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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
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(CUSIP Number)
John W. Stanton and Theresa E. Gillespie
VoiceStream Wireless Corporation
3650 131st Avenue S.E.
Bellevue, WA 98006
(425)586-8700
(Name, address and telephone number of person authorized
to receive notices and communications)
June 23, 1999
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(Date of Event which requires Filing of this Statement)
If a filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [X ].
NOTE: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d-1(a) for other parties to whom copies are to be
sent.
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CUSIP NO. 928615103
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1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
John W. Stanton and Theresa E. Gillespie, husband and wife
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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
U.S.A.
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7. SOLE VOTING POWER
NUMBER OF 0
SHARES ------------------------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY 6,555,411 (1)
EACH ------------------------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 0
WITH ------------------------------------------------------
10. SHARED DISPOSITIVE POWER
6,555,411 (1)
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11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
6,555,411 (1)
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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)
6.9%
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14. TYPE OF REPORTING PERSON
IN
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(1) Includes (i) 1,686,069 shares of Issuer Common Stock held of record by PN
Cellular, Inc. ("PN Cellular"), which is substantially owned and controlled by
Mr. Stanton and Ms. Gillespie, (ii) 1,274,519 shares of Issuer Common Stock
held of record by Stanton Communications Corporation ("SCC"), which is
substantially owned and controlled by Mr.
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Stanton and Ms. Gillespie, (iii) 3,152,774 shares of Issuer Common Stock held
by Mr. Stanton and Ms. Gillespie, as tenants in common, (iv) 164,437 shares of
Issuer Common Stock held of record by The Stanton Family Trust; and (v) 90,000
shares and 15,000 shares of Issuer Common Stock held of record by each of
Mr. Stanton and Ms. Gillespie, respectively, pursuant to Western Wireless
Corporation's 1997 Executive Restricted Stock Plan. Mr. Stanton and
Ms. Gillespie are married and share voting and investment power with respect to
the shares jointly owned by them, as well as the shares held of record of PN
Cellular, SCC and The Stanton Family Trust.
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Preliminary Statement
This Schedule 13D supercedes the Schedule 13G filed by John W.
Stanton ("Mr. Stanton") and Theresa E. Gillespie ("Ms. Gillespie") with the
Securities and Exchange Commission on May 12, 1999, relating to the common
stock, no par value (the "Common Stock"), of VoiceStream Wireless Corporation, a
Washington corporation (the "Company").
Item 1. Security and Issuer.
This statement on Schedule 13D relates to the Common Stock of the
Company.
Item 2. Identity and Background.
(a) NAME OF PERSONS FILING:
John W. Stanton and Theresa E. Gillespie, husband and wife.
(b) ADDRESS OF PRINCIPAL BUSINESS OFFICE OR, IF NONE, RESIDENCE:
VoiceStream Wireless Corporation 3650 131st Avenue S.E.
Bellevue, WA 98006
(c) PRINCIPAL OCCUPATION OR EMPLOYMENT AND THE NAME, PRINCIPAL
BUSINESS AND ADDRESS OF CORPORATION IN WHICH EMPLOYMENT IS CONDUCTED:
Mr. Stanton is Chief Executive Officer of the Company and of Western
Wireless Corporation, a Washington corporation ("Western"). The addresses of the
Company and Western Wireless are:
VoiceStream Wireless Corporation
3650 131st Avenue S.E.
Bellevue, WA 98006
and:
Western Wireless Corporation
3650 131st Avenue S.E.
Bellevue, WA 98006
Mr. Stanton is also a director of the Company and Western.
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Ms. Gillespie is Senior Vice President of Western. The address of
Western is:
Western Wireless Corporation
3650 131st Avenue S.E.
Bellevue, WA 98006
(d) WHETHER DURING LAST FIVE YEARS, 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, neither Mr. Stanton nor Ms. Gillespie has
been convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors).
(e) WHETHER DURING THE LAST FIVE YEARS, 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, neither of Mr. Stanton nor Ms. Gillespie
has been a party to a civil proceeding of a judicial or administrative body of
competent jurisdiction as a result of which either 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. Stanton and Ms. Gillespie are citizens of the United States of
America.
Item 3. Source and Amount of Funds or Other Consideration.
Not applicable.
Item 4. Purpose of the Transaction.
Mr. Stanton's and Ms. Gillespie's acquisitions of Common Stock were
made for investment purposes only. Neither of them 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.
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Each of Mr. Stanton and Ms. Gillespie, 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.
