<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 1)
VoiceStream Wireless Corporation
--------------------------------
(Name of Issuer)
Common Stock, No Par Value
--------------------------
(Title of Class of Securities)
928615 10 3
---------------------------
(CUSIP Number)
Edith Shih
Hutchison Whampoa Limited
22nd Floor, Hutchison House
10 Harcourt Road
Hong Kong
(852-2128-1188)
__________
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
Copies to:
John A. Otoshi
Dewey Ballantine LLP
Suite 3907, Asia Pacific Finance Tower
3 Garden Road
Hong Kong
(852-2509-7000)
__________
June 23, 1999
(Date of Event which Requires
Filing of this Statement)
If the 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 _____________.
<PAGE>
SCHEDULE 13D
CUSIP NO. 928615 10 3
-----------
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
HUTCHISON WHAMPOA LIMITED - Not Applicable
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)[_]
(b)[_]
Not Applicable
- --------------------------------------------------------------------------------
3 SEC US ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
00
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(E) [_]
Not Applicable
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Hong Kong
- --------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES - 0 -
-----------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY EACH 22,899,252
-----------------------------------------------
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON WITH - 0 -
-----------------------------------------------
10 SHARED DISPOSITIVE POWER
22,899,252
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
22,899,252
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [_]
Not Applicable
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
23.97%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
HC, CO
- --------------------------------------------------------------------------------
<PAGE>
SCHEDULE 13D
CUSIP NO. 928615 10 3
-----------
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
HUTCHISON TELECOMMUNICATIONS HOLDINGS (USA) LIMITED - Not Applicable
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)[_]
(b)[_]
Not Applicable
- --------------------------------------------------------------------------------
3 SEC US ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
00
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(E) [_]
Not Applicable
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
British Virgin Islands
- --------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES - 0 -
-----------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY EACH 3,888,888
-----------------------------------------------
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON WITH - 0 -
-----------------------------------------------
10 SHARED DISPOSITIVE POWER
3,888,888
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,888,888
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [_]
Not Applicable
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
4.07%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
CO
- --------------------------------------------------------------------------------
<PAGE>
SCHEDULE 13D
CUSIP NO. 928615 10 3
-----------
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
HUTCHISON TELECOMMUNICATIONS PCS (USA) LIMITED - Not Applicable
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)[_]
(b)[_]
Not Applicable
- --------------------------------------------------------------------------------
3 SEC US ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
00
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(E) [_]
Not Applicable
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
British Virgin Islands
- --------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES - 0 -
-----------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY EACH 19,010,364
-----------------------------------------------
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON WITH - 0 -
-----------------------------------------------
10 SHARED DISPOSITIVE POWER
19,010,364
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
19,010,364
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [_]
Not Applicable
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
19.90%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
CO
- --------------------------------------------------------------------------------
<PAGE>
SCHEDULE 13D
CUSIP NO. 928615 10 3
-----------
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
CHEUNG KONG (HOLDINGS LIMITED) - Not Applicable
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)[_]
(b)[_]
Not Applicable
- --------------------------------------------------------------------------------
3 SEC US ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
00
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(E) [_]
Not Applicable
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Hong Kong
- --------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES - 0 -
-----------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY EACH Disclaimed (See 11 below.)
-----------------------------------------------
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON WITH - 0 -
-----------------------------------------------
10 SHARED DISPOSITIVE POWER
Disclaimed (See 11 below.)
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
Cheung Kong expressly disclaims beneficial ownership of the shares
beneficially owned by Hutchison Whampa Limited, Hutchison
Telecommunication PCS (USA) Limited and Hutchison Telecommunications
Holdings (USA) Limited.
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [_]
Not Applicable
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
23.97%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
HC, CO
- --------------------------------------------------------------------------------
<PAGE>
Preliminary Statement
---------------------
This statement constitutes Amendment No. 1 to the Schedule 13D filed
by Hutchison Whampoa Limited, a Hong Kong corporation ("HWL"), on its own behalf
and on behalf of Hutchison Telecommunications PCS (USA) Limited, a British
Virgin Islands corporation ("HTP"), an indirect wholly-owned subsidiary of HWL,
Hutchison Telecommunications Holdings (USA) Limited, a British Virgin Islands
corporation ("HTH"), an indirect wholly-owned subsidiary of HWL, and Cheung Kong
(Holdings) Limited, a Hong Kong corporation ("Cheung Kong"), a 49.9% shareholder
of HWL, with the Securities and Exchange Commission on May 13, 1999, relating to
the common stock, no par value (the "Common Stock"), of VoiceStream Wireless
Corporation, a Washington corporation (the "Issuer"). Terms defined in the
Schedule 13D previously filed have the same meaning in this Amendment.
Item 6. Contracts, Arrangements, Understandings or Relationships With Respect
---------------------------------------------------------------------
to Securities of the Issuer.
