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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
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)
February 25, 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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CUSIP NO. 928615103 Page 2 of 10
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1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Sonera Corporation
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [X]
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3. SEC USE ONLY
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4. SOURCE OF FUNDS
WC
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5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E)
[ ]
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6. CITIZENSHIP OR PLACE OF ORGANIZATION
Finland
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7. SOLE VOTING POWER
NUMBER OF 8,771,930
SHARES -----------------------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY 0
EACH -----------------------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 8,771,930
WITH -----------------------------------------------------
10. SHARED DISPOSITIVE POWER
0
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11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
8,771,930
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12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
[ ]
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13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.1%
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14. TYPE OF REPORTING PERSON
CO
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CUSIP NO. 928615103 Page 3 of 10
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1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Sonera Holding, B.V.
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [X]
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3. SEC USE ONLY
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4. SOURCE OF FUNDS
WC
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5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E)
[ ]
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6. CITIZENSHIP OR PLACE OF ORGANIZATION
The Netherlands
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7. SOLE VOTING POWER
NUMBER OF 8,771,930
SHARES -----------------------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY 0
EACH -----------------------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 8,771,930
WITH -----------------------------------------------------
10. SHARED DISPOSITIVE POWER
0
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11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
8,771,930
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12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
[ ]
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13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.1%
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14. TYPE OF REPORTING PERSON
CO
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<PAGE>
Item 1. Security and Issuer.
This statement on Schedule 13D relates to the common stock,
$.001 par value (the "Common Stock"), of VoiceStream Wireless Corporation, a
Delaware corporation (the "Company"). The principal executive offices of the
Company are located at 3650 131st Avenue SE, Bellevue, Washington 98006.
Item 2. Identity and Background.
(a) This Schedule 13D is being filed by Sonera Corporation, a
Finnish limited liability company ("Sonera") and its wholly owned subsidiary
Sonera Holding B.V. ("Sonera B.V."). The members of the supervisory board of
Sonera, and their principal occupation or employment, are:
<TABLE>
<CAPTION>
Name Principal Occupation
---- --------------------
<S> <C>
Pauli Saapunki, chairman................ Member of Parliament
Minna Karhunen, vice chairman........... Journalist
Aapo Saari.............................. Farmer
Liisa Hyssala........................... Member of Parliament
Pirjo-Riitta Antvuori................... Member of Parliament
Olavi Tonteri........................... Colonel, Finnish Defense Forces
Leenamaija Otala........................ Docent, Pro Competence Oy
Tuomas Harpf............................ Managing Director, Suomen Viestintarahoitus Oy
Arja Alho............................... Master of Political Science
Reino Ojala............................. Special Advisor
Helena Vartiainen....................... Chairman of City Council
Tarja Cronberg.......................... Executive Director, Council of North Karelia region
Tapio Hintikka.......................... President and CEO, Oyj Hackman Abp
Raimo Kantola........................... Professor, Helisinki University of Technology
Tarmo Eskola ........................... IT Director, UPM-Kymmene Corporation
Ritva Rastimo........................... Managing Director, Espoo Chamber of Commerce
Max Mickelsson.......................... Secretary General for the Parliamentary Group of the National Coalition Party
Erik Lindfors........................... Secretary, Metal Workers' Union
Max Arhippainen......................... Senior Economist, Pellervo Economic Research Institute
Bjarne Kallis........................... Member of Parliament
</TABLE>
The members of the board of directors of Sonera and their
principal occupation or employment are:
Markku Talonen.......................... Chairman
Liisa Joronen........................... Vice Chairman
Kalevi Alestalo......................... Director
Reijo Sulonen........................... Director
4
<PAGE>
<TABLE>
<S> <C>
Tapio Vaahtokivi........................ Director, employee representative
Kari Vilkman............................ Director, employee representative
</TABLE>
Markku Talonen has been the chairman of the board of directors
of Sonera since 1998, and, prior to the demerger, was the chairman of the board
of directors of PT Finland. In addition, Mr. Talonen is the president and CEO of
Orion Corporation.
Liisa Joronen has been the vice chairman of the board of
directors of Sonera since 1998, and, prior to the demerger, was a member of the
board of directors of PT Finland. In addition, Ms. Joronen is the chairman of
the board of directors of SOL Corporation and a member of the supervisory boards
of Merita Bank plc and llmarinen Mutual Pension Insurance Company.
Kalevi Alestalo has been a member of the board of directors of
the Sonera since 1998. Mr. Alestalo is the consultant counselor of the Ministry.
Reijo Sulonen has been a member of the board of directors of
Sonera since 1998, and, prior to the demerger, was a member of the board of
directors of PT Finland. Mr. Sulonen serves as a professor at the Helsinki
University of Technology. In addition, he is a member of the Boards of Directors
of a number of Finnish information and other technology related companies.
Tapio Vaahtokivi has been an employee representative in the
board of directors of Sonera since 1998, and, prior to the demerger, was an
employee representative in the board of directors of Telecom Finland. Mr.
Vaahtokivi is the chairman of Telecommunications Union, a labor union for
telecommunications employees.
Kari Vilkman has been an employee representative in the board
of directors of Sonera since 1998, and, prior to the demerger, was an employee
representative in the board of directors of Telecom Finland.
The executive officers of Sonera are:
<TABLE>
<S> <C>
Aulis Salin............................. President and chief executive officer
Aimo Eloholma........................... Executive vice president
Matti Makkonen.......................... Executive vice president
Kaj-Erik Relander....................... Executive vice president
Juha Varelius........................... Executive vice president
</TABLE>
Aulis Salin is the president and the chief executive officer
of Sonera. Mr. Salin joined Sonera in 1962 and he has held positions in various
departments.
Aimo Eloholma is the executive vice president of Sonera
responsible for corporate planning. Mr. Eloholma joined Sonera in 1974 and he
has held a number of positions in various fields of operation, including data
communications, business development and sales and marketing.
5
<PAGE>
Matti Makkonen is the executive vice president of Sonera
responsible for its mobile communications operations. Mr. Makkonen joined Sonera
in 1976 and he has held a number of positions within the mobile communications
operations.
Kaj-Erik Relander is the executive vice president and chief
financial officer of Sonera responsible for its international operations. Prior
to joining Sonera in 1994, Mr. Relander worked for SITRA, a Finnish private
equity fund.
Juha Varelius is the executive vice president of Sonera
responsible for media services. Mr. Varelius joined Sonera in 1993 and has held
a number of positions within media services.
(b), (c) and (f) The address of Sonera and its supervisors,
directors and executive officers is Teollisuuskatu 15, P.O. Box 106, FIN-00051,
Helsinki, Finland. Sonera is a limited liability company organized under the
laws of the Republic of Finland. Each supervisor, director and executive officer
of Sonera is a citizen of the Republic of Finland. Sonera's principal business
is telecommunications.
The address of Sonera B.V. and its directors and executive
officers is Revium Quadrant 58, [2909 LC] Cabelle aan den Ijssel, the
Netherlands. Sonera B.V. is a limited liability company organized under the laws
of the Netherlands. The managing directors of Sonera B.V. are Jacques Andre
Martin Bruins Slott (a citizen of the Netherlands), Maire Laitinen (a citizen of
the Republic of Finland), and Reetta - Leena Rossi - Luck (a citizen of the
Republic of Finland). Sonera B.V.'s principal business is telecommunications.
(d) and (e) During the past five years, none of Sonera, Sonera
B.V. or their supervisors, directors or executive officers have been convicted
in any criminal proceeding (excluding traffic violations or similar
misdemeanors) or been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of such proceeding
was or is subject to a judgment, decree or final order enjoining future
violations of, or prohibiting or mandating activities subject to, federal or
state securities laws or finding any violation with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration.
The source of funds used by Sonera to purchase the securities
of the Company was working capital. The amount of funds used by Sonera to
purchase the securities was $500,000,010.
On September 17, 1999, Sonera entered into a Stock
Subscription Agreement with the Company under which Sonera agreed to purchase
and the Company agreed to sell 8,771,930 shares of the Company's common stock
for $500,000,010 ($57 per share). The stock purchase was consummated on February
25, 2000.
Item 4. Purpose of the Transaction.
The acquisitions of Common Stock by the Filing Persons were
made for investment purposes only.
6
<PAGE>
None of the Filing Persons has any present plans or intention
which would result in or relate to any of the transactions described in
subparagraphs (a) through (j) of Item 4 of Schedule 13D; however, (a) the Aerial
Reorganization described under Item 6 has been approved by the stockholders of
the Company, including the Filing Persons, and (b) the Filing Persons have
entered into the Voting Agreement described under Item 6 below. Each of the
Filing Persons, however, expects to evaluate on an ongoing basis the Company's
financial condition, business, operations and prospects, the market price of the
Common Stock, conditions in the securities markets generally, general economic
and industry conditions and other factors. The Filing Persons may purchase
additional shares of Common Stock or may sell shares of Common Stock from time
to time in public or private transactions (subject to any applicable limitations
imposed on the sale of any of their shares of Common Stock by the Securities Act
of 1933, as amended).
Item 5. Interest in Securities of the Issuer.
(a) AGGREGATE NUMBER AND PERCENTAGE OF SECURITIES BENEFICIALLY
OWNED:
Sonera and Sonera B.V. are the beneficial owners of 8,771,930
shares of Common Stock, representing 5.1% of the issued and outstanding Common
Stock.
(b) NUMBER OF SHARES AS TO WHICH SUCH PERSON HAS POWER TO
VOTE:
Sonera B.V. has the sole power (i) to vote or to direct the
voting of and (ii) to dispose and to direct the disposition of the 8,771,930
shares of Common Stock beneficially owned by it.
(c) TRANSACTIONS EFFECTED DURING THE PAST 60 DAYS OR SINCE THE
MOST RECENT FILING ON SCHEDULE 13D, WHICHEVER IS LESS:
On February 25, 2000, the purchase of the securities prusuant
to the Stock Subscription Agreement was consummated.
(d) To the best knowledge of each Filing Person, no other
person is known to have the right to receive or the power to direct the receipt
of dividends from, or the proceeds from the sale of the Common Stock.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or
Relationships Involving Securities of the Issuer.
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
7
<PAGE>
1992, L.P., Hutchison Telecommunications Holdings (USA) Limited, Hutchison
Telecommunications PCS (USA) Limited, Allen & Company Incorporated, Madison
Dearborn Capital Partners, L.P., James N. Perry, Jr., Richard L. Fields, Avance
Capital, Avance Capital II, Avance Capital III, Douglas G. Smith Grat, Douglas
G. Smith, 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. entered into an agreement, dated as
of February 25, 2000 (the "Voting Agreement"). Pursuant to the Voting Agreement,
the Filing Persons have agreed to vote their shares of Common Stock for the
election of a board initially consisting of 16 members, subject to adjustments,
of the Company board designated as follows: (i) Mr. Stanton, as long as he is
the chief executive officer of the Company; (ii) one member designated by Mr.
Stanton, so long as he or entities affiliated with him beneficially own at least
4,500,000 shares of Common Stock; (iii) four members designated by Hutchison PCS
(USA) Limited and its affiliated entities, which number of designees shall be
subject to increases or decreases depending upon increases or reductions in
Hutchison PCS (USA)'s percentage ownership of outstanding Common Stock,
including shares of Common Stock issuable to Hutchison PCS (USA) upon conversion
of the Company's 2.5% Convertible Junior Preferred Stock; (iv) one member
designated by Goldman, Sachs & Co., Inc. and affiliated entities, so long as the
Goldman Sachs entities beneficially own at least 4,500,000 shares of Common
Stock; (v) four members who were on the Omnipoint board prior to the Merger and
who are selected by Omnipoint to serve during the period from the closing of the
Merger until and including the second annual meeting of stockholders of the
Company taking place after the closing of the Merger (the designees of Omnipoint
are initially Douglas G. Smith, Richard L. Fisher, James N. Perry, Jr., and
James J. Ross), (vi) one member designated by Sonera Corporation and its
affiliated entities (including Sonera B.V.), so long as the Sonera entities
beneficially own at least 4,500,000 shares of Common Stock; and the remaining
members of the board to be selected by a majority of the persons selected as
described above.
In addition, the Voting Agreement provides that in the event
of the consummation of the transactions described in that certain Agreement and
Plan of Reorganization, dated as of September 17, 1999 (as the same may be
amended from time to time, the "Aerial Reorganization Agreement"), by and among
VWC, the Company, VoiceStream Subsidiary III Corporation, a Delaware corporation
("Merger Sub"), Aerial Communications, Inc., a Delaware corporation ("Aerial"),
and Telephone and Data Systems, Inc., a Delaware corporation ("TDS"), pursuant
to which, among other things, Merger Sub is to be merged with and into Aerial
(such merger, together with the related transactions contemplated by the Aerial
Reorganization Agreement, being referred to herein as the "Aerial
Reorganization"), then TDS will become a party to the Voting Agreement and the
number of members of the board of directors of the Company will be increased to
17, and TDS will be entitled to designate a member so long as TDS owns at least
4,500,000 shares of Common Stock. The Voting Agreement further provides that if
TDS owns more than 9,800,000 shares of Common Stock and Sonera owns less than
4,500,000 shares of Common Stock, TDS will be entitled to designate two members
to the board of the Company, and if Sonera owns more than 9,800,000 shares of
Common Stock and TDS owns less than 4,500,000 shares of Common Stock, Sonera
will be entitled to designate two members to the board of the Company.
On September 17, 1999, Sonera, VWC and the Company entered
into an Investor Agreement whereby Sonera agreed that upon consummation of the
Merger and until September 17,
8
<PAGE>
2004, beneficial ownership of Common Stock held by Sonera and its affiliates
would not exceed 19.9% of the outstanding shares of Common Stock. Among other
things, this agreement will also prohibit Sonera and its affiliates from, in
certain circumstances, participating in proxy contests, tender offers, exchange
offers or other transactions relating to a change of control of the Company.
Upon consummation of the Merger, the Company also agreed to grant Sonera certain
registration rights for the shares of Common Stock it receives for its $500
million investment and other Company shares issued to Sonera or an affiliate of
Sonera.
The foregoing description of the Voting Agreement is subject
to, and qualified in its entirety by reference to, the agreement, which is filed
as Exhibit 2 hereto and incorporated by reference into 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., 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.
9
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is true,
complete and correct.
Dated: February 28, 2000 SONERA CORPORATION
By: /s/ Kaj-Erik Relander
------------------------------
SONERA HOLDING B.V.
By: /s/ Kaj-Erik Relander
------------------------------
Exhibit 99.1
EXECUTION COPY
STOCK SUBSCRIPTION AGREEMENT
BY AND AMONG
VOICESTREAM WIRELESS HOLDING CORPORATION,
and
SONERA LTD.
DATED: September 17, 1999
<PAGE>
TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS..........................................................1
ARTICLE 2 PURCHASE OF STOCK; CLOSING...........................................3
2.01 Purchase and Exchange of Stock...................................3
2.02 Closing..........................................................3
(a) Closing Date.................................................3
(b) Location.....................................................3
ARTICLE 3 COVENANTS AND AGREEMENTS.............................................4
3.01 Covenant of the Company..........................................4
3.02 Covenant of the Investor.........................................4
3.03 HSR Act..........................................................4
3.04 FCC Consent......................................................4
3.05 Cooperation......................................................4
3.06 Certificate......................................................4
3.07 Merger Consolidation.............................................5
3.08 Settlement Agreement.............................................5
ARTICLE 4 REPRESENTATIONS AND WARRANTIES.......................................5
4.01 Representations and Warranties of the Company....................5
(a) Due Organization.............................................5
(b) Power and Authority; No Violation............................5
(c) Legal Matters................................................6
(d) Truth and Correctness........................................6
(e) Purchased Shares.............................................6
(f) Investment Company Act.......................................6
(g) No Brokers...................................................6
(h) Reports and Financial Statements.............................6
4.02 Representations and Warranties of the Investor...................7
(a) Due Organization.............................................7
(b) Power and Authority; No Violation............................7
(c) Legal Matters................................................7
(d) Securities Representation....................................8
(e) Investment Company Act.......................................8
(f) Truth and Correctness........................................9
(g) No Brokers...................................................9
i
<PAGE>
ARTICLE 5 CONDITIONS TO OBLIGATIONS............................................9
5.01 Conditions to the Obligation of the Company......................9
(a) Representations and Warranties True..........................9
(b) HSR Act......................................................9
(c) Purchase Price...............................................9
(d) Resolutions.................................................10
(e) No New Statutes.............................................10
(f) Omnipoint Reorganization Agreement..........................10
(g) Consents....................................................10
5.02 Conditions to the Obligation of the Investor....................10
(a) Representations and Warranties True.........................10
(b) HSR Act.....................................................10
(c) Stock Certificates..........................................10
(d) Resolutions.................................................10
(e) No New Statutes.............................................11
(f) Omnipoint Reorganization Agreement..........................11
(g) Consents....................................................11
ARTICLE 6 MISCELLANEOUS.......................................................11
6.01 Expenses........................................................11
6.02 Equitable Remedies..............................................11
6.03 Notices.........................................................11
(a) if to the Company, to it at:................................11
(b) if to the Investor, to it at;...............................12
6.04 Entire Agreement................................................12
6.05 Remedies Cumulative.............................................13
6.06 Governing Law...................................................13
6.07 Counterparts....................................................13
6.08 Waivers.........................................................13
6.09 Successors and Assigns..........................................13
6.10 Further Assurances..............................................13
6.11 Disclosures.....................................................13
6.12 Termination.....................................................13
(a) Events Triggering Termination...............................13
(b) No Further Obligation.......................................14
6.13 Jurisdiction, Consent to Service of Process.....................14
6.14 No Claim of Immunity............................................14
ii
<PAGE>
STOCK SUBSCRIPTION AGREEMENT
STOCK SUBSCRIPTION AGREEMENT, dated as of September 17, 1999
(the "Agreement"), by and between VOICESTREAM WIRELESS HOLDING CORPORATION, a
Delaware corporation (the "Company"), and SONERA LTD., a Finnish limited
liability company ("Investor").
W I T N E S S E T H:
WHEREAS, the Company is engaged in the communications business
in the United States;
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 Five Hundred Million
Ten ($500,000,010) Dollars in cash, 8,771,930 shares of Common Stock, par value
.001 per share, of the Company (the "Common 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:
"Aerial Reorganization Agreement" shall mean the Agreement and
Plan of Reorganization, dated as of September 17, 1999, among the Company,
Aerial Communications, Inc., a Delaware corporation ("Aerial"), Telephone and
Data Systems, Inc., a Delaware corporation ("TDS"), VoiceStream Wireless
Corporation, a Washington corporation ("VoiceStream"), and VoiceStream
Subsidiary III Corporation, a Delaware corporation and wholly owned subsidiary
of the Company ("Sub"), pursuant to which Sub shall merge with and into Aerial
(the "Aerial Merger").
"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>
"Agreement " shall have the meaning set forth in the preamble
hereof.
"Beneficially Own" shall have the meaning set forth in Rule
l3d-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, Helsinki, Finland, Seattle,
Washington 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.
"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.
"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 Reorganization Agreement" shall mean the Agreement
and Plan of Reorganization, dated as of June 23, 1999, by and among the Company,
VoiceStream. and Omnipoint Corporation, a Delaware corporation.
"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.
2
<PAGE>
"Purchased Shares" shall have the meaning set forth in Section
2.01.
"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 OF STOCK; CLOSING
2.01 Purchase of Stock.
Upon the terms and conditions herein set forth, 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, 8,771,930 shares of Common Stock (collectively the "Purchased Shares")
for a purchase price per share equal to Fifty-Seven ($57.00) Dollars, for an
aggregate purchase price of Five Hundred Million Ten ($500,000,010) Dollars
(collectively, the "Purchase Price").
2.02 Closing.
(a) Closing Date. Consummation of the purchase of the
Purchased Shares (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 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 the Company located at 3650 131st 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. The Company shall
give the Investor not less than seven (7) days notice of the Closing Date and
the account to which the wire transfer should be made.
