Capital Partners II, L.P.
H&F Orchard Partners, L.P.
H&F International Partners, L.P.
By: Hellman & Friedman Investors, L.P.
Its General Partner, By
Hellman & Friedman Investors, Inc.,
Its General Partner
By: /s/ Georgia Lee
-------------------------
Vice President
Hellman & Friedman Investors, L.P.
By: Hellman & Friedman Investors, Inc.,
Its General Partner
By: /s/ Georgia Lee
-------------------------
Vice President
Hellman & Friedman Investors, Inc.
By: /s/ Georgia Lee
-------------------------
Vice President
Hellman Family Revocable Trust
By: /s/ F. Warren Hellman
-------------------------
Trustee
<PAGE>
Exhibit Index
7(3) Form of Agreement by and among VoiceStream Wireless Corporation,
Omnipoint Corporation and certain stockholders of VoiceStream Wireless
Corporation and certain stockholders of VoiceStream Wireless Corporation
<PAGE>
AGREEMENT
AGREEMENT, dated as of June 23, 1999, by and among OMNIPOINT
CORPORATION, a Delaware corporation ("OMNIPOINT"), VOICESTREAM WIRELESS
CORPORATION, a Washington corporation ("VOICESTREAM"), the individuals and
entities set forth on Schedule I hereto (each, an "OMNIPOINT STOCKHOLDER"
and, collectively, the "OMNIPOINT STOCKHOLDERS") and the individuals and
entities set forth on Schedule II hereto (each, a "VOICESTREAM STOCKHOLDER"
and, collectively, the "VOICESTREAM STOCKHOLDERS").
WHEREAS, concurrently herewith, each of Omnipoint and VoiceStream are
entering into an Agreement and Plan of Reorganization (the "REORGANIZATION
AGREEMENT") pursuant to which, among other things, wholly owned subsidiaries
of VoiceStream Wireless Holding Corporation, a Delaware corporation
("NEWCO"), will be merged with and into each of Omnipoint and VoiceStream
(such mergers, together with the related transactions contemplated in the
Reorganization Agreement, being referred to herein collectively as the
"MERGER");
WHEREAS, each Omnipoint Stockholder is the beneficial owner of the
number of shares of Omnipoint Common Stock set forth opposite such Omnipoint
Stockholder's name in Schedule I hereto (the "OMNIPOINT SHARES");
WHEREAS, each VoiceStream Stockholder is the beneficial owner of the
number of shares of VoiceStream Common Stock set forth opposite such
VoiceStream Stockholder's name in Schedule II hereto (the "VOICESTREAM
SCHEDULED SHARES");
WHEREAS, approval of the Reorganization Agreement by each of Omnipoint's
and VoiceStream's stockholders is a condition to the consummation of the
Merger; and
WHEREAS, as a condition to its entering into the Reorganization
Agreement, (i) VoiceStream has required that each Omnipoint Stockholder agree,
and each Omnipoint Stockholder has agreed, to enter into this Agreement, and
(ii) Omnipoint has required that each VoiceStream Stockholder agree, and
each VoiceStream Stockholder has agreed, to enter into this Agreement;
NOW THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein, the parties hereto agree as
follows:
Section 1. DEFINITIONS. Capitalized terms used herein and not otherwise
defined have the meaning ascribed to such term in the Reorganization
Agreement.
<PAGE>
Section 2. AGREEMENT TO VOTE BY OMNIPOINT STOCKHOLDERS.
(a) Each Omnipoint Stockholder hereby agrees to attend the Omnipoint
Stockholders' Meeting, in person or by proxy, and to vote (or cause to be
voted) all Omnipoint Shares, and any other voting securities of Omnipoint,
beneficially owned by such Omnipoint Stockholder (whether issued heretofore
or hereafter) that such Omnipoint Stockholder owns or has the right to vote,
(i) in favor of adoption and approval of the Reorganization Agreement and the
Merger and any other matters necessary to consummate the transactions
contemplated in the Reorganization Agreement and (ii) against any Alternative
Proposal or Superior Proposal; such agreement to vote shall apply also to any
adjournment or adjournments of the Omnipoint Stockholders' Meeting.
