<PAGE>
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, Par Value $0.001 per share
----------------------------------------
(Title of Class of Securities)
928615103
------------------------------------
(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)
__________
February 25, 2000
(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. 928615103
-----------------
- ------------------------------------------------------------------------------
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) [X]
- ------------------------------------------------------------------------------
3 SEC USE ONLY
- ------------------------------------------------------------------------------
4 SOURCE OF FUNDS
WC
- ------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [_]
- ------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Hong Kong
- ------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF -0-
SHARES -----------------------------------------------------------
8 SHARED VOTING POWER
BENEFICIALLY
55,899,252
OWNED BY
-----------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING -0-
PERSON -----------------------------------------------------------
10 SHARED DISPOSITIVE POWER
WITH
55,899,252
- ------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
55,899,252
- ------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
[_]
- ------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
30.1%
- ------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
HC, CO
- ------------------------------------------------------------------------------
<PAGE>
SCHEDULE 13D
CUSIP NO. 928615103
-----------------
- ------------------------------------------------------------------------------
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) [X]
- ------------------------------------------------------------------------------
3 SEC USE ONLY
- ------------------------------------------------------------------------------
4 SOURCE OF FUNDS
AF
- ------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [_]
- ------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
British Virgin Islands
- ------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF -0-
SHARES -----------------------------------------------------------
8 SHARED VOTING POWER
BENEFICIALLY
52,010,364
OWNED BY
-----------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING -0-
PERSON -----------------------------------------------------------
10 SHARED DISPOSITIVE POWER
WITH
52,101,364
- ------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
52,010,364
- ------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
[_]
- ------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
28.0%
- ------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
CO
- ------------------------------------------------------------------------------
<PAGE>
SCHEDULE 13D
CUSIP NO. 928615103
-----------------
- ------------------------------------------------------------------------------
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) [X]
- ------------------------------------------------------------------------------
3 SEC USE ONLY
- ------------------------------------------------------------------------------
4 SOURCE OF FUNDS
AF
- ------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [_]
- ------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
British Virgin Islands
- ------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF -0-
SHARES -----------------------------------------------------------
8 SHARED VOTING POWER
BENEFICIALLY
3,888,888
OWNED BY
-----------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING -0-
PERSON -----------------------------------------------------------
10 SHARED DISPOSITIVE POWER
WITH
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
[_]
- ------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
2.1%
- ------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
CO
- ------------------------------------------------------------------------------
<PAGE>
SCHEDULE 13D
CUSIP NO. 928615103
-----------------
- ------------------------------------------------------------------------------
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) [X]
- ------------------------------------------------------------------------------
3 SEC USE ONLY
- ------------------------------------------------------------------------------
4 SOURCE OF FUNDS
AF
- ------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [_]
- ------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Hong Kong
- ------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF -0-
SHARES -----------------------------------------------------------
8 SHARED VOTING POWER
BENEFICIALLY
Disclaimed (See 11 below)
OWNED BY
-----------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING -0-
PERSON -----------------------------------------------------------
10 SHARED DISPOSITIVE POWER
WITH
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 Whampoa Limited, Hutchison
Telecommunications PCS (USA) Limited and Hutchison Telecommunication
Holdings (USA) Limited.
- ------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
[_]
- ------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
30.1%
- ------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
HC, CO
- ------------------------------------------------------------------------------
<PAGE>
Item 1. Security and Issuer.
-------------------
This statement on Schedule 13D relates to the Common Stock, par value
$0.001 per share (the "Common Stock"), of VoiceStream Wireless Corporation, a
Delaware corporation (the "Issuer"). The Issuer's principal executive office is
located at 3650 131st Avenue SE, Bellevue, Washington 98006, U.S.A.
Item 2. Identity and Background.
-----------------------
This Statement is 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 company ("PCS"),
an indirect wholly-owned subsidiary of HWL, Hutchison Telecommunications
Holdings (USA) Limited, a British Virgin Islands company ("HOLDINGS"), an
indirect wholly-owned subsidiary of HWL, and by Cheung Kong (Holdings) Limited,
a Hong Kong corporation ("Cheung Kong"), a 49.9% shareholder of HWL.
HWL
- ---
The principal business of HWL is that of investment holding with
diversified interests and activities in the following core businesses: ports and
related services, telecommunications, property holdings and development, retail,
manufacturing and other services, and energy, infrastructure, finance and other
investments. The principal business address of HWL is 22nd Floor, Hutchison
House, 10 Harcourt Road, Hong Kong.
HWL indirectly owns 100% of the issued shares of PCS and HOLDINGS.
The principal business of PCS and HOLDINGS is investment holding. HWL's
beneficial ownership reported herein is through its interest in PCS and
HOLDINGS.
The name, business address, citizenship and present principal
occupation or employment of each executive officer and director of HWL and the
name, principal business and address of any corporation or other organization in
which such employment is conducted are set forth on Schedule I hereto and are
incorporated herein by reference.
During the past five years, neither HWL nor, to the best knowledge of
HWL, any of its executive officers and directors has been convicted in a
criminal proceeding (excluding traffic violations or similar misdemeanors) or
has been a party to a civil proceeding of a judicial or administrative body of
competent jurisdiction and as a result of such proceeding was or is subject to a
judgement, 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.