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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 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 the Investor and the Company shall file, or cause to be
filed, as soon as practicable following the date hereof and in no event later
than ten (10) Business Days from the date hereof, 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.
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.
3.05 Cooperation. 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
Federal Trade Commission, the Antitrust Division of the Department of Justice,
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 in connection with the foregoing applications.
3.06 Certificate. Investor agrees to execute and deliver to the Company
upon the closing of the Omnipoint Reorganization and on the closing of the
Aerial Merger a certificate in the form attached hereto as Schedule 3.06.
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3.07 Merger Consideration. In connection with the Aerial Merger,
Investor agrees that neither it nor any of its Affiliates shall submit a Cash
Election Form pursuant to Section 2(d) of the Aerial Reorganization Agreement.
3.08 Settlement Agreement. Investor has concurrently herewith executed
and delivered the Settlement Agreement and Release in the form attached hereto
as Schedule 3.08.
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 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 except for any default or loss of rights, which individually
or in the aggregate, would not have a Material Adverse Effect on the Company; 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. Except as set forth on
Schedule 4.01(b) hereof, 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.
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(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.
(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, in light of the circumstances under which such
statements are made, not misleading.
(e) Purchased Shares. The Purchased 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, except for rights, if any, pursuant to the
Investor Agreement, dated as of June 23, 1999, among Hutchinson
Telecommunications PCS (USA) Limited, Hutchinson Telecommunications Limited and
the Company. At the Closing, the Purchased 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 May 3, 1999, (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
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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 yearend
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.
4.02 Representations and Warranties of the Investor. Investor
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. Investor is a limited liability company
duly organized validly existing and in good standing under the laws of the
Republic of Finland.
(b) Power and Authority; No Violation. 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 the Investor and this Agreement
constitutes a legal, valid and binding obligation of 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 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 the Investor; (B) any material note, bond, indenture, mortgage, deed of
trust, contract, agreement, lease or other instrument or obligation to which the
Investor is a party or by which it or its property may be bound or affected,
except for any default or loss of rights, which, individually or in the
aggregate would not have a material adverse effect on the Investor or its
ability to perform its obligations under this Agreement or to purchase the
Purchased Shares; or (C) any law, order, judgment, ordinance, rule, regulation
or decree to which 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 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 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.
(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 Investor
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threatened, against or relating to the Investor's right to perform its
obligations under this Agreement, nor does the Investor 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 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. 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 enter into this Agreement, purchase the
Purchased Shares and perform its obligations hereunder, has made its 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 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 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. The Investor agrees that the share
certificate(s) which the Investor receives from the Company 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, EXCEPT PURSUANT TO AN EXEMPTION FROM
REGISTRATION THEREUNDER OR PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT THEREUNDER."
(e) Investment Company Act. The Investor is not an "investment
company" within the meaning of the Investment Company Act of 1940, as amended.
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(f) Truth and Correctness. No representation or warranty by
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, in light of the circumstances under which such
statements are made, not misleading.
(g) No Brokers. No agent, broker, investment banker, Person or
firm other than ARC Associates 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
Investor or an Affiliate thereof, 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 the Investor or an Affiliate of the Investor, including any fees,
amounts or commissions owed to ARC Associates.
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. 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 respects. 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 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 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. The Investor shall have delivered the
Purchase Price to the Company as required hereunder.
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(d) Resolutions. The Company shall have been furnished with
certified copies of the resolutions duly adopted by the board of directors of
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 Finland which would render the consummation of this Agreement
unlawful.
(f) Omnipoint Reorganization Agreement. The transactions
contemplated by the Omnipoint Reorganization Agreement shall have been, or
simultaneously with the consummation of the transactions contemplated hereby
shall be, consummated in accordance with its terms.
(g) Consents. Any FCC consents required for the consummation
of the transactions contemplated hereby shall have been obtained, without any
conditions or restrictions which would have a Material Adverse Effect on the
Company, and such consents are final and nonappealable.
5.02 Conditions to the Obligation of the Investor. The obligation of
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 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. 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 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 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.
(d) Resolutions. The Company shall have delivered to 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.
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(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 Finland which would render the consummation of this Agreement
unlawful.
(f) Omnipoint Reorganization Agreement. The transactions
contemplated by the Omnipoint Reorganization Agreement shall have been, or
simultaneously with the consummation of the transactions contemplated hereby
shall be, consummated in accordance with its terms.
(g) Consents. Any FCC consents required for the consummation
of the transactions contemplated hereby shall have been obtained, without any
conditions or restrictions which would have a material adverse effect on the
ability of the Investor to comply with its obligations hereunder, and such
consents are final and nonapplicable.
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 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 Holding Corporation
3650 131st Avenue, SE
Bellevue, Washington 98006
Attention: Alan R. Bender, Esq.
Facsimile No.: 425-586-8080
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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
and
Preston Gates & Ellis LLP
5000 Columbia Center
701 Fifth Avenue
Seattle, WA 98104
Attention: Richard B. Dodd, Esq.
Facsimile No.: 206-623-7022
(b) if to the Investor, to it at;
Sonera Ltd.
P.O. Box, Fin - 00051 - Tele
Teollisouskatu 15,
Helsinki, Finland
Attention: Maire Laitinen, Esq.
Facsimile No.: 011-358-2040-3414
with a copy (which shall not constitute notice) to:
Patton Boggs LLP
2550 M. St. N. W.
Washington, D.C. 20037
Attention: Richard M. Stolbach, Esq.
Facsimile No.: 202-457-6315
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.
6.04 Entire Agreement. This Agreement, together with the Schedules
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
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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 Delaware 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 party.
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.
(a) Events Triggering Termination. This Agreement may be
terminated and the transactions contemplated hereby may be abandoned, without
further obligation of the Company and the Investor, at any time prior to the
Closing Date as follows:
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(i) by mutual written consent duly authorized by the
boards of directors of the Company and the Investor; or
(ii) by the Company or the Investor if the Omnipoint
Reorganization Agreement shall have been terminated and the transactions
contemplated thereby abandoned; or
(iii) by the Company 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. (a) Each party hereby
irrevocably consents and submits to the jurisdiction of the United States
District Court for the District of Delaware and any court of the State of
Delaware, in any action, suit or proceeding arising out of, resulting from or
relating to this Agreement, and agrees that any such action, suit or proceeding
shall be brought only in such courts (and waives any objection based on forum
non conveniens or any objection to venue therein); provided, however, that such
consent to jurisdiction is solely for the purpose referred to in this Section
6.13 (a) and shall not be deemed to be a general submission to the jurisdiction
of said courts or the State of Delaware other than for such purpose.
(b) The Investor hereby irrevocably appoints The Corporation
Trust Company, at its office at 1209 Orange Street, Wilmington, Delaware, United
States of America, its lawful agent and attorney to accept and acknowledge
service of any process against it in any action, suit or proceeding arising out
of, resulting from or relating to this Agreement, and upon whom such process may
be served, with the same effect as if the Investor were a resident of the State
of Delaware, and had been lawfully served with such process in such
jurisdiction, and waives all claims of error by reason of such service, provided
that in the case of any service upon such agent and attorney the Company shall
also deliver a copy thereof to the Investor at the address and in the manner
specified in Section 6.03 hereof. In the event that such agent and attorney
resigns or otherwise becomes incapable of acting as such, the Investor will
appoint a successor agent and attorney in Wilmington, Delaware, reasonably
satisfactory with like powers, or if the Investor fails to make such
appointment, the Investor hereby authorizes the Company to appoint such agent
and attorney for the Investor. The Investor shall pay the annual fee due to The
Corporation Trust Company or such successor agent for acting in such capacity;
provided, however, that if the Investor shall not make such payment, then the
Company shall have the right to do so.
6.14 No Claim of Immunity. The Investor agrees that, to the extent that
it or any of its property, its Affiliates, or any property of its Affiliates is
or becomes entitled at any time to any immunity, on the grounds of sovereignty
or otherwise, based upon its status as an
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agency or instrumentality of government, from any arbitration, legal action,
suit or proceeding or from setoff or counterclaim relating to this Agreement,
from the jurisdiction of any arbitrator or competent court, from service of
process, from attachment prior to judgment, from attachment in aid of execution
of a judgment, from execution pursuant to a judgement or arbitration award, or
from any other legal process in any jurisdiction, it, for itself, its
Affiliates, its property and that of its Affiliates, expressly, irrevocably and
unconditionally agrees not to plead or claim, any such immunity with respect to
such matters arising with respect to this Agreement or the subject matter hereof
(including any obligation for the payment of money).
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IN WITNESS WHEREOF, the parties hereto have executed this
Stock Subscription Agreement as of the date first above written.
VOICESTREAM WIRELESS HOLDING
CORPORATION
By:
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Name:
Title:
SONERA LTD.
By:
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Name:
Title:
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Schedule 4.01(b)
Required Consents, Approvals, Filings, Etc.
Stockholder approval of VoiceStream Holding
Any FCC or state regulatory approval
Appropriate SEC Filings
HSR Filing
Exhibit 99.2
VOTING AGREEMENT
----------------
VOTING AGREEMENT, dated as of February 25, 2000 (this
"Agreement"), by and among VOICESTREAM WIRELESS HOLDING CORPORATION, a Delaware
corporation ("VoiceStream Holdings"), and the individuals and entities set forth
on Schedule I hereto (each, a "Stockholder" and collectively, the
"Stockholders").
WHEREAS, Omnipoint Corporation, a Delaware corporation
("Omnipoint"), VoiceStream Wireless Corporation, a Washington corporation
("VoiceStream") and VoiceStream Holdings are parties to an Agreement and Plan of
Reorganization, dated as of June 23, 1999, (as the same has been amended or may
hereafter be amended from time to time, the "Omnipoint Reorganization
Agreement") pursuant to which, among other things, wholly owned subsidiaries of
VoiceStream Holdings will be merged with and into each of Omnipoint and
VoiceStream (such mergers, together with the related transactions contemplated
by the Omnipoint Reorganization Agreement, being referred to herein collectively
as the "Omnipoint Reorganization");
WHEREAS, each Stockholder is the Beneficial Owner of the
number of shares of VoiceStream Holdings Common Stock (the "Shares") set forth
opposite such Stockholder's name in Schedule I hereto;
WHEREAS, VoiceStream and certain of the Stockholders are
parties to that certain Voting Agreement, dated May 3, 1999 (the "Original
Voting Agreement");
WHEREAS, as a condition to consummating the Omnipoint
Reorganization, the parties to the Original Voting Agreement have agreed to
terminate the Original Voting Agreement and enter into this Agreement;
WHEREAS, VoiceStream, VoiceStream Holdings, VoiceStream
Subsidiary III Corporation, a Delaware corporation ("Merger Sub"), Aerial
Communications, Inc., a Delaware corporation ("Aerial"), and Telephone and Data
Systems, Inc., a Delaware corporation ("TDS"), are parties to an Agreement and
Plan of Reorganization, dated as of September 17, 1999 (as the same may be
amended from time to time, the "Aerial Reorganization Agreement") pursuant to
which, among other things, Merger Sub is to be merged with and into Aerial (such
merger, together with the related transactions contemplated by the Aerial
Reorganization Agreement, being referred to herein as the "Aerial
Reorganization");
WHEREAS, upon the consummation of the Aerial Reorganization,
it is contemplated that TDS will execute an agreement whereby it will become a
party to this Agreement as a Stockholder and, if TDS does so execute such an
agreement, the term Stockholder will for all purposes of this Agreement include
TDS; and
WHEREAS, Sonera Corporation (formerly Sonera Ltd.) ("Sonera")
is a substantial investor in Aerial and, concurrent with the Omnipoint
Reorganization, will invest $500 million into
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VoiceStream Holdings through its Subsidiary, Sonera Holding, B.V. For purposes
of this Agreement, Sonera Corporation and Sonera Holding, B.V., shall be deemed
a single Stockholder.
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. As used in this Agreement, the
following terms have the meanings set forth below:
"Beneficially Own" has the meaning set forth in Rule 13d-3 of
the rules and regulations promulgated under the Securities Exchange Act of 1934,
as amended; except that no broker or dealer or any affiliate thereof shall be
deemed to Beneficially Own Shares, the beneficial ownership of which is acquired
in the ordinary course of the activities of a broker or dealer registered under
Section 15 of the Securities Exchange Act of 1934, as amended, including, but
not limited to, the acquisition of beneficial ownership of such securities as a
result of any market-making or underwriting activities (including any Shares
acquired for the investment account of a broker or dealer in connection with
such underwriting activities), or the exercise of investment or voting
discretion authority over any of its customer accounts, or the acquisition in
good faith of such securities in connection with the enforcement of payment of a
debt previously contracted.
"Board" means the Board of Directors of VoiceStream Holdings.
"BSF" means Bridge Street Fund 1992, L.P., a Delaware limited
partnership.
"Business Day" means a day other than a Saturday, Sunday or
other day on which commercial banks in New York City, Hong Kong or Seattle,
Washington are authorized or required by law to close.
"GS" means The Goldman Sachs Group, Inc., a Delaware
corporation.
"GSC" means BSF, GS, GSCP and SSF.
"GSCP" means GS Capital Partners, L.P., a Delaware limited
partnership.
"HTL" means Hutchison Telecommunications Limited, a
corporation organized under the laws of Hong Kong.
"Hutchison" means Hutchison Holdings and Hutchison PCS.
"Hutchison Holdings" means Hutchison Telecommunications
Holdings (USA) Limited, a British Virgin Islands corporation.
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"Hutchison PCS" means Hutchison Telecommunications PCS (USA)
Limited, a British Virgin Islands corporation.
"Immediate Family" means an individual's spouse, children
(including adopted children), grandchildren and parents.
"Percentage Ownership" means, as to any Stockholder, the
aggregate percentage of the outstanding Shares Beneficially Owned by such
Stockholder, including for this purpose, Shares Beneficially Owned by such
Stockholder's Permitted Affiliate Transferees.
"Permitted Affiliate Transferee" means (i) with respect to any
Stockholder who is a natural Person, any member of such Person's Immediate
Family, or any trust for the benefit of, or a partnership all of the partners of
which are, such Person and/or any member of such Person's Immediate Family; (ii)
with respect to any Stockholder which is a limited partnership (a) any Person
that, as of May 13, 1996, was the sole general partner of such Stockholder or
was the sole general partner of the sole general partner of such Stockholder, or
(b) another limited partnership which has a sole general partner, the control of
which sole general partner is held, directly or indirectly, by five (5) or fewer
natural Persons, provided such natural Persons had control at May 13, 1996 of
the sole general partner of such Stockholder; (iii) with respect to Hutchison,
(w) HTL, (x) any Subsidiary of HTL, or (y) any other entity acceptable to
Stockholders (other than Hutchison and its Permitted Affiliate Transferees)
holding at least a majority of the Shares owned by all Stockholders (other than
Hutchison and its Permitted Affiliate Transferees) in which HTL owns, directly
or indirectly, more than 40% of the outstanding voting power, or (z) in the case
of any Person referred to in clause (w), (x) or (y), Hutchison; (iv) with
respect to Sonera, any Subsidiary of Sonera or any other entity acceptable to
Stockholders (other than Sonera and its Permitted Affiliate Transferees) in
which Sonera owns, directly or indirectly, more than 40% of the outstanding
voting power and of which Sonera and its Subsidiaries are collectively the
largest shareholder; and (v) with respect to TDS, any Subsidiary of TDS or any
other entity acceptable to Stockholders (other than TDS and its Permitted
Affiliate Transferees) in which TDS owns, directly or indirectly, more than 40%
of the outstanding voting power and of which TDS and its Subsidiaries are
collectively the largest shareholder. For purposes of this definition, "control"
shall mean ownership of at least 51% of the equity interest in, and at least 51%
of the voting power on all matters in, an entity or, if applicable, the sole
general partner of such entity.
"Person" means an individual, corporation, association,
partnership, trust or estate, an unincorporated organization, a joint venture, a
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Qualified Sonera Designee" means an individual designated by
Sonera, provided that VoiceStream Holdings shall have the right to approve such
designee, which approval shall not be unreasonably withheld, so long as such
individual's membership on the Board shall not cause any violation of any
federal anti-trust law or any other federal or state law.
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"Qualified TDS Designee" means an individual who is not an
officer, director, management level employee or affiliate (as defined in the
Securities Exchange Act of 1934) of TDS, or of any Person in which TDS or any
affiliate of TDS has an "attributable interest" (as defined by applicable FCC
rules and regulations) designated by TDS provided that VoiceStream Holdings
shall have the right to approve the designee, which approval shall not be
unreasonably withheld.
"Sonera" means Sonera Corporation, a limited liability company
organized under the laws of Finland, and its wholly-owned Subsidiaries,
including Sonera Holding, B.V., a company organized under the laws of the
Netherlands.
"Sonera Investor Agreement" means the Investor Agreement,
dated as of September 17, 1999, among Sonera Corporation, VoiceStream and
VoiceStream Holdings.
"SSF" means Stone Street Fund 1992, L.P., a Delaware limited
partnership.
"Subsidiary" means, as to any Person, another Person which is
an entity as to which such Person owns more than 50% of the outstanding voting
power.
"Transfer" means any sale, assignment, pledge, hypothecation,
gift or other transfer, disposition or encumbrance of any interest (and includes
an exchange of Shares in a merger, consolidation or similar transaction).
Section 2. Termination of Voting Agreements. The Original
Voting Agreement and Sections 6(a) and 6(b) of the Sonera Investor Agreement
automatically and without further action by any Person shall each be terminated
and of no further force or effect upon the effectiveness of this Agreement.
Section 3. Agreement to Vote by Stockholders.
(1) Each Stockholder (and its Permitted Affiliate Transferees)
hereby agrees to vote (or cause to be voted) all Shares, and any other voting
securities of VoiceStream Holdings, then Beneficially Owned by such Stockholder
(whether issued heretofore or hereafter) that such Stockholder owns or has the
right to vote, in person or by proxy (and shall take all other necessary or
desirable actions within such Stockholder's (or its Permitted Affiliate
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), in favor of the election and continuation in office of the following
sixteen (16) (or, upon completion of the Aerial Reorganization, seventeen (17))
members of the Board (subject to adjustments to such number of directors, as
provided below):
(1) John Stanton, as long as he is the chief executive officer
of VoiceStream Holdings;
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(2) One (1) member designated by John Stanton, so long as he
or his Permitted Affiliate Transferees Beneficially Own at least 4,500,000
Shares;
(3) Four (4) members designated by Hutchison PCS (or if
Hutchison PCS has Transferred all of its Shares to Permitted Affiliate
Transferees of Hutchison PCS, four (4) designees of such Permitted Affiliate
Transferees) and its affiliated entities. Such number of designees shall be
subject to increases or decreases (rounded to the nearest whole number and
subject to Section 3(a)(C) hereof) depending upon increases or reductions in
Hutchison PCS's (and its Permitted Affiliate Transferees') Percentage Ownership
of outstanding Shares, including without limitation Shares issuable to Hutchison
PCS (and its Permitted Affiliate Transferees) upon conversion of the 2.5%
Convertible Junior Preferred Stock, without par value, of VoiceStream Holdings,
purchased by Hutchison PCS pursuant to that certain Stock Subscription Agreement
dated June 23, 1999, by and among VoiceStream Holdings, HTL and Hutchison PCS.