(b) From and after the date hereof through the earlier of the
Effective Time or the termination of the Reorganization Agreement, each
Omnipoint Stockholder (other than with respect to any distribution by Madison
Dearborn Capital Partners, L.P. of its Omnipoint Shares to its partners)
hereby agrees not to sell, transfer, pledge, encumber or otherwise dispose of
(collectively, "Transfer") in the aggregate and whether in a single
transaction or a series of unrelated transactions more than thirty (30%)
percent of the Omnipoint Shares beneficially owned by such Omnipoint
Stockholder on the date hereof, unless, as a condition to any such Transfer,
each transferee (or, in the case of a pledge or similar transfer, each
pledgee or similar conditional transferee) of any shares in excess of thirty
(30%) percent of the Omnipoint Shares beneficially owned by such Omnipoint
Stockholder shall, prior to such Transfer (or, in the case of a pledge or
similar Transfer, prior to taking title to or exercising any rights with
respect to the applicable Omnipoint Shares), agree in writing to be bound by
all of the provisions of this Agreement applicable to the Omnipoint
Stockholders (and such transferee shall thereby become an Omnipoint
Stockholder for all purposes of this Agreement), except that such Transferee
shall not be entitled to Transfer any such shares unless all transferees of
all shares so transferred agree to be bound by the terms of Section 2(a)
hereof and such Transferee (and such Transferee's transferees) shall not be
entitled to the benefits of the exception applicable to the Omnipoint
Stockholders with respect to 30% of the Omnipoint Shares beneficially owned
by them. Any Transfer of such shares and securities without compliance with
such provisions of this Agreement shall be null and void and such transferee
shall have no rights as a stockholder of Omnipoint.
(c) To the extent inconsistent with the foregoing provisions of this
Section 2, each Omnipoint Stockholder hereby revokes any and all previous
proxies with respect to such Omnipoint Stockholder's Omnipoint Shares or any
other voting securities of Omnipoint.
Section 3. AGREEMENT TO VOTE BY VOICESTREAM STOCKHOLDERS.
(a) Each VoiceStream Stockholder hereby agrees to attend the
VoiceStream Stockholders' Meeting, in person or by proxy, and to vote (or
cause to be voted) all VoiceStream Scheduled Shares owned by such VoiceStream
Stockholder at the time of the VoiceStream
2
<PAGE>
Stockholders' Meeting in favor of adoption and approval of the Reorganization
Agreement, the Merger and the Hutchison Transaction and any other matters
necessary to consummate the transactions contemplated in the Reorganization
Agreement; such agreement to vote shall apply also to any adjournment or
adjournments of the VoiceStream Stockholders' Meeting.
(b) From and after the date hereof through the earlier of the
Effective Time or the termination of the Reorganization Agreement, each
VoiceStream Stockholder (other than with respect to any distribution by
Hellman & Friedman Capital Partners II, L.P., H&F Orchard Partners, L.P., H&F
International Partners, L.P., GS Capital Partners, L.P., Bridge Street Fund
1992, L.P., Stone Street Fund 1992, L.P. or Providence Media Partners L.P. of
their VoiceStream shares to their partners) hereby agrees not to Transfer in
the aggregate and whether in a single transaction or a series of unrelated
transactions more than (30%) percent of the VoiceStream Scheduled Shares,
unless, as a condition to any such Transfer, each transferee (or, in the case
of a pledge or similar transfer, each pledgee or similar conditional
transferee) of any shares in excess of thirty (30%) percent of the
VoiceStream Scheduled Shares, prior to such Transfer (or, in the case of a
pledge or similar transfer, prior to taking title to or exercising any rights
with respect to the applicable VoiceStream Scheduled Shares), agree in
writing to be bound by all of the provisions of this Agreement applicable to
the VoiceStream Stockholders (and such transferee shall thereby become a
VoiceStream Stockholder for all purposes of this Agreement), except that such
Transferee shall not be entitled to Transfer any such shares unless all
transferees of all shares so transferred agree to be bound by the terms of
Section 3(a) hereof and such Transferee (and such Transferee's transferees)
shall not be entitled to the benefits of the exception applicable to the
VoiceStream Stockholders with respect to 30% of the VoiceStream Scheduled
Shares. Any Transfer of such shares and securities without compliance with
such provisions of this Agreement shall be null and void and such transferee
shall have no rights as a stockholder of VoiceStream.
(c) To the extent inconsistent with the foregoing provisions of this
Section 3, each VoiceStream Stockholder hereby revokes any and all previous
proxies with respect to such VoiceStream Stockholder's VoiceStream Scheduled
Shares.
