SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. __)
VoiceStream Wireless Corporation
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(Name of Issuer)
Common Stock
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(Title of Class of Securities)
928615103
--------------------------------------
(CUSIP Number)
David J. Greenwald, Esq.
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
(212) 902-1000
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(Name, address and telephone number of person authorized
to receive notices and communications)
May 3, 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.
<PAGE>
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CUSIP NO. 928615103
- --------------------
- --------------------------------------------------------------------------------
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) [ ]
- --------------------------------------------------------------------------------
3. SEC USE ONLY
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4. SOURCE OF FUNDS
N/A
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5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E)
[X]
- --------------------------------------------------------------------------------
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 9,972,668
EACH -----------------------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 0
WITH -----------------------------------------------------
10. SHARED DISPOSITIVE POWER
9,992,668
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11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
9,992,668
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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-
<PAGE>
- --------------------
CUSIP NO. 928615103
- --------------------
- --------------------------------------------------------------------------------
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
N/A
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E)
[ ]
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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7. SOLE VOTING POWER
NUMBER OF 69,071
SHARES -----------------------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY 9,972,668
EACH -----------------------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 69,071
WITH -----------------------------------------------------
10. SHARED DISPOSITIVE POWER
9,992,668
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11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
10,061,739
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12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
[ ]
- --------------------------------------------------------------------------------
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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-3-
<PAGE>
- --------------------
CUSIP NO. 928615103
- --------------------
- --------------------------------------------------------------------------------
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
N/A
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5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E)
[ ]
- --------------------------------------------------------------------------------
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-
<PAGE>
- --------------------
CUSIP NO. 928615103
- --------------------
- --------------------------------------------------------------------------------
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
N/A
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5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E)
[ ]
- --------------------------------------------------------------------------------
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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-5-
<PAGE>
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CUSIP NO. 928615103
- --------------------
- --------------------------------------------------------------------------------
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
N/A
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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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-6-
<PAGE>
- --------------------
CUSIP NO. 928615103
- --------------------
- --------------------------------------------------------------------------------
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
N/A
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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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-7-
<PAGE>
- --------------------
CUSIP NO. 928615103
- --------------------
- --------------------------------------------------------------------------------
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
N/A
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5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E)
[ ]
- --------------------------------------------------------------------------------
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
[ ]
- --------------------------------------------------------------------------------
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>
Item 1. Security and Issuer.
This statement on Schedule 13D relates to the common stock, no par
value (the "Common Stock"), of VoiceStream Wireless Corporation, a Washington
corporation (the "Company").
The principal executive offices of the Company are located at 3650
131st Avenue S.E., Bellevue, Washington 98006.
Item 2. Identity and Background.
GS Capital Partners, L.P. ("GS Capital"), GS Advisors, L.P. ("GS
Advisors, L.P."), Goldman, Sachs & Co. ("Goldman Sachs") , The Goldman Sachs
Group, Inc. ("GS Group"), Stone Street Fund 1992, L.P. ("Stone Street"), Bridge
Street Fund 1992, L.P. ("Bridge Street") and Stone Street Performance Corp.
("Performance" and together with GS Capital, GS Advisors, L.P., Goldman Sachs,
Stone Street and Bridge Street, the "Filing Persons")1 hereby file this
statement on Schedule 13D with respect to the Common Stock of the Company.
Goldman Sachs and GS Group may be deemed, for purposes of this Statement, to
beneficially own shares of Common Stock through GS Capital and through Stone
Street and Bridge Street (Stone Street and Bridge Street are collectively
referred to as the "Other Limited Partnerships" and, together with GS Capital,
the "Limited Partnerships") of which affiliates of Goldman Sachs and GS Group
are the general partner or the managing general partner. Goldman Sachs and GS
Group each disclaims beneficial ownership of shares of Common Stock beneficially
owned by the Limited Partnerships to the extent of partnership interests in the
Limited Partnerships held by persons other than Goldman Sachs, GS Group or their
affiliates. In addition, Goldman Sachs and GS Group may be deemed to
beneficially own shares of Common Stock held in client accounts with respect to
which Goldman Sachs or employees of Goldman Sachs have voting or investment
discretion, or both ("Managed Accounts"). Goldman Sachs and GS Group disclaim
beneficial ownership of the shares of Common Stock held in Managed Accounts.
Goldman Sachs and GS Group may also be deemed to beneficially own from time to
time shares acquired in ordinary course trading activities by Goldman Sachs. In
addition, GS Group also owns shares of Common Stock and may be deemed, for
purposes of this Statement, to beneficially own shares of Common Stock issuable
upon exercise of options held by a managing director of Goldman Sachs who is a
director of the Company and who holds such options for the benefit of GS Group.
Performance may be deemed, for purposes of this Statement, to beneficially own
shares of Common Stock through the Other Limited Partnerships of which
Performance is the general partner or the managing general partner. Performance
disclaims beneficial ownership of shares of Common Stock beneficially owned by
the Other Limited Partnerships to the extent of partnership interests in the
Other Limited Partnerships held by persons other than Performance.
- ----------
1 Neither the present filing nor anything contained herein shall be construed
as an admission that any Filing Person constitutes a "person" for any
purpose other than Section 13(d) of the Securities Exchange Act of 1934.
-9-
<PAGE>
GS Capital Partners, L.P., a Delaware limited partnership, was formed
for the purpose of investing in equity and equity-related securities primarily
acquired or issued in leveraged acquisitions, reorganizations and other private
equity transactions. GS Advisors, L.P., a Delaware limited partnership, is the
sole general partner of GS Capital. Goldman Sachs, a New York limited
partnership, is an investment banking firm and a member of the New York Stock
Exchange, Inc. and other national exchanges. Goldman Sachs also serves as the
investment manager for GS Capital. GS Group, one of the general partners of
Goldman Sachs, owns a 99% interest in Goldman Sachs. GS Group is a Delaware
corporation and a holding company that (directly or indirectly through
subsidiaries or affiliated companies or both) is a leading investment banking
organization and is a successor in interest to The Goldman Sachs Group, L.P.,
which was merged with and into GS Group on May 7, 1999. The other general
partner of Goldman Sachs is The Goldman, Sachs & Co. L.L.C., a Delaware limited
liability company ("GS L.L.C."), which is a wholly owned subsidiary of GS Group.
Stone Street and Bridge Street, each a Delaware limited partnership, were formed
for the purpose of investing in equity and equity-related securities primarily
acquired or issued in leveraged acquisitions, reorganizations and other private
equity transactions and in other financial instruments. Performance, a Delaware
corporation, is the sole general partner of Stone Street and the sole managing
general partner of Bridge Street. The principal business address of each of the
Filing Persons is 85 Broad Street, New York, New York 10004.
The name, business address, present principal occupation or employment
and citizenship of each director of GS Group are set forth in Schedule I hereto
and are incorporated herein by reference.
The name, business address, present principal occupation or employment
and citizenship of each director and executive officer of GS Advisors, Inc., a
Delaware corporation that is the sole general partner of GS Advisors, L.P., are
set forth in Schedule II-A hereto and are incorporated herein by reference.
The name, business address, present principal occupation or employment
and citizenship of each director and executive officer of Performance are set
forth in Schedule II-B hereto and are incorporated herein by reference.
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) except
as set forth in Schedule III hereto, 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.
-10-
<PAGE>
Item 3. Source and Amount of Funds or Other Consideration.
On May 3, 1999, Western Wireless Corporation, a Washington corporation
("Western Wireless"), consummated its spin-off of the shares of Common Stock
owned by it to the holders of Class A common stock and Class B common stock of
Western Wireless. In the spin-off transaction, Western Wireless distributed to
each of its shareholders one share of Common Stock for each share of Class A
and/or Class B common stock of Western Wireless owned by such shareholder.
Beneficial ownership of the Common Stock to the extent described herein was
acquired by the Filing Persons pursuant to the spin-off. No consideration was
paid for the acquisition of the shares of Common Stock.
Item 4. Purpose of the Transaction.
The foregoing acquisitions of Common Stock were made for investment
purposes only. 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.
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) As of May 3, 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 outstanding as of
May 3, 1999 (as reported in the Company's Form 10, as amended on April 13, 1999
(the "Form 10")).