Hutchison PCS shall have the right to designate additional members (the Board
shall be expanded by one (1) 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 Affiliate Transferees')
aggregate Percentage Ownership;
(4) One (1) member designated by GSC and its Permitted
Affiliate Transferees, so long as such entities Beneficially Own at least
4,500,000 Shares;
(5) Four (4) members who were on the Board of Directors of
Omnipoint prior to the Omnipoint Reorganization 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") during the period from the closing of the Omnipoint Reorganization
until and including the second annual meeting of stockholders of VoiceStream
Holdings taking place after the closing of the Omnipoint Reorganization (it
being understood that such four (4) members shall serve until such time as the
term of office of the directors elected at such second annual meeting
terminates);
(6) One (1) Qualified Sonera Designee designated by Sonera and
its Permitted Affiliate Transferees so long as such entities Beneficially Own at
least 4,500,000 Shares; provided, however, that if the Aerial Reorganization is
consummated and Sonera Beneficially Owns more than 9,800,000 Shares and TDS
Beneficially Owns less than 4,500,000 Shares, the number of Qualified Sonera
Designees that Sonera will be entitled to designate will be two (2);
(7) If the Aerial Reorganization is consummated and TDS and
VoiceStream Holdings execute the agreement in the form attached hereto as
Exhibit A whereby TDS becomes a party to this Agreement as a Stockholder, one
(1) Qualified TDS Designee designated by TDS and its Permitted Affiliate
Transferees so long as such entities Beneficially Own at least 4,500,000 Shares,
such director to be appointed to the Board by action of the Board by the later
of (x) the closing of the Aerial Reorganization or (y) promptly after TDS
designates a Qualified TDS
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Designee; 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
Qualified TDS Designees that TDS will be entitled to designate will be two (2);
and
(8) The remaining members of the Board as selected by a
majority vote of the persons selected as described in subsections (i) through
(vii) above.
No designee to the Board shall be removed from the Board
(except removal for cause under applicable law) without the written consent of
the Stockholder or group of Stockholders that has the right to designate such
Person to the Board (or, if such Stockholder or group of Stockholders has
Transferred all of their Shares to Permitted Affiliate Transferees of such
Stockholder or group of Stockholders, without the written consent of Permitted
Affiliate Transferees holding a majority of the Shares owned by all of such
Permitted Affiliate Transferees), or, in the case of the Omnipoint Designees,
without the consent of a majority of the Board of Directors of Omnipoint as such
Board of Directors existed immediately prior to the Omnipoint Reorganization
(the "Old Omnipoint Board"). Any Stockholder or group of Stockholders (or, if
such Stockholder or group of Stockholders has Transferred all of their Shares to
Permitted Affiliate Transferees of such Stockholder or group of Stockholders,
Permitted Affiliate Transferees holding a majority of the Shares owned by all of
such Permitted Affiliate Transferees) or, in the case of the Omnipoint
Designees, a majority of the Old Omnipoint Board, that has the right to
designate any member(s) of the Board shall have the right to replace any
member(s) so designated by it (whether or not such member is removed from the
Board with or without cause or ceases to be a member of the Board by reason of
death, disability or for any other reason) upon written notice to VoiceStream
Holdings and the other members of the Board, which notice shall set forth the
name of the member(s) being replaced and the name of the new member(s). Each of
the Stockholders (and each of their respective Permitted Affiliate Transferees)
agrees that it 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
Stockholder's (or its Permitted Affiliate Transferees's) 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), so as to cause, if
necessary, the removal of the existing director previously elected by such
Stockholders (and its Permitted Affiliate Transferees), or previously designated
by Omnipoint (in the case of the original Omnipoint Designees) or by a majority
of the Old Omnipoint Board (if the Old Omnipoint Board designates a replacement
for an Omnipoint Designee, such replacement shall for all purposes of this
Agreement be an Omnipoint Designee), and the election and continuation in office
of any successor director designated by any of the Stockholders (or any of such
Stockholder's Permitted Affiliate Transferees) pursuant to this Section 3(a).
Notwithstanding the foregoing,
(A) if at any time GSC (and its Permitted Affiliate
Transferees) shall cease to Beneficially Own at least 4,500,000 Shares, then in
such event, GSC (or, if GSC has Transferred all of its Shares to Permitted
Affiliate Transferees of GSC, its Permitted Affiliate Transferees) shall not be
entitled to designate any member of the Board;
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(B) if at any time John Stanton (and his Permitted
Affiliate 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 Affiliate Transferees of John Stanton, his
Permitted Affiliate 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 Holdings);
(C) if at any time Hutchison PCS (and its Permitted
Affiliate Transferees) shall cease to Beneficially Own at least (i) 9,800,000
Shares, then in such event Hutchison PCS and its Permitted Affiliate Transferees
shall be entitled to designate only one member of the Board; and (ii) 4,500,000
Shares, then in such event, Hutchison PCS and its Permitted Affiliate
Transferees shall not be entitled to designate any member of the Board. In
addition, if Hutchison PCS shall have designated additional director(s) by
reason of an increase in its Percentage Ownership as set forth in Section
3(a)(iii) above, and at any time thereafter the Percentage Ownership of
Hutchison PCS (and its Permitted Affiliate Transferees) shall decrease, (i) the
number of designees Hutchison PCS (and its Permitted Affiliate 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 Affiliate
Transferees') designees (rounded to the nearest whole number) shall be
proportionate to Hutchison PCS's (and its Permitted Affiliate Transferees')
aggregate Percentage Ownership, (ii) any members designated by Hutchison PCS
(and its Permitted Affiliate Transferees) in excess of such number shall be
removed from the Board (any such members to be removed to be designated by
Hutchison or, in the event that Hutchison fails to designate the members to be
removed, by a majority of the members of the Board), and (iii) the Board shall
be reduced in size by the number of members so removed;
(D) if at any time Sonera (and its Permitted Affiliate
Transferees) shall cease to Beneficially Own at least (i) 9,800,000 Shares at a
time when Sonera is entitled to designate two (2) directors, then in such event,
Sonera (or, if Sonera has Transferred all of its Shares to Permitted Affiliate
Transferees of Sonera, its Permitted Affiliate Transferees) shall be entitled to
designate only one (1) 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
Affiliate Transferees of Sonera, its Permitted Affiliate Transferees) shall not
be entitled to designate any member of the Board;
(E) if the Aerial Reorganization is consummated and TDS
and VoiceStream Holdings execute an agreement in the form attached hereto as
Exhibit A whereby TDS becomes a party to this Agreement as a Stockholder, and at
any time thereafter TDS (and its Permitted Affiliate Transferees) shall cease to
Beneficially Own at least (i) 9,800,000 Shares at a time when TDS is entitled to
designate two (2) directors, then in such event, TDS (or, if TDS has Transferred
all of its Shares to Permitted Affiliate Transferees of TDS, its Permitted
Affiliate Transferees) shall be entitled to designate only one (1) 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 Affiliate Transferees of TDS, its
Permitted Affiliate Transferees) shall not be entitled to designate any member
of the Board;
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(F) Any vacancies on the Board created by reason of the
provisions of subsections (A) through (E) 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 shareholders of VoiceStream Holdings, and at the next annual
meeting shall be filled by a vote of a plurality of all shareholders of
VoiceStream Holdings (including the Stockholders and their Permitted Affiliate
Transferees); 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 Stockholders (and each of their
respective Permitted Affiliate Transferees ) agrees that it 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 Stockholder's (or its Permitted
Affiliate 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.
(G) Notwithstanding anything to the contrary contained
in this 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
Shareholders Agreement of VoiceStream 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 Shareholders Agreement.
(2) Notwithstanding anything to the contrary herein, if a
Stockholder shall cease to have the right to designate any director to the Board
pursuant to this Agreement, such Stockholder shall be released in full from all
obligations and shall cease to have any rights under this Agreement; provided,
however, that at the time that the Omnipoint Designees no longer serve on the
Board and there is no further obligation to designate Omnipoint Designees under
Section 3(a)(v) hereof, the following Persons shall be released in full from all
obligations and shall cease to have any rights under this Agreement: Allen &
Company Incorporated, Avance Capital, Avance Capital II, Avance Capital III,
Madison Dearborn Capital Partners, L.P., James N. Perry, Jr., Douglas G. Smith,
Douglas G. Smith Grat, Richard L. Fields, James J. Ross and James J. Ross, as
Trustee.
Section 4. VoiceStream Holdings and Stockholder Covenants.
(1) VoiceStream Holdings hereby agrees to use all reasonable
efforts to give effect to the provisions of Section 3 hereof. In this regard,
VoiceStream Holdings shall, subject to the provisions of Section 3 hereof, duly
nominate the designees set forth above, or as may otherwise be designated by a
party hereto pursuant to the terms of Section 3 hereof, for election to the
Board and shall include in any proxy solicitation materials related to the
election of members of the Board such information and recommendations of the
Board as are appropriate, in proxy solicitation materials.
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(2) Each Stockholder shall vote the Shares then Beneficially
Owned by such Stockholder at any regular or special meeting of the Stockholders
or in any written consent executed in lieu of such a meeting of Stockholders for
the election of such designees. VoiceStream Holdings and each Stockholder shall
take all other actions necessary to ensure that the certificate of incorporation
and by-laws of VoiceStream Holdings or any successor constituent documents as in
effect immediately following the date hereof do not, at any time thereafter,
conflict in any respect with the provisions of this Agreement.
(3) At the closing of the Aerial Reorganization, TDS and
VoiceStream Holdings shall enter into the agreement attached hereto pursuant to
which TDS shall become a party to this Agreement, provided that nothing in this
Agreement shall in any way limit, amend or modify any of the terms or provisions
of the Investor Agreement to be entered into among TDS, VoiceStream Holdings and
VoiceStream at such time.
Section 5. Representations and Warranties of VoiceStream
Holdings. VoiceStream Holdings represents and warrants to each Stockholder as
follows: (i) it has full power and authority to execute, deliver and perform its
obligations under this Agreement; (ii) this Agreement and all transactions
contemplated hereby have been duly and validly authorized by all necessary
action on its part, this Agreement has been duly executed and delivered by it,
and this Agreement constitutes its legal, valid and binding obligation
enforceable against VoiceStream Holdings 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 (iii)
neither the execution, delivery or performance of this Agreement by it, nor the
consummation of the transactions contemplated hereby will, with or without the
giving of notice or passage of time or both conflict with, result in a default
or loss of rights (or give rise to any right of termination, cancellation or
acceleration) under, (A) any provision of the certificate of incorporation,
by-laws, partnership agreement or comparable constituent document of it, (B) any
material note, bond, indenture, mortgage, deed of trust, contract, agreement,
lease or other instrument or obligation to which it is a party or by which it or
its properties may be bound or affected or (C) any law, order, judgment,
ordinance, rule, regulation or decree to which it is a party or by which it or
any of its properties are bound or affected.
Section 6. Representations and Warranties of the Stockholders.
Each Stockholder, severally, as to such Stockholder,
represents and warrants to the other parties as follows:(i) such Stockholder has
full power and authority to execute, deliver and perform such Stockholder's
obligations under this Agreement; (ii) this Agreement and all transactions
contemplated hereby have been duly and validly authorized by all necessary
action on such Stockholder's part, this Agreement has been duly executed and
delivered by such Stockholder, and this Agreement constitutes such Stockholder's
legal, valid and binding obligation enforceable against such Stockholder in
accordance with its terms, except as may be limited by applicable
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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; (iii) neither the execution,
delivery or performance of this Agreement by such Stockholder, nor the
consummation of the transactions contemplated hereby will, with or without the
giving of notice or passage of time or both conflict with, result in a default
or loss of rights (or give rise to any right of termination, cancellation or
acceleration) under, (A) if such Stockholder is an entity, any provision of the
certificate of incorporation, by-laws, partnership agreement or comparable
constituent document of such Stockholder, (B) any material note, bond,
indenture, mortgage, deed of trust, contract, agreement, lease or other
instrument or obligation to which such Stockholder is a party or by which such
Stockholder or such Stockholder's properties may be bound or affected or (C) any
law, order, judgment, ordinance, rule, regulation or decree to which such
Stockholder is a party or by which such Stockholder or any of such Stockholder's
properties are bound or affected; and (iv) the Shares listed next to the name of
such Stockholder on Schedule I hereto are the only voting securities of
VoiceStream Holdings Beneficially Owned by such Stockholder.
Section 7. Effectiveness and Termination. This Agreement shall
be effective as of the effectiveness of the Omnipoint Reorganization and shall
terminate upon the earliest to occur of any of the following events:
(1) Upon agreement by all Stockholders then retaining the
right to designate directors under this Agreement and, so long as Omnipoint
Designees are to be designated or are serving pursuant to Section 3(a)(v)
hereof, by the Omnipoint Designees or the Old Omnipoint Board; or
(2) The filing by VoiceStream Holdings of a petition in
bankruptcy or the expiration of sixty (60) days after a petition in bankruptcy
shall have been filed against VoiceStream Holdings and such petition shall not
have been stayed or discharged during such sixty (60) day period; or upon the
expiration of sixty (60) days after the commencement of any proceeding under any
law for the relief of debtors seeking the relief or readjustment of VoiceStream
Holdings' indebtedness either through reorganization, winding-up, extension or
otherwise, and such proceedings involving VoiceStream Holdings as debtor shall
not have been vacated or stayed within such sixty (60) day period; or upon the
appointment of a receiver, custodian or trustee for all or substantially all of
VoiceStream Holdings' property, or the making of VoiceStream Holdings of any
general assignment for the benefit of creditors, or the admitting in writing by
VoiceStream Holdings of its inability to pay its debts as they mature; or upon
the voluntary or involuntary liquidation or dissolution of VoiceStream Holdings;
or
(3) The Beneficial Ownership of all of the Shares by only one
Stockholder (including its Permitted Affiliate Transferees).
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.
10
<PAGE>
Section 8. Miscellaneous.
(1) This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their Permitted Affiliate Transferees. Each of
the Stockholders hereby agrees that prior to any Transfer of any Shares to a
Permitted Affiliate Transferee, such Permitted Affiliate Transferee shall
execute a counterpart of this Agreement agreeing to be bound by the provisions
of this Agreement. No Transfer to a Permitted Affiliate Transferee shall be
effective unless such Permitted Affiliate Transferee has executed such
counterpart of this Agreement. Except as set forth above with respect to
Transfers to Permitted Affiliate Transferees, nothing in this Agreement shall
prohibit the Transfer of Shares by any of the Stockholders.
(2) Each of the parties hereto acknowledges and agrees that,
in the event of any breach of this Agreement, the non-breaching parties would be
irreparably harmed and could not be made whole by monetary damages. Accordingly,
each of the parties hereto agrees that the other parties, in addition to any
other remedy to which they may be entitled at law or in equity, shall be
entitled to compel performance of this Agreement pursuant to Section 8(m).
(3) The headings in this Agreement are for convenience only
and shall not be considered a part of or affect the construction or
interpretation of any provision of this Agreement.
(4) All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
delivered by same day or next day (or equivalent with respect to delivery
outside the United States) courier (guaranteed delivery) or telex or facsimile
(i) if to a Stockholder, at such Stockholder's address appearing on Schedule I
hereto or at any other address that such Stockholder may have provided in
writing to VoiceStream Holdings and the other Stockholders then party to this
Agreement and (ii) if to VoiceStream Holdings, at 3650 131st Avenue SE,
Bellevue, Washington 98006, U.S.A., Tel: 425-586-8014, Fax: 425-586-8080;
Attention: Alan R. Bender, Esq. or such other address as VoiceStream Holdings
may have furnished to the Stockholders in writing, with a copy (which shall not
constitute notice) to Friedman Kaplan & Seiler LLP, 875 Third Avenue, New York,
NY 10022, USA, Tel: 212-833-1107, Fax: 212-355- 6401, Attention: Barry A.
Adelman, Esq. If a notice hereunder is transmitted by confirmed fax so as to
arrive during normal business hours during a Business Day at the place of
receipt, then such notice shall be deemed to have been given on such Business
Day at the place of receipt or, if so transmitted to arrive after normal
business hours during a Business Day at the place of receipt, then such notice
shall be deemed to have been given on the following Business Day at the place of
receipt. If such notice is sent by next-day courier or equivalent, it shall be
deemed to have been given on the third Business Day at the place of receipt
following sending provided, that the date of sending shall be deemed to be the
date at the place of receipt at the time such notice is posted.
(5) The provisions of this Agreement shall apply, to the full
extent set forth herein with respect to the Shares now or hereinafter owned by
each Stockholder (and its Permitted Affiliate Transferees), to any and all
securities of VoiceStream Holdings or any successor or assign
11
<PAGE>
of VoiceStream Holdings (whether by merger, consolidation or otherwise) that may
be issued in respect of, in exchange for, or in substitution of such Shares, and
shall be appropriately adjusted for any stock dividends, stock splits, reverse
splits, combinations, recapitalizations and similar events occurring after the
date hereof.
(6) Copies of this Agreement will be available for inspection
or copying by any interested Person at the offices of VoiceStream Holdings
through the Secretary of VoiceStream Holdings. VoiceStream Holdings will
otherwise take all actions as may be necessary or appropriate to comply with any
applicable law relating to the validity and enforceability of shareholders
agreements containing the provisions of this Agreement.
(7) Except as expressly provided otherwise herein, neither
this Agreement nor any provision hereof may be changed, waived, discharged or
terminated orally, but only by an instrument in writing signed by VoiceStream
Holdings and each of the Stockholders. The failure of any party hereto to give
notice of the breach or non-fulfillment of any term or condition of this
Agreement shall not constitute a waiver thereof, nor shall the waiver of any
breach or non-fulfillment of any term or condition of this Agreement constitute
a waiver of any other breach or non-fulfillment of that term or condition or any
other term or condition of this Agreement.
(8) This Agreement may be amended or modified at any time by
a writing setting forth such amendment or modification, signed by VoiceStream
Holdings and by Stockholders (or their Permitted Affiliate Transferees) owning
in the aggregate at least 90% of the Shares owned by the Stockholders (and their
Permitted Affiliate Transferees); provided, however, that, unless such amendment
is signed by VoiceStream Holdings and by each Stockholder (or its Permitted
Affiliate Transferees) adversely affected by such amendment, no such amendment
or modification shall eliminate any right of any Stockholder (or its Permitted
Affiliate Transferees) or, in the case of the Omnipoint Designees, the Old
Omnipoint Board, to designate the member or members of the Board it is entitled
to designate in accordance with Section 3 hereof (it being understood and agreed
that this clause shall not prohibit the enlargement of the Board).
(9) This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, and all of which
together shall be considered one and the same agreement.
(10) The obligations of each of the Stockholders under this
Agreement shall be several with respect to each such Stockholder.
(11) This Agreement constitutes the entire understanding of
the parties hereto with respect to this subject matter hereof and supersedes all
prior understandings among such parties with respect to such subject matter.
(l2) The validity of this Agreement, its construction,
interpretation and enforcement, and the rights of the parties hereunder, shall
be determined under, governed by and
12
<PAGE>
construed in accordance with the internal laws of the State of New York
applicable to contracts formed and performed entirely in such state. Each party
hereto agrees that, subject to Section 8(m) hereof, any suit, action or other
proceeding arising out of this Agreement shall be brought and litigated in the
courts of the State of Washington or the United States District Court for the
Western District of Washington and each party hereto hereby irrevocably consents
to personal jurisdiction and venue in any such court and hereby waives any claim
it may have that such court is an inconvenient forum for the purposes of any
such suit, action or other proceeding.
(13) Any and all disputes, controversies or claims (each a
"Dispute") between the Stockholders relating to the interpretation or
enforcement or performance of this Agreement shall be resolved by binding
arbitration by the American Arbitration Association in accordance with its
rules, subject to the following provisions:
(1) There shall be three arbitrators (the "Arbitrators")
which shall be appointed in accordance with the procedure of the American
Arbitration Association.
(2) The expenses of the arbitration shall be borne equally by
the Stockholders involved in the arbitration, and each party shall bear its own
legal fees and expenses; provided, however, that the Arbitrators shall have
discretion to require that one party pay all or a portion of the expenses of
arbitration or the other party's legal fees and expenses in connection with any
particular arbitration.
(3) The Arbitrators shall determine whether and to what
extent any party shall be entitled to damages or equitable relief. No party
shall be entitled to punitive damages or consequential damages or shall be
required to post a bond in connection with equitable relief.
(4) The Arbitrators shall not have the power to add to nor
modify any of the terms or conditions of this Agreement. The Arbitrators'
decision shall not go beyond what is necessary for the interpretation and
application of the provisions of this Agreement in respect of the issue before
the Arbitrators. The Arbitrators' decision and award or permitted remedy, if
any, shall be based upon the issue as drafted and submitted by the respective
parties and the relevant and competent evidence adduced at the hearing(s).
