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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
------------------
FORM 8-K
CURRENT REPORT PURSUANT TO
SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report:
January 5, 2000
East/West Communications, Inc.
------------------------------
(Exact Name of Registrant as
Specified in Charter)
0-23127
-------
(Commission File No.)
13-3964837
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(IRS Employer
Identification No.)
Delaware
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(State or Other Jurisdiction
of Incorporation)
350 Stuyvesant Avenue
Rye, New York 10580
(Address of Principal
Executive Offices)
(914) 921-6300
--------------
(Registrant's telephone
number, including area code)
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ITEM 5. OTHER EVENTS
SECURITIES PURCHASE
On January 5, 2000, East/West Communications, Inc., a Delaware
corporation ("East/West"), and certain affiliates of Weiss, Peck and Greer,
L.L.C., a Delaware limited liability company (the "Purchasers"), entered into a
Securities Purchase Agreement (the "Securities Purchase Agreement"), pursuant to
which East/West issued to the Purchasers 100,000 shares of Class A Common Stock
of East/West for the purchase price of $33.25 per share in a private placement
exempt from the registration requirements of the Securities Act of 1933, as
amended. The transaction contemplated by the Securities Purchase Agreement was
consummated on January 5, 2000.
VOTING AGREEMENT
Concurrently with the execution of the Securities Purchase
Agreement, the Purchasers executed a Voting Agreement (the "Voting Agreement"),
dated as of January 5, 2000, pursuant to which the Purchasers have agreed to (i)
to vote all the shares of common stock of East/West beneficially owned by such
person in favor of adoption and approval of (a) an Agreement and Plan of Merger
(the "Omnipoint Merger Agreement"), dated October 22, 1999, by and among
East/West and Omnipoint Corporation, pursuant to which, among other things,
East/West will merge with and into Omnipoint Corporation, which will be the
surviving corporation (the "Omnipoint Merger"), (b) the Omnipoint Merger, and
(c) and any other matters necessary to consummate the Omnipoint Merger and (ii)
for a time period between the execution of the Voting Agreement and the
termination of the Omnipoint Merger Agreement, not to sell, transfer, pledge,
encumber or dispose any shares of common stock of East/West beneficially owned
by the Purchasers.
The summary of the transactions described above are, in each case,
qualified in their entirety by reference to the Securities Purchase Agreement
and the Voting Agreement, copies of which are exhibits hereto or incorporated by
reference.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL
INFORMATION AND EXHIBITS
(a) - (b) Not applicable.
(c) Exhibits.
2.1 Securities Purchase Agreement, dated as of January 5, 2000, by and among
East/West Communications, Inc. and the Purchasers.
9.1 Voting Agreement, dated as of January 5, 2000, by and among East/West
Communications, Inc., Omnipoint Corporation, and the Purchasers.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
East/West Communications, Inc.
By: /s/ Victoria G. Kane
------------------------------
Name: Victoria G. Kane
------------------------------
Title: Chief Executive Officer
------------------------------
Date: January 6, 2000
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EXHIBIT INDEX
* 2.1 Securities Purchase Agreement, dated as of January 5, 2000, by and
among East/West Communications, Inc. and the Purchasers.
* 9.1 Voting Agreement, dated as of January 5, 2000, by and among
East/West Communications, Inc., Omnipoint Corporation, and the
Purchasers.
* Filed herewith.
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EXHIBIT 2.1
AGREEMENT
The Purchasers listed on Schedule A hereto (each a "Purchaser"
and, collectively, the "Purchasers") hereby agrees to acquire from East/West
Communications, Inc., a Delaware corporation (the "Company"), on the Closing
Date referred to below, one hundred thousand (100,000) shares of the Company's
Class A Common Stock, par value $0.0001 per share (the "Securities") as of
January 5, 2000 as follows:
Name of Issuer: East/West Communications, Inc.
Names of Purchasers: Purchasers listed on Schedule A hereto.
Number of Shares: Each Purchaser will purchase the number of shares
set forth opposite such Purchaser's name on Schedule
A hereto.