Each of Mr. Stanton and Ms. Gillespie 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:
Mr. Stanton and Ms. Gillespie are the beneficial owners of 6,555,411
shares of Common Stock, representing 6.9% of the issued and outstanding Common
Stock. These holdings include (i) 1,686,069 shares of Common Stock held of
record by PN Cellular, which is substantially owned and controlled by Mr.
Stanton and Ms. Gillespie, (ii) 1,274,519 shares of Common Stock held of record
by SCC, which is substantially owned and controlled by Mr. Stanton and Ms.
Gillespie, (iii) 3,152,774 shares of Common Stock held by Mr. Stanton and Ms.
Gillespie, as tenants in common, (iv) 164,437 shares of Common Stock held of
record by The Stanton Family Trust; and (v) 90,000 shares and 15,000 shares of
Common Stock held of record by each of Mr. Stanton and Ms. Gillespie,
respectively, pursuant to Western Wireless Corporation's 1997 Executive
Restricted Stock Plan.
(b) NUMBER OF SHARES AS TO WHICH SUCH PERSON HAS POWER TO VOTE:
Mr. Stanton and Ms. Gillespie are married and share voting and
investment power with respect to the shares jointly owned by them,
as well as the shares held of record of PN Cellular, SCC and The
Stanton Family Trust.
(c) TRANSACTIONS EFFECTED DURING THE PAST 60 DAYS OR SINCE THE MOST
RECENT FILING ON SCHEDULE 13D, WHICHEVER IS LESS:
None.
Item 6. Contracts, Arrangements, Understandings or Relationships
Involving Securities of the Issuer.
Mr. Stanton, Ms. Gillespie and certain other stockholders of the
Company are currently parties to a Voting Agreement, dated as of May 3, 1999
(the "Voting Agreement"), which provides that the
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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 shall be Mr. Stanton,
for so long as he is the Chief Executive Officer of the Company or he, together
with certain affiliates, beneficially owns at least 4,500,000 shares of Common
Stock, and one of whom shall be selected by a majority vote of Mr. Stanton (or,
if Mr. Stanton has transferred all of his shares of Common Stock to certain of
his affiliates, such affiliates) and Providence Media Partners L.P., a Delaware
limited partnership ("Providence")(or, if Providence has transferred all of its
shares of Common Stock to certain of its affiliates, such affiliates). This
member is in addition to Mr. Stanton for so long as Mr. Stanton serves on the
board of directors of the Company by reason of his holding the office of Chief
Executive Officer of the Company or he, together with certain affiliates,
beneficially owns at least 4,500,000 shares of Common Stock). With respect to
such member, Mr. Stanton has agreed that, so long as (i) Mr. Stanton is Chief
Executive Officer of the Company or he, together with certain of his affiliates,
beneficially owns at least 4,500,000 shares of Common Stock, (ii) Mr. Stanton
and Providence (and certain of their respective affiliates) collectively
beneficially own at least 4,500,000 shares of Common Stock, and (iii) Providence
(or certain of its affiliates) beneficially own at least 2,500,000 shares of
Common Stock, he shall vote his shares of Common Stock (and certain of his
affiliates' shares) for Providence's designee.
Mr. Stanton, Ms. Gillespie, certain other stockholders of the Company,
the Company, Omnipoint Corporation, a Delaware corporation ("Omnipoint") and
certain stockholders of Omnipoint (the "Omnipoint Stockholders") have entered
into an agreement, dated as of June 23, 1999 (the "Merger Voting Agreement"),
whereby Mr. Stanton, Ms. Gillespie and certain other stockholders of the Company
parties thereto have agreed to attend a meeting of the Company's stockholders,
in person or by proxy, and to vote or cause to be voted the number of shares of
Common Stock beneficially owned by them set forth in a schedule to the Merger
Voting Agreement (the "Scheduled Shares") in favor of (i) the adoption and
approval of the Agreement and Plan of Reorganization, dated as of June 23, 1999,
between the Company, VoiceStream Wireless Holding Corporation and Omnipoint (the
"Reorganization Agreement"), and (ii) the proposed merger contemplated by the
Reorganization Agreement (the "Merger") and any other matters necessary to
consummate the transactions contemplated in the Reorganization Agreement.
In addition, pursuant to the Merger Voting Agreement, Mr. Stanton, Ms.
Gillespie and certain stockholders of the Company have agreed to terminate the
Voting Agreement upon the consummation of the Merger and to enter into a new
voting agreement with the Omnipoint Stockholders on terms mutually satisfactory
to the parties thereto.