---------------------------
Item 6 of the Schedule 13D previously filed is hereby amended and
restated in its entirety to read as follows:
At the time of the Hutchison Investment in the Issuer, Western
Wireless and HTH entered into a shareholders agreement, which granted certain
rights to HTH. In connection with the Spin-Off, the shareholder agreement was
amended to provide that the only rights which survive the Spin-Off are HTH's
preemptive rights, its demand and piggyback registration rights and its right to
transfer its right to designate directors and demand and piggyback registration
rights to person's who acquire from HTH 50% of more of the shares of the
Issuer's Common Stock purchased by HTH in the Hutchison Investment.
In connection with the Spin-off, HTP and HTH and certain other
shareholders of the Issuer also entered into a voting agreement (the "Voting
Agreement") which incorporates HTH's rights under the shareholders agreement
relating to the designation of directors to the Board of the Issuer. The Voting
Agreement provides that the parties thereto shall vote their shares of the
Issuer's Common Stock for the election of ten board members designated as
follows: (i) Mr. John Stanton, so long as he is the Chief Executive Officer of
the Issuer or he beneficially owns 4,500,000 shares of Common Stock; (ii) so
long as the Hellman Entities (as defined in the Voting Agreement) beneficially
own at least (A) 9,800,000 shares of Common Stock, two persons designated by the
Hellman Entities or (B) 4,500,000 shares of Common Stock, one person designated
by the Hellman Entities; (iii) so long as the Hutchison Entities (as defined in
the Voting Agreement) beneficially own at least (A) 9,800,000 shares of Common
Stock, two persons designated by the Hutchison Entities or (B) 4,500,000 shares
of Common Stock, one person designated by the Hutchison Entities; (iv) so long
as the Goldman Sachs Entities (as defined in the Voting Agreement) beneficially
own at least 4,500,000 shares of Common Stock, one person designated by Goldman
Sachs; (v) so long as the Stanton Entities and Providence (each as defined in
the Voting Agreement) collectively beneficially own at least 4,500,000 shares of
Common Stock, one person designated by majority vote of the Stanton Entities and
Providence (such designee being in addition to
<PAGE>
Mr. Stanton if he is then serving on the Issuer Board of Directors by reason of
being the Chief Executive Officer of the Issuer or the Stanton Entities'
beneficial ownership of at least 4,500,000 shares of Common Stock). The Stanton
Entities have agreed that (x) so long as Mr. Stanton is serving as Chief
Executive Officer or he beneficially owns at least 4,500,000 shares of Common
Stock, (y) the Stanton Entities and Providence collectively beneficially own at
least 4,500,000 shares of Common Stock, and (z) Providence beneficially owns at
least 2,500,000 shares of Common Stock, the Stanton Entities shall vote their
shares of Common Stock for one member of the Issuer's Board of Directors
designated by Providence; and (vi) three members of the Issuer's Board of
Directors selected by a majority of the persons selected as described above. In
addition, the Hutchison Entities 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 the Hutchison Entities' aggregate ownership
of the Common Stock exceeds each of the following thresholds: 27.25%, 33.33%,
38.5%, 42.9%, 44.67% and 50%. The Goldman Sachs Entities are limited in their
voting power pursuant to provisions of the Issuer's Articles of Incorporation.
Each of HWL, HTP and HTH expressly disclaim any interest in and beneficial
ownership of any shares of Common Stock held by the Stanton Entities, the
Hellman Entities, the Goldman Entities or Providence.
HTH and HTP, the Issuer, certain other shareholders of the Issuer,
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
HTH and HTP and certain other shareholders of the Issuer parties thereto have
agreed to attend a meeting of the Issuer's shareholders, 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
Issuer, VoiceStream Wireless Holding Corporation, a Delaware 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, HTH and HTP and
certain other shareholders of the Issuer have agreed to terminate the Voting
Agreement upon the consummation of the Merger and to enter into a new voting
agreement with the Omnipoint Stockholders on terms mutually satisfactory to the
parties thereto.
Finally, from and after the date of the Merger Voting Agreement
through the earlier of the effective time of the transactions contemplated by
the Reorganization Agreement and the termination of the Reorganization
Agreement, HTH and HTP and each of certain other shareholders of the Issuer 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 shareholder unless, as a condition to such sale, each transferee
of more than 30% of the Scheduled Shares beneficially owned by such shareholder
agrees to be bound by the provisions of the Merger Voting Agreement applicable
to the shareholders of the Issuer.
<PAGE>
The foregoing description of the Merger Voting Agreement is subject
to, and qualified in its entirety by reference to, the form of Merger Voting
Agreement, which is filed as Exhibit 7 hereto and incorporated by reference into
this Item 6.
Except as disclosed in the preceding paragraphs and in Items 3, 4 and
5, to the best knowledge of HWL, HTP, HTH and Cheung Kong, there are no
contracts, arrangements, understandings or relationships (legal or otherwise)
among the foregoing persons or any executive officer or director of any of the
foregoing persons or between any such persons and any other person with respect
to any securities of the Issuer, including but not limited to the transfer or
voting of any such securities, finder's fees, joint ventures, loan or option
arrangements, puts or calls, guarantees of profits, division of profits or loss
or the giving or withholding of proxies.