Purchase Price Per Share: $33.25
Closing Date: January 5, 2000
On January 5, 2000, the Company will deliver to each Purchaser
stock certificates representing the Securities against payment of the purchase
price therefor by wire transfer of immediately available funds to an account
designated in writing by the Company.
1. In connection with the purchase of the Securities, each Purchaser hereby
represents, warrants, covenants and agrees with the Company as follows:
1.1 Such Purchaser is duly organized, validly existing and in good
standing under the laws of the jurisdiction of formation and has all requisite
power and authority to carry on its business as now conducted.
1.2 All action on the part of such Purchaser necessary for the
authorization, execution and delivery of this Agreement by such Purchaser and
the performance of all obligations of such Purchaser hereunder has been taken.
1.3 This Agreement, when executed as delivered by such Purchaser, will
constitute valid and binding obligations of such Purchaser enforceable in
accordance with its terms, subject to laws of general application relating to
bankruptcy, insolvency and the relief of debtors and by general principles of
equity.
1.4 The execution and delivery of this agreement, consummation of the
transactions contemplated hereby, and compliance with the terms and provisions
hereof will not conflict with or result in a breach of the terms and conditions
of, or constitute a default under the organizational documents of such Purchaser
or of any material contract or agreement to which such Purchaser is now a party.
1.5 Such Purchaser has been informed and understands that because the
Securities have not been registered under the Securities Act of 1933, as
amended, such Purchaser must bear
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the economic risk of the investment in the Securities for an indefinite period
and cannot resell the Securities unless they are so registered or an exemption
from registration is available. Such Purchaser acknowledges that it is able to
bear the economic risk of such investment and does not presently have reason to
anticipate any occasion or event which would cause any adverse change in its
circumstances necessitating that it sell or distribute all or any part of the
Securities.
1.6 The Securities will be acquired by such Purchaser for its own
accounts for investment and not with a view to, or for sale in connection with,
any distribution thereof or with any present intention of selling or
distributing all or any part of the Securities.
1.7 Such Purchaser hereby acknowledges that it has received various
financial and other information concerning the Company and has been afforded
every opportunity to discuss and, to the extent deemed it necessary, has
discussed such information and other matters with officers and other persons
associated with the Company, and there is no further information regarding the
Company which such Purchaser requires in order to make its investment decision
to acquire the Securities. Such Purchaser further acknowledges that it is
familiar with the current and proposed business of the Company.
1.8 Such Purchaser is an entity who satisfies the requirements to be
deemed (i) an accredited investor as defined in Rule 501(a) of Regulation D
under the Securities Act of 1933, as amended, and (ii) a "qualified
institutional buyer" as defined in Rule 144A promulgated under the Securities
Act of 1933, as amended.
1.9 Such Purchaser hereby covenants and agrees that it will not, at
any time, offer or sell all or any part of the Securities unless (a) a
registration statement under the Securities Act of 1933, as amended, is in
effect with respect thereto or (b) opinion of counsel for such Purchaser, in
form and substance satisfactory to the Company, has been delivered to the
Company to the effect that such offer or sale is pursuant to an exempt
transaction under the Securities Act of 1933, as amended, or registration
thereunder is not required in connection with such offer or sale. Such Purchaser
has no present plan or intention to, directly or indirectly, effect any
transaction in or involving any securities of the Company, Omnipoint
Corporation, VoiceStream Wireless Corporation or any of their subsidiaries or
affiliates (other than the transaction contemplated hereby), including, without
limitation, any "short-sale" or the purchase or sale of any derivative security.
1.10 Such Purchaser represents that its principle place of business is
the address identified immediately below the signature of such Purchaser's
authorized officer attached hereto.
1.11 Such Purchaser agrees to execute and deliver the Voting Agreement
attached as Exhibit A hereto.
1.12 Such Purchaser acknowledges and agrees that in issuing and
delivering the Securities, the Company will rely solely on the accuracy of the
representation, warranties, covenants and agreements herein above made by such
Purchaser.