As of May 3, 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). As of May 3, 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 expected to be outstanding as of May 3, 1999
(as reported in the Form 10). As of May 3, 1999, 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 May 3, 1999, Performance may be deemed to
have beneficially owned
-11-
<PAGE>
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).
As of May 3, 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 May 3, 1999, Goldman Sachs may be deemed to have beneficially
owned 261,725 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 May 3, 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).
As of May 3, 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 May 3, 1999, GS Group may be deemed to have beneficially owned 261,725
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 May 3, 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 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 May 3, 1999, other
than as set forth herein.
(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) No transactions in the Common Stock were effected by 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 past 60 days from the date hereof.
(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
-12-
<PAGE>
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.
The Company and GS Group (as successor in interest to The Goldman Sachs
Group, L.P.), GS Capital, Bridge Street, Stone Street and certain other
shareholders of the Company are party to a Voting Agreement, dated as of May 3,
1999 (the "Voting Agreement"), providing that the parties thereto shall vote
their shares of Common Stock for the election to the board of directors of the
Company 10 members, one of whom is to be designated by GS Group, GS Capital,
Bridge Street and Stone Street so long as such entities beneficially own at
least 4,500,000 shares of Common Stock. In addition, the Company and GS Group
(as successor in interest to The Goldman Sachs Group, L.P.), GS Capital, Bridge
Street, Stone Street and certain other shareholders of the Company are party to
a Registration Rights Agreement, dated as of May 3, 1999 (the "Registration
Rights Agreement"). Pursuant to the Registration Rights Agreement, the
shareholder parties to that agreement are entitled, subject to certain
restrictions, to demand up to two registrations of their shares of Common Stock
in any twelve month period and to participate in registrations initiated by the
Company. The Registration Rights Agreement expires in July 2004.
The foregoing descriptions of the Voting Agreement and the Registration
Rights Agreement are subject to, and qualified in their entirety by reference
to, the form of Voting Agreement and Registration Rights Agreement, which are
filed as exhibits hereto and incorporated by reference into this Item 6.
Except as described in this statement, none of the Filing Persons or,
to the knowledge of the Filing Persons, any of the persons listed on Schedules
I, II-A or II-B hereto is a party to any contract, arrangement, understanding or
relationship with respect to any securities of the Company.
Item 7. Material To be Filed as Exhibits.
99.1 The Voting Agreement
99.2 The Registration Rights Agreement
99.3 Stockholders Agreement, by and among Western Wireless Corporation
and certain of its shareholders, dated July 29, 1994 (incorporated
by reference to the exhibit filed to Western Wireless Corporation's
registration statement on Form S-1 (Commission File No. 333-2432)).
-13-
<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: May 13, 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
-14-
<PAGE>
SCHEDULE I
----------
The name of each director of The Goldman Sachs Group, Inc. is set forth
below.
The business address of each person listed below except John L.
Thornton, Sir John Browne and James A. Johnson is 85 Broad Street, New York, NY
10004. The business address of John L. Thornton is 133 Fleet Street, London EC4A
2BB, England. The business address of Sir John Browne is BP Amoco plc, Brittanic
House, 1 Finsbury Circus, London EC2M, England. The business address of James A.
Johnson is Fannie Mae, 3900 Wisconsin Avenue NW, Washington, D.C. 20016. Each
person is a citizen of the United States of America except for Sir John Browne,
who is a citizen of the United Kingdom. The present principal occupation or
employment of each of the listed persons is set forth below.
<TABLE>
<CAPTION>
Name Present Principal Occupation
- ----------------------------------------------------------------------------------------------------
<S> <C>
Henry M. Paulson, Jr. Chairman and Chief Executive Officer of The Goldman Sachs Group, Inc.
Robert J. Hurst Vice Chairman of The Goldman Sachs Group, Inc.
John A. Thain President and Co-Chief Operating Officer of The Goldman Sachs Group, Inc.
John L. Thornton President and Co-Chief Operating Officer of The Goldman Sachs Group, Inc.
Sir John Browne Group Chief Executive of BP Amoco plc
James A. Johnson Chairman of the Executive Committee of the Board of Fannie Mae
John L. Weinberg Senior Chairman of The Goldman Sachs Group, Inc.
</TABLE>
<PAGE>
SCHEDULE II-A
-------------
The name, position and present principal occupation of each director
and executive officer of GS Advisors, Inc., the sole general partner of GS
Advisors, L.P., which is the sole general partner of GS Capital Partners, L.P.,
are set forth below.
The business address for all the executive officers and directors
listed below except Henry Cornell and Barry S. Volpert is 85 Broad Street, New
York, New York 10004. The business address of Henry Cornell is 3 Garden Road,
Hong Kong. The business address of Barry S. Volpert is 133 Fleet Street, London
EC4A 2BB, England.
All executive officers and directors listed below are United States
citizens.
<TABLE>
<CAPTION>
Name Position Present Principal Occupation
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C>
Richard A. Friedman Director/President Managing Director of Goldman, Sachs & Co.
Terence M. O'Toole Director/Vice President Managing Director of Goldman, Sachs & Co.
Elizabeth S. Fascitelli Treasurer Managing Director of Goldman, Sachs & Co.
Joseph H. Gleberman Director/Vice President Managing Director of Goldman, Sachs & Co.
Henry Cornell Vice President Managing Director of Goldman Sachs (Asia) L.L.C.
Barry S. Volpert Director/Vice President Managing Director of Goldman Sachs International
Eve M. Gerriets Vice President/Secretary Vice President of Goldman, Sachs & Co.
David J. Greenwald Assistant Secretary Managing Director of Goldman, Sachs & Co.
C. Douglas Fuge Assistant Treasurer Managing Director of Goldman, Sachs & Co.
Katherine B. Enquist Vice President Vice President of Goldman, Sachs & Co.
</TABLE>
<PAGE>
SCHEDULE II-B
-------------
The name, position and present principal occupation of each director
and executive officer of Stone Street Performance Corp., the sole general
partner of Stone Street Fund 1992, L.P. and the managing general partner of
Bridge Street Fund 1992, L.P., are set forth below.
The business address for each of the executive officers and directors
listed below is 85 Broad Street, New York, New York 10004.
All executive officers and directors listed below are United States
citizens.
<TABLE>
<CAPTION>
Name Position Present Principal Occupation
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Richard A. Friedman Director/Vice President Managing Director of Goldman, Sachs & Co.
Terence M. O'Toole Director/Vice President Managing Director of Goldman, Sachs & Co.
Joseph H. Gleberman Director/Vice President Managing Director of Goldman, Sachs & Co.
Sanjeev K. Mehra Director/Vice President/Treasurer Managing Director of Goldman, Sachs & Co.
Peter G. Sachs Director/Vice President Senior Director of The Goldman Sachs Group, Inc.
Peter M. Sacerdote Director/Chairman/C.E.O./President Advisory Director of Goldman, Sachs & Co.
David J. Greenwald Vice President Managing Director of Goldman, Sachs & Co.
Esta E. Stecher Vice President Managing Director of Goldman, Sachs & Co.
C. Douglas Fuge Assistant Treasurer Managing Director of Goldman, Sachs & Co.
Eve M. Gerriets Vice President/Secretary Vice President of Goldman, Sachs & Co.
Katherine B. Enquist Vice President Vice President of Goldman, Sachs & Co.
Richard J. Stingi Vice President Vice President of Goldman, Sachs & Co.
</TABLE>
<PAGE>
SCHEDULE III
------------
In Securities and Exchange Commission Administrative Proceeding File
No. 3-8282 In the Matter of Goldman, Sachs & Co., Goldman, Sachs & Co., (the
"Firm"), without admitting or denying any of the SEC's allegations, settled
administrative proceedings involving alleged books and records and supervisory
violations relating to eleven trades of U.S. Treasury securities in the
secondary markets in 1985 and 1986. The SEC alleged that the Firm had failed to
maintain certain records required pursuant to Section 17(a) of the Exchange Act
and had also failed to supervise activities relating to the aforementioned
trades in violation of Section 15(b)(4)(E) of the Exchange Act.
The Firm was ordered to cease and desist from committing or causing any
violation of the aforementioned sections of the Exchange Act, pay a civil money
penalty to the SEC in the amount of $250,000 and establish policies and
procedures reasonably designed to assure compliance with Section 17(a) of the
Exchange Act and Rules 17a-3 and 17a-4 thereunder.