(5) The Arbitrators shall have the authority to award any
remedy or relief provided for in this Agreement, in addition to any other remedy
or relief (including provisional remedies and relief) that a court of competent
jurisdiction could order or grant (but subject to the remedial limitations,
elsewhere set forth in this Agreement, including, but without limitation, the
aforesaid prohibition against punitive and consequential damages). The
Arbitrators written decision shall be rendered within sixty (60) days of the
hearing. The decision reached by the Arbitrators shall be final and binding upon
the parties as to the matter in dispute. To the extent that the relief or remedy
granted by the Arbitration is relief or remedy on which a court could enter
judgment, a judgment upon the award rendered by the Arbitrators may be entered
in any court having jurisdiction thereof (unless in the case of an award of
damages, the full amount of the award is paid within ten
13
<PAGE>
(10) days of its determination by the Arbitrators). Otherwise, the award shall
be binding on the parties in connection with their continuing performance of
this Agreement and in any subsequent arbitral or judicial proceeding between the
parties.
(6) The arbitration shall take place in Seattle, Washington,
unless otherwise agreed by the parties, and shall be conducted in the English
language.
(7) The arbitration proceeding and all filing, testimony,
documents and information relating to or presented during the arbitration
proceeding shall be disclosed exclusively for the purpose of facilitating the
arbitration process and for no other purpose.
(8) The parties shall continue performing their respective
obligations under this Agreement notwithstanding the existence of a Dispute
while the Dispute is being resolved unless and until such obligations are
terminated, expire or are suspended in accordance with the provisions hereof.
(9) The Arbitrators may, in their sole discretion, order a
pre-hearing exchange of information including production of documents, exchange
of summaries of testimony or exchange of statements of position, and shall
schedule promptly all discovery and other procedural steps and otherwise assume
case management initiative and control to effect an efficient and expeditious
resolution of the Dispute. At any oral hearing of evidence in connection with an
arbitration proceeding, each party and its counsel shall have the right to
examine its witnesses and to cross-examine the witnesses of the other party. No
testimony of any witness shall be presented in written form unless the opposing
party or parties shall have the opportunity to cross-examine such witness,
except as the parties otherwise agree in writing.
(10) Notwithstanding the dispute resolution procedures
contained in this Section 8(m), either party may apply to any court having
jurisdiction (a) to enforce this Agreement to arbitrate, (b) to seek provisional
injunctive relief so as to maintain the status quo until the arbitration award
is rendered or the Dispute is otherwise resolved, or (c) to challenge or vacate
any final judgment, award or decision of the Arbitrators that does not comport
with the express provisions of this Section 8(m).
(14) The failure of any party to seek redress for violation
of, or to insist upon the strict performance of , any provision of this
Agreement shall not prevent a subsequent act, which would have originally
constituted a violation, from having the effect of an original violation.
(15) The rights and remedies provided by this Agreement are
cumulative and the use of any one right or remedy by any party shall not
preclude or waive its right to use any or all
0other remedies except as otherwise expressly provided in this Agreement. Such
rights and remedies are given in addition to any other rights the parties may
have by law, statute, ordinance or otherwise.
14
<PAGE>
(16) The invalidity or unenforceability of any particular
provision of this Agreement shall not affect the other provisions hereof, and
this Agreement shall be construed in all respects as if such invalid or
unenforceable provision were omitted.
15
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
VOICESTREAM WIRELESS HOLDING CORPORATION
By: /s/ John W. Stanton
-------------------------------------------
Name: John W. Stanton
Title: Chairman and Chief Executive Officer
Stockholders:
/s/ John W. Stanton
- ------------------------------------------------
John W. Stanton
/s/ Theresa E. Gillespie
- ------------------------------------------------
Theresa E. Gillespie
PN Cellular, Inc.
By: /s/ Theresa E. Gillespie
-------------------------------------------
Name: Theresa E. Gillespie
Title: Treasurer
Stanton Family Trust
By: /s/ Theresa E. Gillespie
-------------------------------------------
Name: Theresa E. Gillespie, Trustee
Stanton Communications Corporation
By: /s/ Theresa E. Gillespie
-------------------------------------------
Name: Theresa E. Gillespie
Title: Treasurer
<PAGE>
GS Capital Partners, L.P.
By: GS Advisors L.L.C., General Partner
By: /s/ John E. Bowman
-------------------------------------------
Name: John E. Bowman
Title: Vice President
The Goldman Sachs Group, Inc.
By: /s/ Terence M. O'Toole
-------------------------------------------
Name: Terence M. O'Toole
Title: Attorney-in-Fact
Bridge Street Fund 1992, L.P.
By: Stone Street 1992 L.L.C., Managing General Partner
By: /s/ John E. Bowman
-------------------------------------------
Name: John E. Bowman
Title: Vice President
Stone Street Fund 1992, L.P.
By: Stone Street 1992 L.L.C., General Partner
By: /s/ John E. Bowman
-------------------------------------------
Name: John E. Bowman
Title: Vice President
<PAGE>
Hutchison Telecommunications Holdings (USA) Limited
By: /s/ Canning Fok
-------------------------------------------
Name: Canning Fok
Title: Director
Hutchison Telecommunications PCS (USA) Limited
By: /s/ Susan Chow
-------------------------------------------
Name: Susan Chow
Title: Director
<PAGE>
ALLEN & COMPANY INCORPORATED
By: /s/ Richard L. Fields
-------------------------------------------
Name: Richard L. Fields
Title: Manager
MADISON DEARBORN CAPITAL
PARTNERS, L.P.
By: Madison Dearborn Partners, L.P.,
its General Partner
By: Madison Dearborn Partners, Inc.
its General Partner
By: /s/ James N. Perry
-------------------------------------------
Name: James N. Perry
Title: Manager
/s/ James N. Perry
-------------------------------------------
James N. Perry, Jr.
/s/ Richard L. Fields
-------------------------------------------
Richard L. Fields
<PAGE>
AVANCE CAPITAL
By: /s/ Douglas G. Smith
-------------------------------------------
Name: Douglas G. Smith
Title: Sole Proprietor
AVANCE CAPITAL II
By: /s/ Douglas G. Smith
-------------------------------------------
Name: Douglas G. Smith
Title: Sole Proprietor
AVANCE CAPITAL III
By: /s/ Douglas G. Smith
-------------------------------------------
Name: Douglas G. Smith
Title: Sole Proprietor
DOUGLAS AND GABRIELA SMITH
1995 FAMILY TRUST
By: /s/ Gabriela Smith
-------------------------------------------
Name: Gabriela Smith
Title: Trustee
/s/ Douglas G. Smith
-------------------------------------------
Douglas G. Smith
<PAGE>
/s/ James J. Ross
-------------------------------------------
James J. Ross
ELIZABETH G. ROSS U/T/A, DATED MARCH 4, 1994
By: /s/ James J. Ross
-------------------------------------------
Name: James J. Ross
Title: Trustee
DAVID G. ROSS U/T/A, DATED JUNE 18, 1997
By: /s/ James J. Ross
-------------------------------------------
Name: James J. Ross
Title: Trustee
<PAGE>
SONERA CORPORATION
By: /s/ Olli T. Tuohimaa
-------------------------------------------
Name: Olli T. Touhimaa
Title: Attorney in Fact
SONERA HOLDING, B.V.
By: /s/ Olli T. Tuohimaa
-------------------------------------------
Name: Olli T. Touhimaa
Title: Attorney in Fact
<PAGE>
SCHEDULE I
Stockholders
------------
<TABLE>
<CAPTION>
Name and Address of Stockholder Number of Shares
- --------------------------------------------------------------------------------------------------------------------
<S> <C>
John W. Stanton and Theresa E. Gillespie 2,930,136
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
- --------------------------------------------------------------------------------------------------------------------
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
- --------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
- --------------------------------------------------------------------------------------------------------------------
<S> <C>
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
- --------------------------------------------------------------------------------------------------------------------
Hutchison Telecommunications PCS (USA) Limited 52,010,364
(Which includes 26,227,586 shares
c/o Offshore Incorporations Limited of Common Stock issuable upon
P.O. Box 957 conversion of the Company's 2.5%
Offshore Incorporations Centre Convertible Preferred Stock)
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
- --------------------------------------------------------------------------------------------------------------------
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
- --------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
- --------------------------------------------------------------------------------------------------------------------
<S> <C>
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
- --------------------------------------------------------------------------------------------------------------------
Douglas G. Smith 1,196,398
6200 Brookside Drive
Chevy Chase, MD 20815
- --------------------------------------------------------------------------------------------------------------------
Avance Capital 2,220,266
Attn: Douglas G. Smith
6200 Brookside Drive
Chevy Chase, MD 20815
- --------------------------------------------------------------------------------------------------------------------
Avance Capital II 750,000
Attn: Douglas G. Smith
6200 Brookside Drive
Chevy Chase, MD 20815
- --------------------------------------------------------------------------------------------------------------------
Avance Capital III 375,000
Attn: Douglas G. Smith
6200 Brookside Drive
Chevy Chase, MD 20815
- --------------------------------------------------------------------------------------------------------------------
Douglas & Gabriela Smith 519,482
1995 Family Trust
Attn: Gabriela Smith, Trustee
6200 Brookside Drive
Chevy Chase, MD 20815
- --------------------------------------------------------------------------------------------------------------------
Richard L. Fields 317,368
75 Central Park South, Apt. 15B
New York, NY 10022
- --------------------------------------------------------------------------------------------------------------------
Allen & Company Incorporated 2,290,522
c/o Richard L. Fields, Managing Director
711 Fifth Avenue
New York, NY 10022
- --------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
- --------------------------------------------------------------------------------------------------------------------
<S> <C>
James N. Perry, Jr. 50,874
Madison Dearborn Capital Partners, LP
Three First National Plaza, Suite 1330
Chicago, IL 60602
- --------------------------------------------------------------------------------------------------------------------
Madison Dearborn Capital Partners, LP 3,232,149
c/o James N. Perry, Jr., Managing Director
Three First National Plaza, Suite 1330
Chicago, IL 60602
- --------------------------------------------------------------------------------------------------------------------
James J. Ross 582,445
c/o Becker Ross Stone DeStefano & Klein
317 Madison Avenue, Suite 1410
New York, NY 10017
- --------------------------------------------------------------------------------------------------------------------
James J. Ross, as Trustee, of Elizabeth G. Ross U/T/A, An Aggregate of 145,950
dated March 4, 1994
c/o Becker Ross Stone DeStefano & Klein
317 Madison Avenue, Suite 1410
New York, NY 10017
James J. Ross, as Trustee, of David G. Ross U/T/A,
dated June 18, 1997
c/o Becker Ross Stone DeStefano & Klein
317 Madison Avenue, Suite 1410
New York, NY 10017
- --------------------------------------------------------------------------------------------------------------------
Sonera Corporation
P.O. Box 106
FIN-00051-TELE
Teollisuuskatu 15, Helsinki
Attn: Kaj-Erik Relander, Executive Vice President
Facsimile: 011 358 2040 3770
- --------------------------------------------------------------------------------------------------------------------
Sonera Holding, B.V. 8,792,555
c/o Sonera Corporation
P.O. Box 106
FIN-00051-TELE
Teollisuuskatu 15, Helsinki
Attn: Kaj-Erik Relander, Executive Vice President
Facsimile: 011 358 2040 3770
- --------------------------------------------------------------------------------------------------------------------
Upon the execution and delivery of the attached agreement, the following
Stockholder shall become a party to this Agreement.
- --------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
- --------------------------------------------------------------------------------------------------------------------
<S> <C>
Telephone and Data Systems, Inc. [Number of Shares shall be as set
30 North LaSalle, Suite 4000 forth on the agreement attached
Chicago, IL 60602 hereto as Exhibit A.]
Attention: LeRoy T. Carlson, Jr., President
Facsimile: 312-630-9299
- --------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
Exhibit A to
Voting Agreement
AGREEMENT
AGREEMENT, dated as of __________, 2000, by and between
VOICESTREAM WIRELESS CORPORATION (f/k/a VoiceStream Wireless Holding
Corporation), a Delaware corporation ("VoiceStream"), and TELEPHONE AND DATA
SYSTEMS, INC., a Delaware corporation ("TDS");
WHEREAS, VoiceStream has entered into a Voting Agreement
("Voting Agreement") dated as of February 25, 2000, together with certain
stockholders of VoiceStream set forth on Schedule I thereof ("Stockholders");
WHEREAS, all capitalized terms used herein and not otherwise
defined shall have the meanings set forth in the Voting Agreement;
WHEREAS, in the Voting Agreement, the Stockholders and
VoiceStream have agreed that, at the time of the closing of the Aerial
Reorganization, TDS and VoiceStream shall execute and deliver this Agreement to
evidence the admission of TDS as a party to the Voting Agreement;
WHEREAS, the Aerial Reorganization is being consummated
concurrently with the execution of this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements set forth herein, the parties hereto agree as
follows:
1. TDS hereby accepts and agrees to all of the terms and
conditions of the Voting Agreement and agrees to become a
party to the Voting Agreement as a Stockholder effective
immediately.
2. The Voting Agreement shall not in any way limit, amend or
modify any of the terms or provisions of the Investor
Agreement dated the date hereof among TDS, VS Washington
Corporation and VoiceStream.
3. VoiceStream, by action of its Board of Directors, shall
appoint a Qualified TDS Designee to the Board of Directors of
VoiceStream on the later of (i) the date hereof or (ii)
promptly after TDS designates a Qualified TDS Designee.
4. This Agreement shall become effective as of the Effective Time
of the Aerial Reorganization and shall supersede the Parent
Stockholder Agreement, dated as of September 17, 1999, among
Aerial, TDS, VoiceStream and VS Washington
<PAGE>
Corporation (f/k/a VoiceStream Wireless Corporation) and the
individuals and entities set forth on Schedule I thereto,
which shall terminate by its terms at such time.
5. The number of Shares Beneficially Owned by TDS as of the date
of this Agreement is _______ Shares.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
VOICESTREAM WIRELESS CORPORATION
By:
------------------------------------
Name:
Title:
TELEPHONE AND DATA SYSTEMS, INC.
By:
------------------------------------
Name:
Title:
Exhibit 99.3
EXECUTION COPY
- --------------------------------------------------------------------------------
INVESTOR AGREEMENT
DATED AS OF SEPTEMBER 17, 1999
BY AND AMONG
SONERA LTD.
a Finnish limited liability company,
VOICESTREAM WIRELESS CORPORATION,
a Washington corporation
AND
VOICESTREAM WIRELESS HOLDING CORPORATION,
a Delaware corporation.
- --------------------------------------------------------------------------------
<PAGE>
INVESTOR AGREEMENT
This INVESTOR AGREEMENT (this "Agreement") is made as of September 17,
1999 by and between Sonera Ltd., a limited liability company organized under the
Laws of the Republic of Finland ("Sonera"), VoiceStream Wireless Corporation, a
Washington corporation ("VoiceStream"), and VoiceStream Wireless Holding
Corporation, a Delaware corporation (the "Company").
WHEREAS, Aerial Communications, Inc, a Delaware corporation ("Aerial"),
Telephone and Data Systems, Inc. ("TDS"), VoiceStream, the Company and
VoiceStream Subsidiary III Corporation, a Delaware corporation and wholly owned
subsidiary of the Company ("Sub"), have entered into an Agreement and Plan of
Reorganization, dated as of September 17, 1999 (the "Aerial Reorganization
Agreement"), pursuant to which Sub will be merged into Aerial.
WHEREAS, Voice Stream, the Company and Omnipoint Corporation, a
Delaware corporation ("Omnipoint"), have entered into an Agreement and Plan of
Reorganization, dated June 23, 1999 (the "Omnipoint Reorganization Agreement"),
whereby, among other things, a subsidiary of the Company will merge with and
into Omnipoint (the "Omnipoint Reorganization").
WHEREAS, the Investor and the Company wish to set forth certain
agreements concerning the ownership and transfer of shares of Common Stock, and
certain other matters as provided herein.
NOW, THEREFORE, in consideration of the mutual and dependent promises
set forth herein, the Investor hereby agrees with the Company, and the Company
hereby agrees with the Investor, as follows:
1. EFFECTIVE DATE OF AGREEMENT AND OTHER MATTERS.
(a) This Agreement shall become effective at the earlier of (i) the
Effective Time pursuant to and as defined in the Omnipoint Reorganization
Agreement, or (ii) the Effective Time pursuant to and as defined in the Aerial
Reorganization Agreement.
(b) All representations, warranties and covenants made by either
VoiceStream or the Company are hereby made on a joint and several basis by
VoiceStream and the Company.
2. DEFINITIONS.
(a) Unless the context requires otherwise, capitalized terms used but
not defined in this Agreement have the meanings given in the Aerial
Reorganization Agreement.
(b) As used in this Agreement, the following terms have the respective
meanings set forth below (applicable to both the singular and plural forms of
such terms):
- 1 -
<PAGE>
"Affiliate" shall have the meaning set forth in Rule 12b-2 of the rules
and regulations promulgated under the Exchange Act; provided, however, that for
purposes of Section 3 of this Agreement, none of the following shall be deemed
to be an Affiliate of the Investor: (A)(i) the Company, (ii) the Cook Inlet
Parties, or (iii) any of the Current Principal Stockholders or their Affiliates,
or (B) any Person who would be an Affiliate of Investor solely because such
Person is an Affiliate of any of the Persons referred to in clause (A) of this
provision.
"Agreement" means this Investor Agreement, as amended, modified,
supplemented or restated from time to time in accordance with the terms hereof.
"Bankruptcy Event" means the filing by the Company or VoiceStream of a
petition in bankruptcy or the expiration of sixty (60) days after a petition in
bankruptcy shall have been filed against the Company or VoiceStream and such
petition shall not have been stayed or discharged during such sixty (60) day
period; or upon the expiration of sixty (60) days after the commencement of any
proceeding under any law for the relief of debtors seeking the relief or
readjustment of the Company's or VoiceStream's indebtedness either through
reorganization, winding-up, extension or otherwise, and such proceedings
involving the Company or VoiceStream as debtor shall not have been vacated or
stayed within such sixty (60) day period; or upon the appointment of a receiver,
custodian or trustee for all or substantially all of the Company's or
VoiceStream's property, or the making by the Company or VoiceStream of any
general assignment for the benefit of creditors, or the admitting in writing by
the Company or VoiceStream of its inability to pay its debts as they mature; or
upon the voluntary or involuntary liquidation or dissolution of the Company or
VoiceStream, other than the liquidation or dissolution of VoiceStream with or
into the Company or another wholly-owned subsidiary of the Company.
"Beneficially Owned" and "Beneficial Ownership" have the meaning set
forth in Rule 13d-3 of the rules and regulations promulgated under the Exchange
Act, excluding paragraph (d) of such Rule relating to the deemed beneficial
ownership of a security if such person has the right to acquire such security
within sixty (60) days.
"Board" means the board of directors of the Company.
"Change of Control" means the acquisition by any Person or 13D Group of
direct or indirect Beneficial Ownership of Voting Securities representing 50% or
more of the Voting Power, pursuant to (i) an acquisition of Common Stock, (ii)
any merger, consolidation or business combination involving the Company or any
material portion of its business, or (iii) a recapitalization, restructuring,
liquidation, dissolution or similar extraordinary transaction relating to the
Company or any material portion of its business; provided, that the foregoing
shall not be deemed to constitute a Change of Control if immediately after such
transaction or event Persons who were stockholders of the Company immediately
prior to such transaction or event continue to Beneficially Own on a
proportionate basis Voting Securities which represent more than fifty percent
(50%) of the Voting Power of the surviving or resulting entity immediately after
such transaction or event; provided further, that, notwithstanding the
foregoing, a Change of Control shall be deemed to occur if any one of the
Current Principal Stockholders shall
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Beneficially Own fifty percent (50%) or more of the Voting Power.
"Commission" means the United States Securities and Exchange
Commission.
"Common Stock" means the Company's Common Stock, $0.001, and shall
include any new, substituted and additional securities issued at any time in
replacement of the Common Stock or issued or delivered with respect to the
Common Stock.
"Company" means VoiceStream Wireless Holding Corporation, a Delaware
corporation, and its successors and assigns.
