SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 1)
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)
David J. Greenwald, Esq.
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
(212) 902-1000
(Name, address and telephone number of person authorized
to receive notices and communications)
June 23, 1999
--------------------------------------
(Date of Event which requires Filing of this Statement)
If 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
- --------------------
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1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Goldman, Sachs & Co.
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [ ]
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3. SEC USE ONLY
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4. SOURCE OF FUNDS
AF; OO
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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
New York
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7. SOLE VOTING POWER
NUMBER OF 0
SHARES ----------------------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY 9,994,568
EACH ----------------------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 0
WITH ----------------------------------------------------
10. SHARED DISPOSITIVE POWER
9,994,568
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11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
9,994,568
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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)
10.5%
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14. TYPE OF REPORTING PERSON
BD-PN-IA
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-2-
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CUSIP NO. 928615103
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1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
The Goldman Sachs Group, Inc.
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [ ]
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3. SEC USE ONLY
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4. SOURCE OF FUNDS
AF; OO
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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
Delaware
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7. SOLE VOTING POWER
NUMBER OF 68,821
SHARES ----------------------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY 9,994,568
EACH ----------------------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 68,821
WITH ----------------------------------------------------
10. SHARED DISPOSITIVE POWER
9,994,568
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11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
10,063,639
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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)
10.5%
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14. TYPE OF REPORTING PERSON
HC-CO
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CUSIP NO. 928615103
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1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
GS Advisors, L.P.
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [ ]
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3. SEC USE ONLY
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4. SOURCE OF FUNDS
AF
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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
Delaware
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7. SOLE VOTING POWER
NUMBER OF 0
SHARES ----------------------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY 8,986,738
EACH ----------------------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 0
WITH ----------------------------------------------------
10. SHARED DISPOSITIVE POWER
8,986,738
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11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
8,986,738
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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)
9.4%
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14. TYPE OF REPORTING PERSON
PN
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-4-
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CUSIP NO. 928615103
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1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
GS Capital Partners, L.P.
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [ ]
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3. SEC USE ONLY
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4. SOURCE OF FUNDS
OO
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5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E)
[ ]
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6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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7. SOLE VOTING POWER
NUMBER OF 0
SHARES ----------------------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY 8,986,738
EACH ----------------------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 0
WITH ----------------------------------------------------
10. SHARED DISPOSITIVE POWER
8,986,738
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11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
8,986,738
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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)
9.4%
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14. TYPE OF REPORTING PERSON
PN
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<PAGE>
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CUSIP NO. 928615103
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1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Stone Street Fund 1992, L.P.
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [ ]
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3. SEC USE ONLY
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4. SOURCE OF FUNDS
OO
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5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E)
[ ]
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6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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7. SOLE VOTING POWER
NUMBER OF 0
SHARES ----------------------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY 470,401
EACH ----------------------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 0
WITH ----------------------------------------------------
10. SHARED DISPOSITIVE POWER
470,401
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11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
470,401
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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)
0.5%
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14. TYPE OF REPORTING PERSON
PN
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<PAGE>
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CUSIP NO. 928615103
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1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Bridge Street Fund 1992, L.P.
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [ ]
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3. SEC USE ONLY
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4. SOURCE OF FUNDS
OO
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5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E)
[ ]
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6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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7. SOLE VOTING POWER
NUMBER OF 0
SHARES ----------------------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY 273,069
EACH ----------------------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 0
WITH ----------------------------------------------------
10. SHARED DISPOSITIVE POWER
273,069
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11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
273,069
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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)
0.3%
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14. TYPE OF REPORTING PERSON
PN
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<PAGE>
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CUSIP NO. 928615103
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1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Stone Street Performance Corp.