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Finally, from and after the date of the Merger Voting Agreement
through the earlier of the effective time of the transactions contemplated by
the Reorganization Agreement and the termination of the Reorganization
Agreement, each of Mr. Stanton and Ms. Gillespie and each of certain other
stockholders of the Company have agreed not to sell or otherwise dispose of, in
a single transaction or a series of unrelated transactions, more than 30% of the
Scheduled Shares beneficially owned by such stockholder unless, as a condition
to such sale, each transferee of any shares in excess of 30% of the Scheduled
Shares beneficially owned by such stockholder agrees to be bound by the
provisions of the Merger Voting Agreement applicable to the stockholders of the
Company.
The foregoing descriptions of the Voting Agreement and the Merger
Voting Agreement are subject to, and qualified in their entirety by reference
to, the Voting Agreement, which is filed as exhibit 99.1 hereto and the Merger
Voting Agreement, which is filed as exhibit 99.2 hereto and incorporated by
reference into this Item 6.
Item 7. Material To be Filed as Exhibits.
99.1 Voting Agreement by and among VoiceStream Wireless Corporation,
Mr. Stanton, Ms. Gillespie and certain stockholders of VoiceStream Wireless
Corporation.
99.2 Agreement by and among VoiceStream Wireless Corporation,
Omnipoint Corporation and certain stockholders of VoiceStream Wireless
Corporation.
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated: June 25, 1999
By: /s/
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John W. Stanton
By: /s/
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Theresa E. Gillespie
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Exhibit Index
99.1 Voting Agreement by and among VoiceStream Wireless Corporation,
Mr. Stanton, Ms. Gillespie and certain stockholders of VoiceStream Wireless
Corporation.
99.2 Agreement by and among VoiceStream Wireless Corporation,
Omnipoint Corporation and certain stockholders of VoiceStream Wireless
Corporation.
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VOTING AGREEMENT
This VOTING AGREEMENT (this "Agreement") is made and entered into as of
this ____ day of ____________, 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").
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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 ___________, 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 ____ shares of Common Stock, of which ____ 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:
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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 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.
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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
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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 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.
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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.
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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 ___________, 1999, by
and among certain shareholders of the Company."
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,
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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
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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 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
-9-
<PAGE> 10
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
-10-
<PAGE> 11
(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
-11-
<PAGE> 12
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 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.
-12-
<PAGE> 13
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.
-13-
<PAGE> 14
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. 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
-14-
<PAGE> 15
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
-15-
<PAGE> 16
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
-16-
<PAGE> 17
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
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<PAGE> 18
Hutchison Telecommunications PCS (USA) Limited
22nd Floor, Hutchison House
10 Harcourt Road
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
-18-
<PAGE> 19
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.
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.
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<PAGE> 20
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
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<PAGE> 21
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
-21-
<PAGE> 22
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.
(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
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<PAGE> 23
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.
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<PAGE> 24
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:
-------------------------------
Name:
Title:
HUTCHISON TELECOMMUNICATIONS PCS
(USA) LIMITED
By:
-------------------------------
Name:
Title:
HUTCHISON TELECOMMUNICATIONS
HOLDINGS (USA) LIMITED
By:
-------------------------------
Name:
Title:
HELLMAN & FRIEDMAN CAPITAL PARTNERS
II, L.P., a California limited partnership
By: Hellman & Friedman Investors, L.P., its
general partner
By: Hellman & Friedman Investors, Inc.,
its general partner
By:
-------------------------------
Name:
Title:
-24-
<PAGE> 25
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:
-----------------------------
Name:
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:
-----------------------------------
Name:
Title:
---------------------------------------------
JOHN W. STANTON
---------------------------------------------
THERESA E. GILLESPIE
PN CELLULAR, INC.
By:
-------------------------------
Name:
Title:
-25-
<PAGE> 26
STANTON FAMILY TRUST
By:
-------------------------------
Name: , Trustee
STANTON COMMUNICATIONS CORPORATION
By:
-------------------------------
Name:
Title:
THE GOLDMAN SACHS GROUP, L.P.
By:
-------------------------------
Name:
Title:
GS CAPITAL PARTNERS, L.P.
By: GS Advisors L.P., General Partner
By: GS Advisors, Inc., General Partner
By:
-------------------------------
Name:
Title:
BRIDGE STREET FUND 1992, L.P.
By: Stone Street Performance Corp., Managing
General Partner
By:
-------------------------------
Name:
Title:
-26-
<PAGE> 27
STONE STREET FUND 1992, L.P.
By: Stone Street Performance Corp., General
Partner
By:
-------------------------------
Name:
Title:
PROVIDENCE MEDIA PARTNERS L.P.
By: Providence Media GP Limited Partnership
Its: General Partner
By: Providence Ventures, L.P.