PCS and HOLDINGS
- ----------------
HWL indirectly owns 100% of the issued shares of each of PCS and
HOLDINGS. The principal business of each of PCS and HOLDINGS is investment
<PAGE>
holding. The registered office address of each of PCS and HOLDINGS is P.O. Box
957, Offshore Incorporations Centre, Road Town, Tortola, British Virgin Islands.
The name, business address, citizenship and present principal
occupation or employment of each executive officer and director of each of PCS
and HOLDINGS and the name, principal business and address of any corporation or
other organization in which such employment is conducted are set forth on
Schedule II and Schedule III hereto, respectively, and are incorporated herein
by reference.
During the past five years, neither PCS and HOLDINGS nor, to the best
knowledge of PCS and HOLDINGS, any of their executive officers or directors have
been convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors) or has been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of such proceeding
was or is subject to a judgment, decree or final order enjoining future
violations of, or prohibiting or mandating activities subject to, federal or
state securities laws or finding any violation with respect to such laws.
Cheung Kong
- -----------
The principal business of Cheung Kong is investment holding and
project management, real estate property development and investment, real estate
agency and management and securities investment. The principal business address
of Cheung Kong is 7th Floor, Cheung Kong Center, 2 Queen's Road Central, Hong
Kong.
Cheung Kong owns 49.9% of the issued shares of HWL and may, pursuant
to Rule 13d-3 ("Rule 13d-3") under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), be deemed to control the voting and disposition of
the Shares by PCS and HOLDINGS. However, Cheung Kong disclaims beneficial
ownership of the Shares and the filing of this statement shall in no way be
construed as an admission that Cheung Kong is, for purposes of Section 13(d) or
13(g) of the Exchange Act, the beneficial owner of the Shares.
The name, business address, citizenship and present principal
occupation or employment of each executive officer and director of Cheung Kong
and the name, principal business and address of any corporation or other
organization in which such employment is conducted are set forth on Schedule IV
hereto and are incorporated herein by reference.
During the past five years, neither Cheung Kong nor, to the best
knowledge of Cheung Kong, any of its executive officers or directors has been
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors) or has been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of such proceeding
was or is subject to a judgment, decree or final order enjoining future
violations of, or prohibiting or mandating activities subject to, federal or
state securities laws or finding any violation with respect to such laws.
2
<PAGE>
Item 3. Source and Amount of Funds or Other Consideration.
-------------------------------------------------
On February 25, 2000, VoiceStream Wireless Corporation, a Washington
Corporation ("Old VoiceStream"), Omnipoint Corporation, a Delaware corporation
("Omnipoint") and the Issuer consummated the transactions contemplated by an
Agreement and Plan of Merger, dated June 23, 1999, among Old VoiceStream,
Omnipoint and the Issuer (the "Merger"), pursuant to which, among other things,
(i) each share of Old VoiceStream common stock was converted into one share of
Common Stock, and (ii) both Old VoiceStream and Omnipoint became wholly owned
subsidiaries of the Issuer. Consequently, each of the 3,888,888 and 19,010,364
shares of Old VoiceStream common stock held by HOLDINGS and PCS, respectively,
was converted into one share of Common Stock in the Merger.
In connection with the Merger, pursuant to a Securities Purchase
Agreement, dated June 23, 1999, among Old VoiceStream, PCS and Omnipoint, on
June 23, 1999 and October 1, 1999, PCS purchased an aggregate of 6,250 shares of
Series A Non-Voting Convertible Preferred Stock of Omnipoint ("Omnipoint
Convertible Preferred Stock") for an aggregate purchase price of $150,000,000.
Also in connection with the Merger, pursuant to a Stock Subscription
Agreement, dated June 23, 1999, between PCS and the Issuer, on February 25,
2000, PCS purchased an additional 6,772,414 shares of Common Stock for $29 per
share and 7,606 shares of the Issuer's 2.5% Junior Convertible Preferred Stock
("Preferred Stock") for $100,000 per share in exchange for the 6,250 shares of
Omnipoint Convertible Preferred Stock and $807,000,000 in cash. The 7,606
shares of Preferred Stock are convertible into 26,227,586 shares of Common
Stock, based on a conversion price of $29 per share of Common Stock.
The source of the funds used in this transaction was the working
capital of HWL.
Item 4. Purpose of Transaction.
----------------------
HWL, PCS and HOLDINGS currently own the shares of Common Stock and
Preferred Stock reported herein for investment purposes only. HWL intends to
review from time to time its ownership of such shares and may, depending upon
its evaluations of the business and prospects of the Issuer, or such other
considerations as it may consider relevant, determine to increase, decrease or
dispose of its holdings in the Common Stock and Preferred Stock.
Other than as discussed above, the persons filing this Schedule have
no plans or proposals that relate to or would result in the acquisition by any
person of additional securities of the Issuer, or the disposition of securities
of the Issuer; an extraordinary corporate transaction involving the Issuer or
any of its subsidiaries; a sale or transfer of a material amount of assets of
the Issuer or any of its subsidiaries; a change in the present Board of
Directors or management of the Issuer; a material change in the present
capitalization or dividend policy of the Issuer; any other material change in
the Issuer's business or corporate structure; changes in the Issuer's charter or
bylaws or other
3
<PAGE>
actions that might impede the acquisition of control of the Issuer by any other
person; causing securities of the Issuer to be delisted from a national
securities exchange or to cease to be authorized to be quoted in an interdealer
quotation system of a registered national securities association; causing
securities of the Issuer to be eligible for termination of registration pursuant
to Section 12(g)(4) of the Exchange Act, or any other similar action.
