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Securities Exchange Act of 1934
Date of Report
June 23, 1999
VOICESTREAM WIRELESS CORPORATION
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(Exact Name of Registrant as Specified in Charter)
Washington
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(State or Other Jurisdiction of Incorporation)
000-25441 91-1956183
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(Commission File Number) (IRS Employer Identification No.)
3650 131st Avenue SE
Bellevue, WA 98006
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(Address of Principal Executive Offices)
(Zip Code)
Registrant's telephone number, including area code: (425) 586-8700
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(Former Name or Former Address, if Changed Since Last Report)
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ITEM 5. OTHER EVENTS.
REORGANIZATION
On June 23, 1999, VoiceStream Wireless Corporation, a Washington
corporation ("VoiceStream"), agreed to a plan of reorganization (the
"Reorganization") with Omnipoint Corporation, a Delaware corporation
("Omnipoint"). The terms of the Reorganization are set forth in an Agreement and
Plan of Reorganization (the "Reorganization Agreement"), dated as of June 23,
1999, between VoiceStream, Omnipoint and VoiceStream Wireless Holding
Corporation, a Delaware corporation and a wholly-owned subsidiary of VoiceStream
("Holding Company").
In the Reorganization (i) each share of VoiceStream Common
Stock, no par value per share (the "VoiceStream Common Stock), will be exchanged
for one share of Holding Company Common Stock, par value $.001 per share (the
"Holding Company Common Stock), and (ii) each share of Omnipoint Common Stock,
par value $.01 per share (the "Omnipoint Common Stock"), will be exchanged, at
the election of the holder thereof, for (a) 0.825 shares of Holding Company
Common Stock plus $8.00 in cash (the "Consideration") or (b) subject to
proration, cash or Holding Company Common Stock equal in value to the
Consideration.
Consummation of the Reorganization is subject to various
conditions, including: (i) approval and adoption of the Reorganization by the
shareholders of each of VoiceStream and Omnipoint; (ii) receipt of necessary
federal, state, and other regulatory approvals including those of the Federal
Communications Commission; (iii) the expiration or termination of any applicable
waiting period under the Hart-Scott-Rodino Antitrust Improvements Acts of 1976;
(iv) registration of the shares of Holding Company Common Stock to be issued in
the Reorganization under the Securities Act of 1933, as amended (the "Securities
Act"), and the approval for listing of such shares on NASDAQ; and (v)
satisfaction of certain other conditions, including the consummation of certain
other transactions more fully described below.
The Reorganization Agreement and the transactions contemplated
thereby will be submitted for adoption and approval to the shareholders of each
of VoiceStream and Omnipoint at meetings to be called and held for that purpose.
Prior to such meetings, VoiceStream and Omnipoint will file a registration
statement with the Securities and Exchange Commission registering under the
Securities Act the Holding Company Common Stock to be issued in the
Reorganization.
INTERIM FINANCING
Concurrently with the execution of the Reorganization Agreement,
VoiceStream, Hutchison Telecommunications PCS (USA) Limited, a British Virgin
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Islands corporation ("Hutchison USA"), and Omnipoint entered into a Securities
Purchase Agreement (the "Securities Purchase Agreement"), dated as of June 23,
1999, pursuant to which, among other things, VoiceStream purchased, for an
aggregate purchase price of $102,504.000, 4,271 shares of Omnipoint's Series A
Non-Voting Convertible Preferred Stock, par value $0.01 per share ("Omnipoint
Preferred Stock"), which shares are convertible, at the option of VoiceStream,
into Omnipoint Common Stock at a conversion price of $24 per share. In the event
that the Reorganization is not consummated and the Reorganization Agreement is
terminated by reason of (1) a material breach by Omnipoint of its covenants,
agreements or obligations under the Reorganization Agreement or (ii) any
representation or warranty of Omnipoint under the Reorganization Agreement being
untrue in any material respect, such conversion price shall be reduced to $18.50
and the Omnipoint Preferred Stock will be automatically converted to Omnipoint
Common Stock (subject to applicable Federal Communications Commission
regulations and rulings and applicable law). The Securities Purchase Agreement
further provides that, subject to certain terms and conditions, VoiceStream
shall purchase an additional 1,979 shares of Omnipoint Preferred Stock on
October 1, 1999 for an aggregate purchase price of $47,496,000, which shall be
convertible at the same conversion rates as the shares of Omnipoint Preferred
Stock purchased on June 23, 1999. Pursuant to the Securities Purchase Agreement,
Hutchison also purchased 4,271 shares of Omnipoint Preferred Stock, and agreed
to purchase an additional 1,979 shares of Omnipoint Preferred Stock on October
1, 1999, on identical terms.
COOK JOINT VENTURE
Concurrently with the execution of the Reorganization Agreement,
(i) Cook Inlet/VS GSM II, PCS, LLC, a Delaware limited liability company ("Cook
II"), and Omnipoint entered into a Purchase Agreement, dated as of June 23, 1999
(the "Cook II Agreement"), and (ii) Cook Inlet/VS GSM III, PCS, LLC, a Delaware
limited liability company ("Cook III" and together with Cook II, the "Cook
Entities) and Omnipoint entered into a Purchase Agreement, dated as of June 23,
1999 (the "Cook III Agreement" and together with the Cook II Agreement, the
"Cook Agreements"). In connection with, and as a condition to, the
Reorganization, immediately prior to the Reorganization each of the Cook
Entities will, pursuant to the Cook Agreements, acquire certain designated
entity communications licenses or applications from Omnipoint. As a result of
such transactions, immediately after the Reorganization, Holding Company will
own 49.9% of each of the Cook Entities.
HUTCHISON INVESTMENT
Concurrently with the execution of the Reorganization Agreement,
Holding Company and Hutchison USA entered into a Subscription Agreement (the
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"Subscription Agreement"), dated as of June 23, 1999. In connection with, and
as a condition to, the Reorganization, Hutchison USA has agreed, pursuant to
the Subscription Agreement, to purchase shares of Holding Company Common Stock
and Holding Company Convertible Junior Preferred Stock, no par value (the
"Holding Company Preferred Stock"), for an aggregate consideration
of $957 million.
VOTING AGREEMENT
Concurrently with the execution of the Reorganization Agreement,
VoiceStream, Omnipoint, certain stockholders of VoiceStream (the "Principal
VoiceStream Stockholders") and certain stockholders of Omnipoint (the "Principal
Omnipoint Stockholders"), entered into a Voting Agreement (the "Voting
Agreement"), dated as of June 23, 1999, whereby (i) the Principal Omnipoint
Stockholders have agreed to vote or cause to be voted the number of shares of
Omnipoint Common Stock beneficially owned by them in favor of the Reorganization
and against any alternative merger proposal or acquisition proposal representing
15% or more of the stock or assets of Omnipoint and its subsidiaries and (ii)
the Principal VoiceStream Stockholders have agreed to vote or cause to be voted
a specified number of shares of common stock of VoiceStream listed on a Schedule
attached thereto in favor of the Reorganization. From and after the date of the
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 of the Principal Omnipoint Stockholders and the
Principal VoiceStream Stockholders has agreed not to sell or otherwise dispose
of (other than certain transfers to partners of certain Principal Omnipoint
Stockholders or Principal VoiceStream Stockholders that are partnerships), in a
single transaction or a series of unrelated transactions, more than 30% of the
shares of Omnipoint Common Stock or VoiceStream Common Stock, as the case may
be, of each such Principal Omnipoint Stockholder or Principal VoiceStream
Stockholder which are subject to the Voting Agreement unless, as a condition to
such sale, each transferee of any shares in excess of 30% of such shares agrees
to be bound by the provisions of the Voting Agreement applicable to the
Principal Omnipoint Stockholders and the Principal VoiceStream Stockholders.
The foregoing summaries of the Reorganization Agreement, the
Securities Purchase Agreement, the Cook Agreements, the Subscription Agreement,
and the Voting Agreement are qualified in their entirely by reference to the
text of such agreements, copies of which are filed as Exhibits 2.1, 2.2, 2.3,
4.1, 9.1, and 10.1 hereto and which are incorporated herein by reference.
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ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL
INFORMATION AND EXHIBITS.
(a) - (b) Not applicable
(c) Exhibits.
2.1 Agreement and Plan of Reorganization, dated as of June 23, 1999, by and
among VoiceStream Wireless Corporation, VoiceStream Wireless Holding
Corporation and Omnipoint Corporation.
2.2 Purchase Agreement, dated as of June 23, 1999, between Omnipoint
Corporation and Cook Inlet/VS GSM II PCS, LLC.
2.3 Purchase Agreement, dated as of June 23, 1999, between Omnipoint
Corporation and Cook Inlet/VS GSM III PCS, LLC.
4.1 Stock Subscription Agreement, dated as of June 23, 1999, by and among
VoiceStream Wireless Corporation, Hutchinson Telecommunications Limited
and Hutchinson Telecommunications PCS (USA) Limited.
9.1 Voting Agreement, dated as of June 23, 1999, by and among Omnipoint
Corporation, VoiceStream Wireless Corporation, the stockholders of
Omnipoint and the stockholders of VoiceStream.
10.1 Securities Purchase Agreement, dated as of June 23, 1999, by and among
VoiceStream Wireless Corporation, Hutchinson Communications PCS (USA)
Limited and Omnipoint Corporation.
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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.
VOICESTREAM WIRELESS CORPORATION
Dated: July 6, 1999
By: /s/ Alan R. Bender
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Alan R. Bender
Executive Vice President,
General Counsel and Secretary
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EXHIBIT INDEX
Exhibit Number Description of Exhibit
(a) - (b) Not applicable
(c) Exhibits.
2.1 Agreement and Plan of Reorganization, dated as of June 23, 1999, by and
among VoiceStream Wireless Corporation, VoiceStream Wireless Holding
Corporation and Omnipoint Corporation.
2.2 Purchase Agreement, dated as of June 23, 1999, between Omnipoint
Corporation and Cook Inlet/VS GSM II PCS, LLC.
2.3 Purchase Agreement, dated as of June 23, 1999, between Omnipoint
Corporation and Cook Inlet/VS GSM III PCS, LLC.
4.1 Stock Subscription Agreement, dated as of June 23, 1999, by and among
VoiceStream Wireless Corporation, Hutchinson Telecommunications Limited
and Hutchinson Telecommunications PCS (USA) Limited.
9.1 Voting Agreement, dated as of June 23, 1999, by and among Omnipoint
Corporation, VoiceStream Wireless Corporation, the stockholders of
Omnipoint and the stockholders of VoiceStream.
10.1 Securities Purchase Agreement, dated as of June 23, 1999, by and among
VoiceStream Wireless Corporation, Hutchinson Communications PCS (USA)
Limited and Omnipoint Corporation.
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EXHIBIT 2.1
Execution Copy
AGREEMENT AND PLAN OF REORGANIZATION
dated as of
June 23, 1999
by and among
VOICESTREAM WIRELESS CORPORATION,
VOICESTREAM WIRELESS HOLDING CORPORATION
and
OMNIPOINT CORPORATION
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AGREEMENT AND PLAN OF REORGANIZATION
AGREEMENT AND PLAN OF REORGANIZATION (this "Agreement"), dated as of
June 23, 1999, by and among VoiceStream Wireless Corporation, a Washington
corporation ("VoiceStream"), VoiceStream Wireless Holding Corporation, a
Delaware corporation ("Holding Company"), and Omnipoint Corporation, a Delaware
corporation ("Omnipoint").
RECITALS
A. The Boards of Directors of VoiceStream and Omnipoint have approved,
and deem it advisable and in the best interests of their respective companies
and stockholders to consummate the reorganization (the "Reorganization")
provided for herein, pursuant to which (i) Holding Company will acquire all of
the common stock of each of VoiceStream and Omnipoint through mergers of
Subsidiaries of Holding Company with and into each of VoiceStream and Omnipoint
and (ii) Hutchison shall contribute $807,000,000 and Hutchison's Omnipoint Stock
to Holding Company in exchange for shares of common stock and shares of
preferred stock of Holding Company.
B. For federal income tax purposes, it is intended that (i) the
VoiceStream Merger qualify as a reorganization described in Section 368(a) of
the United States Internal Revenue Code of 1986, as amended (the "Code"), and/or
as an exchange described in Section 351(a) of the Code and (ii) the Omnipoint
Merger, taken together with the VoiceStream Merger and the Hutchison
Transaction, qualify as an exchange described in Section 351 of the Code.
C. VoiceStream Holding Company and Omnipoint desire to make certain
representations, warranties, covenants and agreements in connection with the
Transactions.
NOW, THEREFORE, in consideration of the foregoing, and of the
representations, warranties, covenants and agreements contained herein, the
parties hereto hereby agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.1 Definitions.
(a) The following terms, as used herein, have the following
meanings:
"Acquisition Proposal" means any offer or proposal for, or any
indication of interest in (i) a merger, consolidation, share exchange, business
combination, reorganization,
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recapitalization, liquidation, dissolution or other similar transaction
involving any member of the Omnipoint Group, (ii) the acquisition, directly or
indirectly, in a single transaction or series of related transactions, (A) an
equity interest representing greater than 15% of the voting securities of any
member of the Omnipoint Group or (B) assets, securities or ownership interests
representing an amount equal to or greater than 15% of the consolidated assets
or earning power of the Omnipoint Group, other than the Transactions or (iii)
the consummation of any other transaction or the entering into of any other
agreement or arrangement with respect to any other transactions, the effect of
which would have the same result as the occurrence of (i) or (ii).
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under common control with
such Person provided that, for purposes of this definition, "control"
(including, with correlative meanings, the terms "controlled by" and "under
common control with"), as used with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities or by contract or otherwise.
"All Cash Amount" means the sum of (i) the Closing Date Market
Price multiplied by .825 and (ii) $8.00.
"All Stock Number" means the sum of (i) $8.00 divided by the
Closing Date Market Price and (ii) .825.
"Allen" means Allen & Company Inc.
"Benefit Arrangement" means, with respect to any Person, any
employment, severance or similar contract or arrangement, whether formal or
informal, proposed or final, funded or unfunded, whether or not written,
providing for compensation, bonus, profit-sharing, stock option, or other
stock-related rights or other forms of incentive or deferred compensation,
vacation benefits, insurance coverage (including any self-insured arrangements),
health or medical benefits, disability benefits, workers' compensation,
supplemental unemployment benefits, severance benefits and post-employment or
retirement benefits (including compensation, pension, health, medical or life
insurance or other benefits) that (i) is not an Employee Plan, (ii) is entered
into, maintained, administered or contributed to, as the case may be, by such
Person or any of its Affiliates (other than, in the case of VoiceStream, Western
and its Subsidiaries) and (iii) covers any employee or former employee of such
Person or any of its Subsidiaries employed in the United States. "Omnipoint
Benefit Arrangements" means the Benefit Arrangements of any member of the
Omnipoint Group. "VoiceStream Benefit Arrangements" means the Benefit
Arrangements of any member of the VoiceStream Group.
"Business Day" means a day other than a Saturday, Sunday or
other day on which commercial banks in New York City or Seattle, Washington are
authorized or required by law to close.
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"CIRI Agreements" means the Purchase Agreements, dated June 23,
1999 between Omnipoint and the Cook Entities, attached hereto as Exhibits A-1
and A-2.
"CIRI Transaction" means the transactions contemplated by the
CIRI Agreements.
"Closing Date Market Price" means with respect to one share of
VoiceStream Common Stock, the average Closing Price (calculated on a weighted
average based upon the volume of shares traded on each day) for such share
during the period of the 15 most recent trading days ending on the Business Day
prior to the Effective Time.
"Closing Price" means, on any day in which shares are traded on
NASDAQ, the last reported price for which one share of VoiceStream Common Stock
traded on NASDAQ.
"Communications Act" means the Communications Act of 1934 and
the Telecommunications Act of 1996 (together with the rules, regulations and
published decisions of the FCC).
"Confidentiality Agreement" means the confidentiality letter
agreement, dated October 14, 1998, between Western and Omnipoint.
"Cook Entities" means Cook Inlet/VS GSM II PCS, LLC, a Delaware
limited liability company, and Cook Inlet/VS GSM III PCS, LLC, a Delaware
limited liability company.
"Default Event" means (i) the occurrence of a change in the U.S.
financial, political or economic conditions the result of which would, in the
reasonable judgment of VoiceStream, materially and adversely affect the ability
of VoiceStream and Omnipoint to restructure or refinance any Indebtedness of any
member of the Omnipoint Group on terms which would, at or after the Effective
Time, not have a material adverse effect on the business, financial conditions,
prospects, assets or results of operations of Holding Company, VoiceStream and
Omnipoint and their respective Subsidiaries, taken as a whole, and (ii) (A) any
default by any member of the Omnipoint Group in the observance or performance of
any agreement or condition relating to its respective Indebtedness or contained
in any instrument or agreement evidencing, securing or relating thereto, or the
occurrence of any other event or the existence of any condition, the effect of
which is to cause or permit the holder or holders of such Indebtedness (or
trustee or agent on behalf of such holder or holders) to cause, with or without
the passage of time or the giving of notice, such Indebtedness to become due or
payable prior to its stated maturity or (B) the occurrence of any event or the
existence of any condition, the effect of which is to cause or permit the holder
or holders of such Indebtedness (or trustee or agent on behalf of such holder or
holders) to require, with or without the passage of time or the giving of
notice, any member of the Omnipoint Group to redeem or repurchase such
Indebtedness prior to its stated maturity; provided, however, that no Default
Event shall exist unless the aggregate amount of Indebtedness in respect of
which either (A) or (B) shall have occurred is equal to at least $200,000,000.
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"Delaware Law" means the Delaware General Corporation Law.
"Employee Plan" means, with respect to any Person, any "employee
benefit plan", as defined in Section 3(3) of ERISA, that (i) is subject to any
provision of ERISA, (ii) is maintained, administered or contributed to by such
Person or any of its ERISA Affiliates (other than, in the case of VoiceStream,
Western and Western's Subsidiaries) and (iii) covers any employee or former
employee of such Person (other than, in the case of VoiceStream, Western and
Western's Subsidiaries). "Omnipoint Employee Plan" means an Employee Plan of any
member of the Omnipoint Group and "VoiceStream Employee Plan" means an Employee
Plan of any member of the VoiceStream Group.
"Environmental Laws" means the Comprehensive Environmental
Response, Compensation, and Liability Act, the Resource Conservation and
Recovery Act, the Emergency Planning and Community Right to Know Act, the Clean
Water Act, the Safe Drinking Water Act, the Clean Air Act, any so-called
"Superfund" or "Superlien" law, or any other federal, state or local statute,
law, ordinance, code, rule , regulation, Order, decree or other requirement of
any Governmental Body regulating, relating to or imposing liability or standards
of conduct concerning, health, safety and any Hazardous Substance.
"Environmental Permits" means, with respect to any Person, all
permits, licenses, franchises, certificates, approvals and other similar
authorizations of any Governmental Body relating to or required by Environmental
Laws and affecting, or relating in any way to, the business of such Person or
any of its Subsidiaries as currently conducted.
"ERISA" means the Employee Retirement Income Security Act of
1974.
"ERISA Affiliate" of any entity means any other entity that,
together with such entity, would be treated as a single employer under Section
414 of the Code.
"FAA" means the Federal Aviation Administration and any
successor agency or body.
"FCC" means the Federal Communications Commission and any
successor agency or body.
"FCC Consent" means an order of the FCC, or by the staff of the
FCC acting pursuant to delegated authority, granting its consent to the
applications referred to in Section 8.1(b) of this Agreement required to permit
the consummation of the Transactions.
"FCC Consent Date" means the date on which Public Notice is
given of the FCC Consent pursuant to the rules and regulations of the FCC.
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"Final Order" means an action or decision that has been granted
by the FCC as to which (i) no request for a stay or similar request is pending,
no stay is in effect, the action or decision has not been vacated, reversed, set
aside, annulled or suspended and any deadline for filing such request that may
be designated by statute or regulation has passed, (ii) no petition for
rehearing or reconsideration or application for review is pending and the time
for the filing of any such petition or application has passed, (iii) the FCC
does not have the action or decision under reconsideration on its own motion and
the time within which it may effect such reconsideration has passed and (iv) no
appeal is pending, including other administrative or judicial review, or in
effect and any deadline for filing any such appeal that may be designated by
statute or rule has passed.
"Goldman" means Goldman, Sachs & Co.
"Governmental Body" means any domestic or foreign national,
state, multi-state or municipal or other local government, any subdivision,
agency, commission or authority thereof, any court, or any quasi-governmental or
private body exercising any regulatory or taxing authority thereunder.
"Governmental Consents" means all authorizations, consents,
approvals, exceptions or other actions by Governmental Bodies required to
consummate the Transactions.
"Group" means "group," as such term is defined in Rule 13d-3 of
the 1934 Act.
"HSR Act" means the Hart-Scott-Rodino Antitrust Improvements Act
of 1976.
"Hazardous Substance" means any hazardous substance, hazardous
or toxic waste, hazardous material, pollutant or contaminant, as those or
similar terms are used in the Environmental Laws, including, without limitation,
asbestos and asbestos-related products, chlorofluorocarbons, oils or
petroleum-derived compounds, polychlorinated biphenyls, pesticides and radon.
"Hutchison" means Hutchison Telecommunications PCS (USA)
Limited, a British Virgin Islands corporation.
"Hutchison Agreement" means the Subscription Agreement, dated
June 23, 1999, between Holding Company, Hutchison and Hutchison
Telecommunications Limited, a Hong Kong corporation.
"Hutchison's Omnipoint Stock" means the Omnipoint Non-Voting
Convertible Preferred or the Omnipoint Common Stock into which it is convertible
which is held by Hutchison.
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"Hutchison Transaction" means the transactions contemplated by
the Hutchison Agreement.
"Indebtedness" of any Person at any date means (a) all
indebtedness of such Person for borrowed money or for the deferred purchase
price of property or services (other than current trade liabilities incurred in
the ordinary course of business and payable in accordance with customary
practices), (b) any other indebtedness of such Person which is evidenced by a
note, bond, debenture or similar instrument, (c) all obligations of such Person
under financing leases, (d) all obligations of such Person in respect of
acceptances issued or created for the account of such Person and with respect to
unpaid reimbursement obligations related to letters of credit issued for the
account of such Person and (e) all liabilities secured by any Lien on any
property owned by such Person even though such Person has not assumed or
otherwise become liable for the payment thereof.
"Investment Interest" means a direct or indirect ownership of
(i) capital stock, bonds, debentures, partnership, membership interests or other
ownership interests or other securities of any Person; (ii) any deposit with or
advance, loan or other extension of credit (including the purchase of property
from another Person subject to an understanding or agreement, contingent or
otherwise to resell such property to such other Person) to any other Person;
(iii) any revenue or profit interests pursuant to any agreement or license or
(iv) any agreement, commitment, right, understanding or arrangement with respect
to any of the items referred to in (i), (ii) or (iii) of this definition.
"IRS" means the Internal Revenue Service.
"Jones Day" means Jones, Day, Reavis & Pogue.
"knowledge" means, with respect to any fact, the conscious
awareness of such fact by an executive officer (as defined under the 1933 Act)
of the relevant Person.
"Lehman" means Lehman Brothers Inc.
"Lien" as to any Person, means any mortgage, lien, pledge,
adverse claim, charge, security interest or other encumbrance (including,
without limitation rights of first refusal, proxy rights and other similar
rights) in or on, or any interest or title of any vendor, lessor, lender or
other secured party to or of such Person under any conditional sale or other
title retention agreement or capital lease with respect to, any property or
asset owned or held by such Person, or the signing or filing of a financing
statement which names such Person as debtor, or the signing of any security
agreement authorizing any other party as the secured party thereunder to file
any financing statement other than those filed for informational purposes.
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"Multiemployer Plan" means each Employee Plan ,including for
this purpose any "employee pension benefit plan" (as defined in Section 3(2) of
ERISA) of Western and its Subsidiaries, that is a multiemployer plan, as defined
in Section 3(37) of ERISA.
"NASDAQ" means The NASDAQ National Market.
"1933 Act" means the Securities Act of 1933.
"1934 Act" means the Securities Exchange Act of 1934.
"Omnipoint Balance Sheet" means the Consolidated Balance Sheet
of Omnipoint and its consolidated subsidiaries as of December 31, 1998 and the
footnotes thereto set forth in the Omnipoint 10-K.
"Omnipoint Balance Sheet Date" means December 31, 1998.
"Omnipoint Common Stock" means Common Stock, par value $0.01 per
share, of Omnipoint.
"Omnipoint Disclosure Schedule" means the disclosure schedule of
Omnipoint attached hereto.
"Omnipoint Employee" means an employee of any member of the
Omnipoint Group.
"Omnipoint Group" means Omnipoint and the Omnipoint
Subsidiaries.
"Omnipoint Investment" means an entity in which any member of
the Omnipoint Group has an Investment Interest.
"Omnipoint Material Adverse Effect" means a material adverse
effect on the business, financial condition, prospects, assets or results of
operations of the Omnipoint Group taken as a whole, excluding any such effect
resulting from or arising in connection with (i) this Agreement, the
Transactions or the announcement thereof, (ii) changes or conditions generally
affecting the industries in which the Omnipoint Group operates or (iii) changes
in general economic, regulatory or political conditions. For the purposes of
Section 9.1(f), item (i) of the previous sentence shall not be excluded from the
definition of Omnipoint Material Adverse Effect.
"Omnipoint Non-Voting Convertible Preferred Stock" means
Omnipoint's Series A Non-Voting Convertible Preferred Stock, par value $0.01 per
share.
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"Omnipoint Preferred Stock" means 7% Cumulative Convertible
Preferred Stock, par value $1,000 per share, of Omnipoint.
"Omnipoint Subsidiary" means a Subsidiary of Omnipoint.
"Omnipoint 10-K" means Omnipoint's annual report on Form 10-K
for the fiscal year ended December 31, 1998.
"Order" means and includes any order, writ, injunction, decree,
judgment, award, determination or written direction of any court, arbitrator or
Governmental Body.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Pension Plan" means, with respect to any Person, any plan
(other than a Multiemployer Plan) that is subject to Title IV of ERISA and is
maintained, administered or contributed to or required to be contributed to by
such Person or any of its ERISA Affiliates. "Omnipoint Pension Plan" means a
Pension Plan of Omnipoint or any of its ERISA Affiliates and "VoiceStream
Pension Plan" means a Pension Plan of VoiceStream or any of its ERISA Affiliates
other than Employee Plan.
"Person" means an individual, corporation, partnership, limited
liability company, association, trust or other entity or organization, including
a government or political subdivision or an agency or instrumentality thereof.
"Piper Marbury" means Piper & Marbury L.L.P.
"SEC" means the Securities and Exchange Commission and any
successor agency or body.
"Significant Employees" means any employee of a Person who (i)
is an officer of such Person, (ii) owns any options to purchase capital stock of
such Person which accelerate as a result of the Merger, (iii) has a written
employment contract with such Person which calls for annual compensation in
excess of $125,000 or (iv) is compensated by such Person at an annual rate
greater than $125,000.
"Significant Omnipoint Employees" means Significant Employees of
any member of the Omnipoint Group.
"Significant VoiceStream Employees" means Significant Employees
of any member of the VoiceStream Group.
"Subsequent Transaction" means any transaction whereby (i) any
member of the VoiceStream Group or any VoiceStream Investment would acquire (by
merger, consolidation,
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acquisition of stock or assets or otherwise) any corporation, limited liability
company, partnership, other business organization or assets or division thereof,
which is in the business of providing wireless communication services, (ii) any
member of the VoiceStream Group or any VoiceStream Investment would acquire an
Investment Interest in any of the foregoing, (iii) any member of the VoiceStream
Group or VoiceStream Investment would issue any equity interest or incur any
Indebtedness whether in connection with any item described in (i) or (ii) or
otherwise, (iv) any member of the VoiceStream Group or any VoiceStream
Investment enters into or engages in a strategic alliance or other commercial
relationship or (v) any member of the VoiceStream Group or any VoiceStream
Investment is acting in the ordinary course consistent with past practice;
provided, however, in connection with a Subsequent Transaction described in
items (i), (ii), (iii) or (iv) of this definition, VoiceStream must receive an
opinion from a nationally recognized investment bank, acting as financial
advisor to VoiceStream, to the effect that, from a financial point of view, such
Subsequent Transaction is fair to the holders of VoiceStream Common Stock or, if
applicable, VoiceStream.
"Subsidiary" means, with respect to any Person, any entity of
which securities or other ownership interests having ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions are at any time directly or indirectly owned by such Person.
"Transactions" means the transactions contemplated by this
Agreement.
"VoiceStream Balance Sheet" means the Consolidated Balance Sheet
of VoiceStream and its consolidated subsidiaries as of December 31, 1998 and the
footnotes thereto, as set forth in the VoiceStream 10-K.
"VoiceStream Balance Sheet Date" means December 31, 1998.
"VoiceStream Common Stock" means the Common Stock, no par value
per share, of VoiceStream.
"VoiceStream Disclosure Schedule" means the disclosure schedule
of VoiceStream attached hereto.
"VoiceStream Employee" means an employee of VoiceStream or a
VoiceStream Subsidiary.
"VoiceStream Group" means VoiceStream and the VoiceStream
Subsidiaries.
"VoiceStream Investment" means an entity in which VoiceStream
has an Investment Interest.
9
<PAGE> 11
"VoiceStream Material Adverse Effect" means a material adverse
effect on the business, financial condition, prospects, assets or results of
operations of the VoiceStream Group taken as a whole, excluding any such effect
resulting from or arising in connection with (i) this Agreement, the
Transactions or the announcement thereof, (ii) changes or conditions generally
affecting the industries in which the VoiceStream Group operates or (iii)
changes in general economic, regulatory or political conditions. For the
purposes of Section 9.1(f), item (i) of the previous sentence shall not be
excluded from the definition of VoiceStream Material Adverse Effect.
"VoiceStream Subsidiary" means a Subsidiary of VoiceStream.
"VoiceStream 10-K" means VoiceStream's annual report on Form
10-K for the fiscal year ended December 31, 1998.
"Washington Law" means the Washington Business Corporation Act.
"Western" means Western Wireless Corporation, a Washington
corporation.
Any reference in this Agreement to a statute shall be to such
statute, as amended from time to time, and to the rules and regulations
promulgated thereunder.
(b) Each of the following terms is defined in the Section set
forth opposite such term:
<TABLE>
<S> <C>
Affiliate Registration Statement ....................... 7.8
Affiliate Shares ....................................... 7.8
Benefits Maintenance Period ............................ 7.5(a)(ii)
Cash Election .......................................... 3.3(c)(ii)
Cash Election Consideration ............................ 3.3(c)(ii)
Cash Election Proration Factor ......................... 3.3(h)
Certificate of Merger .................................. 2.1A(d)
Certificates ........................................... 3.4(a)
Closing ................................................ 2.1A(c)
Closing Date ........................................... 2.1A(c)
Code ................................................... Preamble
Dissenting Shares ...................................... 3.5
Effective Time ......................................... 2.1A(d)
Election Deadline ...................................... 3.4(a)
Election Form .......................................... 3.4(a)
End Date ............................................... 10.1(b)(i)
Environmental Reports .................................. 4.19(b)
Exchange Agent ......................................... 3.4(a)
Exchange Fund .......................................... 3.4(a)
</TABLE>
10
<PAGE> 12
<TABLE>
<S> <C>
FCC Applications ......................................... 8.1(b)
Form S-4 ................................................. 8.2
GAAP ..................................................... 4.9
Holding Company .......................................... Preamble
Holding Company Common Stock ............................. 2.1
Holding Company Share Issuance Number .................... 3.3(f)
Indemnified Losses ....................................... 7.2(a)
Indemnified Person ....................................... 7.2(a)
Merger Agreements ........................................ 2.1A
Merger Consideration ..................................... 3.3(c)(iii)
Merger Sub A ............................................. 2.3(i)
Merger Sub B ............................................. 2.3(ii)
Merger Subsidiaries ...................................... 2.3(ii)
Mergers .................................................. 2.1A(b)
New Director(s) .......................................... 7.4
New Omnipoint Convertible Securities ..................... 3.6
New Omnipoint Options .................................... 3.6(a)
New Omnipoint Warrants ................................... 3.6
New VoiceStream Convertible Securities ................... 3.6(b)
New VoiceStream Options .................................. 3.6(b)
New VoiceStream Warrants ................................. 3.6(b)
1999 Omnipoint SEC Documents ............................. 4.8(b)
1999 VoiceStream SEC Documents ........................... 5.8(b)
Omnipoint ................................................ Preamble
Omnipoint FCC Licenses ................................... 4.4(a)
Omnipoint Holders ........................................ 3.4(b)
Omnipoint Intellectual Property .......................... 4.20
Omnipoint Merger ......................................... 2.1A(b)
Omnipoint Merger Agreement ............................... 2.1A
Omnipoint Options ........................................ 4.6(a)
Omnipoint Pension Plan ................................... 1.1(a)
Omnipoint Rule 145 Affiliate ............................. 8.7
Omnipoint SEC Documents .................................. 4.8(b)
Omnipoint Stockholders' Approval ......................... 4.25
Omnipoint Stockholders' Meeting .......................... 8.8(a)
Omnipoint Warrants ....................................... 4.6(a)
Proxy Statement/Prospectus ............................... 8.2
Reorganization ........................................... Preamble
Spinoff .................................................. 9.2(c)
Standard Election ........................................ 3.3(c)(i)
Standard Election Consideration .......................... 3.3(c)(iii)
Standard Election Exchange Rate .......................... 3.3(c)(iii)
Stock Election ........................................... 3.3(c)(i)
</TABLE>
11
<PAGE> 13
<TABLE>
<S> <C>
Stock Election Consideration ............................ 3.3(c)(i)
Stock Election Exchange Rate ............................ 3.3(c)(i)
Stock Election Proration Factor ......................... 3.3(g)
Successor Plan .......................................... 7.5(b)
Tax Returns ............................................. 4.16
Taxes ................................................... 4.16
Termination Fee ......................................... 10.3(b)
Transferred Employees ................................... 7.5(a)(ii)
VoiceStream ............................................. Preamble
VoiceStream FCC Licenses ................................ 5.4(a)
VoiceStream Intellectual Property ....................... 5.20
VoiceStream Merger ...................................... 2.1A(a)
VoiceStream Merger Agreement ............................ 2.1A
VoiceStream Pension Plan ................................ 1.1(a)
VoiceStream SEC Documents ............................... 5.8(b)
VoiceStream Stockholders' Approval ...................... 5.26
VoiceStream Stockholders' Meeting ....................... 8.8(a)
</TABLE>
(c) Unless the context otherwise requires, the terms defined in
this Article 1 or elsewhere in this Agreement shall have the meanings herein
specified for all purposes of this Agreement, applicable to both the singular
and plural forms of any of the terms defined herein. When a reference is made in
this Agreement to a Section, such reference shall be to a Section of this
Agreement unless otherwise indicated. Whenever the words "include," "includes"
or "including" are used in this Agreement, they shall be deemed to be followed
by the words "without limitation." The use of any gender herein shall be deemed
to include the neuter, masculine and feminine genders wherever necessary or
appropriate.
ARTICLE 2
FORMATION OF HOLDING COMPANY AND SUBSIDIARIES
SECTION 2.1 Organization of Holding Company. Prior to the execution of
this Agreement, VoiceStream has organized Holding Company under Delaware Law.
The authorized capital stock of Holding Company shall consist of 400,000,000
shares of common stock, par value $0.001 per share (the "Holding Company Common
Stock"), of which one share shall be issued to VoiceStream at a price of $2.00,
and 5,000,000 shares of preferred stock, par value $0.001 per share.
SECTION 2.2 Directors and Officers of Holding Company. The directors and
officers of Holding Company were and shall be designated by VoiceStream. Each
such officer and director shall remain in office until his or her successors are
elected.
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<PAGE> 14
SECTION 2.3 Organization of Merger Subsidiaries. As promptly as
practicable (but in any event no more than 30 days) following the execution of
this Agreement, VoiceStream shall cause the following companies to be organized
for the sole purpose of effectuating the VoiceStream Merger and the Omnipoint
Merger contemplated herein:
(i) VoiceStream Subsidiary I, a corporation organized under the
laws of the State of Washington ("Merger Sub A"). The certificate of
incorporation and bylaws of Merger Sub A shall be in such forms as shall
be determined by VoiceStream as soon as practicable following the
execution of this Agreement. The authorized capital stock of Merger Sub
A shall initially consist of 100 shares of common stock, no par value
per share, one share of which shall be issued to Holding Company at a
price of $1.00 per share.
(ii) VoiceStream Subsidiary II, a corporation organized under
the laws of the State of Delaware ("Merger Sub B" and, together with
Merger Sub A, the "Merger Subsidiaries"). The certificate of
incorporation and bylaws of Merger Sub B shall be in such forms as shall
be determined by VoiceStream as soon as practicable following the
execution of this Agreement. The authorized capital stock of Merger Sub
B shall initially consist of 100 shares of common stock, par value $.01
per share, one share of which shall be issued to Holding Company at a
price of $1.00 per share.
SECTION 2.4 Actions of Directors and Officers. As promptly as
practicable (but not later than 30 days) following the execution of this
Agreement, VoiceStream shall cause (i) Holding Company to elect the directors of
the Merger Subsidiaries, (ii) the directors of Merger Sub A and Merger Sub B to
elect their respective officers, (iii) the directors of Holding Company to
ratify and approve this Agreement and to approve the forms of the Merger
Agreements, (iv) the Merger Agreements to be executed on behalf of the parties
thereto, and (v) the directors and officers of the Merger Subsidiaries to take
such steps as may be necessary or appropriate to complete the organization of
the Merger Subsidiaries and to approve the Merger Agreements.
SECTION 2.5 Actions of Holding Company. As promptly as practicable (but
in no event later than 15 days) following the execution of this Agreement,
Holding Company shall cause the Merger Subsidiaries to adopt the Merger
Agreements.
ARTICLE 2A
THE MERGERS; CLOSING
SECTION 2.1A The Mergers. Pursuant to the Merger Agreements, in forms to
be mutually agreed upon by VoiceStream and Omnipoint (sometimes hereinafter
referred to individually as the "VoiceStream Merger Agreement" and the
"Omnipoint Merger Agreement",
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<PAGE> 15
respectively, and collectively as the "Merger Agreements"), upon the terms and
subject to the conditions set forth in this Agreement and in the Merger
Agreements:
(a) Merger Sub A shall be merged with and into VoiceStream (the
"VoiceStream Merger") in accordance with the applicable provisions of Washington
Law. VoiceStream shall be the surviving corporation in the VoiceStream Merger
and shall continue its corporate existence under Washington Law. As a result of
the VoiceStream Merger, VoiceStream shall become a wholly owned Subsidiary of
Holding Company. The effects and consequences of the VoiceStream Merger shall be
as set forth in the VoiceStream Merger Agreement.
(b) Merger Sub B will be merged with and into Omnipoint (the
"Omnipoint Merger"), in accordance with the applicable provisions of Delaware
Law. Omnipoint shall be the surviving corporation in the Omnipoint Merger and
shall continue its corporate existence under Delaware Law. As a result of the
Omnipoint Merger, Holding Company shall own, directly or indirectly, all of the
outstanding shares of Omnipoint Common Stock. The effects and consequences of
the Omnipoint Merger shall be as set forth in the Omnipoint Merger Agreement.
The term "Mergers" shall mean the VoiceStream Merger and the Omnipoint Merger.
(c) Subject to the terms and conditions of this Agreement, the
closing of the Transactions (the "Closing") shall take place (a) at the offices
of Friedman Kaplan & Seiler LLP, 875 Third Avenue, New York, NY, at 11:00 a.m.,
local time, on the fifth Business Day following the day on which the last to be
fulfilled or waived of the conditions set forth in Article 9 (excluding
conditions that, by their terms cannot be satisfied until the Closing Date, but
subject to the fulfillment or waiver of such conditions) shall be fulfilled or
waived in accordance herewith or (b) at such other time, date or place as
VoiceStream and Omnipoint may agree. The date on which the Closing occurs is
hereinafter referred to as the "Closing Date."
(d) As soon as practicable following the Closing, the parties
shall (i) file a certificate of merger with respect to each of the Mergers (the
"Certificate of Merger") in such forms as are required by and executed in
accordance with applicable Delaware Law (in the case of the Omnipoint Merger)
and Washington Law (in the case of the VoiceStream Merger) and (ii) make all
other filings or recordings required under applicable Delaware Law or Washington
Law. The Mergers shall become effective at such time and date (the "Effective
Time") which is the later of (i) the date and time of the filing of the
Certificate of Merger with respect to the VoiceStream Merger (or such other date
and time as may be specified in such certificate as may be permitted by
Washington Law) and (ii) the date and time of the filing of the Certificate of
Merger with respect to the Omnipoint Merger (or such other date and time as may
be specified in such certificate as may be permitted by Delaware Law).
(e) The consummation of the Omnipoint Merger shall be
conditioned on the simultaneous consummation of the VoiceStream Merger, and the
consummation of VoiceStream Merger shall be conditioned on the simultaneous
consummation of the Omnipoint Merger.
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<PAGE> 16
SECTION 2.2A Directors. The directors of VoiceStream and Merger Sub B,
immediately prior to the Effective Time shall be the directors of the surviving
corporation of the VoiceStream Merger and the Omnipoint Merger, respectively, as
of the Effective Time and until their successors are duly appointed or elected
in accordance with applicable Delaware Law (in the case of the Omnipoint Merger)
and Washington Law (in the case of VoiceStream Merger).
SECTION 2.3A Certificate of Incorporation and Bylaws. The certificate of
incorporation and bylaws of VoiceStream and Omnipoint immediately prior to the
Effective Time shall be the certificate of incorporation and bylaws of the
surviving corporation of the VoiceStream Merger and the Omnipoint Merger,
respectively, as of the Effective Time; provided, VoiceStream may change the
name of VoiceStream.
SECTION 2.4A Officers. The officers of VoiceStream and Omnipoint
immediately prior to the Effective Time shall be the officers of the surviving
corporations of the VoiceStream Merger and the Omnipoint Merger, respectively,
as of the Effective Time and until their successors are duly appointed or
elected in accordance with applicable Delaware Law (in the case of the Omnipoint
Merger) and Washington Law (in the case of VoiceStream Merger).
ARTICLE 3
EFFECT OF THE MERGERS ON SECURITIES OF VOICESTREAM,
OMNIPOINT AND THE MERGER SUBSIDIARIES
SECTION 3.1 Conversion of Merger Subsidiaries Stock. At the Effective
Time, by virtue of the VoiceStream Merger and without any action on the part of
any of the parties, each share of the common stock of Merger Sub A outstanding
immediately prior to the Effective Time shall be converted into and shall become
one share of common stock of the surviving corporation of the VoiceStream
Merger. At the Effective Time, by virtue of the Omnipoint Merger and without any
action on the part of any of the parties, each share of the common stock of
Merger Sub B outstanding immediately prior to the Effective Time shall be
converted into and shall become one share of common stock of the surviving
corporation of the Omnipoint Merger.
SECTION 3.2 Cancellation of Holding Company Capital Stock. At the
Effective Time, the one share of the capital stock of Holding Company issued to
VoiceStream and outstanding immediately prior to the Effective Time shall be
canceled and cease to exist.
SECTION 3.3 Conversion of Common Stock.
(a) (i) Subject to the provisions of Sections 3.3 and 3.5, at
the Effective Time, each share of VoiceStream Common Stock that is issued and
outstanding immediately prior to the Effective Time shall be converted into one
share of Holding Company Common Stock.
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<PAGE> 17
Upon such conversion, all such shares of VoiceStream Common Stock shall be
canceled and cease to exist, and each certificate theretofore representing any
such shares shall, without any action on the part of the holder thereof, be
deemed to represent an equivalent number of shares of Holding Company Common
Stock.
(ii) Subject to the provisions of Sections 3.3 and 3.5,
at the Effective Time, each share of Omnipoint Common Stock that is issued and
outstanding immediately prior to the Effective Time shall be converted into the
right to receive the Merger Consideration and cash for fractional shares of
Holding Company Common Stock. Upon such conversion, all such shares of Omnipoint
Common Stock shall be canceled and cease to exist, and each certificate
theretofore representing any such shares shall, without any action on the part
of the holder thereof, be deemed to represent the right to receive the Merger
Consideration.
(b) At the Effective Time, each share of VoiceStream Common
Stock, Omnipoint Common Stock or Holding Company Common Stock which is held in
the treasury of VoiceStream, Omnipoint or their respective Subsidiaries
(provided, however, any Omnipoint Common Stock held by VoiceStream or Holding
Company shall not be canceled pursuant to this Section 3.3(b)) immediately prior
to the Effective Time shall, by virtue of the Mergers, cease to be outstanding
and shall be canceled and retired without payment of any consideration therefor.
(c) Subject to the provisions of Sections 3.3(g) and (h) and of
Sections 3.5 and 3.7, each share of Omnipoint Common Stock that is issued and
outstanding immediately prior to the Effective Time (excluding any Dissenting
Shares or any share of Omnipoint Common Stock canceled pursuant to Section
3.3(b) or held by Holding Company or VoiceStream) shall be converted, at the
election of the holder thereof in accordance with the procedures set forth
herein, into one of the following:
(i) for each such share of Omnipoint Common Stock with respect
to which an election to receive only Holding Company Common Stock has
been effectively made and not revoked or lost pursuant to Section 3.3(e)
(a "Stock Election"), the right to receive the All Stock Number of
shares (the "Stock Election Exchange Rate") of Holding Company Common
Stock (the "Stock Election Consideration");
(ii) for each such share of Omnipoint Common Stock with respect
to which an election to receive only cash has been effectively made and
not revoked or lost pursuant to Section 3.3(e) (a "Cash Election"), the
right to receive the All Cash Amount in cash, without interest (the
"Cash Election Consideration"); and
(iii) for each such share of Omnipoint Common Stock other than
shares as to which a Stock Election or a Cash Election has been made,
the right to receive (A) .825 shares (the "Standard Election Exchange
Rate") of Holding Company Common Stock and (B) $8.00 in cash, ((A) and
(B) being collectively referred to as the "Standard
16
<PAGE> 18
Election Consideration" and, together with the Stock Election
Consideration and the Cash Election Consideration, the "Merger
Consideration").
(d) If between the date of this Agreement and the Effective Time
the outstanding shares of VoiceStream Common Stock shall have been changed into
a different number of shares, by reason of any stock dividend, subdivision,
split or combination of shares, the Cash Election Consideration, the Stock
Election Consideration and the Standard Election Consideration, will be
correspondingly adjusted to reflect such stock dividend, subdivision, split or
combination of shares.
(e) Each person who, at the Effective Time, is a record holder
of shares of Omnipoint Common Stock (other than holders of shares of Omnipoint
Common Stock to be canceled as set forth in Section 3.3(b)), shall have the
right to submit an Election Form specifying the number of shares of Omnipoint
Common Stock that such person desires to have converted into the right to
receive Holding Company Common Stock pursuant to the Stock Election, the number
of shares of Omnipoint Common Stock that such person desires to have converted
into the right to receive cash pursuant to the Cash Election, or the number of
shares of Omnipoint Common Stock that such person desires to have converted into
the right to receive the Standard Election Consideration, pursuant to the
Standard Election. Any such record holder (including without limitation any such
record holder of Dissenting Shares) who fails properly to submit an Election
Form on or prior to the Election Deadline in accordance with the procedures set
forth in Section 3.4(a) shall be deemed to have made a Standard Election. Each
person who, at the Effective Time, is a record holder of Omnipoint Preferred
Stock, shall be deemed to have made a Standard Election.
(f) The aggregate number of shares of Holding Company Common
Stock to be issued to holders of Omnipoint Common Stock in connection with the
Omnipoint Merger or to become subject to issuance upon the conversion of the
Omnipoint Preferred Stock shall equal the product of (x) .825 and (y) the sum of
(i) the total number of shares of Omnipoint Common Stock issued and outstanding
immediately prior to the Effective Time, other than shares to be canceled
pursuant to Section 3.3(b) and shares held by Holding Company or VoiceStream and
(ii) the total number of shares of Omnipoint Common Stock issuable upon
conversion of Omnipoint Preferred Stock outstanding immediately prior to the
Effective Time (the product of (x) and (y) being referred to as the "Holding
Company Share Issuance Number"). If between the date of this Agreement and the
Effective Time the outstanding shares of VoiceStream Common Stock shall have
been changed into a different number of shares, by reason of any stock dividend,
subdivision, split or combination of shares, the Holding Company Share Issuance
Number will be correspondingly adjusted to reflect such stock dividend,
subdivision, split or combination of shares.
(g) In the event that the number of shares of Holding Company
Common Stock to be issued to holders of Omnipoint Common Stock in connection
with Omnipoint Merger or to become subject to issuance upon conversion of
Omnipoint Preferred Stock would
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<PAGE> 19
exceed the Holding Company Share Issuance Number based on the elections of the
holders of Omnipoint Common Stock (together with the conversion adjustments
applicable to the Omnipoint Preferred Stock), (i) all shares of Omnipoint Common
Stock subject to a Cash Election or a Standard Election will, as elected, be
converted into the right to receive the Cash Election Consideration or the
Standard Election Consideration, as the case may be, and (ii) each share of
Omnipoint Common Stock subject to a Stock Election will be converted into the
right to receive (A) a number of shares of Holding Company Common Stock equal to
the Stock Election Exchange Rate times the Stock Election Proration Factor and
(B) an amount of cash equal to (1) the All Cash Amount multiplied by (2) one
minus the Stock Election Proration Factor. The "Stock Election Proration Factor"
means a fraction (x) the numerator of which is the Holding Company Share
Issuance Number minus the aggregate number of shares of Holding Company Common
Stock to be issued in the Omnipoint Merger pursuant to the Standard Elections or
to become subject to issuance upon conversion of Omnipoint Preferred Stock
pursuant to elections corresponding to the Standard Elections deemed to have
been made by holders of Omnipoint Preferred Stock, and (y) the denominator of
which is the number of shares of Holding Company Common Stock that, but for this
paragraph (g), would have been issued to holders of Omnipoint Common Stock in
Transactions pursuant to the Stock Elections.
