SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
VoiceStream Wireless Corporation
(Name of Issuer)
Common Stock
(Title of Class of Securities)
928615103
--------------------------------------
(CUSIP Number)
Richard L. Fields
c/o Allen & Company Incorporated
711 Fifth Avenue
New York, NY 10022
(212) 832-8000
(Name, address and telephone number of person authorized
to receive notices and communications)
February 25, 2000
--------------------------------------
(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>
- --------------------
CUSIP NO. 928615103
- --------------------
- -------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Richard L. Fields
- -------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [X ]
- -------------------------------------------------------------------------------
3. SEC USE ONLY
- -------------------------------------------------------------------------------
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
U.S.A.
- -------------------------------------------------------------------------------
7. SOLE VOTING POWER
NUMBER OF *
SHARES -----------------------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY
EACH -----------------------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON *
WITH -----------------------------------------------------
10. SHARED DISPOSITIVE POWER
-----------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
*
- -------------------------------------------------------------------------------
12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
[ ]
- -------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
*
- -------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
IN
- -------------------------------------------------------------------------------
* The number of shares owned by the reporting person is based on an election in
connection with the merger between Omnipoint Corporation and VoiceStream
Wireless Corporation. Such election does not become final until a later date so
the number is not determinable at this time.
<PAGE>
- --------------------
CUSIP NO. 928615103
- --------------------
- -------------------------------------------------------------------------------
1.NAME OF REPORTING PERSON - S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Allen & Company Incorporated
- -------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [ X]
- -------------------------------------------------------------------------------
3. SEC USE ONLY
- -------------------------------------------------------------------------------
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
N/A
- -------------------------------------------------------------------------------
7. SOLE VOTING POWER
NUMBER OF *
SHARES ----------------------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY
EACH ----------------------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON *
WITH ----------------------------------------------------
10. SHARED DISPOSITIVE POWER
----------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
*
- ------------------------------------------------------------------------
12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
[ ]
- ------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
*
- ------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
BD
- ------------------------------------------------------------------------
* The number of shares owned by the reporting person is based on an election in
connection with the merger between Omnipoint Corporation and VoiceStream
Wireless Corporation. Such election does not become final until a later date so
the number is not determinable at this time.
<PAGE>
Item 1. Security and Issuer.
-------------------
This statement on Schedule 13D relates to the common stock,
$.001 par value (the "Common Stock"), of VoiceStream Wireless Corporation, a
Delaware corporation (the "Company"). The principal executive offices of the
Company are located at 3650 131st Avenue SE, Bellevue, Washington 98006.
Item 2. Identity and Background.
-----------------------
(a) NAME OF PERSONS FILING (the "Filing Persons"):
Richard L. Fields
Allen & Company Incorporated
711 Fifth Avenue
New York, NY 10022
(b) ADDRESS OF PRINCIPAL BUSINESS AND PRINCIPAL OFFICE:
For each Filing Person:
c/o Allen & Company Incorporated
711 Fifth Avenue
New York, NY 10022
(c) PRINCIPAL BUSINESS:
Mr. Fields is a Managing Director of Allen & Company
Incorporated, an investment bank and broker-dealer with offices at 711 Fifth
Avenue, New York, NY 10022.
(d) WHETHER DURING LAST FIVE YEARS, ANY SUCH PERSON HAS BEEN
CONVICTED IN A CRIMINAL PROCEEDING (EXCLUDING TRAFFIC VIOLATIONS OR SIMILAR
MISDEMEANORS) AND, IF SO, GIVE THE DATES, NATURE OF CONVICTION, NAME AND
LOCATION OF COURT, ANY PENALTY IMPOSED, OR OTHER DISPOSITION OF THE CASE:
During the past five years, none of the Filing Persons has
been convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors).
(e) WHETHER DURING THE LAST FIVE YEARS, ANY SUCH PERSON WAS 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; AND, IF SO, IDENTIFY AND DESCRIBE SUCH
PROCEEDINGS AND SUMMARIZE THE TERMS OF SUCH JUDGMENT, DECREE OR FINAL ORDER:
During the past five years, none of the Filing Persons has
been a party to a civil proceeding of a judicial or administrative body of
competent jurisdiction as a result of which such person was or is subject to a
judgment, decree or final order enjoining future violations of, or prohibiting
or mandating activity subject to, federal or state securities laws or finding
any violation with respect to such laws.
(f) CITIZENSHIP:
Mr. Fields is a citizen of the United States of America.
Item 3. Source and Amount of Funds or Other Consideration.
-------------------------------------------------
On February 25, 2000, pursuant to the requisite approval of
the shareholders of each of VoiceStream Wireless Corporation, a Washington
corporation ("VWC"), and Omnipoint Corporation, a Delaware corporation
("Omnipoint"), wholly-owned subsidiaries of the Company merged into each of VWC
and Omnipoint (such events being referred to herein collectively as the
"Merger"). As a result of the Merger, (a) shareholders of VWC received one share
of Common Stock for each share of common stock of VWC that they owned at the
time of the Merger and (b) shareholders of Omnipoint were given the choice of
electing to receive for each share of Omnipoint Common Stock that they owned at
the time of the Merger either (i) the standard election, which consists of .825
of a share of Common Stock plus $8.00 in cash, (ii) the all stock election
whereby they would ask to receive a number of shares of Common Stock determined
in accordance with the Merger agreement, or (iii) the all cash election whereby
they would ask to receive all cash determined in accordance with the Merger
agreement. Under the terms of the Merger, there is a fixed number of total
shares of Common Stock and a fixed amount of total cash that the Company will
issue and pay to holders of Omnipoint common stock. Accordingly, persons
electing the all stock or all cash election might receive a mix of Common Stock
and cash.
Item 4. Purpose of the Transaction.
--------------------------
The acquisitions of Common Stock by the Filing Persons were
made for investment purposes only.
None of the Filing Persons has any present plans or intentions
which would result in or relate to any of the transactions described in
subparagraphs (a) through (j) of Item 4 of Schedule 13D; however, the Filing
Persons have entered into the Voting Agreement described under Item 6 below.
Each of the Filing Persons, however, expects to evaluate on an ongoing basis the
Company's financial condition, business, operations and prospects, the market
price of the Common Stock, conditions in the securities markets generally,
general economic and industry conditions and other factors. The Filing Persons
may purchase additional shares of Common Stock or may sell shares of Common
Stock from time to time in public or private transactions (subject to any
applicable limitations imposed on the sale of any of their shares of Common
Stock by the Securities Act of 1933, as amended).
Item 5. Interest in Securities of the Issuer.
------------------------------------
(a) AGGREGATE NUMBER AND PERCENTAGE OF SECURITIES
BENEFICIALLY OWNED:
The aggregate number and percentage of securities beneficially
owned by the Filing Persons is based on an election in connection with the
merger between Omnipoint and VWC. Such election does not become final until a
later date so the number is not determinable at this time.
(b) NUMBER OF SHARES AS TO WHICH SUCH PERSON HAS POWER
TO VOTE:
Mr. Fields has sole voting and investment power with respect
to the shares held by him, and Allen & Company Incorporated has sole voting and
investment power with respect to the shares held by it.
(c) TRANSACTIONS EFFECTED DURING THE PAST 60 DAYS OR
SINCE THE MOST RECENT FILING ON SCHEDULE 13D,
WHICHEVER IS LESS:
On February 25, 2000, the Merger was consummated. Beneficial
ownership of the Common Stock was acquired by the Filing Persons pursuant to the
Merger, in which they received shares of Common Stock in exchange for their
shares of stock in VWC and/or Omnipoint. No consideration was paid for the
acquisition of shares of Common Stock pursuant to the Merger.
(d) To the best knowledge of each Filing Person, no other
person is known to have the right to receive or the power to direct the receipt
of dividends from, or the proceeds from the sale of the Common Stock.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or
Relationships Involving Securities of the Issuer.