Item 5. Interest in Securities of the Issuer.
------------------------------------
(a)-(b) HWL, through its ownership of PCS and HOLDINGS, is deemed, for
purposes of Rule 13d-3 under the Exchange Act, to be the beneficial owner of
55,899,252 shares of the Common Stock, representing 30.1% of the Common Stock
outstanding, and to have shared power over the voting and disposition of such
shares.
PCS is the beneficial owner of 52,010,364 shares of Common Stock,
representing 28.0% of the outstanding Common Stock and has shared power over the
voting and disposition of such shares.
HOLDINGS is the beneficial owner of 3,888,888 shares of Common Stock,
representing 2.1% of the outstanding Common Stock and has shared power over the
voting and disposition of such shares.
Cheung Kong, through its ownership of 49.9% of the issued shares of
HWL, may be deemed to share voting and dispositive power over such shares
beneficially owned by HWL, PCS and HOLDINGS, however, pursuant to Rule 13d-4
under the Exchange Act, Cheung Kong expressly disclaims beneficial ownership of
such shares.
Except as described herein, none of HWL, PCS, HOLDINGS or Cheung Kong
nor, to the best knowledge of HWL, PCS, HOLDINGS and Cheung Kong, any executive
officer or director of HWL, PCS, HOLDINGS or Cheung Kong (i) beneficially owns
any securities of the Issuer as of the date hereof or (ii) has any right as of
the date hereof to acquire, directly or indirectly, any beneficial ownership of
other securities of the Issuer. Mr. Canning Fok, Group Managing Director of
HWL, and Mr. Hans Snook, two of the persons elected to the Issuer's board of
directors as nominees designated by PCS, each received on December 31, 1999,
options to purchase 939 shares of common stock of Old VoiceStream at an exercise
price of $11.32 per share, which become exercisable in four equal annual
installments beginning January 1, 2000. In the Merger, such options have been
converted into options to acquire the same number of shares of Common Stock on
the same terms and conditions. HWL, PCS, HOLDINGS and Cheung Kong expressly
disclaim beneficial ownership of any shares of Common Stock issuable on exercise
of such options.
(c) Except as set forth herein, none of HWL, PCS, HOLDINGS or Cheung Kong
nor, to the best knowledge of HWL, PCS, HOLDINGS and Cheung Kong, any executive
officer or director of HWL, PCS, HOLDINGS or Cheung Kong has effected any
transaction in shares of the Common Stock, or securities convertible into shares
of the Common Stock, during the past 60 days.
4
<PAGE>
(d) Not applicable.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships With Respect
---------------------------------------------------------------------
to Securities of the Issuer.
---------------------------
The Issuer and certain stockholders of the Issuer, including PCS and
HOLDINGS, entered into a voting agreement, dated as of February 25, 2000 (the
"Voting Agreement"). The stockholders party to the Voting Agreement have agreed
to vote their shares of Common Stock for the election of a board initially
consisting of 16 members, subject to adjustments, designated as follows: (i)
Mr. John Stanton, as long as he is the chief executive officer of the Issuer;
(ii) one member designated by Mr. Stanton, so long as he or entities affiliated
with him beneficially own at least 4,500,000 shares of Common Stock; (iii) four
members designated by PCS and its affiliated entities, which number of designees
shall be subject to increases or decreases depending upon increases or
reductions in PCS's percentage ownership of outstanding Common Stock, including
shares of Common Stock issuable to PCS upon conversion of the Issuer Preferred
Stock (the initial designees of PCS being Canning Fok, Susan Chow, Frank J. Sixt
and Hans Snook), provided that PCS will have the right to designate two
directors so long as PCS and its affiliated entities own at least 9,800,000
shares of Common Stock and one director so long as PCS and its affiliated
entities own at least 4,500,000 shares of Common Stock; (iv) one member
designated by The Goldman Sachs Group, Inc. and affiliated entities, so long as
the Goldman Sachs entities beneficially own at least 4,500,000 shares of Common
Stock; (v) four members who were on the Omnipoint board prior to the Merger and
who are selected by Omnipoint to serve during the period from the closing of the
Merger until and including the second annual meeting of stockholders of the
Issuer taking place after the closing of the Merger (the designees of Omnipoint
are initially Douglas G. Smith, Richard L. Fisher, James N. Perry, Jr., and
James J. Ross), (vi) one member designated by Sonera Corporation and its
affiliated entities, so long as the Sonera entities beneficially own at least
4,500,000 shares of Common Stock; and the remaining members of the board to be
selected by a majority of the persons selected as described above.
In addition, the Voting Agreement provides that in the event of the
consummation of the transactions described in that certain Agreement and Plan of
Reorganization, dated as of September 17, 1999 (as the same may be amended from
time to time, the "Aerial Reorganization Agreement"), by and among Old
VoiceStream, the Issuer, VoiceStream Subsidiary III Corporation, a Delaware
corporation ("Merger Sub"), Aerial Communications, Inc., a Delaware corporation
("Aerial"), and Telephone and Data Systems, Inc., a Delaware corporation
("TDS"), pursuant to which, among other things, Merger Sub is to be merged with
and into Aerial (such merger, together with the related transactions
contemplated by the Aerial Reorganization Agreement, being referred to herein as
the "Aerial Reorganization"), then the number of members of the board of
directors of the Issuer will be increased to 17, and TDS will be entitled to
designate a member so long as TDS owns at least 4,500,000 shares of Common
Stock. The Voting Agreement further provides that if TDS owns more than
9,800,000 shares of Common Stock and Sonera owns less than 4,500,000 shares of
Common Stock, TDS will
5
<PAGE>
be entitled to designate two members to the board of the Issuer, and if Sonera
owns more than 9,800,000 shares of Common Stock and TDS owns less than 4,500,000
shares of Common Stock, Sonera will be entitled to designate two members to the
board of the Issuer.