Section 4. AMENDMENT OF EXISTING VOICESTREAM VOTING AGREEMENT.
The VoiceStream Stockholders are parties to a Voting Agreement, dated
May 3, 1999 ("VoiceStream Voting Agreement"), pursuant to which they have
agreed to vote their VoiceStream Scheduled Shares owned by each of them at
the time of such vote in favor of directors designated by such VoiceStream
Stockholders. Effective on the Effective Time the VoiceStream Stockholders
shall terminate the VoiceStream Voting Agreement and enter into a new Voting
Agreement ("NEWCO VOTING AGREEMENT") with the Omnipoint Stockholders on terms
mutually satisfactory to the VoiceStream Stockholders and the Omnipoint
Stockholders, pursuant to which the voting arrangements which existed under
the VoiceStream Voting Agreement will apply to Newco and the provisions of
Section 6.1 of the Securities Purchase Agreement, of even date herewith,
between VoiceStream and Omnipoint, will also be effectuated.
3
<PAGE>
Section 5. REPRESENTATIONS AND WARRANTIES OF VOICESTREAM AND OMNIPOINT.
(a) VoiceStream represents and warrants to Omnipoint and each
Omnipoint Stockholder as follows: (i) each of this Agreement and the
Reorganization Agreement has been approved by the Board of Directors of
VoiceStream and (ii) each of this Agreement and the Reorganization Agreement
has been duly executed and delivered by VoiceStream and constitutes its valid
and binding agreement, enforceable against it in accordance with its terms,
except as may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium and other similar laws of general application which may affect the
enforcement of creditors, rights generally and by general equitable
principles.
(b) Omnipoint represents and warrants to VoiceStream and each
VoiceStream Stockholder as follows: (i) each of this Agreement and the
Reorganization Agreement has been approved by the Board of Directors of
Omnipoint and (ii) each of this Agreement and the Reorganization Agreement
has been duly executed and delivered by Omnipoint and constitutes its valid
and binding agreement, enforceable against it in accordance with its terms,
except as may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium and other similar laws of general application which may affect the
enforcement of creditors, rights generally and by general equitable
principles.
Section 6. REPRESENTATIONS AND WARRANTIES OF THE OMNIPOINT STOCKHOLDERS
AND VOICESTREAM STOCKHOLDERS.
(a) Each Omnipoint Stockholder, severally, as to such Omnipoint
Stockholder, represents and warrants to VoiceStream as follows: (i) this
Agreement has been duly executed and delivered by such Omnipoint Stockholder
and constitutes its valid and binding agreement, enforceable against it in
accordance with its terms, except as may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other similar laws of general
application which may affect the enforcement of creditors' rights generally
and by general equitable principles; and (ii) the Omnipoint Shares listed
next to the name of such Omnipoint Stockholder on Schedule I hereto are the
only voting securities of Omnipoint owned (beneficially or of record) by it.
(b) Each VoiceStream Stockholder, severally, as to such VoiceStream
Stockholder, represents and warrants to Omnipoint that this Agreement has
been duly executed and delivered by such VoiceStream Stockholder and
constitutes its valid and binding agreement, enforceable against it in
accordance with its terms, except as may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other similar laws of general
application which may affect the enforcement of creditors, rights generally
and by general equitable principles.
Section 7. EFFECTIVENESS AND TERMINATION. It is a condition precedent to
the effectiveness of this Agreement that the Reorganization Agreement shall
have been executed and delivered and be in full force and effect. In the
event the Reorganization Agreement is terminated in accordance with its
terms, this Agreement shall automatically terminate and be of no further force
4
<PAGE>
or effect. Upon such termination, except for any rights any party may have in
respect of any breach by any other party of its or his obligations hereunder,
none of the parties hereto shall have any further obligation or liability
hereunder.
Section 8. MISCELLANEOUS.
(a) NOTICES, ETC. All notices, requests and other communications to
any party hereunder shall be in writing (including facsimile transmission)
and shall be given,
if to VoiceStream, to it at:
3650 131 Avenue SE
Bellevue, Washington 98006
Attention: Alan R. Bender, Esq.
Fax: (425) 586-8080
with a copy to:
Friedman Kaplan & Seiler LLP
875 Third Avenue
New York, New York 10022
Attention: Barry A. Adelman, Esq.