"Cook Inlet Parties" means (i) Cook Inlet Western Wireless PV/SS PCS,
L.P., (ii) Cook Inlet VoiceStream PCS, LLC, (iii) Cook Inlet VoiceStream II,
LLC, (iv) Cook Inlet VoiceStream III, LLC and any similar joint venture in which
the Company, Omnipoint, VoiceStream or their Subsidiaries from time to time are
significant equity owners.
"Current Principal Stockholders" means the individuals and entities
listed on Schedule I and their Permitted Affiliated Transferees (as defined in
the Voting Agreement) and, with respect to Hutchinson USA, its Disqualified
Affiliates (as defined in the Hutchinson USA Investor Agreement).
"Disinterested Board Approval" means the affirmative vote or written
consent of a majority of the Board (excluding Investor Directors) then in
office.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Imputed Cost of Funds" means LIBOR plus 275 basis points.
"Incremental Shares" has the meaning given in Section 3(c)(i).
"Investor" unless otherwise specified herein, means Sonera and its
successors and assigns and Affiliates which from time to time hold shares of
Voting Securities.
"Investor Director" means any member of the Board who has been
designated by Investor or any member of the Investor Group for nomination or
appointment as a director of the Company.
"Investor Group" means Investor and any of their respective Affiliates.
"Investor's Ownership Percentage" means the percentage determined by
dividing the shares of Common Stock Beneficially Owned by the Investor Group by
the Voting Power of the Company both determined as of the same relevant date of
determination.
"Investor Tender Offer" means a bona fide public tender offer subject
to the provisions of Regulation 14D when first commenced within the meaning of
Rule 14d-2(a) of the rules and
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regulations under the Exchange Act, by any of the Investor Group (or any 13D
Group that includes any of the Investor Group) to purchase or exchange for cash
or other consideration any Common Stock and which consists of an offer to
acquire one hundred percent (100%) of the outstanding Common Stock (without
regard to Common Stock owned by any of the Investor Group) and is conditioned
(which condition may not be waived) on a majority of the shares of outstanding
Common Stock held by shareholders other than any of the Investor Group being
tendered and not withdrawn with respect to such offer.
"Hutchinson USA" means Hutchinson Telecommunications PCS (USA) Limited,
a British Virgin Islands Corporation.
"Hutchinson USA Investor Agreement" means the Investor Agreement dated
June 23, 1999 among Hutchinson USA, Hutchinson Telecommunications Limited and
the Company.
"Permitted Transferee" means any entity in which Investor owns,
directly or indirectly, more than 40% of the outstanding voting power and of
which members of the Investor Group collectively are the largest shareholder.
"Person" means an individual, partnership, joint-stock company,
corporation, trust or unincorporated organization, limited liability company, or
a government or agency or political subdivision thereof or any other entity.
"Qualified Designee" means an individual designated by Investor,
provided that the Company shall have the right to approve such designee, which
approval shall not be unreasonably withheld, so long as such individual's
membership on the Board shall not cause any violation of any Federal anti-trust
law or any other Federal or state law.
"Reorganization" has the meaning given in the Omnipoint Reorganization
Agreement.
"Sale" means (i) a public offer and sale or other public distribution
of securities, including pursuant to an effective registration statement under
the Securities Act, or (ii) an offer or sale not involving a public offering
pursuant to an exemption from registration under Rules 144 or 145 or otherwise
under the Securities Act.
"Standstill Period" has the meaning given in Section 3(a)(i).
"Standstill Termination Event" means the date on which the first of the
following occurs: (i) the Investor Group Beneficially Owns, in the aggregate,
less than ten percent (10%) of the Voting Power, (ii) the Investor Group
Beneficially Owns, in the aggregate, more than 90% of the Voting Power, (iii) a
Change of Control or (iv) a Bankruptcy Event.
"Subsidiary" means, as to any Person, another Person which is an entity
as to which such Person owns more than fifty percent (50%) of the outstanding
voting power and more than fifty percent (50%) of the equity.
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"Third Party Change of Control" has the meaning given in Section
3(a)(i)(C).
"Third Party Offer" has the meaning given in Section 3(a)(i)(C).
"Threshold Percentage" means nineteen and nine tenths percent (19.9%);
provided that the Threshold Percentage shall be less to the extent necessary if
such ownership would cause a violation of the spectrum cap limits set by 47
C.F.R. Section 20.6 or other legislation or rule or that will require
divestiture by VoiceStream or the Company (including for this purpose the Cook
Inlet Parties) pursuant to said rule, as such rule may be modified or replaced
from time to time; provided that, in such event, upon the request of Investor,
VoiceStream and the Company shall use commercially reasonable efforts and
cooperate with the Investor Group to seek to obtain appropriate waivers from
such FCC rules or effect other commercially reasonable arrangements which would
permit the Investor Group to increase its ownership percentage to a maximum of
nineteen and nine tenths percent (19.9%). The Threshold Percentage shall be
calculated by dividing the Voting Power of the Voting Securities which are
Beneficially Owned by the Investor Group by the Voting Power as of the date of
determination.
"Transfer" means any sale, assignment, pledge, hypothecation, or other
transfer, disposition or encumbrance of any interest (and includes an exchange
of shares in a merger, consolidation or similar transaction).
"Triggering Person" has the meaning given in Section 3(b)(i)(A).
"Voting Agreement" means any voting or similar agreement to which any
member of the Investor Group and either or both of the Company or VoiceStream
are party from time to time which provides, among other things, for the voting
of securities for the election of directors of VoiceStream or the Company.
"Voting Power" means, as of the date of determination, the total number
of votes which may be cast in the election of directors of the Company at any
meeting of shareholders of the Company if held on such date of determination if
all Voting Securities then outstanding were present and voted to the fullest
extent possible at such meeting. Voting Power shall be determined based on
information included in the Company's or VoiceStream's most recently filed Form
10-K or Form 10-Q notwithstanding subsequent changes thereto unless such changes
have been reported on a Form 8-K or reported to Investor in writing by the
Company or VoiceStream.
"VoiceStream" means VoiceStream Wireless Corporation, a Washington
corporation.
"Voting Security" means, as of the date of determination, the Common
Stock of the Company, any other security generally entitled to vote for the
election of directors.
"13D Group" means any group of persons formed for the purpose of
acquiring, holding, voting or disposing of Voting Securities which would be
required under Section 13(d) of the Exchange Act, and the rules and regulations
promulgated thereunder, to file a statement on Schedule 13D or a Schedule 13G
with the Commission as a "person" within the meaning of
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Section 13(d)(3) of the Exchange Act if such group Beneficially Owned (as
defined without excluding paragraph (d) of Rule 13d-3) sufficient securities to
require such a filing under the Exchange Act. When references herein are to a
group under Section 13(d) and not to members of such group, such references
shall be deemed to refer to actions of the group acting as such group and not to
the individual actions of any members of such group, unless and to the extent
such actions would not be permitted to be taken by the group.
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,"
"hereunder" 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.
3. STANDSTILL.
(a) Standstill Obligations.
(i) Limitation. Unless there shall have occurred a Standstill
Termination Event, until the fifth (5th) anniversary of the date of this
Agreement (the "Standstill Period"), except with Disinterested Board Approval,
no member of the Investor Group shall, directly or indirectly,
(A) acquire or agree to acquire any Voting Securities (except
by way of stock splits, stock dividends or other distributions) if, in
any such case, the effect of such acquisition would be to increase the
Investor's Ownership Percentage to more than the Threshold Percentage;
(B) solicit proxies with respect to the Voting Securities or
become a "participant" in any "election contest" (as such terms are
used in Rule 14(a)-11 of Regulation 14A promulgated under the Exchange
Act) relating to the election of directors of the Company, it being
understood that the Investor Group shall not be deemed to be such a
participant merely by reason of the membership of any Investor
Directors on the Board pursuant to the terms of any Voting Agreement;
provided, that if VoiceStream or the Company shall be in breach under
any Voting Agreement (which breach, in the reasonable judgment of
Investor, could likely result in an Investor Director not being elected
in accordance with the terms of the Voting Agreement), the Investor
Group may engage in such activities for the limited purpose of electing
the Investor Directors; or
(C) join a 13D Group (other than a 13D Group which includes
all of the Current Principal Stockholders) with any Person which is not
a member of the Investor Group or otherwise induce, attempt to induce
or in any manner act in concert with any such Person for the purpose of
initiating or effectuating a tender offer or exchange offer for any
Voting Securities (a "Third Party Offer") or a transaction which would
result in a
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<PAGE>
Change of Control (a "Third Party Change of Control"); provided that
the provisions of this clause (C) shall not be applicable if any
Current Principal Stockholder holding more than 5% of the Voting Power
shall have engaged in any material respect in any of the activities
referred to in this clause (C).
(D) either alone or through or with any Person initiate,
induce, attempt to induce or in any manner act in concert with or
otherwise support, encourage or act in concert with, any such Person
for the purpose of initiating or effectuating a tender or exchange
offer or Change of Control; or
(E) disclose to any Person any intention, plan or arrangement
inconsistent with the foregoing.
Nothing in this Section 3(a)(i) shall have the effect of (i) precluding
a member of the Investor Group from participating in a Third Party Offer or
voting or agreeing to vote its shares in favor of a Third Party Change of
Control in which the Investor Group would receive consideration on the same
basis as is generally available to other holders of Common Stock or (ii)
prohibiting any Investor Director (acting in such capacity) from participating
(A) in discussions with other members of the Board or (B) in meetings of the
Board.
If any member of the Investor Group makes such an acquisition or
exercise that would increase the percentage interest of the Investor Group in
the Voting Power to more than the Threshold Percentage, such excess shares shall
(for so long as the Voting Power exceeds the Threshold Percentage) be voted in a
manner proportionate to shares voted by the shareholders of the Company other
than the Investor Group and the Permitted Transferees; provided, that if the
excess shares shall result from the bad faith actions of the Investor Group or
its Affiliates, it shall promptly divest such excess; provided, further,
however, that no member of the Investor Group shall be obligated to divest
itself of such excess pursuant to this Section 3(a)(i) until such time as such
divestment would not subject such member of the Investment Group to liability
under Section 16(b) of the Exchange Act or any other applicable provision of
Federal or state law.
(ii) Recapitalizations, Etc. Notwithstanding Section 3(a)(i),
no member of the Investor Group shall be obligated to dispose of any Voting
Securities if the aggregate percentage ownership of the Investor Group is
increased as a result of (x) a recapitalization, merger, consolidation or other
reorganization of the Company, (y) a repurchase of Voting Securities by the
Company or (z) any other action taken by the Company or its Affiliates other
than the Investor Group.
(iii) Reinstatement of Standstill. If a Standstill Termination
Event shall have occurred by virtue of the Investor Group Beneficially Owning
less than ten percent (10%) of the Voting Power and thereafter the Investor
Group shall Beneficially Own more than ten percent (10%) of the Voting Power
(other than as a result of (x) a recapitalization, merger, consolidation or
other reorganization of the Company, (y) a repurchase of Voting Securities by
the Company or (z) any other action taken by the Company or its Affiliates other
than the Investor Group), the provisions of this Section 3 shall be deemed to
have been reinstated.
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<PAGE>
(b) Exception for Certain Third-Party Acquisitions.
(i) Exception to Standstill Obligation. Notwithstanding
Section 3(a)(i), the Investor Group may:
(A) acquire Voting Securities without regard to the
limitations set forth above but in accordance with Section 3(b)(ii) if
at any time any person or 13D Group of persons, (other than any 13D
Group which includes Investor or any of its Affiliates) (such person or
persons together with any of their Affiliates, collectively, a
"Triggering Person"), directly or indirectly, (x) makes a bona fide
offer to acquire, or (y) acquires, Beneficial Ownership of Voting
Securities which, if added to the Voting Securities (if any) already
Beneficially Owned by such Triggering Person, would represent ownership
of Voting Securities greater than the Threshold Percentage or, in the
event the Triggering Person is Hutchinson USA, greater than the
"Threshold Percentage" specified in the Hutchinson USA Investor
Agreement, which is applicable at such time;
(B) with Disinterested Board Approval, make an Investor Tender
Offer during the Standstill Period; and
(C) with Disinterested Board Approval, acquire Voting
Securities (including stock options, warrants or rights to purchase
Voting Securities) without regard to the limitations set forth above.
The Company shall give Investor written notice of the occurrence of any event of
the type referred to in clause (A) promptly after it obtains knowledge of such
event.
(ii) Competing Offers. If an event identified in Section
3(b)(i)(A) occurs and shall not have been withdrawn or terminated, the Investor
Group shall be permitted to take such action and make such offers as may be
considered to be of the same nature and type of action or offer and for the same
resulting number of shares as that which is being taken by the Triggering
Person; provided that the Investor Group may only acquire that number of shares
which when added to the number of shares already owned by the Investor Group
shall not exceed the number of shares Beneficially Owned (as defined without
excluding paragraph (d) of Rule 13d-3) and to be acquired (assuming any
proposals or offers to purchase have been consummated) by the Triggering Person.
In proceeding with any action or offer permitted under this Section 3(b)(ii),
the Investor Group shall be permitted to offer more favorable terms such as
price, cash versus securities or other such terms as may be consistent with an
offer of the same nature and type of consideration as that which is being
proposed by the Triggering Person.
(iii) No Contesting. If the Investor Group shall take any such
action permitted by this Section 3(b), the Company agrees that it shall not in
any way (whether by active opposition, Board announcement or otherwise) contest
such action, subject in all events to the fiduciary obligations of the Company's
Board and officers to the Company's stockholders.
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<PAGE>
(c) Option to Purchase Incremental Shares.
(i) Incremental Shares. If an event identified in Section
3(b)(i) occurs and as a result the Investor Group acquires Voting Securities
which increase the Investor Group's percentage interest in the Voting Power to
more than the Threshold Percentage (the "Incremental Shares"), and thereafter
the Triggering Person holds Voting Securities representing a percentage of the
Voting Power less than the Threshold Percentage, then, upon the expiration of
the Investor Group's right to dispose of the Incremental Shares as provided in
Section 3(c)(ii) below, the Investor Group hereby grants to the Company or a
designee selected with Disinterested Board Approval, for a period of ninety (90)
days (subject to extension in the event of Investor's exercise of rights under
Section 3(c)(ii) below), an option to acquire any Incremental Shares at a price
equal to the price paid by the Investor Group for such shares, plus such
expenses and costs reasonably necessary to acquire the Incremental Shares and
incurred by the Investor Group in acquiring the Incremental Shares (including
the Imputed Cost of Funds of the Investor Group of holding the Incremental
Shares until acquired by the Company or such designee); provided, however, that
the Investor Group shall not be obligated to sell any Voting Securities pursuant
to this Section 3(c)(i) until such time as such sale would not subject the
Investor Group to liability under Section 16(b) of the Exchange Act or any other
applicable provision of Federal or state law.
(ii) Disposition. In the event that the Investor Group has
acquired Incremental Shares from a seller or sellers other than the Company, for
a period of sixty (60) days from the date on which the Investor Group holds
Incremental Shares, the Investor Group shall have the right to sell such
Incremental Shares as follows: (x) to an independent third party in a bona fide
transaction or transactions; (y) if Rule 144 is available, into the public
market in accordance with the terms of Rule 144; or (z) as provided under both
(x) and (y). In the event that the Investor Group elects to dispose of the
Incremental Shares as provided in this Section 3(c)(ii), Investor shall provide
written notice to the Company of such disposition and the purchase option
granted to the Company pursuant to Section 3(c)(i) shall apply only to those
Incremental Shares which have not been so disposed of; provided, however, that
the Investor Group shall not be obligated to sell any Voting Securities pursuant
to this Section 3(c)(ii) until such time as such sale would not subject the
Investor Group to liability under Section 16(b) of the Exchange Act or any other
applicable provision of Federal or state law.
(iii) Adjustment for Failure to Exercise Option. In the event
that the Company or its designee fails to exercise its option as provided in
Section 3(c)(i), the Threshold Percentage shall be increased to a percentage
equal to the percentage of the Voting Power held by the Investor Group upon the
expiration of the right to exercise such option by the Company or such designee.
(iv) Voting of Incremental Shares. Until the Incremental
Shares shall have been disposed of as provided in Section 3(c)(ii) and, if
applicable, the option of the Company or its designee provided in Section
3(c)(i) shall have expired, the Incremental Shares shall be voted in a manner
proportionate to shares voted by the shareholders of the Company other than the
Investor Group and the Permitted Transferees.
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<PAGE>
(v) No Circumvention. (a) The Investor Group shall not attempt
to circumvent the provisions of this Section 3(c) by taking any action that
would have the effect of extending the periods for which Section 16(b) liability
would apply.
(b) The Investor Group shall not acquire or agree to acquire
any Voting Securities of, or other equity interest in, the Cook Inlet Parties
except as a member of a 13D Group which includes all of the Current Principal
Stockholders.
4. TRANSFER.
(a) The Voting Securities Beneficially Owned by the Investor Group
shall be freely tradable and may be Transferred by the Investor Group in Sales
as provided herein or in the Registration Rights Agreement, provided that the
Investor Group takes reasonable care in approving a plan of distribution for
sales of Common Stock pursuant to a registration statement or authorizing sales
pursuant to Rules 144 or 145 or otherwise to preclude the acquisition of more
than five percent (5%) of the Voting Power by any Person, Affiliate or 13D Group
(other than the Current Principal Stockholders and their Permitted Affiliate
Transferees (as defined in the Voting Agreement) and, with respect to Hutchinson
USA, the Disqualified Affiliates (as defined in the Hutchinson USA Investor
Agreement) unless otherwise approved by Disinterested Board Approval. Any Sale
not made pursuant to a registration statement as permitted by the Registration
Rights Agreement shall be made in compliance with Rule 144 and/or 145 or
pursuant to another exemption from registration.
(b) Provided that it shall have provided prior written notice to the
Company, the Investor Group and the Permitted Transferees shall have the
unrestricted right to Transfer their Voting Securities and the rights and
obligations hereunder to members of the Investor Group and the Permitted
Transferees (provided that any such transferees agree in writing to be bound by
the terms of this Agreement).
(c) Nothing herein shall restrict in any way the Transfer of any
derivative security with respect to the Voting Securities Beneficially Owned by
the Investor Group and the Permitted Transferees.
5. COVENANTS OF THE INVESTOR.
Until the termination of the Aerial Reorganization Agreement in
accordance with the terms thereof, Investor agrees as follows:
(a) At any stockholders meeting of Aerial (or at any adjournment
thereof) or in any other circumstances upon which a vote, consent or other
approval with respect to the Aerial Reorganization or the Aerial Reorganization
Agreement is sought, the Investor shall vote (or cause to be voted) the shares
of Aerial Common Stock owned by it or its Affiliates in favor of the Aerial
Reorganization, the approval and adoption of the Aerial Reorganization Agreement
and
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the approval of the terms thereof and each of the other transactions
contemplated by the Aerial Reorganization Agreement.
(b) At any meeting of stockholders of Aerial (or at any adjournment
thereof) or in any other circumstances upon which a vote, consent or other
approval is sought, other than with respect to the Aerial Reorganization or
Aerial Reorganization Agreement, the Investor shall vote (or cause to be voted)
the shares of Aerial Common Stock owned by it or its Affiliates against any
merger agreement or merger, consolidation, sale of all or substantially all of
the assets of Aerial, or reorganization, recapitalization, dissolution,
liquidation or winding up of or by Aerial or any Subsidiary of Aerial or any
other Acquisition Proposal. The Investor further agrees not to commit or agree
to take any action inconsistent with the foregoing.
(c) The Investor agrees not to (i) sell transfer, pledge, encumber,
assign or otherwise dispose of (including by gift) (collectively, "Transfer"),
or enter into any contract, option or other arrangement (including any
profit-sharing arrangement) with respect to any Transfer of the shares of Aerial
Common Stock owned by it or its Affiliates to any person or (ii) enter into any
voting arrangement, whether by proxy, voting agreement or otherwise
(collectively, "Voting Agreement"), in relation to the shares of Aerial Common
Stock owned by it or its Affiliates, and agrees not to commit or agree to take
any of the foregoing actions. Notwithstanding the foregoing, the Investor may
make Transfers to Permitted Transferees.