<PAGE>
Exhibit Index
-------------
99.1 The Voting Agreement.
99.2 The Registration Rights Agreement.
99.3 Stockholders Agreement, by and among Western Wireless Corporation and
certain of its shareholders, dated July 29, 1994 (incorporated by
reference to the exhibit filed to Western Wireless Corporation's
registration statement on Form S-1 (Commission File No. 333-2432)).
-15-
VOTING AGREEMENT
This VOTING AGREEMENT (this "Agreement") is made and entered into as of
this 3 day of May, 1999 by and among VoiceStream Wireless Corporation, a
Washington corporation (the "Company"), Hellman & Friedman Capital Partners II,
L.P., a California limited partnership ("HFCP II"), H & F Orchard Partners,
L.P., a California limited partnership ("Orchard"), H & F International
Partners, L.P., a California limited partnership ("International"; HFCP II,
Orchard and International are hereinafter referred to collectively as "H&F"),
John W. Stanton ("JWS"), Theresa E. Gillespie ("TEG"), PN Cellular, Inc., a
Washington corporation ("PN"), Stanton Family Trust, established November 1,
1990 by JWS and TEG, as settlors f/b/o the settlors' children ("SFT"), Stanton
Communications Corporation, a Washington corporation ("SCC"; JWS, TEG, PN, SFT
and SCC are hereinafter referred to collectively as "Stanton"), GS Capital
Partners, L.P., a Delaware limited partnership ("GSCP"), The Goldman Sachs
Group, L.P., a Delaware limited partnership ("GS"), Bridge Street Fund 1992,
L.P., a Delaware limited partnership ("BSF"), Stone Street Fund 1992, L.P., a
Delaware limited partnership ("SSF"; GSCP, GS, BSF and SSF are hereinafter
referred to collectively as "GSC"); Providence Media Partners L.P., a Delaware
limited partnership ("Providence"); Hutchison Telecommunications PCS (USA)
Limited, a British Virgin Islands corporation ("Hutchison PCS"); and Hutchison
Telecommunications Holdings (USA) Limited, a British Virgin Islands corporation
("Hutchison Holdings"; Hutchison PCS and Hutchison Holdings are hereinafter
referred to collectively as "Hutchison") (each of H&F, Stanton, GSC, Providence
and Hutchison are hereinafter referred to individually as a "Shareholder" and
collectively as the "Shareholders").
R E C I T A L S
WHEREAS, the Company and Western Wireless Corporation, a Washington
corporation ("WWC"), are parties to that certain Agreement and Plan of
Distribution, dated as of April 9, 1999, pursuant to which, among other things,
WWC has agreed, upon the terms and conditions set forth therein, to distribute
the shares of Common Stock (as hereinafter defined) owned by it, which shares
represent 80.1% of the issued and outstanding shares of Common Stock, to WWC's
shareholders, including the Shareholders party hereto, on the basis of one share
of Common Stock for each one share of WWC's outstanding common stock (the
"Spin-Off");
WHEREAS, effective with the Spin-Off, the Company will be authorized to
issue 300,000,000 shares of Common Stock, of which 95,541,623 shares will be
issued and outstanding immediately after the Spin-Off;
WHEREAS, immediately after the Spin-Off, each of the Shareholders will
own the number of shares of Common Stock set forth opposite its respective name
on Schedule 1 annexed hereto; and
WHEREAS, simultaneously with the consummation of the Spin-Off (the date
of such consummation being hereinafter referred to as the "Effective Date"),
this Agreement shall be in full force and effect in accordance with its terms in
order, among other things, to set forth certain matters relating to the
management of the Company.
NOW THEREFORE, in consideration of the mutual covenants herein
contained and for other good and valuable consideration, the Shareholders and
the Company agree as follows:
1. Certain Definitions. As used in this Agreement, the following terms
have the meanings set forth below:
1.1 "Agreement" has the meaning given in the preamble.
1.2 "Arbitrators" has the meaning given in Section 6.12(i).
1.3 "Beneficially Own" has the meaning set forth in Rule 13d-3 of
the Securities and Exchange Act of 1934, as amended; except that no broker or
dealer or any affiliate thereof shall be deemed to Beneficially Own shares of
Common Stock, 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
<PAGE>
customer accounts, or the acquisition in good faith of such securities in
connection with the enforcement of payment of a debt previously contracted.
1.4 "Board" means the Board of Directors of the Company.
1.5 "BSF" has the meaning given in the preamble.
1.6 "Business Day" means any day other than a Saturday, Sunday or
legal holiday in New York, New York, Seattle or Hong Kong or any other day on
which commercial banks in those locations are authorized by law or governmental
decree to close.
1.7 "Common Stock" means the Company's Common Stock, no par value,
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.
1.8 "Company" has the meaning given in the preamble.
1.9 "Dispute" has the meaning given in Section 6.12.
1.10 "Effective Date" has the meaning given in the recitals.
1.11 "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
1.12 "GS" has the meaning given in the preamble.
1.13 "GSC" has the meaning given in the preamble.
1.14 "GSCP" has the meaning given in the preamble.
1.15 "H&F" has the meaning given in the preamble.
1.16 "HFCP II" has the meaning given in the preamble.
1.17 "HTL" means Hutchison Telecommunications Limited, a corporation
organized under the laws of Hong Kong.
1.18 "Hutchison" has the meaning given in the preamble.
1.19 "Immediate Family" means an individual's spouse, children
(including adopted children), grandchildren and parents.
1.20 "International" has the meaning given in the preamble.
1.21 "JWS" has the meaning given in the preamble.
1.22 "Orchard" has the meaning given in the preamble.
1.23 "Percentage Ownership" means, as to any Shareholder, the
aggregate percentage of the outstanding shares of Common Stock Beneficially
Owned by such Shareholder, including for this purpose, shares Beneficially Owned
by such Shareholder's Permitted Affiliated Transferees.
1.24 "Permitted Affiliate Transferee" means (i) with respect to any
Shareholder 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 Shareholder which is a limited partnership, (a) any Person
that, as of May 13, 1996, was the sole general partner of such Shareholder or
was the sole general partner of the sole general partner of such Shareholder,
(b) another limited partnership which has a sole general partner, the control of
which sole general partner is held, directly or indirectly, by five or fewer
natural Persons, provided such natural Persons had control at May 13, 1996 of
the sole general
2
<PAGE>
partner of such Shareholder or (iii) with respect to Hutchison, (x) HTL, (y) any
Subsidiary of HTL, or (z) any other entity acceptable to Shareholders (other
than Hutchison and its Permitted Affiliate Transferees) holding at least a
majority of the Common Stock owned by all Shareholders (other than Hutchison and
its Permitted Affiliate Transferees) in which HTL owns, directly or indirectly,
more than 40% of the outstanding voting power, or (c) in the case of any Person
referred to in clause (x), (y) or (z), Hutchison. 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.
1.25 "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.
1.26 "PN" has the meaning given in the preamble.
1.27 "Providence" has the meaning given in the preamble.
1.28 "SCC" has the meaning given in the preamble.
1.29 "SFT" has the meaning given in the preamble.
1.30 "Shareholder" has the meaning given in the preamble.
1.31 "Spin-Off" has the meaning given in the recitals.
1.32 "SSF" has the meaning given in the preamble.
1.33 "Stanton" has the meaning given in the preamble.
1.34 "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.
1.35 "TEG" has the meaning given in the preamble.
1.36 "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).
1.37 "WWC" has the meaning given in the recitals.
1.38 "WWC Shareholders Agreement" has the meaning given in the
preamble.
Each definition or pronoun herein shall be deemed to refer to the
singular, plural, masculine, feminine or neuter as the context requires. Words
such as "herein, "hereinafter," "hereof," "hereto" and "hereunder" refer to this
Agreement as a whole, unless the context otherwise requires. Whenever the words
"include," "includes" or "including" are used in this Agreement, they shall be
deemed to be followed by the words "without limitation."
2. Effectiveness; Legend.
2.1 This Agreement shall become effective on the Effective Date. If
the Effective Date does not occur on or before December 31, 1999, this Agreement
shall terminate and be of no further force or effect whatsoever.
2.2 All certificates representing shares of Common Stock now or
hereafter issued by the Company to any of the Shareholders or their Permitted
Affiliate Transferees shall be subject to this Agreement and shall bear the
following legend:
"The shares evidenced by this certificate or any certificate issued
in exchange or transfer therefor are and will be subject to the terms of a
certain Voting Agreement, dated as of May 3, 1999, by and among certain
shareholders of the Company."