(h) In the event that the number of shares of Holding Company
Common Stock to be issued to holders of Omnipoint Common Stock in connection
with the Omnipoint Merger or to become subject to issuance upon conversion of
Omnipoint Preferred Stock would be less than the Holding Company Share Issuance
Number based on the elections of the holders of Omnipoint Common Stock (together
with the conversion adjustments applicable to the Omnipoint Preferred Stock),
(i) all shares of Omnipoint Common Stock subject to a Stock Election or a
Standard Election will, as elected, be converted into the right to receive the
Stock Election Consideration or the Standard Election Consideration, as the case
may be, and (ii) each share of Omnipoint Common Stock subject to a Cash Election
will be converted into the right to receive (A) a number of shares of Holding
Company Common Stock equal to the Cash Election Proration Factor and (B) an
amount of cash equal to (1) the All Cash Amount multiplied by (2) (x) one minus
(y) the Cash Election Proration Factor divided by the Stock Election Exchange
Rate. The "Cash Election Proration Factor" means a fraction (x) the numerator of
which is the Holding Company Share Issuance Number minus the aggregate number of
shares of Holding Company Common Stock to be issued in the Merger pursuant to
the Stock Elections and the Standard Elections or to become subject to issuance
upon conversion of Omnipoint Preferred Stock pursuant to elections corresponding
to the Standard Elections deemed to have been made by holders of Omnipoint
Preferred Stock, and (y) the denominator of which is the number of shares of
Omnipoint Common Stock subject to the Cash Elections.
SECTION 3.4 Surrender and Payment.
(a) Prior to the Effective Time, Holding Company shall appoint
an agent to be designated by VoiceStream (the "Exchange Agent") for the purpose
of exchanging certificates representing shares of Omnipoint Common Stock (the
"Certificates") for the Merger
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<PAGE> 20
Consideration. At the Effective Time, Holding Company will deposit (or cause to
be deposited) with the Exchange Agent the Merger Consideration to be paid in
respect of the shares (the "Exchange Fund"). Upon receipt, the Exchange Agent
will invest the cash portion of the Exchange Fund in United States government
securities maturing at the Election Deadline or such other investments as
VoiceStream and Omnipoint may mutually agree. Promptly after the Effective Time,
VoiceStream will send, or will cause the Exchange Agent to send, (A) to each
holder of shares of Omnipoint Common Stock, at the Effective Time, a letter of
transmittal and instructions (which shall specify that the delivery shall be
effected, and risk of loss and title shall pass, only upon proper delivery of
the Certificates to the Exchange Agent) for use in such exchange, and (B) to
each holder of shares of Omnipoint Common Stock, an election form (the "Election
Form") providing for such holders to make the Standard Election, the Cash
Election or the Stock Election. Any Standard Election (other than a deemed
Standard Election), Cash Election or Stock Election shall be validly made only
if the Exchange Agent shall have received by 5:00 p.m., New York City time, on a
date (the "Election Deadline") to be mutually agreed upon by VoiceStream and
Omnipoint (which date shall not be later than the twentieth Business Day after
the Effective Time), an Election Form properly completed and executed (with the
signature or signatures thereon guaranteed to the extent required by the
Election Form) by such holder accompanied by such holder's Certificates, or by
an appropriate guarantee of delivery of such Certificates from a member of any
registered national securities exchange or of the National Association of
Securities Dealers, Inc. or a commercial bank or trust company in the United
States as set forth in such Election Form. Any holder of Omnipoint Common Stock
who has made an election by submitting an Election Form to the Exchange Agent
may at any time prior to the Election Deadline change such holder's election by
submitting a revised Election Form, properly completed and signed that is
received by the Exchange Agent prior to the Election Deadline. Any holder of
Omnipoint Common Stock may at any time prior to the Election Deadline revoke his
election and withdraw his Certificates deposited with the Exchange Agent by
written notice to the Exchange Agent received by the close of business on the
day prior to the Election Deadline. VoiceStream shall have the right to make
rules (which will be described in the Election Form), not inconsistent with the
terms of this Agreement, governing the validity of Election Forms and the manner
and extent to which Standard Elections, Cash Election or Stock Elections are to
be taken into account in making the determinations prescribed by Sections 3.3(g)
and 3.3(h).
(b) Upon surrender to the Exchange Agent of its Certificate,
together with a properly completed letter of transmittal, each holder of shares
of Omnipoint Common Stock (the "Omnipoint Holders") will be entitled to receive
promptly after the Election Deadline the Merger Consideration (elected or deemed
elected by it, subject to Sections 3.3(g) and (h)) in respect of the shares of
Omnipoint Common Stock represented by its Certificate. Until so surrendered,
each such Certificate shall represent after the Effective Time, for all
purposes, only the right to receive the Merger Consideration.
(c) If any portion of the Merger Consideration is to be paid to
a Person other than the Person in whose name the Certificate so surrendered is
registered, it shall be a condition
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<PAGE> 21
to such payment that such Certificate shall be properly endorsed or otherwise be
in proper form for transfer and that the Person requesting such payment shall
pay to the Exchange Agent any transfer or other taxes required as a result of
such payment to a Person other than the registered holder of such Certificate,
or establish to the satisfaction of the Exchange Agent that such tax has been
paid or is not payable.
(d) After the Effective Time, there shall be no further
registration of transfers of shares of Omnipoint Common Stock. If, after the
Effective Time, Certificates are presented to the Surviving Corporation, they
shall be canceled and exchanged for the Stock Election Consideration provided
for, and in accordance with the procedures set forth, in this Article 3.
(e) Any portion of the Exchange Fund made available to the
Exchange Agent pursuant to Section 3.4(a) that remains unclaimed by the
Omnipoint Holders, one year after the Effective Time shall be returned to
Holding Company, upon demand, and any such holder who has not exchanged its
shares for the Merger Consideration in accordance with this Section 3.4 prior to
that time shall thereafter look only to Holding Company for payment of such
consideration, any dividends and distributions in respect of such shares, in
each case without any interest thereon. Notwithstanding the foregoing, Holding
Company shall not be liable to any Omnipoint Holder for any amounts paid to a
public official pursuant to applicable abandoned property, escheat or similar
laws. Any amounts remaining unclaimed by the Omnipoint Holders five years after
the Effective Time (or such earlier date, immediately prior to such time when
the amounts would otherwise escheat to or become property of any Governmental
Body) shall become, to the extent permitted by applicable law, the property of
Holding Company free and clear of any claims or interest of any Person
previously entitled thereto.
(f) No dividends or other distributions with respect to any
Holding Company Common Stock and no cash payment in lieu of fractional shares as
provided in Section 3.7, shall be paid to the holder of any unsurrendered
Certificates until such Certificates are surrendered as provided in Section
3.4(b). Following such surrender, there shall be paid, without interest, to the
Person in whose name such Holding Company Common Stock has been registered, (i)
at the time of such surrender, (A) in the case of Certificates, the amount of
any cash payable in lieu of fractional shares to which such Person is entitled
pursuant to Section 3.7, and (B) the amount of all dividends or other
distributions with a record date after the Effective Time previously paid or
payable on the date of such surrender, with respect to such Holding Company
Common Stock, and (ii) at the appropriate payment date, the amount of dividends
or other distributions with a record date after the Effective Time but prior to
surrender, and with a payment date subsequent to surrender, payable with respect
to such Holding Company Common Stock.
(g) Any portion of the Merger Consideration made available to
the Exchange Agent pursuant to Section 3.4(a) to pay for shares for which
appraisal rights have been perfected shall be returned to Holding Company upon
demand.
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SECTION 3.5 Dissenting Shares. Notwithstanding Section 3.3, Omnipoint
Common Stock or VoiceStream Common Stock outstanding immediately prior to the
Effective Time and held by a holder who has not voted in favor of the
Transactions and has demanded appraisal for such shares in accordance with
Delaware Law (in the case of Omnipoint) or Washington Law (in the case of
VoiceStream) ("Dissenting Shares") shall not be converted into a right to
receive shares of Holding Company Common Stock (in the case of VoiceStream
Common Stock) or the Merger Consideration (in the case of Omnipoint Common
Stock) unless such holder fails to perfect, withdraws or otherwise loses its
right to appraisal. If, after the Effective Time, such holder fails to perfect,
withdraws or loses its right to appraisal, such shares shall be treated as if
they had been converted as of the Effective Time into a right to receive (i) in
the case of Omnipoint, the Standard Election Consideration and (ii) in the case
of VoiceStream, Holding Company Common Stock. Omnipoint shall give VoiceStream
prompt notice of any demands received by Omnipoint for appraisal of shares, and
VoiceStream shall have the right to participate in all negotiations and
proceedings with respect to such demands. Except with the prior written consent
of VoiceStream, Omnipoint shall not make any payment with respect to, or settle
or offer to settle, any such demands.
SECTION 3.6 Options, Warrants and Preferred Stock. (a) At the Effective
Time, each option or warrant granted by Omnipoint to purchase shares of
Omnipoint Common Stock which is outstanding and unexercised immediately prior to
the Effective Time shall be assumed by Holding Company and converted into an
option ("New Omnipoint Options") or warrant ("New Omnipoint Warrants" and,
together with New Omnipoint Options, "New Omnipoint Convertible Securities") to
purchase shares of Holding Company Common Stock in such amount and at such
exercise price as provided below and otherwise having the same terms and
conditions as are in effect immediately prior to the Effective Time (except to
the extent that such terms, conditions and restrictions may be altered in
accordance with their terms as a result of the Transactions):
(i) the number of shares of Holding Company Common Stock to be
subject to each New Omnipoint Convertible Security shall be equal to the
product of (x) the number of shares of Omnipoint Common Stock subject to
the original option or warrant and (y) the sum of (1) $8.00 divided by
the Closing Price on the last day in which shares are traded on NASDAQ
immediately preceding the Closing Date and (2) .825;
(ii) the exercise price per share of Holding Company Common
Stock under each New Omnipoint Convertible Security shall be equal to
(x) the exercise price per share of Omnipoint Common Stock under the
original option or warrant divided by (y) the sum of (1) $8.00 divided
by the Closing Price on the last day in which shares are traded on
NASDAQ immediately preceding the Closing Date and (2) .825; and
(iii) upon each exercise of New Omnipoint Convertible Securities
by a holder thereof, the aggregate number of shares of Holding Company
Common Stock subject to a New Option shall be rounded down, if
necessary, to the nearest whole share and the aggregate exercise price
shall be rounded up, if necessary, to the nearest cent.
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The adjustments provided herein with respect to any options which are "incentive
stock options" (as defined in Section 422 of the Code) shall be effected in a
manner consistent with Section 424(a) of the Code.
(a) At the Effective Time, each option or warrant granted by
VoiceStream to purchase shares of VoiceStream Common Stock which is outstanding
and unexercised immediately prior to the Effective Time shall be assumed by
Holding Company and converted into an option ("New VoiceStream Options") or
warrant ("New VoiceStream Warrants" and, together with New VoiceStream Options,
"New VoiceStream Convertible Securities") as follows: (i) the number of shares
of Holding Company Common Stock to be subject to the New VoiceStream Convertible
Securities shall be equal to the the number of shares of VoiceStream Common
Stock subject to the original option or warrant and (ii) the exercise price per
share of VoiceStream Common Stock under the New VoiceStream Convertible
Securities shall be equal to the exercise price per share of VoiceStream Common
Stock under the original option or warrant. The adjustments provided herein with
respect to any options which are "incentive stock options" (as defined in
Section 422 of the Code) shall be effected in a manner consistent with Section
424(a) of the Code.
(b) The parties shall take such actions as are necessary for the
assumption of the Omnipoint and VoiceStream options and warrants pursuant to
this Section 3.6 and any obligations to issue Omnipoint Common Stock or
VoiceStream Common Stock under the existing terms of any other plans, agreements
or arrangements of Omnipoint or VoiceStream covering any current or former
employee or director of any member of the Omnipoint Group or any member of the
VoiceStream Group including the reservation, issuance and listing of Holding
Company Common Stock as is necessary to effectuate the transactions contemplated
by this Section 3.6. Similarly, the parties shall take all actions required to
be taken by it to effectuate such assumption. The parties shall cause Holding
Company to prepare and file with the SEC a registration statement on Form S-8
(or any other appropriate form) or a post-effective amendment to a registration
statement previously filed under the 1933 Act, with respect to the shares of
Holding Company Common Stock subject to New Omnipoint Options and New
VoiceStream Options and, where applicable, shall use its reasonable best efforts
to have such registration statement declared effective as soon as practicable
following the Effective Time and to maintain the effectiveness of such
registration statement covering such New Omnipoint Options and New VoiceStream
Options (and to maintain the current status of the prospectus contained therein)
for so long as such New Omnipoint Options and New VoiceStream Options remain
outstanding. With respect to those individuals, if any, who, subsequent to the
Effective Time, will be subject to the reporting requirements under Section
16(a) of the 1934 Act, where applicable, the parties shall cause Holding Company
to use all reasonable efforts to administer any New Omnipoint Options and New
VoiceStream Options issued pursuant to this Section 3.6 in a manner that
complies with Rule 16b-3 promulgated under the 1934 Act to the extent that the
Omnipoint or VoiceStream stock options and warrants in respect of which such New
Omnipoint
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Options and New VoiceStream Options have been issued and complied with such rule
prior to the Transactions.
(c) Omnipoint Preferred Stock.
From and after the Effective Time, each share of Omnipoint
Preferred Stock, which shall be outstanding as of the Effective Time, shall
remain outstanding and, subject to the terms of the Certificate of Designation
of the Omnipoint Preferred Stock, dated May 1, 1998, shall have the same
privileges, rights and preferences as the Omnipoint Preferred Stock immediately
prior to the Effective Time and, for purposes of Section 4.5(b) of the
Certificate of Designation thereof, all holders of Omnipoint Common Stock will
be deemed to have received pursuant to the Omnipoint Merger the Standard
Election Consideration.
(d) Omnipoint Non-Voting Convertible Preferred Stock.
From and after the Effective Time, each share of the Omnipoint
Non-Voting Convertible Preferred Stock (or shares of Common Stock into which
they were converted) which shall be outstanding as of the Effective Time, shall
remain outstanding and, subject to the terms of the Certificate of Designation
of the Omnipoint Non-Voting Convertible Preferred Stock, dated June 23, 1999,
shall have the same privileges, rights and preferences as the Omnipoint
Non-Voting Convertible Preferred Stock.
SECTION 3.7 Fractional Shares. No fractional shares of Holding Company
Common Stock shall be issued in the Mergers. All fractional shares of Holding
Company Common Stock that a holder of shares of Omnipoint Common Stock would
otherwise be entitled to receive as a result of the Mergers shall be aggregated
and if a fractional share results from such aggregation, such holder shall be
entitled to receive, in lieu thereof, an amount in cash without interest
determined by multiplying the Closing Date Market Price by the fraction of a
share of Holding Company Common Stock to which such holder would otherwise have
been entitled.
SECTION 3.8 Withholding Rights. Holding Company shall be entitled to
deduct and withhold from the consideration otherwise payable to any Person
pursuant to this Article 3 such amounts as it is required to deduct and withhold
with respect to the making of such payment under any provision of federal,
state, local or foreign tax law. If Holding Company so withholds amounts, such
amounts shall be treated for all purposes of this Agreement as having been paid
to the Omnipoint Holder, as the case may be, in respect of which Holding Company
made such deduction and withholding.
SECTION 3.9 Lost Certificates. If any Certificate is lost, stolen or
destroyed, upon the making of an affidavit of that fact by the Person claiming
such Certificate to be lost, stolen or destroyed and executing an indemnity
reasonably satisfactory to VoiceStream (and, if required by VoiceStream in the
case of a Certificate representing more than 1,000 shares, the posting by such
Person of a bond, in such reasonable amount as VoiceStream may direct, as
indemnity)
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indemnifying VoiceStream against any claim that may be made against VoiceStream
with respect to the Certificate, the Exchange Agent will issue, in exchange for
such lost, stolen or destroyed Certificate, (i) the Merger Consideration to be
paid in respect of the shares represented by such Certificate. In addition, such
Person will be entitled to receive any amounts payable pursuant to Section
3.4(f).
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF OMNIPOINT
Except as set forth in the Omnipoint Disclosure Schedule or as
disclosed in the Omnipoint SEC Documents filed prior to the date hereof,
Omnipoint represents and warrants to VoiceStream as follows:
SECTION 4.1 Corporate Existence and Power. Omnipoint is a corporation
duly incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation and has all corporate powers and authority
required to carry on its business as now conducted and to own, operate and lease
its property. Omnipoint is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction where such
qualification is necessary, except for those jurisdictions where failure to be
so qualified, individually or in the aggregate, has not had and would not be
reasonably expected to have a Omnipoint Material Adverse Effect. Omnipoint has
heretofore delivered or made available to VoiceStream true and complete copies
of the certificate of incorporation and bylaws of Omnipoint as currently in
effect.
SECTION 4.2 Corporate Authorization.
(a) The execution, delivery and performance by Omnipoint of this
Agreement and the consummation by Omnipoint of the Transactions are within
Omnipoint's corporate powers and, except for the required approval of
Omnipoint's stockholders of this Agreement and the Transactions, have been duly
authorized by all necessary corporate action on the part of Omnipoint. This
Agreement has been duly and validly executed and delivered by Omnipoint and,
assuming the due and valid authorization, execution and delivery of this
Agreement by VoiceStream and receipt of all required approvals by Omnipoint's
stockholders in connection with the consummation of the Transactions,
constitutes a valid and binding agreement of Omnipoint, enforceable against it
in accordance with its terms except as may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting creditors' rights
generally and by equitable principles of general applicability.
(b) At a meeting duly called and held, Omnipoint's Board of
Directors has: (i) determined that this Agreement and the Transactions are
advisable and fair to and in the best interests of Omnipoint's stockholders;
(ii) approved and adopted this Agreement and the Transactions; and (iii)
resolved (subject to Section 8.8(b)) to recommend approval and adoption
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of this Agreement by its stockholders. No other corporate proceedings on the
part of Omnipoint are necessary to authorize or approve this Agreement or to
consummate the Transactions (other than, with respect to the Transactions, the
approval and adoption of the Transactions and this Agreement by holders of the
shares of Omnipoint Common Stock to the extent required by Omnipoint's
certificate of incorporation and by applicable Delaware Law).
SECTION 4.3 Governmental Authorization.
(a) The execution, delivery and performance by Omnipoint of this
Agreement and the consummation by Omnipoint of the Transactions require no
action by or in respect of, or filing with, any Governmental Body, other than:
(i) the filing of a certificate of merger in accordance with Delaware Law; (ii)
compliance with any applicable requirements of the HSR Act; (iii) compliance
with any applicable requirements of the 1934 Act; (iv) compliance with any
applicable requirements of the Communications Act; (v) compliance with FAA
regulations; (vi) compliance with any applicable requirements of state and local
public utility commissions or similar entities; and (vii) any actions or filing,
the absence of which would not in the aggregate prevent or delay consummation of
the Transactions in any material respect, or otherwise prevent Omnipoint from
performing its obligations under this Agreement in any material respect or would
not in the aggregate have a Omnipoint Material Adverse Effect.
(b) Omnipoint and the Omnipoint Subsidiaries have not made any
material misstatements of fact, or omitted to disclose any fact, to any
Government Body or in any report, document or certificate filed therewith, which
misstatements or omissions, individually or in the aggregate, could subject any
material licenses or authorizations to revocation or failure to renew.
SECTION 4.4 FCC Matters.
(a) Each member of the Omnipoint Group and each Omnipoint
Investment holds, and is qualified and eligible to hold, all material licenses,
permits and other authorizations issued or to be issued by the FCC (including
"Winning Bids in Auction 22 Not yet Licenced by FCC," as referred to in the
Omnipoint Disclosure Schedule) to such entity for the operation of their
respective businesses, all of which are set forth in the Omnipoint Disclosure
Schedule (the "Omnipoint FCC Licenses").
(b) The Omnipoint FCC Licenses are valid and in full force and
effect and none of Omnipoint, any of the Omnipoint Subsidiaries or any Omnipoint
Investment is or has been delinquent in payment on or in default under any
installment obligation owed to the United States Treasury in connection with the
Omnipoint FCC Licenses.
(c) All material reports and applications required by the
Communications Act or required to be filed with the FCC by any member of the
Omnipoint Group or any Omnipoint Investment have been filed and are accurate and
complete in all material respects.
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(d) Each member of the Omnipoint Group and each Omnipoint
Investment is, and has been, in compliance in all material respects with, and
the wireless communications systems operated pursuant to the Omnipoint FCC
Licenses have been operated in compliance in all material respects with, the
Communications Act.
(e) There is not pending as of the date hereof any application,
petition, objection, pleading or proceeding with the FCC or any public service
commission or similar body having jurisdiction or authority over the
communications operations of any member of the Omnipoint Group or any Omnipoint
Investment which questions the validity of or contests any Omnipoint FCC License
or which presents a substantial risk that, if accepted or granted, or concluded
adversely, could result in (as applicable) the revocation, cancellation,
suspension, dismissal, denial or any materially adverse modification of any
Omnipoint FCC License or imposition of any substantial fine or forfeiture
against any member of the Omnipoint Group or any Omnipoint Investment except as
set forth on the Omnipoint Disclosure Statement.
(f) No facts are known to any member of the Omnipoint Group
which if known by a Governmental Body of competent jurisdiction would present a
substantial risk that any Omnipoint FCC License could be revoked, canceled,
suspended or materially adversely modified or that any substantial fine or
forfeiture could be imposed against any member of the Omnipoint Group or any
Omnipoint Investment.
SECTION 4.5 Non-contravention. The execution, delivery and performance
by Omnipoint of this Agreement and the consummation by Omnipoint of the
Transactions do not and will not (i) contravene, conflict with, or result in any
violation or breach of any provision of the certificate of incorporation,
bylaws, stockholders agreement or other governing instrument of any member of
the Omnipoint Group or any Omnipoint Investment; (ii) assuming compliance with
the matters referred to in Section 4.3, contravene, conflict with or result in a
violation or breach of any provision of any applicable law, statute, ordinance,
rule, regulation, judgment, injunction, order, or decree; (iii) require any
consent or other action by any Person under, constitute a default (or an event
that, with or without notice or lapse of time or both, would constitute a
default) under, or cause or permit the termination, cancellation, acceleration,
triggering or other change of any right or obligation or the loss of any benefit
to which any member of the Omnipoint Group or any Omnipoint Investment is
entitled under (A) any provision of any agreement or other instrument binding
upon any member of the Omnipoint Group or any Omnipoint Investment or (B) any
license, franchise, permit, certificate, approval or other similar authorization
held by, or affecting, or relating in any way to, the assets or business of, any
member of the Omnipoint Group or any Omnipoint Investment; or (iv) result in the
creation or imposition of any Lien on any asset of any member of the Omnipoint
Group or any Omnipoint Investment, other than such exceptions in the case of
clauses (ii), (iii) and (iv) as would not be, individually or in the aggregate,
reasonably expected (A) to have a Omnipoint Material Adverse Effect, (B)
materially impair or delay the ability of Omnipoint to consummate the
Transactions or (C) to have a VoiceStream Material Adverse Effect.
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SECTION 4.6 Capitalization.
(a) The authorized capital stock of Omnipoint consists of
200,000,000 shares of Omnipoint Common Stock and 10,000,000 shares of Omnipoint
Preferred Stock. As of the close of business on June 18, 1999, there were
outstanding (i) 53,235,393 shares of Omnipoint Common Stock (inclusive of all
shares of restricted stock granted under any compensatory plans or
arrangements), (ii) Omnipoint stock options to purchase an aggregate of
7,663,664 shares of Omnipoint Common Stock ("Omnipoint Options"), (iii) no
phantom shares or stock units issued under any stock option, compensation or
deferred compensation plan or arrangement, (iv) Omnipoint warrants to purchase
an aggregate of 2,446,437 shares of Omnipoint Common Stock ("Omnipoint
Warrants"), (v) 325,000 shares of Omnipoint Preferred Stock and (vi)
$199,294,435 principal amount of Indebtedness, which is redeemable at the option
of Omnipoint by issuing shares of Omnipoint Common Stock at a price equal to 90%
of the fair market value of such Omnipoint Common Stock, in accordance with the
terms of such Indebtedness. All outstanding shares of capital stock of Omnipoint
have been, and all shares that may be issued pursuant to any compensatory plan
or arrangement will be, when issued in accordance with the respective terms
thereof, duly authorized, validly issued, fully paid and nonassessable and not
subject to preemptive rights. The Omnipoint Disclosure Schedule sets forth for
each category of Omnipoint Options and Omnipoint Warrants the vesting schedule,
the exercise price and the number of shares of Omnipoint Common Stock into which
such Omnipoint Options or Omnipoint Warrants are exercisable .
(b) Except as set forth in Section 4.6(a) or on the Omnipoint
Disclosure Schedule, there are no outstanding subscriptions, options, warrants,
rights or convertible or exchangeable securities issued by Omnipoint or any
Omnipoint Subsidiary or other agreements or commitments to which any member of
the Omnipoint Group or any Omnipoint Investment is a party of any character
relating to the issued or unissued capital stock or other securities of
Omnipoint, including any agreement or commitment obligating any member of the
Omnipoint Group or any Omnipoint Investment to issue, deliver or sell, or cause
to be issued, delivered or sold, shares of capital stock or other securities of
Omnipoint, to grant, extend or enter into any subscription, option, warrant,
right or convertible or exchangeable security or other similar agreement or
commitment with respect to Omnipoint or obligating Omnipoint to make any
payments pursuant to any stock based or stock related plan or award. There are
no preemptive rights, rights of first refusal, rights of first offer or any
similar rights granted with respect to the securities or any assets of any
members of the Omnipoint Group.
SECTION 4.7 Subsidiaries; Investments.
(a) Each Omnipoint Subsidiary and each Omnipoint Investment is a
corporation or other legal entity duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization and has all
corporate, partnership or other similar powers required to carry on its business
as now conducted, other than such exceptions as, individually or in the
aggregate, have not had and would not be reasonably expected to have a Omnipoint
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Material Adverse Effect. Each Omnipoint Subsidiary and each Omnipoint Investment
is duly qualified to do business as a foreign corporation or other foreign legal
entity and is in good standing in each jurisdiction where such qualification is
necessary, with such exceptions, individually or in the aggregate, as have not
had and would not be reasonably expected to have a Omnipoint Material Adverse
Effect. The Omnipoint Disclosure Schedule sets forth a list of all Omnipoint
Subsidiaries and all Omnipoint Investments and their respective jurisdictions of
organization and identifies Omnipoint's (direct or indirect) percentage
ownership interest therein.
(b) All of the outstanding capital stock of, or other voting
securities or ownership interests in, each Omnipoint Subsidiary and each
Omnipoint Investment, is owned by Omnipoint or a Omnipoint Subsidiary, directly
or indirectly, free and clear of any Lien and free of any other limitation or
restriction (including any restriction on the right to vote, sell or otherwise
dispose of such capital stock or other voting securities or ownership
interests).
(c) There are no outstanding subscriptions, options, warrants,
rights or convertible or exchangeable securities issued by any member of the
Omnipoint Group or any Omnipoint Investment or other agreements or commitments
of any character relating to the issued or unissued capital stock or other
securities or partnership interests or membership interests of any Omnipoint
Subsidiary or any Omnipoint Investment, including, without limitation, any
agreement or commitment obligating any member of the Omnipoint Group or any
Omnipoint Investment to issue, deliver or sell, or cause to be issued, delivered
or sold, shares of capital stock, other securities, partnership interests or
membership interests of any Omnipoint Subsidiary or any Omnipoint Investment or
obligating any member of the Omnipoint Group or any Omnipoint Investment to
grant, extend or enter into any subscription, option, warrant, right or
convertible or exchangeable security or other similar agreement or commitment
with respect to any Omnipoint Subsidiary or any Omnipoint Investment, or
obligating any Omnipoint Subsidiary or any Omnipoint Investment to make any
payments pursuant to any stock based or stock related plan or award. No member
of the Omnipoint Group is subject to any obligation or requirement to provide
funds for or to make any investment (in the form of a loan, capital contribution
or otherwise) to or in any Person (other than obligations to individuals who are
employees, which obligations (i) are set forth in Section 4.22 of the Omnipoint
Disclosure Schedule or (ii) are for de minimis amounts and are made in the
ordinary course of business consistent with past practices), including, without
limitation, any Omnipoint Investment.
(d) Omnipoint has previously delivered or made available to
VoiceStream true and complete copies of the organizational documents or
comparable governing instruments (including all amendments to each of the
foregoing), of each Omnipoint Subsidiary and each Omnipoint Investment as in
effect on the date hereof.
SECTION 4.8 SEC Filings.
(a) Omnipoint has filed all required reports, schedules, forms,
statements and other documents required to be filed by it with the SEC since
January 1, 1997.
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(b) Omnipoint has delivered or made available to VoiceStream:
(i) the Omnipoint 10-K; (ii) its proxy or information statements relating to
meetings of, or actions taken without a meeting by, the stockholders of
Omnipoint held since December 31, 1998; and (iii) all of its other reports,
statements, schedules, forms, exhibits and registration statements and all other
documents required to be filed with the SEC since December 31, 1998 (the "1999
Omnipoint SEC Documents") (the documents referred to in Sections 4.8(a) and (b),
collectively, the "Omnipoint SEC Documents"). The Omnipoint Disclosure Schedule
sets forth a list of all the 1999 Omnipoint SEC Documents.
(c) As of its filing date, each Omnipoint SEC Document complied
as to form in all material respects with the applicable requirements of the 1933
Act and the 1934 Act, as the case may be.
(d) As of its filing date, each Omnipoint SEC Document filed
pursuant to the 1934 Act did not contain any untrue statement of a material fact
or omit to state any material fact necessary in order to make the statements
made therein, in the light of the circumstances under which they were made, not
misleading.
(e) Each Omnipoint SEC Document that is a registration
statement, as amended or supplemented, if applicable, filed pursuant to the 1933
Act, as of the date such registration statement or amendment became effective,
did not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading.
SECTION 4.9 Financial Statements. The audited consolidated financial
statements and unaudited consolidated interim financial statements of Omnipoint
included in the Omnipoint SEC Documents fairly present, in all material
respects, in conformity with generally accepted accounting principles ("GAAP")
applied on a consistent basis (except as may be indicated in the notes thereto),
the consolidated financial position of Omnipoint and its consolidated
Subsidiaries as of the dates thereof and their consolidated results of
operations and cash flows for the periods then ended (subject to normal year-end
adjustments in the case of any unaudited interim financial statements).
SECTION 4.10 Absence of Certain Changes. Since the Omnipoint Balance
Sheet Date, the business of each member of the Omnipoint Group and each
Omnipoint Investment has been conducted in the ordinary course consistent with
past practices and there has not been any event, occurrence or development
which, individually or in the aggregate, has had or would be reasonably expected
to have a Omnipoint Material Adverse Effect.
SECTION 4.11 No Undisclosed Material Liabilities. There are no
liabilities or obligations of any member of the Omnipoint Group or any Omnipoint
Investment of any kind whatsoever, whether accrued, contingent, absolute,
determined, determinable or otherwise, and
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there is no existing condition, situation or set of circumstances that would be
reasonably expected to result in such a liability or obligation, other than for
Taxes, if any, arising out of, or attributable to the Transactions (including
the CIRI Transaction and the transactions described in Recital A hereof):
(a) liabilities or obligations disclosed and provided for in the
Omnipoint Balance Sheet or in the notes thereto or in Omnipoint SEC Documents
filed prior to the date hereof or in the Omnipoint 10-K; and
(b) liabilities or obligations that, individually or in the
aggregate have not had and would not be reasonably expected to have a Omnipoint
Material Adverse Effect.
SECTION 4.12 Compliance with Laws and Court Orders. Each member of the
Omnipoint Group and each Omnipoint Investment holds all licenses, franchises,
certificates, consents, permits, qualifications and authorizations from all
Governmental Bodies necessary for the lawful conduct of their business, except
where the failure to hold any of the foregoing, individually or in the
aggregate, has not had and would not be reasonably expected to have a Omnipoint
Material Adverse Effect. Each member of the Omnipoint Group and each Omnipoint
Investment is and has been in compliance with, and to the knowledge of
Omnipoint, is not under investigation with respect to and has not been
threatened to be charged with or given notice of any violation of, any such
license, franchise, certificate, consent, permit, qualification or
authorization, applicable law, statute, ordinance, rule, regulation, judgment,
injunction, order or decree, except for failures to comply or violations that,
individually or in the aggregate, have not had and would not be reasonably
expected to have a Omnipoint Material Adverse Effect.
SECTION 4.13 Litigation. There is no action, suit, investigation or
proceeding (or any basis therefor) pending against, or, to the knowledge of
Omnipoint, threatened against or affecting, any member of the Omnipoint Group,
any Omnipoint Investment or any of their respective properties before any court
or arbitrator or before or by any other Governmental Body, that, individually or
in the aggregate, would be reasonably expected to have a Omnipoint Material
Adverse Effect.
SECTION 4.14 Finders' Fees. Except for fees payable to Allen and Lehman
there is no investment banker, broker, finder or other intermediary that has
been retained by or is authorized to act on behalf of Omnipoint or any Omnipoint
Subsidiary who might be entitled to any fee or commission from VoiceStream, any
of the VoiceStream Subsidiaries, Omnipoint or any of the Omnipoint Subsidiaries
in connection with the Transactions. Copies of the engagement agreements with
Allen and Lehman have been provided to VoiceStream; except as set forth on such
engagement agreements, no other fees are payable to Allen and Lehman.
SECTION 4.15 Opinion of Financial Advisor. Omnipoint has received an
opinion of Lehman, financial advisor to Omnipoint, to the effect that, as of
June 23, 1999, from a financial point of view, the Merger Consideration is fair
to the holders of Omnipoint Common Stock.
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SECTION 4.16 Taxes. (a) Except as set forth in the Omnipoint Disclosure
Schedules and except as would not have a Omnipoint Material Adverse Effect, (i)
all Omnipoint Tax Returns required to be filed with any taxing authority by, or
with respect to, Omnipoint and the Omnipoint Subsidiaries have been filed in
accordance with all applicable laws or an appropriate extension of time to file
such Omnipoint Tax Returns has been obtained; (ii) Omnipoint and the Omnipoint
Subsidiaries have timely paid all Taxes shown as due and payable on the
Omnipoint Tax Returns that have been so filed, and, as of the time of filing,
the Omnipoint Tax Returns correctly reflected the facts regarding the income,
business, assets, operations, activities and the status of Omnipoint and the
Omnipoint Subsidiaries (other than Taxes which are being contested in good faith
by appropriate proceeding and for which adequate reserves are reflected on the
Omnipoint Balance Sheet); (iii) Omnipoint and the Omnipoint Subsidiaries have
made provision for all Taxes payable by Omnipoint and the Omnipoint Subsidiaries
for which no Omnipoint Tax Return has yet been filed; (iv) the charges, accruals
and reserves for Taxes with respect to Omnipoint and the Omnipoint Subsidiaries
reflected on the Omnipoint Balance Sheet are adequate under GAAP to cover the
Tax liabilities accruing through the date thereof; (v) there is no action, suit,
proceeding, audit or claim now pending or, to the knowledge of Omnipoint,
proposed against or with respect to Omnipoint or any Omnipoint Subsidiary in
respect of any Tax where an adverse determination is reasonably likely; (vi)
Omnipoint is not, and never has been the subject of a federal income tax
examination; and (vii) there are no Liens or encumbrances for Taxes on any of
the assets of Omnipoint or any Omnipoint Subsidiary except Liens for current
Taxes not yet due. For purposes of this Agreement, "Taxes" shall mean any and
all taxes, charges, fees, levies or other assessments, including, without
limitation, all net income, gross income, gross receipts, excise, stamp, real or
personal property, ad valorem, withholding, social security (or similar),
unemployment, occupation, use, service, service use, license, net worth,
payroll, franchise, severance, transfer, recording, employment, premium,
windfall profits, environmental (including taxes under Section 59A of the Code),
customs duties, capital stock, profits, disability, sales, registration, value
added, alternative or add-on minimum, estimated or other taxes, assessments or
charges imposed by any federal, state, local or foreign governmental body and
any interest, penalties, or additions to tax attributable thereto; provided,
however, that Taxes shall not include Taxes, if any, arising out of or
attributable to the Transactions (including the CIRI Transaction and the
transactions described in Recital A hereof). For purposes of this Agreement,
"Tax Returns" shall mean any return, report, form or similar statement required
to be filed with respect to any Tax (including any attached schedules),
including, without limitation, any information return, claim for refund, amended
return or declaration of estimated Tax.
(b) To the knowledge of Omnipoint, there is no plan or intention
on the part of any Omnipoint shareholder to sell, exchange, transfer or
otherwise dispose of any stock of Holding Company received in the Transactions,
except that such Omnipoint shareholders as are partnerships for U.S. federal
income tax purposes may distribute such Holding Company stock to one or more of
their partners (other than to a partner which would, immediately after such
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distribution, own 5 percent or more of Holding Company's stock, taking into
account such partner's pro rata share of any Holding Company stock held by the
partnership).
SECTION 4.17 Tax Opinions. There are no facts or circumstances relating
to Omnipoint that would, to Omnipoint's knowledge, prevent Piper Marbury from
delivering the opinion referred to in Section 9.3(b) as of the date hereof.
SECTION 4.18 Employee Benefit Plans and Labor Matters.
(a) The Omnipoint Disclosure Schedule contains a true and
complete list, as of the date hereof, of all Omnipoint Employee Plans and all
Omnipoint Benefit Arrangements. Copies of each Omnipoint Employee Plan and each
Omnipoint Benefit Arrangement (and, if applicable, related trust agreements) and
all amendments thereto and written interpretations thereof have been made
available to VoiceStream as of the date hereof or will have been made available
to VoiceStream within thirty days after the date hereof, together with the three
most recent annual reports (Form 5500 including, if applicable, Schedule B
thereto) and the most recent actuarial valuation report prepared in connection
with any Omnipoint Employee Plan.
(b) No "accumulated funding deficiency," as defined in Section
412 of the Code, has been incurred with respect to any Omnipoint Employee Plan
subject to such Section 412, whether or not waived. No "reportable event" within
the meaning of Section 4043 of ERISA for which the reporting requirements have
not been waived, and no event described in Section 4062 or 4063 of ERISA has
occurred in connection with any Omnipoint Employee Plan. Neither Omnipoint nor
to Omnipoint's knowledge any ERISA Affiliate of Omnipoint has (i) engaged in, or
is a successor or parent corporation to an entity that has engaged in, a
transaction described in Sections 4069 or 4212(c) of ERISA or (ii) incurred, or
reasonably expects to incur prior to the Effective Time (A) any liability under
Title IV of ERISA arising in connection with the termination of, or a complete
or partial withdrawal from, any plan covered or previously covered by Title IV
of ERISA or (B) any liability under Section 4971 of the Code that in either case
could become a liability of Omnipoint, any Omnipoint Subsidiary, VoiceStream or
any of their ERISA Affiliates after the Effective Time. If a "complete
withdrawal" by Omnipoint and all of its ERISA Affiliates were to occur as of the
Effective Time with respect to all Multiemployer Plans, neither Omnipoint nor
any Omnipoint Subsidiary would incur any withdrawal liability under Title IV of
ERISA.
(c) As of December 31, 1998, the fair market value of the assets
of each Omnipoint Pension Plan (excluding for these purposes any accrued but
unpaid contributions) exceeded the present value of all benefits accrued under
such Omnipoint Pension Plan calculated pursuant to FAS No. 87, "Employers'
Accounting for Pensions."
(d) Each Omnipoint Employee Plan that is intended to be
qualified under Section 401(a) of the Code is the subject of a favorable
qualification determination letter issued by the IRS and to Omnipoint's
knowledge each such Omnipoint Employee Plan is so qualified.
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(e) There is no contract, plan or arrangement (written or
otherwise) covering any employee or former employee of Omnipoint or any
Omnipoint Subsidiary that, individually or collectively, could give rise to the
payment of any amount that would not be deductible pursuant to the terms of
Sections 162(m) or 280G of the Code.
(f) As of December 31, 1998, there were no amounts accumulated
for post-retirement benefit obligations under Omnipoint Employee Plans and
Omnipoint Benefit Arrangements as determined in accordance with Statement of
Financial Accounting Standards No. 106.
(g) Each Omnipoint Employee Plan and each Omnipoint Benefit
Arrangement has been maintained in material compliance with its terms and with
the requirements prescribed by any and all applicable statutes, orders, rules
and regulations (including any special provisions relating to registration or
qualification where such Plan was intended so to be so registered or qualified)
and has been maintained in good standing with applicable regulatory authorities.
(h) No employee or former employee of Omnipoint or any Omnipoint
Subsidiary will become entitled to any bonus, retirement, severance, job
security or similar benefit or enhancement of such benefit (including
acceleration of vesting or exercise of an incentive award) as a result of the
Transactions (either alone or together with any other event).
(i) Neither Omnipoint nor any of the Omnipoint Subsidiaries is,
or has been, a party to any collective bargaining agreement or union contract.
Neither Omnipoint nor any of the Omnipoint Subsidiaries is involved in or
threatened with any labor dispute, work stoppage, labor strike, slowdown or
grievance. To the knowledge of Omnipoint, there is no organizing effort or
representation question at issue with respect to any employee of Omnipoint or
any of the Omnipoint Subsidiaries.
SECTION 4.19 Environmental Matters.
(a) Except as have not had and would not be reasonably expected
to have, individually or in the aggregate, a Omnipoint Material Adverse Effect:
(A) no notice, notification, demand, request for information,
citation, summons or order has been received, no complaint has been
filed, no penalty has been assessed, and no investigation, action,
claim, suit, proceeding or review (or any basis therefor) is pending or,
to the knowledge of Omnipoint, is threatened by any Governmental Body or
other Person relating to or arising out of any Environmental Law;
(B) each member of the Omnipoint Group and each Omnipoint
Investment is and has been in compliance with all Environmental Laws and
all Environmental Permits; and
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(C) there are no liabilities of or relating to any member of the
Omnipoint Group or any Omnipoint Investment of any kind whatsoever,
whether accrued, contingent, absolute, determined, determinable or
otherwise arising under or relating to any Environmental Law and there
are no facts, conditions, situations or set of circumstances that could
reasonably be expected to result in or be the basis for any such
liability.
(b) There have been no environmental assessments,
investigations, studies, audits, tests, reviews or other analyses conducted
(collectively, "Environmental Reports") of which Omnipoint has knowledge in
relation to the current or prior business of any member of the Omnipoint Group
or any Omnipoint Investment or any property or facility now or previously owned
or leased by any member of the Omnipoint Group or any Omnipoint Investment that
reveal matters that, individually or in the aggregate, have had or would
reasonably be expected to have a Omnipoint Material Adverse Effect.
(c) For purposes of this Section 4.19, the terms Omnipoint and
Omnipoint Subsidiary shall include any entity that is, in whole or in part, a
predecessor of any member of the Omnipoint Group or any Omnipoint Investment.
SECTION 4.20 Intellectual Property. With such exceptions as,
individually or in the aggregate, have not had and would not be reasonably
expected to have a Omnipoint Material Adverse Effect, each member of the
Omnipoint Group and each Omnipoint Investment own or have a valid license to use
each trademark, service mark, trade name, invention, patent, trade secret,
copyright, know-how (including any registrations or applications for
registration of any of the foregoing) or any other similar type of proprietary
intellectual property right (collectively, the "Omnipoint Intellectual
Property") necessary to carry on its business substantially as currently
conducted. No member of the Omnipoint Group or any Omnipoint Investment has
received any notice of infringement of or conflict with, and to Omnipoint's
knowledge, there are no infringements of or conflicts with, the rights of any
Person with respect to the use of any Omnipoint Intellectual Property that, in
either such case, individually or in the aggregate, have had or would be
reasonably expected to have, a Omnipoint Material Adverse Effect.
SECTION 4.21 Contracts. No member of the Omnipoint Group or any
Omnipoint Investment is a party to or bound by (i) any "material contract" (as
such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) or any
agreement, contract or commitment that would be such a "material contract" but
for the exception for contracts entered into in the ordinary course of business,
(ii) any non-competition agreement or any other agreement or obligation which
materially limits or will materially limit any member of the Omnipoint Group or
any Investment Interest from engaging in the business of providing wireless
communications services or from developing wireless communications technology
anywhere in the world or (iii) any management agreement, technical services
agreement or other agreement whereby any member of the Omnipoint Group or any
Investment Interest is provided or is required to provide
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management or technical services to any other Person . With such exceptions as,
individually or in the aggregate, have not had, and would not be reasonably
expected to have, a Omnipoint Material Adverse Effect, (x) each of the
contracts, agreements and commitments of the Omnipoint Group and the Omnipoint
Investments is valid and in full force and effect and (y) neither any member of
the Omnipoint Group nor any Omnipoint Investment has violated any provision of,
or committed or failed to perform any act which, with or without notice, lapse
of time, or both, would constitute a default under the provisions of any such
contract, agreement or commitment. To the knowledge of Omnipoint, no
counterparty to any such contract, agreement or commitment has violated any
provision of, or committed or failed to perform any act which, with or without
notice, lapse of time, or both would constitute a default or other breach under
the provisions of, such contract, agreement or commitment, except for defaults
or breaches which, individually or in the aggregate, have not had, or would not
reasonably be expected to have, a Omnipoint Material Adverse Effect. Neither any
member of the Omnipoint Group nor any Omnipoint Investment is a party to, or
otherwise a guarantor of or liable with respect to, any interest rate, currency
or other swap or derivative transaction, other than any such transactions which
are not material to the business of the Omnipoint Group. Omnipoint has provided
or made available to VoiceStream a copy of each agreement described in item (i),
(ii) or (iii) above.
SECTION 4.22 Significant Omnipoint Employees. The Omnipoint Disclosure
Schedule contains a list setting forth the name and current annual salary and
other compensation payable to each Significant Omnipoint Employee, and the
profit sharing, bonus or other form of additional compensation paid or payable
by Omnipoint to or for the benefit of each such person for the current fiscal
year. Except as set forth on the Omnipoint Disclosure Schedule or under the
employment, consulting or other agreements listed thereon, there are no oral or
written contracts, agreements or arrangements obligating Omnipoint to increase
the compensation or benefits presently being paid or hereafter payable to any
Significant Omnipoint Employees. The Omnipoint Disclosure Schedule annexed
hereto sets forth summaries of all oral employment or consulting or similar
arrangements regarding any Significant Omnipoint Employee which are not
terminable without liability on thirty (30) days' or less prior notice and lists
all written employment and consulting agreements with respect to any Significant
Omnipoint Employee, true and complete copies of which have been provided to
VoiceStream. Except for severance obligations to Significant Omnipoint Employees
set forth on the Omnipoint Disclosure Schedule, there is not due or owing and
there will not be due and owing at the Effective Time to any Significant
Omnipoint Employees, any sick pay, severance pay (whether arising out of the
termination of an Significant Omnipoint Employee prior to, on, or subsequent to
the Effective Time), compensable time or pay, including salary, commission and
bonuses, personal time or pay or vacation time or vacation pay attributable to
service rendered on or prior to the Effective Time. Except as disclosed in the
Omnipoint Disclosure Schedule and other than claims made in the ordinary course
of business consistent with past practice in an aggregate amount not to exceed
$100,000, neither Omnipoint nor the Omnipoint Subsidiaries have, any liability
arising out of claims made or suits brought (including workers' compensation
claims and claims or suits for contribution to, or indemnification of, third
parties, occupational health and safety, environmental, consumer protection or
equal employment matters) for injury, sickness, disease,
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discrimination, death or termination of employment of any Significant Omnipoint
Employee, or other employment matter to the extent attributable to an event
occurring or a state of facts existing on or prior to the Effective Time.
SECTION 4.23 Employment Matters. Omnipoint and each Omnipoint Subsidiary
(A) is in compliance with all applicable Federal and state laws, rules and
regulations respecting employment, employment practices, terms and conditions of
employment and wages and hours, in each case, with respect to Omnipoint
Employees, except where the failure to be in compliance would not, singly or in
the aggregate, have a material adverse effect on Omnipoint, any Omnipoint
Subsidiary or their financial condition or business; (B) has withheld all
amounts required by law or by agreement to be withheld from the wages, salaries
and other payments to Omnipoint Employees; (C) is not liable for any arrears of
wages or any taxes or any penalty for failure to comply with any of the
foregoing, except as would reasonably be expected to not have a Omnipoint
Material Adverse Effect; and (D) (other than routine payments to be made in the
normal course of business and consistent with past practice) is not liable for
any payment to any trust or other fund or to any governmental or administrative
authority, with respect to unemployment compensation benefits, Social Security
or other benefits for Omnipoint Employees.
SECTION 4.24 Labor. No work stoppage or labor strike with respect to
Omnipoint Employees is pending or, to the best knowledge of Omnipoint, is
threatened. Except as set forth on the Omnipoint Disclosure Schedules, there is
no involvement nor, to the best knowledge of Omnipoint, is there threatened, any
labor dispute, grievance or litigation relating to labor, safety or
discrimination matters involving any Omnipoint Employee including charges of
unfair labor practices or discrimination complaints, which, if adversely
determined, would reasonably be expected to have, individually or in the
aggregate, a material adverse effect on its financial condition or business.
There has been no engagement in any unfair labor practices within the meaning of
the National Labor Relations Act which would reasonably be expected to have,
individually or in the aggregate, a Omnipoint Material Adverse Effect.