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [ ]
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3. SEC USE ONLY
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4. SOURCE OF FUNDS
AF
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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
Delaware
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7. SOLE VOTING POWER
NUMBER OF 0
SHARES ----------------------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY 743,470
EACH ----------------------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 0
WITH ----------------------------------------------------
10. SHARED DISPOSITIVE POWER
743,470
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11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
743,470
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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)
0.8%
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14. TYPE OF REPORTING PERSON
CO
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-8-
<PAGE>
Preliminary Statement
---------------------
This Amendment No. 1 supplements the Schedule 13D filed by the Filing
Persons with the Securities and Exchange Commission on May 13, 1999, relating to
the common stock, no par value (the "Common Stock"), of VoiceStream Wireless
Corporation, a Washington corporation (the "Company"). Unless otherwise defined
herein, all capitalized terms used herein shall have the meanings ascribed to
them in the original Schedule 13D.
Item 1. Security and Issuer.
-------------------
No change.
Item 2. Identity and Background.
-----------------------
The last paragraph of Item 2 is hereby amended in its entirety as
follows:
During the past five years, none of the Filing Persons, or, to the
knowledge of each of the Filing Persons, any of the persons listed on
Schedule I, Schedule II-A or Schedule II-B hereto, (i) has been convicted
in a criminal proceeding (excluding traffic violations or similar
misdemeanors) or (ii) has 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.
-------------------------------------------------
No change.
Item 4. Purpose of the Transaction.
--------------------------
No change.
Item 5. Interest in Securities of the Issuer.
------------------------------------
Item 5 is hereby amended in its entirety as follows:
(a) As of June 23, 1999, GS Capital and GS Advisors, L.P., through GS
Capital's beneficial ownership of 8,986,738 shares of Common Stock, may each be
deemed to have beneficially owned 8,986,738 shares of Common Stock, representing
approximately 9.4% of the outstanding shares of Common Stock reported to be
outstanding as of May 3, 1999 (as reported in the Company's Form 10-Q for the
quarter ended March 31, 1999 (the "Form 10-Q")).
As of June 23, 1999, Stone Street, through its beneficial ownership of
470,401 shares of Common Stock, may be deemed to have beneficially owned 470,401
shares of Common Stock, representing approximately 0.5% of the outstanding
shares of Common Stock expected to be outstanding as of May 3, 1999 (as reported
in the Form 10-Q). As of June 23, 1999, Bridge Street, through its beneficial
ownership of 273,069 shares of Common Stock, may be deemed to have beneficially
owned 273,069 shares of Common Stock, representing approximately 0.3% of the
outstanding shares of Common Stock reported to be outstanding as of May 3, 1999
(as reported in the Form 10-Q). As of June 23, 1999,
-9-
<PAGE>
Performance may be deemed to have beneficially owned 743,470 shares of Common
Stock which as of such date may be deemed to have been beneficially owned by the
Other Limited Partnerships as herein described. Accordingly, as of June 23,
1999, Performance may be deemed to have beneficially owned approximately 0.8% of
the outstanding shares of Common Stock reported to be outstanding as of May 3,
1999 (as reported in the Form 10-Q).
As of June 23, 1999, Goldman Sachs may be deemed to have beneficially
owned 9,730,208 shares of Common Stock which as of such date may be deemed to
have been beneficially owned by the Limited Partnerships as herein described. In
addition, as of June 23, 1999, Goldman Sachs may be deemed to have beneficially
owned 263,625 shares of Common Stock held in Managed Accounts and 735 shares
held as a result of ordinary course trading activities of Goldman Sachs in the
shares of common stock of Western Wireless prior to the spin-off. Accordingly,
as of June 23, 1999, Goldman Sachs may be deemed to have beneficially owned
approximately 10.5% of the outstanding shares of Common Stock reported to be
outstanding as of May 3, 1999 (as reported in the Form 10-Q).