<PAGE>
Item 7. Material to be Filed as Exhibits.
--------------------------------
Item 7 of Schedule 13D previously filed is hereby amended by the
addition of the following Exhibits:
Exhibit No.
- -----------
7 Agreement, dated as of June 23, 1999, by and among Omnipoint
Corporation, VoiceStream Wireless Corporation, certain stockholders
of Omnipoint and certain stockholders of VoiceStream.
<PAGE>
Signature
- ---------
After reasonable inquiry and to the best of its knowledge and belief,
each of the undersigned certifies that the information set forth in this
Statement with respect to it is true, complete and correct.
Date: June 29, 1999
FOR AND ON BEHALF OF
HUTCHISON WHAMPOA LIMITED
By: /s/ Frank J. Sixt
----------------------------------------
Name: Frank J. Sixt
Title: Director
FOR AND ON BEHALF OF
HUTCHISON TELECOMMUNICATIONS
PCS (USA) LIMITED
HUTCHISON TELECOMMUNICATIONS
HOLDINGS (USA) LIMITED
CHEUNG KONG (HOLDINGS) LIMITED
By: /s/ Frank J. Sixt
----------------------------------------
Name: Frank J. Sixt
Title: Attorney-in-Fact
<PAGE>
EXHIBIT 7
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>
Section 2. Agreement to Vote by Omnipoint Stockholders.
-------------------------------------------
(1) 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.
(2) 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.
(3) 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.
---------------------------------------------
(1) 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>
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.
(2) 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.
(3) 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>
Section 5. Representations and Warranties of VoiceStream and
-------------------------------------------------
Omnipoint.
- ---------
(1) 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.
(2) 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.
- -----------------------------------------
(1) 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.
(2) 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>
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.
-------------
(1) 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
if to any Omnipoint Stockholder, to it at the address set forth on
Schedule I hereto;
5
<PAGE>
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.
(2) 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.
(1) 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.
(3) 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.
(4) 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.
(5) Jurisdiction. Any suit, action or proceeding seeking to
------------
enforce any provision of, or based on any matter arising out of or in connection
with, this Agreement or the transactions contemplated hereby shall be brought in
any federal court located in the State of Delaware or any Delaware state court,
and each of the parties hereby consents to the exclusive jurisdiction of such
courts (and of the appropriate appellate courts therefrom) in any such suit,
action or proceeding and irrevocably waives, to the fullest extent permitted by
law, any objection that it may now or hereafter have to the laying of the venue
of any such suit, action or proceeding in any such court or that any such suit,
action or proceeding brought in any such court has been brought in an
inconvenient forum. Process in any such suit, action or proceeding may be served
on any party anywhere in the world, whether within or without the jurisdiction
of any such court. Without limiting the foregoing, each party agrees that
service of process on such party as provided in Section 6(e) shall be deemed
effective service of process on such party.
6
<PAGE>
(6) 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.
(7) 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.
(8) 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.
(9) Captions. The captions herein are included for convenience of
--------
reference only and shall be ignored in the construction or interpretation
hereof.
(10) 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.
(11) 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.
(12) Remedies Cumulative. All rights, powers and remedies provided
-------------------
under this Agreement or otherwise available in respect hereof at law or in
equity shall be cumulative and not alternative, and the exercise or beginning of
the exercise of any thereof by any party shall not preclude the simultaneous or
later exercise of any other such right, power or remedy by such party.
7
<PAGE>
(13) Limitation on Liability. No party hereto shall have any
-----------------------
liability hereunder for any actions or omissions of any other party hereto.
(14) Expenses. Each party hereto shall bear its own expenses
--------
incurred in connection with this Agreement.
(15) 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>
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>
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>
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>
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>
Hutchison Telecommunications Holdings (USA)
Limited
By:
------------------------------
Name:
Title:
Hutchison Telecommunications PCS (USA) Limited
By:
------------------------------
Name:
Title:
<PAGE>
Omnipoint Stockholders:
[TO BE PROVIDED]
<PAGE>
SCHEDULE I
Omnipoint Stockholders
----------------------
<TABLE>
<CAPTION>
Name and Address of Stockholder Number of Omnipoint Shares
- -----------------------------------------------------------------------------------------------
<S> <C>
- -----------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
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
- -----------------------------------------------------------------------------------------------
Stanton Family Trust 164,437
c/o VoiceStream Wireless Corporation
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
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
- -----------------------------------------------------------------------------------------------
Providence Media Partners L.P. 2,640,049
c/o Providence Ventures, Inc.
900 Fleet Center
50 Kennedy Plaza
Providence, Rhode Island 02903
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
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
- -----------------------------------------------------------------------------------------------
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>