Its: General Partner
By:
-------------------------------
Name:
Title:
-27-
<PAGE> 28
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: _____________, 1999
<PAGE> 29
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Section Page
- ------- ----
<S> <C>
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
</TABLE>
-i-
<PAGE> 30
<TABLE>
<CAPTION>
Section Page
- ------- ----
<S> <C>
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
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
</TABLE>
- ii -
<PAGE> 31
Schedule 1
to
Voting Agreement
<TABLE>
<CAPTION>
No. of Shares
of Common Stock
Name of Shareholder Owned by Shareholders
- ------------------- ---------------------
<S> <C>
Hellman & Friedman Capital Partners II, L.P.
H&F Orchard Partners, L.P.
H&F International Partners, L.P.
GS Capital Partners, L.P.
Bridge Street Fund 1992, L.P.
Stone Street Fund 1992, L.P.
The Goldman Sachs Group, L.P.
PN Cellular, Inc.
Stanton Communications Corporation
John W. Stanton & Theresa E. Gillespie
Stanton Family Trust
Providence Media Partners L.P.
Hutchison Telecommunications PCS (USA) Limited
Hutchison Telecommunications Holdings (USA) Limited
</TABLE>
<PAGE> 1
AGREEMENT
AGREEMENT, dated as of June 23, 1999, by and among OMNIPOINT
CORPORATION, a Delaware corporation ("Omnipoint"), VOICESTREAM WIRELESS
CORPORATION, a Washington corporation ("VoiceStream"), the individuals and
entities set forth on Schedule I hereto (each, an "Omnipoint Stockholder" and,
collectively, the "Omnipoint Stockholders") and the individuals and entities set
forth on Schedule II hereto (each, a "VoiceStream Stockholder" and,
collectively, the "VoiceStream Stockholders").
WHEREAS, concurrently herewith, each of Omnipoint and
VoiceStream are entering into an Agreement and Plan of Reorganization (the
"Reorganization Agreement") pursuant to which, among other things, wholly owned
subsidiaries of VoiceStream Wireless Holding Corporation, a Delaware corporation
("Newco"), will be merged with and into each of Omnipoint and VoiceStream (such
mergers, together with the related transactions contemplated in the
Reorganization Agreement, being referred to herein collectively as the
"Merger");
WHEREAS, each Omnipoint Stockholder is the beneficial owner of
the number of shares of Omnipoint Common Stock set forth opposite such Omnipoint
Stockholder's name in Schedule I hereto (the "Omnipoint Shares");
WHEREAS, each VoiceStream Stockholder is the beneficial owner
of the number of shares of VoiceStream Common Stock set forth opposite such
VoiceStream Stockholder's name in Schedule II hereto (the "VoiceStream Scheduled
Shares");
WHEREAS, approval of the Reorganization Agreement by each of
Omnipoint's and VoiceStream's stockholders is a condition to the consummation of
the Merger; and
WHEREAS, as a condition to its entering into the
Reorganization Agreement, (i) VoiceStream has required that each Omnipoint
Stockholder agree, and each Omnipoint Stockholder has agreed, to enter into this
Agreement, and (ii) Omnipoint has required that each VoiceStream Stockholder
agree, and each VoiceStream Stockholder has agreed, to enter into this
Agreement;
NOW THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements set forth herein, the parties hereto agree as
follows:
Section 1. Definitions. Capitalized terms used herein and not
otherwise defined have the meaning ascribed to such term in the Reorganization
Agreement.
<PAGE> 2
Section 2. Agreement to Vote by Omnipoint Stockholders.
(a) Each Omnipoint Stockholder hereby agrees to attend the
Omnipoint Stockholders' Meeting, in person or by proxy, and to vote (or cause to
be voted) all Omnipoint Shares, and any other voting securities of Omnipoint,
beneficially owned by such Omnipoint Stockholder (whether issued heretofore or
hereafter) that such Omnipoint Stockholder owns or has the right to vote, (i) in
favor of adoption and approval of the Reorganization Agreement and the Merger
and any other matters necessary to consummate the transactions contemplated in
the Reorganization Agreement and (ii) against any Alternative Proposal or
Superior Proposal; such agreement to vote shall apply also to any adjournment or
adjournments of the Omnipoint Stockholders' Meeting.