(d) The Investor shall not, nor shall the Investor authorize any
affiliate, director, officer, employee, investment banker, attorney or other
advisor or representative of the Investor to, (i) directly or indirectly
solicit, initiate or encourage the submission of, any Acquisition Proposal or,
(ii) directly or indirectly participate in any discussions or negotiations
regarding, or furnish to any person any information with respect to, or take any
other action to facilitate any inquiries or the making of any proposal that
constitutes or may reasonably be expected to lead to, any Acquisition Proposal
or (iii) directly or indirectly take or participate in any actions set forth in
Section 5.3 of the Aerial Reorganization Agreement.
(e) The Investor shall use all reasonable efforts to take, or cause to
be taken, all actions, and to do, or cause to be done, and to assist and
cooperate in doing, all things necessary, proper or advisable to consummate and
make effective, in the most expeditious manner practicable, the Aerial
Reorganization and the other transactions contemplated by the Aerial
Reorganization Agreement.
(f) Investor hereby irrevocable waives any rights of appraisal or
rights to dissent from the Aerial Reorganization that Investor may have.
(g) Sonera agrees to execute at the closing of the Omnipoint
Reorganization and again at the closing of the Aerial Reorganization a tax
certificate in the form attached hereto.
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6. VOTING AGREEMENT AND DIRECTOR DESIGNEES.
(a) Certain Stockholders of VoiceStream ("Parent Stockholders") are
parties to a Voting Agreement, dated May 3, 1999 ("VoiceStream Voting
Agreement"), pursuant to which each Parent Stockholder agreed on the terms set
forth in the VoiceStream Voting Agreement to vote the shares of VoiceStream
Common Stock Beneficially Owned by it at the time of a vote in favor of
directors designated by such Parent Stockholders. On June 23, 1999 the Parent
Stockholders entered into an Agreement (the "Omnipoint Voting Agreement") with
certain stockholders of Omnipoint (the "Omnipoint Stockholders") in which they
agreed, among other things, to terminate the VoiceStream Voting Agreement and
enter into a new Voting Agreement on terms mutually satisfactory to Omnipoint
Stockholders and Parent Stockholders ("Newco Voting Agreement") which will set
forth voting arrangements which will apply to the Company after the Omnipoint
Reorganization. The Parent Stockholders and Investor hereby agree to enter into
a voting agreement ("Newco Voting Agreement II") effective on the Effective Time
of the Omnipoint Reorganization on terms mutually satisfactory to the Parent
Stockholders and Investor, pursuant to which (w) the voting arrangements which
existed under the VoiceStream Voting Agreement will apply to the Company, (x)
the provisions of Section 6 (b) below shall also be effectuated, (y) the
provisions of the letter agreement, dated June 23, 1999 ("Hutchinson Letter"),
with Hutchinson will be effectuated, and (z) upon consummation of the Omnipoint
Reorganization, the provisions of Section 7.4 of the Omnipoint Agreement shall
be effectuated. On September 17, 1999, Parent Stockholders, Aerial, TDS,
VoiceStream and the Company entered into a Parent Stockholders Agreement,
whereby, among other things, Parent Stockholders and TDS agreed, effective on
the Effective Time of the Aerial Reorganization, to enter into a voting
agreement substantially similar to that contemplated hereby pursuant to which,
in addition to the provisions referred in clauses (w), (y) and (z) above, the
Principal Stockholders and TDS agreed to vote for one director designated by
TDS. The Parent Stockholders and Investor shall use reasonable efforts to seek
to have the Omnipoint Stockholders enter into Newco Voting Agreement II,
effective on the Effective Time of the Omnipoint Reorganization, on terms
mutually satisfactory to the Parent Stockholders, Investor and the Omnipoint
Stockholders. If the Omnipoint Stockholders do not enter into Newco Voting
Agreement II effective at the Effective Time of the Omnipoint Reorganization,
the Parent Stockholder and Investor shall enter into Newco Voting Agreement II
effective at the Effective Time of the Omnipoint Reorganization, it being
understood and agreed that the Parent Stockholders and the Omnipoint
Stockholders will still enter into the Newco Voting Agreement. The Parent
Stockholders and Investor shall use reasonable efforts to seek to have TDS enter
into Newco Voting Agreement II, effective on the Effective Time of the Aerial
Reorganization, on terms mutually satisfactory to the Parent Stockholders,
Investor and TDS. If TDS does not enter into Newco Voting Agreement II effective
at the Effective Time of the Aerial Reorganization, the Parent Stockholder and
Investor shall enter into Newco Voting Agreement II effective at the Effective
Time of the Omnipoint Reorganization, it being understood and agreed that the
Parent Stockholders and TDS will still enter into an appropriate voting
agreement
(b) Pursuant to Newco Voting Agreement II each of the Parent
Stockholders and Investor (and the Omnipoint Stockholders if they agree to enter
into such agreement) shall agree, on the terms set forth therein, to vote, or
cause to be voted, all of the shares of Parent Common
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Stock Beneficially Owned by it at the time of the vote in person or by proxy
(and shall take all other necessary or desirable action within the Investor's or
such Parent Stockholder's 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), for the election and continuation in office of (i) one (1)
Qualified Designee as a director of the Company so long as the Investor
Beneficially Owns at least 4,500,000 shares of Parent Common Stock; provided,
however, if Investor owns more than 9,800,000 shares of Parent Common Stock and
TDS owns less than 4,500,000 shares of Parent Common Stock, Investor shall be
permitted to designate two (2) Qualified Designees; and (ii) the directors
designated by the Parent Stockholders pursuant to the VoiceStream Voting
Agreement (as restated in Newco Voting Agreement II), the Hutchinson Letter and
Section 7.4 of the Omnipoint Agreement.
(c) Parent agrees if necessary, to amend the Bylaws of Parent, to
increase the number of authorized directors to a number sufficient to satisfy
the obligations in the VoiceStream Voting Agreement, Newco Voting Agreement and
Newco Voting Agreement II, as applicable.
7. MISCELLANEOUS.
(a) Waiver; Amendments. Except as expressly provided otherwise herein,
neither this Agreement nor any provision hereof may be changed, waived,
discharged or terminated orally, but only by an instrument in writing signed by
the Company and the Investor.
(b) Recapitalization, Exchanges, Etc. The provisions of this Agreement
shall apply to the full extent set forth herein with respect to shares or other
securities of the Company that may be issued to the Investor in respect of, in
exchange for, or in substitution of the Common Stock.
(c) Specific Performance. Each of the parties hereto acknowledges and
agrees that, in the event of any breach of this Agreement, the non-breaching
parties would be irreparably harmed and could not be made whole by monetary
damages. Accordingly, each party hereto agrees that the other party, in addition
to any other remedy to which they may be entitled at law or in equity, shall be
entitled to compel specific performance of this Agreement.
(d) Notices. All notices, requests, demands and other communications
hereunder shall be in writing and, except to the extent otherwise expressly
provided in this Agreement, shall be deemed to have been duly given if delivered
by same day or next day courier (guaranteed delivery) or mailed, registered
mail, return receipt requested, or transmitted by telegram, telex or facsimile
(i) if to the Investor, at the Investor's address appearing below or at any
other address the Investor may have provided in writing to the Company and (ii)
if to the Company, at 3650 131st Avenue S.E., Suite 400, Bellevue, WA 98006,
U.S.A., Tel: (425) 586-8014, Fax: (425) 586-8080; Attention: General Counsel, or
such other address as the Company may have furnished to the Investor in writing,
with copies (which shall not constitute notice) to Preston Gates & Ellis LLP,
5000 Columbia Center, 701 Fifth Avenue, Seattle, WA 98104, Attention: Richard B.
Dodd, Esq., Facsimile No.: (206) 623-7022 and to Friedman Kaplan & Seiler LLP,
875 Third Avenue NewYork, NY 10022 Attention: Barry A. Adelman, Esq. Facsimile
No.: (212)
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<PAGE>
355-6401. If a notice hereunder is transmitted by confirmed fax so as to arrive
during normal business hours during a Business Day at the place of receipt, then
such notice shall be deemed to have been given on such Business Day at the place
of receipt or, if so transmitted to arrive after normal business hours during a
Business Day at the place of receipt, then such notice shall be deemed to have
been given on the following Business Day at the place of receipt. If such notice
is sent by next-day courier it shall be deemed to have been given on the next
Business Day at the place of receipt following sending and, if by registered
mail, on the fifth Business Day at the place of receipt following sending,
provided, that the date of sending shall be deemed to be the date at the place
of receipt at the time such notice is posted.
The Investor Group:
Sonera Ltd.
P.O. Box, Fin - 00051 - Tele
Teollisuuskatu 15
Helsinki, Finland
Attention: Maire Laitinen, Esq.
Facsimile No.: 011-358-2040-3414
with a copy to:
Patton Boggs LLP
2550 M. St. N.W.
Washington, D.C. 20037
Attention: Richard M. Stolbach, Esq.
Facsimile No.: (202) 457-6315
(f) Successors and Assigns. Except as otherwise provided herein, this
Agreement shall inure to the benefit of, and be binding upon, the successors and
assigns of each of the parties; provided, however, that this Agreement may not
be assigned by any party hereto other than in compliance with the terms hereof.
(g) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which
together shall be considered one and the same agreement.
(h) Entire Agreement. This Agreement constitutes the entire
understanding of the parties hereto with respect to the subject matter hereof
and supersedes all prior understandings among such parties with respect to such
subject matter.
(i) Applicable Law. The validity of this Agreement, its construction,
interpretation and enforcement, and the rights of the parties hereunder, shall
be determined under, governed by and construed in accordance with the internal
laws of the State of Delaware applicable to contracts formed in such State. Each
party hereto agrees that any suit, action or other proceeding arising out of
this Agreement shall be brought and litigated in the courts of the State of
Delaware
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<PAGE>
or the United States District Court for the District of Delaware and each party
hereto hereby irrevocably consents to exclusive personal jurisdiction and venue
in any such court and hereby waives any claim it may have that such court is an
inconvenient forum for the purposes of any such suit, action or other
proceeding.
(j) Section Headings. The headings of the sections and subsections of
this Agreement are inserted for convenience only and shall not be deemed to
constitute a part thereof.
(k) Failure to Pursue Remedies. The failure of any party to seek
redress for violation of, or to insist upon the strict performance of, any
provision of this Agreement shall not prevent a subsequent act, which would have
originally constituted a violation, from having the effect of an original
violation.
(l) Cumulative Remedies. The rights and remedies provided by this
Agreement are cumulative and the use of any one right or remedy by any party
shall not preclude or waive its right to use any or all other remedies except as
otherwise expressly provided in this Agreement. Such rights and remedies are
given in addition to any other rights the parties may have by law, statute,
ordinance or otherwise.
(m) Severability. The invalidity or unenforceability of any particular
provision of this Agreement shall not affect the other provisions hereof, and
this Agreement shall be construed in all respects as if such invalid or
unenforceable provision were omitted.
[The remainder of this page was intentionally left blank]
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Investor
Agreement as of the date first above written.
SONERA LTD.
---------------------------------
Name:
Title:
VOICESTREAM WIRELESS CORPORATION
----------------------------------
Name:
Title:
VOICESTREAM WIRELESS HOLDING
CORPORATION
----------------------------------
Name:
Title:
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<PAGE>
SCHEDULE I
CURRENT PRINCIPAL STOCKHOLDERS
NAME AND ADDRESS OF STOCKHOLDER
- -------------------------------
Hellman & Friedman Capital Partners II, L.P.
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.
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.
c/o Hellman & Friedman
One Maritime Plaza, Suite 1200
San Francisco, California 94111
Attention: Mitchell R. Cohen
Fax: 415-788-0176
GS Capital Partners, L.P.
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.
c/o Goldman, Sachs & Co.
85 Broad Street
New York, NY 10004
Attention: Terence O'Toole
Fax: 212-902-3000
<PAGE>
Bridge Street Fund 1992, L.P.
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.
c/o Goldman, Sachs & Co.
85 Broad Street
New York, NY 10004
Attention: Terence O'Toole
Fax: 212-902-3000
Providence Media Partners L.P.
c/o Providence Ventures, Inc.
900 Fleet Center
50 Kennedy Plaza
Providence, Rhode Island 02903
Attention: Jonathan Nelson
Fax: 401-751-1790
John W. Stanton and Theresa E. Gillespie
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.
c/o VoiceStream Wireless Corporation
3650 131st Avenue S.E., Suite 400
Bellevue, WA 98006
Attention: John W. Stanton
Fax: 425-586-8010
Stanton Family Trust
c/o VoiceStream Wireless Corporation
3650 131st Avenue S.E., Suite 400
Bellevue, WA 98006
Attention: John W. Stanton
Fax: 425-586-8010
<PAGE>
Stanton Communications Corporation
c/o VoiceStream Wireless Corporation
3650 131st Avenue S.E., Suite 400
Bellevue, WA 98006
Attention: John W. Stanton
Fax: 425-586-8010
Hutchinson 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
Hutchinson Telecommunications Holdings (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
Exhibit 99.4
REGISTRATION RIGHTS AGREEMENT
Registration Rights Agreement (this "Agreement") dated as of
September 17, 1999 between VoiceStream Wireless Holding Corporation, a Delaware
Corporation (the "Company"), Sonera Corporation (formerly Sonera Ltd.), a
Finnish limited liability Company corporation ("Sonera")and Sonera Holding B.V.,
a company organized under the laws of the Netherlands.
RECITALS
WHEREAS, pursuant to that certain Stock Subscription Agreement
dated September 17, 1999, by and among Company, and Holder ("Stock Subscription
Agreement"), Holder shall acquire shares of Common Stock of the Company;
WHEREAS, in connection with Holder's investment pursuant to
the Stock Subscription Agreement, the Company agreed to provide certain rights
to Holder to cause the shares so purchased to be registered pursuant to the
Securities Act; and
WHEREAS, the parties hereto hereby desire to set forth
Holder's rights and the Company's obligations to cause the registration of the
Registrable Securities pursuant to the Securities Act;
NOW, THEREFORE, in consideration of the agreement to purchase
Common Stock of the Company by the Holder pursuant to the Stock Subscription
Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
Section 1. Definitions and Usage.
As used in this Agreement:
1.1. Definitions.
"Affiliates" shall have the meaning set forth for
such term in the Stock Subscription Agreement.
"Agent" shall mean the principal placement agent on
an agented placement of Registrable Securities.
"Commission" shall mean the Securities and Exchange
Commission.
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<PAGE>
"Common Stock" shall mean (i) the common stock, no
par value of the Company, and (ii) shares of capital stock of the Company issued
by the Company in respect of or in exchange for shares of such common stock in
connection with any stock dividend or distribution, stock split-up,
recapitalization, recombination or exchange by the Company generally of shares
of such common stock.
"Continuously Effective", with respect to a specified
registration statement, shall mean that it shall not cease to be effective and
available for Transfers of Registrable Securities thereunder for longer than
either (i) any ten (10) consecutive business days, or (ii) an aggregate of
fifteen (15) business days during the period specified in the relevant provision
of this Agreement.
"Demand Registration" shall have the meaning set
forth in Section 2.1(i).
"Demanding Holders" shall have the meaning set forth
in Section 2.1(i).
"Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended.
"Holder" shall mean Sonera and any affiliate thereof
that holds Registrable Securities and any subsequent transferee of Registrable
Securities as permitted by Section 8 and the term "Holders" shall include Holder
and transferees of Registrable Securities with respect to the rights that such
Transferees shall have acquired in accordance with Section 8 hereof, at such
times as such Persons shall own Registrable Securities.
"Initiating Substantial Holder" shall have the
meaning set forth in Section 2.2.
"Investor Agreement" shall mean that certain Investor
Agreement as of September 17, 1999 by and between Holder, VoiceStream Wireless
Corporation, a Washington corporation ("VoiceStream"), and Company.
"Majority Selling Holders" means those Selling
Holders whose Registrable Securities included in such registration represent a
majority of the Registrable Securities of all Selling Holders included therein.
"Person" shall mean an individual, corporation,
partnership, limited liability company, joint venture, association, joint stock
company, unincorporated syndicate, unincorporated organization, trust, trustee,
executor, administrator or other
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<PAGE>
legal representative, governmental authority or agency, political subdivision,
or any group of Persons acting in concert.
"Piggyback Registration" shall have the meaning set
forth in Section 3.
"Register", "registered", and "registration" shall
refer to a registration effected by preparing and filing a registration
statement or similar document in compliance with the Securities Act, and the
declaration or ordering by the Commission of effectiveness of such registration
statement or document.
"Registrable Securities" shall mean, subject to
Section 8 and Section 10.3: (i) the Shares owned by Holder on the date hereof or
issued by the Company to a Holder thereafter, and owned by a Holder on the date
of determination, including derivative securities with respect to such Shares
(ii) any shares of Common Stock or other securities issued as (or issuable upon
the conversion or exercise of any warrant, right or other security which is
issued as) a dividend or other distribution with respect to, or in exchange by
the Company generally for, or in replacement by the Company generally of, such
Shares; and (iii) any securities issued in exchange for Shares in any subsequent
merger or reorganization of the Company; provided, however, that Registrable
Securities shall not include any Securities which have theretofore been
registered and sold pursuant to the Securities Act or which have been sold to
the public pursuant to Rule 144 or any similar rule promulgated by the
Commission pursuant to the Securities Act, and, provided further, the Company
shall have no obligation under Sections 2 and 3 to register any Registrable
Securities of a Holder if the Company shall deliver to the Holders requesting
such registration an opinion of counsel reasonably satisfactory to such Holders
and its counsel to the effect that the proposed sale or disposition of all of
the Registrable Securities for which registration was requested does not require
registration under the Securities Act for a sale or disposition in a single
public sale, and offers to remove any and all legends restricting transfer from
the certificates evidencing such Registrable Securities. For purposes of this
Agreement, a Person will be deemed to be an owner of Registrable Securities
whenever such Person has the then-existing right to acquire such Registrable
Securities (by conversion, purchase or otherwise, including acquisition pursuant
to the Stock Subscription Agreement and the Reorganization Agreement), whether
or not such acquisition has actually been effected.
"Registrable Securities then outstanding" shall mean,
with respect to a specified determination date, the Registrable Securities owned
by all Holders on such date.
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<PAGE>
"Registration Expenses" shall have the meaning set
forth in Section 6.1.
"Reorganization Agreement" shall mean that certain
Agreement and Plan of Reorganization, dated as of September 17, 1999 among
VoiceStream, Company, VoiceStream Subsidiary III Corporation, Aerial
Communications, Inc. and Telephone and Data Systems, Inc.
"Securities Act" shall mean the Securities Act of
1933, as amended.
"Selling Holders" shall mean, with respect to a
specified registration pursuant to this Agreement, Holders whose Registrable
Securities are included in such registration.
"Shares" shall mean all shares of Common Stock issued
to Holder or its Affiliates pursuant to the Reorganization Agreement or the
Stock Subscription Agreement.
"Shelf Registration" shall have the meaning set forth
in Section 2.2.
"Stock Subscription Agreement" Shall have the meaning
set forth in the Recitals.
"Substantial Holder" shall mean Holder on the date of
this Agreement and after the date of this Agreement, any Holder of 15% or more
of the Registrable Securities then outstanding.
"Transfer" shall mean and include the act of selling,
giving, transferring, creating a trust (voting or otherwise), assigning or
otherwise disposing of (other than pledging, hypothecating or otherwise
transferring as security) (and correlative words shall have correlative
meanings); provided however, that any transfer or other disposition upon
foreclosure or other exercise of remedies of a secured creditor after an event
of default under or with respect to a pledge, hypothecation or other transfer as
security shall constitute a "Transfer."
"Underwriters' Representative" shall mean the
managing underwriter, or, in the case of a co-managed underwriting, the managing
underwriter designated as the Underwriters' Representative by the co-managers.
"Violation" shall have the meaning set forth in
Section 7.1.