SECTION 4.25 Vote Required. The only vote of the holders of any class or
series of capital stock of Omnipoint necessary to approve this Agreement and the
Transactions is the affirmative vote of the holders of a majority of the
outstanding shares of Omnipoint Common Stock (the "Omnipoint Stockholders'
Approval").
SECTION 4.26 Antitakeover Statutes and Charter Provisions. Omnipoint has
taken all action necessary to exempt the Omnipoint Merger and this Agreement and
the Transactions from the restrictions of Section 203 of Delaware Law, and,
accordingly, neither such Section nor any other antitakeover or similar statute
or regulation applies or purports to apply to any such transactions. No other
"control share acquisition," "fair price," "moratorium" or other antitakeover
laws or regulations enacted under U.S. state or federal laws apply to this
Agreement or any of the Transactions.
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SECTION 4.27 Insurance. The Omnipoint Disclosure Schedules set forth a
list and brief description of all policies of fire, liability and other forms of
insurance and material fidelity bonds held by the Omnipoint Group. The Omnipoint
Group's assets, business, equipment, property and operations are adequately
insured against loss or damage and all other hazards or risks of the character
usually insured against by companies in the same or similar business and such
insurance shall be continued in full force and effect through 11:59 p.m. on the
Effective Time. Each such policy and fidelity bond is in full force and effect,
all premiums due and payable under such policies and fidelity bonds have been
and on the Effective Time will be paid in full, and there are no disputed claims
arising under such policies or fidelity bonds.
SECTION 4.28 Bank Accounts. The Disclosure Schedule sets forth a
complete list of all bank accounts, savings deposits, money-market accounts,
certificates of deposit, safety deposit boxes, and similar investment accounts
with banks or other financial institutions maintained by or on behalf of the
Omnipoint or any Omnipoint Subsidiary showing the depository bank or institution
address, appropriate bank contact personnel, account number and names of
signatories.
SECTION 4.29 Transactions with Affiliates. No Affiliate of the Omnipoint
Group or Omnipoint Investment nor any stockholder, officer, director, partner,
member, consultant or employee of any thereof, is at the date hereof a party to
any transaction with any member of the Omnipoint Group or Omnipoint Investment,
including any contract or arrangement providing for the furnishing of services
to or by, providing for rental of real or personal property (including
intellectual property) to or from, or otherwise requiring payments to or from
any member of the Omnipoint Group or any Omnipoint Investment, or any Affiliate
thereof.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF VOICESTREAM AND HOLDING
COMPANY
Except as set forth in the VoiceStream Disclosure Schedule or as
disclosed in the VoiceStream SEC Documents filed prior to the date hereof, each
of VoiceStream and Holding Company, represent and warrant to Omnipoint as
follows:
SECTION 5.1 Corporate Existence and Power. Each of VoiceStream and
Holding Company is a corporation duly incorporated, validly existing and in good
standing under the laws of its jurisdiction of incorporation and has all
corporate powers and authority required to carry on its business as now
conducted and to own, operate and lease its property. Each of VoiceStream and
Holding Company is duly qualified to do business as a foreign corporation and is
in good standing in each jurisdiction where such qualification is necessary,
except for those jurisdictions where failure to be so qualified, individually or
in the aggregate, has not had and would not be reasonably expected to have a
VoiceStream Material Adverse Effect. VoiceStream has
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heretofore delivered or made available to Omnipoint true and complete copies of
the certificate of incorporation and bylaws of VoiceStream as currently in
effect.
SECTION 5.2 Corporate Authorization.
(a) The execution, delivery and performance by each of
VoiceStream and Holding Company of this Agreement and the consummation by
VoiceStream and Holding Company of the Transactions are within VoiceStream's and
Holding Company's respective corporate powers and, except for the required
approval of VoiceStream's stockholders of this Agreement and the Transactions,
have been duly authorized by all necessary corporate action on the part of
VoiceStream and Holding Company. This Agreement has been duly and validly
executed and delivered by VoiceStream and Holding Company and, assuming the due
and valid authorization, execution and delivery of this Agreement by Omnipoint
and receipt of all required approvals by VoiceStream's stockholders in
connection with the consummation of the Transactions, constitutes a valid and
binding agreement of VoiceStream and Holding Company, enforceable against it in
accordance with its terms except as may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting creditors' rights
generally and by equitable principles of general applicability.
(b) At a meeting duly called and held, VoiceStream's Board of
Directors has: (i) determined that this Agreement and the Transactions are
advisable and fair to and in the best interests of VoiceStream's stockholders;
(ii) approved and adopted this Agreement and the Transactions; and (iii)
resolved (subject to Section 8.8(b)) to recommend approval and adoption of this
Agreement by its stockholders. No other corporate proceedings on the part of
VoiceStream are necessary to authorize or approve this Agreement or to
consummate the Transactions (other than, with respect to the Transactions, the
approval and adoption of the Transactions and this Agreement by holders of
shares of VoiceStream to the extent required by VoiceStream's certificate of
incorporation and by applicable Delaware Law and Washington Law.
SECTION 5.3 Governmental Authorization.
(a) The execution, delivery and performance by VoiceStream of
this Agreement and the consummation by VoiceStream of the Transactions require
no action by or in respect of, or filing with, any Governmental Body, other
than: (i) the filing of a certificate of merger in accordance with Delaware Law;
(ii) compliance with any applicable requirements of the HSR Act; (iii)
compliance with any applicable requirements of the 1934 Act; (iv) compliance
with any applicable requirements of the Communications Act; (v) compliance with
FAA regulations; (vi) compliance with any applicable requirements of state and
local public utility commissions or similar entities; and (vii) any actions or
filing, the absence of which would not in the aggregate prevent or delay
consummation of the Transactions in any material respect, or otherwise prevent
VoiceStream from performing its obligations under this Agreement in any material
respect or would not in the aggregate have a VoiceStream Material Adverse
Effect.
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(b) VoiceStream and the VoiceStream Subsidiaries have not made
any material misstatements of fact, or omitted to disclose any fact, to any
Governmental Body, which misstatements or omissions, individually or in the
aggregate, could subject any material licenses or authorizations to revocation
or failure to renew.
SECTION 5.4 FCC Matters.
(a) Each member of the VoiceStream Group and each VoiceStream
Investment holds, and is qualified and eligible to hold, all material licenses,
permits and other authorizations issued by the FCC to such entity for the
operation of their respective businesses, all of which are set forth in the
VoiceStream Disclosure Schedule (the "VoiceStream FCC Licenses").
(b) The VoiceStream FCC Licenses are valid and in full force and
effect and none of VoiceStream, any of the VoiceStream Subsidiaries or any
VoiceStream Investment is or has been delinquent in payment on or in default
under any installment obligation owed to the United States Treasury in
connection with the VoiceStream FCC Licenses.
(c) All material reports and applications required by the
Communications Act or required to be filed with the FCC by any member of the
VoiceStream Group or any VoiceStream Investment have been filed and are accurate
and complete in all material respects.
(d) Each member of the VoiceStream Group and each VoiceStream
Investment is, and has been, in compliance in all material respects with, and
the wireless communication systems operated pursuant to the VoiceStream FCC
Licenses have been operated in compliance in all material respects with, the
Communications Act.
(e) There is not pending as of the date hereof any application,
petition, objection, pleading or proceeding with the FCC or any public service
commission or similar body having jurisdiction or authority over the
communications operations of any member of the VoiceStream Group or any
VoiceStream Investment which questions the validity of or contests any
VoiceStream FCC License or which presents a substantial risk that, if accepted
or granted, or concluded adversely, could result in the revocation,
cancellation, suspension or any materially adverse modification of any
VoiceStream FCC License or imposition of any substantial fine or forfeiture
against any member of the VoiceStream Group or any VoiceStream Investment except
as set forth in the VoiceStream Disclosure Statement.
(f) No facts are known to any Member of the VoiceStream Group
which if known by a Governmental Body of competent jurisdiction would present a
substantial risk that any VoiceStream FCC License could be revoked, canceled,
suspended or materially adversely modified or that any substantial fine or
forfeiture could be imposed against any member of the VoiceStream Group or any
VoiceStream Investment.
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SECTION 5.5 Non-contravention. The execution, delivery and performance
by VoiceStream of this Agreement and the consummation by VoiceStream of the
Transactions do not and will not (i) contravene, conflict with, or result in any
violation or breach of any provision of the certificate of incorporation,
bylaws, stockholders agreement or other governing instrument of any member of
the VoiceStream Group or any VoiceStream Investment; (ii) assuming compliance
with the matters referred to in Section 5.3, contravene, conflict with or result
in a violation or breach of any provision of any applicable law, statute,
ordinance, rule, regulation, judgment, injunction, order, or decree; (iii)
require any consent or other action by any Person under, constitute a default
(or an event that, with or without notice or lapse of time or both, would
constitute a default) under, or cause or permit the termination, cancellation,
acceleration, triggering or other change of any right or obligation or the loss
of any benefit to which any member of the VoiceStream Group or any VoiceStream
Investment is entitled under (A) any provision of any agreement or other
instrument binding upon any member of the VoiceStream Group or any VoiceStream
Investment or (B) any license, franchise, permit, certificate, approval or other
similar authorization held by, or affecting, or relating in any way to, the
assets or business of, any member of the VoiceStream Group or any VoiceStream
Investment; or (iv) result in the creation or imposition of any Lien on any
asset of any member of the VoiceStream Group or any VoiceStream Investment,
other than such exceptions in the case of clauses (ii), (iii) and (iv) as would
not be, individually or in the aggregate, reasonably expected to have a
VoiceStream Material Adverse Effect or materially impair or delay the ability of
VoiceStream to consummate the Transactions.
SECTION 5.6 Capitalization.
(a) The authorized capital stock of VoiceStream consists of
300,000,000 shares of VoiceStream Common Stock and 50,000,000 shares of
Preferred Stock. As of the close of business on May 31, 1999, there were
outstanding (i) 95,549,998 shares of VoiceStream Common Stock (inclusive of all
shares of restricted stock granted under any compensatory plans or
arrangements), (ii) VoiceStream stock options to purchase an aggregate of
4,067,090 shares of VoiceStream Common Stock (of which options to purchase an
aggregate of 2,417,170 shares of VoiceStream Common Stock were exercisable),
(iii) no phantom shares or stock units issued under any stock option,
compensation or deferred compensation plan or arrangement with respect to
VoiceStream Common Stock, (iv) no VoiceStream warrants to VoiceStream Common
Stock and (v) no shares of VoiceStream Preferred Stock. All outstanding shares
of capital stock of VoiceStream have been, and all shares that may be issued
pursuant to any compensatory plan or arrangement will be, when issued in
accordance with the respective terms thereof, duly authorized, validly issued,
fully paid and nonassessable and not subject to preemptive rights.
(b) Except as set forth in Section 5.6(a) or on the VoiceStream
Disclosure Schedules, there are no outstanding subscriptions, options, warrants,
rights or convertible or exchangeable securities issued by VoiceStream or any
VoiceStream Subsidiary or other agreements or commitments to which any member of
the VoiceStream Group or any
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VoiceStream Investment is a party of any character relating to the issued or
unissued capital stock or other securities of VoiceStream or any VoiceStream
Subsidiary, including any agreement or commitment obligating any member of the
VoiceStream Group or any VoiceStream Investment to issue, deliver or sell, or
cause to be issued, delivered or sold, shares of capital stock or other
securities of VoiceStream or any VoiceStream Subsidiary, to grant, extend or
enter into any subscription, option, warrant, right or convertible or
exchangeable security or other similar agreement or commitment with respect to
VoiceStream or any VoiceStream Subsidiary to make any payments pursuant to any
stock based or stock related plan or award. There are no preemptive rights,
rights of first refusal, rights of first offer or any similar rights granted
with respect to the securities or any assets of any member of the VoiceStream
Group.
SECTION 5.7 Subsidiaries; Investments.
(a) Each VoiceStream Subsidiary and each VoiceStream Investment
is a corporation or other legal entity duly organized, validly existing and in
good standing under the laws of its jurisdiction of organization and has all
corporate, partnership or other similar powers required to carry on its business
as now conducted, other than such exceptions as, individually or in the
aggregate, have not had and would not be reasonably expected to have a
VoiceStream Material Adverse Effect. Each VoiceStream Subsidiary and each
VoiceStream Investment is duly qualified to do business as a foreign corporation
or other foreign legal entity and is in good standing in each jurisdiction where
such qualification is necessary, with such exceptions, individually or in the
aggregate, as have not had and would not be reasonably expected to have a
VoiceStream Material Adverse Effect. The VoiceStream Disclosure Schedule sets
forth a list of all VoiceStream Subsidiaries and all VoiceStream Investments and
their respective jurisdictions of organization and identifies VoiceStream's
(direct or indirect) percentage ownership interest therein.
(b) All of the outstanding capital stock of, or other voting
securities or ownership interests in, each VoiceStream Subsidiary and each
VoiceStream Investment, is owned by VoiceStream or a VoiceStream Subsidiary,
directly or indirectly, free and clear of any Lien and free of any other
limitation or restriction (including any restriction on the right to vote, sell
or otherwise dispose of such capital stock or other voting securities or
ownership interests).
(c) There are no outstanding subscriptions, options, warrants,
rights or convertible or exchangeable securities issued by any member of the
VoiceStream Group or a VoiceStream Investment or other agreements or commitments
of any character relating to the issued or unissued capital stock or other
securities or partnership interests or membership interests of any VoiceStream
Subsidiary or any VoiceStream Investment, including any agreement or commitment
obligating any member of the
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VoiceStream Group or any VoiceStream Investment to issue, deliver or sell, or
cause to be issued, delivered or sold, shares of capital stock, other
securities, partnership interests or membership interests of any VoiceStream
Subsidiary or any VoiceStream Investment or obligating any member of the
VoiceStream Group or any VoiceStream Investment to grant, extend or enter into
any subscription, option, warrant, right or convertible or exchangeable security
or other similar agreement or commitment with respect to any VoiceStream
Subsidiary or any VoiceStream Investment, or obligating any member of the
VoiceStream Group or any VoiceStream Investment to make any payments pursuant to
any stock based or stock related plan or award. No member of the VoiceStream
Group is subject to any obligation or requirement to provide funds for or to
make any investment (in the form of a loan, capital contribution or otherwise)
to or in any Person, (other than obligations to individuals who are employees,
which obligations (i) are set forth in Section 5.22 of the VoiceStream
Disclosure Schedule or (ii) are for de minimis amounts and are made in the
ordinary course of business consistent with past practices), including, without
limitation, any VoiceStream Investment.
(d) VoiceStream has previously delivered or made available to
Omnipoint true and complete copies of the organizational documents or comparable
governing instruments (including all amendments to each of the foregoing), of
each VoiceStream Subsidiary and each VoiceStream Investment as in effect on the
date hereof.
SECTION 5.8 SEC Filings.
(a) VoiceStream has filed all required reports, schedules,
forms, statements and other documents required to be filed by it with the SEC
since January 1, 1997.
(b) VoiceStream has delivered or made available to Omnipoint:
(i) the VoiceStream 10-K; (ii) its proxy or information statements relating to
meetings of, or actions taken without a meeting by, the stockholders of
VoiceStream held since December 31, 1998; and (iii) all of its other reports,
statements, schedules, forms, exhibits and registration statements and all other
documents required to be filed with the SEC since December 31, 1998 (the "1999
VoiceStream SEC Documents") (the documents referred to in Sections 5.8(a) and
(b), collectively, the "VoiceStream SEC Documents"). The VoiceStream Disclosure
Schedule sets forth a list of all the 1999 VoiceStream SEC Documents.
(c) As of its filing date, each VoiceStream SEC Document
complied as to form in all material respects with the applicable requirements of
the 1933 Act and the 1934 Act, as the case may be.
(d) As of its filing date, each VoiceStream SEC Document filed
pursuant to the 1934 Act did not contain any untrue statement of a material fact
or omit to state any material fact necessary in order to make the statements
made therein, in the light of the circumstances under which they were made, not
misleading.
(e) Each VoiceStream SEC Document that is a registration
statement, as amended or supplemented, if applicable, filed pursuant to the 1933
Act, as of the date such registration statement or amendment became effective,
did not contain any untrue statement of a
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material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading.
SECTION 5.9 Financial Statements. The audited consolidated financial
statements and unaudited consolidated interim financial statements of
VoiceStream included in the VoiceStream SEC Documents fairly present, in all
material respects, in conformity with GAAP applied on a consistent basis (except
as may be indicated in the notes thereto), the consolidated financial position
of VoiceStream and its consolidated Subsidiaries as of the dates thereof and
their consolidated results of operations and cash flows for the periods then
ended (subject to normal year-end adjustments in the case of any unaudited
interim financial statements).
SECTION 5.10 Absence of Certain Changes. Since the VoiceStream Balance
Sheet Date, the business of each member of the VoiceStream Group and each
VoiceStream Investment has been conducted in the ordinary course consistent with
past practices and there has not been any event, occurrence or development
which, individually or in the aggregate, has had or would be reasonably expected
to have a VoiceStream Material Adverse Effect.
SECTION 5.11 No Undisclosed Material Liabilities. There are no
liabilities or obligations of any member of the VoiceStream Group or any
VoiceStream Investment of any kind whatsoever, whether accrued, contingent,
absolute, determined, determinable or otherwise, and there is no existing
condition, situation or set of circumstances that would be reasonably expected
to result in such a liability or obligation, other than for taxes, if any,
arising out of, or attributable to the Transactions (including the CIRI
Transaction and the transactions described in Recital A hereof), or:
(a) liabilities or obligations disclosed and provided for in the
VoiceStream Balance Sheet or in the notes thereto or in VoiceStream SEC
Documents filed prior to the date hereof or in the VoiceStream 10-K; and
(b) liabilities or obligations that, individually or in the
aggregate have not had and would not be reasonably expected to have a
VoiceStream Material Adverse Effect.
SECTION 5.12 Compliance with Laws and Court Orders. Each member of the
VoiceStream Group and each VoiceStream Investment holds all licenses,
franchises, certificates, consents, permits, qualifications and authorizations
from all Governmental Bodies necessary for the lawful conduct of their business,
except where the failure to hold any of the foregoing, individually or in the
aggregate, has not had and would not be reasonably expected to have a
VoiceStream Material Adverse Effect. Each member of the VoiceStream Group and
each VoiceStream Investment is and has been in compliance with, and to the
knowledge of VoiceStream, is not under investigation with respect to and has not
been threatened to be charged with or given notice of any violation of, any such
license, franchise, certificate, consent, permit, qualification or
authorization, applicable law, statute, ordinance, rule, regulation, judgment,
injunction, order or decree, except for failures to comply or violations that,
individually or in the
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aggregate, have not had and would not be reasonably expected to have a
VoiceStream Material Adverse Effect.
SECTION 5.13 Litigation. There is no action, suit, investigation or
proceeding (or any basis therefor) pending against, or, to the knowledge of
VoiceStream, threatened against or affecting, any member of the VoiceStream
Group or any VoiceStream Investment or any of their respective properties before
any court or arbitrator or before or by any other Governmental Body, that,
individually or in the aggregate, would be reasonably expected to have a
VoiceStream Material Adverse Effect.
SECTION 5.14 Finders' Fees. Except for fees payable to Goldman, there is
no investment banker, broker, finder or other intermediary that has been
retained by or is authorized to act on behalf of VoiceStream or any VoiceStream
Subsidiary who might be entitled to any fee or commission from Omnipoint, any of
the Omnipoint Subsidiaries, VoiceStream or any of the VoiceStream Subsidiaries
in connection with the Transactions. A copy of the engagement agreement with
Goldman has been provided to Omnipoint; except as set forth on such engagement
agreement, no other fees are payable to Goldman.
SECTION 5.15 Opinion of Financial Advisor. VoiceStream has received an
opinion of Goldman, financial advisor to VoiceStream, to the effect that, as of
June 23, 1999, from a financial point of view, the Merger Consideration is fair
to the holders of VoiceStream Common Stock.
SECTION 5.16 Taxes. (a) Except as set forth in the VoiceStream
Disclosure Schedules and except as would not have a VoiceStream Material Adverse
Effect, (i) all VoiceStream Tax Returns required to be filed with any taxing
authority by, or with respect to, VoiceStream and the VoiceStream Subsidiaries
have been filed in accordance with all applicable laws or an appropriate
extension of time to file such VoiceStream Tax Return has been obtained; (ii)
VoiceStream and the VoiceStream Subsidiaries have timely paid all Taxes shown as
due and payable on the VoiceStream Tax Returns that have been so filed, and, as
of the time of filing, the VoiceStream Tax Returns correctly reflected the facts
regarding the income, business, assets, operations, activities and the status of
VoiceStream and the VoiceStream Subsidiaries (other than Taxes which are being
contested in good faith by appropriate proceeding and for which adequate
reserves are reflected on the VoiceStream Balance Sheet); (iii) VoiceStream and
the VoiceStream Subsidiaries have made provision for all Taxes payable by
VoiceStream and the VoiceStream Subsidiaries for which no VoiceStream Tax Return
has yet been filed; (iv) the charges, accruals and reserves for Taxes with
respect to VoiceStream and the VoiceStream Subsidiaries reflected on the
VoiceStream Balance Sheet are adequate under GAAP to cover the Tax liabilities
accruing through the date thereof; (v) there is no action, suit, proceeding,
audit or claim now pending or to the knowledge of VoiceStream, threatened
against or with respect to VoiceStream or any VoiceStream Subsidiary in respect
of any Tax where an adverse determination is reasonably likely; (vi) the federal
income Tax Returns of VoiceStream and the VoiceStream Subsidiaries have been
examined and settled with the IRS (or the applicable statutes of limitation for
the assessment of federal income Taxes for such periods have expired)
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for all years through 1997; and (vii) there are no Liens or encumbrances for
Taxes on any of the assets of VoiceStream or any VoiceStream Subsidiary except
liens for current Taxes not yet due.
(b) To the knowledge of VoiceStream, there is no plan or
intention on the part of any VoiceStream shareholder to sell, exchange, transfer
or otherwise dispose of any stock of Holding Company received in the
Transactions, except that VoiceStream shareholders that are partnerships for
U.S. federal income tax purposes may distribute such Holding Company stock to
one or more of their partners (other than to a partner which would, immediately
after such distribution, own 5 percent or more of Holding Company's stock,
taking into account such partner's pro rata share of any Holding Company stock
held by the partnership).
(c) The maximum number of shares of Holding Company Common Stock
which may be issued pursuant to conversion rights held by the Cook Entities
(after consummation of the Transactions), including conversion rights under the
CIRI Agreements, is 9,000,000.
SECTION 5.17 Tax Opinions. There are no facts or circumstances relating
to VoiceStream that would, to VoiceStream's knowledge, prevent Jones Day from
delivering the opinions referred to in Sections 9.2(b) and 9.2(c) as of the date
hereof.
SECTION 5.18 Employee Benefit Plans and Labor Matters.
(a) The VoiceStream Disclosure Schedule contains a true and
complete list, as of the date hereof, of all VoiceStream Employee Plans and all
VoiceStream Benefit Arrangements. Copies of each VoiceStream Employee Plan and
each VoiceStream Benefit Arrangement (and, if applicable, related trust
agreements) and all amendments thereto and written interpretations thereof have
been made available to Omnipoint as of the date hereof or will have been made
available to Omnipoint within thirty days after the date hereof, together with
the three most recent annual reports (Form 5500 including, if applicable,
Schedule B thereto) and the most recent actuarial valuation report prepared in
connection with any VoiceStream Employee Plan.
(b) No "accumulated funding deficiency," as defined in Section
412 of the Code, has been incurred with respect to any VoiceStream Employee Plan
subject to such Section 412, whether or not waived. No "reportable event" within
the meaning of Section 4043 of ERISA for which the reporting requirements have
not been waived, and no event described in Section 4062 or 4063 of ERISA has
occurred in connection with any VoiceStream Employee Plan. Neither VoiceStream
nor to VoiceStream's knowledge any ERISA Affiliate of VoiceStream has (i)
engaged in, or is a successor or parent corporation to an entity that has
engaged in, a transaction described in Sections 4069 or 4212(c) of ERISA or (ii)
incurred, or reasonably expects to incur prior to the Effective Time (A) any
liability under Title IV of ERISA arising in connection with the termination of,
or a complete or partial withdrawal from, any plan covered or previously covered
by Title IV of ERISA or (B) any liability under Section 4971 of
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the Code that in either case could become a liability of VoiceStream, any
VoiceStream Subsidiary, Omnipoint or any of their ERISA Affiliates after the
Effective Time. If a "complete withdrawal" by VoiceStream and all of its ERISA
Affiliates were to occur as of the Effective Time with respect to all
Multiemployer Plans, neither of VoiceStream, nor any VoiceStream Subsidiary
would incur any withdrawal liability under Title IV of ERISA.
(c) As of December 31, 1998, the fair market value of the assets
of each VoiceStream Pension Plan (excluding for these purposes any accrued but
unpaid contributions) exceeded the present value of all benefits accrued under
such VoiceStream Pension Plan calculated pursuant to FAS No. 87, "Employers'
Accounting for Pensions."
(d) Each VoiceStream Employee Plan that is intended to be
qualified under Section 401(a) of the Code is the subject of a favorable
qualification determination letter issued by the IRS and to VoiceStream's
knowledge each such VoiceStream Employee Plan is so qualified.
(e) There is no contract, plan or arrangement (written or
otherwise) covering any employee or former employee of VoiceStream or any
VoiceStream Subsidiary that, individually or collectively, could give rise to
the payment of any amount that would not be deductible pursuant to the terms of
Sections 162(m) or 280G of the Code.
(f) As of December 31, 1998, there are no accumulated
post-retirement benefit obligations under any of the VoiceStream Employee Plans
and VoiceStream Benefit Arrangements as determined in accordance with Statement
of Financial Accounting Standards No. 106.
(g) Each VoiceStream Employee Plan and each VoiceStream Benefit
Arrangement has been maintained in material compliance with its terms and with
the requirements prescribed by any and all applicable statutes, orders, rules
and regulations (including any special provisions relating to registration or
qualification where such Plan was intended so to be so registered or qualified)
and has been maintained in good standing with applicable regulatory authorities.
(h) No employee or former employee of VoiceStream or any
VoiceStream Subsidiary will become entitled to any bonus, retirement, severance,
job security or similar benefit or enhancement of such benefit (including
acceleration of vesting or exercise of an incentive award) as a result of the
Transactions (either alone or together with any other event).
(i) Neither VoiceStream nor any of the VoiceStream Subsidiaries
is, or has been, a party to any collective bargaining agreement or union
contract. Neither VoiceStream nor any of the VoiceStream Subsidiaries is
involved in or threatened with any labor dispute, work stoppage, labor strike,
slowdown or grievance. To the knowledge of VoiceStream, there is no
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organizing effort or representation question at issue with respect to any
employee of VoiceStream or any of the VoiceStream Subsidiaries.
SECTION 5.19 Environmental Matters.
(a) Except as have not had and would not be reasonably expected
to have, individually or in the aggregate, a VoiceStream Material Adverse
Effect:
(A) no notice, notification, demand, request for information,
citation, summons or order has been received, no complaint has been
filed, no penalty has been assessed, and no investigation, action,
claim, suit, proceeding or review (or any basis therefor) is pending or,
to the knowledge of VoiceStream, is threatened by any Governmental Body
or other Person relating to or arising out of any Environmental Law;
(B) each member of the VoiceStream Group and each VoiceStream
Investment is and has been in compliance with all Environmental Laws and
all Environmental Permits; and
(C) there are no liabilities of or relating to any member of the
VoiceStream Group or any VoiceStream Investment of any kind whatsoever,
whether accrued, contingent, absolute, determined, determinable or
otherwise arising under or relating to any Environmental Law and there
are no facts, conditions, situations or set of circumstances that could
reasonably be expected to result in or be the basis for any such
liability.
(b) There have been no Environmental Reports of which VoiceStream
has knowledge in relation to the current or prior business of any member of the
VoiceStream Group or any VoiceStream Investment or any property or facility now
or previously owned or leased by any member of the VoiceStream Group or any
VoiceStream Investment that reveal matters that, individually or in the
aggregate, have had or would reasonably be expected to have a VoiceStream
Material Adverse Effect; and
(c) For purposes of this Section 5.19, the terms VoiceStream and
VoiceStream Subsidiary shall include any entity that is, in whole or in part, a
predecessor of any member of the VoiceStream Group or any VoiceStream
Investment.
SECTION 5.20 Intellectual Property. With such exceptions as,
individually or in the aggregate, have not had and would not be reasonably
expected to have a VoiceStream Material Adverse Effect, each member of the
VoiceStream Group and each VoiceStream Investment owns or has a valid license to
use each trademark, service mark, trade name, invention, patent, trade secret,
copyright, know-how (including any registrations or applications for
registration of any of the foregoing) or any other similar type of proprietary
intellectual property right (collectively, the "VoiceStream Intellectual
Property") necessary to carry on its business substantially as currently
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conducted. No member of the VoiceStream Group or any VoiceStream Investment has
received any notice of infringement of or conflict with, and to VoiceStream's
knowledge, there are no infringements of or conflicts with, the rights of any
Person with respect to the use of any VoiceStream Intellectual Property that, in
either such case, individually or in the aggregate, have had or would be
reasonably expected to have, a VoiceStream Material Adverse Effect.
SECTION 5.21 Contracts. No member of the VoiceStream Group nor any
VoiceStream Investment is a party to or bound by (i) any "material contract" (as
such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) or any
agreement, contract or commitment that would be such a "material contract" but
for the exception for contracts entered into in the ordinary course of business,
(ii) any non-competition agreement or any other agreement or obligation which
materially limits or will materially limit any member of the VoiceStream Group
or any VoiceStream Investment Interest from engaging in the business of
providing wireless communications services or from developing wireless
communications technology anywhere in the world or (iii) any management
agreement, technical services agreement or other agreement whereby any member of
the VoiceStream Group or any of its Investment Interest is provided or is
required to provide management or technical services to any other Person. With
such exceptions as, individually or in the aggregate, have not had, and would
not be reasonably expected to have, a VoiceStream Material Adverse Effect, (x)
each of the contracts, agreements and commitments of the VoiceStream Group and
the VoiceStream Investments is valid and in full force and effect and (y)
neither any member of the VoiceStream Group nor any VoiceStream Investments has
violated any provision of, or committed or failed to perform any act which, with
or without notice, lapse of time, or both, would constitute a default under the
provisions of any such contract, agreement or commitment. To the knowledge of
VoiceStream, no counterparty to any such contract, agreement or commitment has
violated any provision of, or committed or failed to perform any act which, with
or without notice, lapse of time, or both would constitute a default or other
breach under the provisions of, such contract, agreement or commitment, except
for defaults or breaches which, individually or in the aggregate, have not had,
or would not reasonably be expected to have, a VoiceStream Material Adverse
Effect. Neither any member of the VoiceStream nor any VoiceStream Investment is
a party to, or otherwise a guarantor of or liable with respect to, any interest
rate, currency or other swap or derivative transaction, other than any such
transactions which are not material to the business of the VoiceStream Group.
VoiceStream has provided or made available to Omnipoint a copy of each agreement
described in item (i), (ii) or (iii) above.
SECTION 5.22 VoiceStream Employees. The VoiceStream Disclosure Schedule
contains a list setting forth the name and current annual salary and other
compensation payable to each Significant VoiceStream Employee, and the profit
sharing, bonus or other form of additional compensation paid or payable by
VoiceStream to or for the benefit of each such person for the current fiscal
year. Except as set forth on the VoiceStream Disclosure Schedule or under the
employment, consulting or other agreements listed thereon, there are no oral or
written contracts, agreements or arrangements obligating VoiceStream to increase
the compensation or benefits presently being paid or hereafter payable to any
Significant VoiceStream Employees.
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The VoiceStream Disclosure Schedule annexed hereto sets forth summaries of all
oral employment or consulting or similar arrangements regarding any Significant
VoiceStream Employee which are not terminable without liability on thirty (30)
days' or less prior notice and lists all written employment and consulting
agreements with respect to any Significant VoiceStream Employee, true and
complete copies of which have been provided to Omnipoint. Except for severance
obligations to Significant VoiceStream Employees set forth on the VoiceStream
Disclosure Schedule, there is not due or owing and there will not be due and
owing at the Effective Time to any Significant VoiceStream Employees, any sick
pay, severance pay (whether arising out of the termination of any Significant
VoiceStream Employee prior to, on, or subsequent to the Effective Time),
compensable time or pay, including salary, commission and bonuses, personal time
or pay or vacation time or vacation pay attributable to service rendered on or
prior to the Effective Time. Except as disclosed in the VoiceStream Disclosure
Schedule, there is not now, and there will not be as of the Effective Time, any
liability arising out of claims made or suits brought (including workers'
compensation claims and claims or suits for contribution to, or indemnification
of, third parties, occupational health and safety, environmental, consumer
protection or equal employment matters) for injury, sickness, disease,
discrimination, death or termination of employment of any Significant
VoiceStream Employee, or other employment matter to the extent attributable to
an event occurring or a state of facts existing on or prior to the Effective
Time.
SECTION 5.23 Employment Matters. VoiceStream and each VoiceStream
Subsidiary (A) are in compliance with all applicable Federal and state laws,
rules and regulations respecting employment, employment practices, terms and
conditions of employment and wages and hours, in each case, with respect to
VoiceStream Employees, except where the failure to be in compliance would not,
singly or in the aggregate, a material adverse effect on VoiceStream, any
VoiceStream Subsidiary or their financial condition or business; (B) have
withheld all amounts required by law or by agreement to be withheld from the
wages, salaries and other payments to VoiceStream Employees; (C) is not liable
for any arrears of wages or any taxes or any penalty for failure to comply with
any of the foregoing, except as would not have a VoiceStream Material Adverse
Effect; and (D) (other than routine payments to be made in the normal course of
business and consistent with past practice) are not liable for any payment to
any trust or other fund or to any governmental or administrative authority, with
respect to unemployment compensation benefits, Social Security or other benefits
for VoiceStream Employees.
SECTION 5.24 Labor. No work stoppage or labor strike with respect to
VoiceStream Employees is pending or, to the best knowledge of VoiceStream, is
threatened. Except as set forth on the VoiceStream Disclosure Schedules, there
is no involvement nor, to the best knowledge of VoiceStream, is there
threatened, any labor dispute, grievance or litigation relating to labor, safety
or discrimination matters involving any VoiceStream Employee including charges
of unfair labor practices or discrimination complaints, which, if adversely
determined, would reasonably be expected to have individually or in the
aggregate, a material adverse effect on its financial condition or business.
There has been no engagement in any unfair labor practices
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within the meaning of the National Labor Relations Act which would, individually
or in the aggregate, a VoiceStream Material Adverse Effect.
SECTION 5.25 There is not presently nor has there been in the past any
collective bargaining agreement or union contract with respect to VoiceStream
Employees and no collective bargaining agreement with respect to VoiceStream
Employees is at the date hereof being negotiated.
SECTION 5.26 Vote Required. The only vote of the holders of any class or
series of capital stock of VoiceStream necessary to approve this Agreement and
the Transactions is the affirmative vote of the holders of a majority of the
outstanding shares of VoiceStream Common Stock (the "VoiceStream Stockholders'
Approval").
SECTION 5.27 Insurance. The VoiceStream Disclosure Schedules set forth a
list and brief description of all policies of fire, liability and other forms of
insurance and material fidelity bonds held by the VoiceStream Group. The
VoiceStream Group's assets, business, equipment, property and operations are
adequately insured against loss or damage and all other hazards or risks of the
character usually insured against by companies in the same or similar business
and such insurance shall be continued in full force and effect through 11:59
p.m. on the Effective Time. Each such policy and fidelity bond is in full force
and effect, all premiums due and payable under such policies and fidelity bonds
have been and on the Effective Time will be paid in full, and there are no
disputed claims arising under such policies or fidelity bonds.
SECTION 5.28 Bank Accounts. The Disclosure Schedule sets forth a
complete list of all bank accounts, savings deposits, money-market accounts,
certificates of deposit, safety deposit boxes, and similar investment accounts
with banks or other financial institutions maintained by or on behalf of the
VoiceStream or any VoiceStream Subsidiary showing the depository bank or
institution address, appropriate bank contact personnel, account number and
names of signatories.
SECTION 5.29 Transactions with Affiliates. No Affiliate of the
VoiceStream Group or VoiceStream Investment nor any stockholder, officer,
director, partner, member, consultant or employee of any thereof, is at the date
hereof a party to any transaction with any member of the VoiceStream Group, or
VoiceStream Investment including any contract or arrangement providing for the
furnishing of services to or by, providing for rental of real or personal
property (including intellectual property) to or from, or otherwise requiring
payments to or from any member of the VoiceStream Group, VoiceStream Investment,
or any Affiliate thereof.
SECTION 5.30 Not an Interested Stockholder. As of the date of this
Agreement, neither VoiceStream nor any of its Affiliates is an "Interested
Stockholder" as such term is defined in Section 203 of the Delaware Law.
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SECTION 5.31 Representations with Respect to Holding Company.
(a) There is currently no indebtedness between Omnipoint common
shareholders and Holding Company, and none will be created as a result of the
Transactions, other than Holding Company's obligation to pay cash to Omnipoint
shareholders pursuant to Section 3.3. of the Agreement.
(b) Immediately following the Transactions, Omnipoint
shareholders and VoiceStream shareholders will collectively own at least 80
percent of the total combined voting power of all classes of Holding Company's
stock entitled to vote and at least 80 percent of the total number of shares of
all other classes of Holding Company's stock.
(c) Each Omnipoint shareholder and VoiceStream shareholder will
receive stock (and, in the case of Omnipoint shareholders, cash) of Holding
Company with an aggregate value approximately equal to the fair market value of
their stock transferred to Holding Company.
(d) Holding Company is not, nor will it be, an investment company
within the meaning of Section 351(e) of the Code immediately after the
Transactions.
(e) Holding Company, Omnipoint and VoiceStream will each remain
in existence following the Transactions. Holding Company will retain the
Omnipoint Shares and VoiceStream Shares, and there is no plan or intention on
the part of Holding Company to liquidate Omnipoint or VoiceStream or otherwise
dispose of such shares.
(f) To the knowledge of Holding Company there is no plan or
intention on the part of any Omnipoint shareholder or VoiceStream Shareholders
to sell, exchange, transfer or otherwise dispose of any stock of Holding Company
received in the Transactions, except that such Omnipoint shareholders and
VoiceStream shareholders as are partnerships for U.S. federal income tax
purposes may distribute such Holding Company stock to one or more of their
partners (other than to a partner which would, immediately after such
distribution, own 5 percent or more of Holding Company's stock, taking into
account such partner's pro rata share of any Holding Company stock held by the
partnership).
ARTICLE 6
COVENANTS OF OMNIPOINT
Omnipoint agrees that:
SECTION 6.1 Omnipoint Interim Operations. Except as set forth in the
Omnipoint Disclosure Schedule or as otherwise expressly contemplated hereby,
without the prior written
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consent of VoiceStream, Omnipoint shall, and shall cause each member of the
Omnipoint Group to, conduct its business in all material respects in the
ordinary course consistent with past practice and use all reasonable efforts to:
(i) preserve intact its present business organization; (ii) keep available the
services of its key officers and key employees; (iii) maintain in effect all
material foreign, federal, state and local licenses, approvals and
authorizations, including, without limitation, the Omnipoint FCC Licenses, all
material licenses and permits that are required for Omnipoint or any Omnipoint
Subsidiary to carry on its business and (iv) preserve existing relationships
with its material partners, lenders, suppliers and others having material
business relationships with it so that the business of the Omnipoint Group shall
not be adversely affected in any material respect as of the Effective Time.
Further, and without limiting the generality of the foregoing, except as set
forth in Section 6.1 of the Omnipoint Disclosure Schedule, from the date hereof
until the Effective Time, without the prior written consent of VoiceStream,
Omnipoint shall not, nor shall it permit any member of the Omnipoint Group or
Omnipoint Investment to:
(a) amend its certificate of incorporation or bylaws or other
applicable governing instrument;
(b) amend any term of any of its outstanding securities;
(c) split, combine, subdivide or reclassify any shares of its
capital stock or other equity interests or declare, set aside or pay any
dividend or other distribution (whether in cash, stock or property or any
combination thereof) in respect of its capital stock, or redeem, repurchase or
otherwise acquire or offer to redeem, repurchase, or otherwise acquire any of
its securities or any securities of any member of the Omnipoint Group or
Omnipoint Investment except for dividends paid by any Omnipoint Subsidiary that
is, directly or indirectly, wholly owned by Omnipoint;
(d) adopt a plan or agreement of complete or partial liquidation,
dissolution, merger, consolidation, restructuring, recapitalization or other
material reorganization (other than a merger or consolidation between wholly
owned Omnipoint Subsidiaries);
(e) issue, deliver or sell, or authorize the issuance, delivery
or sale of, any shares of its capital stock of any class or other equity
interests or any securities convertible into or exercisable for, or any rights,
warrants or options to acquire, any such capital stock or other equity
interests, other than (i) the issuance of shares of Omnipoint Common Stock upon
the exercise of currently outstanding stock options or warrants in accordance
with their present terms, (ii) issuances pursuant to the conversion of
convertible securities outstanding on the date hereof in accordance with their
present terms and (iii) the granting of options to acquire shares of Omnipoint
Common Stock in accordance with Section 6.1 of the Omnipoint Disclosure
Schedule;
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(f) incur any capital expenditures except as set forth in the
Omnipoint Disclosure Schedule;
(g) acquire (by merger, consolidation, acquisition of stock or
assets or otherwise) any corporation, limited liability company, partnership,
other business organization or division thereof, licenses or other assets except
for (i) capital expenditures, which shall be governed by clause (f), (ii)
pursuant to agreements in effect as of the date hereof and listed on the
Omnipoint Disclosure Schedule, or (iii) tangible assets used in the ordinary
course of business of Omnipoint and the Omnipoint Subsidiaries in a manner that
is consistent with past practice;
(h) other than pursuant to agreements in effect as of the date
hereof and listed on the Omnipoint Disclosure Schedule, sell, lease, license,
encumber or otherwise transfer any assets (including any licenses or Investment
Interest) having a fair market value exceeding $5,000,000 in any one transaction
or series of related transactions or $10,000,000 in the aggregate;
(i) incur, assume or guarantee any Indebtedness other than
pursuant to agreements in effect on the date hereof and listed on the Omnipoint
Disclosure Schedule;
(j) create, incur, assume or suffer to exist any Lien upon any of
its property, assets or revenues, whether now owned or hereafter acquired, other
than Liens incurred in the ordinary course of business to secure indebtedness or
other obligations permitted by this Agreement;
(k) create, incur, assume or suffer to exist any obligation
whereby Omnipoint or any Omnipoint Subsidiary guarantees any Indebtedness,
leases, dividends or other obligations of any third party;
(l) make any loan, advance or capital contributions to or
investment in any Person, or acquire any Investment Interest, other than loans,
advances or capital contributions to or investments in its wholly owned
Subsidiaries;
(m) except for capital expenditures, which shall be governed by
clause (f), engage in or enter into any transaction or commitment, enter into
any contract or agreement, or relinquish or amend in any material respect any
contract or other right, in any case, material to the Omnipoint Group, taken as
a whole, other than transactions and commitments in the ordinary course of
business consistent with past practices and those contemplated by this
Agreement;
(n) enter into any agreement or arrangement that materially
limits or otherwise materially restricts Omnipoint, any Omnipoint Subsidiary or
any of their respective Affiliates or any successor thereto or that could, after
the Effective Time, limit or restrict VoiceStream, any VoiceStream Subsidiary,
the Surviving Corporation or any of their Affiliates, from engaging in the
business of providing wireless communications services or developing wireless
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communications technology anywhere in the world or otherwise from engaging in
any other business;
(o) except as required pursuant to any written agreements listed
on the Omnipoint Disclosure Schedule and existing on the date hereof or as
otherwise mandated by law as of the date hereof (i) enter into any commitment to
provide any severance or termination pay to (or amend any existing arrangement
with) any director, officer or employee of Omnipoint or any Omnipoint Subsidiary
that calls for payments in excess of $200,000 in the aggregate for all such
directors, officers, or (ii) increase the benefits payable under any existing
severance or termination pay policy or employment agreement (other than as may
be increased by function of the existing terms of any such policy or agreement),
(iii) enter into any employment, deferred compensation or other similar
agreement (or amend any such existing agreement) with any director, officer or
employee of Omnipoint or any Omnipoint Subsidiary that calls for annual payments
in excess of $125,000, (iv) establish, adopt or amend (except as required by
applicable law) any collective bargaining, bonus, profit-sharing, thrift,
pension, retirement, deferred compensation, compensation, stock option,
restricted stock or other benefit plan or arrangement covering any director,
officer or employee of Omnipoint or any Omnipoint Subsidiary, except that
Omnipoint and the Omnipoint Subsidiaries may amend any such existing agreement
or plan or adopt a successor plan or arrangement to the extent mandated by
applicable law or to the extent that such amendment would not result in a more
than de minimis increase in the costs or liabilities under such agreement or
plan, (v) increase the compensation, bonus or other benefits payable to any
director, officer or employee of Omnipoint or any Omnipoint Subsidiary or (vi)
amend the terms of any outstanding option or right to purchase shares of
Omnipoint Common Stock;
(p) change (i) its methods of accounting or accounting practices
in any material respect, except as required by concurrent changes in U.S. GAAP
or by Law or (ii) its fiscal year;
(q) make, or amend in any respect the terms of any Investment
Interest, which cannot be terminated within 30 days of the Effective Time
without any penalty;
(r) settle, or propose to settle, any material litigation,
investigation, arbitration, proceeding or other claim;
(s) make any material tax election or enter into any settlement
or compromise of any material tax liability;
(t) take any action, other than as expressly permitted by this
Agreement, that would make any representation or warranty of Omnipoint hereunder
inaccurate in any material respect at the Effective Time; or
(u) agree or commit to do any of the foregoing;
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provided that the limitations set forth above shall not apply to any transaction
exclusively between (i) Omnipoint and any Omnipoint Subsidiary that is wholly
owned by Omnipoint or between any such wholly owned Omnipoint Subsidiaries and
(ii) any member or members of the Omnipoint Group and any member or members of
the VoiceStream Group.
SECTION 6.2 No Solicitation.
(a) From the date hereof until the termination hereof, Omnipoint
will not, and will cause the Omnipoint Subsidiaries, Omnipoint Affiliates, and
the officers, directors, employees, investment bankers, attorneys, accountants,
consultants or other agents or advisors of Omnipoint, the Omnipoint Subsidiaries
and the Omnipoint Affiliates not to, directly or indirectly: (i) take any action
to solicit, initiate, facilitate or encourage the submission of any Acquisition
Proposal; (ii) other than in the ordinary course of business and not related to
an Acquisition Proposal, engage in any discussions or negotiations with, or
disclose any non-public information relating to Omnipoint or any Omnipoint
Subsidiary or afford access to the properties, books or records of Omnipoint or
any Omnipoint Subsidiary to, any Person who is known by Omnipoint to be
considering making, or has made, an Acquisition Proposal; (iii) (A) approve any
transaction under Section 203 of the Delaware Law or (B) approve of any Person's
becoming an "interested stockholder" under Section 203 of Delaware Law or (iv)
enter into any agreement with respect to an Acquisition Proposal. Nothing
contained in this Agreement shall prevent the Board of Directors of Omnipoint
from complying with Rule 14e-2 and Rule 14d-9 under the 1934 Act with regard to
an Acquisition Proposal; provided that the Board of Directors of Omnipoint shall
not recommend that the stockholders of Omnipoint tender their shares in
connection with a tender offer except to the extent the Board of Directors of
Omnipoint by a majority vote determines in its good faith judgment that such a
recommendation is required to comply with the fiduciary duties of the Board of
Directors of Omnipoint to shareholders under applicable Delaware Law, after
receiving the advice of outside legal counsel.
(b) Omnipoint will notify VoiceStream promptly (but in no event
later than 24 hours) after receipt by Omnipoint (or any of its advisors) of any
Acquisition Proposal, or of any request (other than in the ordinary course of
business and not related to an Acquisition Proposal) for non-public information
relating to Omnipoint or any of the Omnipoint Subsidiaries or for access to the
properties, books or records of Omnipoint or any Omnipoint Subsidiary by any
Person who is known to be considering making, or has made, an Acquisition
Proposal. Omnipoint shall provide such notice orally and in writing and shall
identify the Person making, and the terms and conditions of, any such
Acquisition Proposal, indication or request. Omnipoint shall keep VoiceStream
fully informed, on a prompt basis (but in any event no later than 24 hours), of
the status and details of any such Acquisition Proposal, indication or request.
Omnipoint shall, and shall cause the Omnipoint Subsidiaries and the directors,
employees and other agents of Omnipoint and the Omnipoint Subsidiaries to, cease
immediately and cause to be terminated all activities, discussions or
negotiations, if any, with any Persons conducted prior to the date hereof with
respect to any Acquisition Proposal.
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SECTION 6.3 Access to Information. Omnipoint shall (i) give to
VoiceStream and VoiceStream's counsel, financial advisors, auditors and other
authorized representatives unlimited access during normal business hours to the
offices, properties, books and records of Omnipoint and the Omnipoint
Subsidiaries, (ii) at VoiceStream's request, furnish to VoiceStream and
VoiceStream's counsel, financial advisors, auditors and other authorized
representatives all financial and operating data (including without limitation,
all subscriber information (including a breakdown of all additions and
disconnections) and all information concerning all capital expenditures) and
other information to which the Omnipoint Board of Directors or the senior
executives of Omnipoint are provided or have access to (all of the foregoing to
be furnished to VoiceStream simultaneously with the same being furnished to any
member of Omnipoint's Board of Directors or the senior executives of Omnipoint),
and (iii) instruct its employees, counsel, financial advisors, auditors and
other authorized representatives to cooperate with the other party in
VoiceStream's investigation. Any investigation pursuant to this Section 6.3
shall be conducted in such manner as not to interfere unreasonably with the
conduct of the business of Omnipoint and the Omnipoint Subsidiaries. The
foregoing information shall be held in confidence to the extent required by, and
in accordance with, the provisions of the Confidentiality Agreement.