In addition, on June 23, 1999, PCS, Hutchison Telecommunications
Limited, a Hong Kong company, and the Issuer entered into an Investor Agreement
whereby, among other things, for a period of five years after the completion of
the Merger, beneficial ownership of Common Stock by PCS and its affiliates would
not exceed, on a diluted basis, (i) 35% during the first two years after the
Merger, or 33% if the aggregate number of outstanding shares of Common Stock
exceeds 200,000,000; (ii) 36% during the third year after the Merger; and (iii)
40% during the fourth and fifth years after the Merger. Among other things,
this agreement also prohibits PCS and certain of its affiliates from, in certain
circumstances, participating in proxy contests, tender offers, exchange offers
or other transactions relating to a change of control of the Issuer.
Additionally, PCS was granted certain registration rights by the Issuer.
The foregoing descriptions of the Voting Agreement and the Investor
Agreement, are subject to, and qualified in their entirety by reference to, the
Voting Agreement and the Investor Agreement, which are filed as Exhibits 5 and 6
hereto, respectively, and incorporated by reference into this Item 6.
Item 7. Material to be Filed as Exhibits.
--------------------------------
The documents which have been filed as Exhibits are listed in the
Exhibit Index herein.
6
<PAGE>
Signature
- ---------
After reasonable inquiry and to the best of its knowledge and belief,
HWL certifies that the information set forth in this Statement with respect to
it is true, complete and correct.
Date: March 3, 2000
FOR AND ON BEHALF OF
HUTCHISON WHAMPOA LIMITED
By: /s/ Frank J. Sixt
--------------------------------
Name: Frank J. Sixt
Title: Director
After reasonable inquiry and to the best of its knowledge and belief,
PCS certifies that the information set forth in this Statement with respect to
it is true, complete and correct.
Date: March 3, 2000
FOR AND ON BEHALF OF
HUTCHISON TELECOMMUNICATIONS
PCS (USA) LIMITED
By: /s/ Frank J. Sixt
--------------------------------
Name: Frank J. Sixt
Title: Director
7
<PAGE>
After reasonable inquiry and to the best of its knowledge and belief,
HOLDINGS certifies that the information set forth in this Statement with respect
to it is true, complete and correct.
Date: March 3, 2000
FOR AND ON BEHALF OF
HUTCHISON TELECOMMUNICATIONS
HOLDINGS (USA) LIMITED
By: /s/ Frank J. Sixt
--------------------------------
Name: Frank J. Sixt
Title: Director
After reasonable inquiry and to the best of its knowledge and belief,
Cheung Kong certifies that the information set forth in this Statement with
respect to it is true, complete and correct.
Date: March 3, 2000
FOR AND ON BEHALF OF
CHEUNG KONG (HOLDINGS) LIMITED
By: /s/ Frank J. Sixt
--------------------------------
Name: Frank J. Sixt
Title: Director
8
<PAGE>
SCHEDULE I
----------
Executive Officers and Directors of
-----------------------------------
Hutchison Whampoa Limited
-------------------------
As of March 3, 2000
-------------------
<TABLE>
<CAPTION>
Present Principal Occupation or
Employment, Including Name,
Name and Principal Business and Address of
Business Address /1a/ Citizenship Each Corporation or Organization
- ---------------- ----------- --------------------------------
<S> <C> <C>
LI Ka-shing Hong Kong Chairman, Hutchison Whampoa Limited
7th Floor, Cheung Kong Center Chairman, Cheung Kong (Holdings)
2 Queen's Road Central Limited
Hong Kong
LI Tzar Kuoi, Victor Hong Kong Deputy Chairman and Executive Director,
7th Floor, Cheung Kong Center Hutchison Whampoa Limited
2 Queen's Road Central Chairman, Cheung Kong Infrastructure
Hong Kong Holdings Limited/2/
Managing Director and Deputy Chairman,
Cheung Kong (Holdings) Limited
Executive Director, Hongkong Electric
Holdings Limited/3/
Director, The Hongkong and Shanghai
Banking Corporation Limited (banking),
No. 1 Queen's Road Central, Hong Kong
LI Tzar Kai, Richard Canadian Deputy Chairman and Executive Director,
38th Floor, Citibank Tower Hutchison Whampoa Limited
Citibank Plaza Chairman and Chief Executive, Pacific
3 Garden Road Century Group (investment holding),
Central, Hong Kong Chairman, Pacific Century Regional
Developments Limited (investment
holding), 38th Floor, Citibank Tower,
Citibank Plaza, 3 Garden Road, Central,
Hong Kong
Executive Director, Hongkong Electric
Holdings Limited/3/
</TABLE>
<PAGE>
SCHEDULE I (continued)
----------
Executive Officers and Directors of
-----------------------------------
Hutchison Whampoa Limited
-------------------------
As of March 3, 2000
-------------------
<TABLE>
<CAPTION>
Present Principal Occupation or
Employment, Including Name,
Name and Principal Business and Address of
Business Address /1a/ Citizenship Each Corporation or Organization
- ---------------- ----------- --------------------------------
<S> <C> <C>
FOK Kin-ning, Canning British Group Managing Director and Executive
Director, Hutchison Whampoa Limited
Chairman, Hutchison Telecommunications
(Australia) Limited/4/
Chairman, Partner Communications
Company Ltd./5/
Deputy Chairman, Cheung Kong
Infrastructure Holdings Limited/2/
Deputy Chairman, Hongkong Electric