(b) From and after the date hereof through the earlier of the
Effective Time or the termination of the Reorganization Agreement, each
Omnipoint Stockholder (other than with respect to any distribution by Madison
Dearborn Capital Partners, L.P. of its Omnipoint Shares to its partners) hereby
agrees not to sell, transfer, pledge, encumber or otherwise dispose of
(collectively, "Transfer") in the aggregate and whether in a single transaction
or a series of unrelated transactions more than thirty (30%) percent of the
Omnipoint Shares beneficially owned by such Omnipoint Stockholder on the date
hereof, unless, as a condition to any such Transfer, each transferee (or, in the
case of a pledge or similar transfer, each pledgee or similar conditional
transferee) of any shares in excess of thirty (30%) percent of the Omnipoint
Shares beneficially owned by such Omnipoint Stockholder shall, prior to such
Transfer (or, in the case of a pledge or similar Transfer, prior to taking title
to or exercising any rights with respect to the applicable Omnipoint Shares),
agree in writing to be bound by all of the provisions of this Agreement
applicable to the Omnipoint Stockholders (and such transferee shall thereby
become an Omnipoint Stockholder for all purposes of this Agreement), except that
such Transferee shall not be entitled to Transfer any such shares unless all
transferees of all shares so transferred agree to be bound by the terms of
Section 2(a) hereof and such Transferee (and such Transferee's transferees)
shall not be entitled to the benefits of the exception applicable to the
Omnipoint Stockholders with respect to 30% of the Omnipoint Shares beneficially
owned by them. Any Transfer of such shares and securities without compliance
with such provisions of this Agreement shall be null and void and such
transferee shall have no rights as a stockholder of Omnipoint.
(c) To the extent inconsistent with the foregoing provisions
of this Section 2, each Omnipoint Stockholder hereby revokes any and all
previous proxies with respect to such Omnipoint Stockholder's Omnipoint Shares
or any other voting securities of Omnipoint.
Section 3. Agreement to Vote by VoiceStream Stockholders.
(a) Each VoiceStream Stockholder hereby agrees to attend the
VoiceStream Stockholders' Meeting, in person or by proxy, and to vote (or cause
to be voted) all VoiceStream Scheduled Shares owned by such VoiceStream
Stockholder at the time of the VoiceStream
2
<PAGE> 3
Stockholders' Meeting in favor of adoption and approval of the Reorganization
Agreement, the Merger and the Hutchison Transaction and any other matters
necessary to consummate the transactions contemplated in the Reorganization
Agreement; such agreement to vote shall apply also to any adjournment or
adjournments of the VoiceStream Stockholders' Meeting.
(b) From and after the date hereof through the earlier of the
Effective Time or the termination of the Reorganization Agreement, each
VoiceStream Stockholder (other than with respect to any distribution by Hellman
& Friedman Capital Partners II, L.P., H&F Orchard Partners, L.P., H&F
International Partners, L.P., GS Capital Partners, L.P., Bridge Street Fund
1992, L.P., Stone Street Fund 1992, L.P. or Providence Media Partners L.P. of
their VoiceStream shares to their partners) hereby agrees not to Transfer in the
aggregate and whether in a single transaction or a series of unrelated
transactions more than (30%) percent of the VoiceStream Scheduled Shares,
unless, as a condition to any such Transfer, each transferee (or, in the case of
a pledge or similar transfer, each pledgee or similar conditional transferee) of
any shares in excess of thirty (30%) percent of the VoiceStream Scheduled
Shares, prior to such Transfer (or, in the case of a pledge or similar transfer,
prior to taking title to or exercising any rights with respect to the applicable
VoiceStream Scheduled Shares), agree in writing to be bound by all of the
provisions of this Agreement applicable to the VoiceStream Stockholders (and
such transferee shall thereby become a VoiceStream Stockholder for all purposes
of this Agreement), except that such Transferee shall not be entitled to
Transfer any such shares unless all transferees of all shares so transferred
agree to be bound by the terms of Section 3(a) hereof and such Transferee (and
such Transferee's transferees) shall not be entitled to the benefits of the
exception applicable to the VoiceStream Stockholders with respect to 30% of the
VoiceStream Scheduled Shares. Any Transfer of such shares and securities without
compliance with such provisions of this Agreement shall be null and void and
such transferee shall have no rights as a stockholder of VoiceStream.
(c) To the extent inconsistent with the foregoing provisions
of this Section 3, each VoiceStream Stockholder hereby revokes any and all
previous proxies with respect to such VoiceStream Stockholder's VoiceStream
Scheduled Shares.
Section 4. Amendment of Existing VoiceStream Voting Agreement.