As of June 23, 1999, GS Group, through its direct beneficial ownership
of 68,821 shares of Common Stock, may be deemed to have beneficially owned
68,821 shares of Common Stock, and may be deemed to have beneficially owned
9,730,208 shares of Common Stock which as of such date may be deemed to have
been beneficially owned by the Limited Partnerships as herein described. In
addition, as of June 23, 1999, GS Group may be deemed to have beneficially owned
263,625 shares of Common Stock held in Managed Accounts and 735 shares held
as a result of ordinary course trading activities of Goldman Sachs in the shares
of common stock of Western Wireless prior to the spin-off. In addition, GS Group
may be deemed to beneficially own 250 shares of Common Stock issuable upon
exercise of vested options held by Terence M. O'Toole, a Managing Director of
Goldman Sachs, for the benefit of GS Group. Accordingly, as of June 23, 1999, GS
Group may be deemed to have beneficially owned approximately 10.5% of the
outstanding shares of Common Stock reported to be outstanding as of May 3, 1999
(as reported in the Form 10-Q and including the 250 shares issuable upon
exercise of the aforementioned options held by Terence M. O'Toole for the
benefit of GS Group).
None of the Filing Persons or, to the knowledge of any of the Filing
Persons, any of the persons listed on Schedules I, II-A or II-B to this
statement, beneficially owns any shares of Common Stock as of June 23, 1999,
other than as set forth herein.
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<PAGE>
(b) Each Filing Person shares the power to vote or direct the vote and
to dispose or direct the disposition of shares of Common Stock beneficially
owned by such Filing Person as indicated in pages 2 through 8 above.
(c) Schedule IV sets forth the transactions in the Common Stock which
have been effected during the period from May 4, 1999 through June 23, 1999, all
of which were effected on behalf of Managed Accounts in the ordinary course of
business of Goldman Sachs. The transactions in the Common Stock, described in
Schedule IV, were effected in the NASDAQ National Market. Except as set forth
in Schedule IV, no transactions in the Common Stock were effected by the Filing
Persons, or, to the knowledge of any of the Filing Persons, any of the persons
listed on Schedules I, II-A or II-B hereto, during the period from May 4, 1999
through June 23, 1999.
(d) Except for clients of Goldman Sachs who may have the right to
receive or the power to direct the receipt of dividends from, or the proceeds
from the sale of, any shares of Common Stock held in Managed Accounts, no other
person is known by any Filing Person to have the right to receive or the power
to direct the receipt of dividends from, or the proceeds from the sale of, any
shares of Common Stock beneficially owned by any Filing Person.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or
Relationships Involving Securities of the Issuer.
------------------------------------------------
Item 6 is hereby amended by adding the following additional paragraphs:
The Filing Persons, certain other stockholders of the Company, the
Company, Omnipoint corporation, a Delaware corporation ("Omnipoint") and certain
stockholders of Omnipoint (the "Omnipoint Stockholders") have entered into an
agreement, dated as of June 23, 1999 (the "Merger Voting Agreement"), whereby
the Filing Persons and certain other stockholders of the Company parties thereto
have agreed to attend the Company's stockholder's meeting, in person or by
proxy, and to vote or cause to be voted the number of shares of Common Stock
beneficially owned by them set forth in a schedule to the Merger Voting
Agreement (the "Scheduled Shares") in favor of (i) the adoption and approval of
the Agreement and Plan of Reorganization, dated as of June 23, 1999, between the
Company, VoiceStream Wireless Holding Corporation and Omnipoint (the
"Reorganization Agreement"), and (ii) the proposed merger contemplated by the
Reorganization Agreement (the "Merger") and any other matters necessary to
consummate the transactions contemplated in the Reorganization Agreement.
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<PAGE>
In addition, pursuant to the Merger Voting Agreement, the Filing
Persons and certain stockholders of the Company have agreed to terminate the
Voting Agreement upon the consummation of the Merger and to enter into a new
voting agreement with the Omnipoint Stockholders on terms mutually satisfactory
to the parties thereto.