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1.13 Such Purchaser agrees not to exercise any appraisal rights under
Section 262 of Delaware General Corporation Law for any of the Securities
beneficially owned by such Purchaser in connection with the Merger (as defined
below).
2. The Company hereby represents, warrants and covenants to the Purchasers
as follows:
2.1 The Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware and has all requisite
corporate power and authority to carry on its business as now conducted.
2.2 All corporate action on the part of the Company, including its
directors and stockholders, necessary for the authorization, execution and
delivery of this Agreement by the Company, the performance of all obligations of
the Company hereunder, and the authorization, issuance and delivery of the
Securities has been taken.
2.3 This Agreement, when executed as delivered by the Company, will
constitute valid and binding obligations of the Company enforceable in
accordance with its terms, subject to laws of general application relating to
bankruptcy, insolvency and the relief of debtors and by general principles of
equity.
2.4 The execution and delivery of this agreement, consummation of the
transactions contemplated hereby, and compliance with the terms and provisions
hereof will not conflict with or result in a breach of the terms and conditions
of, or constitute a default under the certificate of incorporation or by-laws of
the Company or of any material contract or agreement to which the Company is now
a party (including, but not limited to, the Agreement and Plan of Merger, dated
as of October 22, 1999, by and between Omnipoint Corporation and the Company
(the "Merger Agreement")).
2.5 As of their respective filing dates, all documents filed by, or on
behalf of, the Company with the Securities Exchange Commission (the "SEC"),
whether pursuant to the requirements of the Securities Act of 1933, as amended,
or the Securities Exchange Act of 1934, as amended, or otherwise, other than the
preliminary Joint Proxy Statement/Prospectus included within the Registration
Statement on Form S-4 dated December 21, 1999 of Omnipoint Corporation (the
"Omnipoint Registration Statement"), did not contain any untrue statement of a
material fact or omitted to state a material fact necessary in order to make the
statements made therein, in light of the circumstances in which they were made,
not misleading.
2.6 The Company hereby covenants and agrees not to, directly or
indirectly, issue, deliver or sell any shares of its capital stock for a period
of ninety (90) days from the date hereof, except as required by the Merger
Agreement. The Purchasers acknowledge that the Company may be obligated pursuant
to the Merger Agreement to issue shares of the Company's Class A Common Stock to
Omnipoint Corporation as a result of the transactions contemplated by this
Agreement.
2.7 Assuming accuracy of the representations and warranties of the
Purchasers contained herein, the issuance and sale of the Securities
contemplated hereby complies with the
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applicable requirements of the Securities Act of 1933, as amended, and the rules
and regulations promulgated thereby.
2.8 The Securities will be included in the Class A Common Stock of the
Company that will be converted into the Merger Consideration (as defined in the
Merger Agreement) upon consummation of the Merger (as defined in the Merger
Agreement). The securities included in the Merger Consideration (as defined in
the Merger Agreement) into which the Securities will be converted (assuming
consummation of the Merger (as defined in the Merger Agreement)) are required by
the terms of the Merger Agreement to be covered by the Omnipoint Registration
Statement, another registration statement filed by Omnipoint Corporation or a
registration statement filed by Voicestream Wireless Holding Corporation.
3. Registration Rights.
3.1 In the event that the Merger Agreement is terminated, Purchasers
holding not less than twenty (20) percent of the Securities may request
registration under the Securities Act of 1933, as amended, of all or part of
their Securities by providing the Company written notice of such request (a
"Registration Request"). Within seven days after receipt of any such request,
the Company will give written notice of such request to all other holders of
securities of the Company entitled to notice of or the right to participate in
such registrations ("Other Registrable Securities") and will include in such
registration all Other Registrable Securities with respect to which the Company
has received written requests for inclusion therein within twenty (20) days
after the receipt of the Company's notice. Subject to Section 3.3, the Company
shall file a registration statement with the SEC covering the Securities in such
registration within sixty (60) days of receipt of the Registration Request. A
registration requested pursuant to this Section 3.1 is referred to herein as a
"Demand Registration". A request pursuant to this Section shall state the number
of Securities requested to be registered, the intended method of disposition
thereof and the jurisdictions which registration is desired.
