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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 2)
VoiceStream Wireless Corporation
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(Name of Issuer)
Common Stock
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(Title of Class of Securities)
928615103
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(CUSIP Number)
Kaj-Erik Relander
Sonera Corporation
Teollisuuskatu 15
P.O. Box 106, FIN-00051
Helsinki, Finland
+358-204-01
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(Name, address and telephone number of person authorized
to receive notices and communications)
July 23, 2000
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(Date of Event which requires Filing of this Statement)
If a filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ].
NOTE: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d-1(a) for other parties to whom copies are to be
sent.
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The Filing Persons hereby amend the Schedule 13D originally filed on
March 2, 2000 and amended on May 25, 2000 as set forth in this Amendment No. 2,
which relates to the common stock of VoiceStream Wireless Corporation, a
Delaware corporation. Capitalized terms used but not defined herein shall have
the meanings given to them in the Schedule 13D as originally filed.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS
INVOLVING SECURITIES OF THE ISSUER
MERGER AGREEMENT AND RELATED VOTING AGREEMENTS
Item 6 of the Schedule 13D as originally filed is hereby amended by
adding thereto the following:
On July 23, 2000, VoiceStream Wireless Corporation ("VoiceStream") and
Deutsche Telekom AG ("DT") entered into a definitive Agreement and Plan of
Merger (the "Merger Agreement"), which provides for the merger of a subsidiary
of DT with and into VoiceStream. This merger will result in VoiceStream's
becoming a wholly owned subsidiary of DT.
In the merger, with respect to each share of VoiceStream common stock,
VoiceStream stockholders will have the ability to (i) make an all stock election
entitling a stockholder to receive 3.7647 shares of DT, (ii) an all cash
election entitling a stockholder to receive $200 in cash, or (iii) a combination
election entitling a stockholder to receive 3.2 DT shares and $30 in cash, in
each case subject to proration and to the right of VoiceStream to reduce the
aggregate cash consideration as it reasonably determines necessary to permit
delivery of the requisite tax opinion pursuant to the Merger Agreement.
VoiceStream stockholders may elect to receive (with respect to the stock
consideration) DT American Depositary Receipts, which will be listed on the New
York Stock Exchange, or ordinary DT shares, which will be listed on the
Frankfurt Stock Exchange.
The following persons have entered into agreements with DT (the
"Stockholders Agreements") to vote shares of VoiceStream common stock, which in
the aggregate represent more than 50% of VoiceStream's currently outstanding
shares, in favor of the merger:
John W. Stanton
Theresa E. Gillespie
PN Cellular, Inc.
Stanton Family Trust
Stanton Communications Corporation
GS Capital Partners, L.P.
The Goldman Sachs Group, Inc.
Bridge Street Fund 1992, L.P.
Stone Street Fund 1992, L.P.
Hutchison Telecommunications Holdings (USA) Limited
Hutchison Telecommunications PCS (USA) Limited
Sonera Corporation
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Sonera Holding B.V.
Deutsche Telekom AG
Telephone and Data Systems, Inc.
The Merger Agreement requires that the merger be presented to the
VoiceStream stockholders for a vote even if the VoiceStream board of directors
no longer recommends that the stockholders approve the merger. The consummation
of the merger is subject to a number of conditions, including receipt of
regulatory approvals, including FCC, Hart Scott Rodino, and EEC approvals and a
no-action position under Exxon-Florio.
The Merger Agreement may be terminated, among other reasons, by
VoiceStream if the merger has not occurred by September 30, 2001, and by DT if
the merger has not occurred by December 31, 2001, or by either party if a
burdensome condition (as defined in the Merger Agreement) is imposed by any
regulatory body in granting its approval.
DT will invest $5 billion in preferred stock of VoiceStream having a
liquidation preference of $1,280 per share, which will become convertible into
VoiceStream common stock at $160 per share if the Merger Agreement is
terminated. The preferred stock will vote with the VoiceStream common stock as a
single class and will have one vote per share. If the preferred stock issued to
DT is converted into VoiceStream common stock, DT's ownership of the outstanding
VoiceStream common stock would be approximately 10%. Further, upon such
conversion into VoiceStream common stock, an amendment to the existing Voting
Agreement among certain stockholders of VoiceStream (the "Voting Agreement"),
described below, entered into by DT and such other stockholders of VoiceStream
that will permit DT to designate two members of VoiceStream's board will become
effective. In addition, VoiceStream has granted DT the right to purchase its pro
rata amount of certain subsequent issuances of equity securities by VoiceStream
in order to permit DT to maintain its percentage ownership of VoiceStream
(subject to limitations) and DT has agreed to a standstill limiting its
ownership of VoiceStream to 33% in the first two years, 36% in the third year
and 40% in the fourth and fifth years following the date of the Merger
Agreement.