SECTION 6.4 Omnipoint shall use its reasonable best efforts to take, or
cause to be taken, all actions and do, or cause to be done, all things
necessary, proper or advisable under applicable law and regulations to
consummate the closing under the CIRI Agreements pursuant to the terms thereof.
Prior to the Effective Time, upon the satisfaction or waiver by VoiceStream or
Omnipoint, as applicable of all the conditions for the consummation of the
Transactions, Omnipoint shall in accordance with the CIRI Agreements sell,
assign, transfer, convey and deliver to each Purchaser (as defined in each of
the CIRI Agreements) the FCC Licenses and Schedule I, Schedule II and Schedule
III Assets and Assumed Liabilities (as defined in each of the CIRI Agreements).
ARTICLE 7
COVENANTS OF VOICESTREAM AND HOLDING COMPANY
VoiceStream and Holding Company agree that:
SECTION 7.1 VoiceStream Interim Operations. Except as set forth in the
VoiceStream Disclosure Schedule or as otherwise expressly contemplated hereby,
without the prior consent of Omnipoint, from the date hereof until the Effective
Time, VoiceStream shall not, nor shall it permit any members of the VoiceStream
Group or any VoiceStream Investment to:
(a) amend its certificate of incorporation, bylaws or other
applicable governing instrument;
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(b) amend any material terms of the shares of VoiceStream Common
Stock;
(c) split, combine, subdivide or reclassify any shares of
VoiceStream Common Stock or declare, set aside or pay any dividend or other
distribution (whether in cash, stock or property or any combination thereof) in
respect of VoiceStream Common Stock, except for (i) regular quarterly cash
dividends, (ii) regular dividends on any future series of preferred stock
pursuant to the terms of such securities, or (iii) dividends paid by any
VoiceStream Subsidiary to VoiceStream or any VoiceStream Subsidiary that is,
directly or indirectly, wholly owned by VoiceStream;
(d) take any action that would or would reasonably be expected to
prevent, impair or materially delay the ability of Omnipoint or VoiceStream to
consummate the transactions contemplated by this Agreement;
(e) change (i) its methods of accounting or accounting practices
in any material respect except as required by concurrent changes in U.S. GAAP or
by law or (ii) its fiscal year;
(f) enter into or acquire any new line of business that (i) is
material to the VoiceStream Group taken as a whole and (ii) is not strategically
related to the current business or operations of the VoiceStream Group; or
(g) agree or commit to do any of the foregoing.
SECTION 7.2 Director and Officer Liability.
(a) Holding Company shall indemnify and hold harmless and advance
expenses to the present and former officers and directors of each member of the
Omnipoint Group and the present and former officers and directors of each member
of the VoiceStream Group, and each person who prior to the Effective Time
becomes an officer or director of any member of the Omnipoint Group or any
member of the VoiceStream Group (each an "Indemnified Person"), in respect of
acts or omissions by them in their capacities as such occurring at or prior to
the Effective Time (including, without limitation, for acts or omissions
occurring in connection with this Agreement and the consummation of the
Transactions) to the same extent provided under Omnipoint's certificate of
incorporation and bylaws in effect on the date hereof (with respect to the
officers and directors of the Omnipoint Group) or VoiceStream's certificate of
incorporation and bylaws in effect on the date hereof (with respect to the
officers and directors of the VoiceStream Group) (collectively, the "Indemnified
Losses"); provided that such indemnification shall be subject to any limitation
imposed from time to time under applicable law. Without limiting the generality
of the foregoing, the Indemnified Losses shall include reasonable costs of
prosecuting a claim under this Section 7.2(a). Holding Company shall
periodically advance or reimburse each Indemnified Person for all reasonable
fees and
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expenses of counsel constituting Indemnified Losses as such fees and expenses
are incurred; provided that such Indemnified Person shall agree to promptly
repay to Holding Company the amount of any such reimbursement if it shall be
judicially determined by judgment or order not subject to further appeal or
discretionary review that such Indemnified Person is not entitled to be
indemnified by Holding Company in connection with such matter.
(b) For six years after the Effective Time, Holding Company shall
provide officers' and directors' liability insurance in respect of acts or
omissions occurring prior to the Effective Time (including, without limitation,
for acts or omissions occurring in connection with this Agreement and the
consummation of the Transactions) covering each such Indemnified Person
currently covered by Omnipoint's officers' and directors' liability insurance
policy (with respect to officers and directors of the Omnipoint Group) or by
VoiceStream's officers' and directors' liability insurance policy (with respect
to officers and directors of the VoiceStream Group) on terms with respect to
coverage and amount (including with respect to the payment of attorney's fees)
no less favorable than those of such policy in effect on the date hereof (which
policies have been made available by Omnipoint to VoiceStream and by VoiceStream
to Omnipoint); provided that if the aggregate annual premiums for such insurance
during such period shall exceed 200% of the per annum rate of premium paid by
Omnipoint (with respect to the liability insurance policies of the officers and
directors of Omnipoint) or VoiceStream (with respect to the liability insurance
policies of the officers and directors of VoiceStream) as of the date hereof for
such insurance, then Holding Company shall provide a policy with the best
coverage as shall then be available at 200% of such rate.
(c) The rights of each Indemnified Person and its heirs and legal
representatives under this Section 7.2 shall be in addition to any rights such
Person may have under the certificate of incorporation or bylaws of any member
of the Omnipoint Group (with respect to the Omnipoint officers and directors) or
the VoiceStream Group (with respect to the VoiceStream officers and directors),
or under Delaware Law or any other applicable laws. These rights shall survive
consummation of the Transactions and are intended to benefit, and shall be
enforceable by, each Indemnified Person.
SECTION 7.3 Listing of Stock. Holding Company shall use its reasonable
best efforts to cause (i) the shares of Holding Company Common Stock to be
issued in connection with the Transactions (and the shares of Holding Company
Common Stock underlying the securities to be issued pursuant to Section 3.6) to
be approved for listing on NASDAQ, subject to official notice of issuance, and
(ii) the securities of Omnipoint to be de-listed from NASDAQ following the
Transactions.
SECTION 7.4 Holding Company Board of Directors. Immediately prior to the
Effective Time, the Board of Directors of Holding Company will take all
necessary action to expand the size of its Board of Directors of Holding Company
to 14 members and to appoint to the Holding Company Board, as of the Effective
Time, 4 current members of the Omnipoint Board selected by Omnipoint who agrees
to serve in that capacity (the "New Directors"). From the Effective Time until
and including the second annual meeting of the stockholders of Holding Company
taking place after the Effective Time, the Board of Directors of Holding Company
will
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nominate the New Directors for reelection to the Holding Company Board of
Directors at each subsequent annual or special meeting of the stockholders of
Holding Company at which the New Directors' term expires. The provisions of this
Section 7.4 shall survive the consummation of the Transactions and are intended
to benefit, and shall be enforceable by, the New Directors.
SECTION 7.5 Employee Matters.
(a) Holding Company shall, or shall cause its Subsidiaries to:
(i) honor the terms of all Omnipoint Employee Plans and
Omnipoint Benefit Arrangements as in effect on the date hereof (or as
amended with the prior consent of VoiceStream) and to pay the benefits
required under such terms of such plans and arrangements, in each case
subject to Section 7.5(c); and
(ii) until December 31, 2001 (the "Benefits Maintenance
Period"), with respect to employees of Omnipoint or any of Omnipoint
Subsidiaries at the Effective Time ("Transferred Employees"), provide a
level of employee benefits and aggregate compensation which is
substantially comparable in the aggregate to the level of employee
benefits and aggregate compensation provided by Omnipoint and Omnipoint
Subsidiaries as of the Effective Time (other than the benefits provided
under any severance or termination benefit plans and arrangements of
Omnipoint or any Omnipoint Subsidiary).
(b) If Transferred Employees are included in any VoiceStream
Benefit Arrangement or VoiceStream Employee Plan, including without limitation,
any plan or arrangement providing vacation benefits, the Transferred Employees
shall receive credit for service prior to the Effective Time with Omnipoint and
the Omnipoint Subsidiaries and their predecessors to the same extent such
service was counted under similar Omnipoint Employee Plans and Omnipoint Benefit
Arrangements for purposes of determining eligibility to participate, vesting and
the level of benefits provided. If Transferred Employees or their dependents are
included in any medical, dental or health plan other than the plan or plans they
participated in at the Effective Time (a "Successor Plan"), any such Successor
Plan shall (i) waive all limitations as to pre-existing conditions, exclusions
and waiting periods, except to the extent such limitations, exclusions or
waiting periods were applicable to such employees or dependents under any
corresponding Omnipoint Employee Plan at the Effective Time, and (ii) provide
each such employee or dependent with credit for any copayments and deductibles
paid prior to the date of inclusion in the Successor Plan in satisfying any
applicable deductible or out-of-pocket requirements under such Successor Plan.
(c) Notwithstanding any of the above, nothing contained herein
shall be construed as requiring VoiceStream or any VoiceStream Subsidiary to
continue any specific Employee Plan or Benefit Arrangement or to continue the
employment of any specific person, provided, however, that any changes that
VoiceStream or any VoiceStream Subsidiary may make to any such Employee Plan or
Benefit Arrangement are permitted by the terms of the applicable Employee Plan
or Benefit Arrangement under any applicable Law.
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SECTION 7.6 Access to Information. VoiceStream, between the date hereof
and the earlier of the effective time of the termination of this Agreement,
between the date hereof and the earlier of the Effective Time or the Termination
of this Agreement, shall (i) give to Omnipoint and Omnipoint's counsel,
financial advisors, auditors and other authorized representatives reasonable
access during normal business hours to the offices, properties, books and
records of VoiceStream and the VoiceStream Subsidiaries, (ii) furnish to
Omnipoint and Omnipoint's counsel, financial advisors, auditors and other
authorized representatives such financial and operating data and other
information as Omnipoint may reasonably request and (iii) instruct its
employees, counsel, financial advisors, auditors and other authorized
representatives to cooperate with Omnipoint's investigation. Any investigation
pursuant to this Section 7.6 shall be conducted in such manner as not to
interfere unreasonably with the conduct of the business of VoiceStream.
SECTION 7.7 Covenants with Respect to Holding Company.
(a) Holding Company will not issue any stock as compensation for
services in connection with the Transactions or take any other action which may
cause such Transactions not to qualify as an exchange under Section 351 of the
Code.
(b) Holding Company will retain the VoiceStream and Omnipoint
shares following the Transactions and Holding Company will not liquidate
Omnipoint or VoiceStream or otherwise dispose of such shares unless it obtains
an opinion of counsel to the effect that such liquidation or disposition will
not cause the Transactions to fail to qualify as an exchange under Section 351
of the Code.
(c) Holding Company will not take any action, or cause
VoiceStream or Omnipoint to take any action, which may cause the Transactions
not to qualify as an exchange under Section 351 of the Code.
SECTION 7.8 Registration Rights. Not later than 15 days after the
Closing Date, Holding Company shall prepare and file with the SEC a registration
statement (the "Affiliate Registration Statement") on Form S-1, S-3, if the
Holding Company is eligible to use such form, or any other filing form which
Holding Company shall deem appropriate, with respect to the sale of the shares
of Holding Company Common Stock to be held by any "affiliate" (as such term is
defined under Rule 145 of the 1933 Act) (and their limited partners) of either
Omnipoint or VoiceStream immediately following the Effective Time (the
"Affiliate Shares"). Holding Company shall take all reasonable steps necessary
to ensure that the Affiliate Registration Statement does not, as of its
effective date, contain any untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading. Holding Company shall use its best efforts to
have the Affiliate Registration Statement declared effective as soon as
practicable after the Closing Date and shall keep the Affiliate Registration
Statement effective subject to appropriate "blackout" periods and other
exceptions and limitations as the Board of Directors of Holding Company
determines in good faith to be customary and appropriate until the earlier of
(i) one year after its effective date,
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(ii) all Affiliate Shares have been sold thereunder, or (iii) all Affiliate
Shares may be sold without registration under the 1933 Act.
ARTICLE 8
COVENANTS OF VOICESTREAM AND OMNIPOINT
Each of the parties hereto agree that:
SECTION 8.1 Best Efforts.
(a) Subject to the terms and conditions of this Agreement, each
of the parties will use its reasonable best efforts to promptly (i) take, or
cause to be taken, all actions and to do, or cause to be done, all things
necessary, proper or advisable under applicable laws and regulations to
consummate the Transactions as soon as practicable, including preparing and
filing as promptly as practicable all documentation to effect all necessary
filings, notices, petitions, statements, registrations, submissions of
information, applications and other documents, and (ii) obtain and maintain all
approvals, consents, registrations, permits, authorizations and other
confirmations required to be obtained from any third party (including consents
of the FAA and other Governmental Bodies) that are necessary, proper or
advisable to consummate the Transactions. In connection with the foregoing,
Omnipoint will cooperate with and assist VoiceStream, and, with respect to
matters that are within Omnipoint's power or control, will use its best efforts
to promptly (i) take, or cause to be taken, all actions and to do, or cause to
be done, all things necessary, proper or advisable under applicable laws and
regulations to consummate the Transactions as soon as practicable, including
preparing and filing as promptly as practicable all documentation to effect all
necessary filings, notices, petitions, statements, registrations, submissions of
information, applications and other documents, (ii) obtain and maintain all
approvals, consents, registrations, permits, authorizations and other
confirmations required to be obtained from any third party that are necessary,
proper or advisable to consummate the Transactions; provided, however, no member
of the VoiceStream Group or any VoiceStream Subsidiary shall be required to
divest or hold separate or otherwise take or commit to take any action that
limits its freedom of action with respect to (or Holding Company's ability to
retain) any member of the Omnipoint Group or any Omnipoint Investment or any
material portion of the assets of the VoiceStream Group or any of the
VoiceStream Group's business, product lines, or assets of the Omnipoint Group,
(iii) consummate the CIRI Transactions, and (iv) consummate the Hutchison
Transaction. At VoiceStream's request, Omnipoint will commit to and implement
any divestiture, hold separate or similar transaction or action with respect to
any asset or business of the Omnipoint Group or any Omnipoint Investment, which
commitment and implementation may, at Omnipoint's option, be conditioned upon
and effective as of the Effective Time. Subject to applicable laws relating to
the exchange of information, VoiceStream and Omnipoint shall have the right to
review in advance, and to the extent practicable to consult with each other on,
all the information relating to any member of the Omnipoint Group or any
Omnipoint Investment or any member of the VoiceStream Group or VoiceStream
Investment, as
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applicable, that appears in any filing made with, or written materials submitted
to, any third party and/or any Governmental Bodies in connection with the
Transactions.
(b) As promptly as practicable after the execution and delivery
of this Agreement, VoiceStream and Omnipoint shall prepare all appropriate
applications for FCC approval, and such other documents as may be required, with
respect to the transfer of control of Omnipoint and VoiceStream to Holding
Company (collectively, the "FCC Applications"). Not later than the tenth
business day following execution and delivery of this Agreement, Omnipoint and
VoiceStream will exchange with each other their respective completed portions of
the FCC Applications. Not later than the fifteenth Business Day following the
execution and delivery of this Agreement, Omnipoint and VoiceStream shall file,
or cause to be filed, the FCC Applications. If the Effective Time shall not have
occurred for any reason within any applicable initial consummation period, and
neither Omnipoint nor VoiceStream shall have terminated this Agreement pursuant
to Section 10.1, VoiceStream and Omnipoint shall jointly request one or more
extensions of the consummation period of such grant. No party hereto shall
knowingly take, or fail to take, any action if the intent or reasonably
anticipated consequence of such action or failure to act is, or would be, to
cause the FCC not to grant approval of the FCC Applications or delay either such
approval or the consummation of the transfer of control of Omnipoint.
VoiceStream and Omnipoint shall each pay one-half (1/2) of any FCC fees, if
applicable, in connection with the filing or granting of approval of the FCC
Applications. Each of VoiceStream and Omnipoint shall bear its own expenses in
connection with the preparation and prosecution of the FCC Applications.
VoiceStream and Omnipoint shall each use all reasonable efforts to prosecute the
FCC Applications in good faith and with due diligence before the FCC and in
connection therewith shall take such action or actions as may be necessary or
reasonably required in connection with the FCC Applications, including
furnishing to the FCC any documents, materials or other information requested by
the FCC in order to obtain such FCC approval as expeditiously as practicable.
(c) Promptly after the date hereof, VoiceStream and Omnipoint (as
may be required pursuant to the HSR Act) will complete all documents required to
be filed with the Federal Trade Commission and the Department of Justice in
order to comply with the HSR Act and, not later than 10 Business Days after the
date hereof, together with the Persons who are required to join in such filings,
shall file the same with the appropriate Governmental Bodies. VoiceStream and
Omnipoint shall each pay one-half (1/2) of any fees that may be payable in
connection with the filing pursuant to the HSR Act. VoiceStream, and Omnipoint
shall promptly furnish all materials thereafter required by any of the
Governmental Bodies having jurisdiction over such filings, and shall take all
reasonable actions and shall file and use all reasonable efforts to have
declared effective or approved all documents and notifications with any such
Governmental Bodies, as may be required under the HSR Act or other federal
antitrust laws for the consummation of the Transactions and any other
transactions contemplated hereby.
(d) In addition to the filings required by the HSR Act and the
Communications Act, the Parties shall (i) as promptly as possible and in any
event within 15 days after the date hereof file with any other applicable
Governmental Bodies (including, but
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not limited to the FAA) the applications and related documents required to be
filed by such Governmental Bodies (and prosecute diligently any such
applications, including providing such information as such Governmental Bodies
may reasonably request) in order to consummate the Transactions, (ii) cooperate
with each other as may reasonably be requested in connection with the foregoing,
and (iii) otherwise use their best efforts to obtain promptly the requested
consent and approval of the applications by any applicable Governmental Bodies.
VoiceStream and Omnipoint shall each pay one half (1/2) of all filing or other
Governmental Body filing or grant fees in connection with the applications
requesting its consent to the consummation of the Transactions.
SECTION 8.2 Registration Statement and Proxy Statement. VoiceStream and
Omnipoint shall cooperate and promptly prepare and file with the SEC as soon as
practicable a Registration Statement on Form S-4 (the "Form S-4") under the 1933
Act, with respect to the Holding Company Common Stock issuable in the Mergers, a
portion of which Registration Statement shall also serve as the joint proxy
statement with respect to the meetings of stockholders of Omnipoint and of
VoiceStream in connection with the Transactions (the "Proxy
Statement/Prospectus"). The respective parties shall cause the Proxy
Statement/Prospectus and the Form S-4 to comply as to form in all material
respects with the applicable provisions of the 1933 Act, the 1934 Act and the
rules and regulations thereunder. VoiceStream shall use all reasonable efforts,
and Omnipoint shall cooperate with VoiceStream, to have the Form S-4 declared
effective by the SEC as promptly as practicable and to keep the Form S-4
effective as long as is necessary to consummate the Transactions. VoiceStream
shall, as promptly as practicable, provide copies of any written comments
received from the SEC with respect to the Form S-4 to Omnipoint and advise
Omnipoint of any verbal comments with respect to the Form S-4 received from the
SEC. VoiceStream shall use its best efforts to obtain, prior to the effective
date of the Form S-4, all necessary state securities laws or "Blue Sky" permits
or approvals required to carry out the Transactions and shall pay all expenses
incident thereto. VoiceStream agrees that the Proxy Statement/Prospectus and
each amendment or supplement thereto at the time of mailing thereof and at the
time of the respective meetings of stockholders of Omnipoint and VoiceStream,
or, in the case of the Form S-4 and each amendment or supplement thereto, at the
time it is filed or becomes effective, shall not include an untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein, in light of the
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circumstances under which they were made, not misleading; provided, however,
that the foregoing shall not apply to the extent that any such untrue statement
of a material fact or omission to state a material fact was made by VoiceStream
in reliance upon and in conformity with written information concerning Omnipoint
furnished to VoiceStream by Omnipoint specifically for use in the Proxy
Statement/Prospectus. Omnipoint agrees that the written information concerning
Omnipoint provided by it for inclusion in the Proxy Statement/Prospectus and
each amendment or supplement thereto, at the time of mailing thereof and at the
time of the respective meetings of stockholders of Omnipoint and VoiceStream,
or, in the case of written information concerning Omnipoint provided by
Omnipoint for inclusion in the Form S-4 or any amendment or supplement thereto,
at the time it is filed or becomes effective, shall not include an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. No amendment or
supplement to the Proxy Statement/Prospectus shall be made by VoiceStream or
Omnipoint without the approval of the other party. VoiceStream shall advise
Omnipoint, promptly after it receives notice thereof, of the time when the Form
S-4 has become effective or any supplement or amendment has been filed, the
issuance of any stop order, the suspension of the qualification of VoiceStream
Common Stock issuable in connection with the Transactions for offering or sale
in any jurisdiction, or any request by the SEC for amendment of the Proxy
Statement/Prospectus or the Form S-4 or comments thereon and responses thereto
or requests by the SEC for additional information.
SECTION 8.3 Public Announcements. So long as this Agreement is in
effect, Omnipoint and VoiceStream will consult with each other before issuing
any press release or making any public statement with respect to the
Transactions and except as may be required by applicable law or any listing
agreement with any national securities exchange, will not issue any such press
release or make any such public statement without the prior consent of the other
party, which consent shall not be unreasonably withheld or delayed.
Notwithstanding the foregoing, any such press release or public statement as may
be required by applicable law or any listing agreement with any national
securities exchange or NASDAQ may be issued without such consent, if the party
making such release or statement has used its reasonable efforts to consult with
the other party.
SECTION 8.4 Further Assurances. At and after the Effective Time, the
officers and directors of Holding Company will be authorized to execute and
deliver, in the name and on behalf of Omnipoint or VoiceStream, any deeds, bills
of sale, assignments or assurances and to take and do, in the name and on behalf
of Omnipoint or VoiceStream, any other actions and things to vest, perfect or
confirm of record in Holding Company any and all right, title and interest in,
to and under any of the rights, properties or assets of Omnipoint or VoiceStream
acquired or to be acquired by Holding Company as a result of, or in connection
with, the Transactions.
SECTION 8.5 Notices of Certain Events. Each of Omnipoint and VoiceStream
shall promptly notify the other of:
(a) any notice or other communication from any Person alleging
that the consent of such Person is or may be required in connection with the
Transactions;
(b) any notice or other communication from any Governmental Body
in connection with the Transactions;
(c) the occurrence, or non-occurrence, of any event the
occurrence, or non-occurrence, of which would be reasonably expected to cause
any representation or warranty made by it and contained herein to be untrue or
inaccurate in any material respect at any time during the period commencing on
the date hereof and ending at the Effective Time; provided,
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however, that the delivery of any notice pursuant to this Section 8.5 shall not
limit or otherwise affect the remedies available hereunder to the party
receiving such notice;
(d) any failure of such party to comply with or satisfy any
covenant, condition or agreement to be complied with or satisfied by it
hereunder; provided, however, that the delivery of any notice pursuant to this
Section 8.5 shall not limit or otherwise affect the remedies available hereunder
to the party receiving such notice;
(e) any actions, suits, claims, investigations or proceedings
commenced or, to its knowledge threatened against such party which, if pending
on the date of this Agreement, would have been required to have been disclosed
pursuant to Section 4.13, in the case of Omnipoint, or Section 5.13, in the case
of VoiceStream, or which relate to the consummation of the Transactions; and
(f) any event, condition or state of facts which could have a
Material Adverse Effect on such party.
SECTION 8.6 Tax-free Treatment. Prior to the Effective Time, each party
shall use its best efforts to cause (i) the VoiceStream Merger to qualify as a
reorganization described in Section 368(a) of the Code and/or as an exchange
described in Section 351 of the Code and (ii) the Omnipoint Merger, taken
together with the VoiceStream Merger and the Hutchison Transaction, to qualify
as an exchange described in Section 351 of the Code, to obtain the opinions of
counsel referred to in Sections 9.2(b), 9.2(c) and 9.3(b), including the
execution of the letters of representation referred to therein, and will not
take any action reasonably likely to cause the Mergers not to so qualify.
SECTION 8.7 Affiliates. Within 30 days following the date of this
Agreement, Omnipoint shall deliver to VoiceStream a letter identifying all known
Persons who may be deemed "affiliates" of Omnipoint under Rule 145 of the 1933
Act (a "Omnipoint Rule 145 Affiliate"). Omnipoint shall use its best efforts to
obtain a written agreement from each Omnipoint Rule 145 Affiliate as soon as
practicable and, in any event, at least 30 days prior to the Effective Time,
substantially in the form of Exhibit B hereto. Holding Company shall be entitled
to place legends as specified in such Omnipoint Rule 145 Affiliate letters on
the certificates evidencing any Holding Company Common Stock to be received by
such Affiliates pursuant to the terms of this Agreement, and to issue
appropriate stop transfer instructions to the transfer agent for the Holding
Company Common Stock, consistent with the terms of such Affiliate letters.
SECTION 8.8 Stockholders' Meeting.
(a) Each of Omnipoint and VoiceStream shall cause a meeting of
its respective stockholders (the "Omnipoint Stockholders' Meeting" and the
"VoiceStream Stockholders' Meeting" respectively) to be duly called and held as
soon as reasonably practicable for the purpose of voting on the approval and
adoption of (i) in the case of VoiceStream, this
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Agreement, the VoiceStream Merger Agreement and the VoiceStream Merger and (ii)
in the case of Omnipoint, this Agreement, the Omnipoint Merger Agreement and the
Omnipoint Merger. In connection with each party's respective meeting, each party
will, (i) subject to Section 8.8(b), use its reasonable best efforts to obtain
such approvals from its respective stockholders and (ii) otherwise comply with
all legal requirements applicable to such meeting.
(b) Except as provided below, the Board of Directors of each
party shall unanimously recommend approval and adoption of this Agreement and
the Transactions by its respective stockholders and VoiceStream and Omnipoint
shall each take all lawful action to solicit such approval, including timely
mailing of the Proxy Statement/Prospectus. Omnipoint shall be permitted to
withdraw, or modify in a manner adverse to VoiceStream, its recommendation to
its stockholders, but only if (i) the Board of Directors of Omnipoint determines
in good faith by majority vote, on the basis of the advice of Omnipoint's
outside counsel that it must take such action in order for the Board of
Directors to comply with its fiduciary duties under applicable Delaware Law,
(ii) Omnipoint shall have delivered to VoiceStream three business days' prior
written notice advising Voicestream that it intends to take such action and
Omnipoint's Board of Directors has considered any proposed changes to this
Agreement (if any) proposed by VoiceStream and (iii) Omnipoint has fully and
completely complied with Sections 6.2 and 8.5. Unless this Agreement is
previously terminated in accordance with Article 10, each party shall submit
this Agreement to its stockholders at the meeting required to be called and held
pursuant to Section 8.8(a), even if such party's Board of Directors determines
at any time after the date hereof that it is no longer advisable or recommends
that its stockholders reject it.
SECTION 8.9 Conduct of Business by Holding Company and the Merger
Subsidiaries Pending the Mergers. Prior to the Effective Time, the parties shall
cause Holding Company and the Merger Subsidiaries to (a) perform their
respective obligations under this Agreement and the Merger Agreements in
accordance with the terms hereof and thereof and take all other actions
necessary or appropriate for the consummation of the Transactions, (b) not incur
directly or indirectly any liabilities or obligations except those incurred in
connection with the consummation of this Agreement, the Merger Agreements and
the Transactions (c) not engage directly or indirectly in any business or
activities of any type or kind whatsoever and not enter into any agreements or
arrangements with any person or entity, or be subject to or be bound by any
obligation or undertaking which is not contemplated by this Agreement or the
Merger Agreements and (d) not create, grant or suffer to exist any Lien upon
their respective properties or assets which would attach to any properties or
assets of VoiceStream or Omnipoint after the Effective Time.
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ARTICLE 9
CONDITIONS TO THE MERGER
SECTION 9.1 Conditions to the Obligations of Each Party. The obligations
of Omnipoint, Holding Company and VoiceStream to consummate the Transactions are
subject to the satisfaction of the following conditions:
(a) the Omnipoint Stockholders' Approval shall have been
obtained;
(b) any applicable waiting period under the HSR Act relating to
the Transactions shall have expired or been terminated;
(c) no provision of any applicable law or regulation and no
judgment, injunction, order or decree shall prohibit the consummation of the
Transactions;
(d) the shares of Holding Company Common Stock to be issued in
the Transactions shall have been approved for listing on the NASDAQ, subject to
official notice of issuance;
(e) all Governmental Consents shall have been obtained and be in
effect, and be subject to no limitations, conditions, restrictions or
obligations, except for such consents the failure to obtain would not, and such
limitations, conditions, restrictions or obligation as would not, individually
or in the aggregate, be reasonably expected to have a Omnipoint Material Adverse
Effect or VoiceStream Material Adverse Effect;
(f) no court, arbitrator or Governmental Body shall have issued
any order, and there shall not be any statute, rule or regulation restraining or
prohibiting the effective operation of the business of VoiceStream and the
VoiceStream Subsidiaries or Omnipoint and the Omnipoint Subsidiaries after the
Effective Time that would be reasonably expected to have a VoiceStream Material
Adverse Effect or Omnipoint Material Averse Effect (after giving effect to the
Transactions);
(g) the CIRI Transactions shall have been consummated prior to
the Effective Time;
(h) the VoiceStream Stockholders' Approval shall have been
obtained;
(i) the Form S-4 shall have become effective and shall be
effective at the Effective Time, and no stop order suspending effectiveness of
the Form S-4 shall have been issued, no action, suit, proceeding or
investigation by the SEC to suspend the effectiveness thereof shall have been
initiated and be continuing, or, to the knowledge of VoiceStream or Omnipoint,
threatened, and all necessary approvals under state securities laws relating to
the
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issuance or trading of Holding Company Common Stock to be issued to Omnipoint
stockholders in connection with the Transactions shall have been received;
(j) the Hutchison Transaction shall be consummated on, or prior
to, the Effective Time; and
(k) the FCC Consent shall have become a Final Order and shall not
contain any conditions with respect to Omnipoint or VoiceStream, which
conditions would have a VoiceStream Material Adverse Effect or Omnipoint
Material Adverse Effect.
SECTION 9.2 Conditions to the Obligations of VoiceStream. The
obligations of VoiceStream to consummate the Transactions are subject to the
satisfaction of the following further conditions:
(a) (i) Omnipoint shall have performed in all material respects
all of its obligations hereunder required to be performed by it at or prior to
the Effective Time, (ii) the representations and warranties of Omnipoint
contained in this Agreement and in any certificate or other writing delivered by
Omnipoint pursuant hereto, disregarding all qualifications and exceptions
contained therein relating to materiality or a Omnipoint Material Adverse Effect
or any similar standard or qualification, shall be true and correct at and as of
the Effective Time, as if made at and as of such time (other than
representations or warranties that address matters only as of a certain date
which shall be true and correct as of such date), with only such exceptions as,
individually or in the aggregate, have not had and would not be reasonably
expected to have a Omnipoint Material Adverse Effect, and (iii) VoiceStream
shall have received a certificate signed by an executive officer of Omnipoint to
the foregoing effect;
(b) VoiceStream shall have received an opinion of Jones Day, in
form and substance reasonably satisfactory to VoiceStream on the basis of
certain facts, representations and assumptions set forth in the opinion, dated
the Closing Date, to the effect that (i) the VoiceStream Merger will be treated
for federal income tax purposes as a reorganization described in Section 368(a)
of the Code, and (ii) each of VoiceStream, Holding Company and, in the case of a
reorganization described in Section 368(a)(2)(E) of the Code, Merger Sub A, will
be a party to the reorganization within the meaning of Section 368(b) of the
Code; or to the effect that the VoiceStream Merger will be treated as a transfer
of property by the VoiceStream stockholders, other than holders of Dissenting
Shares, to Holding Company described in Section 351(a) of the Code. In rendering
such opinion, such counsel shall be entitled to rely upon certain documentation
including representations of officers of VoiceStream and Holding Company in
substantially the same form as Exhibits C and D;
(c) VoiceStream shall have received an opinion of Jones Day, in
form and substance reasonably satisfactory to VoiceStream on the basis of
certain facts, representations and assumptions set forth in the opinion, dated
the Closing Date, to the effect that the Transactions should not cause the
spinoff of VoiceStream on May 3, 1999 (the "Spinoff") to fail to be a
transaction described in Section 355(a) of the Code with respect to the
shareholders of
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Western. In rendering such opinion, such counsel shall be entitled to rely upon
certain documentation, including representations of officers of VoiceStream;
(d) no Default Event shall occur, or shall reasonably be expected
to occur, as a result of the consummation of the Transactions;
(e) VoiceStream shall have received an opinion of regulatory
counsel of Omnipoint, dated the Effective Time, containing the items listed on
Exhibit E;
(f) VoiceStream shall have received an opinion of corporate
counsel to Omnipoint in form and substance reasonably acceptable to VoiceStream;
(g) no more than 10% of the shares of Omnipoint Common Stock
outstanding immediately prior to the Effective Time shall be Dissenting Shares;
and
(h) no more than 10% of the shares of VoiceStream Common Stock
outstanding immediately prior to the Effective Time shall be Dissenting Shares.
SECTION 9.3 Conditions to the Obligations of Omnipoint. The obligations
of Omnipoint to consummate the Transactions are subject to the satisfaction of
the following further conditions:
(a) VoiceStream shall have performed in all material respects all
of its obligations hereunder required to be performed by it at or prior to the
Effective Time;
(b) Omnipoint shall have received the opinion of Piper Marbury,
based upon reasonable requested representation letters and dated the Closing
Date, to the effect that (i) the Omnipoint Merger will be treated as a transfer
of property to Holding Company by the holders of Omnipoint Common Stock
described in Section 351(a) or Section 351(b) of the Code and (ii) no gain or
loss will be recognized for federal income tax purposes by Omnipoint in
connection with the Transactions. In rendering such opinion, such counsel shall
be entitled to rely upon certain documentation including representations of
officers of Omnipoint, VoiceStream and Holding Company and of 5% or greater
shareholders of Omnipoint and VoiceStream, in substantially the same form as
Exhibits F-1 through F-5.
(c) the representations and warranties of VoiceStream contained
in this Agreement and in any certificate or other writing delivered by
VoiceStream pursuant hereto, disregarding all qualifications and exceptions
contained therein relating to materiality or VoiceStream Material Adverse Effect
or any similar standard or qualification shall be true at and as of the
Effective Time as if made at and as of such time (other than representations and
warranties that address matters only as of a certain date, which shall be true
as of such date), with only such exceptions as, individually or in the
aggregate, have not had and would not be reasonably expected to have a
VoiceStream Material Adverse Effect;
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(d) Omnipoint shall have received an opinion of regulatory
counsel to VoiceStream, dated the Effective Time, containing the items listed on
Exhibit G;
(e) Omnipoint shall have received a certificate signed by an
executive officer of VoiceStream certifying as to the matters set forth in (a)
and (c);
(f) Omnipoint shall have received an opinion of corporate counsel
to VoiceStream in form and substance reasonably acceptable to Omnipoint; and
(g) VoiceStream shall not have agreed to any modification of the
exchange rights agreement with the Cook Entities which would increase the number
of shares of Holding Company Common Stock issuable to the Cook Entities upon
exercise of their exchange rights which they received in the CIRI Transactions.
Notwithstanding anything contained to the contrary in Section
9.3(c) or anywhere else in this Agreement, VoiceStream may enter into any
Subsequent Transaction, and neither any changes of any representation or
warranty of VoiceStream contained in this Agreement as a result of any
Subsequent Transaction, nor any amendments or exceptions to the VoiceStream
Disclosure Schedule resulting from or related to any Subsequent Transaction,
shall result in a failure of the conditions set forth in Section 9.3(c);
provided, in each case, that any such Subsequent Transaction would not, or would
reasonably not be expected to prevent, impair or materially delay the ability of
Omnipoint or VoiceStream to consummate the Transactions.
ARTICLE 10
TERMINATION
SECTION 10.1 Termination. This Agreement may be terminated and the
Transactions may be abandoned at any time prior to the Effective Time
(notwithstanding any approval of this Agreement by the stockholders of Omnipoint
or of VoiceStream):
(a) by mutual written agreement of Omnipoint and VoiceStream;
(b) by either Omnipoint or VoiceStream, if:
(i) the Transactions have not been consummated on or
before March 31, 2000 (the "End Date"); provided that if (A)(x) the
Effective Time has not occurred by March 31, 2000 by reason of the
non-satisfaction of any of the conditions set forth in Sections 9.1(a),
9.1(b), 9.1(c), 9.1(d), 9.1(e), 9.1(f), 9.1(g), 9.1(i), 9.1(j) and
9.1(k) and (y) all other conditions in Article 9 have theretofore been
satisfied or waived or are then capable of being promptly satisfied
then, either party may, upon written notice to the other party given on
or before March 31, 2000, extend the End Date to June 30, 2000; provided
further that the right to terminate this Agreement pursuant to this
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Section 10.1(b)(i) shall not be available to any party whose breach of
any provision of this Agreement results in the failure of the
Transactions to be consummated by the End Date; or
(ii) (A) there shall be any law or regulation that makes
consummation of the Transactions illegal or otherwise prohibited or (B)
any judgment, injunction, order or decree of any court or other
Governmental Body having competent jurisdiction enjoining Omnipoint and
VoiceStream from consummating the Transactions is entered and such
judgment, injunction, order or decree shall have become final and
non-appealable;
(c) by VoiceStream, if:
(i) the Board of Directors of Omnipoint shall have failed
to recommend or withdrawn, or modified in a manner adverse to
VoiceStream, its approval or recommendation of this Agreement and the
Transactions, or shall have failed to call the Omnipoint Stockholders'
Meeting in accordance with Section 8.8(a) (or the Board of Directors of
Omnipoint resolves to do any of the foregoing);
(ii) Omnipoint shall have willfully and materially
breached any of its obligations under Sections 8.8(b) or 6.2; or
(iii) Omnipoint Stockholders' Approval shall not have been
obtained at the Omnipoint Stockholders' Meeting (or any adjournment or
postponement thereof);
(iv) a breach of any representation, warranty, covenant or
agreement on the part of Omnipoint set forth in this Agreement shall
have occurred that would cause the condition set forth in Section 9.2(a)
not to be satisfied, and such condition shall be incapable of being
satisfied by the End Date; or
(d) by Omnipoint, if:
(i) the Board of Directors of VoiceStream shall have
failed to recommend or withdrawn, or modified in a manner adverse to
VoiceStream, its approval or recommendation of this Agreement and the
Transactions, or shall have failed to call the VoiceStream Stockholders'
Meeting in accordance with Section 8.8(a) (or the Board of Directors of
VoiceStream resolves to do any of the foregoing);
(ii) VoiceStream shall have willfully and materially
breached any of its obligations under Sections 8.8(b);
(iii) VoiceStream Stockholders' Approval shall not have
been obtained at the VoiceStream Stockholders' Meeting (or any
adjournment or postponement thereof); or
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(iv) a breach of any representation, warranty, covenant or
agreement on the part of VoiceStream set forth in this Agreement shall
have occurred that would cause the condition set forth in Section 9.3(a)
and (c) not to be satisfied, and such condition shall be incapable of
being satisfied by the End Date.
The party desiring to terminate this Agreement pursuant to this
Section 10.1 (other than pursuant to Section 10.1(a)) shall give notice of such
termination to the other party.
SECTION 10.2 Effect of Termination. If this Agreement is terminated
pursuant to Section 10.1, this Agreement shall become void and of no effect
without liability, except as set forth in Section 10.3, of any party (or any
stockholder, director, officer, employee, agent, consultant or representative of
such party) to the other parties hereto, except that the agreements contained in
this Section 10.2 and in the Confidentiality Agreement shall survive the
termination hereof and (b) no such termination shall relieve any party of any
liability or damages resulting from any breach by such party of this Agreement.
SECTION 10.3 Fees and Expenses.
(a) Except as otherwise provided in this Section 10.3 or Section
8.1(c), all costs and expenses incurred in connection with this Agreement shall
be paid by the party incurring such cost or expense whether or not the
Transactions are consummated; provided that Omnipoint and VoiceStream shall
share equally all fees and expenses, other than attorneys' and accounting fees
and expenses, incurred in relation to the printing and filing of the Proxy
Statement/Prospectus and except as set forth on Section 8.1(c).
(b) If this Agreement is terminated pursuant to Section
10.1(c)(i) or Section 10.1(c)(ii), Omnipoint shall pay to VoiceStream a
termination fee of $70,000,000 in cash (the "Termination Fee").
(c) If (A) this Agreement is terminated pursuant to Section
10.1(c)(iii), (B) after the date hereof and prior to the Omnipoint Stockholders'
Meeting, an Acquisition Proposal is made or continued or renewed by any Person
and not withdrawn prior to such meeting and (C) within one year of the Omnipoint
Stockholders' Meeting, either (1) Omnipoint or any Omnipoint Subsidiary enters
into an agreement with such Person with respect to an Acquisition Proposal which
provides for (x) transfer or issuance of securities representing more than 50%
of the equity or voting interests in Omnipoint, (y) a merger, consolidation,
recapitalization or another transaction resulting in the issuance of cash or
securities of such Person (other than a reincorporation or a holding company
merger that results in the Omnipoint stockholders owning all of the equity
interests in the surviving corporation) to Omnipoint stockholders in exchange
for more than 50% of the equity or voting interests in Omnipoint, or (z)
transfer of assets, securities or ownership interests representing more than 50%
of the consolidated assets or earning power of the Omnipoint Group, or (2) any
Person or Group commences a tender offer that results in the acquisition by the
Person making the tender offer of
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a majority of the Omnipoint Common Stock, then Omnipoint shall pay to
VoiceStream the Termination Fee.
(d) Any payment of the Termination Fee pursuant to this Section
10.3 shall be made within one Business Day after termination of this Agreement
except that any payment of the Termination Fee pursuant to Section 10.3(c) shall
be paid within one Business Day after it becomes payable. Any payment of the
Termination Fee shall be made by wire transfer of immediately available funds.
If one party fails to pay to the other promptly any fee or expense due hereunder
(including the Termination Fee), the defaulting party shall pay the costs and
expenses (including legal fees and expenses) in connection with any action,
including the prosecution of any lawsuit or other legal action, taken to collect
payment, together with interest on the amount of any unpaid fee at the publicly
announced prime rate of The Bank of New York in New York City from the date such
fee was required to be paid to the date it is paid.
ARTICLE 11
MISCELLANEOUS
SECTION 11.1 Notices. All notices, requests and other communications to
any party hereunder shall be in writing (including facsimile transmission) and
shall be given,
if to VoiceStream or Holding Company, to:
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
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if to Omnipoint, to:
Omnipoint Corporation
Three Bethesda Metro Center
Suite 400
Bethesda, Maryland 20814
Attention: Doug G. Smith
Fax: (301) 951-3591
with copies 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
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.
SECTION 11.2 Reliance on Representations. Notwithstanding any
investigation, knowledge or review made at any time by or on behalf of any party
hereto, the parties acknowledge and agree that all representations and
warranties contained in this Agreement, or in the Exhibits or in any of the
documents, certification or agreements delivered in connection therewith are
being relied upon as a material inducement to enter into this Agreement and the
Transactions.
SECTION 11.3 Survival of Representations and Warranties. The
representations and warranties contained herein and in any certificate or other
writing delivered pursuant hereto shall not survive the Effective Time or,
except as provided under Section 10.2 of this Agreement, the termination of this
Agreement.
SECTION 11.4 Amendments; No Waivers.
(a) Subject to applicable law, any provision of this Agreement
may be amended or waived prior to the Effective Time if, 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; provided that, after the adoption of this
Agreement by the stockholders of Omnipoint, no such amendment or waiver
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shall be made or given that requires the approval of the stockholders of
Omnipoint unless the required approval is obtained.
(b) 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.
SECTION 11.5 Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; provided that no party may assign, delegate
or otherwise transfer any of its rights or obligations under this Agreement
without the consent of each other party hereto.
SECTION 11.6 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.
SECTION 11.7 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 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 11.1 shall be deemed effective service of
process on such party.
SECTION 11.8 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.
SECTION 11.9 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.
75
<PAGE> 77
SECTION 11.10 Entire Agreement; No Third Party Beneficiaries. This
Agreement, together with the Confidentiality 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 the subject matter of this
Agreement. Except as set forth in Sections 7.2 and 7.4 above, this Agreement is
not intended to confer upon any Person other than the parties hereto any rights
or remedies.
SECTION 11.11 Captions. The captions herein are included for convenience
of reference only and shall be ignored in the construction or interpretation
hereof.
SECTION 11.12 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 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 be consummated as originally contemplated to the
fullest extent possible.
SECTION 11.13 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.
SECTION 11.14 Schedules. Each of Omnipoint and VoiceStream has set forth
information in its respective Disclosure Schedule in a section thereof that
corresponds to the section of this Agreement to which it relates. A matter set
forth in one section of the Disclosure Schedules must be set forth in any other
relevant section of the Disclosure Schedule irrespective of its relevance to the
latter section of the Disclosure Schedule or section of the Agreement being
apparent on the face of the information disclosed in the Disclosure Schedule.
The fact that any item of information is disclosed in a Disclosure Schedule to
this Agreement shall not be construed to mean that such information is required
to be disclosed by this Agreement. Such information and the dollar thresholds
set forth herein shall not be used as a basis for interpreting the terms
"material" or "Material Adverse Effect" or other similar terms in this Agreement
except as otherwise expressly set forth in such Disclosure Schedules.