----------------------------------------------------
The Company, the Filing Persons and certain other persons have
entered into an agreement, dated as of February 25, 2000 (the "Voting
Agreement"). Pursuant to the Voting Agreement, the Filing Persons have agreed to
vote their shares of Common Stock for the election of a board initially
consisting of 16 members, subject to adjustments, designated as follows: (i)
John W. Stanton, as long as he is the chief executive officer of the Company;
(ii) one member designated by Mr. Stanton, so long as he or entities affiliated
with him beneficially own at least 4,500,000 shares of Common Stock; (iii) four
members designated by Hutchison PCS (USA) Limited and its affiliated entities,
which number of designees shall be subject to increases or decreases depending
upon increases or reductions in Hutchison PCS (USA)'s percentage ownership of
outstanding Common Stock, including shares of Common Stock issuable to Hutchison
PCS (USA) upon conversion of the Company's 2.5% Convertible Junior Preferred
Stock; (iv) one member designated by Goldman, Sachs & Co., Inc. and affiliated
entities, so long as the Goldman Sachs entities beneficially own at least
4,500,000 shares of Common Stock; (v) four members who were on the Omnipoint
board prior to the Merger and who are selected by Omnipoint to serve during the
period from the closing of the Merger until and including the second annual
meeting of stockholders of the Company taking place after the closing of the
Merger (the designees of Omnipoint are initially Douglas G. Smith, Richard L.
Fields, James N. Perry, Jr., and James J. Ross), (vi) one member designated by
Sonera Corporation and its affiliated entities, so long as the Sonera entities
beneficially own at least 4,500,000 shares of Common Stock; and the remaining
members of the board to be selected by a majority of the persons selected as
described above.
In addition, the Voting Agreement provides that in the event
of the consummation of the transactions described in that certain Agreement and
Plan of Reorganization, dated as of September 17, 1999 (as the same may be
amended from time to time, the "Aerial Reorganization Agreement"), by and among
VWC, the Company, VoiceStream Subsidiary III Corporation, a Delaware corporation
("Merger Sub"), Aerial Communications, Inc., a Delaware corporation ("Aerial"),
and Telephone and Data Systems, Inc., a Delaware corporation ("TDS"), pursuant
to which, among other things, Merger Sub is to be merged with and into Aerial
(such merger, together with the related transactions contemplated by the Aerial
Reorganization Agreement, being referred to herein as the "Aerial
Reorganization"), then TDS will become a party to the Voting Agreement, the
number of members of the board of directors of the Company will be increased to
17, and TDS will be entitled to designate a member so long as TDS owns at least
4,500,000 shares of Common Stock. The Voting Agreement further provides that,
upon completion of the Aerial Reorganization, if TDS owns more than 9,800,000
shares of Common Stock and Sonera owns less than 4,500,000 shares of Common
Stock, TDS will be entitled to designate two members to the board of the
Company, and if Sonera owns more than 9,800,000 shares of Common Stock and TDS
owns less than 4,500,000 shares of Common Stock, Sonera will be entitled to
designate two members to the board of the Company.
The foregoing description of the Voting Agreement is subject
to, and qualified in its entirety by reference to, the agreement, which is filed
as Exhibit 1 hereto and incorporated by reference into this Item 6.
Item 7. Material To be Filed as Exhibits.
--------------------------------
1. Voting Agreement, dated as of February 25, 2000, by and among
VoiceStream Wireless Holding Corporation, John W. Stanton, Theresa E. Gillespie,
PN Cellular, Inc., The Stanton Family Trust, Stanton Communications Corporation,
GS Capital Partners, L.P., The Goldman Sachs Group, Inc., Bridge Street Fund
1992, L.P., Stone Street Fund 1992, L.P., Hutchison Telecommunications Holdings
(USA) Limited, Hutchison Telecommunications PCS (USA) Limited, Allen & Company
Incorporated, Madison Dearborn Capital Partners, L.P., James N. Perry, Jr.,
Richard L. Fields, Avance Capital, Avance Capital II, Avance Capital III,
Douglas and Gabriela Smith 1995 Family Trust, Douglas G. Smith, James J. Ross,
Elizabeth G. Ross U/T/A, dated March 4, 1994, David G. Ross U/T/A, dated June
18, 1997, Sonera Corporation and Sonera Holding, B.V.
<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: March 6, 2000
By:/s/ Richard L. Fields
_________________________
Richard L. Fields, in his individual capacity
ALLEN & COMPANY INCORPORATED
/s/ Mary Schuyler
____________________________
Name:Mary Schuyler
Title:Vice President
<PAGE>
Exhibit Index
1. Voting Agreement, dated as of February 25, 2000, by and among
VoiceStream Wireless Holding Corporation, John W. Stanton, Theresa E. Gillespie,
PN Cellular, Inc., The Stanton Family Trust, Stanton Communications Corporation,
GS Capital Partners, L.P., The Goldman Sachs Group, Inc., Bridge Street Fund
1992, L.P., Stone Street Fund 1992, L.P., Hutchison Telecommunications Holdings
(USA) Limited, Hutchison Telecommunications PCS (USA) Limited, Allen & Company
Incorporated, Madison Dearborn Capital Partners, L.P., James N. Perry, Jr,
Richard L. Fields, Avance Capital, Avance Capital II, Avance Capital III,
Douglas and Gabriela Smith 1995 Family Trust, Douglas G. Smith, James J. Ross,
Elizabeth G. Ross U/T/A, dated March 4, 1994, David G. Ross U/T/A, dated June
18, 1997, Sonera Corporation and Sonera Holding, B.V.
<PAGE>
VOTING AGREEMENT
VOTING AGREEMENT, dated as of February 25, 2000 (this
"Agreement"), by and among VOICESTREAM WIRELESS HOLDING CORPORATION, a Delaware
corporation ("VoiceStream Holdings"), and the individuals and entities set forth
on Schedule I hereto (each, a "Stockholder" and collectively, the
"Stockholders").
WHEREAS, Omnipoint Corporation, a Delaware corporation
("Omnipoint"), VoiceStream Wireless Corporation, a Washington corporation
("VoiceStream") and VoiceStream Holdings are parties to an Agreement and Plan of
Reorganization, dated as of June 23, 1999, (as the same has been amended or may
hereafter be amended from time to time, the "Omnipoint Reorganization
Agreement") pursuant to which, among other things, wholly owned subsidiaries of
VoiceStream Holdings will be merged with and into each of Omnipoint and
VoiceStream (such mergers, together with the related transactions contemplated
by the Omnipoint Reorganization Agreement, being referred to herein collectively
as the "Omnipoint Reorganization");
WHEREAS, each Stockholder is the Beneficial Owner of the
number of shares of VoiceStream Holdings Common Stock (the "Shares") set forth
opposite such Stockholder's name in Schedule I hereto;
WHEREAS, VoiceStream and certain of the Stockholders are
parties to that certain Voting Agreement, dated May 3, 1999 (the "Original
Voting Agreement");
WHEREAS, as a condition to consummating the Omnipoint
Reorganization, the parties to the Original Voting Agreement have agreed to
terminate the Original Voting Agreement and enter into this Agreement;
WHEREAS, VoiceStream, VoiceStream Holdings, VoiceStream
Subsidiary III Corporation, a Delaware corporation ("Merger Sub"), Aerial
Communications, Inc., a Delaware corporation ("Aerial"), and Telephone and Data
Systems, Inc., a Delaware corporation ("TDS"), are parties to an Agreement and
Plan of Reorganization, dated as of September 17, 1999 (as the same may be
amended from time to time, the "Aerial Reorganization Agreement") pursuant to
which, among other things, Merger Sub is to be merged with and into Aerial (such
merger, together with the related transactions contemplated by the Aerial
Reorganization Agreement, being referred to herein as the "Aerial
Reorganization");
WHEREAS, upon the consummation of the Aerial Reorganization,
it is contemplated that TDS will execute an agreement whereby it will become a
party to this Agreement as a Stockholder and, if TDS does so execute such an
agreement, the term Stockholder will for all purposes of this Agreement include
TDS; and
WHEREAS, Sonera Corporation (formerly Sonera Ltd.) ("Sonera")
is a substantial investor in Aerial and, concurrent with the Omnipoint
Reorganization, will invest $500 million into VoiceStream Holdings through its
Subsidiary, Sonera Holding, B.V. For purposes of this Agreement, Sonera
Corporation and Sonera Holding, B.V., shall be deemed a single Stockholder.