3
<PAGE>
The requirement that the above legend be placed upon certificates evidencing any
such Common Stock shall cease and terminate upon the earlier of (i) the Transfer
of such Common Stock to any Person other than a Permitted Affiliate Transferee,
and (ii) as to any Shareholder and its Permitted Affiliate Transferees, the
termination of this Agreement as to such Shareholder and its Permitted Affiliate
Transferees. Upon the occurrence of any event requiring the removal of a legend
hereunder, the Company, upon the surrender of certificates containing such
legend, shall, at its own expense, deliver to the holder of any such Common
Stock as to which the requirement for such legend shall have terminated, one or
more new certificates evidencing such Common Stock not bearing such legend.
3. Management of the Corporation.
3.1 Board of Directors. Pursuant to the Company's by-laws, the Board
shall be constituted of ten (10) directors, subject to increase as provided in
this Section 3.1. Each of the Shareholders (and its Permitted Affiliate
Transferees) agrees that it will vote, or cause to be voted, all of the shares
of Common Stock 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 Shareholder'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), for the election and continuation in office of the following ten (10)
members: (a) JWS, for so long as he is the Chief Executive Officer of the
Company or he, together with his Permitted Affiliate Transferees, Beneficially
Own at least 4,500,000 shares of Common Stock; (b) two (2) designees of
Hutchison (or if Hutchison has Transferred all of its shares of Common Stock to
Permitted Affiliate Transferees of Hutchison, two (s) designees of such
Permitted Affiliate Transferees); (c) two (2) designees of H&F (or, if H&F has
Transferred all of its shares of Common Stock to Permitted Affiliate Transferees
of H&F, two (2) designees of such Permitted Affiliate Transferees); (d) one (1)
designee of GSC (or, if GSC has Transferred all of its shares of Common Stock to
Permitted Affiliate Transferees of GSC, one (1) designee of such Permitted
Affiliate Transferees); (e) one (1) designee selected by a majority vote of
Stanton (or, if Stanton has Transferred all of its shares of Common Stock to
Permitted Affiliate Transferees of Stanton, of such Permitted Affiliate
Transferees) and Providence (or, if Providence has Transferred all of its shares
of Common Stock to Permitted Affiliate Transferees of Providence, of such
Permitted Affiliate Transferees) (it being understood that such designee is in
addition to JWS for so long as JWS shall serve on the Board by reason of his
holding the office of Chief Executive Officer of the Company or his, together
with his Permitted Affiliate Transferees, Beneficially Owning at least 4,500,000
shares of Common Stock); and (f) three (3) designees selected by a majority vote
of the persons selected as provided above. Stanton (and its Permitted Affiliate
Transferees) agrees with respect to the designee to the Board selected by the
vote of Stanton and Providence (or their respective Permitted Affiliate
Transferees) that from and after the date hereof and for so long as (i) JWS is
serving as the Chief Executive Officer of the Company or he, together with his
Permitted Affiliate Transferees, Beneficially Own at least 4,500,000 shares of
Common Stock, (ii) Stanton and Providence (and their respective Permitted
Affiliate Transferees) shall collectively Beneficially Own at least 4,500,000
shares of Common Stock, and (iii) Providence (or its Permitted Affiliate
Transferees) shall Beneficially Own at least 2,500,000 shares of Common Stock,
Stanton (and its Permitted Affiliate Transferees) shall so vote, or cause to be
voted, all of the shares of Common Stock owned or held of record by Stanton (and
its Permitted Affiliate Transferees) for one designee of Providence (and its
Permitted Affiliate Transferees). In addition, Hutchison shall have the right to
designate an additional director (and the Board shall in each case be expanded
by one member to accommodate such new designee) when Hutchison's aggregate
Percentage Ownership exceeds each of the following thresholds: 27.25%, 33.33%,
38.5%, 42.9%, 46.67% and 50%; and each of the Shareholders (and each of their
respective Permitted Affiliate Transferees) agrees that it will vote, or cause
to be voted, all of the shares of Common Stock 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 Shareholder'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), for the election and continuation in office of such designees
and to cause any requisite expansion of the Board to accommodate such designees.
No designee to the Board shall be removed from the Board (except
removal for cause under applicable law) without the written consent of the
Shareholder or group of Shareholders who has the right to designate such Person
to the Board (or, if such Shareholder or group of Shareholders has Transferred
all of their shares of Common Stock to Permitted Affiliate Transferees of such
Shareholder or group of Shareholders, without the written consent of Permitted
Affiliate Transferees holding a majority of the shares owned by all of such
Permitted Affiliate Transferees). Any Shareholder or group of Shareholders (or,
if such Shareholder or group of Shareholders has Transferred all of their shares
of Common Stock to Permitted Affiliate Transferees of such Shareholder or group
of Shareholders, Permitted Affiliate Transferees holding a majority of the
shares owned by all of such Permitted Affiliate Transferees) who has the
4
<PAGE>
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 the Company
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
Shareholders (and each of their respective Permitted Affiliate Transferees)
agrees that it will vote, or cause to be voted, all of the shares of Common
Stock 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 Shareholder'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), so as to cause
the election and continuation in office of any successor director designated by
any of the Shareholders (or any of such Shareholder's Permitted Affiliate
Transferees) pursuant to this Section 3.1. Notwithstanding the foregoing,
(a) if at any time H&F (and its Permitted Affiliate
Transferees) shall cease to Beneficially Own at least (i) 9,800,000 shares of
Common Stock, then in such event, H&F (or, if H&F has Transferred all of its
shares of Common Stock to Permitted Affiliate Transferees of H&F, its Permitted
Affiliate Transferees) shall be entitled to designate only one member of the
Board; and (ii) 4,500,000 shares of Common Stock, then in such event, H&F (or,
if H&F has Transferred all of its shares of Common Stock to Permitted Affiliate
Transferees of H&F, its Permitted Affiliate Transferees) shall not be entitled
to designate any member of the Board;
(b) if at any time GSC (or, if GSC has Transferred all of its
shares of Common Stock to Permitted Affiliate Transferees of GSC, its Permitted
Affiliate Transferees) shall cease to Beneficially Own at least 4,500,000 shares
of Common Stock, then in such event, GSC (or, if GSC has Transferred all of its
shares of Common Stock to Permitted Affiliate Transferees of GSC, its Permitted
Affiliate Transferees) shall not be entitled to designate any member of the
Board;
(c) if at any time Stanton and Providence (and their respective
Permitted Affiliate Transferees) shall cease collectively to Beneficially Own at
least 4,500,000 shares of Common Stock, then in such event, they shall not be
entitled to designate any member of the Board (except that JWS shall continue to
serve on the Board for so long as he holds the office of Chief Executive Officer
of the Company); and
(d) if at any time Hutchison (and its Permitted Affiliate
Transferees) shall cease to Beneficially Own at least (i) 9,800,000 shares of
Common Stock, then in such event Hutchison (or, if Hutchison has Transferred all
of its shares of Common Stock to Permitted Affiliate Transferees of Hutchison,
its Permitted Affiliate Transferees) shall be entitled to designate only one
member of the Board; and (ii) 4,500,000 shares of Common Stock, then in such
event, Hutchison (or, if Hutchison has Transferred all of its shares of Capital
Stock to Permitted Affiliate Transferees of Hutchison, its Permitted Affiliate
Transferees) shall not be entitled to designate any member of the Board. In
addition, if Hutchison shall have designated additional director(s) (in excess
of the two (2) specified above) by reason of an increase in its Percentage
Ownership as set forth in this Section 3.1 above, and at any time thereafter the
Percentage Ownership of Hutchison (and its Permitted Affiliate Transferees)
shall be less than the Percentage Ownership entitling Hutchison to such
additional director(s), then in such event Hutchison (or, if Hutchison has
Transferred all of its shares of Common Stock to Permitted Affiliate Transferees
of Hutchison, its Permitted Affiliate Transferees) shall cease to be entitled to
designate such additional director(s). Any vacancies on the Board created by
reason of the provisions of subsections (a) through (d) above shall be filled by
the directors then in office to serve until the next annual meeting of
shareholders of the Company, and at the next annual meeting shall be filled by a
vote of a plurality of all shareholders (including the Shareholders and their
Permitted Affiliate Transferees) of the Company; provided, however, that in the
event that the size of the Board shall have increased by reason of Hutchison
having the right to designate additional director(s) and thereafter Hutchison
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 Shareholders
(and each of their respective Permitted Affiliate Transferees) agrees that it
will vote, or cause to be voted, all of the shares of Common Stock 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
Shareholder'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.