Holdings Limited/3/
Non-executive Director, Cheung Kong
(Holdings) Limited
Director, VoiceStream Wireless
Corporation/6/
Director, Global Crossing Ltd./7/
Member of the Supervisory Board,
Mannesmann AG/8/
Director, Hutchison Telecommunications
Holdings (USA) Limited
Director, Hutchison Telecommunications
PCS (USA) Limited
CHOW WOO Mo Fong, Susan Hong Kong Deputy Group Managing Director and
Executive Director, Hutchison Whampoa
Limited
Executive Director, Cheung Kong
Infrastructure Holdings Limited/2/
Director, Hongkong Electric Holdings
Limited/3/
Director, Partner Communications
Company Ltd./5/
Director, VoiceStream Wireless
Corporation/6/
Director, Hutchison Telecommunications
Holdings (USA) Limited
Director, Hutchison Telecommunications
PCS (USA) Limited
</TABLE>
2
<PAGE>
SCHEDULE I (continued)
----------
Executive Officers and Directors of
-----------------------------------
Hutchison Whampoa Limited
-------------------------
As of March 3, 2000
-------------------
<TABLE>
<CAPTION>
Present Principal Occupation or
Employment, Including Name,
Name and Principal Business and Address of
Business Address/1a/ Citizenship Each Corporation or Organization
- ---------------- ----------- --------------------------------
<S> <C> <C>
Frank John SIXT Canadian Group Finance Director and Executive
Director, Hutchison Whampoa Limited
Executive Director, Cheung Kong
Infrastructure Holdings Limited/2/
Executive Director, Hongkong Electric
Holdings Limited/3/
Director, Hutchison Telecommunications
(Australia) Limited/4/
Director, Partner Communications
Company Ltd./5/
Director, VoiceStream Wireless
Corporation/6/
Non-executive Director, Cheung Kong
(Holdings) Limited
Director, Hutchison Telecommunications
Holdings (USA) Limited
Director, Hutchison Telecommunications
PCS (USA) Limited
LAI Kai Ming, Dominic Canadian Executive Director, Hutchison Whampoa
Limited
George Colin MAGNUS British Executive Director, Hutchison Whampoa
7th Floor, Cheung Kong Center Limited
2 Queen's Road Central Chairman, Hongkong Electric Holdings
Hong Kong Limited/3/
Deputy Chairman, Cheung Kong
(Holdings) Limited
Deputy Chairman, Cheung Kong
Infrastructure Holdings Limited/2/
</TABLE>
3
<PAGE>
SCHEDULE I (continued)
----------
Executive Officers and Directors of
-----------------------------------
Hutchison Whampoa Limited
-------------------------
As of March 3, 2000
-------------------
<TABLE>
<CAPTION>
Present Principal Occupation or
Employment, Including Name,
Name and Principal Business and Address of
Business Address/1a/ Citizenship Each Corporation or Organization
- ---------------- ----------- --------------------------------
<S> <C> <C>
KAM Hing Lam Hong Kong Executive Director, Hutchison Whampoa
7th Floor, Cheung Kong Center Limited
2 Queen's Road Central Group Managing Director, Cheung
Hong Kong Kong Infrastructure Holdings Limited/2/
Deputy Managing Director, Cheung
Kong (Holdings) Limited
Executive Director, Hongkong Electric
Holdings Limited/3/
Michael David KADOORIE British Non-Executive Director, Hutchison
24th Floor, St. George's Whampoa Limited
Building, 2 Ice House Street Chairman, CLP Holdings Limited
Central, Hong Kong (investment holding), 147 Argyle Street,
Kowloon, Hong Kong
Chairman, The Hongkong and Shanghai
Hotels Limited (hotel catering and real
estate), 8th Floor, St. George's Building, 2
Ice House Street, Central, Hong Kong
Chairman, Heliservices (Hong Kong)
Limited (provision of helicopter services),
2107 St. George's Building, 2 Ice House
Street, Central, Hong Kong
LI Fook-wo British Non-Executive Director, Hutchison
1416 Prince's Building Whampoa Limited
10 Chater Road Director, The Bank of East Asia,
Hong Kong Limited (banking), No. 10 Des Voeux
Road Central, Hong Kong
Director, Johnson Electric Holdings
Limited (micromotors), Cedar House,
41 Cedar Avenue, Hamilton HM 12,
Bermuda
</TABLE>
4
<PAGE>
SCHEDULE I (continued)
----------
Executive Officers and Directors of
-----------------------------------
Hutchison Whampoa Limited
-------------------------
As of March 3, 2000
-------------------
<TABLE>
<CAPTION>
Present Principal Occupation or
Employment, Including Name,
Name and Principal Business and Address of
Business Address/1a/ Citizenship Each Corporation or Organization
- ---------------- ----------- --------------------------------
<S> <C> <C>
Simon MURRAY British Non-Executive Director, Hutchison
Room 2108 Gloucester Tower Whampoa Limited
The Landmark Chairman, General Enterprise Management
15 Queen's Road Central Services Limited (investment fund),
Hong Kong Room 2108 Gloucester Tower, The
Landmark, 15 Queen's Road Central,
Hong Kong
Independent Non-executive Director,
Cheung Kong (Holdings) Limited
Director, Orient Overseas (International)
Limited (shipping), 33rd Floor, Harbour
Centre, 25 Harbour Road, Hong Kong
OR Ching Fai, Raymond British Non-Executive Director, Hutchison
1 Queen's Road Central Whampoa Limited
Hong Kong General Manager, The Hongkong and
Shanghai Banking Corporation Limited
(banking), 1 Queen's Road Central, Hong
Kong
Chairman, HSBC Insurance (Asia Pacific)
Holdings Limited (Insurance), 40th Floor,
Sun Hung Kai Centre, Wanchai, Hong