3.2 The Purchasers will be entitled to request two (2) Demand
Registrations, and the Company will pay all registration expenses in connection
therewith.
3.3 The Company may postpone for up to three months in the aggregate
during any twelve month period any filing or the effectiveness of any
registration statement for a Demand Registration if the Company's Board of
Directors determines that such Demand Registration might reasonable be expected
to have an adverse effect on any proposal or plan by the Company to engage in
any material corporate transaction; provided that in such event, the Purchasers
initiating the request for such Demand Registration will be entitled to withdraw
such request.
3.4 The obligations of the Company under this Section 3 will terminate
upon the earlier of (i) such date as all Securities have been resold by the
Purchasers and (ii) such date as all of the Securities may be resold in a single
transaction pursuant to Rule 144(k) promulgated under the Securities Act of
1933, as amended.
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4. The Company agrees to notify Omnipoint Corporation of the consummation of
the transactions contemplated hereby.
5. This Agreement shall be binding upon the Company and the Purchaser and
their respective heirs, executors, administrators or assigns.
6. This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument, and in pleading or proving any provision of this Agreement,
it shall not be necessary to produce more than one of such counterparts.
7. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
8. This Agreement contains the entire agreement between the parties with
respect to the matter referred to herein and supersedes all prior negotiations,
commitment or understandings.
[Signatures on following pages.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed as of the day and year first above written.
EAST/WEST COMMUNICATIONS, INC.
By: /s/ Victoria G. Kane
--------------------------------
Victoria G. Kane
Chief Executive Officer
WPG Merger Arbitrage Fund, L.P.
By: Weiss, Peck & Greer, L.L.C.
its General Partner
By: /s/ Raj Maheshwari
--------------------------------
Raj Maheshwari
Principal
Address: One New York Plaza
New York, NY 10004
WPG Merger Arbitrage Overseas Fund, Ltd.
By: Weiss, Peck & Greer, L.L.C.;
its General Partner
By: /s/ Raj Maheshwari
--------------------------------
Raj Maheshwari
Principal
Address: One New York Plaza
New York, NY 10004
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Ritchie Capital Inv. Ltd.
By: Weiss, Peck & Greer, L.L.C.;
its Attorney-in-Fact
By: /s/ Raj Maheshwari
--------------------------------
Raj Maheshwari
Principal
Address: One New York Plaza
New York, NY 10004
RAM Trading Ltd.
By: Weiss, Peck & Greer, L.L.C.;
its Attorney-in-Fact
By: /s/ Raj Maheshwari
--------------------------------
Raj Maheshwari
Principal
Address: One New York Plaza
New York, NY 10004
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SCHEDULE A
PURCHASERS
PURCHASER NUMBER OF SHARES
- --------- ----------------
WPG Merger Arbitrage Fund, L.P. 43,500
WPG Merger Arbitrage Overseas Fund, Ltd. 13,000
Ritchie Capital Inv. Ltd. 21,750
RAM Trading Ltd. 21,750
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EXHIBIT A
VOTING AGREEMENT
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EXHIBIT 9.1
VOTING AGREEMENT
THIS VOTING AGREEMENT (the "Agreement") is dated January 5, 2000,
by and among East/West Communications, Inc., a Delaware corporation ("East
West"), Omnipoint Corporation, a Delaware corporation ("Omnipoint") and the
parties listed on Schedule I hereto (each an "East West Stockholder" and,
collectively, the "East West Stockholders").