76
<PAGE> 78
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
VOICESTREAM WIRELESS CORPORATION
By:
-------------------------------
Name:
Title:
OMNIPOINT CORPORATION
By:
-------------------------------
Name:
Title:
VOICESTREAM WIRELESS HOLDING
CORPORATION
By:
-------------------------------
Name:
Title:
77
<PAGE> 79
TABLE OF CONTENTS
<TABLE>
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<S> <C>
ARTICLE 1 -- DEFINITIONS.....................................................................1
SECTION 1.1 Definitions..................................................1
ARTICLE 2 -- FORMATION OF HOLDING COMPANY AND SUBSIDIARIES..................................12
SECTION 2.1 Organization of Holding Company.............................12
SECTION 2.2 Directors and Officers of Holding Company...................13
SECTION 2.3 Organization of Merger Subsidiaries.........................13
SECTION 2.4 Actions of Directors and Officers...........................13
SECTION 2.5 Actions of Holding Company..................................13
ARTICLE 2A -- THE MERGERS; CLOSING..........................................................14
SECTION 2.1A The Mergers.................................................14
SECTION 2.2A Directors...................................................15
SECTION 2.3A Certificate of Incorporation and Bylaws.....................15
SECTION 2.4A Officers....................................................15
ARTICLE 3 -- EFFECT OF THE MERGERS ON SECURITIES OF VOICESTREAM,
OMNIPOINT AND THE MERGER SUBSIDIARIES........................................15
SECTION 3.1 Conversion of Merger Subsidiaries Stock.....................15
SECTION 3.2 Cancellation of Holding Company Capital Stock...............16
SECTION 3.3 Conversion of Common Stock..................................16
SECTION 3.4 Surrender and Payment.......................................19
SECTION 3.5 Dissenting Shares...........................................21
SECTION 3.6 Options, Warrants and Preferred Stock.......................21
SECTION 3.7 Fractional Shares...........................................23
SECTION 3.8 Withholding Rights..........................................24
SECTION 3.9 Lost Certificates...........................................24
ARTICLE 4 -- REPRESENTATIONS AND WARRANTIES OF OMNIPOINT....................................24
SECTION 4.1 Corporate Existence and Power...............................24
SECTION 4.2 Corporate Authorization.....................................24
SECTION 4.3 Governmental Authorization..................................25
SECTION 4.4 FCC Matters.................................................25
SECTION 4.5 Non-contravention...........................................26
SECTION 4.6 Capitalization..............................................27
SECTION 4.7 Subsidiaries; Investments...................................28
SECTION 4.8 SEC Filings.................................................29
SECTION 4.9 Financial Statements........................................29
SECTION 4.10 Absence of Certain Changes..................................30
SECTION 4.11 No Undisclosed Material Liabilities.........................30
</TABLE>
i
<PAGE> 80
<TABLE>
<CAPTION>
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SECTION 4.12 Compliance with Laws and Court Orders.......................30
SECTION 4.13 Litigation..................................................30
SECTION 4.14 Finders' Fees...............................................31
SECTION 4.15 Opinion of Financial Advisor................................31
SECTION 4.16 Taxes.......................................................31
SECTION 4.17 Tax Opinions................................................32
SECTION 4.18 Employee Benefit Plans and Labor Matters....................32
SECTION 4.19 Environmental Matters.......................................34
SECTION 4.20 Intellectual Property.......................................34
SECTION 4.21 Contracts...................................................35
SECTION 4.22 Significant Omnipoint Employees.............................35
SECTION 4.23 Employment Matters..........................................36
SECTION 4.24 Labor.......................................................36
SECTION 4.25 Vote Required...............................................37
SECTION 4.26 Antitakeover Statutes and Charter Provisions................37
SECTION 4.27 Insurance...................................................37
SECTION 4.28 Bank Accounts...............................................37
SECTION 4.29 Transactions with Affiliates................................37
ARTICLE 5 -- REPRESENTATIONS AND WARRANTIES OF VOICESTREAM
AND HOLDING COMPANY..........................................................38
SECTION 5.1 Corporate Existence and Power...............................38
SECTION 5.2 Corporate Authorization.....................................38
SECTION 5.3 Governmental Authorization..................................39
SECTION 5.4 FCC Matters.................................................39
SECTION 5.5 Non-contravention...........................................40
SECTION 5.6 Capitalization..............................................41
SECTION 5.7 Subsidiaries; Investments...................................41
SECTION 5.8 SEC Filings.................................................42
SECTION 5.9 Financial Statements........................................43
SECTION 5.10 Absence of Certain Changes..................................43
SECTION 5.11 No Undisclosed Material Liabilities.........................43
SECTION 5.12 Compliance with Laws and Court Orders.......................44
SECTION 5.13 Litigation..................................................44
SECTION 5.14 Finders' Fees...............................................44
SECTION 5.15 Opinion of Financial Advisor................................44
SECTION 5.16 Taxes.......................................................45
SECTION 5.17 Tax Opinions................................................45
SECTION 5.18 Employee Benefit Plans and Labor Matters....................46
SECTION 5.19 Environmental Matters.......................................47
SECTION 5.20 Intellectual Property.......................................48
SECTION 5.21 Contracts...................................................48
</TABLE>
ii
<PAGE> 81
<TABLE>
<CAPTION>
Page
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<S> <C>
SECTION 5.22 VoiceStream Employees.......................................49
SECTION 5.23 Employment Matters..........................................50
SECTION 5.24 Labor.......................................................50
SECTION 5.26 Vote Required...............................................50
SECTION 5.27 Insurance...................................................50
SECTION 5.28 Bank Accounts...............................................51
SECTION 5.29 Transactions with Affiliates................................51
SECTION 5.30 Not an Interested Stockholder...............................51
SECTION 5.31 Representations with Respect to Holding Company.............51
ARTICLE 6 -- COVENANTS OF OMNIPOINT.........................................................52
SECTION 6.1 Omnipoint Interim Operations................................52
SECTION 6.2 No Solicitation.............................................55
SECTION 6.3 Access to Information.......................................56
ARTICLE 7 -- COVENANTS OF VOICESTREAM AND HOLDING COMPANY...................................57
SECTION 7.1 VoiceStream Interim Operations..............................57
SECTION 7.3 Listing of Stock............................................59
SECTION 7.4 Holding Company Board of Directors..........................59
SECTION 7.5 Employee Matters............................................59
SECTION 7.6 Access to Information.......................................60
SECTION 7.7 Covenants with Respect to Holding Company...................60
SECTION 7.8 Registration Rights.........................................61
ARTICLE 8 -- COVENANTS OF VOICESTREAM AND OMNIPOINT.........................................61
SECTION 8.1 Best Efforts................................................61
SECTION 8.2 Registration Statement and Proxy Statement..................63
SECTION 8.3 Public Announcements........................................64
SECTION 8.4 Further Assurances..........................................65
SECTION 8.5 Notices of Certain Events...................................65
SECTION 8.6 Tax-free Treatment..........................................65
SECTION 8.7 Affiliates..................................................66
SECTION 8.8 Stockholders' Meeting.......................................66
SECTION 8.9 Conduct of Business by Holding Company
and the Merger Subsidiaries Pending the Mergers.............67
ARTICLE 9 -- CONDITIONS TO THE MERGER.......................................................67
SECTION 9.1 Conditions to the Obligations of Each Party.................67
SECTION 9.2 Conditions to the Obligations of VoiceStream................68
SECTION 9.3 Conditions to the Obligations of Omnipoint..................69
ARTICLE 10 -- TERMINATION...................................................................71
</TABLE>
iii
<PAGE> 82
<TABLE>
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<S> <C>
SECTION 10.1 Termination.................................................71
SECTION 10.2 Effect of Termination.......................................72
SECTION 10.3 Fees and Expenses...........................................72
ARTICLE 11 -- MISCELLANEOUS.................................................................74
SECTION 11.1 Notices.....................................................74
SECTION 11.2 Reliance on Representations.................................75
SECTION 11.3 Survival of Representations and Warranties..................75
SECTION 11.4 Amendments; No Waivers......................................75
SECTION 11.5 Successors and Assigns......................................75
SECTION 11.6 Governing Law...............................................75
SECTION 11.7 Jurisdiction................................................75
SECTION 11.8 WAIVER OF JURY TRIAL........................................76
SECTION 11.9 Counterparts; Effectiveness.................................76
SECTION 11.10 Entire Agreement; No Third Party Beneficiaries..............76
SECTION 11.11 Captions....................................................76
SECTION 11.12 Severability................................................76
SECTION 11.13 Specific Performance........................................77
SECTION 11.14 Schedules...................................................77
</TABLE>
iv
<PAGE> 83
EXHIBITS AND SCHEDULES
<TABLE>
<S> <C>
Exhibit A-1 Form of Purchase Agreement between Omnipoint and the Cook Entity
Exhibit A-2 Form of Purchase Agreement between Omnipoint and the Cook Entity
Exhibit B Form of Omnipoint Rule 145 Affiliate Agreement
Exhibit C Form of Officer's Certificate of VoiceStream
Exhibit D Form of Officer's Certificate of Holding Company
Exhibit E Form of Opinion Letter of Regulatory Counsel to VoiceStream
Exhibit F-1 Form of Officer's Certificate of Omnipoint
Exhibit F-2 Form of Officer's Certificate of VoiceStream
Exhibit F-3 Form of Holding Company Officer's Certificate
Exhibit F-4 Form of 5% Shareholders Certificate
Exhibit F-5 Form of 5% Partnership-Shareholders Certificate
Exhibit G Form of Opinion Letter of Regulatory Counsel to Omnipoint
</TABLE>
Omnipoint Disclosure Schedule
VoiceStream Disclosure Schedule
v
<PAGE> 1
EXHIBIT 2.2
================================================================================
PURCHASE AGREEMENT
BETWEEN
OMNIPOINT CORPORATION
(SELLER)
AND
COOK INLET/VS GSM II PCS, LLC
(PURCHASER)
DATED AS OF JUNE 23, 1999
================================================================================
<PAGE> 2
PURCHASE AGREEMENT, dated as of June 23, 1999, by and between Omnipoint
Corporation, a Delaware corporation, on its own behalf and on behalf of each of
its wholly owned Subsidiaries (hereinafter collectively referred to as
"Seller"), and Cook Inlet/VS GSM II PCS, LLC, a Delaware limited liability
company ("Purchaser").
WHEREAS, Seller wishes to sell, assign and transfer to Purchaser certain
of Seller's licenses, equipment, transmission equipment, properties, interests,
and other rights owned by Seller in exchange for membership interests in
Purchaser, upon the terms and subject to the conditions set forth in this
Agreement; and
WHEREAS, concurrently herewith Seller and VoiceStream Wireless
Corporation ("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, will be merged with and into each of Seller and
VoiceStream; and
WHEREAS, the consummation of the closing under the Reorganization
Agreement is conditioned upon the consummation of the Closing under this
Agreement, and the consummation of the Closing under this Agreement is
conditioned upon the satisfaction or waiver of all conditions set forth in
Article 9 of the Reorganization Agreement.
NOW, THEREFORE, in consideration of the premises and the respective
agreements herein set forth, the parties hereto agree as follows:
ARTICLE 1
Defined Terms
1.1 (a) Defined Terms. The following terms, as used herein, have the
following meanings:
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under common control with
such Person provided that, for purposes of this definition, "control"
(including, with correlative meanings, the terms "controlled by" and "under
common control with"), as used with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities or by contract or otherwise.
"Assets" means all of the Licenses, permits and franchises
(governmental or otherwise) (other than the FCC Licenses), fixed assets,
equipment, Transmission Equipment, assets, properties, interests, maintenance
and/or service agreements, business,
<PAGE> 3
good will, claims and other rights of Seller of every kind and nature
whatsoever, tangible or intangible, vested or unvested, contingent or otherwise,
real, personal or mixed, and wherever located, whether or not reflected on the
books and records of Seller and whether or not described herein or in any of the
schedules delivered or to be delivered to Purchaser hereunder, including, but
not limited to, Tangible Personal Property, rights under Contracts (including
security deposits thereunder), Receivables, Inventories, Intellectual Property
Rights, investments, Warranties, Records, prepaid expenses and advances, but in
any case excluding the Excluded Assets.
"Assumed Liabilities" shall have the meaning specified in
Section 3.1 hereof.
"Assumption Agreement" shall have the meaning specified in
Section 3.3 hereof.
"BTA" means Basic Trading Area as designated by the FCC.
"Bill of Sale" shall have the meaning specified in Section 3.4
hereof.
"Business Day" means a day other than a Saturday, Sunday or
other day on which commercial banks in New York City, Seattle, Washington or
Anchorage, Alaska are authorized or required by law to close.
"Communications Act" means the Communications Act of 1934 and
the Telecommunications Act of 1996 (together with the rules, regulations and
published decisions of the FCC).
"Contracts" means leases (whether for real or personal
property), rental agreements, sales and purchase orders, acknowledgments,
agreements, permits, maintenance and service contracts, commitments and any and
all other contracts or binding arrangements, whether written or oral, express or
implied.
"Delaware Law" means the Delaware General Corporation Law.
"Excluded Assets" means all Assets of Seller not being sold,
assigned or transferred to Purchaser pursuant to Section 2.1.
"FAA" means the Federal Aviation Administration and any
successor agency or body.
"FCC" means the Federal Communications Commission and any
successor agency or body.
2
<PAGE> 4
"FCC Applications" means all appropriate applications for FCC
approval, and such other documents as may be required, with respect to the
transfer of the FCC Licenses from Seller to Purchaser contemplated herein.
"FCC Consent" means an order of the FCC, or by the staff of the
FCC acting pursuant to delegated authority, granting its consent to the
applications referred to in Section 8.1(b) of this Agreement required to permit
the consummation of the transactions contemplated by this Agreement.
"FCC Consent Date" means the date on which Public Notice is
given of the FCC Consent pursuant to the Rule s and regulations of the FCC.
"FCC Licenses" means the licenses ("Licenses") issued by the FCC
to provide radio telecommunications services using either 15 MHz or 30 MHz of
spectrum in the 30 MHz band of spectrum in the "C" block (1895- 1910
MHz/1975-1990 MHz) and the 10 MHz band of spectrum in the "F" block (1890- 1895
MHz /1970-1975 MHz) in various BTAs.
"Final Order" means an action or decision that has been granted
by the FCC as to which (i) no request for a stay or similar request is pending,
no stay is in effect, the action or decision has not been vacated, reversed, set
aside, annulled or suspended and any deadline for filing such request that may
be designated by statute or regulation has passed, (ii) no petition for
rehearing or reconsideration or application for review is pending and the time
for the filing of any such petition or application has passed, (iii) the FCC
does not have the action or decision under reconsideration on its own motion and
the time within which it may effect such reconsideration has passed and (iv) no
appeal is pending, including other administrative or judicial review, or in
effect and any deadline for filing any such appeal that may be designated by
statute or rule has passed.
"Governmental Body" means any domestic or foreign national,
state, multi-state or municipal or other local government, any subdivision,
agency, commission or authority thereof, any court, or any quasi-governmental or
private body exercising any regulatory or taxing authority thereunder.
"Governmental Consents" means all authorizations, consents,
approvals, exceptions or other actions by Governmental Bodies required to
consummate the transactions contemplated hereby.
"Group" means "group," as such term is defined in Rule 13d-3 of
the 1934 Act.
"HSR Act" means the Hart-Scott-Rodino Antitrust Improvements Act
of 1976.
3
<PAGE> 5
"Indebtedness" of any Person at any date means: (a) all
indebtedness of such Person for borrowed money or for the deferred purchase
price of property or services (other than current trade liabilities incurred in
the ordinary course of business and payable in accordance with customary
practices), (b) any other indebtedness of such Person which is evidenced by a
note, bond, debenture or similar instrument, (c) all obligations of such Person
under financing leases, (d) all obligations of such Person in respect of
acceptances issued or created for the account of such Person and with respect to
unpaid reimbursement obligations related to letters of credit issued for the
account of such Person and (e) all liabilities secured by any Lien on any
property owned by such Person even though such Person has not assumed or
otherwise become liable for the payment thereof.
"Intellectual Property Rights" means (i) Patents, (ii) Know-how,
(iii) Trademarks, (iv) Trade Names, and (v) shop rights, copyrights, inventions,
service marks and all other intellectual property rights, whether registered or
not.
"Inventories" means all inventory and supplies, including,
without limitation, inventories of materials, spare parts, work-in-process and
finished goods.
"Know-how" means all trade secrets, know-how (including, without
limitation, product know-how and use and application know-how), process, product
designs, specifications, quality control procedures, manufacturing, engineering
and other drawings, computer databases and software, telephone numbers,
facsimile numbers, technology and all other information and intangibles,
including, without limitation, technical information, safety information,
engineering data and design and engineering specifications, research records,
market surveys and all promotional literature, subscriber, customer and supplier
lists and similar data.
"knowledge" means, with respect to any fact, the conscious
awareness of such fact by an executive officer (as defined under the 1933 Act)
of the relevant Person.
"Licenses" means all local, municipal, state and federal
licenses, franchises, permits, certificates, consents, approvals, waivers,
rights and authorizations used or required for use in connection with the
utilization of, or business conducted in, the areas covered by the FCC Licenses
of Seller being transferred to Purchaser hereunder.
"Lien" as to any Person, means any mortgage, lien, pledge,
adverse claim, charge, security interest or other encumbrance (including,
without limitation rights of first refusal, proxy rights and other similar
rights) in or on, or any interest or title of any vendor, lessor, lender or
other secured party to or of such Person under any conditional sale or other
title retention agreement or capital lease with respect to, any property or
asset owned or held by such Person, or the signing or filing of a financing
statement
4
<PAGE> 6
which names such Person as debtor, or the signing of any security agreement
authorizing any other party as the secured party thereunder to file any
financing statement.
"LLC Agreement" means the Limited Liability Company Agreement of
Purchaser, which shall be amended to be in the form set forth in Exhibit A
hereto immediately prior to the Closing.
"1933 Act" means the Securities Act of 1933.
"1934 Act" means the Securities Exchange Act of 1934.
"Order" means and includes any order, writ, injunction, decree,
judgment, award, determination or written direction of any court, arbitrator or
Governmental Body.
"Patents" means patents (including all reissues, divisions,
continuations, continuations in part and extensions thereof), patent
applications and patent disclosures docketed and all other patents rights
(including, without limitation, all claims against third parties for past
infringement not heretofore asserted).
"Permitted Liens" means Easements, rights of way or similar
encumbrances on real property which are in the ordinary course and which do not
materially affect the value, use and insurability of title of such real
property; and Liens securing Indebtedness to the FCC and vendor debt incurred in
connection with the purchase, construction and/or operation of the Schedule II
Assets, provided that such Liens do not secure Indebtedness of any other Person
and provided further that such Indebtedness is stand alone Indebtedness of
Purchaser and not part of a financing for Seller or others, and is listed on
Schedules 3.1(a), 3.1(b) and 3.1(c).
"Person" means an individual, corporation, partnership, limited
liability company, association, trust or other entity or organization, including
a government or political subdivision or an agency or instrumentality thereof.
"Purchaser Material Adverse Effect" means a material adverse
effect on the business, financial condition, prospects, assets or results of
operations of Purchaser taken as a whole, excluding any such effect resulting
from or arising in connection with (A) this Agreement, the transactions
contemplated hereby or the announcement thereof, (B) changes or conditions
generally affecting the industries in which Purchaser operates or (C) changes in
general economic, regulatory or political conditions. For the purposes of
Sections 9.1(c) and 9.1(e), Item A of the previous sentence shall not be
excluded from the definition of Purchaser Material Adverse Effect.
"Receivables" shall mean all accounts receivable, claims, notes
and other amounts receivable by Seller or which may be claimed by Seller as a
result of Seller's
5
<PAGE> 7
business or operations or ownership of the Assets, including, without
limitation, all amounts due from customers, subscribers, vendors and employees,
together with any unpaid financing charges accrued thereon, whether or not
arising in the ordinary course of business, including the proceeds of all of the
foregoing received after the date hereof.
"Records" shall mean originals, or, to the extent originals are
not available, true and complete copies of all business, accounting and
financial records (excluding corporate minute books and records), property
records, contract records, personnel records, correspondence, files, books and
documents of Seller, including, without limitation, sales, marketing and
advertising data and materials, customer and subscriber lists, mailing lists of
any and all types, vendor and customer invoices, billing records, software and
related documentation, artwork, photographs and advertising material, manuals
and teaching aids, and all other records relating to the business of Seller as
presently or heretofore conducted.
"Retained Liabilities" shall have the meaning specified in
Section 3.2 hereof.
"SEC" means the Securities and Exchange Commission and any
successor agency or body.
"Seller Group" means Seller and Seller Subsidiaries.
"Seller Material Adverse Effect" means a material adverse effect
on the business, financial condition, prospects, assets or results of operations
of Seller Group taken as a whole, excluding any such effect resulting from or
arising in connection with (A) this Agreement, the transactions contemplated
hereby or the announcement thereof, (B) changes or conditions generally
affecting the industries in which Seller Group operates or (C) changes in
general economic, regulatory or political conditions. For the purposes of
Sections 9.1(c) and 9.1(e), Item A of the previous sentence shall not be
excluded from the definition of Seller Material Adverse Effect.
"Seller Subsidiary" means a Subsidiary of Seller.
"Subsidiary" means, with respect to any Person, any entity of
which securities or other ownership interests having ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions are at any time directly or indirectly owned by such Person.
"Tangible Personal Property" means all fixed assets, machinery,
equipment, Transmission Equipment, tools, vehicles, furniture, fixtures,
leasehold improvements, office equipment, plant, inventory (including, without
limitation, Inventories) and other tangible personal property owned by Seller.
6
<PAGE> 8
"Trademarks" means trademarks, registrations thereof, pending
applications therefor and such unregistered rights as may exist through use.
"Trade Names" means trade names, band marks, trade dress, brand
names and all other names and slogans embodying Seller's good will for which no
trademark registration has been obtained and for which no application is
pending.
"Transmission Equipment" means all cell site towers, fixtures
and equipment, microwave towers, fixtures and equipment, transmitting or
receiving equipment, antennae, hardware, software, and ancillary and related
equipment and facilities used to provide broadband PCS, whether under the GSM
standard or otherwise, and to deliver voice, data and related electronic signals
between or among cell sites and/or between or among cell sites and the
associated switch constituting the interconnection to the landline public
switched telephone network.
"Warranties" means all warranties in favor of Seller with
respect to any and all equipment, Transmission Equipment or other personal
property heretofore or hereafter sold to Seller and being transferred to
Purchaser hereunder.
Any reference in this Agreement to a statute shall be to such
statute, as amended from time to time, and to the rules and regulations
promulgated thereunder.
(a) Each of the following terms is defined in the Section set
forth opposite such term:
<TABLE>
<S> <C>
Assumed Liabilities 3.1
Assumption Agreement 3.3
Closing Date 2.3.(a)
Closing 2.3(a)
Due Date 7(b)
Purchased Membership Interests 2.1(a)
Purchaser Preamble
Reorganization Agreement Preamble
Schedule I Assets 2.2(a)
Schedule II Assets 2.2(b)
Schedule III Assets 2.2(c)
Schedule 3.1(a) (Schedule I Assumed Liabilities) 3.1
Schedule 3.1(b) (Schedule II Assumed Liabilities) 3.1
Schedule 3.1(c) (Schedule III Assumed Liabilities) 3.1
Seller Preamble
VoiceStream Agreement 7(a)
VoiceStream Wireless Corporation Preamble
</TABLE>
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<PAGE> 9
(b) All defined terms used herein but not otherwise defined
herein shall have the meanings ascribed to them in the Reorganization Agreement.
(c) Unless the context otherwise requires, the terms defined in
this Article 1 or elsewhere in this Agreement shall have the meanings herein
specified for all purposes of this Agreement, applicable to both the singular
and plural forms of any of the terms defined herein. When a reference is made in
this Agreement to a Section, such reference shall be to a Section of this
Agreement unless otherwise indicated. Whenever the words "include," "includes"
or "including" are used in this Agreement, they shall be deemed to be followed
by the words "without limitation." The use of any gender herein shall be deemed
to include the neuter, masculine and feminine genders wherever necessary or
appropriate.
ARTICLE 2
Purchase
2.1 Purchase and Sale. Upon the terms and subject to the conditions set
forth in this Agreement, Seller hereby agrees to sell, assign, transfer, convey
and deliver to Purchaser, and Purchaser hereby agrees to purchase and accept
from Seller all right, title and interest of Seller in and to the following,
free and clear of any and all Liens other than the Permitted Liens, subject to
the Assumed Liabilities described in Section 3.1.
(a) The FCC Licenses listed and/or described on Schedule I (the
"Schedule I Assets");
(b) The FCC Licenses listed and/or described in Schedule II, and
the now owned or hereafter acquired Assets of Seller used in the BTAs covered by
such FCC Licenses, the business conducted by Seller in such BTAs, including the
subscribers of Seller, all as they exist today or in the future (the "Schedule
II Assets");
(c) The FCC Licenses listed and/or described in Schedule III and
the now owned or hereafter acquired Transmission Equipment owned by Seller and
located in the BTAs covered by the FCC Licenses listed on Schedule III, all as
they exist today or at the Closing (the "Schedule III Assets").
2.2 Purchase Price. Upon the terms and subject to the conditions set
forth in this Agreement and in consideration for the sale and/or transfer of the
FCC Licenses and Assets set forth in Section 2.1 and the assumption of the
Assumed Liabilities as set forth in Section 3.1, Purchaser hereby agrees to
issue, transfer, convey and deliver to Seller, and Seller hereby agrees to
accept from Purchaser, all of the Class B membership interests in Purchaser
which shall entitle Seller to a Percentage (as defined in the LLC
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<PAGE> 10
Agreement) of 49.9%, and an initial Capital Account (as defined in the LLC
Agreement) of $87.5 million (the "Purchased Membership Interests").
2.3 Closing.
(a) Closing Date. Consummation of the transactions contemplated
hereby (the "Closing") shall take place, subject to the satisfaction (or express
written waiver) of all conditions to the Closing under Article 9 hereof,
immediately prior to the Closing of the Transactions contemplated by the
Reorganization Agreement. The date on which the Closing takes place shall be
referred to herein as the "Closing Date."
(b) Location. The Closing shall take place at 11:00 A.M. on the
Closing Date, at the offices of Friedman Kaplan & Seiler LLP located at 875
Third Avenue, New York, New York 10022 or at such other place as the parties
hereto shall agree. At the Closing, the Purchaser shall, upon receipt of
assignment of the FCC Licenses and delivery of the Assets to Purchaser, issue to
Seller the Purchased Membership Interests and Seller and Purchaser shall execute
the LLC Agreement substantially in the form attached hereto as Exhibit A.
2.4 Bill of Sale. At the Closing, Seller shall execute and deliver one
or more bills of sale ("Bill of Sale") and assignments evidencing the sale,
transfer and assignment of the Assets and FCC Licenses to Purchaser.
ARTICLE 3
Assumption of Certain Liabilities
3.1 Assumed Liabilities. As further consideration for the purchase by
Purchaser of the FCC Licenses and Assets being purchased hereunder, Purchaser
shall assume and agree to indemnify and hold harmless Seller from and against
the obligations and liabilities of Seller listed and/or described on Schedules
3.1(a) ("Schedule I Assumed Liabilities"), 3.1(b) ("Schedule II Assumed
Liabilities") and 3.1(c) ("Schedule III Assumed Liabilities") (herein
collectively referred to as the "Assumed Liabilities"); provided that such
Assumed Liabilities shall not exceed the amount such that, after netting such
Assumed Liabilities against (i) the agreed value of the FCC Licenses listed in
Schedules I, II and III and (ii) the value of Schedule I Assets, Schedule II
Assets and Schedule III Assets, would cause the value of the FCC Licenses and
Assets listed in (i) and (ii) to equal, in the aggregate, not less than $85.7
million; provided further that Indebtedness to the FCC shall not exceed the
actual Indebtedness incurred for purchase of the FCC Licenses listed on
Schedules I, II and III (which Indebtedness is approximately $220 million) and
Indebtedness to vendors shall not exceed approximately $130 million plus any
additional indebtedness incurred after the date hereof in the ordinary course.
All
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<PAGE> 11
Indebtedness other than Indebtedness to the FCC and vendors shall be unsecured
debt payable to an affiliate of Seller. Seller agrees that the actual allocation
of assets and liabilities shall be determined by agreement of Cook Inlet and
VoiceStream (acting on behalf of Seller in accordance with the terms of the side
letter, dated June 23, 1999, a copy of which is annexed hereto), between
VoiceStream and Seller), in accordance with the methodology described in such
side letter.
3.2 Liabilities Not Assumed. Except for the assumption of the Assumed
Liabilities, Purchaser shall not be obligated to pay or perform or otherwise be
responsible for any liabilities, claims, obligations, judgments, orders, duties
or responsibilities of any kind or nature whatsoever, of Seller or of the
business of Seller or any of its Affiliates, whether arising before, on or after
the date hereof, including, but not limited to, any liabilities or obligations
of Seller arising out of this Agreement and any other liabilities or obligations
of Seller arising before, on or after the Closing Date (collectively the
"Retained Liabilities"). Seller hereby agrees to indemnify and hold harmless
Purchaser from all of the Retained Liabilities.
3.3 Assumption Agreement. At the Closing Purchaser shall execute and
deliver an assumption agreement in form and substance satisfactory to Seller and
Purchaser (the "Assumption Agreement") and such other instruments in form and
substance reasonably satisfactory to Seller and Purchaser in order to evidence
Purchaser's assumption of the Assumed Liabilities.
ARTICLE 4
Representations and Warranties of Seller
(a) Seller represents and warrants to Purchaser that all
representations and warranties made by Seller (referred to as Omnipoint in the
Reorganization Agreement) in Article 4 of the Reorganization Agreement are
incorporated herein by reference to the same extent as if fully set forth
herein; provided that for purposes of Article 4 of this Agreement (i) the term
"Agreement" shall also include this Agreement and the term "Transactions" shall
also include the transactions contemplated by this Agreement, (ii) all those
representations and warranties that relate to corporate or governmental
authorization and non-contravention of other agreements shall also be deemed to
refer this Agreement and the transactions contemplated hereby, and (iii) the
term "Seller" shall be deemed to refer to Seller and each of its wholly owned
Subsidiaries.
(b) Seller represents and warrants to Purchaser that the Assets
and FCC Licenses being sold, assigned and transferred to Purchaser hereunder and
the Assumed Liabilities are all of the Assets, FCC Licenses and liabilities
associated with the
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<PAGE> 12
C and F block FCC Licenses owned by Seller (other than those being sold,
assigned and transferred to Cook Inlet/VS GSM III PCS, LLC) except for (a) those
Assets in markets which are covered by both C and F block FCC Licenses and A, B,
D and/or E block FCC Licenses, in which event only the C and F block FCC
Licenses are being sold, assigned and transferred to Purchaser; and (b) those
Assets in markets which are covered by C and F block FCC Licenses that are
adjacent to markets in which A, B, D and/or E block FCC Licenses are owned by
Seller, in which event only the C and F block FCC licenses and Transmission
Equipment are being sold, assigned and transferred to Purchaser (it being
understood that the following markets shall not be deemed to constitute markets
that are adjacent to markets in which A, B, D, and/or E block FCC Licenses are
owned by Seller: B025, Atlantic City, NJ; B116, Dover, DE; B346, Philadelphia,
PA, Wilmington, DE, Trenton, NJ; B370, Reading PA).
ARTICLE 5
Representations and Warranties of Purchaser
Purchaser represents and warrants to Seller as follows:
5.1 Existence and Power. Purchaser is a limited liability company duly
organized, validly existing and in good standing under Delaware Law and has all
company power and authority required to carry on its business as now conducted
and to own, operate and lease its property. Purchaser, has heretofore delivered
or made available to Seller a true and complete copy of its limited liability
company agreement as currently in effect.
5.2 Corporate Authorization.
(a) The execution, delivery and performance by Purchaser of this
Agreement and the consummation by Purchaser of the transactions contemplated
hereby are within Purchaser's powers and have been duly authorized by all
necessary action on the part of Purchaser. This Agreement has been duly and
validly executed and delivered by Purchaser and, assuming the due and valid
authorization, execution and delivery of this Agreement by Seller, constitutes a
valid and binding agreement of Purchaser, enforceable against it in accordance
with its terms except as may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting creditors' rights
generally and by equitable principles of general applicability.
(b) Purchaser has (i) determined that this Agreement and the
transactions contemplated hereby are advisable and fair to it and in its best
interest; and (ii) approved this Agreement and the transactions contemplated
hereby. No other
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<PAGE> 13
proceedings on the part of Purchaser are necessary to authorize or approve this
Agreement or to consummate the transactions contemplated hereby.
5.3 Governmental Authorization.
(a) The execution, delivery and performance by Purchaser of this
Agreement and the consummation by Purchaser of the transactions contemplated
hereby require no action by or in respect of, or filing with, any Governmental
Body, other than: (i) compliance with any applicable requirements of the
Communications Act; (ii) compliance with any applicable requirements of the HSR
Act; (iii) compliance with FAA regulations; (iv) compliance with any applicable
requirements of state and local public utility commissions or similar entities;
and (v) any actions or filing, the absence of which would not in the aggregate
prevent or delay consummation of the transactions contemplated hereby in any
material respect, or otherwise prevent Purchaser from performing its obligations
under this Agreement in any material respect.
(b) Purchaser has not made any misstatements of fact, or omitted
to disclose any fact, to any Governmental Body, which misstatements or
omissions, individually or in the aggregate, could subject any Licenses or
authorizations to revocation or failure to renew.
5.4 Non-contravention. The execution, delivery and performance by
Purchaser of this Agreement and the consummation by Purchaser of the
transactions contemplated hereby do not and will not (i) contravene, conflict
with, or result in any violation or breach of any provision of the limited
liability company agreement or other governing instrument of Purchaser (ii)
assuming compliance with the matters referred to in Section 5.3, contravene,
conflict with or result in a violation or breach of any provision of any
applicable law, statute, ordinance, rule, regulation, judgment, injunction,
order, or decree; (iii) require any consent or other action by any Person under,
constitute a default (or an event that, with or without notice or lapse of time
or both, would constitute a default) under, or cause or permit the termination,
cancellation, acceleration, triggering or other change of any right or
obligation or the loss of any benefit to which Purchaser is entitled under (A)
any provision of any agreement or other instrument binding upon Purchaser or (B)
any License, franchise, permit, certificate, approval or other similar
authorization held by, or affecting, or relating in any way to, the assets or
business of, Purchaser; or (iv) result in the creation or imposition of any Lien
on any asset of Purchaser, other than such exceptions in the case of clauses
(ii), (iii) and (iv) as would not be, individually or in the aggregate,
reasonably expected to have a Purchaser Material Adverse Effect or materially
impair or delay the ability of Purchaser to consummate the transactions
contemplated hereby.
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<PAGE> 14
5.5 Capitalization.
(a) Except for the obligations to Seller hereunder, and any
issuances of membership interests to Purchaser's sole member, there are no
outstanding subscriptions, options, warrants, rights or convertible or
exchangeable securities issued by Purchaser or other agreements or commitments
to which Purchaser is a party of any character relating to the issued or
unissued membership interests or other securities of Purchaser, including any
agreement or commitment obligating Purchaser to issue, deliver or sell, or cause
to be issued, delivered or sold, membership interests or other securities of
Purchaser, to grant, extend or enter into any subscription, option, warrant,
right or convertible or exchangeable security or other similar agreement or
commitment with respect to Purchaser or to make any payments pursuant to any
stock based or stock related plan or award.
5.6 Finders' Fees. There is no investment banker, broker, finder or
other intermediary that has been retained by or is authorized to act on behalf
of Purchaser who might be entitled to any fee or commission from Purchaser in
connection with the transactions contemplated by this Agreement other than as
specified in the Reorganization Agreement.
5.7 Formation and Liabilities. Purchaser was formed on June 21, 1999 for
purposes of consummating the transactions contemplated hereby. Other than in
connection with the transactions contemplated by this Agreement, Purchaser has
taken no actions, incurred no liabilities and conducted no business.
ARTICLE 6
Covenants of Seller
The covenants of Seller (referred to as Omnipoint in the Reorganization
Agreement) set forth in Article 6 of the Reorganization Agreement are hereby
incorporated herein by reference for the benefit of Purchaser to the same extent
as if fully set forth herein; provided, that for purposes of Article 6 of this
Agreement, the term "VoiceStream" should be deemed to refer to Purchaser.
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<PAGE> 15
ARTICLE 7
Covenants of Purchaser
Purchaser agrees that during the period from the date hereof
until the Closing Date it shall not take any action, conduct any business,
acquire any assets, incur any liabilities or enter into any Contracts (other
than the LLC Agreement or as contemplated by the agreement of even date herewith
between Cook Inlet GSM, Inc. and VoiceStream (the "VoiceStream Agreement")),
except in connection with or in furtherance of the transactions contemplated
hereby.
ARTICLE 8
Covenants of Seller and Purchaser
Each of the parties hereto agree that:
8.1 Best Efforts.
(a) Subject to the terms and conditions of this Agreement, each
of the parties will use its reasonable best efforts to, and Seller will
cooperate with and assist Purchaser, and with respect to matters that are within
Seller's power or control will use its best efforts to promptly (i) take, or
cause to be taken, all actions and to do, or cause to be done, all things
necessary, proper or advisable under applicable laws and regulations to
consummate the transactions contemplated by this Agreement as soon as
practicable, including preparing and filing as promptly as practicable all
documentation to effect all necessary filings, notices, petitions, statements,
registrations, submissions of information, applications and other documents, and
(ii) obtain and maintain all approvals, consents, registrations, permits,
authorizations and other confirmations required to be obtained from any third
party (including consents of the FAA and other Governmental Bodies) that are
necessary, proper or advisable to consummate the transactions contemplated by
this Agreement; provided, however, Purchaser shall not be required to divest or
hold separate or otherwise take or commit to take any action that limits its
freedom of action with respect to any material portion of the Assets of
Purchaser or any of the Purchaser's business. At Purchaser's request, Seller
will commit to and implement any divestiture, hold separate or similar
transaction or action with respect to any asset or business of the Seller, which
commitment and implementation may, at Seller's option, be conditioned upon and
effective as of the Closing Date. Subject to applicable laws relating to the
exchange of information, Purchaser and Seller shall have the right to review in
advance, and to the extent practicable to consult with each other on, all the
information relating to
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<PAGE> 16
Seller and any of its Subsidiaries or Purchaser, as applicable, that appears in
any filing made with, or written materials submitted to, any third party and/or
any Governmental Bodies in connection with the transactions contemplate hereby.
(b) As promptly as practicable after the execution and delivery
of this Agreement, Purchaser and Seller shall prepare all appropriate
applications for FCC approval, and such other documents as may be required, with
respect to the transfer of control of the Assets and FCC Licenses of Seller
(collectively, the "FCC Applications"). Not later than the tenth Business Day
following execution and delivery of this Agreement, Seller and Purchaser will
exchange with each other their respective completed portions of the FCC
Applications. Not later than the fifteenth Business Day following the execution
and delivery of this Agreement, Seller and Purchaser shall file, or cause to be
filed, the FCC Applications. If the Closing Date shall not have occurred for any
reason within any applicable initial consummation period, as provided in the
Reorganization Agreement, and the Reorganization Agreement shall not have been
terminated pursuant to Section 10.1 of the Reorganization Agreement, Purchaser
and Seller shall jointly request one or more extensions of the consummation
period of such grant. No party hereto shall knowingly take, or fail to take, any
action if the intent or reasonably anticipated consequence of such action or
failure to act is, or would be, to cause the FCC not to grant approval of the
FCC Applications or delay either such approval or the consummation of the
transfer of the FCC Licenses and Assets of Seller. Seller and Purchaser shall
each pay one-half (1/2) of any FCC fees, if applicable, in connection with the
filing or granting of approval of the FCC Applications. Each of Seller and
Purchaser shall bear its own expenses in connection with the preparation and
prosecution of the FCC Applications. Seller and Purchaser shall each use all
reasonable efforts to prosecute the FCC Applications in good faith and with due
diligence before the FCC and in connection therewith shall take such action or
actions as may be necessary or reasonably required in connection with the FCC
Applications, including furnishing to the FCC any documents, materials or other
information requested by the FCC in order to obtain such FCC approval as
expeditiously as practicable.
(c) Promptly after the date hereof, Purchaser and Seller (as may
be required pursuant to the HSR Act) will complete all documents required to be
filed with the Federal Trade Commission and the Department of Justice in order
to comply with the HSR Act and, not later than 10 Business Days after the date
hereof, together with the Persons who are required to join in such filings,
shall file the same with the appropriate Governmental Bodies. Purchaser and
Seller shall each pay one-half (1/2) of any fees that may be payable in
connection with the filing pursuant to the HSR Act. Purchaser and Seller shall
promptly furnish all materials thereafter required by any of the Governmental
Bodies having jurisdiction over such filings, and shall take all reasonable
actions and shall file and use all reasonable efforts to have declared effective
or approved all documents and notifications with any such Governmental Bodies,
as may be required
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under the HSR Act or other federal antitrust laws for the consummation of the
transactions contemplated hereby.
(d) In addition to the filings required by the HSR Act and the
Communications Act, the Parties shall (i) as promptly as possible and in any
event within 15 days after the date hereof file with any other applicable
Governmental Bodies (including, but not limited to the FAA) the applications and
related documents required to be filed by such Governmental Bodies (and
prosecute diligently any such applications, including providing such information
as such Governmental Bodies may reasonably request) in order to consummate the
transactions, (ii) cooperate with each other as may reasonably be requested in
connection with the foregoing, and (iii) otherwise use their best efforts to
obtain promptly the requested consent and approval of the applications by any
applicable Governmental Bodies. Purchaser and Seller shall each pay one half
(1/2) of all filing or other Governmental Body filing or grant fees in
connection with the applications requesting its consent to the consummation of
the transactions contemplated by this Agreement.
8.2 Public Announcements. So long as this Agreement is in effect,
Purchaser and Seller will consult with each other before issuing any press
release or making any public statement with respect to the transactions
contemplated by this Agreement and except as may be required by applicable law
or any listing agreement with any national securities exchange, will not issue
any such press release or make any such public statement without the prior
consent of the other party, which consent shall not be unreasonably withheld or
delayed. Notwithstanding the foregoing, any such press release or public
statement as may be required by applicable law or any listing agreement with any
national securities exchange or NASDAQ may be issued without such consent, if
the party making such release or statement has used its reasonable efforts to
consult with the other party.
8.3 Further Assurances. At and after the Closing Date, the officers and
directors of Purchaser will be authorized to execute and deliver, in the name
and on behalf of Seller, any deeds, bills of sale, assignments or assurances and
to take and do, in the name and on behalf of Purchaser or Seller any other
actions and things to vest, perfect or confirm of record in Purchaser any and
all right, title and interest in, to and under any of the FCC Licenses rights,
properties or Assets of Seller or Purchaser acquired or to be acquired by
Purchaser as a result of, or in connection with, the transactions contemplated
by this Agreement.
8.4 Notices of Certain Events. Each of Purchaser and Seller shall
promptly notify the other of:
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<PAGE> 18
(a) any notice or other communication from any Person alleging
that the consent of such Person is or may be required in connection with the
transactions contemplated by this Agreement;
(b) any notice or other communication from any Governmental Body
in connection with the transactions contemplated by this Agreement;
(c) the occurrence, or non-occurrence, of any event the
occurrence, or non-occurrence, of which would be reasonably expected to cause
any representation or warranty made by it and contained herein to be untrue or
inaccurate in any material respect at any time during the period commencing on
the date hereof and ending at the Closing Date;
(d) any failure of such party to comply with or satisfy any
covenant, condition or agreement to be complied with or satisfied by it
hereunder; provided, however, that the delivery of any notice pursuant to this
Section 8.4 shall not limit or otherwise affect the remedies available hereunder
to the party receiving such notice;
(e) any actions, suits, claims, investigations or proceedings
commenced or, to its knowledge threatened against such party, or which relate to
the consummation of the transactions contemplated by this Agreement; and
(f) any event, condition or state of facts which could have a
Seller Material Adverse Effect or a Purchaser Material Adverse Effect.
ARTICLE 9
Conditions to Closing
9.1 Conditions to the Obligations of Each Party. The obligations of
Seller and Purchaser to consummate the Closing are subject to the satisfaction
of the following conditions:
(a) any applicable waiting period under the HSR Act relating to
the transactions contemplated hereby shall have expired or been terminated;
(b) no provision of any applicable law or regulation and no
judgment, injunction, order or decree shall prohibit the consummation of the
transactions contemplated hereby;
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(c) all Governmental Consents shall have been obtained and be in
effect, and be subject to no limitations, conditions, restrictions or
obligations, except for such consents the failure to obtain would not, and such
limitations, conditions, restrictions or obligation as would not, individually
or in the aggregate, be reasonably expected to have a Seller Material Adverse
Effect or Purchaser Material Adverse Effect;
(d) no court, arbitrator or Governmental Body shall have issued
any order, and there shall not be any statute, rule or regulation restraining or
prohibiting the effective operation of the business of Purchaser or Seller after
the Closing that would be reasonably expected to have a Purchaser Material
Adverse Effect (after giving effect to the transactions contemplated hereby);
(e) the FCC Consent shall have become a Final Order and shall
not contain any conditions with respect to Seller or Purchaser, which conditions
would have a Seller Material Adverse Effect or Purchaser Material Adverse
Effect; and
(f) all conditions set forth in Article 9 of the Reorganization
Agreement have been satisfied or expressly waived in writing.
9.2 Conditions to the Obligations of Purchaser. The obligations of
Purchaser to consummate the Closing are subject to the satisfaction of the
following further conditions:
(a) (i) Seller shall have performed in all material respects all
of its obligations hereunder and under the Reorganization Agreement required to
be performed by it at or prior to the Closing, (ii) the representations and
warranties of Seller contained in this Agreement and in any certificate or other
writing delivered by Seller pursuant hereto, disregarding all qualifications and
exceptions contained therein relating to materiality or a Seller Material
Adverse Effect or any similar standard or qualification, shall be true and
correct at and as of the Closing, as if made at and as of such time (other than
representations or warranties that address matters only as of a certain date,
which shall be true and correct as of such date), with only such exceptions as,
individually or in the aggregate, have not had and would not be reasonably
expected to have a Seller Material Adverse Effect, and (iii) Purchaser shall
have received a certificate signed by an executive officer of Seller to the
foregoing effect.
(b) All conditions to the obligations of Seller and VoiceStream
to close the Transactions contemplated by the Reorganization Agreement shall
have been satisfied or waived, and each of Seller and VoiceStream shall deliver
to Purchaser a certificate signed by an executive officer certifying that the
closing of the Transactions contemplated by the Reorganization Agreement will
occur immediately following the closing of the transactions contemplated herein;
provided, however, that if the Transactions contemplated by the Reorganization
Agreement do not close immediately
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<PAGE> 20
after the Closing of the transactions hereunder, the transactions contemplated
hereunder shall be void and of no further force and effect.
(c) All conditions to the obligations of VoiceStream and Cook
Inlet GSM, Inc. to close the transactions contemplated by the VoiceStream
Agreement shall have been satisfied or expressly waived in writing.
9.3 Conditions to the Obligations of Seller. The obligations of Seller
to consummate the Closing are subject to the satisfaction of the following
further conditions:
(a) (i) Purchaser shall have performed in all material respects
all of its obligations hereunder required to be performed by it at or prior to
the Closing; (ii) the representations and warranties of Purchaser contained in
this Agreement and in any certificate or other writing delivered by Purchaser
pursuant hereto, disregarding all qualifications and exceptions contained
therein relating to materiality or a Purchaser Material Adverse Effect or any
similar standard or qualification shall be true and correct at and as of the
Closing, as if made at and as of such time (other than representations and
warranties that address matters only as of a certain date, which shall be true
and correct as of such date), with only such exceptions as, individually or in
the aggregate, have not had and would not be reasonably expected to have a
Purchaser Material Adverse Effect; (iii) Seller shall have received a
certificate signed by an executive officer of Purchaser to the foregoing effect;
and (iv) that Cook Inlet GSM, Inc. shall have contributed at least $60 million
to the capital of Purchaser.
(b) All conditions to the obligations of VoiceStream and Cook
Inlet GSM, Inc. to close the transactions contemplated by the VoiceStream
Agreement shall have been satisfied or expressly waived in writing.
ARTICLE 10
Termination
10.1 Termination. This Agreement shall be terminated and the
transactions contemplated hereby shall be abandoned upon termination of the
Reorganization Agreement.
10.2 Effect of Termination. If this Agreement is terminated pursuant to
Section 10.1, this Agreement shall become void and of no effect without
liability of any party (or any stockholder, member, director, officer, employee,
agent, consultant or representative of such party) to the other parties hereto,
except that the agreements contained in this Section 10.2 and in Section 10.3
shall survive the termination hereof and
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no such termination shall relieve any party of any liability or damages
resulting from any breach by such party of this Agreement.
10.3 Fees and Expenses. Except as otherwise provided herein, all costs
and expenses incurred in connection with this Agreement shall be paid by the
party incurring such cost or expense whether or not the transactions
contemplated hereby are consummated.
ARTICLE 11
Miscellaneous
11.1 Notices. All notices, requests and other communications to any
party hereunder shall be in writing (including facsimile transmission) and shall
be given,
if to Purchaser, to:
Cook Inlet/VS GSM II PCS, LLC
2525 "C" Street
Anchorage, Alaska 99503
Attention: Craig A. Floerchinger
Fax: (907) 263-5181
with copies to:
VoiceStream Wireless Corporation
3650 131 Avenue SE
Bellevue, Washington 98006
Attention: Alan R. Bender, Esq.
Fax: (425) 586-8080
and:
Friedman Kaplan & Seiler LLP
875 Third Avenue
New York, New York 10022
Attention: Barry A. Adelman, Esq.
Fax: (212) 355-6401
and:
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Cook Inlet Region Inc.
2525 "C" Street
Anchorage, Alaska 99503
Attention: General Counsel
Fax: (907) 263-5182
and:
Munger, Tolles & Olson LLP
355 South Grand Ave.
Los Angeles, California 90071-1560
Attention: Judith T. Kitano, Esq.
Fax: (213) 687-3702
if to Seller, to:
Omnipoint Corporation
Three Bethesda Metro Center
Suite 400
Bethesda, MD 20814
Attention: Douglas G. Smith
Fax: (301) 951-2518
with copies to:
Piper & Marbury L.L.P.
1200 Nineteenth Street, N.W.
Washington, D.C. 20036
Attention: Edwin M. Martin, Jr., Esq.
Fax: (202) 223-2085
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.
11.2 Reliance on Representations. Notwithstanding any investigation
knowledge or review made at any time by or on behalf of any party hereto, the
parties acknowledge and agree that all representations and warranties contained
in this Agreement, or in the Schedules or in any of the documents, certificates
or agreements
21
<PAGE> 23
delivered in connection therewith are being relied upon as a material inducement
to enter into this Agreement and the transactions contemplated hereby.
11.3 Survival of Representations and Warranties. The representations and
warranties contained herein and in any certificate or other writing delivered
pursuant hereto shall not survive the Closing Date or, except as provided under
Section 10.2 of this Agreement, the termination of this Agreement.
11.4 Amendments; No Waivers.
(a) Subject to applicable Delaware Law, any provision of this
Agreement may be amended or waived prior to the Closing Date if, 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.
(b) 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.
11.5 Successors and Assigns. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns; provided that no party may assign, delegate or otherwise
transfer any of its rights or obligations under this Agreement without the
consent of each other party hereto.
11.6 Governing Delaware 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.
11.7 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 Delaware
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.
22
<PAGE> 24
Without limiting the foregoing, each party agrees that service of process on
such party as provided in Section 11.1 shall be deemed effective service of
process on such party.
11.8 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.
11.9 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.
11.10 Entire Agreement; No Third Party Beneficiaries. 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 the subject matter of
this Agreement. This Agreement is not intended to confer upon any Person other
than the parties hereto any rights or remedies.
11.11 Captions. The captions herein are included for convenience of
reference only and shall be ignored in the construction or interpretation
hereof.
11.12 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.
11.13 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
23
<PAGE> 25
Delaware state court, in addition to any other remedy to which they are entitled
at Delaware Law or in equity.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
OMNIPOINT CORPORATION
By:
---------------------------------
Name:
Title:
COOK INLET/VS GSM II PCS, LLC
By: Cook Inlet GSM, Inc., its
Manager
By:
---------------------------------
Name:
Title:
24
<PAGE> 26
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
ARTICLE 1 Defined Terms.........................................................1
1.1 (a) Defined Terms..................................................1
ARTICLE 2 Purchase..............................................................8
2.1 Purchase and Sale.....................................................8
2.2 Purchase Price........................................................8
2.3 Closing...............................................................9
2.4 Bill of Sale..........................................................9
ARTICLE 3 Assumption of Certain Liabilities.....................................9
3.1 Assumed Liabilities...................................................9
3.2 Liabilities Not Assumed..............................................10
3.3 Assumption Agreement.................................................10
ARTICLE 4 Representations and Warranties of Seller.............................10
ARTICLE 5 Representations and Warranties of Purchaser..........................11
5.1 Existence and Power..................................................11
5.2 Corporate Authorization..............................................11
5.3 Governmental Authorization...........................................12
5.4 Non-contravention....................................................12
5.5 Capitalization.......................................................13
5.6 Finders' Fees........................................................13
5.7 Formation and Liabilities............................................13
ARTICLE 6 Covenants of Seller..................................................13
ARTICLE 7 Covenants of Purchaser...............................................14
ARTICLE 8 Covenants of Seller and Purchaser....................................14
8.1 Best Efforts.........................................................14
8.2 Public Announcements.................................................16
8.3 Further Assurances...................................................16
8.4 Notices of Certain Events............................................16
ARTICLE 9 Conditions to Closing................................................17
9.1 Conditions to the Obligations of Each Party..........................17
9.2 Conditions to the Obligations of Purchaser...........................18
9.3 Conditions to the Obligations of Seller..............................19
</TABLE>
<PAGE> 27
<TABLE>
<S> <C> <C>
ARTICLE 10 Termination..........................................................19
10.1 Termination..........................................................19
10.2 Effect of Termination................................................19
10.3 Fees and Expenses....................................................20
ARTICLE 11 Miscellaneous........................................................20
11.1 Notices..............................................................20
11.2 Reliance on Representations..........................................21
11.3 Survival of Representations and Warranties...........................22
11.4 Amendments; No Waivers...............................................22
11.5 Successors and Assigns..............................................22
11.6 Governing Delaware Law...............................................22
11.7 Jurisdiction.........................................................22
11.8 Waiver of Jury Trial.................................................23
11.9 Counterparts; Effectiveness..........................................23
11.10 Entire Agreement; No Third Party Beneficiaries.......................23
11.11 Captions.............................................................23
11.12 Severability.........................................................23
11.13 Specific Performance.................................................23
</TABLE>
ii
<PAGE> 28
SCHEDULES
<TABLE>
<CAPTION>
Schedule Number Name
--------------- ----
<S> <C>
Schedule I de block FCC Licenses in areas covered by both
de and non-de licenses
Schedule II FCC Licenses in areas covered only by de
licenses, together with the business and assets
being conducted.