Finally, from and after the date of the Merger Voting Agreement through
the earlier of the effective time of the transactions contemplated by the
Reorganization Agreement and the termination of the Reorganization Agreement,
each Filing Person and each of certain other stockholders of the Company have
agreed not to sell or otherwise dispose of, in a single transaction or a series
of unrelated transactions, more than 30% of the Scheduled Shares beneficially
owned by such stockholder unless, as a condition to such sale, each transferee
of any shares in excess of 30% of the Scheduled Shares beneficially owned by
such stockholder agrees to be bound by the provisions of the Merger Voting
Agreement applicable to the stockholders of the Company. This provision does not
limit the ability of GS Capital, Stone Street and Bridge Street to distribute
shares of Common Stock to their partners.
The foregoing description of the Merger Voting Agreement is subject to,
and qualified in its entirety by reference to, the form of Merger Voting
Agreement, which is filed as exhibit 99.4 hereto and incorporated by reference
into this Item 6.
Item 7. Material To be Filed as Exhibits.
99.4 Form of Agreement by and among VoiceStream Wireless
Corporation, Omnipoint Corporation and certain stockholders of
VoiceStream Wireless Corporation and certain stockholders of
VoiceStream Wireless Corporation.
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<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: June 23, 1999
GOLDMAN, SACHS & CO.
By: /s/ Roger S. Begelman
------------------------------------
Name: Roger S. Begelman
Title: Attorney-in-Fact
THE GOLDMAN SACHS GROUP, INC.
By: /s/ Roger S. Begelman
------------------------------------
Name: Roger S. Begelman
Title: Attorney-in-Fact
GS ADVISORS, L.P.
By: /s/ Roger S. Begelman
------------------------------------
Name: Roger S. Begelman
Title: Attorney-in-Fact
GS CAPITAL PARTNERS, L.P.
By: /s/ Roger S. Begelman
------------------------------------
Name: Roger S. Begelman
Title: Attorney-in-Fact
STONE STREET FUND 1992, L.P.
By: /s/ Roger S. Begelman
------------------------------------
Name: Roger S. Begelman
Title: Attorney-in-Fact
BRIDGE STREET FUND 1992, L.P.
By: /s/ Roger S. Begelman
------------------------------------
Name: Roger S. Begelman
Title: Attorney-in-Fact
STONE STREET PERFORMANCE CORP.
By: /s/ Roger S. Begelman
------------------------------------
Name: Roger S. Begelman
Title: Attorney-in-Fact
-13-
<PAGE>
SCHEDULE IV
-----------
VoiceStream Wireless Corporation
Cusip No. 928615103
Purchases Sales Price Trade Date Settlement Date
- -------------------------------------------------------------------------------
4,100 24.9649 27-May-99 2-Jun-99
<PAGE>
Exhibit Index
-------------
99.4 Form of Agreement by and among VoiceStream Wireless
Corporation, Omnipoint Corporation and certain stockholders of
VoiceStream Wireless Corporation and certain stockholders of
VoiceStream Wireless Corporation.
-14-
AGREEMENT
AGREEMENT, dated as of June 22, 1999, by and among OMNIPOINT
CORPORATION, a Delaware corporation ("Omnipoint"), VOICESTREAM WIRELESS
CORPORATION, a Washington corporation ("VoiceStream"), the individuals and
entities set forth on Schedule I hereto (each, an "Omnipoint Stockholder" and,
collectively, the "Omnipoint Stockholders") and the individuals and entities set
forth on Schedule II hereto (each, a "VoiceStream Stockholder" and,
collectively, the "VoiceStream Stockholders").