Fax: (212) 355-6401
if to any VoiceStream Stockholder, to it at the address set forth on
Schedule II hereto;
if to Omnipoint, to it at:
Omnipoint Corporation
3 Bethesda Metro Center
Suite 400
Bethesda, Maryland 20814
Attention: Douglas G. Smith
Fax: 301-951-3591
with a copy to:
Piper & Marbury L.L.P.
1200 Nineteenth Street, N.W.
Washington, D.C. 20036
Attention: Edwin M. Martin, Jr., Esq.
Fax: (202) 233-2085
5
<PAGE>
if to any Omnipoint Stockholder, to it at the address set forth on
Schedule I hereto;
or such other address or facsimile number as such party may hereafter specify
for the purpose by notice to the other parties hereto. All such notices,
requests and other communications shall be deemed received on the date of
receipt by the recipient thereof if received prior to 5 p.m. on a Business
Day, in the place of receipt. Otherwise, any such notice, request or
communication shall be deemed not to have been received until the next
succeeding Business Day in the place of receipt.
(b) AMENDMENTS; NO WAIVERS. (i) Subject to applicable law, any
provision of this Agreement may be amended or waived, but only if, such
amendment or waiver is in writing and is signed, in the case of an amendment,
by each party to this Agreement or, in the case of a waiver, by each party
against whom the waiver is to be effective.
(ii) No failure or delay by any party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights
and remedies herein provided shall be cumulative and not exclusive of any
rights or remedies provided by law.
(c) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
shall inure to the benefit of and be enforceable by the parties and their
respective successors and assigns, including, without limitation, in the case
of any corporate party hereto any corporate successor by merger or otherwise,
and in the case of any individual party hereto any trustee, executor, heir,
legatee or personal representative succeeding to the ownership of such
party's shares of Omnipoint Common Stock or other securities subject to this
Agreement. Notwithstanding any Transfer of shares of Omnipoint Common Stock
the transferor shall remain liable for the performance of all obligations
under this Agreement of transferor.
(d) GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware, without regard to the
conflicts of law rules of such State.
(e) JURISDICTION. Any suit, action or proceeding seeking to enforce
any provision of, or based on any matter arising out of or in connection
with, this Agreement or the transactions contemplated hereby shall be brought
in any federal court located in the State of Delaware or any Delaware state
court, and each of the parties hereby consents to the exclusive jurisdiction
of such courts (and of the appropriate appellate courts therefrom) in any
such suit, action or proceeding and irrevocably waives, to the fullest
extent permitted by law, any objection that it may now or hereafter have to
the laying of the venue of any such suit, action or proceeding in any such
court or that any such suit, action or proceeding brought in any such court
has been brought in an inconvenient forum. Process in any such suit, action
or proceeding may be served on any party anywhere in the world, whether
within or without the jurisdiction of any such court. Without limiting the
foregoing, each
6
<PAGE>
party agrees that service of process on such party as provided in
Section 6(e) shall be deemed effective service of procees on such party.
(f) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT
OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(g) COUNTERPARTS; EFFECTIVENESS. This Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall become effective when each party hereto shall have
received counterparts hereof signed by all of the other parties hereto. No
provision of this Agreement is intended to confer any rights, benefits,
remedies, obligations or liabilities hereunder upon any Person other than the
parties hereto and their respective successors and assigns.
(h) ENTIRE AGREEMENT. This Agreement, together with the Reorganization
Agreement, constitutes the entire agreement between the parties with respect
to the subject matter of this Agreement and supersedes all prior agreements
and understandings, both oral and written, between the parties with respect
to such subject matter.
(i) CAPTIONS. The captions herein are included for convenience of
reference only and shall be ignored in the construction or interpretation
hereof.
(j) SEVERABILITY. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction or other
authority to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Agreement shall remain in full
force and effect and shall in no way be affected, impaired or invalidated so
long as the economic or legal substance of the transactions contemplated
hereby is not affected in any manner materially adverse to any party. Upon
such a determination, the parties shall negotiate in good faith to modify
this Agreement so as to effect the original intent of the parties as closely
as possible in an acceptable manner so that the transactions contemplated
hereby be consummated as originally contemplated to the fullest extent
possible.