Schedule III FCC Licenses in areas covered only by de
licenses but which are operated as part of a
system covering that area as well as areas
covered by non-de licenses, together with
Transmission Equipment residing in such areas.
Schedule 3.1(a) Schedule I Assumed Liabilities
Schedule 3.1(b) Schedule II Assumed Liabilities
Schedule 3.1(c) Schedule III Assumed Liabilities
</TABLE>
iii
<PAGE> 29
Schedule 3.1(a)
Indebtedness to the FCC relating to Schedule I FCC Licenses.
iv
<PAGE> 30
Schedule 3.1(b)
Indebtedness to the FCC relating to Schedule II FCC Licenses and up to
$130 million of vendor debt incurred in connection with the purchase,
construction and/or operation of the Schedule II Assets
v
<PAGE> 31
Schedule 3.1(c)
Indebtedness to the FCC relating to Schedule III FCC Licenses.
vi
<PAGE> 1
EXHIBIT 2.3
================================================================================
PURCHASE AGREEMENT
BETWEEN
OMNIPOINT CORPORATION
(SELLER)
AND
COOK INLET/VS GSM III PCS, LLC
(PURCHASER)
DATED AS OF JUNE 23, 1999
================================================================================
<PAGE> 2
PURCHASE AGREEMENT, dated as of June 23, 1999, by and between
Omnipoint Corporation, a Delaware corporation, on its own behalf and on behalf
of each of its wholly owned Subsidiaries (hereinafter collectively referred to
as "Seller"), and Cook Inlet/VS GSM III PCS, LLC, a Delaware limited liability
company ("Purchaser").
WHEREAS, Seller wishes to sell, assign and transfer to Purchaser
certain of Seller's licenses, interests, and other rights owned by Seller in
exchange for membership interests in Purchaser, upon the terms and subject to
the conditions set forth in this Agreement; and
WHEREAS, concurrently herewith Seller and VoiceStream Wireless
Corporation ("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, will be merged with and into each of Seller and
VoiceStream; and
WHEREAS, the consummation of the closing under the Reorganization
Agreement is conditioned upon the consummation of the Closing under this
Agreement, and the consummation of the Closing under this Agreement is
conditioned upon the satisfaction or waiver of all conditions set forth in
Article 9 of the Reorganization Agreement.
NOW, THEREFORE, in consideration of the premises and the
respective agreements herein set forth, the parties hereto agree as follows:
ARTICLE 1
Defined Terms
1.1 (a) Defined Terms. The following terms, as used herein, have the
following meanings:
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under common control with
such Person provided that, for purposes of this definition, "control"
(including, with correlative meanings, the terms "controlled by" and "under
common control with"), as used with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities or by contract or otherwise.
"Assets" means all of the Licenses, permits and franchises
(governmental or otherwise) (other than the FCC Licenses), fixed assets,
equipment, Transmission Equipment, assets, properties, interests, maintenance
and/or service agreements, business,
<PAGE> 3
good will, claims and other rights of Seller of every kind and nature
whatsoever, tangible or intangible, vested or unvested, contingent or otherwise,
real, personal or mixed, and wherever located, whether or not reflected on the
books and records of Seller and whether or not described herein or in any of the
schedules delivered or to be delivered to Purchaser hereunder, including, but
not limited to, Tangible Personal Property, rights under Contracts (including
security deposits thereunder), Receivables, Inventories, Intellectual Property
Rights, investments, Warranties, Records, prepaid expenses and advances, but in
any case excluding the Excluded Assets.
"Assumed Liabilities" shall have the meaning specified in Section
3.1 hereof.
"Assumption Agreement" shall have the meaning specified in
Section 3.3 hereof.
"BTA" means Basic Trading Area as designated by the FCC.
"Bill of Sale" shall have the meaning specified in Section 3.4
hereof.
"Business Day" means a day other than a Saturday, Sunday or other
day on which commercial banks in New York City, Seattle, Washington or
Anchorage, Alaska are authorized or required by law to close.
"Communications Act" means the Communications Act of 1934 and the
Telecommunications Act of 1996 (together with the rules, regulations and
published decisions of the FCC).
"Contracts" means leases (whether for real or personal property),
rental agreements, sales and purchase orders, acknowledgments, agreements,
permits, maintenance and service contracts, commitments and any and all other
contracts or binding arrangements, whether written or oral, express or implied.
"Delaware Law" means the Delaware General Corporation Law.
"Excluded Assets" means all Assets of Seller not being sold,
assigned or transferred to Purchaser pursuant to Section 2.1.
"FAA" means the Federal Aviation Administration and any successor
agency or body.
"FCC" means the Federal Communications Commission and any
successor agency or body.
2
<PAGE> 4
"FCC Applications" means all appropriate applications for FCC
approval, and such other documents as may be required, with respect to the
transfer of the FCC Licenses from Seller to Purchaser contemplated herein.
"FCC Consent" means an order of the FCC, or by the staff of the
FCC acting pursuant to delegated authority, granting its consent to the
applications referred to in Section 8.1(b) of this Agreement required to permit
the consummation of the transactions contemplated by this Agreement.
"FCC Consent Date" means the date on which Public Notice is given
of the FCC Consent pursuant to the Rule s and regulations of the FCC.
"FCC Licenses" means the licenses or applications therefor and
awards related thereto ("Licenses") issued by the FCC to provide radio
telecommunications services using either 15 MHz or 30 MHz of spectrum in the 30
MHz band of spectrum in the "C" block (1895- 1910 MHz/1975-1990 MHz) and the 10
MHz band of spectrum in the "F" block (1890- 1895 MHz /1970-1975 MHz) in various
BTAs.
"Final Order" means an action or decision that has been granted
by the FCC as to which (i) no request for a stay or similar request is pending,
no stay is in effect, the action or decision has not been vacated, reversed, set
aside, annulled or suspended and any deadline for filing such request that may
be designated by statute or regulation has passed, (ii) no petition for
rehearing or reconsideration or application for review is pending and the time
for the filing of any such petition or application has passed, (iii) the FCC
does not have the action or decision under reconsideration on its own motion and
the time within which it may effect such reconsideration has passed and (iv) no
appeal is pending, including other administrative or judicial review, or in
effect and any deadline for filing any such appeal that may be designated by
statute or rule has passed.
"Governmental Body" means any domestic or foreign national,
state, multi-state or municipal or other local government, any subdivision,
agency, commission or authority thereof, any court, or any quasi-governmental or
private body exercising any regulatory or taxing authority thereunder.
"Governmental Consents" means all authorizations, consents,
approvals, exceptions or other actions by Governmental Bodies required to
consummate the transactions contemplated hereby.
"Group" means "group," as such term is defined in Rule 13d-3 of
the 1934 Act.
"HSR Act" means the Hart-Scott-Rodino Antitrust Improvements Act
of 1976.
3
<PAGE> 5
"Indebtedness" of any Person at any date means: (a) all
indebtedness of such Person for borrowed money or for the deferred purchase
price of property or services (other than current trade liabilities incurred in
the ordinary course of business and payable in accordance with customary
practices), (b) any other indebtedness of such Person which is evidenced by a
note, bond, debenture or similar instrument, (c) all obligations of such Person
under financing leases, (d) all obligations of such Person in respect of
acceptances issued or created for the account of such Person and with respect to
unpaid reimbursement obligations related to letters of credit issued for the
account of such Person and (e) all liabilities secured by any Lien on any
property owned by such Person even though such Person has not assumed or
otherwise become liable for the payment thereof.
"Intellectual Property Rights" means (i) Patents, (ii) Know-how,
(iii) Trademarks, (iv) Trade Names, and (v) shop rights, copyrights, inventions,
service marks and all other intellectual property rights, whether registered or
not.
"Inventories" means all inventory and supplies, including,
without limitation, inventories of materials, spare parts, work-in-process and
finished goods.
"Know-how" means all trade secrets, know-how (including, without
limitation, product know-how and use and application know-how), process, product
designs, specifications, quality control procedures, manufacturing, engineering
and other drawings, computer databases and software, telephone numbers,
facsimile numbers, technology and all other information and intangibles,
including, without limitation, technical information, safety information,
engineering data and design and engineering specifications, research records,
market surveys and all promotional literature, subscriber, customer and supplier
lists and similar data.
"knowledge" means, with respect to any fact, the conscious
awareness of such fact by an executive officer (as defined under the 1933 Act)
of the relevant Person.
"Licenses" means all local, municipal, state and federal
licenses, franchises, permits, certificates, consents, approvals, waivers,
rights and authorizations used or required for use in connection with the
utilization of, or business conducted in, the areas covered by the FCC Licenses
of Seller being transferred to Purchaser hereunder.
"Lien" as to any Person, means any mortgage, lien, pledge,
adverse claim, charge, security interest or other encumbrance (including,
without limitation rights of first refusal, proxy rights and other similar
rights) in or on, or any interest or title of any vendor, lessor, lender or
other secured party to or of such Person under any conditional sale or other
title retention agreement or capital lease with respect to, any property or
asset owned or held by such Person, or the signing or filing of a financing
statement
4
<PAGE> 6
which names such Person as debtor, or the signing of any security agreement
authorizing any other party as the secured party thereunder to file any
financing statement.
"LLC Agreement" means the Limited Liability Company Agreement of
Purchaser, which shall be amended to be in the form set forth in Exhibit A
hereto immediately prior to the Closing.
"1933 Act" means the Securities Act of 1933.
"1934 Act" means the Securities Exchange Act of 1934.
"Order" means and includes any order, writ, injunction, decree,
judgment, award, determination or written direction of any court, arbitrator or
Governmental Body.
"Patents" means patents (including all reissues, divisions,
continuations, continuations in part and extensions thereof), patent
applications and patent disclosures docketed and all other patents rights
(including, without limitation, all claims against third parties for past
infringement not heretofore asserted).
"Permitted Liens" means Easements, rights of way or similar
encumbrances on real property which are in the ordinary course and which do not
materially affect the value, use and insurability of title of such real
property.
"Person" means an individual, corporation, partnership, limited
liability company, association, trust or other entity or organization, including
a government or political subdivision or an agency or instrumentality thereof.
"Purchaser Material Adverse Effect" means a material adverse
effect on the business, financial condition, prospects, assets or results of
operations of Purchaser taken as a whole, excluding any such effect resulting
from or arising in connection with (A) this Agreement, the transactions
contemplated hereby or the announcement thereof, (B) changes or conditions
generally affecting the industries in which Purchaser operates or (C) changes in
general economic, regulatory or political conditions. For the purposes of
Sections 9.1(c) and 9.1(e), Item A of the previous sentence shall not be
excluded from the definition of Purchaser Material Adverse Effect.
"Receivables" shall mean all accounts receivable, claims, notes
and other amounts receivable by Seller or which may be claimed by Seller as a
result of Seller's business or operations or ownership of the Assets, including,
without limitation, all amounts due from customers, subscribers, vendors and
employees, together with any unpaid financing charges accrued thereon, whether
or not arising in the ordinary course of business, including the proceeds of all
of the foregoing received after the date hereof.
5
<PAGE> 7
"Records" shall mean originals, or, to the extent originals are
not available, true and complete copies of all business, accounting and
financial records (excluding corporate minute books and records), property
records, contract records, personnel records, correspondence, files, books and
documents of Seller, including, without limitation, sales, marketing and
advertising data and materials, customer and subscriber lists, mailing lists of
any and all types, vendor and customer invoices, billing records, software and
related documentation, artwork, photographs and advertising material, manuals
and teaching aids, and all other records relating to the business of Seller as
presently or heretofore conducted.
"Retained Liabilities" shall have the meaning specified in
Section 3.2 hereof.
"SEC" means the Securities and Exchange Commission and any
successor agency or body.
"Seller Group" means Seller and Seller Subsidiaries.
"Seller Material Adverse Effect" means a material adverse effect
on the business, financial condition, prospects, assets or results of operations
of Seller Group taken as a whole, excluding any such effect resulting from or
arising in connection with (A) this Agreement, the transactions contemplated
hereby or the announcement thereof, (B) changes or conditions generally
affecting the industries in which Seller Group operates or (C) changes in
general economic, regulatory or political conditions. For the purposes of
Sections 9.1(c) and 9.1(e), Item A of the previous sentence shall not be
excluded from the definition of Seller Material Adverse Effect.
"Seller Subsidiary" means a Subsidiary of Seller.
"Subsidiary" means, with respect to any Person, any entity of
which securities or other ownership interests having ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions are at any time directly or indirectly owned by such Person.
"Tangible Personal Property" means all fixed assets, machinery,
equipment, Transmission Equipment, tools, vehicles, furniture, fixtures,
leasehold improvements, office equipment, plant, inventory (including, without
limitation, Inventories) and other tangible personal property owned by Seller.
"Trademarks" means trademarks, registrations thereof, pending
applications therefor and such unregistered rights as may exist through use.
6
<PAGE> 8
"Trade Names" means trade names, band marks, trade dress, brand
names and all other names and slogans embodying Seller's good will for which no
trademark registration has been obtained and for which no application is
pending.
"Transmission Equipment" means all cell site towers, fixtures and
equipment, microwave towers, fixtures and equipment, transmitting or receiving
equipment, antennae, hardware, software, and ancillary and related equipment and
facilities used to provide broadband PCS, whether under the GSM standard or
otherwise, and to deliver voice, data and related electronic signals between or
among cell sites and/or between or among cell sites and the associated switch
constituting the interconnection to the landline public switched telephone
network.
"Warranties" means all warranties in favor of Seller with respect
to any and all equipment, Transmission Equipment or other personal property
heretofore or hereafter sold to Seller and being transferred to Purchaser
hereunder.
Any reference in this Agreement to a statute shall be to such
statute, as amended from time to time, and to the rules and regulations
promulgated thereunder.
(b) Each of the following terms is defined in the Section set
forth opposite such term:
<TABLE>
<CAPTION>
<S> <C>
Assumed Liabilities 3.1
Assumption Agreement 3.3
Closing Date 2.3.(a)
Closing 2.3(a)
Due Date 7(b)
Purchased Membership Interests 2.1(a)
Purchaser Preamble
Reorganization Agreement Preamble
Schedule I Assets 2.2(a)
Schedule 3.1(a) (Schedule I Assumed Liabilities) 3.1
Seller Preamble
VoiceStream Agreement 7(a)
VoiceStream Wireless Corporation Preamble
</TABLE>
(c) All defined terms used herein but not otherwise defined
herein shall have the meanings ascribed to them in the Reorganization Agreement.
(d) Unless the context otherwise requires, the terms defined in
this Article 1 or elsewhere in this Agreement shall have the meanings herein
specified for all purposes of this Agreement, applicable to both the singular
and plural forms of any of the terms defined herein. When a reference is made in
this Agreement to a Section, such
7
<PAGE> 9
reference shall be to a Section of this Agreement unless otherwise indicated.
Whenever the words "include," "includes" or "including" are used in this
Agreement, they shall be deemed to be followed by the words "without
limitation." The use of any gender herein shall be deemed to include the neuter,
masculine and feminine genders wherever necessary or appropriate.
ARTICLE 2
Purchase
2.1 Purchase and Sale. Upon the terms and subject to the conditions set
forth in this Agreement, Seller hereby agrees to sell, assign, transfer, convey
and deliver to Purchaser, and Purchaser hereby agrees to purchase and accept
from Seller all right, title and interest of Seller in and to the following,
free and clear of any and all Liens, subject to the Assumed Liabilities
described in Section 3.1.
(a) The FCC Licenses listed and/or described on Schedule I (the
"Schedule I Assets").
2.2 Purchase Price. Upon the terms and subject to the conditions set
forth in this Agreement and in consideration for the sale and/or transfer of the
FCC Licenses set forth in Section 2.1 and the assumption of the Assumed
Liabilities as set forth in Section 3.1, Purchaser hereby agrees to issue,
transfer, convey and deliver to Seller, and Seller hereby agrees to accept from
Purchaser, all of the Class B membership interests in Purchaser which shall
entitle Seller to a Percentage (as defined in the LLC Agreement) of 49.9%, and
an initial Capital Account (as defined in the LLC Agreement) of $21.4 million
(the "Purchased Membership Interests").
2.3 Closing.
(a) Closing Date. Consummation of the transactions contemplated
hereby (the "Closing") shall take place, subject to the satisfaction (or express
written waiver) of all conditions to the Closing under Article 9 hereof,
immediately prior to the Closing of the Transactions contemplated by the
Reorganization Agreement. The date on which the Closing takes place shall be
referred to herein as the "Closing Date."
(b) Location. The Closing shall take place at 11:00 A.M. on the
Closing Date, at the offices of Friedman Kaplan & Seiler LLP located at 875
Third Avenue, New York, New York 10022 or at such other place as the parties
hereto shall agree. At the Closing, the Purchaser shall, upon receipt of
assignment of the FCC Licenses and delivery of the Assets to Purchaser, issue to
Seller the Purchased
8
<PAGE> 10
Membership Interests and Seller and Purchaser shall execute the LLC Agreement
substantially in the form attached hereto as Exhibit A.
2.4 Bill of Sale. At the Closing, Seller shall execute and deliver one
or more bills of sale ("Bill of Sale") and assignments evidencing the sale,
transfer and assignment of the Assets and FCC Licenses to Purchaser.
ARTICLE 3
Assumption of Certain Liabilities
3.1 Assumed Liabilities. As further consideration for the purchase by
Purchaser of the FCC Licenses being purchased hereunder, Purchaser shall assume
and agree to indemnify and hold harmless Seller from and against the obligations
and liabilities of Seller listed and/or described on Schedules 3.1(a) ("Schedule
I Assumed Liabilities"), (herein referred to as the "Assumed Liabilities");
provided that such Assumed Liabilities shall not exceed the amount that, after
netting such Assumed Liabilities against the actual price paid or to be paid to
the FCC (approximately $45 million ) for the FCC Licenses, would cause the value
of the FCC Licenses to equal, in the aggregate, not less than $21.4 million;
provided further that all such Assumed Liabilities shall consist of unsecured
debt to an Affiliate of Seller; and provided further that Seller shall
contribute cash to Purchaser in an amount equal to any amounts payable to the
FCC with respect to any FCC Licenses that remain to be issued as of the Closing
Date.
3.2 Liabilities Not Assumed. Except for the assumption of the Assumed
Liabilities, Purchaser shall not be obligated to pay or perform or otherwise be
responsible for any liabilities, claims, obligations, judgments, orders, duties
or responsibilities of any kind or nature whatsoever, of Seller or of the
business of Seller or any of its Affiliates, whether arising before, on or after
the date hereof, including, but not limited to, any liabilities or obligations
of Seller arising out of this Agreement and any other liabilities or obligations
of Seller arising before, on or after the Closing Date (collectively the
"Retained Liabilities"). Seller hereby agrees to indemnify and hold harmless
Purchaser from all of the Retained Liabilities.
3.3 Assumption Agreement. At the Closing Purchaser shall execute and
deliver an assumption agreement in form and substance satisfactory to Seller and
Purchaser (the "Assumption Agreement") and such other instruments in form and
substance reasonably satisfactory to Seller and Purchaser in order to evidence
Purchaser's assumption of the Assumed Liabilities.
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<PAGE> 11
ARTICLE 4
Representations and Warranties of Seller
(a) Seller represents and warrants to Purchaser that all
representations and warranties made by Seller (referred to as Omnipoint in the
Reorganization Agreement) in Article 4 of the Reorganization Agreement are
incorporated herein by reference to the same extent as if fully set forth
herein; provided that for purposes of Article 4 of this Agreement (i) the term
"Agreement" shall also include this Agreement and the term "Transactions" shall
also include the transactions contemplated by this Agreement, (ii) all those
representations and warranties that relate to corporate or governmental
authorization and non-contravention of other agreements shall also be deemed to
refer this Agreement and the transactions contemplated hereby, and (iii) the
term "Seller" shall be deemed to refer to Seller and each of its wholly owned
Subsidiaries.
(b) Seller represents and warrants to Purchaser that the FCC
Licenses being sold, assigned and transferred to Purchaser hereunder and the
Assumed Liabilities are all of the FCC Licenses and liabilities associated with
the C and F block FCC Licenses owned by Seller (other than those being sold,
assigned and transferred to Cook Inlet/VS GSM II PCS, LLC).
ARTICLE 5
Representations and Warranties of Purchaser
Purchaser represents and warrants to Seller as follows:
5.1 Existence and Power. Purchaser is a limited liability company duly
organized, validly existing and in good standing under Delaware Law and has all
company power and authority required to carry on its business as now conducted
and to own, operate and lease its property. Purchaser, has heretofore delivered
or made available to Seller a true and complete copy of its limited liability
company agreement as currently in effect.
5.2 Corporate Authorization.
(a) The execution, delivery and performance by Purchaser of this
Agreement and the consummation by Purchaser of the transactions contemplated
hereby are within Purchaser's powers and have been duly authorized by all
necessary action on the part of Purchaser. This Agreement has been duly and
validly executed and delivered by Purchaser and, assuming the due and valid
authorization, execution and delivery of this
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<PAGE> 12
Agreement by Seller, constitutes a valid and binding agreement of Purchaser,
enforceable against it in accordance with its terms except as may be limited by
bankruptcy, insolvency, reorganization, moratorium and other similar laws
affecting creditors' rights generally and by equitable principles of general
applicability.
(b) Purchaser has (i) determined that this Agreement and the
transactions contemplated hereby are advisable and fair to it and in its best
interest; and (ii) approved this Agreement and the transactions contemplated
hereby. No other proceedings on the part of Purchaser are necessary to authorize
or approve this Agreement or to consummate the transactions contemplated hereby.
5.3 Governmental Authorization.
(a) The execution, delivery and performance by Purchaser of this
Agreement and the consummation by Purchaser of the transactions contemplated
hereby require no action by or in respect of, or filing with, any Governmental
Body, other than: (i) compliance with any applicable requirements of the
Communications Act; (ii) compliance with any applicable requirements of the HSR
Act; (iii) compliance with FAA regulations; (iv) compliance with any applicable
requirements of state and local public utility commissions or similar entities;
and (v) any actions or filing, the absence of which would not in the aggregate
prevent or delay consummation of the transactions contemplated hereby in any
material respect, or otherwise prevent Purchaser from performing its obligations
under this Agreement in any material respect.
(b) Purchaser has not made any misstatements of fact, or omitted
to disclose any fact, to any Governmental Body, which misstatements or
omissions, individually or in the aggregate, could subject any Licenses or
authorizations to revocation or failure to renew.
5.4 Non-contravention. The execution, delivery and performance by
Purchaser of this Agreement and the consummation by Purchaser of the
transactions contemplated hereby do not and will not (i) contravene, conflict
with, or result in any violation or breach of any provision of the limited
liability company agreement or other governing instrument of Purchaser (ii)
assuming compliance with the matters referred to in Section 5.3, contravene,
conflict with or result in a violation or breach of any provision of any
applicable law, statute, ordinance, rule, regulation, judgment, injunction,
order, or decree; (iii) require any consent or other action by any Person under,
constitute a default (or an event that, with or without notice or lapse of time
or both, would constitute a default) under, or cause or permit the termination,
cancellation, acceleration, triggering or other change of any right or
obligation or the loss of any benefit to which Purchaser is entitled under (A)
any provision of any agreement or other instrument binding upon Purchaser or (B)
any License, franchise, permit, certificate, approval or other similar
authorization held by, or affecting, or relating in any way to, the assets or
business of, Purchaser; or
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<PAGE> 13
(iv) result in the creation or imposition of any Lien on any asset of Purchaser,
other than such exceptions in the case of clauses (ii), (iii) and (iv) as would
not be, individually or in the aggregate, reasonably expected to have a
Purchaser Material Adverse Effect or materially impair or delay the ability of
Purchaser to consummate the transactions contemplated hereby.
5.5 Capitalization.
(a) Except for the obligations to Seller hereunder, and any
issuances of membership interests to Purchaser's sole member, there are no
outstanding subscriptions, options, warrants, rights or convertible or
exchangeable securities issued by Purchaser or other agreements or commitments
to which Purchaser is a party of any character relating to the issued or
unissued membership interests or other securities of Purchaser, including any
agreement or commitment obligating Purchaser to issue, deliver or sell, or cause
to be issued, delivered or sold, membership interests or other securities of
Purchaser, to grant, extend or enter into any subscription, option, warrant,
right or convertible or exchangeable security or other similar agreement or
commitment with respect to Purchaser or to make any payments pursuant to any
stock based or stock related plan or award.
5.6 Finders' Fees. There is no investment banker, broker, finder or
other intermediary that has been retained by or is authorized to act on behalf
of Purchaser who might be entitled to any fee or commission from Purchaser in
connection with the transactions contemplated by this Agreement other than as
specified in the Reorganization Agreement.
5.7 Formation and Liabilities. Purchaser was formed on June 21, 1999 for
purposes of consummating the transactions contemplated hereby. Other than in
connection with the transactions contemplated by this Agreement, Purchaser has
taken no actions, incurred no liabilities and conducted no business.
ARTICLE 6
Covenants of Seller
The covenants of Seller (referred to as Omnipoint in the Reorganization
Agreement) set forth in Article 6 of the Reorganization Agreement are hereby
incorporated herein by reference for the benefit of Purchaser to the same extent
as if fully set forth herein; provided, that for purposes of Article 6 of this
Agreement, the term "VoiceStream" shall be deemed to refer to Purchaser.
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<PAGE> 14
ARTICLE 7
Covenants of Purchaser
Purchaser agrees that during the period from the date hereof until the
Closing Date it shall not take any action, conduct any business, acquire any
assets, incur any liabilities or enter into any Contracts (other than the LLC
Agreement or as contemplated by the agreement of even date herewith between Cook
Inlet GSM, Inc. and VoiceStream (the "VoiceStream Agreement")), except in
connection with or in furtherance of the transactions contemplated hereby.
ARTICLE 8
Covenants of Seller and Purchaser
Each of the parties hereto agree that:
8.1 Best Efforts.
(a) Subject to the terms and conditions of this Agreement, each
of the parties will use its reasonable best efforts to, and Seller will
cooperate with and assist Purchaser, and with respect to matters that are within
Seller's power or control will use its best efforts to promptly (i) take, or
cause to be taken, all actions and to do, or cause to be done, all things
necessary, proper or advisable under applicable laws and regulations to
consummate the transactions contemplated by this Agreement as soon as
practicable, including preparing and filing as promptly as practicable all
documentation to effect all necessary filings, notices, petitions, statements,
registrations, submissions of information, applications and other documents, and
(ii) obtain and maintain all approvals, consents, registrations, permits,
authorizations and other confirmations required to be obtained from any third
party (including consents of the FAA and other Governmental Bodies) that are
necessary, proper or advisable to consummate the transactions contemplated by
this Agreement; provided, however, Purchaser shall not be required to divest or
hold separate or otherwise take or commit to take any action that limits its
freedom of action with respect to any material portion of the Assets of
Purchaser or any of the Purchaser's business. At Purchaser's request, Seller
will commit to and implement any divestiture, hold separate or similar
transaction or action with respect to any asset or business of the Seller, which
commitment and implementation may, at Seller's option, be conditioned upon and
effective as of the Closing Date. Subject to applicable laws relating to the
exchange of information, Purchaser and Seller shall have the right to review in
advance, and to the extent practicable to consult with each other on, all the
information relating to
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<PAGE> 15
Seller and any of its Subsidiaries or Purchaser, as applicable, that appears in
any filing made with, or written materials submitted to, any third party and/or
any Governmental Bodies in connection with the transactions contemplate hereby.
(b) As promptly as practicable after the execution and delivery
of this Agreement, Purchaser and Seller shall prepare all appropriate
applications for FCC approval, and such other documents as may be required, with
respect to the transfer of control of the FCC Licenses of Seller (collectively,
the "FCC Applications"). Not later than the tenth Business Day following
execution and delivery of this Agreement, Seller and Purchaser will exchange
with each other their respective completed portions of the FCC Applications. Not
later than the fifteenth Business Day following the execution and delivery of
this Agreement, Seller and Purchaser shall file, or cause to be filed, the FCC
Applications. If the Closing Date shall not have occurred for any reason within
any applicable initial consummation period, as provided in the Reorganization
Agreement, and the Reorganization Agreement shall not have been terminated
pursuant to Section 10.1 of the Reorganization Agreement, Purchaser and Seller
shall jointly request one or more extensions of the consummation period of such
grant. No party hereto shall knowingly take, or fail to take, any action if the
intent or reasonably anticipated consequence of such action or failure to act
is, or would be, to cause the FCC not to grant approval of the FCC Applications
or delay either such approval or the consummation of the transfer of the FCC
Licenses of Seller. Seller and Purchaser shall each pay one-half (1/2) of any
FCC fees, if applicable, in connection with the filing or granting of approval
of the FCC Applications. Each of Seller and Purchaser shall bear its own
expenses in connection with the preparation and prosecution of the FCC
Applications. Seller and Purchaser shall each use all reasonable efforts to
prosecute the FCC Applications in good faith and with due diligence before the
FCC and in connection therewith shall take such action or actions as may be
necessary or reasonably required in connection with the FCC Applications,
including furnishing to the FCC any documents, materials or other information
requested by the FCC in order to obtain such FCC approval as expeditiously as
practicable.
(c) Promptly after the date hereof, Purchaser and Seller (as may
be required pursuant to the HSR Act) will complete all documents required to be
filed with the Federal Trade Commission and the Department of Justice in order
to comply with the HSR Act and, not later than 10 Business Days after the date
hereof, together with the Persons who are required to join in such filings,
shall file the same with the appropriate Governmental Bodies. Purchaser and
Seller shall each pay one-half (1/2) of any fees that may be payable in
connection with the filing pursuant to the HSR Act. Purchaser and Seller shall
promptly furnish all materials thereafter required by any of the Governmental
Bodies having jurisdiction over such filings, and shall take all reasonable
actions and shall file and use all reasonable efforts to have declared effective
or approved all documents and notifications with any such Governmental Bodies,
as may be required
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<PAGE> 16
under the HSR Act or other federal antitrust laws for the consummation of the
transactions contemplated hereby.
(d) In addition to the filings required by the HSR Act and the
Communications Act, the Parties shall (i) as promptly as possible and in any
event within 15 days after the date hereof file with any other applicable
Governmental Bodies (including, but not limited to the FAA) the applications and
related documents required to be filed by such Governmental Bodies (and
prosecute diligently any such applications, including providing such information
as such Governmental Bodies may reasonably request) in order to consummate the
transactions, (ii) cooperate with each other as may reasonably be requested in
connection with the foregoing, and (iii) otherwise use their best efforts to
obtain promptly the requested consent and approval of the applications by any
applicable Governmental Bodies. Purchaser and Seller shall each pay one half
(1/2) of all filing or other Governmental Body filing or grant fees in
connection with the applications requesting its consent to the consummation of
the transactions contemplated by this Agreement.
8.2 Public Announcements. So long as this Agreement is in effect,
Purchaser and Seller will consult with each other before issuing any press
release or making any public statement with respect to the transactions
contemplated by this Agreement and except as may be required by applicable law
or any listing agreement with any national securities exchange, will not issue
any such press release or make any such public statement without the prior
consent of the other party, which consent shall not be unreasonably withheld or
delayed. Notwithstanding the foregoing, any such press release or public
statement as may be required by applicable law or any listing agreement with any
national securities exchange or NASDAQ may be issued without such consent, if
the party making such release or statement has used its reasonable efforts to
consult with the other party.
8.3 Further Assurances. At and after the Closing Date, the officers and
directors of Purchaser will be authorized to execute and deliver, in the name
and on behalf of Seller, any deeds, bills of sale, assignments or assurances and
to take and do, in the name and on behalf of Purchaser or Seller any other
actions and things to vest, perfect or confirm of record in Purchaser any and
all right, title and interest in, to and under any of the FCC Licenses rights,
properties or Assets of Seller or Purchaser acquired or to be acquired by
Purchaser as a result of, or in connection with, the transactions contemplated
by this Agreement.
8.4 Notices of Certain Events. Each of Purchaser and Seller shall
promptly notify the other of:
(a) any notice or other communication from any Person alleging
that the consent of such Person is or may be required in connection with the
transactions contemplated by this Agreement;
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<PAGE> 17
(b) any notice or other communication from any Governmental Body
in connection with the transactions contemplated by this Agreement;
(c) the occurrence, or non-occurrence, of any event the
occurrence, or non-occurrence, of which would be reasonably expected to cause
any representation or warranty made by it and contained herein to be untrue or
inaccurate in any material respect at any time during the period commencing on
the date hereof and ending at the Closing Date;
(d) any failure of such party to comply with or satisfy any
covenant, condition or agreement to be complied with or satisfied by it
hereunder; provided, however, that the delivery of any notice pursuant to this
Section 8.4 shall not limit or otherwise affect the remedies available hereunder
to the party receiving such notice;
(e) any actions, suits, claims, investigations or proceedings
commenced or, to its knowledge threatened against such party, or which relate to
the consummation of the transactions contemplated by this Agreement; and
(f) any event, condition or state of facts which could have a
Seller Material Adverse Effect or a Purchaser Material Adverse Effect.
ARTICLE 9
Conditions to Closing
9.1 Conditions to the Obligations of Each Party. The obligations of
Seller and Purchaser to consummate the Closing are subject to the satisfaction
of the following conditions:
(a) any applicable waiting period under the HSR Act relating to
the transactions contemplated hereby shall have expired or been terminated;
(b) no provision of any applicable law or regulation and no
judgment, injunction, order or decree shall prohibit the consummation of the
transactions contemplated hereby;
(c) all Governmental Consents shall have been obtained and be in
effect, and be subject to no limitations, conditions, restrictions or
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obligations, except for such consents the failure to obtain would not, and such
limitations, conditions, restrictions or obligation as would not, individually
or in the aggregate, be reasonably expected to have a Seller Material Adverse
Effect or Purchaser Material Adverse Effect;
(d) no court, arbitrator or Governmental Body shall have issued
any order, and there shall not be any statute, rule or regulation restraining or
prohibiting the effective operation of the business of Purchaser or Seller after
the Closing that would be reasonably expected to have a Purchaser Material
Adverse Effect (after giving effect to the transactions contemplated hereby);
(e) the FCC Consent shall have become a Final Order and shall not
contain any conditions with respect to Seller or Purchaser, which conditions
would have a Seller Material Adverse Effect or Purchaser Material Adverse
Effect; and
(f) all conditions set forth in Article 9 of the Reorganization
Agreement have been satisfied or expressly waived in writing.
9.2 Conditions to the Obligations of Purchaser. The obligations of
Purchaser to consummate the Closing are subject to the satisfaction of the
following further conditions:
(a) (i) Seller shall have performed in all material respects all
of its obligations hereunder and under the Reorganization Agreement required to
be performed by it at or prior to the Closing, (ii) the representations and
warranties of Seller contained in this Agreement and in any certificate or other
writing delivered by Seller pursuant hereto, disregarding all qualifications and
exceptions contained therein relating to materiality or a Seller Material
Adverse Effect or any similar standard or qualification, shall be true and
correct at and as of the Closing, as if made at and as of such time (other than
representations or warranties that address matters only as of a certain date,
which shall be true and correct as of such date), with only such exceptions as,
individually or in the aggregate, have not had and would not be reasonably
expected to have a Seller Material Adverse Effect, and (iii) Purchaser shall
have received a certificate signed by an executive officer of Seller to the
foregoing effect.
(b) All conditions to the obligations of Seller and VoiceStream
to close the Transactions contemplated by the Reorganization Agreement shall
have been satisfied or waived, and each of Seller and VoiceStream shall deliver
to Purchaser a certificate signed by an executive officer certifying that the
closing of the Transactions contemplated by the Reorganization Agreement will
occur immediately following the closing of the transactions contemplated herein;
provided, however, that if the Transactions contemplated by the Reorganization
Agreement do not close immediately after the Closing of the transactions
hereunder, the transactions contemplated hereunder shall be void and of no
further force and effect.
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(c) All conditions to the obligations of VoiceStream and Cook
Inlet GSM, Inc. to close the transactions contemplated by the VoiceStream
Agreement shall have been satisfied or expressly waived in writing.
9.3 Conditions to the Obligations of Seller. The obligations of Seller
to consummate the Closing are subject to the satisfaction of the following
further conditions:
(a) (i) Purchaser shall have performed in all material respects
all of its obligations hereunder required to be performed by it at or prior to
the Closing; (ii) the representations and warranties of Purchaser contained in
this Agreement and in any certificate or other writing delivered by Purchaser
pursuant hereto, disregarding all qualifications and exceptions contained
therein relating to materiality or a Purchaser Material Adverse Effect or any
similar standard or qualification shall be true and correct at and as of the
Closing, as if made at and as of such time (other than representations and
warranties that address matters only as of a certain date, which shall be true
and correct as of such date), with only such exceptions as, individually or in
the aggregate, have not had and would not be reasonably expected to have a
Purchaser Material Adverse Effect; (iii) Seller shall have received a
certificate signed by an executive officer of Purchaser to the foregoing effect;
and (iv) that Cook Inlet GSM, Inc. shall have contributed at least $15 million
to the capital of Purchaser.
(b) All conditions to the obligations of VoiceStream and Cook
Inlet GSM, Inc. to close the transactions contemplated by the VoiceStream
Agreement shall have been satisfied or expressly waived in writing.
ARTICLE 10
Termination
10.1 Termination. This Agreement shall be terminated and the
transactions contemplated hereby shall be abandoned upon termination of the
Reorganization Agreement.
10.2 Effect of Termination. If this Agreement is terminated pursuant to
Section 10.1, this Agreement shall become void and of no effect without
liability of any party (or any stockholder, member, director, officer, employee,
agent, consultant or representative of such party) to the other parties hereto,
except that the agreements contained in this Section 10.2 and in Section 10.3
shall survive the termination hereof and no such termination shall relieve any
party of any liability or damages resulting from any breach by such party of
this Agreement.
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10.3 Fees and Expenses. Except as otherwise provided herein, all costs
and expenses incurred in connection with this Agreement shall be paid by the
party incurring such cost or expense whether or not the transactions
contemplated hereby are consummated.
ARTICLE 11
Miscellaneous
11.1 Notices. All notices, requests and other communications to any
party hereunder shall be in writing (including facsimile transmission) and shall
be given,
if to Purchaser, to:
Cook Inlet/VS GSM III PCS, LLC
2525 "C" Street
Anchorage, Alaska 99503
Attention: Craig A. Floerchinger
Fax: (907) 263-5181
with copies to:
VoiceStream Wireless Corporation
3650 131 Avenue SE
Bellevue, Washington 98006
Attention: Alan R. Bender, Esq.
Fax: (425) 586-8080
and:
Friedman Kaplan & Seiler LLP
875 Third Avenue
New York, New York 10022
Attention: Barry A. Adelman, Esq.
Fax: (212) 355-6401
and:
Cook Inlet Region Inc.
2525 "C" Street
Anchorage, Alaska 99503
Attention: General Counsel
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Fax: (907) 263-5182
and:
Munger, Tolles & Olson LLP
355 South Grand Ave.
Los Angeles, California 90071-1560
Attention: Judith T. Kitano, Esq.
Fax: (213) 687-3702
if to Seller, to:
Omnipoint Corporation
Three Bethesda Metro Center
Suite 400
Bethesda, MD 20814
Attention: Douglas G. Smith
Fax: (301) 951-2518
with copies to:
Piper & Marbury L.L.P.
1200 Nineteenth Street, N.W.
Washington, D.C. 20036
Attention: Edwin M. Martin, Jr., Esq.
Fax: (202) 223-2085
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.
11.2 Reliance on Representations. Notwithstanding any investigation
knowledge or review made at any time by or on behalf of any party hereto, the
parties acknowledge and agree that all representations and warranties contained
in this Agreement, or in the Schedules or in any of the documents, certificates
or agreements delivered in connection therewith are being relied upon as a
material inducement to enter into this Agreement and the transactions
contemplated hereby.
11.3 Survival of Representations and Warranties. The representations and
warranties contained herein and in any certificate or other writing delivered
pursuant
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hereto shall not survive the Closing Date or, except as provided under Section
10.2 of this Agreement, the termination of this Agreement.
11.4 Amendments; No Waivers.
(a) Subject to applicable Delaware Law, any provision of this
Agreement may be amended or waived prior to the Closing Date if, 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.
(b) 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.
11.5 Successors and Assigns. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns; provided that no party may assign, delegate or otherwise
transfer any of its rights or obligations under this Agreement without the
consent of each other party hereto.
11.6 Governing Delaware 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.
11.7 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 Delaware
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 11.1 shall be deemed
effective service of process on such party.
11.8 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.
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11.9 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.
11.10 Entire Agreement; No Third Party Beneficiaries. 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 the subject matter of
this Agreement. This Agreement is not intended to confer upon any Person other
than the parties hereto any rights or remedies.
11.11 Captions. The captions herein are included for convenience of
reference only and shall be ignored in the construction or interpretation
hereof.
11.12 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.
11.13 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 Delaware Law or in equity.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
OMNIPOINT CORPORATION
By:
-------------------------------
Name:
Title:
COOK INLET/VS GSM III PCS, LLC
By: Cook Inlet GSM, Inc., its Manager
By:
-------------------------------
Name:
Title:
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TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
ARTICLE 1 -- Defined Terms............................................................1
1.1 (a) Defined Terms..................................................1
ARTICLE 2 -- Purchase.................................................................8
2.1 Purchase and Sale.....................................................8
2.2 Purchase Price........................................................8
2.3 Closing...............................................................8
2.4 Bill of Sale..........................................................9
ARTICLE 3 -- Assumption of Certain Liabilities........................................9
3.1 Assumed Liabilities...................................................9
3.2 Liabilities Not Assumed...............................................9
3.3 Assumption Agreement..................................................9
ARTICLE 4 -- Representations and Warranties of Seller................................10
ARTICLE 5 -- Representations and Warranties of Purchaser.............................10
5.1 Existence and Power..................................................10
5.2 Corporate Authorization..............................................11
5.3 Governmental Authorization...........................................11
5.4 Non-contravention....................................................11
5.5 Capitalization.......................................................12
5.6 Finders' Fees........................................................12
5.7 Formation and Liabilities............................................12
ARTICLE 6 -- Covenants of Seller.....................................................13
ARTICLE 7 -- Covenants of Purchaser..................................................13
ARTICLE 8 -- Covenants of Seller and Purchaser.......................................13
8.1 Best Efforts.........................................................13
8.2 Public Announcements.................................................15
8.3 Further Assurances...................................................15
8.4 Notices of Certain Events............................................16
</TABLE>
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ARTICLE 9 -- Conditions to Closing...................................................16
9.1 Conditions to the Obligations of Each Party..........................16
9.2 Conditions to the Obligations of Purchaser...........................17
9.3 Conditions to the Obligations of Seller..............................18
ARTICLE 10 -- Termination............................................................18
10.1 Termination..........................................................19
10.2 Effect of Termination................................................19
10.3 Fees and Expenses....................................................19
ARTICLE 11 -- Miscellaneous..........................................................19
11.1 Notices..............................................................19
11.2 Reliance on Representations..........................................21
11.3 Survival of Representations and Warranties...........................21
11.4 Amendments; No Waivers...............................................21
11.5 Successors and Assigns..............................................21
11.6 Governing Delaware Law...............................................21
11.7 Jurisdiction.........................................................21
11.8 Waiver of Jury Trial.................................................22
11.9 Counterparts; Effectiveness..........................................22
11.10 Entire Agreement; No Third Party Beneficiaries.......................22
11.11 Captions.............................................................22
11.12 Severability.........................................................22
11.13 Specific Performance.................................................23
</TABLE>
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<PAGE> 27
SCHEDULES
Schedule Number Name
Schedule I FCC Licenses
Schedule 3.1(a) Schedule I Assumed Liabilities
iii
<PAGE> 28
Schedule 3.1(a)
None
iv
<PAGE> 1
EXHIBIT 4.1
STOCK SUBSCRIPTION AGREEMENT
BY AND AMONG
VOICESTREAM WIRELESS CORPORATION,
HUTCHISON TELECOMMUNICATIONS LIMITED
AND
HUTCHISON TELECOMMUNICATIONS PCS (USA) LIMITED
DATED: June 23, 1999
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ARTICLE 1 - DEFINITIONS......................................................................1
ARTICLE 2 - PURCHASE AND EXCHANGE OF STOCK, CLOSING..........................................3
2.01 Purchase and Exchange of Stock.......................................................3
(a) Purchase...........................................................................3
(b) Exchange...........................................................................4
2.02 Closing..............................................................................4
(a) Closing Date.......................................................................4
(b) Location...........................................................................4
ARTICLE 3 - COVENANTS AND AGREEMENTS.........................................................4
3.01 Covenant of the Company..............................................................5
3.02 Covenant of the Investor.............................................................5
3.03 HSR Act..............................................................................5
3.04 FCC Consent..........................................................................5
ARTICLE 4 - REPRESENTATIONS AND WARRANTIES...................................................5
4.01 Representations and Warranties of the Company........................................6
(a) Due Organization...................................................................6
(b) Power and Authority No Violation...................................................6
(c) Legal Matters......................................................................6
(d) Truth and Correctness..............................................................7
(e) Purchased Shares...................................................................7
(f) Investment Company Act.............................................................7
(g) No Brokers.........................................................................7
(h) Reports and Financial Statements...................................................7
(i) No Material Adverse Effect on the Company..........................................8
4.02 Representations and Warranties of the Investor.......................................8
(a) Due Organization...................................................................8
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(b) Power and Authority No Violation...................................................8
(c) Legal Matters......................................................................8
(d) Securities Representation..........................................................9
(e) Investment Company Act............................................................10
(f) Truth and Correctness.............................................................10
(g) No Brokers........................................................................10
(h) No Interest in FCC Licenses.......................................................10
ARTICLE 5 - CONDITIONS TO OBLIGATIONS.......................................................10
5.01 Conditions to the Obligation of the Company.........................................10
(a) Representations and Warranties True...............................................10
(b) HSR Act...........................................................................11
(c) Purchase Price; Exchange..........................................................11
(d) Resolutions.......................................................................11
(e) No New Statutes...................................................................11
(f) Omnipoint Merger Agreement........................................................11
5.02 Conditions to the Obligation of the Investor........................................11
(a) Representations and Warranties True...............................................11
(b) HSR Act...........................................................................12
(c) Stock Certificates................................................................12
(d) Resolutions.......................................................................12
(e) No New Statutes...................................................................12
(f) Omnipoint Merger Agreement........................................................12
ARTICLE 6 - MISCELLANEOUS...................................................................12
6.01 Expenses............................................................................12
6.02 Equitable Remedies..................................................................12
6.03 Notices.............................................................................13
6.04 Entire Agreement....................................................................15
6.05 Remedies Cumulative.................................................................15
6.06 Governing Law.......................................................................15
6.07 Counterparts........................................................................15
6.08 Waivers.............................................................................15
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6.09 Successors and Assigns..............................................................15
6.10 Further Assurances..................................................................15
6.11 Disclosures.........................................................................15
6.12 Termination.........................................................................15
(a) Events Triggering Termination.....................................................16
(b) No Further Obligation.............................................................16
6.13 Jurisdiction; Consent to Service of Process.........................................16
</TABLE>
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<PAGE> 5
STOCK SUBSCRIPTION AGREEMENT
STOCK SUBSCRIPTION AGREEMENT, dated June 23, 1999 (the
"Agreement"), by and among VOICESTREAM WIRELESS HOLDING CORPORATION, a Delaware
corporation (the "Company"), Hutchison Telecommunications Limited, a Hong Kong
corporation ("HTL") and Hutchison Telecommunications PCS (USA) Limited, a
British Virgin Islands corporation (the "Investor").
WITNESSETH:
WHEREAS, the Company is engaged in the communications business
in the United States;
WHEREAS, Investor is a wholly-owned subsidiary of HTL, and, after
giving effect to the consummation of the transactions contemplated by the
Omnipoint Merger Agreement, will be a stockholder of the Company;
WHEREAS, upon the terms and conditions set forth in this
Agreement, the Company has determined to issue and sell, and the Investor has
determined to purchase, for an aggregate purchase price of Eight Hundred Seven
Million ($807,000,000) Dollars in cash and the exchange of shares of Omnipoint
Preferred Stock (as defined below) or shares of Omnipoint Common Stock (as
defined below) into which shares of Omnipoint Preferred Stock shall have been
converted, shares of Common Stock without par value, of the Company (the "Common
Stock") and shares of 2_% Convertible Junior Preferred Stock, without par value,
of the Company (the "Junior Preferred Stock").