WHEREAS, concurrently herewith, each of Omnipoint and VoiceStream are
entering into an Agreement and Plan of Reorganization (the "Reorganization
Agreement") pursuant to which, among other things, wholly owned subsidiaries of
VoiceStream Wireless Holding Corporation, a Delaware corporation ("Newco"), will
be merged with and into each of Omnipoint and VoiceStream (such mergers,
together with the related transactions contemplated in the Reorganization
Agreement, being referred to herein collectively as the "Merger");
WHEREAS, each Omnipoint Stockholder is the beneficial owner of the
number of shares of Omnipoint Common Stock set forth opposite such Omnipoint
Stockholder's name in Schedule I hereto (the "Omnipoint Shares");
WHEREAS, each VoiceStream Stockholder is the beneficial owner of the
number of shares of VoiceStream Common Stock set forth opposite such VoiceStream
Stockholder's name in Schedule II hereto (the "VoiceStream Scheduled Shares");
WHEREAS, approval of the Reorganization Agreement by each of
Omnipoint's and VoiceStream's stockholders is a condition to the consummation of
the Merger; and
WHEREAS, as a condition to its entering into the Reorganization
Agreement, (i) VoiceStream has required that each Omnipoint Stockholder agree,
and each Omnipoint Stockholder has agreed, to enter into this Agreement, and
(ii) Omnipoint has required that each VoiceStream Stockholder agree, and each
VoiceStream Stockholder has agreed, to enter into this Agreement;
NOW THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein, the parties hereto agree as follows:
Section 1. Definitions. Capitalized terms used herein and not otherwise
defined have the meaning ascribed to such term in the Reorganization Agreement.
1
<PAGE>
Section 2. Agreement to Vote by Omnipoint Stockholders.
(a) Each Omnipoint Stockholder hereby agrees to attend the Omnipoint
Stockholders' Meeting, in person or by proxy, and to vote (or cause to be voted)
all Omnipoint Shares, and any other voting securities of Omnipoint, beneficially
owned by such Omnipoint Stockholder (whether issued heretofore or hereafter)
that such Omnipoint Stockholder owns or has the right to vote, (i) in favor of
adoption and approval of the Reorganization Agreement and the Merger and any
other matters necessary to consummate the transactions contemplated in the
Reorganization Agreement and (ii) against any Alternative Proposal or Superior
Proposal; such agreement to vote shall apply also to any adjournment or
adjournments of the Omnipoint Stockholders' Meeting.
(b) From and after the date hereof through the earlier of the Effective
Time or the termination of the Reorganization Agreement, each Omnipoint
Stockholder (other than with respect to any distribution by Madison Dearborn
Capital Partners, L.P. of its Omnipoint Shares to its partners) hereby agrees
not to sell, transfer, pledge, encumber or otherwise dispose of (collectively,
"Transfer") in the aggregate and whether in a single transaction or a series of
unrelated transactions more than thirty (30%) percent of the Omnipoint Shares
beneficially owned by such Omnipoint Stockholder on the date hereof, unless, as
a condition to any such Transfer, each transferee (or, in the case of a pledge
or similar transfer, each pledgee or similar conditional transferee) of any
shares in excess of thirty (30%) percent of the Omnipoint Shares beneficially
owned by such Omnipoint Stockholder shall, prior to such Transfer (or, in the
case of a pledge or similar Transfer, prior to taking title to or exercising any
rights with respect to the applicable Omnipoint Shares), agree in writing to be
bound by all of the provisions of this Agreement applicable to the Omnipoint
Stockholders (and such transferee shall thereby become an Omnipoint Stockholder
for all purposes of this Agreement), except that such Transferee shall not be
entitled to Transfer any such shares unless all transferees of all shares so
transferred agree to be bound by the terms of Section 2(a) hereof and such
Transferee (and such Transferee's transferees) shall not be entitled to the
benefits of the exception applicable to the Omnipoint Stockholders with respect
to 30% of the Omnipoint Shares beneficially owned by them. Any Transfer of such
shares and securities without compliance with such provisions of this Agreement
shall be null and void and such transferee shall have no rights as a stockholder
of Omnipoint.
(c) To the extent inconsistent with the foregoing provisions of this
Section 2, each Omnipoint Stockholder hereby revokes any and all previous
proxies with respect to such Omnipoint Stockholder's Omnipoint Shares or any
other voting securities of Omnipoint.
2
<PAGE>
Section 3. Agreement to Vote by VoiceStream Stockholders.