NOW THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements set forth herein, the parties hereto agree as
follows:
Section 1. Definitions. As used in this Agreement, the following terms have
the meanings set forth below:
"Beneficially Own" has the meaning set forth in Rule 13d-3 of
the rules and regulations promulgated under the Securities Exchange Act of 1934,
as amended; except that no broker or dealer or any affiliate thereof shall be
deemed to Beneficially Own Shares, the beneficial ownership of which is acquired
in the ordinary course of the activities of a broker or dealer registered under
Section 15 of the Securities Exchange Act of 1934, as amended, including, but
not limited to, the acquisition of beneficial ownership of such securities as a
result of any market-making or underwriting activities (including any Shares
acquired for the investment account of a broker or dealer in connection with
such underwriting activities), or the exercise of investment or voting
discretion authority over any of its customer accounts, or the acquisition in
good faith of such securities in connection with the enforcement of payment of a
debt previously contracted.
"Board" means the Board of Directors of VoiceStream Holdings.
"BSF" means Bridge Street Fund 1992, L.P., a Delaware limited
partnership.
"Business Day" means a day other than a Saturday, Sunday or
other day on which commercial banks in New York City, Hong Kong or Seattle,
Washington are authorized or required by law to close.
"GS" means The Goldman Sachs Group, Inc., a Delaware
corporation.
"GSC" means BSF, GS, GSCP and SSF.
"GSCP" means GS Capital Partners, L.P., a Delaware limited
partnership.
"HTL" means Hutchison Telecommunications Limited, a
corporation organized under the laws of Hong Kong.
"Hutchison" means Hutchison Holdings and Hutchison PCS.
"Hutchison Holdings" means Hutchison Telecommunications
Holdings (USA) Limited, a British Virgin Islands corporation.
"Hutchison PCS" means Hutchison Telecommunications PCS (USA)
Limited, a British Virgin Islands corporation.
"Immediate Family" means an individual's spouse, children
(including adopted children), grandchildren and parents.
"Percentage Ownership" means, as to any Stockholder, the
aggregate percentage of the outstanding Shares Beneficially Owned by such
Stockholder, including for this purpose, Shares Beneficially Owned by such
Stockholder's Permitted Affiliate Transferees.
"Permitted Affiliate Transferee" means (i) with respect to any
Stockholder who is a natural Person, any member of such Person's Immediate
Family, or any trust for the benefit of, or a partnership all of the partners of
which are, such Person and/or any member of such Person's Immediate Family; (ii)
with respect to any Stockholder which is a limited partnership (a) any Person
that, as of May 13, 1996, was the sole general partner of such Stockholder or
was the sole general partner of the sole general partner of such Stockholder, or
(b) another limited partnership which has a sole general partner, the control of
which sole general partner is held, directly or indirectly, by five (5) or fewer
natural Persons, provided such natural Persons had control at May 13, 1996 of
the sole general partner of such Stockholder; (iii) with respect to Hutchison,
(w) HTL, (x) any Subsidiary of HTL, or (y) any other entity acceptable to
Stockholders (other than Hutchison and its Permitted Affiliate Transferees)
holding at least a majority of the Shares owned by all Stockholders (other than
Hutchison and its Permitted Affiliate Transferees) in which HTL owns, directly
or indirectly, more than 40% of the outstanding voting power, or (z) in the case
of any Person referred to in clause (w), (x) or (y), Hutchison; (iv) with
respect to Sonera, any Subsidiary of Sonera or any other entity acceptable to
Stockholders (other than Sonera and its Permitted Affiliate Transferees) in
which Sonera owns, directly or indirectly, more than 40% of the outstanding
voting power and of which Sonera and its Subsidiaries are collectively the
largest shareholder; and (v) with respect to TDS, any Subsidiary of TDS or any
other entity acceptable to Stockholders (other than TDS and its Permitted
Affiliate Transferees) in which TDS owns, directly or indirectly, more than 40%
of the outstanding voting power and of which TDS and its Subsidiaries are
collectively the largest shareholder. For purposes of this definition, "control"
shall mean ownership of at least 51% of the equity interest in, and at least 51%
of the voting power on all matters in, an entity or, if applicable, the sole
general partner of such entity.
"Person" means an individual, corporation, association,
partnership, trust or estate, an unincorporated organization, a joint venture, a
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Qualified Sonera Designee" means an individual designated by
Sonera, provided that VoiceStream Holdings shall have the right to approve such
designee, which approval shall not be unreasonably withheld, so long as such
individual's membership on the Board shall not cause any violation of any
federal anti-trust law or any other federal or state law.
"Qualified TDS Designee" means an individual who is not an
officer, director, management level employee or affiliate (as defined in the
Securities Exchange Act of 1934) of TDS, or of any Person in which TDS or any
affiliate of TDS has an "attributable interest" (as defined by applicable FCC
rules and regulations) designated by TDS provided that VoiceStream Holdings
shall have the right to approve the designee, which approval shall not be
unreasonably withheld.
"Sonera" means Sonera Corporation, a limited liability company
organized under the laws of Finland, and its wholly-owned Subsidiaries,
including Sonera Holding, B.V., a company organized under the laws of the
Netherlands.
"Sonera Investor Agreement" means the Investor Agreement,
dated as of September 17, 1999, among Sonera Corporation, VoiceStream and
VoiceStream Holdings.
"SSF" means Stone Street Fund 1992, L.P., a Delaware limited
partnership.
"Subsidiary" means, as to any Person, another Person which is
an entity as to which such Person owns more than 50% of the outstanding voting
power.
"Transfer" means any sale, assignment, pledge, hypothecation,
gift or other transfer, disposition or encumbrance of any interest (and includes
an exchange of Shares in a merger, consolidation or similar transaction).
Section 2. Termination of Voting Agreements. The Original Voting Agreement and
Sections 6(a) and 6(b) of the Sonera Investor Agreement automatically and
without further action by any Person shall each be terminated and of no further
force or effect upon the effectiveness of this Agreement.
Section 3. Agreement to Vote by Stockholders.
- ---------------------------------------------------
(1) Each Stockholder (and its Permitted Affiliate Transferees) hereby agrees to
vote (or cause to be voted) all Shares, and any other voting securities of
VoiceStream Holdings, then Beneficially Owned by such Stockholder (whether
issued heretofore or hereafter) that such Stockholder owns or has the right to
vote, in person or by proxy (and shall take all other necessary or desirable
actions within such Stockholder's (or its Permitted Affiliate Transferees')
control, including attendance at meetings in person or by proxy for purposes of
obtaining a quorum and execution of written consents in lieu of meetings), in
favor of the election and continuation in office of the following sixteen (16)
(or, upon completion of the Aerial Reorganization, seventeen (17)) members of
the Board (subject to adjustments to such number of directors, as provided
below):
(1) John Stanton, as long as he is the chief executive officer of
VoiceStream Holdings;
(2) One (1) member designated by John Stanton, so long as he or his
Permitted Affiliate Transferees Beneficially Own at least 4,500,000 Shares;
(3) Four (4) members designated by Hutchison PCS (or if Hutchison PCS has
Transferred all of its Shares to Permitted Affiliate Transferees of Hutchison
PCS, four (4) designees of such Permitted Affiliate Transferees) and its
affiliated entities. Such number of designees shall be subject to increases or
decreases (rounded to the nearest whole number and subject to Section 3(a)(C)
hereof) depending upon increases or reductions in Hutchison PCS's (and its
Permitted Affiliate Transferees') Percentage Ownership of outstanding Shares,
including without limitation Shares issuable to Hutchison PCS (and its Permitted
Affiliate Transferees) upon conversion of the 2.5% Convertible Junior Preferred
Stock, without par value, of VoiceStream Holdings, purchased by Hutchison PCS
pursuant to that certain Stock Subscription Agreement dated June 23, 1999, by
and among VoiceStream Holdings, HTL and Hutchison PCS. Hutchison PCS shall have
the right to designate additional members (the Board shall be expanded by one
(1) member to accommodate each such new designee unless there are vacancies on
the Board and the Board determines to fill any vacancies with such designees) so
that the percentage of the entire Board represented by Hutchison PCS's designees
(rounded to the nearest whole number) shall be proportionate to Hutchison PCS's
(and its Permitted Affiliate Transferees') aggregate Percentage Ownership;
(4) One (1) member designated by GSC and its Permitted Affiliate Transferees,
so long as such entities Beneficially Own at least 4,500,000 Shares;
(5) Four (4) members who were on the Board of Directors of Omnipoint prior
to the Omnipoint Reorganization and who are selected by Omnipoint to serve (the
following persons have been designated by Omnipoint to serve as directors:
Douglas G. Smith, Richard L. Fields, James N. Perry, Jr. and James J. Ross; such
Persons being collectively referred to as the "Omnipoint Designees") during the
period from the closing of the Omnipoint Reorganization until and including the
second annual meeting of stockholders of VoiceStream Holdings taking place after
the closing of the Omnipoint Reorganization (it being understood that such four
(4) members shall serve until such time as the term of office of the directors
elected at such second annual meeting terminates);
(6) One (1) Qualified Sonera Designee designated by Sonera and its Permitted
Affiliate Transferees so long as such entities Beneficially Own at least
4,500,000 Shares; provided, however, that if the Aerial Reorganization is
consummated and Sonera Beneficially Owns more than 9,800,000 Shares and TDS
Beneficially Owns less than 4,500,000 Shares, the number of Qualified Sonera
Designees that Sonera will be entitled to designate will be two (2);
(7) If the Aerial Reorganization is consummated and TDS and VoiceStream Holdings
execute the agreement in the form attached hereto as Exhibit A whereby TDS
becomes a party to this Agreement as a Stockholder, one (1) Qualified TDS
Designee designated by TDS and its Permitted Affiliate Transferees so long as
such entities Beneficially Own at least 4,500,000 Shares, such director to be
appointed to the Board by action of the Board by the later of (x) the closing of
the Aerial Reorganization or (y) promptly after TDS designates a Qualified TDS
Designee; provided, however, that if TDS Beneficially Owns more than 9,800,000
Shares and Sonera Beneficially Owns less than 4,500,000 Shares, the number of
Qualified TDS Designees that TDS will be entitled to designate will be two (2);
and
(8) The remaining members of the Board as selected by a majority vote of the
persons selected as described in subsections (i) through (vii) above.