FIRST AMENDED AND RESTATED VOTING AGREEMENT
The Voting Agreement (which was described in the Schedule 13D
originally filed) will remain in effect unless and until DT converts its
VoiceStream preferred stock into VoiceStream common stock, in which case the
Voting Agreement will be amended and restated as described herein pursuant to
the First Amended and Restated Voting Agreement, dated July 23, 2000 (the "First
Amended and Restated Voting Agreement"). Under the terms of the First Amended
and Restated Voting Agreement, the filing persons will vote their shares of
VoiceStream common stock in favor of a board consisting of 19 persons (subject
to adjustment) designated as follows:
(i) John Stanton, as long as he is the chief executive
officer of VoiceStream;
(ii) One member designated by John Stanton, so long as he or
his permitted transferees beneficially own at least 4,500,000 shares;
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(iii) Four members designated by Hutchison Telecommunications
PCS USA Limited ("Hutchison PCS")(or if Hutchison PCS has transferred all of its
shares to permitted transferees of Hutchison PCS, four designees of such
permitted transferees) and its affiliated entities. Such number of designees
shall be subject to increases (rounded to the nearest whole number), depending
upon increases in Hutchison PCS's (and its permitted transferees') percentage
ownership of outstanding shares (including without limitation shares issuable to
Hutchison PCS (and its permitted transferees) upon conversion of the VoiceStream
preferred stock held by Hutchison PCS), in which event the board shall be
expanded by one member to accommodate each such new designee unless there are
vacancies on the board and the board determines to fill any vacancies with such
designees so that the percentage of the entire board represented by Hutchison
PCS's designees (rounded to the nearest whole number) shall be proportionate to
Hutchison PCS's (and its permitted transferees') aggregate percentage ownership
of outstanding shares (including without limitation shares issuable to Hutchison
PCS (and its permitted transferees) upon conversion of the preferred stock held
by Hutchison PCS);
(iv) One member designated by Goldman, Sachs & Co., Inc., GS
Capital Partners, L.P., Bridge Streeet Fund 1992, L.P. and State Street Fund
1992, L.P. (collectively, the "Goldman Entities") and their permitted
transferees, so long as such entities beneficially own at least 4,500,000
shares;
(v) Four members who were on the board of directors of
Omnipoint Corporation ("Omnipoint") prior to the acquisition (the "Omnipoint
Reorganization") of Omnipoint by VoiceStream and who are selected by Omnipoint
to serve (the following persons have been designated by Omnipoint to serve as
directors: Douglas G. Smith, Richard L. Fields, James N. Perry, Jr. and James J.
Ross; such persons being collectively referred to as the "Omnipoint Designees")
until and including the second annual meeting of stockholders of VoiceStream
taking place after February 25, 2000 (it being understood that such four members
shall serve until such time as the term of office of the directors elected at
such second annual meeting terminates);
(vi) One member designated by Sonera Corporation ("Sonera")
and its permitted transferees so long as such entities beneficially own at least
4,500,000 shares; provided, however, that if Sonera beneficially owns more than
9,800,000 shares and Telephone Data Systems, Inc. ("TDS") beneficially owns less
than 4,500,000 shares, the number of members that Sonera will be entitled to
designate will be two;
(vii) One member designated by TDS and its permitted
transferees so long as such entities beneficially own at least 4,500,000 shares,
such director to be elected to the board by action of the board promptly after
TDS designates a member; provided, however, that if TDS beneficially owns more
than 9,800,000 shares and Sonera beneficially owns less than 4,500,000 shares,
the number of members that TDS will be entitled to designate will be two;
(viii) Two members designated by DT and its permitted
transferees so long as such entities beneficially own at least 9,800,000 shares,
such directors to be elected to the board by action of the board promptly after
DT designates such members; provided, however,
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that if DT beneficially owns at least 4,500,000 shares but less than 9,800,000
shares, the number of members that DT will be entitled to designate will be one;
(ix) The then president of VoiceStream;
(x) The then vice-chairman of VoiceStream; and
(xi) The remaining members of the board as selected by a
majority of the directors designated pursuant to clauses (i), (ii), (iv), (ix)
and (x).
No designee to the board may be removed (except removal for cause under
applicable law) without the written consent of the persons who designated the
director (in the case of the Omnipoint Designees, a majority of the board of
directors of Omnipoint as such board of directors existed immediately prior to
the Omnipoint Reorganization).