(k) SPECIFIC PERFORMANCE. The parties hereto agree that irreparable
damage would occur if any provision of this Agreement were not performed in
accordance with the terms hereof and that the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement or to enforce
specifically the performance of the terms and provisions hereof in any
federal court located in the State of Delaware or any Delaware state court,
in addition to any other remedy to which they are entitled at law or in equity.
(l) REMEDIES CUMULATIVE. All rights, powers and remedies provided under
this Agreement or otherwise available in respect hereof at law or in equity
shall be cumulative and not
7
<PAGE>
alternative, and the exercise or beginning of the exercise of any thereof by
any party shall not preclude the simultaneous or later exercise of any other
such right, power or remedy by such party.
(m) LIMITATION ON LIABILITY. No party hereto shall have any liability
hereunder for any actions or omissions of any other party hereto.
(n) EXPENSES. Each party hereto shall bear its own expenses incurred in
connection with this Agreement.
(o) FURTHER ASSURANCES. Each party hereto agrees that such party shall
execute and deliver such additional instruments and other documents and shall
take such further actions as may be necessary or appropriate to effectuate,
carry out and comply with all of their obligations under this Agreement.
Without limiting the generality of the foregoing, none of the parties hereto
shall enter into any agreement or arrangement (or alter, amend or terminate
any existing agreement or arrangement) if such action would impair the
ability of any party to effectuate, carry out or comply with all the terms of
this Agreement.
8
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
VOICESTREAM WIRELESS CORPORATION
By:
-------------------------------------
Name:
Title:
OMNIPOINT CORPORATION
By:
-------------------------------------
Name:
Title:
VOICESTREAM STOCKHOLDERS:
Hellman & Friedman Capital Partners II,
L.P., a California limited Partnership
By: Hellman & Friedman Investors, L.P.,
its general partner
By: Hellman & Friedman Investors,
Inc., its general partner
By:
---------------------------------
Name:
Title:
<PAGE>
H&F Orchard Partners, L.P., a California
limited partnership
By: H&F Orchard Investors, L.P., its
general partner
By: H&F Orchard Investors, Inc., its
general partner
By:
---------------------------------
Name:
Title:
H&F International Partners, L.P., a
California limited partnership
By: H&F International Investors, L.P.,
its general partner
By: H&F International Investors,
Inc., its general partner
By:
---------------------------------
Name:
Title:
----------------------------------------
John W. Stanton
----------------------------------------
Theresa E. Gillespie
<PAGE>
PN Cellular, Inc.
By:
-------------------------------------
Name:
Title:
Stanton Family Trust
By:
-------------------------------------
Name: , Trustee
Stanton Communications Corporation
By:
-------------------------------------
Name:
Title:
GS Capital Partners, L.P.
By: GS Advisors L.P., General Partner
By: GS Advisors, Inc., General Partner
By:
---------------------------------
Name:
Title:
The Goldman Sachs Group, Inc.
By:
-------------------------------------
Name:
Title:
<PAGE>
Bridge Street Fund 1992, L.P.
By: Stone Street Performance Corp.,
Managing General Partner
By:
---------------------------------
Name:
Title:
Stone Street Fund 1992, L.P.
By: Stone Street Performance Corp.,
General Partner
By:
---------------------------------
Name:
Title:
Providence Media Partners L.P.