No designee to the Board shall be removed from the Board
(except removal for cause under applicable law) without the written consent of
the Stockholder or group of Stockholders that has the right to designate such
Person to the Board (or, if such Stockholder or group of Stockholders has
Transferred all of their Shares to Permitted Affiliate Transferees of such
Stockholder or group of Stockholders, without the written consent of Permitted
Affiliate Transferees holding a majority of the Shares owned by all of such
Permitted Affiliate Transferees), or, in the case of the Omnipoint Designees,
without the consent of a majority of the Board of Directors of Omnipoint as such
Board of Directors existed immediately prior to the Omnipoint Reorganization
(the "Old Omnipoint Board"). Any Stockholder or group of Stockholders (or, if
such Stockholder or group of Stockholders has Transferred all of their Shares to
Permitted Affiliate Transferees of such Stockholder or group of Stockholders,
Permitted Affiliate Transferees holding a majority of the Shares owned by all of
such Permitted Affiliate Transferees) or, in the case of the Omnipoint
Designees, a majority of the Old Omnipoint Board, that has the right to
designate any member(s) of the Board shall have the right to replace any
member(s) so designated by it (whether or not such member is removed from the
Board with or without cause or ceases to be a member of the Board by reason of
death, disability or for any other reason) upon written notice to VoiceStream
Holdings and the other members of the Board, which notice shall set forth the
name of the member(s) being replaced and the name of the new member(s). Each of
the Stockholders (and each of their respective Permitted Affiliate Transferees)
agrees that it will vote, or cause to be voted, all of the Shares then
Beneficially Owned by it (whether now owned or hereafter acquired ), in person
or by proxy (and shall take all other necessary or desirable actions within such
Stockholder's (or its Permitted Affiliate Transferees's) control including
attendance at meetings in person or by proxy for purposes of obtaining a quorum
and execution of written consents in lieu of meetings), so as to cause, if
necessary, the removal of the existing director previously elected by such
Stockholders (and its Permitted Affiliate Transferees), or previously designated
by Omnipoint (in the case of the original Omnipoint Designees) or by a majority
of the Old Omnipoint Board (if the Old Omnipoint Board designates a replacement
for an Omnipoint Designee, such replacement shall for all purposes of this
Agreement be an Omnipoint Designee), and the election and continuation in office
of any successor director designated by any of the Stockholders (or any of such
Stockholder's Permitted Affiliate Transferees) pursuant to this Section 3(a).
Notwithstanding the foregoing,
(A) if at any time GSC (and its Permitted
Affiliate Transferees) shall cease to Beneficially Own at least 4,500,000
Shares, then in such event, GSC (or, if GSC has Transferred all of its Shares
to Permitted Affiliate Transferees of GSC, its Permitted Affiliate
Transferees) shall not be entitled to designate any member of the Board;
(B) if at any time John Stanton (and his
Permitted Affiliate Transferees) shall cease to Beneficially Own at least
4,500,000 shares, then in such event, John Stanton (or, if John Stanton has
Transferred all of his Shares to Permitted Affiliate Transferees of John
Stanton, his Permitted Affiliate Transferees) shall not be entitled to
designate any member of the Board (except that Stanton shall continue to serve
on the Board for so long as he holds the office of Chief Executive Officer of
VoiceStream Holdings);
(C) if at any time Hutchison PCS (and its
Permitted Affiliate Transferees) shall cease to Beneficially Own at least
(i) 9,800,000 Shares, then in such event Hutchison PCS and its Permitted
Affiliate Transferees shall be entitled to designate only one member of the
Board; and (ii) 4,500,000 Shares, then in such event, Hutchison PCS and its
Permitted Affiliate Transferees shall not be entitled to designate any member of
the Board. In addition, if Hutchison PCS shall have designated additional
director(s) by reason of an increase in its Percentage Ownership as set forth in
Section 3(a)(iii) above, and at any time thereafter the Percentage Ownership of
Hutchison PCS (and its Permitted Affiliate Transferees) shall decrease, (i) the
number of designees Hutchison PCS (and its Permitted Affiliate Transferees) are
entitled to designate to the Board shall be reduced so that the percentage of
the entire Board represented by Hutchison PCS's (and its Permitted Affiliate
Transferees') designees (rounded to the nearest whole number) shall be
proportionate to Hutchison PCS's (and its Permitted Affiliate Transferees')
aggregate Percentage Ownership, (ii) any members designated by Hutchison PCS
(and its Permitted Affiliate Transferees) in excess of such number shall be
removed from the Board (any such members to be removed to be designated by
Hutchison or, in the event that Hutchison fails to designate the members to be
removed, by a majority of the members of the Board), and (iii) the Board shall
be reduced in size by the number of members so removed;
(D) if at any time Sonera (and its Permitted
Affiliate Transferees) shall cease to Beneficially Own at least (i)
9,800,000 Shares at a time when Sonera is entitled to designate two (2)
directors, then in such event, Sonera (or, if Sonera has Transferred all of its
Shares to Permitted Affiliate Transferees of Sonera, its Permitted Affiliate
Transferees) shall be entitled to designate only one (1) member of the Board;
and (ii) 4,500,000 Shares, then in such event, Sonera (or, if Sonera has
Transferred all of its Shares to Permitted Affiliate Transferees of Sonera, its
Permitted Affiliate Transferees) shall not be entitled to designate any member
of the Board;
(E) if the Aerial Reorganization is consummated
and TDS and VoiceStream Holdings execute an agreement in the form attached
hereto as Exhibit A whereby TDS becomes a party to this Agreement as a
Stockholder, and at any time thereafter TDS (and its Permitted Affiliate
Transferees) shall cease to Beneficially Own at least (i) 9,800,000 Shares at a
time when TDS is entitled to designate two (2) directors, then in such event,
TDS (or, if TDS has Transferred all of its Shares to Permitted Affiliate
Transferees of TDS, its Permitted Affiliate Transferees) shall be entitled to
designate only one (1) member of the Board; and (ii) 4,500,000 Shares, then in
such event, TDS (or, if TDS has Transferred all of its Shares to Permitted
Affiliate Transferees of TDS, its Permitted Affiliate Transferees) shall not be
entitled to designate any member of the Board;
(F) Any vacancies on the Board created by reason
of the provisions of subsections (A) through (E) above shall be filled by
the vote of a majority of the directors then in office (unless such directors
determine to reduce the size of the Board after a vacancy is created) to serve
until the next annual meeting of shareholders of VoiceStream Holdings, and at
the next annual meeting shall be filled by a vote of a plurality of all
shareholders of VoiceStream Holdings (including the Stockholders and their
Permitted Affiliate Transferees); provided, however, that in the event that the
size of the Board shall have increased by reason of Hutchison PCS having the
right to designate additional director(s) and thereafter Hutchison PCS shall
cease to have the right to so designate such additional director(s), the size of
the Board shall be appropriately reduced and each of the Stockholders (and each
of their respective Permitted Affiliate Transferees ) agrees that it will vote,
or cause to be voted, all of the Shares then Beneficially Owned by it (whether
now owned or hereafter acquired), in person or by proxy (and, shall take all
other necessary or desirable actions within such Stockholder's (or its Permitted
Affiliate Transferees') control including attendance at meetings in person or by
proxy for purposes of obtaining a quorum and execution of written consents in
lieu of meetings), to cause such reduction in the Board.