Kong
Director, HSBC Investment Bank Asia
Limited (investment banking), 1 Queen's
Road Central, Hong Kong
William SHURNIAK Canadian Non-Executive Director, Hutchison
Whampoa Limited
Deputy Chairman and Director, Husky Oil
Ltd./9/
</TABLE>
5
<PAGE>
SCHEDULE I (continued)
Executive Officers and Directors of
-----------------------------------
Hutchinson Whampoa Limited
--------------------------
As of March 3, 2000
-------------------
<TABLE>
<CAPTION>
Present Principal Occupation or Employment,
Including Name,
Name and Principal Business and Address of
Business Address/1a/ Citizenship Each Corporation or Organization
- -------------------- ----------- --------------------------------
<S> <C> <C>
Peter Alan Lee VINE British Non-Executive Director, Hutchison
Suite 1005 World Wide House Whampoa Limited
19 Des Voeux Road Central Director, The Cross Harbour Tunnel
Hong Kong Company Limited (tunnel operation),
16th Floor, Ocean Centre, Harbour City,
Kowloon, Hong Kong
Director, International Maritime Carriers
(Holdings) Limited (shipping), 17th
Floor, St. George's Building, 2 Ice House
Street, Central, Hong Kong
Director, Liu Chong Hing Investments
Limited (investments), 24 Des Voeux
Road Central, Hong Kong
Director, Liu Chong Hing Bank Limited
(banking), 24 Des Voeux Road Central,
Hong Kong
WONG Chung Hin British Non-Executive Director, Hutchison
1225 Prince's Building Whampoa Limited
10 Chater Road Director, The Bank of East Asia, Limited
Hong Kong (banking), No. 10 Des Voeux Road
Central, Hong Kong
Director, Hongkong Electric Holdings
Limited/3/
</TABLE>
6
<PAGE>
SCHEDULE II
-----------
Executive Officers and Directors of
-----------------------------------
Hutchison Telecommunications PCS (USA) Limited
----------------------------------------------
As of March 3, 2000
-------------------
<TABLE>
<CAPTION>
Present Principal Occupation or
Employment, Including Name,
Name and Principal Business and Address of
Business Address/1a/ Citizenship Each Corporation or Organization
- -------------------- ----------- --------------------------------
<S> <C> <C>
FOK Kin-ning, Canning British Director, Hutchison Telecommunications
PCS (USA) Limited
Group Managing Director and Executive
Director, Hutchison Whampoa Limited
Chairman, Hutchison Telecommunications
(Australia) Limited/4/
Chairman, Partner Communications
Company Ltd./5/
Deputy Chairman, Cheung Kong
Infrastructure Holdings Limited/2/
Deputy Chairman, Hongkong Electric
Holdings Limited/3/
Non-executive Director, Cheung Kong
(Holdings) Limited
Director, VoiceStream Wireless
Corporation/6/
Director, Global Crossing Ltd./7/
Member of the Supervisory Board,
Mannesmann AG/8/
Director, Hutchison Telecommunications
Holdings (USA) Limited
CHOW WOO Mo Fong, Susan Hong Kong Director, Hutchison Telecommunications
PCS (USA) Limited
Deputy Group Managing Director and
Executive Director, Hutchison Whampoa
Limited
Executive Director, Cheung Kong
Infrastructure Holdings Limited/2/
Director, Hongkong Electric Holdings
Limited/3/
Director, Partner Communications
Company Ltd./5/
Director, VoiceStream Wireless
Corporation/6/
Director, Hutchison Telecommunications
Holdings (USA) Limited
</TABLE>
<PAGE>
SCHEDULE II (continued)
Executive Officers and Directors of
-----------------------------------
Hutchison Telecommunications PCS (USA) Limited
----------------------------------------------
As of March 3, 2000
-------------------
<TABLE>
<CAPTION>
Present Principal Occupation or Employment,
Including Name,
Name and Principal Business and Address of
Business Address/1a/ Citizenship Each Corporation or Organization
- -------------------- ----------- --------------------------------
<S> <C> <C>
Frank John SIXT Canadian Director, Hutchison Telecommunications
PCS (USA) Limited
Group Finance Director and Executive
Director, Hutchison Whampoa Limited
Executive Director, Cheung Kong
Infrastructure Holdings Limited/2/
Executive Director, Hongkong Electric
Holdings Limited/3/
Director, Hutchison Telecommunications
(Australia) Limited/4/
Director, Partner Communications
Company Ltd./5/
Director, VoiceStream Wireless
Corporation/6/
Non-executive Director, Cheung Kong
(Holdings) Limited
Director, Hutchison Telecommunications
Holdings (USA) Limited
KHOO Chek Ngee Singaporean Director, Hutchison Telecommunications
18th Floor, Two Harbourfront, PCS (USA) Limited
22 Tak Fung Street Group Managing Director, Hutchison
Hunghom, Kowloon Telecommunications Limited/10/
Hong Kong Director, Hutchison Telecommunications
(Australia) Limited/4/
Director, Partner Communications
Company Ltd./5/
Director, Hutchison Telecommunications
Holdings (USA) Limited
Hans Roger SNOOK Canadian Director, Hutchison Telecommunications
50 George Street PCS (USA) Limited
London W1H 5RF Group Managing Director, Orange plc/11/
United Kingdom Director, Hutchison Telecommunications
Holdings (USA) Limited
Director, Partner Communications
Company Ltd./5/
Director, VoiceStream Wireless
Corporation/6/
</TABLE>
2
<PAGE>
SCHEDULE II (continued)
-----------
Executive Officers and Directors of
-----------------------------------
Hutchison Telecommunications PCS (USA) Limited
----------------------------------------------