RECITALS
WHEREAS, East West and Omnipoint entered into an Agreement and
Plan of Merger (the "Merger Agreement") pursuant to which, among other things,
East West will merge with and into Omnipoint (such merger, together with the
related transactions contemplated in the Merger Agreement, being referred to
herein as the "Merger");
WHEREAS, each East West Stockholder is the beneficial owner of the
number of shares of East West Class A Common Stock, par value $0.0001 per share,
set forth opposite each East West Stockholders name in Schedule I hereto (the
"East West Shares"); and
WHEREAS, approval of the Merger Agreement by East West
stockholders at a meeting of East West stockholders (the "East West
Stockholders' Meeting") is a condition to the consummation of the Merger.
NOW THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein, the parties hereto agree as follows:
1. Agreement to Vote by East West Stockholder.
a. Each East West Stockholder hereby agrees, either (i)
to attend the East West Stockholders' Meeting (if such meeting is held), in
person or by proxy or (ii) by written consent, to vote (or cause to be voted)
all East West Shares, and any other voting securities of East West, beneficially
owned by such East West Stockholder (whether issued heretofore or hereafter)
that such East West Stockholder owns or has the right to vote, in favor of
adoption and approval of the Merger Agreement, the Merger, and any other matters
necessary to consummate the transactions contemplated in the Merger Agreement.
Such agreement to vote shall apply also to any adjournment or adjournments of
the East West Stockholders' Meeting.
b. From and after the date hereof through the earlier
of the effective time of the Merger and the termination of the Merger Agreement,
each East West Stockholder hereby agrees not to sell, transfer, pledge, encumber
or otherwise dispose of (collectively, "Transfer") any East West Shares and any
other voting securities of East West beneficially owned by such East West
Stockholder on the date hereof. Any such Transfer of East West Shares shall be
null and void, and such transferee shall have no rights as a stockholder of East
West.
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c. To the extent inconsistent with the foregoing
provisions of this Section 1, each East West Stockholder hereby revokes any and
all previous proxies granted by such East West Stockholder with respect to such
East West Stockholder's East West Shares or any other voting securities of East
West.
2. Representations and Warranties of East West and the East
West Stockholders.
a. East West represents and warrants as follows: (i)
this Agreement has been approved by the Board of Directors of East West and (ii)
this Agreement has been duly executed and delivered by East West 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. Each East West Stockholder represents and warrants
as follows: (i) this Agreement has been duly executed and delivered by such East
West 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 East West Shares
listed next to the name of such East West Stockholder on Schedule I hereto are
the only voting securities of East West owned (beneficially or of record) by it.
3. Effectiveness and Termination. In the event that the Merger
Agreement is terminated in accordance with its terms, this Agreement shall
automatically terminate and be of no further force 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.
4. Miscellaneous.
a. Notice. All notices, requests and other
communications to any party hereunder shall be in writing (including facsimile
transmission) and shall be given,
if to East West, to it at:
East/West Communications, Inc.
350 Stuyvesant Avenue
Rye, New York 10580
Attention: Victoria G. Kane
Phone: (914) 921-6300
Fax: (914) 921-6300
With a copy to:
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Latham & Watkins
1001 Pennsylvania Avenue, N.W.
Suite 1300
Washington, D.C. 20004
Attention: James Barker, Esq.
Daniel T. Lennon, Esq.
Phone: (202) 637-2200
Fax: (202) 637-5265
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 Rudnick & Wolfe LLP
1200 Nineteenth Street, N.W.
Washington, D.C. 20036
Attention: Edwin M. Martin, Jr., Esq.
Fax: (202) 233-2085
if to any East West Stockholder, to it at:
Weiss, Peck & Greer, L.L.C.
One New York Plaza
New York, NY 10004
Attention: Michael E. Singer, Esq.
Fax: (212) 908-0195
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.
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(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 East West stock or other securities subject to this Agreement.
Notwithstanding any Transfer of shares of East West stock, the transferor shall
remain liable for the performance of all obligations of such transferor under
this Agreement.
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 party
agrees that service of process on such party as provided in Section 6.a shall be
deemed effective service of process 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
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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 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 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
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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.
[Signatures on following pages.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed as of the day and year first above written.
EAST/WEST COMMUNICATIONS, INC.