(G) Notwithstanding anything to the contrary
contained in this Agreement, Hutchison's right to transfer its right to
designate directors to certain block transferees as set forth in Sections 14 and
15 of the Shareholders Agreement of VoiceStream Wireless Corporation, dated
February 17, 1998, as amended, among Western Wireless Corporation, a Washington
corporation, VoiceStream and Hutchison PCS, shall continue in full force and
effect until terminated in accordance with the terms of such Shareholders
Agreement.
(2) Notwithstanding anything to the contrary herein, if a Stockholder
shall cease to have the right to designate any director to the Board
pursuant to this Agreement, such Stockholder shall be released in full from all
obligations and shall cease to have any rights under this Agreement; provided,
however, that at the time that the Omnipoint Designees no longer serve on the
Board and there is no further obligation to designate Omnipoint Designees under
Section 3(a)(v) hereof, the following Persons shall be released in full from all
obligations and shall cease to have any rights under this Agreement: Allen &
Company Incorporated, Avance Capital, Avance Capital II, Avance Capital III,
Madison Dearborn Capital Partners, L.P., James N. Perry, Jr., Douglas G. Smith,
Douglas G. Smith Grat, Richard L. Fields, James J. Ross and James J. Ross, as
Trustee.
Section 4. VoiceStream Holdings and Stockholder Covenants.
- -----------------------------------------------------------------
(1) VoiceStream Holdings hereby agrees to use all reasonable efforts to give
effect to the provisions of Section 3 hereof. In this regard, VoiceStream
Holdings shall, subject to the provisions of Section 3 hereof, duly nominate the
designees set forth above, or as may otherwise be designated by a party hereto
pursuant to the terms of Section 3 hereof, for election to the Board and shall
include in any proxy solicitation materials related to the election of members
of the Board such information and recommendations of the Board as are
appropriate, in proxy solicitation materials.
(2) Each Stockholder shall vote the Shares then Beneficially Owned by such
Stockholder at any regular or special meeting of the Stockholders or in any
written consent executed in lieu of such a meeting of Stockholders for the
election of such designees. VoiceStream Holdings and each Stockholder shall take
all other actions necessary to ensure that the certificate of incorporation and
by-laws of VoiceStream Holdings or any successor constituent documents as in
effect immediately following the date hereof do not, at any time thereafter,
conflict in any respect with the provisions of this Agreement.
(3) At the closing of the Aerial Reorganization, TDS and VoiceStream Holdings
shall enter into the agreement attached hereto pursuant to which TDS shall
become a party to this Agreement, provided that nothing in this Agreement shall
in any way limit, amend or modify any of the terms or provisions of the Investor
Agreement to be entered into among TDS, VoiceStream Holdings and VoiceStream at
such time.
Section 5. Representations and Warranties of VoiceStream Holdings. VoiceStream
Holdings represents and warrants to each Stockholder as follows: (i) it has full
power and authority to execute, deliver and perform its obligations under this
Agreement; (ii) this Agreement and all transactions contemplated hereby have
been duly and validly authorized by all necessary action on its part, this
Agreement has been duly executed and delivered by it, and this Agreement
constitutes its legal, valid and binding obligation enforceable against
VoiceStream Holdings in accordance with its terms, except as may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium and other similar
laws of general application which may affect the enforcement of creditors'
rights generally and by general equitable principles; and (iii) neither the
execution, delivery or performance of this Agreement by it, nor the consummation
of the transactions contemplated hereby will, with or without the giving of
notice or passage of time or both conflict with, result in a default or loss of
rights (or give rise to any right of termination, cancellation or acceleration)
under, (A) any provision of the certificate of incorporation, by-laws,
partnership agreement or comparable constituent document of it, (B) any material
note, bond, indenture, mortgage, deed of trust, contract, agreement, lease or
other instrument or obligation to which it is a party or by which it or its
properties may be bound or affected or (C) any law, order, judgment, ordinance,
rule, regulation or decree to which it is a party or by which it or any of its
properties are bound or affected.
Section 6. Representations and Warranties of the Stockholders.
- --------------------------------------------------------------------
Each Stockholder, severally, as to such Stockholder,
represents and warrants to the other parties as follows:(i) such Stockholder has
full power and authority to execute, deliver and perform such Stockholder's
obligations under this Agreement; (ii) this Agreement and all transactions
contemplated hereby have been duly and validly authorized by all necessary
action on such Stockholder's part, this Agreement has been duly executed and
delivered by such Stockholder, and this Agreement constitutes such Stockholder's
legal, valid and binding obligation enforceable against such Stockholder in
accordance with its terms, except as may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other similar laws of general
application which may affect the enforcement of creditors' rights generally and
by general equitable principles; (iii) neither the execution, delivery or
performance of this Agreement by such Stockholder, nor the consummation of the
transactions contemplated hereby will, with or without the giving of notice or
passage of time or both conflict with, result in a default or loss of rights (or
give rise to any right of termination, cancellation or acceleration) under, (A)
if such Stockholder is an entity, any provision of the certificate of
incorporation, by-laws, partnership agreement or comparable constituent document
of such Stockholder, (B) any material note, bond, indenture, mortgage, deed of
trust, contract, agreement, lease or other instrument or obligation to which
such Stockholder is a party or by which such Stockholder or such Stockholder's
properties may be bound or affected or (C) any law, order, judgment, ordinance,
rule, regulation or decree to which such Stockholder is a party or by which such
Stockholder or any of such Stockholder's properties are bound or affected; and
(iv) the Shares listed next to the name of such Stockholder on Schedule I hereto
are the only voting securities of VoiceStream Holdings Beneficially Owned by
such Stockholder.
Section 7. Effectiveness and Termination. This Agreement shall be
effective as of the effectiveness of the
------------------------------------------------
Omnipoint Reorganization and shall terminate upon the earliest to occur of any
of the following events:
(1) Upon agreement by all Stockholders then retaining the right to designate
directors under this Agreement and, so long as Omnipoint Designees are to be
designated or are serving pursuant to Section 3(a)(v) hereof, by the Omnipoint
Designees or the Old Omnipoint Board; or
(2) The filing by VoiceStream Holdings of a petition in bankruptcy or the
expiration of sixty (60) days after a petition in bankruptcy shall have been
filed against VoiceStream Holdings and such petition shall not have been stayed
or discharged during such sixty (60) day period; or upon the expiration of sixty
(60) days after the commencement of any proceeding under any law for the relief
of debtors seeking the relief or readjustment of VoiceStream Holdings'
indebtedness either through reorganization, winding-up, extension or otherwise,
and such proceedings involving VoiceStream Holdings as debtor shall not have
been vacated or stayed within such sixty (60) day period; or upon the
appointment of a receiver, custodian or trustee for all or substantially all of
VoiceStream Holdings' property, or the making of VoiceStream Holdings of any
general assignment for the benefit of creditors, or the admitting in writing by
VoiceStream Holdings of its inability to pay its debts as they mature; or upon
the voluntary or involuntary liquidation or dissolution of VoiceStream Holdings;
or
(3) The Beneficial Ownership of all of the Shares by only one Stockholder
(including its Permitted Affiliate Transferees).