Notwithstanding the foregoing:
(A) if at any time the Goldman Entities (and their permitted
transferees) shall cease to beneficially own at least 4,500,000 shares, then in
such event, they (or, if they have transferred all of their shares to permitted
transferees, their permitted transferees) shall not be entitled to designate any
member of the board;
(B) if at any time John Stanton (and his permitted
transferees) shall cease to beneficially own at least 4,500,000 shares, then in
such event, John Stanton (or, if John Stanton has transferred all of his shares
to permitted transferees, his permitted transferees) shall not be entitled to
designate any member of the board (except that Stanton shall continue to serve
on the board for so long as he holds the office of chief executive officer of
VoiceStream);
(C) the number of designees of Hutchison PCS (and its
permitted transferees) shall be subject to decreases (rounded to the nearest
whole number) depending upon reductions in Hutchison PCS's (and its permitted
transferees') percentage ownership of outstanding shares (including without
limitation shares issuable to Hutchison PCS (and its permitted transferees) upon
conversion of the VoiceStream preferred stock held by Hutchison PCS), so that
the percentage of the entire board represented by Hutchison PCS's (and its
permitted transferees') designees (rounded to the nearest whole number) shall be
proportionate to Hutchison PCS's (and its permitted transferees') aggregate
percentage ownership of outstanding shares, in which event the number of
designees Hutchison PCS (and its permitted transferees) are entitled to
designate to the board shall be reduced so that the percentage of the entire
board represented by Hutchison PCS's (and its permitted transferees') designees
(rounded to the nearest whole number) shall be proportionate to Hutchison PCS's
(and its permitted transferees') aggregate percentage ownership of outstanding
shares; provided, however, that so long as Hutchison PCS (and its permitted
transferees) beneficially owns at least 9,800,000 shares, then in such event
Hutchison PCS and its permitted transferees shall be entitled to designate at
least two members of the board; and provided, further, that if at any time
Hutchison PCS (and its permitted transferees) shall cease to beneficially own at
least (i) 9,800,000 shares, but shall continue to beneficially own at least
4,500,000 shares, then in such event Hutchison PCS and its permitted transferees
shall be entitled to designate only one member of the board; and (ii) 4,500,000
shares,
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then in such event, Hutchison PCS and its permitted transferees shall not be
entitled to designate any member of the board;
(D) if at any time Sonera (and its permitted transferees)
shall cease to beneficially own at least (i) 9,800,000 shares at a time when
Sonera is entitled to designate two directors, then in such event, Sonera (or,
if Sonera has transferred all of its shares to permitted transferees of Sonera,
its permitted transferees) shall be entitled to designate only one member of the
board; and (ii) 4,500,000 shares, then in such event, Sonera (or, if Sonera has
transferred all of its shares to permitted transferees of Sonera, its permitted
transferees) shall not be entitled to designate any member of the board;
(E) if at any time TDS (and its permitted transferees) shall
cease to beneficially own at least (i) 9,800,000 shares at a time when TDS is
entitled to designate two directors, then in such event, TDS (or, if TDS has
transferred all of its shares to permitted transferees of TDS, its permitted
transferees) shall be entitled to designate only one member of the board; and
(ii) 4,500,000 Shares, then in such event, TDS (or, if TDS has transferred all
of its shares to permitted transferees of TDS, its permitted transferees) shall
not be entitled to designate any member of the Board;
(F) if at any time DT (and its permitted transferees) shall
cease to beneficially own at least (i) 9,800,000 shares, but shall continue to
beneficially own at least 4,500,000 shares), then in such event, DT (or, if DT
has transferred all of its shares to permitted transferees of DT, its permitted
transferees) shall be entitled to designate only one member of the board; and
(ii) 4,500,000 shares, then in such event, DT (or, if DT has transferred all of
its shares to permitted transferees of DT, its permitted transferees) shall not
be entitled to designate any member of the board.
(G) Any vacancies on the board created by reason of the
provisions of subsections (A) through (F) above shall be filled by the vote of a
majority of the directors then in office (unless such directors determine to
reduce the size of the board after a vacancy is created) to serve until the next
annual meeting of stockholders of VoiceStream, and at the next annual meeting
shall be filled by a vote of a plurality of all stockholders of VoiceStream;
provided, however, that in the event that the size of the board shall have
increased by reason of Hutchison PCS having the right to designate additional
director(s) and thereafter Hutchison PCS shall cease to have the right to so
designate such additional director(s), the size of the board shall be
appropriately reduced and each of the parties to the Voting Agreement (and each
of their respective permitted transferees ) will vote, or cause to be voted, all
of the shares then beneficially owned by it (whether now owned or hereafter
acquired), in person or by proxy (and, shall take all other necessary or
desirable actions within such party's (or its permitted transferees') control
including attendance at meetings in person or by proxy for purposes of obtaining
a quorum and execution of written consents in lieu of meetings), to cause such
reduction in the board.