By: /s/ Victoria G. Kane
--------------------------------
Victoria G. Kane
Chief Executive Officer
WPG Merger Arbitrage Fund, L.P.
By: Weiss, Peck & Greer, L.L.C.
its General Partner
By: /s/ Raj Maheshwari
--------------------------------
Raj Maheshwari
Principal
WPG Merger Arbitrage Overseas Fund, Ltd.
By: Weiss, Peck & Greer, L.L.C.;
its General Partner
By: /s/ Raj Maheshwari
--------------------------------
Raj Maheshwari
Principal
Ritchie Capital Inv. Ltd.
By: Weiss, Peck & Greer, L.L.C.;
its Attorney-in-Fact
By: /s/ Raj Maheshwari
--------------------------------
Raj Maheshwari
Principal
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RAM Trading Ltd.
By: Weiss, Peck & Greer, L.L.C.;
its Attorney-in-Fact
By: /s/ Raj Maheshwari
--------------------------------
Raj Maheshwari
Principal
OMNIPOINT CORPORATION
By: /s/ Douglas G. Smith
--------------------------------
Douglas G. Smith
President
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SCHEDULE I
EAST WEST STOCKHOLDERS
NAME AND ADDRESS OF STOCKHOLDER NUMBER OF EAST WEST SHARES
WPG Merger Arbitrage Fund, L.P. 60,070
One New York Plaza
New York, NY 10004
WPG Merger Arbitrage Overseas Fund, Ltd. 13,000
One New York Plaza
New York, NY 10004
Ritchie Capital Inv. Ltd. 25,215
One New York Plaza
New York, NY 10004
RAM Trading Ltd. 25,215
One New York Plaza
New York, NY 10004
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EXHIBIT 9.1
VOTING AGREEMENT
THIS VOTING AGREEMENT (the "Agreement") is dated January 5, 2000,
by and among East/West Communications, Inc., a Delaware corporation ("East
West"), Omnipoint Corporation, a Delaware corporation ("Omnipoint") and the
parties listed on Schedule I hereto (each an "East West Stockholder" and,
collectively, the "East West Stockholders").
RECITALS
WHEREAS, East West and Omnipoint entered into an Agreement and
Plan of Merger (the "Merger Agreement") pursuant to which, among other things,
East West will merge with and into Omnipoint (such merger, together with the
related transactions contemplated in the Merger Agreement, being referred to
herein as the "Merger");
WHEREAS, each East West Stockholder is the beneficial owner of the
number of shares of East West Class A Common Stock, par value $0.0001 per share,
set forth opposite each East West Stockholders name in Schedule I hereto (the
"East West Shares"); and
WHEREAS, approval of the Merger Agreement by East West
stockholders at a meeting of East West stockholders (the "East West
Stockholders' Meeting") is a condition to the consummation of the Merger.
NOW THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein, the parties hereto agree as follows:
1. Agreement to Vote by East West Stockholder.
a. Each East West Stockholder hereby agrees, either (i)
to attend the East West Stockholders' Meeting (if such meeting is held), in
person or by proxy or (ii) by written consent, to vote (or cause to be voted)
all East West Shares, and any other voting securities of East West, beneficially
owned by such East West Stockholder (whether issued heretofore or hereafter)
that such East West Stockholder owns or has the right to vote, in favor of
adoption and approval of the Merger Agreement, the Merger, and any other matters
necessary to consummate the transactions contemplated in the Merger Agreement.
Such agreement to vote shall apply also to any adjournment or adjournments of
the East West Stockholders' Meeting.
b. From and after the date hereof through the earlier
of the effective time of the Merger and the termination of the Merger Agreement,
each East West Stockholder hereby agrees not to sell, transfer, pledge, encumber
or otherwise dispose of (collectively, "Transfer") any East West Shares and any
other voting securities of East West beneficially owned by such East West
Stockholder on the date hereof. Any such Transfer of East West Shares shall be
null and void, and such transferee shall have no rights as a stockholder of East
West.