Upon such termination, except for any rights any party may have in respect of
any breach by any other party of its or his obligations hereunder, none of the
parties hereto shall have any further obligation or liability hereunder.
Section 8. Miscellaneous.
-------------------------------
(1) This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their Permitted Affiliate Transferees. Each of the Stockholders
hereby agrees that prior to any Transfer of any Shares to a Permitted Affiliate
Transferee, such Permitted Affiliate Transferee shall execute a counterpart of
this Agreement agreeing to be bound by the provisions of this Agreement. No
Transfer to a Permitted Affiliate Transferee shall be effective unless such
Permitted Affiliate Transferee has executed such counterpart of this Agreement.
Except as set forth above with respect to Transfers to Permitted Affiliate
Transferees, nothing in this Agreement shall prohibit the Transfer of Shares by
any of the Stockholders.
(2) Each of the parties hereto acknowledges and agrees that, in the event of any
breach of this Agreement, the non-breaching parties would be irreparably harmed
and could not be made whole by monetary damages. Accordingly, each of the
parties hereto agrees that the other parties, in addition to any other remedy to
which they may be entitled at law or in equity, shall be entitled to compel
performance of this Agreement pursuant to Section 8(m).
(3) The headings in this Agreement are for convenience only and shall not be
considered a part of or affect the construction or interpretation of any
provision of this Agreement.
(4) All notices, requests, demands and other communications hereunder shall be
in writing and shall be deemed to have been duly given if delivered by same day
or next day (or equivalent with respect to delivery outside the United States)
courier (guaranteed delivery) or telex or facsimile (i) if to a Stockholder, at
such Stockholder's address appearing on Schedule I hereto or at any other
address that such Stockholder may have provided in writing to VoiceStream
Holdings and the other Stockholders then party to this Agreement and (ii) if to
VoiceStream Holdings, at 3650 131st Avenue SE, Bellevue, Washington 98006,
U.S.A., Tel: 425-586-8014, Fax: 425-586-8080; Attention: Alan R. Bender, Esq. or
such other address as VoiceStream Holdings may have furnished to the
Stockholders in writing, with a copy (which shall not constitute notice) to
Friedman Kaplan & Seiler LLP, 875 Third Avenue, New York, NY 10022, USA, Tel:
212-833-1107, Fax: 212-355-6401, Attention: Barry A. Adelman, Esq. If a notice
hereunder is transmitted by confirmed fax so as to arrive during normal business
hours during a Business Day at the place of receipt, then such notice shall be
deemed to have been given on such Business Day at the place of receipt or, if so
transmitted to arrive after normal business hours during a Business Day at the
place of receipt, then such notice shall be deemed to have been given on the
following Business Day at the place of receipt. If such notice is sent by
next-day courier or equivalent, it shall be deemed to have been given on the
third Business Day at the place of receipt following sending provided, that the
date of sending shall be deemed to be the date at the place of receipt at the
time such notice is posted.
(5) The provisions of this Agreement shall apply, to the full extent set forth
herein with respect to the Shares now or hereinafter owned by each Stockholder
(and its Permitted Affiliate Transferees), to any and all securities of
VoiceStream Holdings or any successor or assign of VoiceStream Holdings (whether
by merger, consolidation or otherwise) that may be issued in respect of, in
exchange for, or in substitution of such Shares, and shall be appropriately
adjusted for any stock dividends, stock splits, reverse splits, combinations,
recapitalizations and similar events occurring after the date hereof.
(6) Copies of this Agreement will be available for inspection or copying by any
interested Person at the offices of VoiceStream Holdings through the Secretary
of VoiceStream Holdings. VoiceStream Holdings will otherwise take all actions as
may be necessary or appropriate to comply with any applicable law relating to
the validity and enforceability of shareholders agreements containing the
provisions of this Agreement.
(7) Except as expressly provided otherwise herein, neither this Agreement nor
any provision hereof may be changed, waived, discharged or terminated orally,
but only by an instrument in writing signed by VoiceStream Holdings and each of
the Stockholders. The failure of any party hereto to give notice of the breach
or non-fulfillment of any term or condition of this Agreement shall not
constitute a waiver thereof, nor shall the waiver of any breach or
non-fulfillment of any term or condition of this Agreement constitute a waiver
of any other breach or non-fulfillment of that term or condition or any other
term or condition of this Agreement.
(8) This Agreement may be amended or modified at any time by a writing setting
forth such amendment or modification, signed by VoiceStream Holdings and by
Stockholders (or their Permitted Affiliate Transferees) owning in the aggregate
at least 90% of the Shares owned by the Stockholders (and their Permitted
Affiliate Transferees); provided, however, that, unless such amendment is signed
by VoiceStream Holdings and by each Stockholder (or its Permitted Affiliate
Transferees) adversely affected by such amendment, no such amendment or
modification shall eliminate any right of any Stockholder (or its Permitted
Affiliate Transferees) or, in the case of the Omnipoint Designees, the Old
Omnipoint Board, to designate the member or members of the Board it is entitled
to designate in accordance with Section 3 hereof (it being understood and agreed
that this clause shall not prohibit the enlargement of the Board).
(9) This Agreement may be executed in any number of counterparts, each of which
shall be deemed an original, and all of which together shall be considered one
and the same agreement.
(10) The obligations of each of the Stockholders under this Agreement shall be
several with respect to each such Stockholder.
(11) This Agreement constitutes the entire understanding of the parties hereto
with respect to this subject matter hereof and supersedes all prior
understandings among such parties with respect to such subject matter.
(12) 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 and performed entirely in such state.
Each party hereto agrees that, subject to Section 8(m) hereof, any suit, action
or other proceeding arising out of this Agreement shall be brought and litigated
in the courts of the State of Washington or the United States District Court for
the Western District of Washington and each party hereto hereby irrevocably
consents to personal jurisdiction and venue in any such court and hereby waives
any claim it may have that such court is an inconvenient forum for the purposes
of any such suit, action or other proceeding.
(13) Any and all disputes, controversies or claims (each a "Dispute") between
the Stockholders relating to the interpretation or enforcement or performance of
this Agreement shall be resolved by binding arbitration by the American
Arbitration Association in accordance with its rules, subject to the following
provisions:
(1) There shall be three arbitrators (the "Arbitrators") which shall be
appointed in accordance with the procedure of the American Arbitration
Association.
(2) The expenses of the arbitration shall be borne equally by the Stockholders
involved in the arbitration, and each party shall bear its own legal fees and
expenses; provided, however, that the Arbitrators shall have discretion to
require that one party pay all or a portion of the expenses of arbitration or
the other party's legal fees and expenses in connection with any particular
arbitration.
(3) The Arbitrators shall determine whether and to what extent any party shall
be entitled to damages or equitable relief. No party shall be entitled to
punitive damages or consequential damages or shall be required to post a bond in
connection with equitable relief.
(4) The Arbitrators shall not have the power to add to nor modify any of the
terms or conditions of this Agreement. The Arbitrators' decision shall not go
beyond what is necessary for the interpretation and application of the
provisions of this Agreement in respect of the issue before the Arbitrators. The
Arbitrators' decision and award or permitted remedy, if any, shall be based upon
the issue as drafted and submitted by the respective parties and the relevant
and competent evidence adduced at the hearing(s).
(5) The Arbitrators shall have the authority to award any remedy or relief
provided for in this Agreement, in addition to any other remedy or relief
(including provisional remedies and relief) that a court of competent
jurisdiction could order or grant (but subject to the remedial limitations,
elsewhere set forth in this Agreement, including, but without limitation, the
aforesaid prohibition against punitive and consequential damages). The
Arbitrators written decision shall be rendered within sixty (60) days of the
hearing. The decision reached by the Arbitrators shall be final and binding upon
the parties as to the matter in dispute. To the extent that the relief or remedy
granted by the Arbitration is relief or remedy on which a court could enter
judgment, a judgment upon the award rendered by the Arbitrators may be entered
in any court having jurisdiction thereof (unless in the case of an award of
damages, the full amount of the award is paid within ten (10) days of its
determination by the Arbitrators). Otherwise, the award shall be binding on the
parties in connection with their continuing performance of this Agreement and in
any subsequent arbitral or judicial proceeding between the parties.
(6) The arbitration shall take place in Seattle, Washington, unless otherwise
agreed by the parties, and shall be conducted in the English language.