The VoiceStream Stockholders are parties to a Voting
Agreement, dated May 3, 1999 ("VoiceStream Voting Agreement"), pursuant to which
they have agreed to vote their VoiceStream Scheduled Shares owned by each of
them at the time of such vote in favor of directors designated by such
VoiceStream Stockholders. Effective on the Effective Time the VoiceStream
Stockholders shall terminate the VoiceStream Voting Agreement and enter into a
new Voting Agreement ("Newco Voting Agreement") with the Omnipoint Stockholders
on terms mutually satisfactory to the VoiceStream Stockholders and the Omnipoint
Stockholders, pursuant to which the voting arrangements which existed under the
VoiceStream Voting Agreement will apply to Newco and the provisions of Section
6.1 of the Securities Purchase Agreement, of even date herewith, between
VoiceStream and Omnipoint, will also be effectuated.
3
<PAGE> 4
Section 5. Representations and Warranties of VoiceStream and
Omnipoint.
(a) VoiceStream represents and warrants to Omnipoint and each
Omnipoint Stockholder as follows: (i) each of this Agreement and the
Reorganization Agreement has been approved by the Board of Directors of
VoiceStream and (ii) each of this Agreement and the Reorganization Agreement has
been duly executed and delivered by VoiceStream and constitutes its valid and
binding agreement, enforceable against it in accordance with its terms, except
as may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium and other similar laws of general application which may affect the
enforcement of creditors' rights generally and by general equitable principles.
(b) Omnipoint represents and warrants to VoiceStream and each
VoiceStream Stockholder as follows: (i) each of this Agreement and the
Reorganization Agreement has been approved by the Board of Directors of
Omnipoint and (ii) each of this Agreement and the Reorganization Agreement has
been duly executed and delivered by Omnipoint and constitutes its valid and
binding agreement, enforceable against it in accordance with its terms, except
as may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium and other similar laws of general application which may affect the
enforcement of creditors' rights generally and by general equitable principles.
Section 6. Representations and Warranties of the Omnipoint
Stockholders and VoiceStream Stockholders.
(a) Each Omnipoint Stockholder, severally, as to such
Omnipoint Stockholder, represents and warrants to VoiceStream as follows: (i)
this Agreement has been duly executed and delivered by such Omnipoint
Stockholder and constitutes its valid and binding agreement, enforceable against
it in accordance with its terms, except as may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium and other similar laws of
general application which may affect the enforcement of creditors' rights
generally and by general equitable principles; and (ii) the Omnipoint Shares
listed next to the name of such Omnipoint Stockholder on Schedule I hereto are
the only voting securities of Omnipoint owned (beneficially or of record) by it.
(b) Each VoiceStream Stockholder, severally, as to such
VoiceStream Stockholder, represents and warrants to Omnipoint that this
Agreement has been duly executed and delivered by such VoiceStream Stockholder
and constitutes its valid and binding agreement, enforceable against it in
accordance with its terms, except as may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other similar laws of general
application which may affect the enforcement of creditors' rights generally and
by general equitable principles.
Section 7. Effectiveness and Termination. It is a condition
precedent to the effectiveness of this Agreement that the Reorganization
Agreement shall have been executed and delivered and be in full force and
effect. In the event the Reorganization Agreement is terminated in accordance
with its terms, this Agreement shall automatically terminate and be of no
further force
4
<PAGE> 5
or effect. Upon such termination, except for any rights any party may have in
respect of any breach by any other party of its or his obligations hereunder,
none of the parties hereto shall have any further obligation or liability
hereunder.
Section 8. Miscellaneous.
(a) Notices, Etc. All notices, requests and other
communications to any party hereunder shall be in writing (including facsimile
transmission) and shall be given,
if to VoiceStream, to it at:
3650 131 Avenue SE
Bellevue, Washington 98006
Attention: Alan R. Bender, Esq.
Fax: (425) 586-8080
with a copy to:
Friedman Kaplan & Seiler LLP
875 Third Avenue
New York, New York 10022
Attention: Barry A. Adelman, Esq.
Fax: (212) 355-6401
if to any VoiceStream Stockholder, to it at the address set
forth on Schedule II hereto;
if to Omnipoint, to it at:
Omnipoint Corporation
3 Bethesda Metro Center
Suite 400
Bethesda, Maryland 20814
Attention: Douglas G. Smith
Fax: 301-951-3591
with a copy to:
Piper & Marbury L.L.P.
1200 Nineteenth Street, N.W.
Washington, D.C. 20036
Attention: Edwin M. Martin, Jr., Esq.
Fax: (202) 233-2085
5
<PAGE> 6
if to any Omnipoint Stockholder, to it at the address set forth
on Schedule I hereto;
or such other address or facsimile number as such party may hereafter specify
for the purpose by notice to the other parties hereto. All such notices,
requests and other communications shall be deemed received on the date of
receipt by the recipient thereof if received prior to 5 p.m. on a Business Day,
in the place of receipt. Otherwise, any such notice, request or communication
shall be deemed not to have been received until the next succeeding Business Day
in the place of receipt.