(a) Each VoiceStream Stockholder hereby agrees to attend the
VoiceStream Stockholders' Meeting, in person or by proxy, and to vote (or cause
to be voted) all VoiceStream Scheduled Shares owned by such VoiceStream
Stockholder at the time of the VoiceStream Stockholders' Meeting in favor of
adoption and approval of the Reorganization Agreement, the Merger and the
Hutchison Transaction and any other matters necessary to consummate the
transactions contemplated in the Reorganization Agreement; such agreement to
vote shall apply also to any adjournment or adjournments of the VoiceStream
Stockholders' Meeting.
(b) From and after the date hereof through the earlier of the Effective
Time or the termination of the Reorganization Agreement, each VoiceStream
Stockholder (other than with respect to any distribution by Hellman & Friedman
Capital Partners II, L.P., H&F Orchard Partners, L.P., H&F International
Partners, L.P., GS Capital Partners, L.P., Bridge Street Fund 1992, L.P., Stone
Street Fund 1992, L.P. or Providence Media Partners L.P. of their VoiceStream
shares to their partners) hereby agrees not to Transfer in the aggregate and
whether in a single transaction or a series of unrelated transactions more than
(30%) percent of the VoiceStream Scheduled Shares, unless, as a condition to any
such Transfer, each transferee (or, in the case of a pledge or similar transfer,
each pledgee or similar conditional transferee) of any shares in excess of
thirty (30%) percent of the VoiceStream Scheduled Shares, prior to such Transfer
(or, in the case of a pledge or similar transfer, prior to taking title to or
exercising any rights with respect to the applicable VoiceStream Scheduled
Shares), agree in writing to be bound by all of the provisions of this Agreement
applicable to the VoiceStream Stockholders (and such transferee shall thereby
become a VoiceStream Stockholder for all purposes of this Agreement), except
that such Transferee shall not be entitled to Transfer any such shares unless
all transferees of all shares so transferred agree to be bound by the terms of
Section 3(a) hereof and such Transferee (and such Transferee's transferees)
shall not be entitled to the benefits of the exception applicable to the
VoiceStream Stockholders with respect to 30% of the VoiceStream Scheduled
Shares. Any Transfer of such shares and securities without compliance with such
provisions of this Agreement shall be null and void and such transferee shall
have no rights as a stockholder of VoiceStream.
(c) To the extent inconsistent with the foregoing provisions of this
Section 3, each VoiceStream Stockholder hereby revokes any and all previous
proxies with respect to such VoiceStream Stockholder's VoiceStream Scheduled
Shares.
Section 4. Amendment of Existing VoiceStream Voting Agreement.
The VoiceStream Stockholders are parties to a Voting Agreement, dated
May 3, 1999 ("VoiceStream Voting Agreement"), pursuant to which they have agreed
to
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vote their VoiceStream Scheduled Shares owned by each of them at the time of
such vote in favor of directors designated by such VoiceStream Stockholders.
Effective on the Effective Time the VoiceStream Stockholders shall terminate the
VoiceStream Voting Agreement and enter into a new Voting Agreement ("Newco
Voting Agreement") with the Omnipoint Stockholders on terms mutually
satisfactory to the VoiceStream Stockholders and the Omnipoint Stockholders,
pursuant to which the voting arrangements which existed under the VoiceStream
Voting Agreement will apply to Newco and the provisions of Section 6.1 of the
Securities Purchase Agreement, of even date herewith, between VoiceStream and
Omnipoint, will also be effectuated.
Section 5. Representations and Warranties of VoiceStream and Omnipoint.
(a) VoiceStream represents and warrants to Omnipoint and each Omnipoint
Stockholder as follows: (i) each of this Agreement and the Reorganization
Agreement has been approved by the Board of Directors of VoiceStream and (ii)
each of this Agreement and the Reorganization Agreement has been duly executed
and delivered by VoiceStream and constitutes its valid and binding agreement,
enforceable against it in accordance with its terms, except as may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium and other similar
laws of general application which may affect the enforcement of creditors'
rights generally and by general equitable principles.