(7) The arbitration proceeding and all filing, testimony, documents and
information relating to or presented during the arbitration proceeding shall be
disclosed exclusively for the purpose of facilitating the arbitration process
and for no other purpose.
(8) The parties shall continue performing their respective obligations under
this Agreement notwithstanding the existence of a Dispute while the Dispute is
being resolved unless and until such obligations are terminated, expire or are
suspended in accordance with the provisions hereof.
(9) The Arbitrators may, in their sole discretion, order a pre-hearing exchange
of information including production of documents, exchange of summaries of
testimony or exchange of statements of position, and shall schedule promptly all
discovery and other procedural steps and otherwise assume case management
initiative and control to effect an efficient and expeditious resolution of the
Dispute. At any oral hearing of evidence in connection with an arbitration
proceeding, each party and its counsel shall have the right to examine its
witnesses and to cross-examine the witnesses of the other party. No testimony of
any witness shall be presented in written form unless the opposing party or
parties shall have the opportunity to cross-examine such witness, except as the
parties otherwise agree in writing.
(10) Notwithstanding the dispute resolution procedures contained in this Section
8(m), either party may apply to any court having jurisdiction (a) to enforce
this Agreement to arbitrate, (b) to seek provisional injunctive relief so as to
maintain the status quo until the arbitration award is rendered or the Dispute
is otherwise resolved, or (c) to challenge or vacate any final judgment, award
or decision of the Arbitrators that does not comport with the express provisions
of this Section 8(m).
(14) The failure of any party to seek redress for violation of, or to insist
upon the strict performance of , any provision of this Agreement shall not
prevent a subsequent act, which would have originally constituted a violation,
from having the effect of an original violation.
(15) The rights and remedies provided by this Agreement are cumulative and the
use of any one right or remedy by any party shall not preclude or waive its
right to use any or all 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.
(16) The invalidity or unenforceability of any particular provision of this
Agreement shall not affect the other provisions hereof, and this Agreement shall
be construed in all respects as if such invalid or unenforceable provision were
omitted.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
VOICESTREAM WIRELESS HOLDING CORPORATION
By: /s/ John W. Stanton
Name: John W. Stanton
Title: Chairman and Chief Executive Officer
Stockholders:
/s/ John W. Stanton
John W. Stanton
/s/ Theresa E. Gillespie
Theresa E. Gillespie
PN Cellular, Inc.
By: /s/ Theresa E. Gillespie
Name: Theresa E. Gillespie
Title: Treasurer
Stanton Family Trust
By: /s/ Theresa E. Gillespie
Name: Theresa E. Gillespie, Trustee
<PAGE>
Stanton Communications Corporation
By: /s/ Theresa E. Gillespie
Name: Theresa E. Gillespie
Title: Treasurer
GS Capital Partners, L.P.
By: GS Advisors L.L.C., General Partner
By: /s/ John E. Bowman
Name: John E. Bowman
Title: Vice President
The Goldman Sachs Group, Inc.
By: /s/ Terence M. O'Toole
Name: Terence M. O'Toole
Title: Attorney-in-Fact
Bridge Street Fund 1992, L.P.
By: Stone Street 1992 L.L.C., Managing General Partner
By: /s/ John E. Bowman
Name: John E. Bowman
Title: Vice President
<PAGE>
Stone Street Fund 1992, L.P.
By: Stone Street 1992 L.L.C., General Partner
By: /s/ John E. Bowman
Name: John E. Bowman
Title: Vice President
Hutchison Telecommunications Holdings (USA) Limited
By: /s/ Canning Fok
Name: Canning Fok
Title: Director
Hutchison Telecommunications PCS (USA) Limited
By: /s/ Susan Chow
Name: Susan Chow
Title: Director
ALLEN & COMPANY INCORPORATED
By: /s/ Richard L. Fields
Name: Richard L. Fields
Title: Manager
<PAGE>
MADISON DEARBORN CAPITAL
PARTNERS, L.P.
By: Madison Dearborn Partners, L.P.,
its General Partner
By: Madison Dearborn Partners, Inc.
its General Partner
By: /s/ James N. Perry
Name: James N. Perry
Title: Manager
/s/ James N. Perry
- --------------------
James N. Perry, Jr.
/s/ Richard L. Fields
Richard L. Fields
AVANCE CAPITAL
By: /s/ Douglas G. Smith
Name: Douglas G. Smith
Title: Sole Proprietor
AVANCE CAPITAL II
By: /s/ Douglas G. Smith
Name: Douglas G. Smith
Title: Sole Proprietor
AVANCE CAPITAL III
By: /s/ Douglas G. Smith
Name: Douglas G. Smith
Title: Sole Proprietor
DOUGLAS AND GABRIELA SMITH
1995 FAMILY TRUST
By: /s/ Gabriela Smith
Name: Gabriela Smith
Title: Trustee
/s/ Douglas G. Smith
Douglas G. Smith
/s/ James J. Ross
James J. Ross
ELIZABETH G. ROSS U/T/A, DATED MARCH 4, 1994
By: /s/ James J. Ross
Name: James J. Ross
Title: Trustee
DAVID G. ROSS U/T/A, DATED JUNE 18, 1997
By: /s/ James J. Ross
Name: James J. Ross
Title: Trustee
SONERA CORPORATION
By: /s/ Olli T. Tuohimaa
Name: Olli T. Touhimaa
Title: Attorney in Fact
SONERA HOLDING, B.V.
By: /s/ Olli T. Tuohimaa
Name: Olli T. Touhimaa
Title: Attorney in Fact
<PAGE>
SCHEDULE I
Stockholders
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------ -------------------------------------------
<S> <C>
Name and Address of Stockholder Number of Shares
- ------------------------------------------------------------------------ -------------------------------------------
- ------------------------------------------------------------------------ -------------------------------------------
John W. Stanton and Theresa E. Gillespie 2,930,136
c/o VoiceStream Wireless Corporation
3650 131st Avenue S.E., Suite 400
Bellevue, WA 98006
Attention: John W. Stanton
Fax: 425-586-8010
- ------------------------------------------------------------------------ ----------------------------------------------------------
- ------------------------------------------------------------------------ -------------------------------------------
PN Cellular, Inc. 1,686,069
c/o VoiceStream Wireless Corporation
3650 131st Avenue S.E., Suite 400
Bellevue, WA 98006
Attention: John W. Stanton
Fax: 425-586-8010
- ------------------------------------------------------------------------ -------------------------------------------
- ------------------------------------------------------------------------ -------------------------------------------
Stanton Family Trust 164,437
c/o VoiceStream Wireless Corporation
3650 131st Avenue S.E., Suite 400
Bellevue, WA 98006
Attention: John W. Stanton
Fax: 425-586-8010
- ------------------------------------------------------------------------ -------------------------------------------
- ------------------------------------------------------------------------ -------------------------------------------
Stanton Communications Corporation 1,274,520
c/o VoiceStream Wireless Corporation
3650 131st Avenue S.E., Suite 400
Bellevue, WA 98006
Attention: John W. Stanton
Fax: 425-586-8010
- ------------------------------------------------------------------------ -------------------------------------------
- ------------------------------------------------------------------------ -------------------------------------------
GS Capital Partners, L.P. 8,986,738
c/o Goldman, Sachs & Co.
85 Broad Street
New York, NY 10004
Attention: Terence O'Toole
Fax: 212-902-3000
- ------------------------------------------------------------------------ -------------------------------------------
- ------------------------------------------------------------------------ -------------------------------------------
The Goldman Sachs Group, Inc. 68,821
c/o Goldman, Sachs & Co.
85 Broad Street
New York, NY 10004
Attention: Terence O'Toole
Fax: 212-902-3000
- ------------------------------------------------------------------------ -------------------------------------------
- ------------------------------------------------------------------------ -------------------------------------------
Bridge Street Fund 1992, L.P. 273,069
c/o Goldman, Sachs & Co.
85 Broad Street
New York, NY 10004
Attention: Terence O'Toole
Fax: 212-902-3000
- ------------------------------------------------------------------------ -------------------------------------------
- ------------------------------------------------------------------------ -------------------------------------------
Stone Street Fund 1992, L.P. 470,401
c/o Goldman, Sachs & Co.