By: Providence Media G.P. Limited
Partnership, General Partner
By: Providence Ventures L.P., General
Partner
By:
---------------------------------
Name:
Title:
<PAGE>
Hutchison Telecommunications Holdings
(USA) Limited
By:
-------------------------------------
Name:
Title:
Hutchison Telecommunications PCS (USA)
Limited
By:
-------------------------------------
Name:
Title:
<PAGE>
OMNIPOINT STOCKHOLDERS:
[TO BE PROVIDED]
<PAGE>
SCHEDULE I
OMNIPOINT STOCKHOLDERS
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------
NAME AND ADDRESS OF STOCKHOLDER NUMBER OF OMNIPOINT SHARES
- -------------------------------------------------------------------------------
<S> <C>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
</TABLE>
<PAGE>
SCHEDULE II
VOICESTREAM STOCKHOLDERS
<TABLE>
<CAPTION>
NAME AND ADDRESS OF STOCKHOLDER NUMBER OF VOICESTREAM
SCHEDULED SHARES
- -------------------------------------------------------------------------------
<S> <C>
Hellman & Friedman Capital Partners II, L.P. 6,592,285
c/o Hellman & Friedman LLC
One Maritime Plaza, Suite 1200
San Francisco, California 94111
Attention: Mitchell R. Cohen
Fax: 415-788-0176
- -------------------------------------------------------------------------------
H&F Orchard Partners, L.P. 589,693
c/o Hellman & Friedman
One Maritime Plaza, Suite 1200
San Francisco, California 94111
Attention: Mitchell R. Cohen
Fax: 415-788-0176
- -------------------------------------------------------------------------------
H&F International Partners, L.P. 117,019
c/o Hellman & Friedman
One Maritime Plaza, Suite 1200
San Francisco, California 94111
Attention: Mitchell R. Cohen
Fax: 415-788-0176
- -------------------------------------------------------------------------------
John W. Stanton and Theresa E. Gillespie 3,192,774
c/o VoiceStream Wireless Corporation
3650 131st Avenue S.E., Suite 400
Bellevue, WA 98006
Attention: John W. Stanton
Fax: 425-586-8010
- -------------------------------------------------------------------------------
PN Cellular, Inc. 1,686,069
c/o VoiceStream Wireless Corporation
3650 131st Avenue S.E., Suite 400
Bellevue, WA 98006
Attention: John W. Stanton
Fax: 425-586-8010
- -------------------------------------------------------------------------------
<PAGE>
- -------------------------------------------------------------------------------
Stanton Family Trust 164,437
c/o VoiceStream Wireless Corporation
3650 131st Avenue S.E., Suite 400
Bellevue, WA 98006
Attention: John W. Stanton
Fax: 425-586-8010
- -------------------------------------------------------------------------------
Stanton Communications Corporation 1,274,520
c/o VoiceStream Wireless Corporation
3650 131st Avenue S.E., Suite 400
Bellevue, WA 98006
Attention: John W. Stanton
Fax: 425-586-8010
- -------------------------------------------------------------------------------
GS Capital Partners, L.P. 8,986,738
c/o Goldman, Sachs & Co.
85 Broad Street
New York, NY 10004
Attention: Terence O'Toole
Fax: 212-902-3000
- -------------------------------------------------------------------------------
The Goldman Sachs Group, Inc. 68,821
c/o Goldman, Sachs & Co.
85 Broad Street
New York, NY 10004
Attention: Terence O'Toole
Fax: 212-902-3000
- -------------------------------------------------------------------------------
Bridge Street Fund 1992, L.P. 273,069
c/o Goldman, Sachs & Co.
85 Broad Street
New York, NY 10004
Attention: Terence O'Toole
Fax: 212-902-3000
- -------------------------------------------------------------------------------
Stone Street Fund 1992, L.P. 470,401
c/o Goldman, Sachs & Co.
85 Broad Street
New York, NY 10004
Attention: Terence O'Toole
Fax: 212-902-3000
- -------------------------------------------------------------------------------
<PAGE>
- -------------------------------------------------------------------------------
Providence Media Partners L.P. 2,640,049
c/o Providence Ventures, Inc.
900 Fleet Center
50 Kennedy Plaza
Providence, Rhode Island 02903
Attention: Jonathan Nelson
Fax: 401-751-1790
- -------------------------------------------------------------------------------
Hutchison Telecommunications PCS (USA) Limited 19,010,364
c/o Offshore Incorporations Limited
P.O. Box 957
Offshore Incorporations Centre
Road Town, Tortola
British Virgin Islands
Telephone No.: 809-494-2233
Facsimile No.: 809-494-4885
and:
c/o Hutchison Telecommunications Limited
22nd Floor, Hutchison House
10 Harcourt Road
Hong Kong
Attention: Ms. Edith Shih
Fax: 852-2128-1778
- -------------------------------------------------------------------------------
<PAGE>
- -------------------------------------------------------------------------------
Hutchison Telecommunications Holdings (USA) Limited 3,888,888
c/o Offshore Incorporations Limited
P.O. Box 957
Offshore Incorporations Centre
Road Town, Tortola
British Virgin Islands
Telephone No.: 809-494-2233
Facsimile No.: 809-494-4885
and:
c/o Hutchison Telecommunications Limited
22nd Floor, Hutchison House
10 Harcourt Road
Hong Kong
Attention: Ms. Edith Shih
Fax: 852-2128-1778
- -------------------------------------------------------------------------------
</TABLE>