(b) Omnipoint represents and warrants to VoiceStream and each
VoiceStream Stockholder as follows: (i) each of this Agreement and the
Reorganization Agreement has been approved by the Board of Directors of
Omnipoint and (ii) each of this Agreement and the Reorganization Agreement has
been duly executed and delivered by Omnipoint and constitutes its valid and
binding agreement, enforceable against it in accordance with its terms, except
as may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium and other similar laws of general application which may affect the
enforcement of creditors' rights generally and by general equitable principles.
Section 6. Representations and Warranties of the Omnipoint Stockholders
and VoiceStream Stockholders.
(a) Each Omnipoint Stockholder, severally, as to such Omnipoint
Stockholder, represents and warrants to VoiceStream as follows: (i) this
Agreement has been duly executed and delivered by such Omnipoint Stockholder and
constitutes its valid and binding agreement, enforceable against it in
accordance with its terms, except as may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other similar laws of general
application which may affect the enforcement of creditors' rights
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generally and by general equitable principles; and (ii) the Omnipoint Shares
listed next to the name of such Omnipoint Stockholder on Schedule I hereto are
the only voting securities of Omnipoint owned (beneficially or of record) by it.
(b) Each VoiceStream Stockholder, severally, as to such VoiceStream
Stockholder, represents and warrants to Omnipoint that this Agreement has been
duly executed and delivered by such VoiceStream Stockholder and constitutes its
valid and binding agreement, enforceable against it in accordance with its
terms, except as may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other similar laws of general application which
may affect the enforcement of creditors' rights generally and by general
equitable principles.
Section 7. Effectiveness and Termination. It is a condition precedent
to the effectiveness of this Agreement that the Reorganization Agreement shall
have been executed and delivered and be in full force and effect. In the event
the Reorganization Agreement is terminated in accordance with its terms, this
Agreement shall automatically terminate and be of no further force or effect.
Upon such termination, except for any rights any party may have in respect of
any breach by any other party of its or his obligations hereunder, none of the
parties hereto shall have any further obligation or liability hereunder.
Section 8. Miscellaneous.
(a) Notices, Etc. All notices, requests and other communications to any
party hereunder shall be in writing (including facsimile transmission) and shall
be given,
if to VoiceStream, to it at:
3650 131 Avenue SE
Bellevue, Washington 98006
Attention: Alan R. Bender, Esq.
Fax: (425) 586-8080
with a copy to:
Friedman Kaplan & Seiler LLP
875 Third Avenue
New York, New York 10022
Attention: Barry A. Adelman, Esq.
Fax: (212) 355-6401
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if to any VoiceStream Stockholder, to it at the address set
forth on Schedule II hereto;
if to Omnipoint, to it at:
Omnipoint Corporation
3 Bethesda Metro Center
Suite 400
Bethesda, Maryland 20814
Attention: Douglas G. Smith
Fax: 301-951-3591
with a copy to:
Piper & Marbury L.L.P.
1200 Nineteenth Street, N.W.
Washington, D.C. 20036
Attention: Edwin M. Martin, Jr., Esq.
Fax: (202) 233-2085
if to any Omnipoint Stockholder, to it at the address set forth on
Schedule I hereto;
or such other address or facsimile number as such party may hereafter specify
for the purpose by notice to the other parties hereto. All such notices,
requests and other communications shall be deemed received on the date of
receipt by the recipient thereof if received prior to 5 p.m. on a Business Day,
in the place of receipt. Otherwise, any such notice, request or communication
shall be deemed not to have been received until the next succeeding Business Day
in the place of receipt.
(b) Amendments; No Waivers. (i) Subject to applicable law, any
provision of this Agreement may be amended or waived, but only if, such
amendment or waiver is in writing and is signed, in the case of an amendment, by
each party to this Agreement or, in the case of a waiver, by each party against
whom the waiver is to be effective.
(ii) No failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
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(c) Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of and be enforceable by the parties and their
respective successors and assigns, including, without limitation, in the case of
any corporate party hereto any corporate successor by merger or otherwise, and
in the case of any individual party hereto any trustee, executor, heir, legatee
or personal representative succeeding to the ownership of such party's shares of
Omnipoint Common Stock or other securities subject to this Agreement.