(b) Amendments; No Waivers. (i) Subject to applicable law, any
provision of this Agreement may be amended or waived, but only if, such
amendment or waiver is in writing and is signed, in the case of an amendment, by
each party to this Agreement or, in the case of a waiver, by each party against
whom the waiver is to be effective.
(ii) No failure or delay by any party in exercising any
right, power or privilege hereunder shall operate as a waiver thereof nor shall
any single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
(c) Successors and Assigns. This Agreement shall be binding upon
and shall inure to the benefit of and be enforceable by the parties and their
respective successors and assigns, including, without limitation, in the case of
any corporate party hereto any corporate successor by merger or otherwise, and
in the case of any individual party hereto any trustee, executor, heir, legatee
or personal representative succeeding to the ownership of such party's shares of
Omnipoint Common Stock or other securities subject to this Agreement.
Notwithstanding any Transfer of shares of Omnipoint Common Stock the transferor
shall remain liable for the performance of all obligations under this Agreement
of transferor.
(d) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, without regard
to the conflicts of law rules of such State.
(e) Jurisdiction. Any suit, action or proceeding seeking to
enforce any provision of, or based on any matter arising out of or in connection
with, this Agreement or the transactions contemplated hereby shall be brought in
any federal court located in the State of Delaware or any Delaware state court,
and each of the parties hereby consents to the exclusive jurisdiction of such
courts (and of the appropriate appellate courts therefrom) in any such suit,
action or proceeding and irrevocably waives, to the fullest extent permitted by
law, any objection that it may now or hereafter have to the laying of the venue
of any such suit, action or proceeding in any such court or that any such suit,
action or proceeding brought in any such court has been brought in an
inconvenient forum. Process in any such suit, action or proceeding may be served
on any party anywhere in the world, whether within or without the jurisdiction
of any such court. Without limiting the foregoing, each
6
<PAGE> 7
party agrees that service of process on such party as provided in Section 6(e)
shall be deemed effective service of process on such party.
(f) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
(g) Counterparts; Effectiveness. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall become effective when each party hereto shall have received
counterparts hereof signed by all of the other parties hereto. No provision of
this Agreement is intended to confer any rights, benefits, remedies, obligations
or liabilities hereunder upon any Person other than the parties hereto and their
respective successors and assigns.
(h) Entire Agreement. This Agreement, together with the
Reorganization Agreement, constitutes the entire agreement between the parties
with respect to the subject matter of this Agreement and supersedes all prior
agreements and understandings, both oral and written, between the parties with
respect to such subject matter.
(i) Captions. The captions herein are included for convenience of
reference only and shall be ignored in the construction or interpretation
hereof.
(j) Severability. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction or other
authority to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Agreement shall remain in full
force and effect and shall in no way be affected, impaired or invalidated so
long as the economic or legal substance of the transactions contemplated hereby
is not affected in any manner materially adverse to any party. Upon such a
determination, the parties shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner so that the transactions contemplated hereby be
consummated as originally contemplated to the fullest extent possible.
(k) Specific Performance. The parties hereto agree that
irreparable damage would occur if any provision of this Agreement were not
performed in accordance with the terms hereof and that the parties shall be
entitled to an injunction or injunctions to prevent breaches of this Agreement
or to enforce specifically the performance of the terms and provisions hereof in
any federal court located in the State of Delaware or any Delaware state court,
in addition to any other remedy to which they are entitled at law or in equity.
(l) Remedies Cumulative. All rights, powers and remedies provided
under this Agreement or otherwise available in respect hereof at law or in
equity shall be cumulative and not
7
<PAGE> 8
alternative, and the exercise or beginning of the exercise of any thereof by any
party shall not preclude the simultaneous or later exercise of any other such
right, power or remedy by such party.
(m) Limitation on Liability. No party hereto shall have any
liability hereunder for any actions or omissions of any other party hereto.
(n) Expenses. Each party hereto shall bear its own expenses
incurred in connection with this Agreement.
(o) Further Assurances. Each party hereto agrees that such party
shall execute and deliver such additional instruments and other documents and
shall take such further actions as may be necessary or appropriate to
effectuate, carry out and comply with all of their obligations under this
Agreement. Without limiting the generality of the foregoing, none of the parties
hereto shall enter into any agreement or arrangement (or alter, amend or
terminate any existing agreement or arrangement) if such action would impair the
ability of any party to effectuate, carry out or comply with all the terms of
this Agreement.