As of March 3, 2000
-------------------
<TABLE>
<CAPTION>
Present Principal Occupation or
Employment, Including Name,
Name and Principal Business and Address of
Business Address/1a/ Citizenship Each Corporation or Organization
- -------------------- ----------- ---------------------------------
<S> <C> <C>
CHAN Ting Yu New Zealand Director, Hutchison Telecommunications
18th Floor, Two Harbourfront, PCS (USA) Limited
22 Tak Fung Street Deputy Group Managing Director,
Hunghom, Kowloon Hutchison Telecommunications
Limited/10/
Director, Hutchison Telecommunications
(Australia) Limited/4/
Director, Partner Communications
Company Ltd./5/
Director, Hutchison Hong Kong Telecommunications
Holdings (USA) Limited
Kevin RUSSELL British Director, Hutchison Telecommunications
8 Amal Street PCS (USA) Limited
Afeq Industrial Park Chief Financial Officer, Partner
Rosh Ha'ayin 48103 Communications Company Ltd./5/
Israel Director, Hutchison Telecommunications
Holdings (USA) Limited
</TABLE>
3
<PAGE>
SCHEDULE III
------------
Executive Officers and Directors of
-----------------------------------
Hutchinson Telecommunications Holdings (USA) Limited
----------------------------------------------------
As of March 3, 2000
-------------------
<TABLE>
<CAPTION>
Present Principal Occupation or
Employment, Including Name,
Name and Principal Business and Address of
Business Address/1a/ Citizenship Each Corporation or Organization
- -------------------- ----------- ---------------------------------
<S> <C> <C>
FOK Kin-ning, Canning British Director, Hutchison Telecommunications
Holdings (USA) Limited
Group Managing Director and Executive
Director, Hutchison Whampoa Limited
Chairman, Hutchison Telecommunications
(Australia) Limited/4/
Chairman, Partner Communications
Company Ltd./5/
Deputy Chairman, Cheung Kong
Infrastructure Holdings Limited/2/
Deputy Chairman, Hongkong Electric
Holdings Limited/3/
Non-executive Director, Cheung Kong
(Holdings) Limited
Director, VoiceStream Wireless
Corporation/6/
Director, Global Crossing Ltd./7/
Member of the Supervisory Board,
Mannesmann AG/8/
Director, Hutchison Telecommunications
PCS (USA) Limited
CHOW WOO Mo Fong, Susan Hong Kong Director, Hutchison Telecommunications
Holdings (USA) Limited
Deputy Group Managing Director and
Executive Director, Hutchison Whampoa
Limited
Executive Director, Cheung Kong
Infrastructure Holdings Limited/2/
Director, Hongkong Electric Holdings
Limited/3/
Director, Partner Communications
Company Ltd./5/
Director, VoiceStream Wireless
Corporation/6/
Director, Hutchison Telecommunications
PCS (USA) Limited
</TABLE>
<PAGE>
SCHEDULE III (continued)
------------------------
Executive Officers and Directors of
-----------------------------------
Hutchison Telecommunications Holdings (USA) Limited
---------------------------------------------------
As of March 3, 2000
-------------------
<TABLE>
<CAPTION>
Present Principal Occupation or
Employment, Including Name,
Name and Principal Business and Address of
Business Address/1a/ Citizenship Each Corporation or Organization
- -------------------- ----------- ---------------------------------
<S> <C> <C>
Frank John SIXT Canadian Director, Hutchison Telecommunications
Holdings (USA) Limited
Group Finance Director and Executive
Director, Hutchison Whampoa Limited
Executive Director, Cheung Kong
Infrastructure Holdings Limited/2/
Executive Director, Hongkong Electric
Holdings Limited/3/
Director, Hutchison Telecommunications
(Australia) Limited/4/
Director, Partner Communications
Company Ltd./5/
Director, VoiceStream Wireless
Corporation/6/
Non-executive Director, Cheung Kong
(Holdings) Limited
Director, Hutchison Telecommunications
PCS (USA) Limited
KHOO Chek Ngee Singaporean Director, Hutchison Telecommunications
18th Floor, Two Harbourfront, Holdings (USA) Limited
22 Tak Fung Street Group Managing Director, Hutchison
Hunghom, Kowloon Telecommunications Limited/10/
Hong Kong Director, Hutchison Telecommunications
(Australia) Limited/4/
Director, Partner Communications
Company Ltd./5/
Director, Hutchison Telecommunications
PCS (USA) Limited
Hans Roger SNOOK Canadian Director, Hutchison Telecommunications
50 George Street Holdings (USA) Limited
London W1H 5RF Group Managing Director, Orange plc/11/
United Kingdom Director, Hutchison Telecommunications
PCS (USA) Limited
Director, Partner Communications
Company Ltd./5/
Director, VoiceStream Wireless
Corporation/6/
</TABLE>
2
<PAGE>
SCHEDULE 13D
CUSIP NO. 928615103
-----------------
- ------------------------------------------------------------------------------
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) [X]
- ------------------------------------------------------------------------------
3 SEC USE ONLY
- ------------------------------------------------------------------------------
4 SOURCE OF FUNDS
AF
- ------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [_]
- ------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Hong Kong
- ------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF -0-
SHARES -----------------------------------------------------------
8 SHARED VOTING POWER
BENEFICIALLY
Disclaimed (See 11 below.)