(e) 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
5
<PAGE>
Wireless Corporation, dated February 17, 1998, as amended, among WWC, the
Company and Hutchison PCS, shall continue in full force and effect until
terminated in accordance with the terms of such Shareholders Agreement.
(f) The number of shares referred to in this Section 3.1 shall
be appropriately adjusted for any stock dividends, stock splits, reverse splits,
combinations, recapitalizations and the like occurring after the date hereof.
3.2 Company Covenant. The Company hereby agrees to use all
reasonable efforts to give effect to the provisions of Section 3.1. In this
regard, the Company shall, subject to the provisions of Section 3.1, duly
nominate the designees set forth above 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. Each Shareholder shall vote such
Shareholder's shares of Common Stock at any regular or special meeting of the
Shareholders or in any written consent executed in lieu of such a meeting of
Shareholders for the election of such designees. The Company and each
Shareholder shall take all other actions necessary to ensure that the
certificate of incorporation and by-laws of the Company 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.
4. Representations and Warranties.
Each of the Company, HFCP II, Orchard, International, JWS, TEG, PN,
SFT, SCC, GS, GSCP, BSF, SSF, Providence and Hutchison hereby represents and
warrants to the other parties as follows:
(a) Such Person has full power and authority to execute,
deliver and perform its obligations under this Agreement;
(b) This Agreement and all transactions contemplated hereby
have been duly and validly authorized by all necessary action on the part of
such Person and this Agreement constitutes the legal, valid and binding
obligation of such Person enforceable against it in accordance with its terms;
and
(c) Neither the execution, delivery or performance of this
Agreement by such Person, nor the consummation of the transactions contemplated
hereby will, with or without the giving of notice of 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, (i) any provision of the
certificate of incorporation, by-laws, partnership agreement or comparable
constituent document of such Person, (ii) any material note, bond, indenture,
mortgage, deed of trust, contract, agreement, lease or other instrument or
obligation to which any such Person is a party or by which it or its properties
may be bound or affected or (iii) any law, order, judgment, ordinance, rule,
regulation or decree to which any such Person is a party or by which it or any
of its properties are bound or affected.
5. Term.
This Agreement shall terminate upon the earliest to occur of any of
the following events:
(a) Upon agreement by all Shareholders then retaining the right
to designate directors under this Agreement; or
(b) The filing by the Company of a petition in bankruptcy or
the expiration of sixty (60) days after a petition in bankruptcy shall have been
filed against the Company 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 indebtedness
either through reorganization, winding-up, extension or otherwise, and such
proceedings involving the Company 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 property, or
the making by the Company of any general assignment for the benefit of
creditors, or the admitting in writing by the Company of its inability to pay
its debts as they mature; or upon the voluntary or involuntary liquidation or
dissolution of the Company; or
(c) The Beneficial Ownership of all of the Common Stock by only
one Shareholder (including its Permitted Affiliate Transferees).
6
<PAGE>
6. Miscellaneous.
6.1 Successors, Assigns and Transferees. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their Permitted
Affiliate Transferees. Each of the Shareholders hereby agrees that prior to any
Transfer of any Common Stock 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.
6.2 Specific Performance, Etc. 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 specific performance of this Agreement
pursuant to Section 6.12(x).
6.3 Headings. 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.
6.4 Notices. 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 courier (guaranteed delivery) or mailed,
registered mail, return receipt requested, or transmitted by telegram, telex or
facsimile (i) if to a Shareholder, at such Shareholder's address appearing below
or at any other address that such Shareholder may have provided in writing to
the Company and the other Shareholders then party to this Agreement and (ii) if
to the Company, at 3650 131 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 the Company may have furnished to the Shareholders 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. 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 third Business Day at the place of receipt following
sending and, if by registered air mail, on the tenth 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.
(a) if to JWS, TEG, PN, SFT or SCC:
c/o Stanton Communications, Inc.
131 Avenue SE
Bellevue, Washington 98006
Attention: John W. Stanton
Facsimile: (425) 586-8010
with a copy to (which shall not constitute notice):
Barry A. Adelman, Esq.
Friedman Kaplan & Seiler LLP
875 Third Avenue
New York, New York 10022-6225
Facsimile: (212) 355-6401
(b) if to GS, GSCP, BSF or SSF:
c/o Goldman, Sachs & Co.
85 Broad Street New York, New York 10004
Attention: Terence M. O'Toole
Facsimile: (212) 357-5505
7
<PAGE>
with a copy to (which shall not constitute notice):
Alison S. Ressler, Esq.
Sullivan & Cromwell
1888 Century Park East
Los Angeles, California 90067
Facsimile: (310) 712-8800
(c) if to HFCPII, Orchard or International:
c/o Hellman & Friedman
One Maritime Plaza, Suite 1200
San Francisco, California 94111
Attention: John L. Bunce, Jr.
General Partner and Richard Levine,
General Counsel
Facsimile: (415) 788-0176
(d) if to Providence:
c/o Providence Ventures, Inc.
900 Fleet Center
50 Kennedy Plaza
Providence, Rhode Island 02903
Attention: Jonathan M. Nelson
Facsimile: (401) 751-1790
with a copy to (which shall not constitute notice):
David K. Duffell, Esq.
Edwards & Angell
2700 Hospital Tower
Providence, Rhode Island 02903
Facsimile: (401) 276-6611
(e) if to Hutchison:
Hutchison Telecommunications PCS (USA) Limited
c/o Offshore Incorporations Limited
P.O. Box 957
Offshore Incorporations Centre
Road Town, Tortola
British Virgin Islands
Tel: (809) 494-2233
Fax: (809) 494-4885
and
Hutchison Telecommunications PCS (USA) Limited
22nd Floor, Hutchison House
10 Harcourt Road
8
<PAGE>
Hong Kong
Attention: Edith Shih
Tel: (852) 2128-1232
Fax: (852) 2128-1778
and
Hutchison Telecommunications Holdings (USA) Limited
22nd Floor, Hutchison House
10 Harcourt Road
Hong Kong
Attention: Edith Shih
Tel: (852) 2128-1232
Fax: (852) 2128-1778
with a copy to (which shall not constitute notice):
Dewey Ballantine LLP
Suite 3907, Asia Pacific Finance Tower
Citibank Plaza 3 Garden Road
Central, Hong Kong
Attention: John A. Otoshi
Tel: (852) 2509-7000
Fax: (852) 2509-7088
6.5 Exchanges, Recapitalizations, Etc. Affecting the Company's
Common Stock. The provisions of this Agreement shall apply, to the full extent
set forth herein with respect to the shares of Common Stock now or hereinafter
owned by each Shareholder (and its Permitted Affiliate Transferees), to any and
all securities of the Company or any successor or assign of the Company (whether
by merger, consolidation or otherwise) that may be issued in respect of, in
exchange for, or in substitution of such shares of Common Stock, and shall be
appropriately adjusted for any stock dividends, stock splits, reverse splits,
combinations, recapitalizations and similar events occurring after the date
hereof.
6.6 Inspection and Compliance with Law. Copies of this Agreement
will be available for inspection or copying by any interested Person at the
offices of the Company through the Secretary of the Company. The Company 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.
6.7 Waivers. 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 each of the Shareholders. 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.
6.8 Amendments. This Agreement may be amended or modified at any
time by a writing setting forth such amendment or modification, signed by the
Company and by Shareholders (or their Permitted Affiliate Transferees) owning in
the aggregate at least 90% of the aggregate Voting Power of the Shareholders
(and their Permitted Affiliate Transferees); provided, however, that, unless
such amendment is signed by the Company and by each Shareholder (or its
Permitted Affiliate Transferees) adversely affected by such amendment, no such
amendment or modification shall (i) eliminate any right of any Shareholder (or
its Permitted Affiliate Transferees) to designate the member or members of the
Board it is entitled to designate in accordance with Section 3.1 hereof (it
being understood and agreed that this clause (i) shall not prohibit the
enlargement of the Board) or (ii) change the Effective Date.