85 Broad Street
New York, NY 10004
Attention: Terence O'Toole
Fax: 212-902-3000
- ------------------------------------------------------------------------ -------------------------------------------
- ------------------------------------------------------------------------ -------------------------------------------
Hutchison Telecommunications PCS (USA) Limited 52,010,364
(Which includes 26,227,586 shares of
c/o Offshore Incorporations Limited Common stock issuable upon conversion
P.O. Box 957 of theCompany's 2.5% Junior Convertible
Offshore Incorporations Centre Preferred Stock
Road Town, Tortola
British Virgin Islands
Telephone No.: 809-494-2233
Facsimile No.: 809-494-4885
and:
c/o Hutchison Telecommunications Limited
22nd Floor, Hutchison House
10 Harcourt Road
Hong Kong
Attention: Ms. Edith Shih
Fax: 852-2128-1778
- ------------------------------------------------------------------------ -------------------------------------------
- ------------------------------------------------------------------------ -------------------------------------------
Hutchison Telecommunications Holdings (USA) Limited 3,888,888
c/o Offshore Incorporations Limited
P.O. Box 957
Offshore Incorporations Centre
Road Town, Tortola
British Virgin Islands
Telephone No.: 809-494-2233
Facsimile No.: 809-494-4885
and:
c/o Hutchison Telecommunications Limited
22nd Floor, Hutchison House
10 Harcourt Road
Hong Kong
Attention: Ms. Edith Shih
Fax: 852-2128-1778
- ------------------------------------------------------------------------ -------------------------------------------
- ------------------------------------------------------------------------ -------------------------------------------
Douglas G. Smith 1,196,398
6200 Brookside Drive
Chevy Chase, MD 20815
- ------------------------------------------------------------------------ -------------------------------------------
- ------------------------------------------------------------------------ -------------------------------------------
Avance Capital 2,220,266
Attn: Douglas G. Smith
6200 Brookside Drive
Chevy Chase, MD 20815
- ------------------------------------------------------------------------ -------------------------------------------
- ------------------------------------------------------------------------ -------------------------------------------
Avance Capital II 750,000
Attn: Douglas G. Smith
6200 Brookside Drive
Chevy Chase, MD 20815
- ------------------------------------------------------------------------ -------------------------------------------
- ------------------------------------------------------------------------ -------------------------------------------
Avance Capital III 375,000
Attn: Douglas G. Smith
6200 Brookside Drive
Chevy Chase, MD 20815
- ------------------------------------------------------------------------ -------------------------------------------
- ------------------------------------------------------------------------ -------------------------------------------
Douglas & Gabriela Smith 519,482
1995 Family Trust
Attn: Gabriela Smith, Trustee
6200 Brookside Drive
Chevy Chase, MD 20815
- ------------------------------------------------------------------------ -------------------------------------------
- ------------------------------------------------------------------------ -------------------------------------------
Richard L. Fields 317,368
75 Central Park South, Apt. 15B
New York, NY 10022
- ------------------------------------------------------------------------ -------------------------------------------
- ------------------------------------------------------------------------ -------------------------------------------
Allen & Company Incorporated 2,290,522
c/o Richard L. Fields, Managing Director
711 Fifth Avenue
New York, NY 10022
- ------------------------------------------------------------------------ -------------------------------------------
- ------------------------------------------------------------------------ -------------------------------------------
James N. Perry, Jr. 50,874
Madison Dearborn Capital Partners, LP
Three First National Plaza, Suite 1330
Chicago, IL 60602
- ------------------------------------------------------------------------ -------------------------------------------
- ------------------------------------------------------------------------ -------------------------------------------
Madison Dearborn Capital Partners, LP 3,232,149
c/o James N. Perry, Jr., Managing Director
Three First National Plaza, Suite 1330
Chicago, IL 60602
- ------------------------------------------------------------------------ -------------------------------------------
- ------------------------------------------------------------------------ -------------------------------------------
James J. Ross 582,445
c/o Becker Ross Stone DeStefano & Klein
317 Madison Avenue, Suite 1410
New York, NY 10017
- ------------------------------------------------------------------------ -------------------------------------------
- ------------------------------------------------------------------------ -------------------------------------------
James J. Ross, as Trustee, of Elizabeth G. Ross U/T/A, dated March 4, An Aggregate of 145,950
1994
c/o Becker Ross Stone DeStefano & Klein
317 Madison Avenue, Suite 1410
New York, NY 10017
James J. Ross, as Trustee, of David G. Ross U/T/A, dated June 18, 1997
c/o Becker Ross Stone DeStefano & Klein
317 Madison Avenue, Suite 1410
New York, NY 10017
- ------------------------------------------------------------------------ -------------------------------------------
- ------------------------------------------------------------------------ -------------------------------------------
Sonera Corporation
P.O. Box 106
FIN-00051-TELE
Teollisuuskatu 15, Helsinki
Attn: Kaj-Erik Relander, Executive Vice President
Facsimile: 011 358 2040 3770
- ------------------------------------------------------------------------ -------------------------------------------
- ------------------------------------------------------------------------ -------------------------------------------
Sonera Holding, B.V. 8,792,555
c/o Sonera Corporation
P.O. Box 106
FIN-00051-TELE
Teollisuuskatu 15, Helsinki
Attn: Kaj-Erik Relander, Executive Vice President
Facsimile: 011 358 2040 3770
- ------------------------------------------------------------------------ -------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
Upon the execution and delivery of the attached agreement, the following
Stockholder shall become a party to this Agreement.
- --------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------ -------------------------------------------
Telephone and Data Systems, Inc. [Number of Shares shall be as set forth
30 North LaSalle, Suite 4000 on the agreement attached hereto as
Chicago, IL 60602 Exhibit A.]
Attention: LeRoy T. Carlson, Jr., President
Facsimile: 312-630-9299
- ------------------------------------------------------------------------ -------------------------------------------
</TABLE>
<PAGE>
Exhibit A to
Voting Agreement
AGREEMENT
AGREEMENT, dated as of __________, 2000, by and between
VOICESTREAM WIRELESS CORPORATION (f/k/a VoiceStream Wireless Holding
Corporation), a Delaware corporation ("VoiceStream"), and TELEPHONE AND DATA
SYSTEMS, INC., a Delaware corporation ("TDS");
WHEREAS, VoiceStream has entered into a Voting Agreement
("Voting Agreement") dated as of February 25, 2000, together with certain
stockholders of VoiceStream set forth on Schedule I thereof ("Stockholders");
WHEREAS, all capitalized terms used herein and not otherwise
defined shall have the meanings set forth in the Voting Agreement;
WHEREAS, in the Voting Agreement, the Stockholders and
VoiceStream have agreed that, at the time of the closing of the Aerial
Reorganization, TDS and VoiceStream shall execute and deliver this Agreement to
evidence the admission of TDS as a party to the Voting Agreement;
WHEREAS, the Aerial Reorganization is being consummated
concurrently with the execution of this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements set forth herein, the parties hereto agree as
follows:
1. TDS hereby accepts and agrees to all of the terms and
conditions of the Voting Agreement and agrees to become a
party to the Voting Agreement as a Stockholder effective
immediately.
2. The Voting Agreement shall not in any way limit, amend or
modify any of the terms or provisions of the Investor
Agreement dated the date hereof among TDS, VS Washington
Corporation and VoiceStream.
3. VoiceStream, by action of its Board of Directors, shall
appoint a Qualified TDS Designee to the Board of Directors of
VoiceStream on the later of (i) the date hereof or (ii)
promptly after TDS designates a Qualified TDS Designee.
4. This Agreement shall become effective as of the Effective Time
of the Aerial Reorganization and shall supersede the Parent
Stockholder Agreement, dated as of September 17, 1999, among
Aerial, TDS, VoiceStream and VS Washington Corporation (f/k/a
VoiceStream Wireless Corporation) and the individuals and
entities set forth on Schedule I thereto, which shall
terminate by its terms at such time.
5. The number of Shares Beneficially Owned by TDS as of the date
of this Agreement is _______ Shares.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
VOICESTREAM WIRELESS CORPORATION
By: ___________________________
Name:
Title:
TELEPHONE AND DATA SYSTEMS, INC.
By: ____________________________
Name:
Title:
272034