8
<PAGE> 9
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed as of the day and year first above written.
VOICESTREAM WIRELESS CORPORATION
By:
-------------------------------
Name:
Title:
OMNIPOINT CORPORATION
By:
-------------------------------
Name:
Title:
VOICESTREAM STOCKHOLDERS:
Hellman & Friedman Capital Partners II, L.P.,
a California limited partnership
By: Hellman & Friedman Investors, L.P., its
general partner
By: Hellman & Friedman Investors, Inc.,
its general partner
By:
-------------------------------
Name:
Title:
<PAGE> 10
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:
-------------------------------
Name:
Title:
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:
-------------------------------
Name:
Title:
-----------------------------------------
John W. Stanton
-----------------------------------------
Theresa E. Gillespie
<PAGE> 11
PN Cellular, Inc.
By:
-------------------------------
Name:
Title:
Stanton Family Trust
By:
-------------------------------
Name: , Trustee
Stanton Communications Corporation
By:
-------------------------------
Name:
Title:
GS Capital Partners, L.P.
By: GS Advisors L.P., General Partner
By: GS Advisors, Inc., General Partner
By:
-------------------------------
Name:
Title:
The Goldman Sachs Group, Inc.
By:
-------------------------------
Name:
Title:
<PAGE> 12
Bridge Street Fund 1992, L.P.
By: Stone Street Performance Corp.,
Managing General Partner
By:
-------------------------------
Name:
Title:
Stone Street Fund 1992, L.P.
By: Stone Street Performance Corp.,
General Partner
By:
-------------------------------
Name:
Title:
Providence Media Partners L.P.
By: Providence Media G.P. Limited
Partnership, General Partner
By: Providence Ventures L.P., General
Partner
By:
-------------------------------
Name:
Title:
<PAGE> 13
Hutchison Telecommunications Holdings
(USA) Limited
By:
-------------------------------
Name:
Title:
Hutchison Telecommunications PCS (USA)
Limited
By:
-------------------------------
Name:
Title:
<PAGE> 14
OMNIPOINT STOCKHOLDERS:
[TO BE PROVIDED]
<PAGE> 15
SCHEDULE I
OMNIPOINT STOCKHOLDERS
<TABLE>
<CAPTION>
NAME AND ADDRESS OF STOCKHOLDER NUMBER OF OMNIPOINT SHARES
- ------------------------------- --------------------------
<S> <C>
</TABLE>
<PAGE> 16
SCHEDULE II
VOICESTREAM STOCKHOLDERS
<TABLE>
<CAPTION>
NAME AND ADDRESS OF STOCKHOLDER NUMBER OF VOICESTREAM
SCHEDULED SHARES
------------------------------- ---------------------
<S> <C>
Hellman & Friedman Capital Partners II, L.P. 6,592,285
c/o Hellman & Friedman LLC
One Maritime Plaza, Suite 1200
San Francisco, California 94111
Attention: Mitchell R. Cohen
Fax: 415-788-0176
H&F Orchard Partners, L.P. 589,693
c/o Hellman & Friedman
One Maritime Plaza, Suite 1200
San Francisco, California 94111
Attention: Mitchell R. Cohen
Fax: 415-788-0176
H&F International Partners, L.P. 117,019
c/o Hellman & Friedman
One Maritime Plaza, Suite 1200
San Francisco, California 94111
Attention: Mitchell R. Cohen
Fax: 415-788-0176
John W. Stanton and Theresa E. Gillespie 3,192,774
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
</TABLE>
<PAGE> 17
<TABLE>
<CAPTION>
NAME AND ADDRESS OF STOCKHOLDER NUMBER OF VOICESTREAM
SCHEDULED SHARES
------------------------------- ---------------------
<S> <C>
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
</TABLE>
<PAGE> 18
<TABLE>
<CAPTION>
NAME AND ADDRESS OF STOCKHOLDER NUMBER OF VOICESTREAM
SCHEDULED SHARES
------------------------------- ---------------------
<S> <C>
Providence Media Partners L.P. 2,640,049
c/o Providence Ventures, Inc.
900 Fleet Center
50 Kennedy Plaza
Providence, Rhode Island 02903
Attention: Jonathan Nelson
Fax: 401-751-1790
Hutchison Telecommunications PCS (USA) Limited 19,010,364
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
</TABLE>
<PAGE> 19
<TABLE>
<CAPTION>
NAME AND ADDRESS OF STOCKHOLDER NUMBER OF VOICESTREAM
SCHEDULED SHARES
------------------------------- ---------------------
<S> <C>
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
</TABLE>