9
<PAGE>
6.9 Counterparts. 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.
6.10 Obligations Several. The obligations of each of the
Shareholders under this Agreement shall be several with respect to each such
Shareholder.
6.11 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.
6.12 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 New York applicable to contracts formed
in such State. Each party hereto agrees that, subject to Section 6.12 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.
6.13 Arbitration. Any and all disputes, controversies or claims
(each a "Dispute") between the Shareholders 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:
(i) There shall be three arbitrators (the "Arbitrators") which
shall be appointed in accordance with the procedures of the American Arbitration
Association.
(ii) The expenses of the arbitration shall be borne equally by
the Shareholders 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.
(iii) 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.
(iv) 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).
(v) 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 Arbitrators is relief or remedy on which a court could enter
judgement, a judgement 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 (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.
(vi) The arbitration shall take place in Seattle, Washington,
unless otherwise agreed by the parties, and shall be conducted in the English
language.
10
<PAGE>
(vii) 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.
(viii) 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.
(ix) 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.
(x) Notwithstanding the dispute resolution procedures contained
in this Section 6.12, 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 6.12.
6.14 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.
6.15 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.
6.16 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.
11
<PAGE>
IN WITNESS WHEREOF, each of the parties has executed or caused this
Agreement to be executed by its duly authorized officer as of the date first
above written.
VOICESTREAM WIRELESS CORPORATION
By: /s/ John W. Stanton
-----------------------------------------------
Name: John W. Stanton
Title: Chairman
HUTCHISON TELECOMMUNICATIONS PCS
(USA) LIMITED
By: /s/ Ting Chan
-----------------------------------------------
Name: Ting Chan
Title: Director
HUTCHISON TELECOMMUNICATIONS HOLDINGS
(USA) LIMITED)
By: /s/ Khoo Chek Ngee
-----------------------------------------------
Name: Khoo Chek Ngee
Title: Director
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: /s/ John L. Bunce, Jr.
------------------------------------------
Name: John L. Bunce, Jr.
Title: Vice President
H & F ORCHARD PARTNERS, L.P.,
a California limited partnership
By: H & F Orchard Investors, L.P.,
its general partner
By: H & F Orchard Investors, Inc.,
its general partner
By: /a/ John L. Bunce, Jr.
-------------------------------------
Name: John L. Bunce, Jr.
Title: Vice president
12
<PAGE>
H & F INTERNATIONAL PARTNERS, L.P.,
a California limited partnership
By: H & F International Investors, L.P.,
its general partner
By: H & F International Investors, Inc.,
its general partner
By: /s/ John L. Bunce, Jr.
-------------------------------------
Name: John L. Bunce, Jr.
Title: Vice President
/s/ John W. Stanton
----------------------------------------------------
JOHN W. STANTON
/s/ Theresa E. Gillespie
----------------------------------------------------
THERESA E. GILLESPIE
PN CELLULAR, INC.
By: /s/ John W. Stanton
-----------------------------------------------
Name: John W. Stanton
Title:
STANTON FAMILY TRUST
By: /s/ Donald Guthrie /s/ John W. Stanton
-----------------------------------------------
Name: Donald Guthrie, John W. Stanton, Trustees
STANTON COMMUNICATIONS CORPORATION
By: /s/ John W. Stanton
-----------------------------------------------
Name: John W. Stanton
Title:
THE GOLDMAN SACHS GROUP, L.P.
By: /s/ Terence M. O'Toole
-----------------------------------------------
Name: Terence M. O'Toole
Title: Vice President
GS CAPITAL PARTNERS, L.P.
By: GS Advisors L.P., General Partner
By: GS Advisors, Inc., General Partner
By: /s/ Eve M. Gerriets
-------------------------------------
Name: Eve M. Gerriets
Title: Vice President
13
<PAGE>
BRIDGE STREET FUND 1992, L.P.
By: Stone Street Performance Corp.,
Managing General Partner
By: /s/ Eve M. Gerriets
-----------------------------------------------
Name: Eve M. Gerriets
Title: Vice President
STONE STREET FUND 1992, L.P.
By: Stone Street Performance Corp.,
General Partner
By: /s/ Eve M. Gerriets
-----------------------------------------------
Name: Eve M. Gerriets
Title: Vice President
PROVIDENCE MEDIA PARTNERS L.P.
By: Providence Media GP Limited Partnership
Its: General Partner
By: Providence Ventures, L.P.
Its: General Partner
By: /s/ Jonathan M. Nelson
-----------------------------------------------
Name: Jonathan M. Nelson
Title: General Partner
14
<PAGE>
VOTING AGREEMENT
BY AND AMONG
VOICESTREAM WIRELESS CORPORATION,
HELLMAN & FRIEDMAN CAPITAL PARTNERS II, L.P.,
H&F ORCHARD PARTNERS, L.P., H&F INTERNATIONAL PARTNERS, L.P.,
JOHN W. STANTON and THERESA E. GILLESPIE,
PN CELLULAR, INC., STANTON FAMILY TRUST,
STANTON COMMUNICATIONS CORPORATION,
GS CAPITAL PARTNERS, L.P., THE GOLDMAN SACHS GROUP, L.P.,
BRIDGE STREET FUND 1992, L.P., STONE STREET FUND 1992, L.P.,
PROVIDENCE MEDIA PARTNERS L.P.,
HUTCHISON TELECOMMUNICATIONS HOLDINGS (USA) LIMITED,
AND
HUTCHISON TELECOMMUNICATIONS PCS (USA) LIMITED
DATED: MAY 3, 1999
15
<PAGE>
TABLE OF CONTENTS
SECTION PAGE
- ------- ----
1. Certain Definitions ................................................... 2
1.1 "Agreement" ...................................................... 2
1.3 "Beneficially Own" ............................................... 2
1.4 "Board" .......................................................... 3
1.5 "BSF" ............................................................ 3
1.6 "Business Day" ................................................... 3
1.7 "Common Stock" ................................................... 3
1.8 "Company" ........................................................ 3
1.9 "Dispute" ........................................................ 3
1.10 "Effective Date" ................................................. 3
1.11 "Exchange Act" ................................................... 3
1.12 "GS" ............................................................. 3
1.13 "GSC" ............................................................ 3
1.14 "GSCP" ........................................................... 3
1.15 "H&F" ............................................................ 4
1.16 "HFCP II" ........................................................ 4
1.17 "HTL" ............................................................ 4
1.18 "Hutchison" ...................................................... 4
1.19 "Immediate Family" ............................................... 4
1.20 "International" .................................................. 4
1.21 "JWS" ............................................................ 4
1.22 "Orchard" ........................................................ 4
1.23 "Percentage Ownership" ........................................... 4
1.24 "Permitted Affiliate Transferee" ................................. 4
1.25 "Person" ......................................................... 5
1.26 "PN" ............................................................. 5
1.27 "Providence" ..................................................... 5
1.28 "SCC" ............................................................ 5
1.29 "SFT" ............................................................ 5
1.30 "Shareholder" .................................................... 5
1.31 "Spin-Off" has the meaning ....................................... 5
1.32 "SSF" ............................................................ 5
1.33 "Stanton" ........................................................ 5
1.34 "Subsidiary" ..................................................... 5
1.35 "TEG" ............................................................ 5
1.36 "Transfer" ....................................................... 6
1.37 "WWC" ............................................................ 6
1.38 "WWC Shareholders Agreement" has the meaning given in the
preamble ......................................................... 6
2. Effectiveness; Legend ................................................. 6
3. Management of the Corporation ......................................... 7
3.1 Board of Directors ............................................... 7
3.2 Company Covenant ................................................. 11
4. Representations and Warranties ........................................ 12
5. Term .................................................................. 12
6. Miscellaneous ......................................................... 13
16
<PAGE>
6.1 Successors, Assigns and Transferees .............................. 13
6.2 Specific Performance, Etc ........................................ 14
6.3 Headings ......................................................... 14
6.4 Notices .......................................................... 14
6.5 Exchanges, Recapitalizations, Etc. Affecting the Company's
Common Stock ..................................................... 17
6.6 Inspection and Compliance with Law ............................... 17
6.7 Waivers .......................................................... 18