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<PAGE>
1.2. Usage.
(i) When a reference is made in this Agreement to a
Section, Schedule, Annex or Exhibit, such reference shall be to a Section,
Schedule, Annex or Exhibit of this Agreement unless otherwise indicated or
unless the context otherwise requires.
(ii) The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
(iii) Whenever the words "include," "includes" or
"including" are used in this Agreement, they shall be deemed to be followed by
the words "without limitation."
(iv) References to a Person are also references to
its assigns and successors in interest (by means of merger, consolidation or
sale of all or substantially all the assets of such Person or otherwise, as the
case may be).
(v) References to a document are to such document as
amended, waived and otherwise modified from time to time and references to a
statute or other governmental rule are to such statute or rule as amended and
otherwise modified from time to time (and references to any provision thereof
shall include references to any successor provision).
(vi) The definitions set forth herein are equally
applicable both to the singular and plural forms and the feminine, masculine and
neuter forms of the terms defined.
(vii) The term "hereof" and similar terms refer to
this Agreement as a whole.
(viii) References to Registrable Securities "owned"
by a Holder shall include Registrable Securities beneficially owned by such
Person but which are held of record in the name of a nominee, trustee,
custodian, or other agent, but shall exclude shares of Common Stock held by a
Holder in a fiduciary capacity for customers of such Person.
(ix) The "date of" any notice or request given
pursuant to this Agreement shall be determined in accordance with Section 13.2.
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<PAGE>
Section 2. Demand Registration.
2.1.
(i) At any time on or after the date six months after
the date hereof , if one or more Holders that own an aggregate of 51% or more of
the Registrable Securities then outstanding shall make a written request to the
Company (the "Demanding Holders"), the Company shall cause there to be filed
with the Commission a registration statement meeting the requirements of the
Securities Act (a "Demand Registration"), and each Demanding Holder shall be
entitled to have included therein (subject to Section 2.7) all or such number of
such Demanding Holder's Registered Shares, as the Demanding Holder shall report
in writing; provided, however, that no request may be made pursuant to this
Section 2.1 if within nine (9) months prior to the date of such request a Demand
Registration Statement pursuant to this Section 2.1 shall have been declared
effective by the Commission. Any request made pursuant to this Section 2.1 shall
be addressed to the attention of the Secretary of the Company, and shall specify
the number of Registrable Securities to be registered, the intended methods of
disposition thereof and that the request is for a Demand Registration pursuant
to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up
to ninety (90) days the filing of any Demand Registration statement otherwise
required to be prepared and filed pursuant to this Section 2.1, if the Board
determines, in its good faith reasonable judgment (with the concurrence of the
managing underwriter, if any), that such registration and the Transfer of
Registrable Securities contemplated thereby would materially interfere with, or
require premature disclosure of, any financing, acquisition or reorganization
involving the Company or any of its wholly owned subsidiaries and the Company
promptly gives the Demanding Holders notice of such determination; provided,
however, that the Company shall not have postponed pursuant to this Section
2.1(ii) the filing of any other Demand Registration statement otherwise required
to be prepared and filed pursuant to this Section 2.1 during the twelve (12)
month period ended on the date of the relevant request pursuant to Section
2.1(i).
(iii) Whenever the Company shall have received a
demand pursuant to Section 2.1(i) to effect the registration of any Registrable
Shares, the Company shall promptly give written notice of such proposed
registration to all other Holders. Any such Holder may, within twenty (20) days
after receipt of such notice, request in writing that all of such Holder's
Registrable Shares, or any portion thereof designated by such Holder, be
included in the registration.
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<PAGE>
2.2. On or after the date of this Agreement each
Substantial Holder that shall make a written request to the Company (the
"Initiating Substantial Holder"), shall be entitled to have all or any number of
such Initiating Substantial Holder's Registrable Securities included in a
registration with the Commission in accordance with the Securities Act for an
offering on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act (a "Shelf Registration"). Any request made pursuant to this
Section 2.2 shall be addressed to the attention of the Secretary of the Company,
and shall specify the number of Registrable Securities to be registered, the
intended methods of disposition thereof and that the request is for a Shelf
Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand
Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the
Commission as promptly as practicable, and shall use the Company's best efforts
to have the registration declared effective under the Securities Act as soon as
reasonably practicable, in each instance giving due regard to the need to
prepare current financial statements, conduct due diligence and complete other
actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company's best efforts to keep the
relevant registration statement Continuously Effective (x) if a Demand
Registration, for up to ninety (90) days or until such earlier date as of which
all the Registrable Securities under the Demand Registration statement shall
have been disposed of in the manner described in the Registration Statement, and
(y) if a Shelf Registration, for three (3) years. Notwithstanding the foregoing,
if for any reason the effectiveness of a registration pursuant to this Section 2
is suspended or, in the case of a Demand Registration, postponed as permitted by
Section 2.1(ii), the foregoing period shall be extended by the aggregate number
of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more
than four Demand Registrations and such number of Shelf Registrations as may be
necessary to provide each and every Substantial Holder with the right to request
one Shelf Registration. For purposes of the preceding sentence, registration
shall not be deemed to have been effected (i) unless a registration statement
with respect thereto has become effective, (ii) if after such registration
statement has become effective, such registration or the related offer, sale or
distribution of Registrable Securities thereunder is interfered with by any stop
order, injunction or other order or requirement of the Commission or other
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<PAGE>
governmental agency or court for any reason not attributable to the Selling
Holders and such interference is not thereafter eliminated, or (iii) if the
conditions to closing specified in the underwriting agreement, if any, entered
into in connection with such registration are not satisfied or waived, other
than by reason of a failure on the part of the Selling Holders. If the Company
shall have complied with its obligations under this Agreement, a right to demand
a registration pursuant to this Section 2 shall be deemed to have been satisfied
(i) if a Demand Registration, upon the earlier of (x) the date as of which all
of the Registrable Securities included therein shall have been disposed of
pursuant to the Registration Statement, and (y) the date as of which such Demand
Registration shall have been Continuously Effective for a period of ninety (90)
days, and (ii) if a Shelf Registration, upon the effective date of a Shelf
Registration, provided no stop order or similar order, or proceedings for such
an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall
be on such appropriate registration form of the Commission as shall (i) be
selected by the Company and be reasonably acceptable to the Majority Selling
Holders, or by the Initiating Substantial Holder, as the case may be, and (ii)
permit the disposition of the Registrable Securities in accordance with the
intended method or methods of disposition specified in the request pursuant to
Section 2.1(i) or Section 2.2, respectively.
2.6. If any registration pursuant to Section 2
involves an underwritten offering (whether on a "firm", "best efforts" or "all
reasonable efforts" basis or otherwise), or an agented offering, the Company,
shall have the right to select the underwriter or underwriters and manager or
managers to administer such underwritten offering or the placement agent or
agents for such agented offering; provided, however, that each Person so
selected shall be reasonably acceptable to the Majority Selling Holders, or the
Initiating Substantial Holder, as the case may be.
2.7. Whenever the Company shall effect a registration
pursuant to this Section 2 in connection with an underwritten offering by one or
more Selling Holders of Registrable Securities: (i) if such Selling Holders have
requested the inclusion therein of more than one class of Registrable
Securities, and the Underwriters' Representative or Agent advises each such
Selling Holder in writing that, in its opinion, the inclusion of more than one
class of Registrable Securities would adversely affect such offering, the
Demanding Holders holding at least a majority of the Registrable Securities
(determined by the relative market value as of the date on which a timely demand
is last received from Holder) proposed to be sold therein by them, shall decide
which class of Registrable Securities shall be included
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<PAGE>
therein in such offering and the related registration, and the other class shall
be excluded; and (ii) if the Underwriters' Representative or Agent advises each
such Selling Holder in writing that, in its opinion, the amount of securities
requested to be included in such offering (whether by Selling Holders or others)
exceeds the amount which can be sold in such offering within a price range
acceptable to the Majority Selling Holders, securities shall be included in such
offering and the related registration, to the extent of the amount which can be
sold within such price range, and on a pro rata basis among all Selling Holders;
first for the account of the Substantial Holders, and second by all other
Selling Holders.
Section 3. Piggyback Registration.
3.1. If at any time during the term of this Agreement
the Company proposes to register (including for this purpose a registration
effected by the Company for shareholders of the Company other than the Holders)
securities under the Securities Act in connection with the public offering
solely for cash on Form S-1, S-2 or S-3 (or any replacement or successor forms),
the Company shall promptly give each Holder written notice of such registration
(a "Piggyback Registration"). Upon the written request of each Holder given
within 20 days following the date of such notice, the Company shall cause to be
included in such registration statement and use its best efforts to be
registered under the Securities Act all the Registrable Securities that each
such Holder shall have requested to be registered. The Company shall have the
absolute right to withdraw or cease to prepare or file any registration
statement for any offering referred to in this Section 3 without any obligation
or liability to any Holder.
3.2. If the Underwriters' Representative or Agent
shall advise the Company in writing (with a copy to each Selling Holder) that,
in its opinion, the amount of Registrable Securities requested to be included in
such registration would materially adversely affect such offering, or the timing
thereof, then the Company will include in such registration, to the extent of
the amount and class which the Company is so advised can be sold without such
material adverse effect in such offering: First, all securities proposed to be
sold by the Company for its own account; second, the Registrable Securities
requested to be included in such registration by Holders pursuant to this
Section 3, and all other securities being registered pursuant to the exercise of
contractual rights comparable to the rights granted in this Section 3, pro rata
based on the estimated gross proceeds from the sale thereof; provided, however,
that the Registrable Securities that have been requested to be registered shall
not be reduced below 20% of the shares included in such registration unless such
action is
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<PAGE>
necessary to avoid a material adverse effect on the Company taken as a whole.
3.3. Each Holder shall be entitled to have its
Registrable Securities included in an unlimited number of Piggyback
Registrations pursuant to this Section 3.
3.4. If the Corporation has previously filed a
registration statement with respect to Registerable Securities pursuant to
Section 2 or pursuant to this Section 3, and if such previous registration has
not been withdrawn or abandoned, the Corporation will not file or cause to be
effected any other registration of any of its equity securities or securities
convertible or exchangeable into or exercisable for its equity securities under
the Securities Act (except on Form S-8 or any successor form), whether on its
own behalf or at the request of any holder or holders of such securities, until
a period of 180 days has elapsed from the effective date of such a previous
registration.
Section 4. Registration Procedures. Whenever required under
Section 2 or Section 3 to effect the registration of any Registrable Securities,
the Company shall, as expeditiously as practicable:
4.1. Prepare and file with the Commission a
registration statement with respect to such Registrable Securities and use the
Company's best efforts to cause such registration statement to become effective;
provided, however, that before filing a registration statement or prospectus or
any amendments or supplements thereto, including documents incorporated by
reference after the initial filing of the registration statement and prior to
effectiveness thereof, the Company shall furnish to one firm of counsel for the
Selling Holders (selected by Majority Selling Holders or the Initiating
Substantial Holder, as the case may be) copies of all such documents in the form
substantially as proposed to be filed with the Commission at least four (4)
business days prior to filing for review and comment by such counsel, which
opportunity to comment shall include an absolute right to control or contest
disclosure if the applicable Selling Holder reasonably believes that it may be
subject to controlling person liability under applicable securities laws with
respect thereto.
4.2. Prepare and file with the Commission such
amendments and supplements to such registration statement and the prospectus
used in connection with such registration statement as may be necessary to
comply with the provisions of the Securities Act and rules thereunder with
respect to the disposition of all securities covered by such registration
statement. If the registration is for an underwritten offering, the Company
shall
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<PAGE>
amend the registration statement or supplement the prospectus whenever required
by the terms of the underwriting agreement entered into pursuant to Section 5.2.
Subject to Rule 415 under the Securities Act, if the registration statement is a
Shelf Registration, the Company shall amend the registration statement or
supplement the prospectus so that it will remain current and in compliance with
the requirements of the Securities Act for three years after its effective date,
and if during such period any event or development occurs as a result of which
the registration statement or prospectus contains a misstatement of a material
fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, the Company shall
promptly notify each Selling Holder, amend the registration statement or
supplement the prospectus so that each will thereafter comply with the
Securities Act and furnish to each Selling Holder of Registerable Shares such
amended or supplemented prospectus, which each such Holder shall thereafter use
in the Transfer of Registerable Shares covered by such registration statement.
Pending such amendment or supplement each such Holder shall cease making offers
or Transfers of Registerable Shares pursuant to the prior prospectus. In the
event that any Registrable Securities included in a registration statement
subject to, or required by, this Agreement remain unsold at the end of the
period during which the Company is obligated to use its best efforts to maintain
the effectiveness of such registration statement, the Company may file a
post-effective amendment to the registration statement for the purpose of
removing such Securities from registered status.
4.3. Furnish to each Selling Holder of Registrable
Securities, without charge, such numbers of copies of the registration
statement, any pre-effective or post-effective amendment thereto, the
prospectus, including each preliminary prospectus and any amendments or
supplements thereto, in each case in conformity with the requirements of the
Securities Act and the rules thereunder, and such other related documents as any
such Selling Holder may reasonably request in order to facilitate the
disposition of Registrable Securities owned by such Selling Holder.
4.4. Use the Company's best efforts (i) to register
and qualify the securities covered by such registration statement under such
other securities or Blue Sky laws of such states or domestic jurisdictions as
shall be reasonably requested by the Underwriters' Representative or Agent (as
applicable, or if inapplicable, the Majority Selling Holders), and (ii) to
obtain the withdrawal of any order suspending the effectiveness of a
registration statement, or the lifting of any suspension of the qualification
(or exemption from qualification) of the offer and transfer of any of the
Registrable Securities in any jurisdiction, at the earliest possible moment;
provided, however, that the
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Company shall not be required in connection therewith or as a condition thereto
to qualify to do business or to file a general consent to service of process in
any such states or jurisdictions.
4.5. In the event of any underwritten or agented
offering, enter into and perform the Company's obligations under an underwriting
or agency agreement (including indemnification and contribution obligations of
underwriters or agents), in usual and customary form, with the managing
underwriter or underwriters of or agents for such offering. The Company shall
also cooperate with the Majority Selling Holders or Initiating Substantial
Holder, as the case may be, and the Underwriters' Representative or Agent for
such offering in the marketing of the Registerable Shares, including making
available the Company's officers, accountants, counsel, premises, books and
records for such purpose.
4.6. Promptly notify each Selling Holder of any stop
order issued or threatened to be issued by the Commission in connection
therewith (and take all reasonable actions required to prevent the entry of such
stop order or to remove it if entered.
4.7. Make generally available to the Company's
security holders copies of all periodic reports, proxy statements, and other
information referred to in Section 10.1 and an earnings statement satisfying the
provisions of Section 11(a) of the Securities Act no later than 90 days
following the end of the 12-month period beginning with the first month of the
Company's first fiscal quarter commencing after the effective date of each
registration statement filed pursuant to this Agreement.
4.8. Make available for inspection by any Selling
Holder, any underwriter participating in such offering and the representatives
of such Selling Holder and underwriter (but not more than one firm of counsel to
such Selling Holders), all financial and other information as shall be
reasonably requested by them, and provide the Selling Holder, any underwriter
participating in such offering and the representatives of such Selling Holder
and underwriter the opportunity to discuss the business affairs of the Company
with its appropriate officers and independent public accountants who have
certified the audited financial statements included in such registration
statement, in each case all as necessary to enable them to exercise their due
diligence responsibility under the Securities Act; provided, however, that
information that the Company determines, in good faith, to be confidential and
which the Company advises such Person in writing, is confidential shall not be
disclosed unless such Person signs a confidentiality agreement reasonably
satisfactory to the Company or the related Selling Holder of Registrable
Securities agrees to be responsible for such Person's breach of confidentiality
on terms reasonably satisfactory to the Company.
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4.9. Use the Company's best efforts to obtain a
so-called "comfort letter" from its independent public accountants, and legal
opinions of counsel to the Company addressed to the Selling Holders, in
customary form and covering such matters of the type customarily covered by such
letters, and in a form that shall be reasonably satisfactory to Majority Selling
Holders or the Initiating Substantial Holder, as the case be. The Company shall
furnish to each Selling Holder a signed counterpart of any such comfort letter
or legal opinion. Delivery of any such opinion or comfort letter shall be
subject to the recipient furnishing such written representations or
acknowledgments as are customarily provided by selling shareholders who receive
such comfort letters or opinions.
4.10. Provide and cause to be maintained a transfer
agent and registrar for all Registrable Securities covered by such registration
statement from and after a date not later than the effective date of such
registration statement.
4.11. Use all reasonable efforts to cause the
Registrable Securities covered by such registration statement (i) if the Common
Stock is then listed on a securities exchange or included for quotation in a
recognized trading market, to continue to be so listed or included for a
reasonable period of time after the offering, and (ii) to be registered with or
approved by such other United States or state governmental agencies or
authorities as may be necessary by virtue of the business and operations of the
Company to enable the Selling Holders of Registrable Securities to consummate
the disposition of such Registrable Securities.
4.12. Use the Company's reasonable efforts to provide
a CUSIP number for the Registrable Securities prior to the effective date of the
first registration statement including Registrable Securities.
4.13. Take such other actions as are reasonably
required in order to expedite or facilitate the disposition of Registrable
Securities included in each such registration.
Section 5. Holders' Obligations. It shall be a condition
precedent to the obligations of the Company to take any action pursuant to this
Agreement with respect to the Registrable Securities of any Selling Holder of
Registrable Securities that such Selling Holder shall:
5.1. Furnish to the Company such information
regarding such Selling Holder, the number of the Registrable Securities owned by
it, and the intended method of disposition of such securities as shall be
required to effect the registration of
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such Selling Holder's Registrable Securities, and to cooperate with the Company
in preparing such registration;
5.2. Agree to sell their Registrable Securities to
the underwriters at the same price and on substantially the same terms and
conditions as the Company or the other Persons on whose behalf the registration
statement was being filed have agreed to sell their securities, and to execute
the underwriting agreement agreed to by the Majority Selling Holders (in the
case of a registration under Section 2) or the Company and the Majority Selling
Holders (in the case of a registration under Section 3).
Section 6. Expenses of Registration. Expenses in connection
with registrations pursuant to this Agreement shall be allocated and paid as
follows:
6.1. With respect to each Demand Registration and
Shelf Registration, the Company shall bear and pay all expenses incurred in
connection with any registration, filing, or qualification of Registrable
Securities with respect to such Demand Registrations for each Selling Holder
(which right may be assigned to any Person to whom Registrable Securities are
Transferred as permitted by Section 9), including all registration, filing and
National Association of Securities Dealers, Inc. fees, all fees and expenses of
complying with securities or blue sky laws, all word processing, duplicating and
printing expenses, messenger and delivery expenses, the reasonable fees and
disbursements of counsel for the Company, and of the Company's independent
public accountants, including the expenses of "cold comfort" letters required by
or incident to such performance and compliance (the "Registration Expenses"),
but excluding underwriting discounts and commissions relating to Registrable
Securities and any fees and disbursements of counsel for the Selling Holders
which shall be selected by the Majority Selling Holders (which shall be paid on
a pro rata basis by the Selling Holders) provided, however, that the Company
shall not be required to pay for any expenses of any registration proceeding
begun pursuant to Section 2 if the registration is subsequently withdrawn at the
request of the Majority Selling Holders (in which case all Selling Holders shall
bear such expense), unless Holders whose Registrable Securities constitute a
majority of the Registrable Securities then outstanding agree that such
withdrawn registration shall constitute one of the demand registrations under
Section 2 hereof.
6.2. The Company shall bear and pay all Registration
Expenses incurred in connection with any Piggyback Registrations pursuant to
Section 3 for each Selling Holder (which right may be Transferred to any Person
to whom Registrable Securities are Transferred as permitted by Section 8), but
excluding underwriting discounts and commissions relating to
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Registrable Securities and any fees and disbursements of counsel for the Selling
Holders (which shall be paid on a pro rata basis by the Selling Holders of
Registrable Securities).
6.3. Any failure of the Company to pay any
Registration Expenses as required by this Section 6 shall not relieve the
Company of its obligations under this Agreement.