NOW, THEREFORE, in consideration of the mutual covenants,
conditions and promises hereinafter set forth, the parties hereby agree as
follows:
ARTICLE 1
DEFINITIONS
Unless the context otherwise requires, the terms defined
hereunder shall have the meanings therein specified for all purposes of this
Agreement, applicable to both the singular and plural forms of any of the terms
defined herein. For purposes of this Agreement:
"Affiliate" shall mean, with respect to any party hereto, any
corporation or other business entity which directly or indirectly through stock
ownership or through any other arrangement either controls, is controlled by or
is under common control with, such party. The term "control" shall mean the
power to direct the affairs of such person by reason of ownership of voting
stock or other equity interests, by contract or otherwise.
<PAGE> 6
"Agreement" shall have the meaning set forth in the preamble
hereof.
"Beneficially Own" shall have the meaning set forth in Rider
13d-3 of the Exchange Act.
"Business Day" shall mean any day other than a Saturday, Sunday
or a legal holiday in New York, New York, Seattle, Washington or Hong Kong or
any other day on which commercial banks in those locations are authorized by law
or governmental decree to close.
"Closing" shall have the meaning set forth in Section 2.02.
"Closing Date" shall have the meaning set forth in Section 2.02.
"Common Stock" shall have the meaning set forth in the preamble
hereof.
"Company" shall have the meaning set forth in the preamble
hereof.
"Dollar" or "$" shall mean the basic unit of the lawful currency
of the United States of America.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
and any similar or successor Federal statute, and the rules and regulations
promulgated thereunder, all as amended, and as the same may be in effect from
time to time.
"Exchanged Shares" shall have the meaning set forth in Section
2.01(b).
"HSR Act" shall mean the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended.
"Investor" shall have the meaning set forth in the preamble
hereof.
"Junior Preferred Stock" shall have the meaning set forth in the
preamble hereof.
"Liens" shall mean any lien, claim, security interest, charge,
encumbrance or title retention agreement of any nature.
"Material Adverse Effect on the Company" shall mean a material
adverse effect on the financial condition, operations or business of the Company
and its subsidiaries, taken as a whole, or the ability of the Company to enter
into and consummate the transactions contemplated by this Agreement in
accordance with its terms.
"Omnipoint" shall mean Omnipoint Corporation, a Delaware
corporation.
"Omnipoint Common Stock" shall mean Common Stock, $0.01 par
value, of Omnipoint.
2
<PAGE> 7
"Omnipoint Exchange" shall have the meaning set forth in Section
2.01(b).
"Omnipoint Merger Agreement" shall mean the Agreement and Plan
of Reorganization, dated as of June 23, 1999, by and among the Company,
VoiceStream Wireless Corporation, a Washington corporation, and Omnipoint
Corporation, a Delaware corporation.
"Omnipoint Preferred Stock" means Series A Non-Voting
Convertible Preferred Stock, $0.01 par value, of Omnipoint.
"Person" shall mean any general or limited partnership,
corporation, joint venture, trust, business trust, governmental agency,
cooperative, association, individual or other entity, and heirs, executors,
administrators, legal representatives, successors and assigns of such person.
"Purchase Price" shall have the meaning set forth in Section
2.01(a).
"Purchased Shares" shall have the meaning set forth in Section
2.01(a).
"SEC" shall mean the Securities and Exchange Commission or its
successors.
"Securities Act" shall mean the Securities Act of 1933, and any
similar or successor Federal statute, and the rules and regulations promulgated
thereunder, all as amended, and as the same may be in effect from time to time.
When a reference is made in this Agreement to a Section, such
reference shall be to a Section of this Agreement unless otherwise indicated.
Whenever the words "include," "includes" or "including" are used in this
Agreement, they shall be deemed to be followed by the words "without
limitation." The use of a gender herein shall be deemed to include the neuter,
masculine and feminine genders whenever necessary or appropriate. Whenever the
word "herein" or "hereof' is used in this Agreement, it shall be deemed to refer
to this Agreement and not to a particular Section of this Agreement unless
expressly stated otherwise.
ARTICLE 2
PURCHASE AND EXCHANGE OF STOCK; CLOSING
2.01 Purchase and Exchange of Stock.
(a) Purchase. The Investor hereby subscribes for and agrees to
purchase from the Company, and the Company hereby accepts the Investor's
subscription for and agrees to sell to the Investor, for an aggregate purchase
price of Eight Hundred Seven Million ($807,000,000) Dollars, shares of Common
Stock for a purchase price (in Dollars) per share equal to Twenty Nine ($29.00)
Dollars and shares of Junior Preferred Stock for a purchase price (in Dollars)
per share equal to One Hundred Thousand ($ 100,000.00) Dollars (collectively,
the "Purchased Shares"). The aggregate purchase price for all Purchased Shares
is Eight Hundred Seven Million
3
<PAGE> 8
($807,000,000) Dollars and is hereinafter referred to as the "Purchase Price."
The Investor should have the right, exercisable by written notice given to the
Company at least five (5) days prior to the Closing Date, to elect an allocation
between the number of shares of Common Stock and Junior Preferred Stock to be
purchased at the Closing; provided, however, that (i) the Investor agrees that
after giving effect to such election, the transactions contemplated by the
Omnipoint Merger Agreement, the Omnipoint Exchange and any other issuances of
Common Stock by the Company prior to the Closing Date, the Investor's ownership
of Common Stock on the Closing Date shall not be less than 18.6%, and (ii) such
election by the Investor shall not reduce or alter the Purchase Price required
to be paid by the Investor to the Company on the Closing Date. In the absence of
any such election, the Investor shall be deemed to have elected to acquire that
number of shares of Common Stock as shall result in the Investor's ownership of
Common Stock on the Closing Date, after giving effect to such purchase, the
transactions contemplated by the Omnipoint Merger Agreement, the Omnipoint
Exchange and any other issuances by the Company prior to the Closing Date, being
18.6%. HTL hereby irrevocably and unconditionally agrees to cause the Investor
to perform its obligations (including causing or enabling it to make the payment
of the Purchase Price) hereunder.
(b) Exchange. On the Closing Date, Investor shall exchange (the
"Omnipoint Exchange") all shares of Omnipoint Preferred Stock previously
purchased by it (or, if any of such Omnipoint Preferred Stock shall previously
have been converted by it, both (i) the shares of Omnipoint Common Stock
received upon conversion thereof and (ii) any Omnipoint Preferred Stock which
shall not have been so converted) for, and the Company shall issue in exchange
therefor, 5,172,413 shares of Common Stock (such number to be proportionately
reduced if the aggregate liquidation value of all Omnipoint Preferred Stock
purchased by Investor shall be less than $150,000,000) (the "Exchanged Shares").
2.02 Closing.
(a) Closing Date. Consummation of the transactions contemplated
hereby (the "Closing") shall take place, subject to the satisfaction (or express
written waiver) of all conditions to the Closing under Article 5 hereof,
simultaneously with the consummation of the transactions contemplated by the
Omnipoint Merger Agreement. The date on which the Closing takes place shall be
referred to herein as the "Closing Date."
(b) Location. The Closing shall take place at 11:00 A.M. on the
Closing Date, at the offices of the Company located at 3650 13 1st Avenue SE,
Bellevue, Washington 98006 or at such other place as the parties hereto shall
agree. At the Closing the Company shall, upon receipt of the Purchase Price by
wire transfer of immediately available funds to the account specified therefor
by the Company, promptly deliver to the Investor duly executed and issued stock
certificates evidencing the Purchased Shares.
4
<PAGE> 9
ARTICLE 3
COVENANTS AND AGREEMENTS
3.01 Covenant of the Company. From and after the execution and
delivery of this Agreement to and including the Closing Date, the Company shall
use its best efforts to cause the transactions contemplated by this Agreement to
be consummated in accordance with the terms hereof.
3.02 Covenant of the Investor. From and after the execution and
delivery of this Agreement to and including the Closing Date, the Investor shall
use its best efforts to cause the transactions contemplated by this Agreement to
be consummated in accordance with the terms hereof.
3.03 HSR Act. It is understood that the consummation of this
transaction may be subject to the filing with the Federal Trade Commission and
the Antitrust Division of the Department of Justice of all reports and
notifications which are required under the HSR Act and the expiration or
termination of certain applicable waiting periods under the HSR Act without
objection by such authorities. If required, HTL, the Investor and the Company
shall file, or cause to be filed, with the Federal Trade Commission and the
Antitrust Division of the Department of Justice any and all such reports or
notifications and any other filings required under any other Federal law or
administrative regulations in connection with the purchase of the Purchased
Shares under this Agreement. Further, the Investor shall not be entitled to make
an election to purchase shares of Common Stock pursuant to Section 2.01(a) that
would result in the ownership by the Investor of more than 18.6% of the Common
Stock unless the HSR Act shall have been complied with and all applicable
waiting periods thereunder shall have expired or been terminated.
3.04 FCC Consent. The consummation of the transactions
contemplated hereby may be subject to the prior approval or waiver of the FCC
and one or more state regulatory commissions. The parties shall use their best
efforts to file with the FCC and any relevant state regulatory commissions, to
the extent the prior approval or waiver of the FCC or of such regulatory
commissions shall be required, as soon as practicable following the date hereof
and in no event later than ten (10) Business Days from the date hereof, an
application requesting the approval or waiver of the FCC and of any such
regulatory commissions to the transactions contemplated hereby. Each of the
parties hereto shall diligently take or cooperate in the taking of all steps
which are necessary or appropriate to expedite the prosecution and favorable
consideration of such applications. The parties covenant and agree to undertake
all actions reasonably requested by the FCC or other regulatory commission and
to file such material as shall be necessary or required to obtain any necessary
approvals or waivers or other authority from the FCC or such state commissions
in connection with the foregoing applications.
5
<PAGE> 10
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
4.01 Representations and Warranties of the Company. The Company
represents and warrants to the Investor, which representations and warranties
shall survive the execution and delivery of this Agreement and the consummation
of the transactions herein contemplated, as follows:
(a) Due Organization. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware.
(b) Power and Authority No Violation. The Company has full power
and authority to execute, deliver and perform its obligations under this
Agreement and to consummate the transactions contemplated hereby. This Agreement
and all transactions contemplated hereby have been duly and validly authorized
by all necessary action on the part of the Company and this Agreement
constitutes a legal, valid and binding obligation of the Company enforceable in
accordance with its terms except as such enforceability may be limited by
bankruptcy, insolvency, moratorium or other similar laws affecting or relating
to enforcement of creditors' rights generally. Neither the execution, delivery
or performance of this Agreement nor the consummation of the transactions
contemplated hereby by the Company will, with or without the giving of notice or
the passage of time, or both, (i) conflict with, result in a default or loss of
rights (or give rise to any right of termination, cancellation or acceleration)
under, or result in the creation of any Lien, pursuant to (A) any provision of
the certificate of incorporation, by-laws, stockholders agreements or other
constituent documents of the Company; (B) any material note, bond, indenture,
mortgage, deed of trust, contract, agreement, lease or other instrument or
obligation to which the Company is a party or by which the Company or its
property may be bound or affected; or (C) any law, order, judgment, ordinance,
rule, regulation or decree to which the Company is a party or by which it or its
property is bound or affected; or (ii) give rise to any right of first refusal
or similar right with respect to any interest, or any properties or assets, of
the Company. No permit, consent, approval, authorization, qualification or
registration of, or declaration to or filing with any governmental or regulatory
authority or agency or third party is required to be obtained or made by the
Company in connection with the execution and delivery of this Agreement or the
consummation of the transactions contemplated hereby or thereby in order to (A)
render this Agreement or the transactions contemplated hereby or thereby valid
and effective and (B) enable the Company to sell the Purchased Shares (including
shares of Common Stock into which shares of the Junior Preferred Stock may be
converted) and the Exchanged Shares.
(c) Legal Matters. There is no claim, legal action, counterclaim,
suit, arbitration, governmental investigation or other legal, administrative or
tax proceeding, nor any order, decree or judgment, in progress or pending, or to
the knowledge of the Company threatened, against or relating to the right of the
Company to perform its obligations under this Agreement, nor does the Company
know or have reason to be aware of any basis for the same. There is outstanding
no order, writ, injunction, judgment or decree of any court, governmental agency
or arbitration tribunal which would individually or in the aggregate impair in
any material respect the performance of the obligations of the Company hereunder
or the consummation of the transactions contemplated by this Agreement other
than orders or decrees involving the wireless telephone industry in general.
6
<PAGE> 11
(d) Truth and Correctness. No representation or warranty by the
Company in this Agreement contains or will contain any untrue statement of a
material fact or omits or will omit to state a material fact necessary to make
the statements contained herein or therein, in light of the circumstances under
which such statements are made, not misleading.
(e) Purchased Shares. The Purchased Shares (including shares of
Common Stock into which shares of the Junior Preferred Stock may be converted)
and the Exchanged Shares (i) have been duly authorized by all necessary
corporate action on the part of the Company, (ii) shall be (when issued in
accordance with the terms of this Agreement) validly issued and outstanding,
fully paid and nonassessable, and (iii) shall not be subject to any preemptive
rights of the holders of any other class or series of the capital stock of the
Company. At the Closing, the Purchased Shares and the Exchanged Shares shall be
free and clear of all Liens, with the exception of any restrictions on
transferability under the Securities Act or any securities laws of any
jurisdiction.
(f) Investment Company Act. The Company is not an "investment
company" within the meaning of the Investment Company Act of 1940, as amended.
(g) No Brokers. No agent, broker, investment banker, Person or
firm is or will be entitled to any broker's or finder's fee or any other
commission or similar fee directly or indirectly in connection with the
transactions contemplated by this Agreement based in any way on any
arrangements, agreements or understandings made by or on behalf of the Company
or an Affiliate thereof, and the Company hereby agrees to indemnify the Investor
and agrees to hold harmless the Investor against and in respect of any claims
for brokerage and other commissions relating to such transactions based in any
way on any arrangements, agreements or understandings made by or on behalf of
the Company or an Affiliate thereof.
(h) Reports and Financial Statements. The Company has filed all
reports required to be filed with the SEC since the date hereof, (collectively,
including all exhibits thereto, the "SEC Reports"). None of such SEC Reports, as
of their respective dates (as amended through the date hereof), contained any
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading. Each of the
financial statements (including the related notes) included in the SEC Reports
presents fairly, in all material respects, the consolidated financial position
and consolidated results of operations and cash flows of the Company and its
subsidiaries as of the respective dates or for the respective periods set forth
therein, all in conformity with generally accepted accounting principles
consistently applied during the periods involved, subject, in the case of the
unaudited interim financial statements, to normal year-end adjustments and any
other adjustments described therein. All such SEC Reports, as of their
respective dates (as amended through the date hereof), complied in all material
respects with the requirements of the Exchange Act.
7
<PAGE> 12
(i) No Material Adverse Effect on the Company. During the period
since the date hereof, there has not been any change or event which would have a
Material Adverse Effect on the Company.
4.02 Representations and Warranties of the Investor. Each of HTL
and the Investor, jointly and severally, represents and warrants to the Company,
which representations and warranties shall survive the execution and delivery of
this Agreement and the consummation of the transactions herein contemplated, as
follows:
(a) Due Organization. HTL is a corporation duly
organized, validly existing and in good standing under the laws of Hong Kong.
The Investor is a corporation duly organized, validly existing and in good
standing under the laws of the British Virgin Islands.
(b) Power and Authority No Violation. Each of HTL and
the Investor has full power and authority to execute, deliver and perform its
obligations under this Agreement and to consummate the transactions contemplated
hereby. This Agreement and all transactions contemplated hereby have been duly
and validly authorized by all necessary action on the part of HTL and the
Investor and this Agreement constitutes a legal, valid and binding obligation of
HTL and the Investor enforceable in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, moratorium or other
similar laws affecting or relating to enforcement of creditors' rights
generally. Neither the execution, delivery or performance of this Agreement nor
the consummation of the transactions contemplated hereby by HTL or the Investor
will, with or without the giving of notice or the passage of time, or both, (i)
conflict with, result in a default or loss of rights (or give rise to any right
of termination, cancellation or acceleration) under, or result in the creation
of any Lien, pursuant to (A) any provision of the memorandum and articles of
association, certificate of incorporation, by-laws, stockholders agreements or
other constituent documents of HTL or the Investor; (B) any material note, bond,
indenture, mortgage, deed of trust, contract, agreement, lease or other
instrument or obligation to which HTL or the Investor is a party or by which it
or its property may be bound or affected; or (C) any law, order, judgment,
ordinance, rule, regulation or decree to which HTL or the Investor is a party or
by which it or its property is bound or affected; or (ii) give rise to any right
of first refusal or similar right with respect to any interest, or any
properties or assets, of HTL or the Investor. No permit, consent, approval,
authorization, qualification or registration of, or declaration to or filing
with any governmental or regulatory authority or agency or third party is
required to be obtained or made by HTL or the Investor in connection with the
execution and delivery of this Agreement or the consummation of the transactions
contemplated hereby in order to (A) render this Agreement or the transactions
contemplated hereby valid and effective and (B) enable the Investor to purchase
the Purchased Shares (including shares of Common Stock into which shares of the
Junior Preferred Stock may be converted) and the Exchanged Shares.
(c) Legal Matters. There is no claim, legal action,
counterclaim, suit, arbitration, governmental investigation or other legal,
administrative or tax proceeding, nor any order, decree or judgment, in progress
or pending, or to the knowledge of HTL or the Investor threatened, against or
relating to HTL's or the Investor's right to perform its obligations under this
Agreement, nor does HTL or the Investor know or have reason to be aware of any
basis for
8
<PAGE> 13
the same. There is outstanding no order, writ, injunction, judgment or decree of
any court, governmental agency or arbitration tribunal which would individually
or in the aggregate impair in any material respect the performance of HTL's or
the Investor's obligations hereunder or the consummation of the transactions
contemplated by this Agreement other than orders or decrees involving the
wireless telephone industry in general.
(d) Securities Representation. Each of HTL and the
Investor acknowledges that: (i) it is not a United States person (as defined in
Regulation S under the Securities Act) and, in determining to make its purchase
hereunder, has made its buying decision outside the United States; (ii) it is an
accredited investor (as defined in Rule 501 under the Securities Act); (iii) it
has such knowledge and experience in financial and business matters that it is
capable of evaluating the merits and risks of investing in the Company as
contemplated hereby or, alternatively, that it has engaged the services of a
representative who has such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of the proposed
investment and who has reviewed the proposed investment on its behalf; (iv) the
Purchased Shares (including shares of Common Stock into which shares of the
Junior Preferred Stock may be converted) being delivered by the Company to the
Investor have not been registered under the Securities Act or under the
securities laws of any state in reliance upon Federal and state exemptions for
offshore transactions or transactions not involving a public offering and are
not being acquired with a view to the distribution thereof except pursuant to a
registration statement in compliance with Federal and state securities laws or
an exemption therefrom; (v) the Purchased Shares (including shares of Common
Stock into which shares of the Junior Preferred Stock may be converted) and the
Exchanged Shares must be held by the Investor indefinitely unless subsequently
so registered or if an exemption from such registration is available; and (vi)
it has received information concerning the Company and has had the opportunity
to obtain additional information as desired in order to evaluate the merits and
risks inherent in holding the Purchased Shares (including shares of Common Stock
into which shares of the Junior Preferred Stock may be converted) and the
Exchanged Shares. The Investor agrees that the share certificate(s) which the
Investor receives from the Company (including shares of Common Stock into which
shares of the Junior Preferred Stock may be converted) shall be legended with
the following legend:
"THE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE "ACT") AND MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE
UNITED STATES OR TO U.S. PERSONS (AS DEFINED IN
REGULATION S UNDER THE ACT), EXCEPT PURSUANT TO AN
EXEMPTION FROM REGISTRATION THEREUNDER OR PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT THEREUNDER."
The share certificate(s) of Junior Preferred Stock which the Investor receives
from the Company shall also be legended with the following legend:
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<PAGE> 14
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE
TRANSFERRED TO ANY PERSON OTHER THAN TO CERTAIN AFFILIATES OF
THE REGISTERED HOLDER AND AS PERMITTED BY THE CERTIFICATE OF
DESIGNATION FOR THE SHARES OF 2_% CONVERTIBLE JUNIOR PREFERRED
STOCK REPRESENTED BY THIS CERTIFICATE."
(e) Investment Company Act. Neither HTL nor the Investor is an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
(f) Truth and Correctness. No representation or warranty by HTL
or the Investor in this Agreement contains or will contain any untrue statement
of a material fact or omits or will omit to state a material fact necessary to
make the statements contained herein or therein, in light of the circumstances
under which such statements are made, not misleading.
(g) No Brokers. No agent, broker, investment banker, Person or
firm is or will be entitled to any broker's or finder's fee or any other
commission or similar fee directly or indirectly in connection with the
transactions contemplated by this Agreement based in any way on any
arrangements, agreements or understandings made by or on behalf of either HTL or
the Investor or an Affiliate thereof, and each of HTL and the Investor hereby
agrees to indemnify the Company and agrees to hold harmless the Company against
and in respect of any claims for brokerage and other commissions relating to
such transactions based in any way on any arrangements, agreements or
understandings made by or on behalf of either HTL or the Investor or an
Affiliate of HTL or the Investor.
(h) No Interest in FCC Licenses. Neither HTL nor any of its
subsidiaries has any license to provide or is providing, or owns, directly or
indirectly, any interest in any entity which has a license to provide or which
is providing, commercial mobile radio services in the United States.
ARTICLE 5
CONDITIONS TO OBLIGATIONS
5.01 Conditions to the Obligation of the Company. The obligation
of the Company to perform, fulfill or carry out its agreements, undertakings and
obligations herein made or expressed to be performed, fulfilled or carried out
on the Closing Date is and shall be subject to fulfillment of or compliance
with, on or prior to the Closing Date, the following conditions precedent, any
of which may be waived by the Company in its sole discretion, in whole or in
part:
(a) Representations and Warranties True. Each of HTL's and the
Investor's representations and warranties contained in this Agreement shall be
deemed to have been made again at and as of the time of the Closing Date and
shall then be true in all material
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<PAGE> 15
respects. Each of HTL and the Investor shall have performed and complied in all
material respects with all agreements and covenants required by this Agreement
to be performed or complied with by it prior to or at the Closing Date. The
Company shall have been furnished with a certificate of each of HTL and the
Investor signed by one of its senior executive officers, dated the Closing Date,
certifying to the fulfillment of the foregoing conditions by it and to the truth
and correctness in all material respects, except for changes contemplated by
this Agreement, as of the Closing Date, of the representations and warranties
made by it contained herein and the satisfaction on the part of HTL and the
Investor of all conditions to the obligations of the Company under this Section
5.01.
(b) HSR Act. The waiting periods, if applicable, of the HSR Act
shall have expired or been terminated.
(c) Purchase Price; Exchange. The Investor shall have delivered
the Purchase Price to the Company as required hereunder and shall have
exchanged, as applicable, the Omnipoint Preferred Stock and the Omnipoint Common
Stock as provided in Section 2.01(b).
(d) Resolutions. The Company shall have been furnished with
certified copies of the resolutions duly adopted by the boards of directors of
HTL and the Investor authorizing the execution, delivery and performance of this
Agreement.
(e) No New Statutes. No statute, rule or regulation shall have
been enacted by any state or Federal government or governmental agency in the
United States or Hong Kong which would render the consummation of this Agreement
unlawful.
(f) Omnipoint Merger Agreement. The transactions contemplated by
the Omnipoint Merger Agreement shall have been, or simultaneously with the
consummation of the transactions contemplated hereby shall be, consummated in
accordance with its terms.
5.02 Conditions to the Obligation of the Investor. The
obligation of each of HTL and the Investor to perform, fulfill or carry out its
agreements, undertakings and obligations herein made or expressed to be
performed, fulfilled or carried out on the Closing Date is and shall be subject
to fulfillment of or compliance with, on or prior to the Closing Date, the
following conditions precedent, any of which may be waived by HTL or the
Investor, in its sole discretion, in whole or in part:
(a) Representations and Warranties True. Each of the Company's
representations and warranties contained in this Agreement shall be deemed to
have been made again at and as of the time of the Closing Date and shall then be
true in all material respects. The Company shall have performed and complied in
all material respects, with all agreements and covenants required by this
Agreement to be performed or complied with by it prior to or at the Closing
Date. HTL and the Investor shall have been furnished with a certificate of the
Company signed by one of its senior executive officers, dated the Closing Date,
certifying to the fulfillment of the foregoing conditions by it and to the truth
and correctness in all material respects, except
11
<PAGE> 16
for changes contemplated by this Agreement, as of the Closing Date, of the
representations and warranties of made by it contained herein and the
satisfaction on the part of the Company of all conditions to the obligations of
the Investor under this Section 5.02.
(b) HSR Act. The waiting periods, if applicable, of the HSR Act
shall have expired or been terminated.
(c) Stock Certificates. The Company shall have delivered to the
Investor duly executed and issued stock certificates representing the Purchased
Shares and the Exchanged Shares.
(d) Resolutions. The Company shall have delivered to HTL and the
Investor a certified copy of the resolution or resolutions duly adopted by its
board of directors authorizing the execution, delivery and performance of this
Agreement.
(e) No New Statutes. No statute, rule or regulation shall have
been enacted by any state or Federal government or governmental agency in the
United States or Hong Kong which would render the consummation of this Agreement
unlawful.
(f) Omnipoint Merger Agreement. The transactions contemplated by
the Omnipoint Merger Agreement shall have been, or simultaneously with the
consummation of the transactions contemplated hereby shall be, consummated in
accordance with its terms; provided, however, that the written consent of the
Investor shall be required in the event that (x) the Company agrees to increase
the consideration payable to the stockholders of Omnipoint pursuant to the
Omnipoint Merger Agreement, or (y) the Board of Directors of the Company
determines that the Company will elect to consummate the Omnipoint Merger
Agreement, notwithstanding the existence of a matter involving an Omnipoint
Material Adverse Effect as a result of which a condition to the obligations of
the Company under Section 9.2 of the Omnipoint Merger Agreement (as in effect on
the date hereof) has not been satisfied.
ARTICLE 6
MISCELLANEOUS
6.01 Expenses. Each party shall bear its own expenses incident
to the negotiation, preparation, authorization and consummation of this
Agreement and the transactions contemplated hereby, including all fees and
expenses of its counsel and accountants, whether or not such transactions are
consummated.
6.02 Equitable Remedies. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with the specific terms of the
provisions or were otherwise breached. It is accordingly agreed that the parties
shall be entitled to an injunction or injunctions to prevent breaches of this
Agreement and to enforce specifically the terms and provisions hereof in any
court of the United States or any state having jurisdiction, this being in
addition to any other remedy to which they
12
<PAGE> 17
are entitled at law or in equity. Each party agrees that it will not assert, as
a defense against a claim for specific performance, that the party seeking
specific performance has an adequate remedy at law.
6.03 Notices. All notices, claims and other communications
hereunder shall be in writing and shall be made by hand delivery, registered or
certified mail (postage prepaid, return receipt requested), facsimile, or
overnight air courier guaranteeing next day delivery
(a) if to the Company, to it at:
VoiceStream Wireless Corporation
3650 131st Avenue, SE
Bellevue, Washington 98006
Attention: Alan R. Bender, Esq.
Facsimile No.: 425-586-8080
with a copy (which shall not constitute notice) to:
Friedman Kaplan & Seiler LLP
875 Third Avenue
New York, New York 10022
Attention: Barry A. Adelman, Esq.
Facsimile No.: 212-355-6401
(b) if to HTL, to it at:
Hutchison Telecommunications Limited
22nd Floor, Hutchison
10 Harcourt Road
Hong Kong
Attention: Ms. Edith Shih
Facsimile No.: 852-2128-1778
with a copy (which shall not constitute notice) to:
Dewey Ballantine, LLP
Suite 3907
Asia Pacific Finance Tower
Citibank Plaza, 3 Garden Road
Central Hong Kong
Attention: John A. Otoshi, Esq.
Facsimile No.: 852-2509-7088
(c) If to the Investor, to it at :
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<PAGE> 18
Hutchison Telecommunications PCS (USA) Limited
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
with a copy to:
Hutchison Telecommunications Holdings (USA) Limited
22nd Floor, Hutchison
10 Harcourt Road
Hong Kong
Attention: Ms. Edith Shih
Facsimile No.: 852-2128-1778
with copies (which shall not constitute notice) to:
Hutchison Telecommunications Limited
22nd Floor, Hutchison
10 Harcourt Road
Hong Kong
Attention: Ms. Edith Shih
Facsimile No.: 852-2128-1778
and
Dewey Ballantine, LLP
Suite 3907
Asia Pacific Finance Tower
Citibank Plaza, 3 Garden Road
Central Hong Kong
Attention: John A. Otoshi, Esq.
Facsimile No.: 852-2509-7088
or at such other address as any party may from time to time furnish to the other
parties by a notice given in accordance with the provisions of this Section
6.03. All such notices and communications shall be deemed to have been duly
given at the time delivered by hand, if personally delivered; five (5) Business
Days after being deposited in the mail, first class postage prepaid, return
receipt requested, if mailed; when receipt is confirmed, if sent by facsimile;
and the next Business Day after timely delivery to the courier, if sent by an
overnight air courier service guaranteeing next day delivery.
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<PAGE> 19
6.04 Entire Agreement. This Agreement, together with the Exhibits
annexed hereto, contains the entire understanding among the parties hereto
concerning the subject matter hereof and this Agreement may not be changed,
modified, altered or terminated except by an agreement in writing executed by
the parties hereto. Any waiver by any party of any of its rights under this
Agreement or of any breach of this Agreement shall not constitute a waiver of
any other rights or of any other or future breach.
6.05 Remedies Cumulative. Except as otherwise provided herein,
each and all of the rights and remedies in this Agreement provided, and each and
all of the rights and remedies allowed at law and in equity in like case, shall
be cumulative, and the exercise of one right or remedy shall not be exclusive of
the right to exercise or resort to any and all other rights or remedies provided
in this Agreement or at law or in equity.
6.06 Governing Law. This Agreement shall be construed in
accordance with and subject to the laws and decisions of the State of New York
applicable to contracts made and to be performed entirely therein.
6.07 Counterparts. This Agreement may be executed in several
counterparts hereof, and by the different parties hereto on separate
counterparts hereof, each of which shall be an original; but such counterparts
shall together constitute one and the same instrument.
6.08 Waivers. No provision in this Agreement shall be deemed
waived except by an instrument in writing signed by the party waiving such
provision.
6.09 Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and to their respective
successors and assigns; provided, however, that except as otherwise expressly
set forth in this Agreement neither the rights nor the obligations of either
party may be assigned or delegated without the prior written consent of the
other parties.
6.10 Further Assurances. The Investor shall, at the request of
the Company, and the Company shall, at the request of the Investor, from time to
time, execute and deliver such other assignments, transfers, conveyances and
other instruments and documents and do and perform such other acts and things as
may be reasonably necessary or desirable for effecting complete consummation of
this Agreement and the transactions herein contemplated.
6.11 Disclosures. No public announcement by any party hereto with
regard to the transactions contemplated hereby or the material terms hereof
shall be issued by any party without the mutual prior consent of the other
parties, except that in the event the parties are unable to agree on a press
release and legal counsel for one party is of the opinion that such press
release is required by law and such party furnishes the other party a written
opinion of outside legal counsel, or other counsel reasonably acceptable to the
party being furnished such opinion, to that effect, then such party may issue
the legally required press release.
6.12 Termination.
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<PAGE> 20
(a) Events Triggering Termination. This Agreement may be
terminated and the transactions contemplated hereby may be abandoned, without
further obligation of the Company, HTL or the Investor, at any time prior to the
Closing Date as follows:
(i) by mutual written consent duly authorized by the
boards of directors of the Company, HTL and the Investor; or
(ii) by the Company, HTL or the Investor if the
Omnipoint Merger Agreement shall have been terminated and the transactions
contemplated thereby abandoned; or
(iii) by the Company, HTL or the Investor if the
consummation of the transactions contemplated hereby shall be prohibited by a
final, non-appealable order, decree or injunction of a court of competent
jurisdiction.
(b) No Further Obligation. In the event of a termination of this
Agreement, no party hereto shall have any liability or further obligation to any
other party to this Agreement except that nothing herein will relieve any party
from liability for any breach of this Agreement.
6.13 Jurisdiction; Consent to Service of Process. The Investor
hereby irrevocably appoints United Corporate Services, Inc., at its office at 10
Bank Street, White Plains, New York 10606, United States of America, and the
Company hereby irrevocably appoints United Corporate Services, Inc., at its
office at 10 Bank Street, White Plains, New York 10606, United States of
America, its lawful agent and attorney to accept and acknowledge service of any
and all process against it in any action, suit or proceeding arising in
connection with this Agreement, and upon whom such process may be served, with
the same effect as if such party were a resident of the State of New York and
had been lawfully served with such process in such jurisdiction, and waives all
claim of error by reason of such service, provided, however that in the case of
any service upon such agent and attorney, the party effecting such service shall
also deliver a copy thereof to the other party at the address and in the manner
specified in Section 6.03. In the event that such agent and attorney resigns or
otherwise becomes incapable of acting as such, such party will appoint a
successor agent and attorney in New York, reasonably satisfactory to the other
party, with like powers. Each party hereby irrevocably submits to the exclusive
jurisdiction of the United States District Court for the Southern District of
New York and any court of the State of New York located in the City of New York
in any such action, suit or proceeding, and agrees that any such action, suit or
proceeding shall be brought only in such court (and waives any objection based
on forum non conveniens or any other objection to venue therein), provided,
however, that such consent to jurisdiction is solely for the purpose referred to
in this Section 6.13 and shall not be deemed to be a general submission to the
jurisdiction of said courts or the State of New York other than for such
purpose.
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<PAGE> 21
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
VOICESTREAM WIRELESS HOLDING
CORPORATION
By:
-----------------------------------
Name
Title:
HUTCHISON TELECOMMUNICATIONS
LIMITED
-----------------------------------
By:
Name:
Title:
HUTCHISON TELECOMMUNICATIONS PCS
(USA) LIMITED
By:
-----------------------------------
Name:
Title:
17
<PAGE> 22
Schedule I
Certificate of Designation for 2 1/2% Convertible Junior Preferred Stock
18
<PAGE> 1
EXHIBIT 9.1
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> 2
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 Acquisition 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> 3
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> 4
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> 5
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> 6
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> 7
party agrees that service of process on such party as provided in Section 6(e)
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 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> 8
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> 9
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: /John Stanton/
-----------------------------------
Name:
Title:
OMNIPOINT CORPORATION
By: /Douglas G. Smith/
-----------------------------------
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: /Mitchell Cohen/
-----------------------------------
Name:
Title:
<PAGE> 10
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: /Mitchell Cohen/
----------------------------------------
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: /Mitchell Cohen/
----------------------------------------
Name:
Title:
/John W. Stanton/
-------------------------------------
John W. Stanton
/Theresa E. Gillespie/
-------------------------------------
Theresa E. Gillespie
<PAGE> 11
PN Cellular, Inc.
By: /John W. Stanton/
----------------------------------------
Name:
Title:
Stanton Family Trust
By: /Don Guthrie/
----------------------------------------
Name: , Trustee
Stanton Communications Corporation
By: /John W. Stanton/
----------------------------------------
Name:
Title:
GS Capital Partners, L.P.
By: GS Advisors L.P., General Partner
By: GS Advisors, Inc., General Partner
By: /Eve M. Gerriets/
----------------------------------------
Name:
Title:
The Goldman Sachs Group, Inc.
By: /Terrence M. O'Toole/
----------------------------------------
Name:
Title:
<PAGE> 12
Bridge Street Fund 1992, L.P.
By: Stone Street Performance Corp., Managing
General Partner
By: /Eve M. Gerriets/
----------------------------------------
Name:
Title:
Stone Street Fund 1992, L.P.
By: Stone Street Performance Corp., General
Partner
By: /Eve M. Gerriets/
---------------------------------------
Name:
Title:
Providence Media Partners L.P.
By: Providence Media G.P. Limited Partnership,
General Partner
By: Providence Ventures L.P., General
Partner
By: /Jonathan Madison/
--------------------------------------
Name:
Title:
<PAGE> 13
Hutchison Telecommunications Holdings (USA)
Limited
By: /Susan Chow/
----------------------------------------
Name:
Title:
Hutchison Telecommunications PCS (USA) Limited
By: /Frank Sixt/
----------------------------------------
Name:
Title:
<PAGE> 14
ALLEN & COMPANY INCORPORATED
By: /Richard Fields/
----------------------------------------
Name:
Title:
AVANCE CAPITAL
By: /Douglas G. Smith/
----------------------------------------
Name: Douglas G. Smith
Title: Sole Proprietor
MADISON DEARBORN CAPITAL
PARTNERS, L.P.
By: Madison Dearborn Partners, L.P.,
its General Partner
By:
----------------------------------------
Name:
Title:
DOUGLAS G. SMITH GRAT
By: /Gabriela Smith/
----------------------------------------
Name: Gabriela Smith
Title: Trustee
By: /Richard Fields/
----------------------------------------
Richard Fields, in his individual capacity
By: /Evelyn R. Goldfine/
----------------------------------------------
Evelyn R. Goldfine, in her individual capacity
<PAGE> 15
By: /George F. Schmitt/
----------------------------------------
George F. Schmitt, in his individual capacity
By: /James J. Ross/
----------------------------------------
James J. Ross, in his individual capacity
---------------------------------
By: /James J. Ross/
----------------------------------------
Name: James J. Ross
Title: Trustee
<PAGE> 16
Omnipoint Stockholders:
[TO BE PROVIDED]
<PAGE> 17
SCHEDULE I
OMNIPOINT STOCKHOLDERS
<TABLE>
<CAPTION>
NAME AND ADDRESS OF STOCKHOLDER NUMBER OF OMNIPOINT SHARES
______________________________________ ___________________________
<S> <C>
______________________________________ ___________________________
______________________________________ ___________________________
______________________________________ ___________________________
______________________________________ ___________________________
</TABLE>
<PAGE> 18
SCHEDULE II
VOICESTREAM STOCKHOLDERS
<TABLE>
<CAPTION>
NUMBER OF VOICESTREAM
NAME AND ADDRESS OF STOCKHOLDER 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
</TABLE>
<PAGE> 19
<TABLE>
<S> <C>
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
</TABLE>
<PAGE> 20
<TABLE>
<S> <C>
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
</TABLE>
<PAGE> 21
<TABLE>
<S> <C>
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>
<PAGE> 1
EXHIBIT 10.1
================================================================================
SECURITIES PURCHASE AGREEMENT
by and among
VOICESTREAM WIRELESS CORPORATION,
HUTCHISON TELECOMMUNICATIONS PCS (USA) LIMITED
and
OMNIPOINT CORPORATION
Dated as of June 23, 1999
================================================================================
<PAGE> 2
SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT, dated as of June 23, 1999 (the
"Agreement"), by and among Omnipoint Corporation, a Delaware corporation
("Issuer"), VoiceStream Wireless Corporation, a Washington corporation
("VoiceStream") and Hutchison Telecommunications PCS (USA) Limited, a British
Virgin Islands corporation ("HPCS"). VoiceStream and HPCS are sometimes referred
to herein individually as a "Purchaser" and collectively as the "Purchasers".
W I T N E S S E T H :
WHEREAS, upon the terms and conditions set forth in this
Agreement, Issuer has determined to issue and sell, and Purchasers have
determined to purchase, 12,500 shares of Issuer's Series A Non-Voting
Convertible Preferred Stock, par value $0.01 per share (the "Preferred Stock").
WHEREAS, concurrently herewith, Issuer 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 ("VWHC"), will
be merged with and into each of Issuer and VoiceStream; and
WHEREAS, it is a condition to the purchase and sale of the
Preferred Stock hereunder that the Reorganization Agreement continue to be in
full force and effect on the initial closing date of such purchase and sale of
Preferred Stock.
NOW, THEREFORE, in consideration of the mutual covenants,
conditions and promises hereinafter set forth, the parties hereby agree as
follows:
I DEFINITIONS
SECTION 1.1 (a) Capitalized terms used herein and not otherwise defined
shall have the meaning ascribed to such term in the Reorganization Agreement.
(b) The following terms as used herein have the following
meanings:
"Anniversary" means each one-year period measured from the date
of this Agreement.
"Common Stock" means the Common Stock, par value $0.01 per
share, of Issuer.
"Registrable Securities" means (i) shares of Common Stock
beneficially owned by Purchasers and (ii) shares of Common Stock issued to
Purchasers upon the conversion of shares of Preferred Stock and, in each case,
any shares into which such shares are subdivided, combined or otherwise
converted by Issuer.
<PAGE> 3
"Securities Act" means the Securities Act of 1933, as amended.
(c) Each of the following terms is defined in the Section set
forth opposite such term:
<TABLE>
<S> <C>
Agreement..............................................Preamble
Company Indemnitee.......................................7.8(b)
Demand Registration......................................7.1(a)
HPCS...................................................Preamble
Indemnified Party..........................................11.3
Initial Closing.............................................3.1
Initial Closing Date........................................3.1
Initial Shares..............................................2.1
Issuer.................................................Preamble
Losses.....................................................11.3
Maturity....................................................2.5
Offerors.................................................7.1(a)
Other Registrable Securities.............................7.1(a)
Preferred Stock........................................Preamble
Purchaser..............................................Preamble
Purchaser Indemnitee.....................................7.8(a)
Reduced Conversion Price....................................2.4
Registration Expenses....................................7.7(a)
Remaining Preferred Shares..................................2.5
Reorganization Agreement...............................Preamble
Subsequent Closing..........................................3.2
Subsequent Closing Date.....................................3.2
Subsequent Shares...........................................2.2
VWHC...................................................Preamble
VoiceStream............................................Preamble
</TABLE>
(d) Unless the context otherwise requires, the terms defined in
this Article I or elsewhere in this Agreement shall have the meanings herein
specified for all purposes of this Agreement, applicable to both the singular
and plural forms of any of the terms defined herein. When a reference is made in
this Agreement to a Section, Article, Exhibit or Schedule such reference shall
be to a Section, Article, Exhibit or Schedule, respectively, of this Agreement
unless otherwise indicated. Whenever the words "include," "includes" or
"including" are used in this Agreement, they shall be deemed to be followed by
the words "without limitation." The use of any gender herein shall be deemed to
include the neuter, masculine and feminine genders wherever necessary or
appropriate.
2
<PAGE> 4
II PURCHASE AND SALE OF PREFERRED STOCK
SECTION 2.1 Initial Closing. Subject to the terms and conditions of this
Agreement, at the Initial Closing, Issuer will issue, sell and deliver 4,271
shares of Preferred Stock to VoiceStream and 4,271 shares of Preferred Stock to
HPCS (collectively, the "Initial Shares") for a purchase price of $24,000 per
share payable to Issuer on the Initial Closing Date.
SECTION 2.2 Subsequent Closing. Subject to the terms and conditions of
this Agreement, at the Subsequent Closing, Issuer will issue, sell and deliver
1,979 shares of Preferred Stock to VoiceStream and 1,979 shares of Preferred
Stock to HPCS (collectively, the "Subsequent Shares"), for a purchase price of
$24,000 per share payable to Issuer on the Subsequent Closing Date.
SECTION 2.3 Use of Proceeds. Issuer shall use the proceeds from the sale
of the Initial Closing Shares and the Subsequent Closing Shares for working
capital purposes.
SECTION 2.4 Terms of Preferred Stock. The Preferred Stock is convertible
at any time or from time to time into Common Stock at the conversion price of
$24 per share of Common Stock; provided, however, that the conversion price
shall be reduced to $18.50 per share of Common Stock (the "Reduced Conversion
Price") if the mergers contemplated by the Reorganization Agreement are not
consummated and are terminated by reason of (i) a breach by Issuer of its
covenants, agreements or obligations under the Reorganization Agreement or (ii)
any representation or warranty of Issuer under the Reorganization Agreement
being untrue in any material respect; provided, however, that conversion may not
occur until any applicable waiting period under the Hart-Scott- Rodino Antitrust
Improvements Act of 1976, as amended, relating to the transactions contemplated
hereby shall have expired or been terminated. In the event that the conversion
of the Preferred Stock into Common Stock occurs at the Reduced Conversion Price,
the number of shares of Preferred Stock so converted shall not exceed that
number of shares which may be converted into Common Stock in accordance with the
regulations and rulings of the Federal Communications Commission ("FCC") and
applicable law. In the event that, after giving effect to such conversion at the
Reduced Conversion Price, there are shares of Preferred Stock remaining which
could not be so converted (such remaining amount, the "Remaining Preferred
Shares"), the Remaining Preferred Shares shall, at the option of Purchasers,
either remain outstanding or be redeemed by Issuer through the issuance of
indebtedness to the Purchasers. Such indebtedness shall be senior unsecured debt
of Issuer, shall bear interest at an annual rate of 7%, and shall mature on
September 30, 2006 (the "Maturity"). There shall be no payments of interest or
principal on such debt until the Maturity. Such debt shall not contain any
covenants (other than the obligation to repay in accordance with the terms
thereof) and shall only be accelerated upon a bankruptcy or insolvency event of
Issuer or upon acceleration of Issuer's high yield indebtedness. In the event
that the Remaining Preferred Shares (or the indebtedness which was issued in
order to redeem the Remaining Preferred Shares) can, in accordance with the
regulations and rulings of the FCC and applicable law, be converted into
Common Stock then the Purchasers may convert such Remaining Preferred Shares or
indebtedness into Common Stock.
3
<PAGE> 5
III CLOSINGS
SECTION 3.1 Time and Place of Initial Closing. Subject to the conditions
set forth in Section 9.1, the closing of the transactions contemplated by
Section 2.1 (the "Initial Closing") shall take place at the offices of Friedman
Kaplan & Seiler LLP, 875 Third Avenue, New York, New York, at 10:00 a.m. local
time on the date hereof (the "Initial Closing Date"). At the Initial Closing,
Issuer shall deliver to Purchasers duly executed and issued stock certificates
evidencing the Initial Shares purchased thereby against payment of the purchase
price therefor by wire transfer of immediately available funds to the account
specified therefor by Issuer, one-half of which purchase price shall be paid on
the Initial Closing Date and one-half of which shall be paid on the first
Business Day following the Initial Closing Date.
SECTION 3.2 Time and Place of Subsequent Closing. The closing of the
transactions contemplated by Section 2.2 (the "Subsequent Closing") shall take
place at the offices of Friedman Kaplan & Seiler LLP, 875 Third Avenue, New
York, New York, at 10:00 a.m. local time on October 1, 1999, provided that the
conditions set forth in Section 9.3 are satisfied, or such later date on which
the conditions set forth in Section 9.3 are satisfied (such earlier date, the
"Subsequent Closing Date") or waived by Purchasers or at such other place and/or
time and/or on such other date as the parties may agree; provided, however, that
if the Subsequent Closing Date has not occurred on or before December 31, 1999,
Purchasers' obligations hereunder may be terminated by Purchasers. In the event
the Reorganization Agreement has been terminated as a result of a breach of such
Reorganization Agreement by Issuer, Purchasers shall have the right but not the
obligation to acquire the Subsequent Shares. At the Subsequent Closing, Issuer
shall deliver to Purchasers duly executed and issued stock certificates
evidencing the Subsequent Shares purchased thereby against payment of the
purchase price therefor by wire transfer of immediately available funds to the
account specified therefor by Issuer.
IV REPRESENTATIONS AND WARRANTIES OF ISSUER
SECTION 4.1 Representations and Warranties of Issuer.
(a) Incorporation of Representations and Warranties in
Reorganization Agreement. The representations and warranties of Issuer set forth
in Section 4 of the Reorganization Agreement (together with the Disclosure
Schedule) are hereby incorporated herein by reference, and are hereby made by
Issuer to Purchasers as of the date hereof and the Initial Closing Date, in
their entirety with the same force and effect.
(b) Additional Representations and Warranties. Issuer hereby
represents and warrants to Purchasers as of the date hereof, the Initial Closing
Date and the Subsequent Closing Date that the shares of Preferred Stock being
issued to Purchasers hereunder, when issued and paid for pursuant to the terms
of this Agreement, will be duly authorized, validly issued, fully paid and
nonassessable, and will be free and clear of any Liens, and shall not be subject
to any preemptive rights of the holders of any other class or series of the
capital stock of Issuer. The shares of Common
4
<PAGE> 6
Stock issued upon conversion of the Preferred Stock, when issued pursuant to the
terms thereof, will be validly issued, fully paid and nonassessable, and will be
free and clear of any Liens.
(c) Power and Authority; No Violation. The Issuer has full power
and authority to execute, deliver and perform its obligations under this
Agreement and to consummate the transactions contemplated hereby. This Agreement
and all transactions contemplated hereby have been duly and validly authorized
by all necessary action on the part of Issuer and this Agreement constitutes a
legal, valid and binding obligation of Issuer enforceable in accordance with its
terms except as such enforceability may be limited by bankruptcy, insolvency,
moratorium or other similar laws affecting or relating to enforcement of
creditors' rights generally. Neither the execution, delivery or performance of
this Agreement nor the consummation of the transactions contemplated hereby by
Issuer will, with or without the giving of notice or the passage of time, or
both, (i) conflict with, result in a default or loss of rights (or give rise to
any right of termination, cancellation or acceleration) under, or result in the
creation of any Lien, pursuant to (A) any provision of the certificate of
incorporation, by-laws, stockholders agreements or other constituent documents
of Issuer; (B) any material note, bond, indenture, mortgage, deed of trust,
contract, agreement, lease or other instrument or obligation to which Issuer is
a party or by which Issuer or its property may be bound or affected; or (C) any
law, order, judgment, ordinance, rule, regulation or decree to which Issuer is a
party or by which it or its property is bound or affected; or (ii) give rise to
any right of first refusal or similar right with respect to any interest, or any
properties or assets, of Issuer. No permit, consent, approval, authorization,
qualification or registration of, or declaration to or filing with any
governmental or regulatory authority or agency or third party is required to be
obtained or made by Issuer in connection with the execution and delivery of this
Agreement or the consummation of the transactions contemplated hereby or thereby
in order to (A) render this Agreement or the transactions contemplated hereby or
thereby valid and effective and (B) enable Issuer to sell the Purchased Shares
(including shares of Common Stock into which such shares may be converted).