6.8 Counterparts ..................................................... 18
6.9 Obligations Several .............................................. 18
6.10 Entire Agreement ................................................. 18
6.11 Applicable Law ................................................... 18
6.12 Arbitration ...................................................... 19
6.13 Failure to Pursue Remedies ....................................... 22
6.14 Cumulative Remedies .............................................. 22
6.15 Severability ..................................................... 22
17
<PAGE>
Schedule 1
to
Voting Agreement
NO. OF SHARES
OF COMMON STOCK
NAME OF SHAREHOLDER OWNED BY SHAREHOLDERS
- ------------------- ---------------------
Hellman & Friedman Capital Partners II, L.P. 11,108,169
H&F Orchard Partners, L.P. 993,648
H&F International Partners, L.P. 197,180
GS Capital Partners, L.P. 8,986,738
Bridge Street Fund 1992, L.P. 270,069
Stone Street Fund 1992, L.P. 470,401
The Goldman Sachs Group, L.P. 68,821
PN Cellular, Inc. 1,685,069
Stanton Communications Corporation 1,274,519
John W. Stanton & Theresa E. Gillespie 3,257,774
Stanton Family Trust 164,437
Providence Media Partners L.P. 3,338,768
Hutchison Telecommunications PCS (USA) Limited 19,010,364
Hutchison Telecommunications Holdings (USA) Limited 3,888,888
18
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and
entered into as of this 3rd day of May , 1999 by and among VoiceStream Wireless
Corporation, a Washington corporation (the "Company"), Hellman & Friedman
Capital Partners II, L.P., a California limited partnership ("HFCP II"), H & F
Orchard Partners, L.P., a California limited partnership ("Orchard"), H & F
International Partners, L.P., a California limited partnership ("International";
HFCP II, Orchard and International are hereinafter referred to collectively as
"H&F"), John W. Stanton ("JWS"), Theresa E. Gillespie ("TEG"), PN Cellular,
Inc., a Washington corporation ("PN"), Stanton Family Trust, established
November 1, 1990 by JWS and TEG, as settlors f/b/o the settlors' children
("SFT"), Stanton Communications Corporation, a Washington corporation ("SCC";
JWS, TEG, PN, SFT and SCC are hereinafter referred to collectively as
"Stanton"), GS Capital Partners, L.P., a Delaware limited partnership ("GSCP"),
The Goldman Sachs Group, L.P., a Delaware limited partnership ("GS"), Bridge
Street Fund 1992, L.P., a Delaware limited partnership ("BSF"), Stone Street
Fund 1992, L.P., a Delaware limited partnership ("SSF"; GSCP, GS, BSF and SSF
are hereinafter referred to collectively as "GSC"), and Providence Media
Partners L.P., a Delaware limited partnership ("Providence") (each of H&F,
Stanton, GSC, and Providence are hereinafter referred to individually as a
"Stockholder" and collectively as the "Stockholders").
R E C I T A L S
WHEREAS, the Company and Western Wireless Corporation, a Washington
Corporation ("WWC"), are parties to that certain Agreement and Plan of
Distribution, dated as of April 9, 1999, pursuant to which, among other things,
WWC has agreed, upon the terms and conditions set forth therein, to distribute
the shares of the Company's Common Stock, no par value (the "Common Stock"),
owned by it, which shares represent 80.1% of the issued and outstanding shares
of Common Stock, to WWC's stockholders, which include the Stockholders, on the
basis of one share of Common Stock for each one share of WWC's outstanding
common stock (the "Spin-Off");
WHEREAS, certain of the Stockholders and certain other persons were
parties to that certain Stockholders Agreement, dated as of July 29, 1994, as
amended by the First Amendment to Stockholders Agreement, dated as of November
30, 1994 (as amended, the "WWC Stockholders Agreement"), relating to, among
other things, their ownership of shares of common stock of WWC and certain
registration rights with respect thereto;
WHEREAS, the Stockholders and WWC are parties to that certain Voting
Agreement, dated as of May 13, 1996 (the "WWC Voting Agreement"), setting forth,
among other things, certain agreements regarding the termination of the WWC
Stockholders Agreement (except as expressly set forth in Section 10.2 of the WWC
Stockholders Agreement with respect to the survival of certain registration and
other rights) upon the consummation of WWC's Public Offering (as defined in the
WWC Voting Agreement);
WHEREAS, the WWC Stockholders Agreement terminated upon the
consummation of WWC's Public Offering pursuant to the terms thereof and the
terms of the WWC Voting Agreement, except as expressly set forth in Section 10.2
of the WWC Stockholders Agreement with respect to the survival of certain
registration and other rights granted to Stockholders and Minority Stockholders
(as defined in the WWC Stockholders Agreement) to the extent such persons were
Stockholders or Minority Stockholders immediately prior to the consummation of
WWC's Public Offering; and
WHEREAS, simultaneously with the consummation of the Spin-Off (the date
of such consummation being hereinafter referred to as the "Spin-Off Effective
Date"), this Agreement shall be in full force and effect in accordance with its
terms in order, among other things, to clarify that the registration rights
which survive pursuant to Section 10.2 of the WWC Stockholders Agreement shall
extend, as well, and to the same extent, to the shares of Common Stock.
<PAGE>
NOW THEREFORE, in consideration of the mutual covenants herein
contained and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Stockholders and the Company
agree as follows:
1. Effectiveness. This Agreement shall become effective on the Spin-Off
Effective Date. If the Spin-Off Effective Date does not occur on or before
December 31, 1999, this Agreement shall terminate and be of no further force or
effect whatsoever.
2. Registration Rights. (a) The Company and the Stockholders hereby
agree and affirm that the registration rights granted under the WWC Stockholders
Agreement to the Stockholders and the Minority Stockholders (to the extent such
persons were Stockholders and Minority Stockholders immediately prior to the
consummation of WWC's Public Offering) shall extend (to the same extent, on the
same terms and in the same manner that such rights survived the termination of
the WWC Stockholders Agreement with respect to shares of common stock, no par
value, of WWC), to shares of Common Stock issued to each Stockholder and each
such Minority Stockholder as a result of the Spin-Off. It is understood that,
for purposes of this Agreement, each reference set forth in the WWC Stockholders
Agreement to (a) "Common Stock" shall be deemed to mean shares of "Common Stock
of VoiceStream Wireless Corporation, no par value," (b) the "Company" shall be
deemed to mean "VoiceStream Wireless Corporation" and (c) an "Investor" or the
"Investors" shall be deemed to mean a Stockholder or the Stockholders,
respectively.
3. Term; Survival.
(a) This Agreement shall terminate upon the earliest to occur of any
of the following events:
(i) The consent in writing of all of the parties hereto; or
(ii) July 29, 2004; or
(iii) The filing by the Company of a petition in bankruptcy or
the expiration of sixty (60) days after a petition in bankruptcy shall
have been filed against the Company 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 indebtedness either through
reorganization, winding-up, extension or otherwise, and such
proceedings involving the Company 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 property, or the making by the
Company of any general assignment for the benefit of creditors, or the
admitting in writing by the Company of its inability to pay its debts
as they mature; or upon the voluntary or involuntary liquidation or
dissolution of the Company; or
(iv) The beneficial ownership of all of the Common Stock by only
one Stockholder.
(b) Nothing contained in this Section 3 shall affect or impair any
rights or obligations of any party hereto arising prior to the time of the
termination of this Agreement, or which may arise by an event causing the
termination of this Agreement.
4. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective legal
representatives, heirs, successors and assigns.
5. Specific Performance. The Company and each Stockholder, in addition
to being entitled to exercise all of the rights provided herein or in the
Company's Certificate of Incorporation or granted by law, including recovery of
damages, will be entitled to specific performance of its rights under this
Agreement. Each of the Company and the Stockholders agree that monetary damages
would not be adequate compensation for any loss incurred by it by reason of a
breach by any other party hereto of the provisions of this Agreement and hereby
agrees to waive the defense in any action for specific performance that a remedy
at law would be adequate.
2
<PAGE>
6. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware as applied to agreements
entered into and wholly to be performed within the State of Delaware.
7. Headings. The captions 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.
8. Notices. Any notice required or permitted hereunder shall be given
in writing and shall be conclusively deemed effectively received by the
addressee upon personal delivery, on the date of receipt if sent by facsimile or
overnight courier, charges prepaid, or five days after deposit in the United
States mail, by registered or certified mail, postage prepaid, addressed as
follows:
(a) if to the Company: VoiceStream Wireless Corporation
3650 131 Avenue SE
Bellevue, Washington 98005
Attention: General Counsel
Facsimile: (425) 586-8080
with copies to: Alan R. Bender, Esq.