Section 7. Indemnification; Contribution. If any Registrable
Securities are included in a registration statement under this Agreement:
7.1. To the extent permitted by applicable law, the
Company shall indemnify and hold harmless each Selling Holder, each Person, if
any, who controls such Selling Holder within the meaning of the Securities Act,
and each officer, director, partner, and employee of such Selling Holder and
such controlling Person, against any and all losses, claims, damages,
liabilities and reasonable expenses (joint or several), including reasonable
attorneys' fees and disbursements and expenses of investigation, incurred by
such party pursuant to any actual or threatened action, suit, proceeding or
investigation, or to which any of the foregoing Persons may become subject under
the Securities Act, the Exchange Act or other federal or state laws, insofar as
such losses, claims, damages, liabilities and reasonable expenses arise out of
or are based upon any of the following statements, omissions or violations
(collectively a "Violation"):
(i) Any untrue statement or alleged untrue statement
of a material fact contained in such registration statement, including any
preliminary prospectus or final prospectus contained therein, or any amendments
or supplements thereto;
(ii) The omission or alleged omission to state
therein a material fact required to be stated therein, or necessary to make the
statements therein not misleading; or
(iii) Any violation or alleged violation by the
Company of the Securities Act, the Exchange Act, any applicable state securities
law or any rule or regulation promulgated under the Securities Act, the Exchange
Act or any applicable state securities law; provided, however, that the
indemnification required by this Section 7.1 shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or expense if such
settlement is effected without the consent of the Company, nor shall the Company
be liable in any such case for any such loss, claim, damage, liability or
expense to the extent that it arises out of or is based upon a Violation which
occurs in reliance upon and in conformity with written information furnished to
the Company by the indemnified party expressly for use in connection
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with such registration; provided, further, that the indemnity agreement
contained in this Section 7 shall not apply to any underwriter to the extent
that any such loss is based on or arises out of an untrue statement or alleged
untrue statement of a material fact, or an omission or alleged omission to state
a material fact, contained in or omitted from any preliminary prospectus if the
final prospectus shall correct such untrue statement or alleged untrue
statement, or such omission or alleged omission, and a copy of the final
prospectus has not been sent or given to such person at or prior to the
confirmation of sale to such person if such underwriter was under an obligation
to deliver such final prospectus and failed to do so. The Company shall also
indemnify the Selling Holders against claims asserted by underwriters, selling
brokers, dealer managers and similar securities industry professionals
participating in the distribution, their officers, directors, agents and
employees and each person who controls such persons (within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same
extent as provided above with respect to the indemnification of the Selling
Holders.
7.2. To the extent permitted by applicable law, each
Selling Holder shall indemnify and hold harmless the Company, each of its
directors, each of its officers who shall have signed the registration
statement, each Person, if any, who controls the Company within the meaning of
the Securities Act, any other Selling Holder, any controlling Person of any such
other Selling Holder and each officer, director, partner, and employee of such
other Selling Holder and such controlling Person, against any and all losses,
claims, damages, liabilities and expenses (joint and several), including
attorneys' fees and disbursements and expenses of investigation, incurred by
such party pursuant to any actual or threatened action, suit, proceeding or
investigation, or to which any of the foregoing Persons may otherwise become
subject under the Securities Act, the Exchange Act or other federal or state
laws, insofar as such losses, claims, damages, liabilities and expenses arise
out of or are based upon any Violation, in each case to the extent (and only to
the extent) that such Violation occurs in reliance upon and in conformity with
written information furnished by such Selling Holder expressly for use in
connection with such registration; provided, however, that (x) the
indemnification required by this Section 7.2 shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or expense if settlement
is effected without the consent of the relevant Selling Holder of Registrable
Securities, and (y) in no event shall the amount of any indemnity under this
Section 7.2 exceed the gross proceeds from the applicable offering received by
such Selling Holder.
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7.3. Promptly after receipt by an indemnified party
under this Section 7 of notice of the commencement of any action, suit,
proceeding, investigation or threat thereof made in writing for which such
indemnified party may make a claim under this Section 7, such indemnified party
shall deliver to the indemnifying party a written notice of the commencement
thereof and the indemnifying party shall have the right to participate in, and,
to the extent the indemnifying party so desires, jointly with any other
indemnifying party similarly noticed, to assume the defense thereof with counsel
mutually satisfactory to the parties. The failure to deliver written notice to
the indemnifying party within a reasonable time following the commencement of
any such action, if prejudicial to its ability to defend such action, shall
relieve such indemnifying party of any liability to the indemnified party under
this Section 7 but shall not relieve the indemnifying party of any liability
that it may have to any indemnified party otherwise than pursuant to this
Section 7. Any fees and expenses incurred by the indemnified party (including
any fees and expenses incurred in connection with investigating or preparing to
defend such action or proceeding) shall be paid to the indemnified party, as
incurred, within thirty (30) days of written notice thereof to the indemnifying
party; provided, however, that such notice is accompanied by an appropriate
undertaking of the indemnified party to reimburse the indemnifying party to the
extent it is ultimately determined that such party is not entitled to
indemnification. Any such indemnified party shall have the right to employ
separate counsel in any such action, claim or proceeding and to participate in
the defense thereof, but the fees and expenses of such counsel shall be the
expenses of such indemnified party unless (i) the indemnifying party has agreed
to pay such fees and expenses or (ii) the indemnifying party shall have failed
to promptly assume the defense of such action, claim or proceeding. No
indemnifying party shall be liable to an indemnified party for any settlement of
any action, proceeding or claim without the written consent of the indemnifying
party, which consent shall not be unreasonably withheld.
7.4. If the indemnification required by this Section
7 from the indemnifying party is unavailable to an indemnified party hereunder
in respect of any losses, claims, damages, liabilities or expenses referred to
in this Section 7:
(i) The indemnifying party, in lieu of indemnifying
such indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities or
expenses in such proportion as is appropriate to reflect the relative fault of
the indemnifying party and indemnified parties in connection with the actions
which resulted in such losses, claims, damages, liabilities or expenses, as well
as any other relevant equitable considerations. The
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relative fault of such indemnifying party and indemnified parties shall be
determined by reference to, among other things, whether any Violation has been
committed by, or relates to information supplied by, such indemnifying party or
indemnified parties, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such Violation. The amount
paid or payable by a party as a result of the losses, claims, damages,
liabilities and expenses referred to above shall be deemed to include, subject
to the limitations set forth in Section 7.1 and Section 7.2, any legal or other
fees or expenses reasonably incurred by such party in connection with any
investigation or proceeding.
(ii) The parties hereto agree that it would not be
just and equitable if contribution pursuant to this Section 7.4 were determined
by pro rata allocation or by any other method of allocation which does not take
into account the equitable considerations referred to in Section 7.4(i). 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.
7.5. If indemnification is available under this
Section 7, the indemnifying parties shall indemnify each indemnified party to
the full extent provided in this Section 8 without regard to the relative fault
of such indemnifying party or indemnified party or any other equitable
consideration referred to in Section 7.4.
7.6. The obligations of the Company and the Selling
Holders of Registrable Securities under this Section 7 shall survive the
completion of any offering of Registrable Securities pursuant to a registration
statement under this Agreement, and otherwise.
Section 8. Transfer of Registration Rights. Subject to
restrictions in the Investor Agreement on the right to transfer the Shares,
rights with respect to Registrable Securities may be Transferred as follows: (i)
the rights of the Holder and any subsequent Substantial Holder to require a
Shelf Registration pursuant to Section 2.2 may be Transferred to any Person in
connection with the Transfer to such Person by such Substantial Holder of a
number of Registrable Securities equal to 15% or more of the Registrable
Securities outstanding on the date of this Agreement, and (ii) all other rights
of the Holder and any subsequent Holder with respect to Registrable Securities
pursuant to this Agreement may be Transferred by such Holder to any Person in
connection with the Transfer of Registrable Securities to such Person, in all
cases, if (x) any such Transferee that is not a party to this Agreement shall
have executed and delivered to the
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Secretary of the Company a properly completed agreement substantially in the
form of Exhibit A, and (y) the Transferor shall have delivered to the Secretary
of the Company, no later than 15 days following the date of the Transfer,
written notification of such Transfer setting forth the name of the Transferor,
name and address of the Transferee, and the number of Registrable Securities
which shall have been so Transferred.
Section 9. Holdback. Each Holder entitled pursuant to this
Agreement to have Registrable Securities included in a registration statement
prepared pursuant to this Agreement, if so requested by the Underwriters'
Representative or Agent in connection with an offering of any Registrable
Securities, shall not effect any public sale or distribution of shares of Common
Stock or any securities convertible into or exchangeable or exercisable for
shares of Common Stock, including a sale pursuant to Rule 144 under the
Securities Act (except as part of such underwritten or agented registration),
during the five (5) day period prior to, and during the ninety (90) day period
beginning on, the date such registration statement is declared effective under
the Securities Act by the Commission, provided that such Holder is timely
notified of such effective date in writing by the Company or such Underwriters'
Representative or Agent. In order to enforce the foregoing covenant, the Company
shall be entitled to impose stop-transfer instructions with respect to the
Registrable Securities of each Holder until the end of such period.
Section 10. Covenants of the Company. The Company hereby
agrees and covenants as follows:
10.1. The Company shall file as and when applicable,
on a timely basis, all reports required to be filed by it under the Exchange
Act. If the Company is not required to file reports pursuant to the Exchange
Act, upon the request of any Holder of Registrable Securities, the Company shall
make publicly available the information specified in subparagraph (c)(2) of Rule
144 of the Securities Act, and take such further action as may be reasonably
required from time to time and as may be within the reasonable control of the
Company, to enable the Holders to Transfer Registrable Securities without
registration under the Securities Act within the limitation of the exemptions
provided by Rule 144 under the Securities Act or any similar rule or regulation
hereafter adopted by the Commission.
10.2. (i) The Company shall not, and shall not permit
its majority owned subsidiaries to, effect any public sale or distribution of
any shares of Common Stock or any securities convertible into or exchangeable or
exercisable for shares of Common Stock, during the five business days prior to,
and during the 90-day period beginning on, the commencement of a public
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distribution of the Registrable Securities pursuant to any registration
statement prepared pursuant to this Agreement (other than by the Company
pursuant to such registration if the registration is pursuant to Section 3). The
Company shall not effect any registration of its securities (other than on Form
S-4, Form S-8, or any successor forms to such forms or pursuant to such other
registration rights agreements as may be approved in writing by the Majority
Selling Holders or the Initiating Substantial Holder, as the case may be, or
effect any public or private sale or distribution of any of its securities,
including a sale pursuant to Regulation D under the Securities Act, whether on
its own behalf or at the request of any holder or holders of such securities
from the date of a request for a Demand Registration pursuant to Section 2.1
until the earlier of (x) 90 days following the date as of which all securities
covered by such Demand Registration Statement shall have been Transferred, and
(y) one hundred eighty (180) days following the effective date of such Demand
Registration statement, unless the Company shall have previously notified in
writing all Selling Holders of the Company's desire to do so, and Selling
Holders owning a majority of the Registrable Securities or the Underwriters'
Representative, if any, shall have consented thereto in writing.
(ii) Any agreement entered into after the date of
this Agreement pursuant to which the Company or any of its majority owned
subsidiaries issues or agrees to issue any privately placed securities similar
to any issue of the Registrable Securities (other than (x) shares of Common
Stock pursuant to a stock incentive, stock option, stock bonus, stock purchase
or other employee benefit plan of the Company approved by its Board of
Directors, and (y) securities issued to Persons in exchange for ownership
interests in any Person in connection with a business combination in which the
Company or any of its majority owned subsidiaries is a party) shall contain a
provision whereby holders of such securities agree not to effect any public sale
or distribution of any such securities during the periods described in the first
sentence of Section 10.2(i), in each case including a sale pursuant to Rule 144
under the Securities Act (unless such Person is prevented by applicable statute
or regulation from entering into such an agreement).
10.3. The Company shall not, directly or indirectly,
(x) enter into any merger, consolidation or reorganization in which the Company
shall not be the surviving corporation or (y) Transfer or agree to Transfer all
or substantially all the Company's assets, unless prior to such merger,
consolidation, reorganization or asset Transfer, the surviving corporation or
the Transferee, respectively, shall have agreed in writing to assume the
obligations of the Company under this Agreement, and for that purpose references
hereunder to
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"Registrable Securities" shall be deemed to include the securities which the
Holders of Registrable Securities would be entitled to receive in exchange for
Registrable Securities pursuant to any such merger, consolidation or
reorganization.
Section 11. Amendment, Modification and Waivers; Further
Assurances.
(i) This Agreement may be amended with the consent of
the Company and the Company may take any action herein prohibited, or omit to
perform any act herein required to be performed by it, only if the Company shall
have obtained the written consent of Holders owning Registrable Securities
possessing a majority in number of the Registrable Securities then outstanding
to such amendment, action or omission to act.
(ii) No waiver of any terms or conditions of this
Agreement shall operate as a waiver of any other breach of such terms and
conditions or any other term or condition, nor shall any failure to enforce any
provision hereof operate as a waiver of such provision or of any other provision
hereof. No written waiver hereunder, unless it by its own terms explicitly
provides to the contrary, shall be construed to effect a continuing waiver of
the provisions being waived and no such waiver in any instance shall constitute
a waiver in any other instance or for any other purpose or impair the right of
the party against whom such waiver is claimed in all other instances or for all
other purposes to require full compliance with such provision.
(iii) Each of the parties hereto shall execute all
such further instruments and documents and take all such further action as any
other party hereto may reasonably require in order to effectuate the terms and
purposes of this Agreement.
Section 12. Assignment; Benefit. This Agreement and all of the
provisions hereof shall be binding upon and shall inure to the benefit of the
parties hereto and their respective heirs, assigns, successors, transferees,
heirs, executors, administrators or personal representatives; provided, however,
that except as specifically provided herein with respect to certain matters,
neither this Agreement nor any of the rights, interests or obligations hereunder
shall be assigned or delegated by the Company without the prior written consent
of Holders owning Registrable Securities possessing a majority in number of the
Registrable Securities outstanding on the date as of which such delegation or
assignment is to become effective. A Holder may Transfer its rights hereunder to
a successor in interest to the Registrable Securities owned by such assignor
only as permitted by Section 8.
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Section 13. Miscellaneous.
13.1. Governing Law. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE,
REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES
OF CONFLICT OF LAWS.
13.2. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed given if delivered personally,
sent by overnight courier (with delivery confirmed) or telecopied (with a
confirmatory copy sent by overnight courier) to the parties at the following
addresses (or at such other address for a party as shall be specified by like
notice):
(a) if to Parent or Sub, to:
VoiceStream Wireless Holding Corporation
3650 131st Avenue SE, Suite 400
Bellevue, WA 98006
Attn: General Counsel
Telecopy No.: 425-586-8080
with a copy to:
Preston Gates & Ellis LLP
5000 Columbia Center
701 Fifth Avenue
Seattle, WA 98104
Attn: Richard B. Dodd, Esq.
Telecopy No.: 206-623-7022
(b) if to the original Holder, to:
Sonera Ltd.
Teollisuuskatu 15
P.O. Box 106, FIN-00051
Helsinki, Finland
Attn: Maire Laitinen, General Counsel
Telecopy No.: 011-358-2040-3414
With a copy (which shall not constitute notice)to:
Patton Boggs LLP
2550 M St., N.W.
Washington, D.C. 20037
Attn: Richard M. Stolbach
Telecopy No.: 202-457-6315
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In the event of a Transfer of any Registrable
Securities, notices given pursuant to this Agreement to a subsequent Holder
shall be delivered to the relevant address specified in the relevant agreement
in the form of Exhibit A whereby such Holder became bound by the provisions of
this Agreement.
Except as otherwise provided in this Agreement, the
date of each such notice and request shall be deemed to be, and the date on
which each such notice and request shall be deemed given shall be: at the time
delivered, if personally delivered or mailed; when receipt is acknowledged, if
sent by telecopy; and the next business day after timely delivery to the
courier, if sent by overnight air courier guaranteeing next business day
delivery.
13.3. Entire Agreement; Integration. This Agreement
supersedes all prior agreements between or among any of the parties hereto with
respect to the subject matter contained herein and therein, and such agreements
embody the entire understanding among the parties relating to such subject
matter.
13.4. Injunctive Relief. Each of the parties hereto
acknowledges that in the event of a breach by any of them of any material
provision of this Agreement, the aggrieved party may be without an adequate
remedy at law. Each of the parties therefore agrees that in the event of such a
breach hereof the aggrieved party may elect to institute and prosecute
proceedings in any court of competent jurisdiction to enforce specific
performance or to enjoin the continuing breach hereof. By seeking or obtaining
any such relief, the aggrieved party shall not be precluded from seeking or
obtaining any other relief to which it may be entitled.
13.5. Section Headings. Section headings are for
convenience of reference only and shall not affect the meaning of any provision
of this Agreement.
13.6. Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be an original, and all of which
shall together constitute one and the same instrument. All signatures need not
be on the same counterpart.
13.7. Severability. If any provision of this
Agreement shall be invalid or unenforceable, such invalidity or unenforceability
shall not affect the validity and enforceability of the remaining provisions of
this Agreement, unless the result thereof would be unreasonable, in which case
the parties hereto shall negotiate in good faith as to appropriate amendments
hereto.
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13.8. Filing. A copy of this Agreement and of all
amendments thereto shall be filed at the principal executive office of the
Company with the corporate recorder of the Company.
13.9. Termination. This Agreement may be terminated
at any time by a written instrument signed by the parties hereto. Unless sooner
terminated in accordance with the preceding sentence, this Agreement (other than
Section 7 hereof) shall terminate in its entirety on such date as there shall be
no Registrable Securities outstanding, provided that any shares of Common Stock
previously subject to this Agreement shall not be Registrable Securities
following the sale of any such shares in an offering registered pursuant to this
Agreement; and provided further, that a Holder shall cease to be a Holder under
this Agreement for all purposes if such Holder (i) is provided with an opinion
of counsel of the Company which is reasonably satisfactory to Holder to the
effect that such Holder may sell all of the Registrable Securities without
registration under the Securities Act and (ii) enters into an agreement with the
Company pursuant to which the Company agrees remove all legends and "stop
transfers" relating to such Registrable Securities.
13.10. Attorneys' Fees. In any action or proceeding
brought to enforce any provision of this Agreement, or where any provision
hereof is validly asserted as a defense, the successful party shall be entitled
to recover reasonable attorneys' fees (including any fees incurred in any
appeal) in addition to its costs and expenses and any other available remedy.
13.11. No Third Party Beneficiaries. Nothing herein
expressed or implied is intended to confer upon any person, other than the
parties hereto or their respective permitted assigns, successors, heirs and
legal representatives, any rights, remedies, obligations or liabilities under or
by reason of this Agreement.
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<PAGE>
IN WITNESS WHEREOF, this Agreement has been duly executed by
the parties hereto as of the date first written above.
VOICESTREAM WIRELESS HOLDING CORPORATION
By:
------------------------------------
Name:
Title:
SONERA CORPORATION
By:
------------------------------------
Name:
Title:
SONERA HOLDING B.V.
By:
------------------------------------
Name:
Title:
SIGNATURE PAGE TO
REGISTRATION RIGHTS AGREEMENT
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<PAGE>
EXHIBIT A
to Registration
Rights Agreement
AGREEMENT TO BE BOUND
BY THE REGISTRATION RIGHTS AGREEMENT
The undersigned, being the transferee of ______ shares of the
common stock, no par value (the "Registrable Securities"), of
________________________, a _______ corporation (the "Company"), as a condition
to the receipt of such Registrable Securities, acknowledges that matters
pertaining to the registration of such Registrable Securities is governed by the
Registration Rights Agreement dated as of __________, 19__ initially among the
Company and the Holders referred to therein (the "Agreement"), and the
undersigned hereby (1) acknowledges receipt of a copy of the Agreement, and (2)
agrees to be bound as a Holder by the terms of the Agreement, as the same has
been or may be amended from time to time.
Agreed to this __ day of ______________, ____________.
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*
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*
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*Include address for notices.
A-1