Notwithstanding any Transfer of shares of Omnipoint Common Stock the transferor
shall remain liable for the performance of all obligations under this Agreement
of transferor.
(d) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without regard to the
conflicts of law rules of such State.
(e) Jurisdiction. Any suit, action or proceeding seeking to enforce any
provision of, or based on any matter arising out of or in connection with, this
Agreement or the transactions contemplated hereby shall be brought in any
federal court located in the State of Delaware or any Delaware state court, and
each of the parties hereby consents to the exclusive jurisdiction of such courts
(and of the appropriate appellate courts therefrom) in any such suit, action or
proceeding and irrevocably waives, to the fullest extent permitted by law, any
objection that it may now or hereafter have to the laying of the venue of any
such suit, action or proceeding in any such court or that any such suit, action
or proceeding brought in any such court has been brought in an inconvenient
forum. Process in any such suit, action or proceeding may be served on any party
anywhere in the world, whether within or without the jurisdiction of any such
court. Without limiting the foregoing, each party agrees that service of process
on such party as provided in Section 6(e) shall be deemed effective service of
process on such party.
(f) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF
OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(g) Counterparts; Effectiveness. This Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument. This
Agreement shall become effective when each party hereto shall have received
counterparts hereof signed by all of the other parties hereto. No provision of
this Agreement is intended to confer any rights, benefits, remedies, obligations
or liabilities hereunder upon any Person other than the parties hereto and their
respective successors and assigns.
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(h) Entire Agreement. This Agreement, together with the Reorganization
Agreement, constitutes the entire agreement between the parties with respect to
the subject matter of this Agreement and supersedes all prior agreements and
understandings, both oral and written, between the parties with respect to such
subject matter.
(i) Captions. The captions herein are included for convenience of
reference only and shall be ignored in the construction or interpretation
hereof.
(j) Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction or other authority
to be invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated so long as the
economic or legal substance of the transactions contemplated hereby is not
affected in any manner materially adverse to any party. Upon such a
determination, the parties shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner so that the transactions contemplated hereby be
consummated as originally contemplated to the fullest extent possible.
(k) Specific Performance. The parties hereto agree that irreparable
damage would occur if any provision of this Agreement were not performed in
accordance with the terms hereof and that the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement or to enforce
specifically the performance of the terms and provisions hereof in any federal
court located in the State of Delaware or any Delaware state court, in addition
to any other remedy to which they are entitled at law or in equity.
(l) Remedies Cumulative. All rights, powers and remedies provided under
this Agreement or otherwise available in respect hereof at law or in equity
shall be cumulative and not alternative, and the exercise or beginning of the
exercise of any thereof by any party shall not preclude the simultaneous or
later exercise of any other such right, power or remedy by such party.
(m) Limitation on Liability. No party hereto shall have any liability
hereunder for any actions or omissions of any other party hereto.
(n) Expenses. Each party hereto shall bear its own expenses incurred in
connection with this Agreement.
(o) Further Assurances. Each party hereto agrees that such party shall
execute and deliver such additional instruments and other documents and shall
take such
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further actions as may be necessary or appropriate to effectuate, carry out and
comply with all of their obligations under this Agreement. Without limiting the
generality of the foregoing, none of the parties hereto shall enter into any
agreement or arrangement (or alter, amend or terminate any existing agreement or
arrangement) if such action would impair the ability of any party to effectuate,
carry out or comply with all the terms of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
VOICESTREAM WIRELESS CORPORATION
By:____________________________________
Name:
Title:
OMNIPOINT CORPORATION
By:____________________________________
Name:
Title:
VOICESTREAM STOCKHOLDERS:
Hellman & Friedman Capital Partners II, L.P., a
California limited partnership
By: Hellman & Friedman Investors, L.P., its
general partner
By: Hellman & Friedman Investors, Inc., its
general partner
By:________________________________
Name:
Title:
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