3650 131 Avenue SE
Bellevue, Washington 98005
Facsimile: (425) 586-8080
and:
Barry A. Adelman, Esq.
Friedman Kaplan & Seiler LLP
875 Third Avenue New
York, New York 10022-6225
Facsimile: (212) 355-6401
(b) if to HFCP II,
Orchard or International: c/o Hellman & Friedman
One Maritime Plaza, Suite 1200
San Francisco, California 94111
Attention: John L. Bunce, Jr.
General Partner, and
Richard Levine, General Counsel
Facsimile: (415) 788-0176
(c) if to JWS, TEG
PN or SCC: c/o Stanton Communications, Inc.
3650 131 Avenue SE
Bellevue, Washington 98006
Attention: John W. Stanton
Facsimile: (425) 586-8010
with a copy to: Barry A. Adelman, Esq.
Friedman Kaplan & Seiler LLP
875 Third Avenue
New York, New York 10022-6225
Facsimile: (212) 355-6401
3
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(d) if to GS, GSCP, GSC,
BSF or SSF: c/o Goldman Sachs & Co.
85 Broad Street
New York, New York 10004
Attention: Terence M. O'Toole
Facsimile: (212) 902-4103
with a copy to: Alison S. Ressler, Esq.
Sullivan & Cromwell
1888 Century Park East
Los Angeles, California 90067
Facsimile: (310) 712-8800
(e) if to Providence: c/o Providence Ventures, Inc.
900 Fleet Center
50 Kennedy Plaza
Providence, Rhode Island 02903
Attention: Jonathan M. Nelson
Facsimile: (401) 751-1790
with a copy to: David K. Duffell, Esq.
Edwards & Angell
2700 Hospital Tower
Providence, Rhode Island 02903
Facsimile: (401) 276-6611
or to such other address or facsimile number as any party may have furnished in
writing to the other parties in the manner provided above.
9. Exchanges, Recapitalizations, Etc. Affecting the Company's Common
Stock. The provisions of this Agreement shall apply, to the full extent set
forth herein with respect to the shares of Common Stock now or hereinafter owned
by each Stockholder, to any and all securities of the Company or any successor
or assign of the Company (whether by merger, consolidation or otherwise) that
may be issued in respect of, in exchange for, or in substitution of such shares
of Common Stock, and shall be appropriately adjusted for any stock dividends,
stock splits, reverse splits, combinations, recapitalizations and the like
occurring after the date hereof.
10. Inspection and Compliance with Law. Copies of this Agreement will
be available for inspection or copying by any interested person at the offices
of the Company through the Secretary of the Company. The Company will otherwise
take all actions as may be necessary or appropriate to comply with any
applicable law relating to the validity and enforceability of stockholder
agreements containing the provisions of this Agreement.
11. Waivers. 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.
12. Amendments. This Agreement may be amended or modified at any time
by a writing setting forth such amendment or modification, signed by all of the
parties hereto.
13. Multiple Counterparts. This Agreement may be executed in any number
of counterparts, each of which when so executed shall constitute an original
copy hereof, but all of which together shall constitute one agreement.
4
<PAGE>
14. Severability. In the event that any one or more of the provisions
contained in this Agreement or in any other document, instrument or agreement
referred to herein, shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision of this Agreement or any other such
document, instrument or agreement.
15. Entire Agreement. This Agreement and the WWC Stockholders Agreement
contain the entire understanding among the parties hereto concerning the subject
matter hereof and supersede all prior agreements and undertakings, whether
written or oral, with respect to the subject matter hereof.
5
<PAGE>
IN WITNESS WHEREOF, each of the parties has executed or caused this
Agreement to be executed by its duly authorized officer as of the date first
above written.
VOICESTREAM WIRELESS CORPORATION
By: /s/ John W. Stanton
-----------------------------------------------
Name: John W. Stanton
Title: Chairman
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: /s/ John L. Bunce, Jr.
------------------------------------------
Name: John L. Bunce, Jr.
Title: Vice President
H & F ORCHARD PARTNERS, L.P.,
a California limited partnership
By: H & F Orchard Investors, L.P.,
its general partner
By: H & F Orchard Investors, Inc.,
its general partner
By: /a/ John L. Bunce, Jr.
-------------------------------------
Name: John L. Bunce, Jr.
Title: Vice president
H & F INTERNATIONAL PARTNERS, L.P.,
a California limited partnership
By: H & F International Investors, L.P.,
its general partner
By: H & F International Investors, Inc.,
its general partner
By: /s/ John L. Bunce, Jr.
-------------------------------------
Name: John L. Bunce, Jr.
Title: Vice President
/s/ John W. Stanton
----------------------------------------------------
JOHN W. STANTON
/s/ Theresa E. Gillespie
----------------------------------------------------
THERESA E. GILLESPIE
6
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PN CELLULAR, INC.
By: /s/ John W. Stanton
-----------------------------------------------
Name: John W. Stanton
Title:
STANTON FAMILY TRUST
By: /s/ Donald Guthrie /s/ John W. Stanton
-----------------------------------------------
Name: Donald Guthrie, John W. Stanton , Trustee
STANTON COMMUNICATIONS CORPORATION
By: /s/ John W. Stanton
-----------------------------------------------
Name: John W. Stanton
Title:
THE GOLDMAN SACHS GROUP, L.P.
By: /s/ Terence M. O'Toole
-----------------------------------------------
Name: Terence M. O'Toole
Title: Vice President
GS CAPITAL PARTNERS, L.P.
By: GS Advisors L.P., General Partner
By: GS Advisors, Inc., General Partner
By: /s/ Eve M. Gerriets
-----------------------------------------------
Name: Eve M. Gerriets
Title: Vice President
BRIDGE STREET FUND 1992, L.P.
By: Stone Street Performance Corp.,
Managing General Partner
By: /s/ Eve M. Gerriets
-----------------------------------------------
Name: Eve M. Gerriets
Title: Vice President
STONE STREET FUND 1992, L.P.
By: Stone Street Performance Corp.,
General Partner
By: /s/ Eve M. Gerriets
-----------------------------------------------
Name: Eve M. Gerriets
Title: Vice President
7
<PAGE>
PROVIDENCE MEDIA PARTNERS L.P.
By: Providence Media GP Limited Partnership
Its: General Partner
By: Providence Ventures, L.P.
Its: General Partner
By: /s/ Jonathan M. Nelson
-----------------------------------------------
Name: Jonathan M. Nelson
Title: General Partner
8
<PAGE>
REGISTRATION RIGHTS AGREEMENT
BY AND AMONG
VOICESTREAM WIRELESS CORPORATION,
HELLMAN & FRIEDMAN CAPITAL PARTNERS II, L.P.,
H&F ORCHARD PARTNERS, L.P., H&F INTERNATIONAL PARTNERS, L.P.,
JOHN W. STANTON and THERESA E. GILLESPIE,
PN CELLULAR, INC., STANTON FAMILY TRUST,
STANTON COMMUNICATIONS CORPORATION,
GS CAPITAL PARTNERS, L.P., THE GOLDMAN SACHS GROUP, L.P.,
BRIDGE STREET FUND 1992, L.P., STONE STREET FUND 1992, L.P.
PROVIDENCE MEDIA PARTNERS L.P.;
DATED: MAY 3, 1999
9
<PAGE>
TABLE OF CONTENTS
SECTION PAGE
- ------- ----
1. Effectiveness .......................................................... 3
2. Registration Rights .................................................... 3
3. Term; Survival ......................................................... 4
4. Successors and Assigns ................................................. 5
5. Specific Performance ................................................... 5
6. Governing Law .......................................................... 5
7. Headings ............................................................... 5
8. Notices ................................................................ 5
9. Exchanges, Recapitalizations, Etc. Affecting the
Company's Common Stock ................................................. 7
10. Inspection and Compliance with Law ..................................... 8
11. Waivers ................................................................ 8
12. Amendments ............................................................. 8
13. Multiple Counterparts .................................................. 8
14. Severability ........................................................... 8
15. Entire Agreement ....................................................... 9
10