(d) Legal Matters. There is no claim, legal action, counterclaim,
suit, arbitration, governmental investigation or other legal, administrative or
tax proceeding, nor any order, decree or judgment, in progress or pending, or to
the knowledge of Issuer threatened, against or relating to the right of Issuer
to perform its obligations under this Agreement, nor does Issuer know or have
reason to be aware of any basis for the same. There is outstanding no order,
writ, injunction, judgment or decree of any court, governmental agency or
arbitration tribunal applicable to Issuer or binding upon it or its property
which would individually or in the aggregate impair in any material respect the
performance of the obligations of Issuer hereunder or the consummation of the
transactions contemplated by this Agreement other than orders or decrees
involving the wireless telephone industry in general.
(e) Truth and Correctness. No representation or warranty by
Issuer in this Agreement contains or will contain any untrue statement of a
material fact or omits or will omit to state a material fact necessary to make
the statements contained herein or therein, in light of the circumstances under
which such statements are made, not misleading.
5
<PAGE> 7
(f) Investment Company Act. Issuer is not an "investment company"
within the meaning of the Investment Company Act of 1940, as amended.
(g) No Brokers. Except as set forth on Schedule 4.1(g) hereto, no
agent, broker, investment banker, person or firm is or will be entitled to any
broker's or finder's fee or any other commission or similar fee directly or
indirectly in connection with the transactions contemplated by this Agreement
based in any way on any arrangements, agreements or understandings made by or on
behalf of Issuer or an Affiliate thereof, and Issuer hereby agrees to indemnify
the Investor and agrees to hold harmless the Investor against and in respect of
any claims for brokerage and other commissions relating to such transactions
based in any way on any arrangements, agreements or understandings made by or on
behalf of Issuer or an Affiliate thereof.
(h) Reports and Financial Statements. The Issuer has filed all
reports required to be filed with the SEC since January 1, 1998 (collectively,
including all exhibits thereto, the "SEC Reports"). None of such SEC Reports, as
of their respective dates (as amended through the date hereof), contained any
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading. Each of the
financial statements (including the related notes) included in the SEC Reports
presents fairly, in all material respects, the consolidated financial position
and consolidated results of operations and cash flows of Issuer and its
subsidiaries as of the respective dates or for the respective periods set forth
therein, all in conformity with generally accepted accounting principles
consistently applied during the periods involved, subject, in the case of the
unaudited interim financial statements, to normal year-end adjustments and any
other adjustments described therein. All such SEC Reports, as of their
respective dates (as amended through the date hereof), complied in all material
respects with the requirements of the Exchange Act.
V REPRESENTATIONS AND WARRANTIES OF PURCHASERS
Each Purchaser, as to itself only, hereby represents and warrants
to Issuer (as of the date hereof, the Initial Closing Date and the Subsequent
Closing Date):
SECTION 5.1 Authorization. It has the full power and authority to enter
into this Agreement and to perform all of its obligations hereunder. The
execution, delivery and performance of this Agreement by it have been duly
authorized by all necessary corporate action, and this Agreement constitutes a
valid and binding obligation of it enforceable against it in accordance with
its terms except as may be limited by bankruptcy, insolvency, reorganization,
moratorium and other similar laws affecting creditors' rights generally and by
equitable principles of general applicability. The execution, delivery and
performance of this Agreement by it do not (a) violate any provision of its
certificate of incorporation, by-laws or other constituent documents, (b)
conflict with or constitute a default under any material agreement, indenture or
instrument to which it is a party or by which it or its property is bound or (c)
violate any statute or order of any court or Governmental Body applicable to it,
except in each case set forth in clauses (b) or (c) which would not reasonably
be expected to
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have a material adverse effect on its business taken as a whole or the
transactions contemplated hereby.
SECTION 5.2 Investment Representations. It is an Accredited Investor
within the definition set forth in Rule 501(a) of the Securities Act. It is
acquiring the shares of Preferred Stock it is purchasing hereunder for its own
account, for investment, and not with a view to, or for sale in connection with,
the distribution thereof or of any interest therein, in violation of state or
federal law. It understands that such shares have not been registered under the
Securities Act by reason of its issuance in a transaction exempt from the
registration requirements of the Securities Act pursuant to the exemption
provided in Section 4(2) thereof, that such shares of Preferred Stock have not
been registered under applicable state securities laws by reason of their
issuance in a transaction exempt from such registration requirements, and that
such shares of Preferred Stock may not be sold or otherwise disposed of unless
registered under the Securities Act and applicable state securities laws or
exempted from registration therefrom.
SECTION 5.3 Additional HPCS Representation and Agreement. HPCS
represents, warrants and agrees to Issuer that either (a) immediately before the
closing of the transactions described in the Reorganization Agreement, HPCS will
directly own at least 3.5 million shares of VoiceStream Common Stock, no par
value, and all the shares of the Preferred Stock (or the Common Stock into which
it was converted) issued pursuant to this Agreement, or (b) at the closing of
such transactions, HPCS shall be the purchaser of the shares of capital stock of
VWHC issued pursuant to the Stock Subscription Agreement dated June 23, 1999,
and, immediately prior to the exchange of such shares as contemplated by the
Reorganization Agreement, the holder of all the Preferred Stock (or the Common
Stock into which it was converted) issued pursuant to this Agreement.
VI BOARD OF DIRECTORS
SECTION 6.1 Board of Directors. From and after the date when any
applicable waiting period under the Hart-Scott-Rodino Antitrust Improvements Act
of 1976, as amended, relating to the transactions contemplated hereby shall have
expired or been terminated, for so long as Purchasers beneficially own at least
seven and one-half percent (7 1/2%) of Issuer's outstanding equity securities,
and provided that the Preferred Stock has been converted into Common Stock,
Purchasers shall have the right to jointly designate one person to serve on the
Board of Directors. Issuer agrees, and Issuer confirms that, by the approval of
this Agreement by the Board of Directors, the Board of Directors has agreed to
take all actions necessary to promptly cause the election to the Board of
Directors of any Person so designated by Purchasers in accordance with this
Section 6.1, including expanding the number of members of the Board of Directors
to accommodate the addition of such Person who is elected to the Board of
Directors and including, recommending for election, any such Person so nominated
by Purchasers in any slate of directors set forth in any proxy materials sent to
Issuer's stockholders in respect of any future annual meeting.
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VII REGISTRATIONS RIGHTS
SECTION 7.1 Demand Registrations.
(a) Right to Demand Registration. At any time on and after the
earliest to occur of (i) the termination of the Reorganization Agreement, (ii)
any breach by Issuer of its obligations under this Agreement or the
Reorganization Agreement and (iii) June 30, 2000, the holders of not less than
twenty (20%) percent of the Registrable Securities, as the case may be
(collectively, the "Offerors"), may request registration under the Securities
Act of all or part of their Registrable Securities. Within seven days after
receipt of any such request, Issuer will give written notice of such request to
all other holders of securities of the Issuer 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 Issuer has received written requests for inclusion therein within 20 days
after the receipt of Issuer's notice. A registration requested pursuant to this
Section 7.1(a) is referred to herein as a "Demand Registration". A Demanding
Stockholder may make a written request for a Demand Registration in accordance
with the foregoing in respect of equity securities of Issuer that it intends to
convert into shares of Common Stock upon the effectiveness of the Registration
Statement prepared in connection with such demand, and Issuer shall fulfill its
obligations under this Section 7.1(a) in a manner that permits such Demanding
Stockholder to exercise its conversion rights in respect of such equity
securities and substantially contemporaneously sell the shares of Common Stock
issuable upon such conversion under such Registration Statement.
A request pursuant to this Section shall state the number of
Registrable Securities requested to be registered, the intended method of
disposition thereof and the jurisdictions in which registration is desired. In
connection with any registration subject to this Section 7.1(a), the holders of
Registrable Securities included in such registration shall enter into such
underwriting, lock-up and other agreements, and shall execute and complete such
questionnaires and other documents, as are customary in a primary offering.
(b) Number of Demand Registrations. The holders of Registrable
Securities will be entitled to request four (4) Demand Registrations, and Issuer
will pay all Registration Expenses in connection therewith. A registration will
not constitute a Demand Registration (i) until it has become effective, (ii) if
the Offerors for such registration are not able to sell at least 80% of the
Registrable Securities requested to be included in such registration, or (iii)
if after it has become effective, the offering of Registrable Securities
pursuant to such registration is interfered with by any stop order, injunction
or other order or requirement of the SEC or other governmental agency or court.
(c) Priority on Demand Registrations. Issuer will not include in
any Demand Registration any securities which are not Registrable Securities or
Other Registrable Securities without the written consent of the Offerors not to
be unreasonably withheld (and the Offerors may not withhold their written
consent if the Demand Registration is an underwritten offering and the managing
underwriters advise Issuer and the Offerors in writing that in their opinion the
number of
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Registrable Securities and other securities requested to be included therein
does not exceed the number of securities which can be sold in such offering
without materially adversely affecting such sale). If Other Registrable
Securities are permitted to be included in a Demand Registration which is an
underwritten offering and the managing underwriters advise Issuer in writing
that in their opinion the number of Registrable Securities and Other Registrable
Securities requested to be included exceeds the number of securities which can
be sold in such offering without materially adversely affecting such sale,
Issuer will include in such registration prior to the inclusion of any
securities which are not Registrable Securities the number of Registrable
Securities requested to be included which in the opinion of such managing
underwriters can be sold, pro rata among the respective holders of such
Registrable Securities on the basis of the amount of such securities owned.
(d) Restrictions on Demand Registrations. Issuer 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
Board of Directors of Issuer determines (and Issuer so certifies by written
notice to the Offerors) that such Demand Registration might reasonably be
expected to have an adverse effect on any proposal or plan by Issuer or any of
its Subsidiaries to engage in any material corporate transaction; provided that
in such event, the Offerors initiating the request for such Demand Registration
will be entitled to withdraw such request.
(e) Selection of Underwriters. In the case of a Demand
Registration, the Offerors will have the right to select the investment
banker(s) and manager(s) to administer the offering, subject to Issuer's
approval which will not be unreasonably withheld.
SECTION 7.2 Piggyback Registrations.
(a) Right to Piggyback Registrations. Whenever Issuer proposes to
register any of its Capital Stock under the Securities Act, Issuer will give
prompt written notice (in any event within ten business days after its receipt
of notice of any exercise of other demand registration rights) to the holders of
Registrable Securities of its intention to effect such a registration and will
use its best efforts to include in such registration all Registrable Securities
with respect to which Issuer has received written requests for inclusion therein
within 20 days after the receipt of Issuer's notice by such holders (or at such
later time if Issuer and the process of such registration will not be materially
prejudiced thereby). A request pursuant to this Section 7.2(a) shall state the
number of Registrable Securities requested to be registered. In connection with
any registration subject to this Section 7.2(a), the holders of Registrable
Securities included in such registration shall enter into such underwriting,
lock-up and other agreements, and shall execute and complete such questionnaires
and other documents, as are customary in a secondary offering. Issuer shall have
the right to terminate or withdraw any registration initiated by it under this
Section 7.2(a) prior to the effectiveness of such registration whether or not
any holders of Registrable Securities have elected to include any securities in
such registration. All registrations requested pursuant to this Section 7.2(a)
are referred to herein as "Piggyback Registrations". No registration effected
under this Section 7.2 shall relieve Issuer of its obligation to effect a Demand
Registration pursuant to Section 7.1.
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(b) Priority on Primary Registrations. If a Piggyback
Registration is an underwritten primary registration on behalf of Issuer, and
the managing underwriters advise Issuer in writing that in their opinion the
number of securities requested to be included in such registration exceeds the
number which can be sold without materially adversely affecting such offering,
Issuer will include in such registration (regardless of whether any holder
initially requested such registration) (i) first, the securities Issuer proposes
to sell and (ii) second, Registrable Securities and all Other Registrable
Securities requested to be included in such registration, pro rata among the
holders thereof on the basis of the number of shares owned by such holders.
(c) Priority on Secondary Registrations. If a Piggyback
Registration is an underwritten secondary registration on behalf of holders of
Issuer's securities (and in which Issuer is not issuing any securities under
such registration), and the managing underwriters advise Issuer in writing that
in their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold without materially adversely
affecting such offering, Issuer will include in such registration (i) first, the
securities requested to be included in such registration by the holder or
holders who requested such registration (such holders being entitled to
participate in accordance with the relative priorities, if any, as may exist
among them) and (ii) second, Registrable Securities and all Other Registrable
Securities requested to be included in such registration, pro rata among the
holders thereof on the basis of the number of shares owned by such holders.
(d) Selection of Underwriters. In the case of a Piggyback
Registration which is a primary registration on behalf of Issuer, Issuer will
have the right to select any investment banker(s) and manager(s) of nationally
recognized standing to administer the offering.
SECTION 7.3 No Inconsistent Agreement. Any right given by Issuer to any
holder or prospective holder of Issuer's securities in connection with the
registration of securities shall be conditioned such that it shall be consistent
with the rights of the holders of Registrable Securities provided in this
Agreement and shall not materially adversely affect the right of the holders of
Registrable Securities to participate in Piggyback Registrations in the manner
set forth in this Agreement. Notwithstanding anything to the contrary set forth
in this Article VII, the parties hereto agree to promptly incorporate the
provisions of this Article VII into the existing Amended and Restated
Registration Rights Agreement, dated June 29, 1995, to which Issuer is a party,
it being understood that such incorporation shall not in any material way impair
the registration rights set forth in this Article VII.
SECTION 7.4 Lockup Agreement.
(a) Each Purchaser agrees, and prior to transferring Registrable
Securities will cause its proposed transferee to agree, if requested by Issuer
and the managing underwriters of Registrable Securities, not to sell or
otherwise transfer or dispose of (other than by private placement) any other
Registrable Securities (or other securities) of Issuer ten days prior to or
during the 90-day period following the effective date of a registration
statement of Issuer filed under the Securities Act, provided that all officers,
directors and stockholders owning four percent (4%) or more (on a fully diluted
basis, treating all outstanding options, rights and warrants to acquire equity
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securities of Issuer as fully exercised, and treating all securities convertible
into or exchangeable for equity securities of Issuer as fully converted or
exchanged) of Issuer's equity securities shall enter into similar agreements.
Such agreement shall be in writing in a form satisfactory to Issuer and such
underwriter. Issuer may impose stop transfer instructions with respect to the
shares (or securities) subject to the foregoing restriction until the end of
said 90-day period.
(b) Issuer agrees (i) not to effect any public sale or
distribution of its equity securities, or any securities convertible into or
exchangeable or exercisable for such securities, during the ten days prior to
and during the 90-day period beginning on the effective date of any underwritten
Demand Registration or any underwritten Piggyback Registration (except as part
of such underwritten registration or pursuant to registrations on Form S-4 or
Form S-8 or any successor form or forms not available for registering capital
stock for sale to the public at large), unless all of the Registrable Securities
included in such Registration have been sold and (ii) to cause each holder of at
least 25% of its equity securities acquired from Issuer (other than a holder
that acquired such securities in a registered public offering or in open market
transactions, unless such holder owned beneficially five percent or more of
Issuer's equity securities prior to such public offering) to agree not to effect
any public sale or distribution of any such securities during such period
(except as part of such underwritten registration, if otherwise permitted),
unless all of the Registrable Securities included in such Registration have been
sold.
SECTION 7.5 Termination of Certain Rights and Obligations.
Notwithstanding the foregoing provisions of this Agreement, the rights to
registration pursuant to Sections 7.1 and 7.2, the obligations of Purchasers
pursuant to Section 7.4(a), and the obligations of Issuer and the holders of 25%
or more of its equity securities pursuant to Section 7.4(b) shall terminate as
to any particular Registrable Securities that shall have been (a) sold in a
registered public offering, (b) sold through a broker, dealer or underwriter in
a public distribution or a public securities transaction in which the transferee
receives a certificate without a securities legend or (c) sold or distributed
pursuant to Rule 144.
SECTION 7.6 Registration Procedures. Whenever the Offerors have
requested that any Registrable Securities be registered pursuant to this
Agreement, Issuer will use its best efforts to effect the registration and the
sale of such Registrable Securities in accordance with the intended method of
disposition thereof, and pursuant thereto Issuer will expeditiously:
(a) prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its best efforts to cause such
registration statement to become and remain effective for a period of not less
than three months; provided that before filing a registration statement or
prospectus or any amendments or supplements thereto, Issuer will furnish to the
counsel selected by the Offerors requesting such registration statement copies
of all such documents proposed to be filed, which documents will be subject to
the review of such counsel before such filing is made, and Issuer will comply
with any reasonable request made by such counsel to make changes to the extent
such documents do not comply in all material respects with the Securities Act;
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(b) prepare and file with the SEC such amendments (including
post-effective amendments) and supplements to such registration statement and
the prospectus used in connection therewith as may be necessary to keep such
registration statement effective for a period of not less than three months and
to comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such registration statement during such
period in accordance with the intended methods of disposition by the sellers
thereof set forth in such registration statement;
(c) furnish to each seller of Registrable Securities such number
of conformed copies of such registration statement, each amendment and
supplement thereto (in each case including all exhibits), the prospectus
included in such registration statement (including each preliminary prospectus)
and such other customary documents as such seller may reasonably request in
order to facilitate the disposition of the Registrable Securities owned by such
seller;
(d) use its best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such jurisdictions as
any seller reasonably requests and do any and all other acts and things which
may be reasonably necessary or advisable to enable such seller to consummate the
disposition in such jurisdictions of the Registrable Securities owned by such
seller (provided that Issuer will not be required to (i) qualify generally to do
business in any jurisdiction where it would not otherwise be required to qualify
but for this subparagraph, (ii) subject itself to taxation in any such
jurisdiction, or (iii) consent to service of process except as required by the
securities or blue sky laws in any such jurisdiction);
(e) notify each seller of such Registrable Securities at any time
when a prospectus relating thereto is required to be delivered under the
Securities Act of Issuer's becoming aware that the prospectus included in such
registration statement, as then in effect, contains an untrue statement of a
material fact or omits any material fact necessary to make the statements
therein not misleading in light of the circumstances under which they were made,
and, at the written request of any such seller, Issuer will prepare a supplement
or amendment to such prospectus so that, as thereafter delivered to the
purchasers of such Registrable Securities, such prospectus will not contain an
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein not misleading in light of the circumstances
under which they were made;
(f) use its best efforts to cause all such Registrable Securities
covered by such registration statement to be listed or quoted on the principal
securities exchange or national automated quotation system on which similar
securities issued by Issuer are then listed or quoted or, if not then listed or
quoted, use its best efforts to cause such Registrable Securities to be listed
on a national securities exchange or quoted on a national automated quotation
system;
(g) provide a transfer agent and registrar for all such
Registrable Securities covered by such registration statement not later than the
effective date of such registration statement;
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(h) in the event the offering is an underwritten offering, use
its best efforts to obtain a "cold comfort" letter from the independent public
accountants for Issuer in customary form and covering such matters of the type
customarily covered by such letters;
(i) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the holders of
a majority of the Registrable Securities being sold or the underwriters, if any,
reasonably request in order to expedite or facilitate the disposition of such
Registrable Securities; and
(j) upon execution and delivery of such customary confidentiality
agreements as Issuer shall reasonably request, make available for inspection by
any seller of Registrable Securities covered by such registration statement, any
underwriter participating in any disposition pursuant to such registration
statement, and any attorney, accountant or other agent retained by any such
seller or underwriter, all pertinent financial and other records, pertinent
corporate documents and properties of Issuer, and cause Issuer's officers,
directors, employees and independent accountants to supply all information
reasonably requested by any such seller, underwriter, attorney, accountant or
agent in connection with such registration statement.
Issuer will make generally available to the holders of
Registrable Securities an earnings statement (which need not be audited) for the
twelve months beginning after the effective date of a registration statement as
soon as reasonably practicable after the end of such period, which earnings
statement shall satisfy Section 11(a) of the Securities Act.
Issuer will, at all times after Issuer has filed a registration
statement with the SEC pursuant to the requirements of either the Securities Act
or the Exchange Act, file all reports required to be filed by it under the
Securities Act and the Exchange Act and the rules and regulations adopted by the
SEC thereunder, and take such further action as any holder or holders of
Registrable Securities may reasonably request, all to the extent required to
enable such holders to be eligible to sell Registrable Securities pursuant to
(i) Rule 144 adopted by the SEC under the Securities Act, as such rule
may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC or (ii) a registration statement on Form
S-2 or S-3 or any similar registration form hereafter adopted by the
SEC. Upon request, Issuer will deliver to holders of Registrable
Securities a written statement as to whether it has complied with such
requirements.
SECTION 7.7 Registration Expenses.
(a) All expenses incident to Issuer's performance of or
compliance with this Agreement, including, without limitation, all registration
and filing fees, fees and expenses of compliance with securities or blue sky
laws, word processing, duplicating and printing expenses, messenger and delivery
expenses, and fees and disbursements of counsel for Issuer and all independent
certified public accountants (including, but not limited to, fees and
disbursements
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relating to the "cold comfort" letter described in Section 7.6(h))
and other Persons retained by Issuer (all such expenses being herein called
"Registration Expenses"), provided that discounts and commissions to
underwriters shall not be considered Registration Expenses for purposes of this
Agreement, will be borne by Issuer as provided in this Agreement, except that
Issuer will, in any event, pay its internal expenses (including, without
limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties), the expense of any annual audit or quarterly
review, the expense of any liability insurance and the expenses and fees for
listing the securities to be registered on each securities exchange on which
similar securities issued by Issuer are then listed or on a national automated
quotation system.
(b) In connection with each Demand Registration and Piggyback
Registration, Issuer will reimburse the holders of Registrable Securities
covered by such registration for the reasonable fees and disbursements of one
counsel chosen by the holders of a majority of the Registrable Securities
included in such registration.
(c) To the extent expenses are not required to be paid by Issuer,
each holder of securities included in any registration hereunder will pay those
expenses allocable to the registration of such holder's securities so included,
and any expenses not so allocable will be borne by all sellers of securities
included in such registration in proportion to the aggregate selling price of
the securities to be so registered.
SECTION 7.8 Indemnification.
(a) In the event of any registration of any Registrable
Securities under the Securities Act pursuant to this Agreement, Issuer agrees to
indemnify, to the fullest extent permitted by law, each holder of Registrable
Securities covered by the applicable registration statement, its respective
officers, directors shareholders or general or limited partners or members and
each Person who controls such holder within the meaning of the Securities Act
(each, a "Purchaser Indemnitee"), as follows:
(i) against all losses, claims, damages, liabilities and
expenses to which a Purchaser Indemnitee may become subject under the
Securities Act, common law or otherwise, insofar as such losses, claims,
damages, liabilities or expenses arise out of or are caused by any
untrue or alleged untrue statement of material fact contained in any
registration statement, prospectus or preliminary prospectus or any
amendment thereof or supplement thereto relating to such securities or
any omission or alleged omission of a material fact required to be
stated therein or necessary to make the statements therein not
misleading in light of the circumstances under which they were made,
except insofar as the same are caused by or contained in any information
furnished in writing to Issuer by such holder expressly for use therein
or by such holder's failure to deliver a copy of the registration
statement or prospectus or any amendments or supplements thereto after
Issuer has furnished such holder with a sufficient number of copies of
the same;
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(ii) against all losses, claims, damages, liabilities and
expenses to the extent of the aggregate amount paid in settlement of any
litigation, or investigation or proceeding by any governmental agency or
body, commenced or threatened, or of any claim whatsoever based upon any
such untrue statement of a material fact or omission of a material fact,
or any such alleged untrue statement of a material fact or omission of a
material fact, if such settlement is effected with the prior written
consent of Issuer, except insofar as the same are caused by or contained
in any information furnished in writing to Issuer by such holder
expressly for use therein or by such holder's failure to deliver a copy
of the registration statement or prospectus or any amendments or
supplements thereto after Issuer has furnished such holder with a
sufficient number of copies of the same; and
(iii) against all expenses reasonably incurred by such
holder in connection with investigating, preparing or defending against
any litigation, or investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement of a material fact or omission of a
material fact, or any such alleged untrue statement of a material fact
or omission of a material fact, to the extent that any such expense is
not paid under clause (i) or (ii) above, except insofar as the same are
caused by or contained in any information furnished in writing to Issuer
by such holder expressly for use therein or by such holder's failure to
deliver a copy of the registration statement or prospectus or any
amendments or supplements thereto after Issuer has furnished such holder
with a sufficient number of copies of the same.
In connection with an underwritten offering, Issuer will indemnify such
underwriters, their officers and directors and each Person who controls such
underwriters within the meaning of the Securities Act to the same extent as
provided above with respect to the indemnification of the Purchaser Indemnitees.
(b) In connection with any registration statement in which a
holder of Registrable Securities is participating, each such holder will furnish
to Issuer in writing such information and affidavits as Issuer reasonably
requests for use in connection with any such registration statement or
prospectus and, to the extent permitted by law, will indemnify Issuer, its
directors and officers and each Person who controls Issuer within the meaning of
the Securities Act (each, an "Issuer Indemnitee") against any losses, claims,
damages, liabilities and expenses resulting from any untrue statement of
material fact contained in the registration statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto or any omission of a
material fact required to be stated therein or necessary to make the statements
therein not misleading, but only to the extent that such untrue statement or
omission is contained in any information or affidavit so furnished in writing by
such holder expressly for use in the preparation of such registration statement,
prospectus or preliminary prospectus; provided that the obligation to indemnify
will be several, not joint and several, among such holders of Registrable
Securities and the liability of each such holder of Registrable Securities will
be in proportion to and limited to the net amount received by such holder from
the sale of Registrable Securities pursuant to such registration statement,
prospectus or preliminary prospectus.
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(c) Any Person entitled to indemnification hereunder will (i)
give prompt written notice to the indemnifying party of any claim with respect
to which it seeks indemnification and (ii) unless in such indemnified party's
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party. If such defense is assumed, the
indemnifying party will not be subject to any liability for any settlement made
by the indemnified party without its consent (but such consent will not be
unreasonably withheld). An indemnifying party who is not entitled to, or elects
not to, assume the defense of a claim will not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified hereunder by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim in which case such indemnified party shall have the right to employ one
counsel. Failure to give prompt written notice shall not release the
indemnifying party from its obligations hereunder, except to the extent that the
indemnifying party is actually prejudiced by such failure to give notice.
(d) The indemnification provided for under this Agreement will
remain in full force and effect regardless of any investigation made by or on
behalf of the indemnified party or any officer, director or controlling Person
of such indemnified party and will survive the transfer of securities. Issuer
also agrees to make such provisions as are reasonably requested by any
indemnified party for contribution to such party in the event Issuer's
indemnification is unavailable for any reason.
SECTION 7.9 Contribution. In order to provide for just and equitable
contribution in circumstances under which the indemnity contemplated by Section
7.8 is for any reason not available, the parties required to indemnify by the
terms thereof shall contribute to the aggregate losses, claims, damages,
liabilities and expenses of the nature contemplated by such indemnity agreement
incurred by any Purchaser Indemnitee, any Company Indemnitee and one or more of
the underwriters, except to the extent that contribution is not permitted under
Section 11(f) of the Securities Act. In determining the amounts which the
respective parties shall contribute, there shall be considered the parties'
relative fault concerning the matter with respect to which the claim was
asserted, knowledge and access to information concerning the matter with respect
to which the claim was asserted, the opportunity to correct and prevent any
statement or omission and any other equitable considerations appropriate under
the circumstances. Issuer and each Person selling securities agree with each
other that no seller of Registrable Securities shall be required to contribute
any amount in excess of the amount such seller would have been required to pay
to an indemnified party if the indemnity under Section 7.8 were available. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. Issuer and each such
seller agree with each other, and the underwriters of the Registrable Securities
if requested by such underwriters, that it would not be equitable if the amount
of such contribution were determined by pro rata or per capita allocation (even
if the underwriters were treated as one entity for such purpose) or for the
underwriters' portion of such contribution to exceed the percentage that the
underwriting discount bears to the initial public offering price of the
Registrable Securities. For
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<PAGE> 18
purposes of this Section 7.9, each Person, if any, who controls an underwriter
within the meaning of Section 15 of the Securities Act shall have the same
rights to contribution as such underwriter, and each director and each officer
of Issuer who signed the registration statement, and each Person, if any, who
controls Issuer or a seller of Registrable Securities within the meaning of
Section 15 of the Securities Act, shall have the same rights to contribution as
Issuer or a seller of Registrable Securities, as the case may be.
SECTION 7.10 Participation in Underwritten Registrations. No Person may
participate in any registration hereunder which is underwritten unless such
Person (a) agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Person or Persons entitled hereunder
to approve such arrangements and (b) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
required under the terms of such underwriting arrangements.
SECTION 7.11 Recapitalization of Nonvoting Stock. At any time any holder
of non-voting Registrable Securities wishes to sell such shares pursuant to a
public offering of shares of voting common stock, Issuer shall cause such shares
to be recapitalized into or exchanged for shares of voting common stock, such
recapitalization or exchange to become effective at such time as the
registration statement pertaining to such shares has been filed with and
declared effective by the SEC.
SECTION 7.12 Adjustments Affecting Registrable Securities. Issuer will
not take any action, or permit any change to occur, with respect to its
securities which would materially adversely affect the ability of the Offerors
to include their Registrable Securities in a registration undertaken pursuant to
this Agreement or which would materially adversely affect the marketability of
such Registrable Securities in any such registration (including, without
limitation, effecting a stock split or a combination of shares), except as
contemplated by the Reorganization Agreement.
VIII ADDITIONAL RIGHTS AND COVENANTS
SECTION 8.1 Cooperation and Full Access. Issuer shall give to Purchasers
and their respective counsel, accountants, advisers and other representatives,
full access at all times during reasonable business hours and on reasonable
notice, to all the offices, properties, contracts, books, records, personnel and
affairs of Issuer or in any way relating to or connecting with the business or
its assets, including, such access as may be requested to allow Purchasers to
satisfy themselves that the conditions to the Subsequent Closing set forth
herein have been or will be satisfied and complied with. Issuer shall furnish,
and shall direct its independent accountants and legal counsel to furnish, to
Purchasers all such documents and information concerning the assets, properties,
liabilities and affairs of Issuer as Purchasers may from time to time reasonably
request.
SECTION 8.2 Transactions, Agreements, etc. Except as expressly provided
in the Reorganization Agreement, Issuer shall not enter into any transaction or
contract or take (or omit to take) any action which would, or is reasonably
likely to, (i) result in any of Issuer's representations or
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<PAGE> 19
warranties contained in this Agreement not being true and correct as of the
Subsequent Closing Date or (ii) prevent Issuer from performing, satisfying and
complying with all of its covenants and agreements contained in this Agreement.
SECTION 8.3 Standstill. From and after the date hereof through the fifth
(5th) Anniversary of the date of the award to Issuer or its subsidiaries of the
last of the licenses for which Issuer was the high bidder in the FCC reauctions
of C Block licenses completed in April 1999, Purchasers agree that they will
not, without the prior consent of Issuer, seek to acquire, offer to acquire or
agree to acquire any equity securities of Issuer that would result in
Purchasers' aggregate ownership of equity securities of Issuer exceeding fifteen
(15%) of Issuer's outstanding equity securities (except by way of stock
dividends or other distributions made on a pro rata basis to all holders of the
equity securities held by Purchasers) to the extent the acquisition of such
equity securities would result in Issuer violating the Communications Act as in
effect on the date of such acquisition.
IX CLOSING CONDITIONS
SECTION 9.1 Conditions to Purchasers' Obligations at the Initial
Closing. The obligations of Purchasers under Section 2.1 of this Agreement are
subject to the fulfillment on or before the Initial Closing of each of the
following conditions, any of which may be waived by Purchasers in writing:
(a) Representations and Warranties. The representations and
warranties of Issuer contained in Section 4.1 hereof shall be true and correct
on and as of the Initial Closing with the same effect as though such
representations and warranties had been made on and as of the Initial Closing
Date.
(b) Performance. Issuer shall have executed and delivered
certificates representing the Initial Shares, and shall have performed and
complied with all agreements, covenants and conditions contained in this
Agreement that are required to be performed or complied with by it on or before
the Initial Closing.
(c) Proceedings and Documents. All corporate and other
proceedings in connection with the transactions contemplated at the Initial
Closing and all documents incident thereto shall be reasonably satisfactory in
form and substance to Purchasers and their counsel, and Purchasers shall have
received all such counterpart original, certified and other copies of such
documents as Purchasers may reasonably request.
(d) No Adverse Action. There shall not have been adopted or
enacted any statute, rule or regulation prohibiting or imposing any material
condition on the transactions contemplated by this Agreement, nor shall there
have been instituted or pending any action or proceeding by or before any court
or governmental authority or other regulatory or administrative agency or
commission, domestic or foreign, by any government or governmental authority,
nor shall there be
18
<PAGE> 20
any determination by any government, governmental authority, regulatory or
administrative agency or commission which, in either case, seeks to restrain,
enjoin or impose any material condition on the transactions contemplated by this
Agreement or the Reorganization Agreement, or would require Issuer or
Purchasers, in the reasonable opinion of Purchasers, to take any action or do
anything in connection with the foregoing that may reasonably be expected to
have a material adverse effect to their respective businesses or materially
impair the ownership or operation of all or a material portion of the business,
assets or properties presently owned by Issuer or any of its Subsidiaries or to
be acquired by Purchasers pursuant to the Reorganization Agreement.
(e) Opinion of Company Counsel. Purchasers shall have received
from Piper & Marbury L.L.P., counsel to Issuer, a legal opinion addressed to
Purchasers, dated as of the Initial Closing Date, in the form and substance
reasonably satisfactory to Purchasers.
(f) Consents. All consents, approvals and authorizations of, and
filings, registrations and qualifications with, any governmental authority or
any other party on the part of Issuer required in connection with the
consummation of the transactions contemplated hereby shall have been obtained or
made and shall be in full force and effect.
(g) Secretary's Certificate. Purchasers shall have received a
Certificate of the Secretary of Issuer (i) certifying that no document has been
filed relating to or affecting the Charter of Issuer after the date of the
Certificate of the Secretary of State of the State of Delaware delivered
pursuant to clause (iii) of this subsection, (ii) certifying the names and true
signatures of each officer of Issuer who has been authorized to execute and
deliver this Agreement and any other document delivered by Issuer pursuant to
the Initial Closing, (iii) attaching thereto a copy of the Charter certified as
of a recent date by the Secretary of State of Delaware, and a true and complete
copy of Bylaws of Issuer, as in full force and effect at the Initial Closing
Date and (iv) attaching copies of resolutions duly adopted by the Board of
Directors (and stockholders, if applicable) authorizing the execution and
delivery of this Agreement and each of the other documents delivered by Issuer
pursuant to the Initial Closing, the issuance, delivery and sale of the Initial
Shares and the performance of the transactions contemplated by this Agreement,
and certifying that such resolutions were duly adopted, are in full force and
effect and have not been rescinded or amended as of the Initial Closing Date.
(h) Additional Documents. Purchasers shall have received such
certificates, documents and information as they may reasonably request in order
to establish satisfaction of the conditions set forth in this Section 9.1.
SECTION 9.2 Conditions to Issuer's Obligations at the Initial Closing.
The obligations of Issuer to Purchasers under Section 2.1 of this Agreement are
subject to the fulfillment on or before the Initial Closing of each of the
following conditions by Purchasers, any of which may be waived in writing by
Issuer:
(a) Representations and Warranties. The representations and
warranties of each Purchaser contained in Article V hereof shall be true on and
as of the Initial Closing with the same effect as though such representations
and warranties had been made on and as of such Closing.
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<PAGE> 21
(b) Payment of Purchase Price. VoiceStream and HPCS shall have
delivered the purchase price for their respective Initial Shares in accordance
with Section 2.1.
(c) Consents. All consents, approvals and authorizations of, and
filings, registrations and qualifications with, any governmental authority or
any other party on the part of Purchasers required in connection with the
consummation of the transactions contemplated hereby shall have been obtained or
made and shall be in full force and effect.
SECTION 9.3 Conditions to Purchasers' Obligations at the Subsequent
Closing. The obligation of Purchasers to acquire Subsequent Shares at the
Subsequent Closing is subject to the fulfillment to the satisfaction of
Purchasers on or before the Subsequent Closing Date of the following conditions,
any of which may be waived by Purchasers in writing:
(a) No Defaults. Issuer shall not have taken any action or
omitted to take any action which action or omission shall have caused a default
or breach of its covenants hereunder.
(b) Representations and Warranties. The representations and
warranties of Issuer contained in Section 4.1 hereof (other than Section 4.1(a)
hereof) shall be true and correct on and as of the Subsequent Closing Date with
the same effect as though such representations and warranties had been made on
and as of the Subsequent Closing Date.
(c) Performance. Issuer shall have executed and delivered
certificates representing the Subsequent Shares, and shall have performed and
complied with all agreements, covenants and conditions contained herein and in
any other related document or which are required to be performed or complied
with by Issuer on or before the Subsequent Closing Date.
(d) Proceedings and Documents. All corporate and other
proceedings in connection with the transactions contemplated at the Subsequent
Closing and all documents incident thereto shall be reasonably satisfactory in
form and substance to Purchasers and their counsel, and Purchasers shall have
received all such counterpart original, certified and other copies of such
documents as Purchasers may reasonably request.
(e) No Adverse Action. There shall not have been adopted or
enacted any statute, rule or regulation prohibiting or imposing any material
condition on the transactions contemplated by this Agreement, nor shall there
have been instituted or pending any action or proceeding by or before any court
or governmental authority or other regulatory or administrative agency or
commission, domestic or foreign, by any government or governmental authority,
nor shall there be any determination by any government, governmental authority,
regulatory or administrative agency or commission which, in either case, seeks
to restrain, enjoin or impose any material condition on the transactions under
this Agreement or would require Issuer or Purchasers, in the opinion of
Purchasers, to take any action or do anything in connection with the foregoing
that may reasonably be expected to have a material adverse effect to their
respective businesses or materially impair the ownership or operation of all or
a material portion of the business, assets or properties presently
20
<PAGE> 22
owned by Issuer or any of its Subsidiaries or to be acquired by Purchasers
pursuant to the Reorganization Agreement.
(f) Opinion of Company Counsel. Purchasers shall have received
from Piper & Marbury L.L.P., counsel to Issuer, a legal opinion addressed to
Purchasers, dated as of the Subsequent Closing Date, in the form and substance
reasonably satisfactory to Purchasers.
(g) Consents. All consents, approvals and authorizations of, and
filings, registrations and qualifications with, any governmental authority or
any other party on the part of Issuer required in connection with the
consummation of the transactions contemplated hereby shall have been obtained or
made and shall be in full force and effect.
(h) Secretary's Certificate. Purchasers shall have received a
Certificate of the Secretary of Issuer (i) certifying that no document has been
filed relating to or affecting the Charter of Issuer after the date of the
Certificate of the Secretary of State of the State of Delaware delivered
pursuant to clause (iii) of this subsection, (ii) certifying the names and true
signatures of each officer of Issuer who has been authorized to execute and
deliver this Agreement and any other document delivered by Issuer pursuant to
the Subsequent Closing, (iii) attaching thereto a copy of the Charter certified
as of a recent date by the Secretary of State of Delaware, and a true and
complete copy of Bylaws of Issuer, as in full force and effect at the Subsequent
Closing Date and (iv) attaching copies of resolutions duly adopted by the Board
of Directors (and stockholders, if applicable) authorizing the execution and
delivery of this Agreement and each of the other documents delivered by Issuer
pursuant to the Subsequent Closing, the issuance, delivery and sale of the
Subsequent Shares and the performance of the transactions contemplated by this
Agreement, and certifying that such resolutions were duly adopted, are in full
force and effect and have not been rescinded or amended as of the Subsequent
Closing Date.
(i) Additional Documents. Purchasers shall have received such
certificates, documents and information as they may reasonably request in order
to establish satisfaction of the conditions set forth in this Section 9.3.
SECTION 9.4 Conditions to Issuer's Obligations at the Subsequent
Closing.
(a) Representations and Warranties. The representations and
warranties of each Purchaser contained in Article V hereof shall be true and
correct on and as of the Subsequent Closing.
(b) Payment of Purchase Price. VoiceStream and HPCS shall have
delivered the purchase price for their respective Subsequent Shares in
accordance with Section 2.2.
(c) Consents. All consents, approvals and authorizations of, and
filings, registrations and qualifications with, any governmental authority or
any other party on the part of Purchasers required in connection with the
consummation of the transactions contemplated hereby shall have been obtained or
made and shall be in full force and effect.
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X TERMINATION
SECTION 10.1 Termination. This Agreement may be terminated:
(a) by mutual written agreement of the parties hereto; or
(b) by either Issuer or Purchasers upon consummation of the
transactions contemplated by the Reorganization Agreement.
SECTION 10.2 Effect of Termination. If this Agreement is terminated
pursuant to Section 10.1, this Agreement shall become void and of no effect
without liability of any party (or any stockholder, director, officer, employee,
agent, consultant or representative of such party) to the other parties hereto,
except that (a) the agreements set forth in Article VI (Board of Directors),
Article VII (Registration Rights), and Section 8.3 (Standstill) shall survive
the termination of this Agreement and shall terminate in accordance with the
terms, if any, set for in such Section or Article. No such termination shall
relieve any Party of any liability or damages resulting from any breach by such
party of this Agreement.
SECTION 10.3 Fees and Expenses. All costs and expense incurred in
connection with this Agreement shall be paid by the party incurring such cost or
expense whether or not the transactions contemplated hereby occur.
XI MISCELLANEOUS
SECTION 11.1 Notices. 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:
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
22
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it to HPCS, to:
Hutchison Telecommunications PCS (USA) Limited
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:
Hutchison Telecommunications Limited
22nd Floor, Hutchison
10 Harcourt Road
Hong Kong
Attention: Ms. Edith Shih
Facsimile No.: 852-2128-1778
with a copy to:
Dewey Ballantine, LLP
Suite 3907
Asia Pacific Finance Tower
Citibank Plaza, 3 Garden Road
Central Hong Kong
Attention: John A. Otoshi, Esq.
Facsimile No.: 852-2509-7088
if to Issuer, to:
Omnipoint Corporation
Three Bethesda Metro Center
Suite 400
Bethesda, MD 20814
Attention: (301) 951-2500
Fax: (301) 951-2518
with copies to:
Piper & Marbury L.L.P.
1200 Nineteenth Street, N.W.
Washington, D.C. 20036
23
<PAGE> 25
Attention: Edwin M. Martin, Jr., Esq.
Fax: (202) 233-2085
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 5:00 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.
SECTION 11.2 Survival of Warranties. The warranties, representations,
certifications and covenants of Issuer and Purchasers contained in or made
pursuant to this Agreement shall survive each of (a) the execution and delivery
of this Agreement, (b) the Initial Closing, and (c) the Subsequent Closing and
shall in no way be affected by any investigation of the subject matter thereof
made by or on behalf of Purchasers.
SECTION 11.3 Indemnification. Issuer agrees to indemnify each of the
Purchasers and their respective Affiliates, and the shareholders, members,
managers, officers, employees, agents and or legal representatives of any of
them (each, an "Indemnified Party") and to hold each Indemnified
Party harmless from and against any and all direct or indirect liabilities,
claims, losses, damages, costs and expenses of any kind (including, without
limitation, the reasonable fees and disbursements of such Indemnified Party's
counsel in connection with any investigative, administrative or adjudicative
proceeding, whether or not either Purchaser shall be designated a party
thereto), together with any and all costs and expenses associated with the
investigation of the same and/or the enforcement of the provisions hereof
(collectively, "Losses"), which may be incurred by such Indemnified Party
relating to, based upon, resulting from or arising out of (a) the breach by
Issuer of any representation, warranty, covenant or agreement of Issuer
contained herein, (b) this Agreement or the transactions contemplated hereby,
subject, in the case of the registration rights described in Article VII, to the
provisions set forth in Section 7.8, or (c) any actual or proposed use of the
proceeds of the sale of any of the Preferred Stock. Issuer shall reimburse each
Indemnified Party promptly for all such Losses as they are incurred by such
Indemnified Party.
SECTION 11.4 Amendments; No Waivers.
(a) 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.
(b) 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.
24
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SECTION 11.5 Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; provided that no party may assign, delegate
or otherwise transfer any of its rights or obligations under this Agreement
without the consent of each other party hereto.
SECTION 11.6 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.
SECTION 11.7 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.
SECTION 11.8 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.
SECTION 11.9 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.
SECTION 11.10 Entire Agreement; No Third Party Beneficiaries. 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 the
subject matter of this Agreement. Except as specifically set forth herein, this
Agreement is not intended to confer upon any Person other than the parties
hereto any rights or remedies.
SECTION 11.11 Captions. The captions herein are included for convenience
of reference only and shall be ignored in the construction or interpretation
hereof.
SECTION 11.12 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
25
<PAGE> 27
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.
SECTION 11.13 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.
26
<PAGE> 28
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed by their respective authorized officers as of the day and
year first above written.
VOICESTREAM WIRELESS CORPORATION
By:
-------------------------------------------
Name:
Title:
HUTCHISON TELECOMMUNICATIONS PCS (USA) LIMITED
By:
-------------------------------------------
Name:
Title:
OMNIPOINT CORPORATION
By:
-------------------------------------------
Name:
Title:
<PAGE> 29
<TABLE>
<CAPTION>
TABLE OF CONTENTS
-----------------
PAGE
----
<S> <C>
I DEFINITIONS..........................................................................1
SECTION 1.1...................................................................1
II PURCHASE AND SALE OF PREFERRED STOCK.................................................3
SECTION 2.1 Initial Closing..............................................3
SECTION 2.2 Subsequent Closing...........................................3
SECTION 2.3 Use of Proceeds..............................................3
SECTION 2.4 Terms of Preferred Stock.....................................3
III CLOSINGS.............................................................................4
SECTION 3.1 Time and Place of Initial Closing............................4
SECTION 3.2 Time and Place of Subsequent Closing.........................4
IV REPRESENTATIONS AND WARRANTIES OF ISSUER.............................................4
SECTION 4.1 Representations and Warranties of Issuer.....................4
V REPRESENTATIONS AND WARRANTIES OF PURCHASERS.........................................6
SECTION 5.1 Authorization................................................6
SECTION 5.2 Investment Representations...................................7
SECTION 5.3 Additional HPCS Representation and Agreement.................7
VI BOARD OF DIRECTORS...................................................................7
SECTION 6.1 Board of Directors...........................................7
VII REGISTRATIONS RIGHTS.................................................................8
SECTION 7.1 Demand Registrations.........................................8
SECTION 7.2 Piggyback Registrations......................................9
SECTION 7.3 No Inconsistent Agreement...................................10
SECTION 7.4 Lockup Agreement............................................10
SECTION 7.5 Termination of Certain Rights and Obligations...............11
SECTION 7.6 Registration Procedures.....................................11
SECTION 7.7 Registration Expenses.......................................13
SECTION 7.8 Indemnification.............................................14
SECTION 7.9 Contribution................................................16
SECTION 7.10 Participation in Underwritten Registrations.................17
SECTION 7.11 Recapitalization of Nonvoting Stock.........................17
SECTION 7.12 Adjustments Affecting Registrable Securities................17
VIII ADDITIONAL RIGHTS AND COVENANTS.....................................................17
</TABLE>
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<PAGE> 30
<TABLE>
<CAPTION>
TABLE OF CONTENTS
-----------------
PAGE
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<S> <C>
SECTION 8.1 Cooperation and Full Access.................................17
SECTION 8.2 Transactions, Agreements, etc...............................18
SECTION 8.3 Standstill..................................................18
IX CLOSING CONDITIONS..................................................................18
SECTION 9.1 Conditions to Purchasers' Obligations at the Initial Closing18
SECTION 9.2 Conditions to Issuer's Obligations at the Initial Closing...20
SECTION 9.3 Conditions to Purchasers' Obligations at the Subsequent
Closing.....................................................20
SECTION 9.4 Conditions to Issuer's Obligations at the Subsequent Closing22
X TERMINATION.........................................................................22
SECTION 10.1 Termination.................................................22
SECTION 10.2 Effect of Termination.......................................22
SECTION 10.3 Fees and Expenses...........................................22
XI MISCELLANEOUS.......................................................................23
SECTION 11.1 Notices.....................................................23
SECTION 11.2 Survival of Warranties......................................24
SECTION 11.3 Indemnification.............................................24
SECTION 11.4 Amendments; No Waivers......................................24
SECTION 11.5 Successors and Assigns......................................25
SECTION 11.6 Governing Law...............................................25
SECTION 11.7 Jurisdiction................................................25
SECTION 11.8 WAIVER OF JURY TRIAL........................................25
SECTION 11.9 Counterparts; Effectiveness.................................25
SECTION 11.10 Entire Agreement; No Third Party Beneficiaries..............25
SECTION 11.11 Captions....................................................26
SECTION 11.12 Severability................................................26
SECTION 11.13 Specific Performance........................................26
</TABLE>
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LIST OF EXHIBITS
<TABLE>
<S> <C>
Exhibit A-1 Form of Purchase Agreement between Omnipoint and the Cook Entity
Exhibit A-2 Form of Purchase Agreement between Omnipoint and the Cook Entity
Exhibit B Form of Omnipoint Rule 145 Affiliate Agreement
Exhibit C Form of Officer's Certificate of VoiceStream
Exhibit D Form of Officer's Certificate of Holding Company
Exhibit E Form of Opinion Letter of Regulatory Counsel to VoiceStream
Exhibit F-1 Form of Officer's Certificate of Omnipoint
Exhibit F-2 Form of Officer's Certificate of Omnipoint
Exhibit G Form of Opinion Letter of Regulatory Counsel to Omnipoint
</TABLE>