(H) Notwithstanding anything to the contrary contained in the
amended Voting Agreement, Hutchison's right to transfer its right to designate
directors to certain block transferees as set forth in Sections 14 and 15 of the
Stockholders Agreement of VoiceStream
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Wireless Corporation, dated February 17, 1998, as amended, among Western
Wireless Corporation, a Washington corporation, VoiceStream and Hutchison PCS,
shall continue in full force and effect until terminated in accordance with the
terms of such Stockholders Agreement.
TRANSFER RESTRICTIONS PURSUANT TO THE STOCKHOLDERS AGREEMENT
Pursuant to the stockholders agreements entered into between DT and the
Filing Persons, in addition to agreeing to vote in favor of the merger with DT
the Filing Persons have agreed with DT not to transfer any VoiceStream common
stock (or DT shares received with respect to their VoiceStream common stock in
the merger) except for the percentage of their holdings set forth below, subject
to certain exceptions:
1. Until the later of January 1, 2001 and the
VoiceStream stockholders' meeting to approve the
merger: none.
2. From the later of January 1, 2001 and the VoiceStream
stockholders' meeting to approve the merger until the
merger occurs: 17.5%, except that if the merger has
not occurred by July 31, 2001 the percentage
thereafter will be increased by 3.75% on August 1,
2001, and if the merger has not occurred by August
31, 2001 the percentage thereafter will be increased
by another 3.75% on September 1, 2001.
3. For the three-month period following the merger: none
4. For the three-month period ending six months after
the merger: 40%
5. After six months after the merger: 100%
The description of the Merger Agreement contained herein is subject,
and qualified in its entirety by reference to, the Merger Agreement which has
been filed with the Securities and Exchange Commission by Voicestream Wireless
Corporation in its Current Report on Form 8-K filed July 28, 2000. The
descriptions of the Stockholders Agreements and the First Amended and Restated
Voting Agreement contained herein are subject to, and qualified in their
entirety by reference to, the stockholders agreements entered into by DT and the
Filing Persons and the First Amended and Restated Voting Agreement, which have
been made an exhibit to this amendment and are hereby incorporated by reference
in this Item 6.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
1.* Stock Subscription Agreement dated as of September
17, 1999 by and among VoiceStream Wireless Holding
Corporation and Sonera LTD.
2.* Voting Agreement, dated as of February 25, 2000, by
and among VoiceStream Wireless Holding Corporation,
John W. Stanton, Theresa E. Gillespie, PN Cellular,
Inc., The Stanton Family Trust, Stanton
Communications Corporation, GS Capital Partners,
L.P., The Goldman Sachs Group, Inc., Bridge Street
Fund 1992, L.P., Stone Street Fund 1992, L.P.,
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Stone Street Performance Corp., Hutchison
Telecommunications Holdings (USA) Limited, Hutchison
Telecommunications PCS (USA) Limited, Allen & Company
Incorporation, Allen & Co., Inc., Madison Dearborn
Capital Partners, L.P., Avance Capital, Douglas G.
Smith, Douglas G. Smith GRAT, Richard L. Fields,
James N. Perry, Jr., James J. Ross, as Trustee for
Elizabeth G. Ross U/T/A, Dated March 4, 1994, James
J. Ross, as Trustee for David G. Ross U/T/A, Dated
June 18, 1997, Sonera Corporation and Sonera Holding
B.V.
3.* The Investor Agreement, dated September 17, 1999,
among Sonera LTD., VoiceStream Wireless Corporation
and VoiceStream Wireless Holding Corporation.
4.* The Registration Rights Agreement, dated February 25,
2000, between VoiceStream Wireless Holding
Corporation, Sonera Corporation and Sonera Holding
B.V.
5. First Amended and Restated Voting Agreement dated
July 23, 2000 (Incorporated herein by reference to
Exhibit 99.3 to the Current Report on Form 8-K of
VoiceStream Wireless Corporation filed on July 28,
2000).
6. Stockholders Agreement between DT and the Filing
Persons.
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* Previously filed.
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is true,
complete and correct.
Dated: August 8, 2000 SONERA CORPORATION
By: /s/ Kaj-Erik Relander
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SONERA HOLDING B.V.
By: /s/ Kaj-Erik Relander
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