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c. To the extent inconsistent with the foregoing
provisions of this Section 1, each East West Stockholder hereby revokes any and
all previous proxies granted by such East West Stockholder with respect to such
East West Stockholder's East West Shares or any other voting securities of East
West.
2. Representations and Warranties of East West and the East
West Stockholders.
a. East West represents and warrants as follows: (i)
this Agreement has been approved by the Board of Directors of East West and (ii)
this Agreement has been duly executed and delivered by East West 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. Each East West Stockholder represents and warrants
as follows: (i) this Agreement has been duly executed and delivered by such East
West 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 East West Shares
listed next to the name of such East West Stockholder on Schedule I hereto are
the only voting securities of East West owned (beneficially or of record) by it.
3. Effectiveness and Termination. In the event that the Merger
Agreement is terminated in accordance with its terms, this Agreement shall
automatically terminate and be of no further force 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.
4. Miscellaneous.
a. Notice. All notices, requests and other
communications to any party hereunder shall be in writing (including facsimile
transmission) and shall be given,
if to East West, to it at:
East/West Communications, Inc.
350 Stuyvesant Avenue
Rye, New York 10580
Attention: Victoria G. Kane
Phone: (914) 921-6300
Fax: (914) 921-6300
With a copy to:
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Latham & Watkins
1001 Pennsylvania Avenue, N.W.
Suite 1300
Washington, D.C. 20004
Attention: James Barker, Esq.
Daniel T. Lennon, Esq.
Phone: (202) 637-2200
Fax: (202) 637-5265
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 Rudnick & Wolfe LLP
1200 Nineteenth Street, N.W.
Washington, D.C. 20036
Attention: Edwin M. Martin, Jr., Esq.
Fax: (202) 233-2085
if to any East West Stockholder, to it at:
Weiss, Peck & Greer, L.L.C.
One New York Plaza
New York, NY 10004
Attention: Michael E. Singer, Esq.
Fax: (212) 908-0195
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.
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(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 East West stock or other securities subject to this Agreement.
Notwithstanding any Transfer of shares of East West stock, the transferor shall
remain liable for the performance of all obligations of such transferor under
this Agreement.
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 party
agrees that service of process on such party as provided in Section 6.a shall be
deemed effective service of process 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
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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 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 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
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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.
[Signatures on following pages.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed as of the day and year first above written.
EAST/WEST COMMUNICATIONS, INC.
By: /s/ Victoria G. Kane
--------------------------------
Victoria G. Kane
Chief Executive Officer
WPG Merger Arbitrage Fund, L.P.
By: Weiss, Peck & Greer, L.L.C.
its General Partner
By: /s/ Raj Maheshwari
--------------------------------
Raj Maheshwari
Principal
WPG Merger Arbitrage Overseas Fund, Ltd.
By: Weiss, Peck & Greer, L.L.C.;
its General Partner
By: /s/ Raj Maheshwari
--------------------------------
Raj Maheshwari
Principal
Ritchie Capital Inv. Ltd.
By: Weiss, Peck & Greer, L.L.C.;
its Attorney-in-Fact
By: /s/ Raj Maheshwari
--------------------------------
Raj Maheshwari
Principal
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RAM Trading Ltd.
By: Weiss, Peck & Greer, L.L.C.;
its Attorney-in-Fact
By: /s/ Raj Maheshwari
--------------------------------
Raj Maheshwari
Principal
OMNIPOINT CORPORATION
By: /s/ Douglas G. Smith
--------------------------------
Douglas G. Smith
President
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SCHEDULE I
EAST WEST STOCKHOLDERS
NAME AND ADDRESS OF STOCKHOLDER NUMBER OF EAST WEST SHARES
WPG Merger Arbitrage Fund, L.P. 60,070
One New York Plaza
New York, NY 10004
WPG Merger Arbitrage Overseas Fund, Ltd. 13,000
One New York Plaza
New York, NY 10004
Ritchie Capital Inv. Ltd. 25,215
One New York Plaza
New York, NY 10004
RAM Trading Ltd. 25,215
One New York Plaza
New York, NY 10004