OWNED BY
-----------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING -0-
PERSON -----------------------------------------------------------
10 SHARED DISPOSITIVE POWER
WITH
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 Whampoa Limited, Hutchison
Telecommunications PCS (USA) Limited and Hutchison Telecommunication
Holdings (USA) Limited.
- ------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
[_]
- ------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
30.1%
- ------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
HC, CO
- ------------------------------------------------------------------------------
<PAGE>
SCHEDULE III (continued)
------------
Executive Officers and Directors of
-----------------------------------
Hutchinson Telecommunications Holdings (USA) Limited
----------------------------------------------------
As of March 3, 2000
-------------------
<TABLE>
<CAPTION>
Present Principal Occupation or
Employment, Including Name,
Name and Principal Business and Address of
Business Address /1a/ Citizenship Each Corporation or Organization
- ---------------- ----------- --------------------------------
<S> <C> <C>
CHAN Ting Yu New Zealand Director, Hutchison Telecommunications
18th Floor, Two Harbourfront, Holdings (USA) Limited
22 Tak Fung Street Deputy Group Managing Director,
Hunghom, Kowloon Hutchison Telecommunications
Hong Kong Limited/10/
Director, Hutchison Telecommunications
(Australia) Limited/4/
Director, Partner Communications
Company Ltd./5/
Director, Hutchison Telecommunications
PCS (USA) Limited
Kevin RUSSELL British Director, Hutchison Telecommunications
8 Amal Street Holdings (USA) Limited
Afeq Industrial Park Chief Financial Officer, Partner
Rosh Ha'ayin 48103 Communications Company Ltd./5/
Israel Director, Hutchison Telecommunications
PCS (USA) Limited
</TABLE>
3
<PAGE>
SCHEDULE IV
-----------
Executive Officers and Directors of
-----------------------------------
Cheung Kong (Holdings) Limited
------------------------------
As of March 3, 2000
-------------------
<TABLE>
<CAPTION>
Present Principal Occupation or
Employment, Including Name,
Name and Principal Business and Address of
Business Address /1b/ Citizenship Each Corporation or Organization
- ---------------- ----------- --------------------------------
<S> <C> <C>
LI Ka-shing Hong Kong Chairman, Cheung Kong (Holdings)
Limited
Chairman, Hutchison Whampoa
Limited
LI Tzar Kuoi, Victor Hong Kong Managing Director and Deputy Chairman,
Cheung Kong (Holdings) Limited
Chairman, Cheung Kong Infrastructure
Holdings Limited/2/
Deputy Chairman and Executive Director,
Hutchison Whampoa Limited
Executive Director, Hongkong Electric
Holdings Limited/3/
Director, The Hongkong and Shanghai
Banking Corporation Limited (banking),
No. 1 Queen's Road Central, Hong Kong
George Colin MAGNUS British Deputy Chairman, Cheung Kong
(Holdings) Limited
Chairman, Hongkong Electric Holdings
Limited/3/
Deputy Chairman, Cheung Kong
Infrastructure Holdings Limited/2/
Executive Director, Hutchison Whampoa
Limited
KAM Hing Lam Hong Kong Deputy Managing Director, Cheung
Kong (Holdings) Limited
Group Managing Director, Cheung
Kong Infrastructure Holdings Limited/2/
Executive Director, Hutchison
Whampoa Limited
Executive Director, Hongkong Electric
Holdings Limited/3/
</TABLE>
<PAGE>
SCHEDULE IV (continued)
-----------
Executive Officers and Directors of
-----------------------------------
Cheung Kong (Holdings) Limited
------------------------------
As of March 3, 2000
-------------------
<TABLE>
<CAPTION>
Present Principal Occupation or
Employment, Including Name,
Name and Principal Business and Address of
Business Address /1b/ Citizenship Each Corporation or Organization
- ---------------- ----------- --------------------------------
<S> <C> <C>
HUNG Siu-lin, Katherine Hong Kong Executive Director, Cheung Kong
(Holdings) Limited
CHUNG Sun Keung, Davy Hong Kong Executive Director, Cheung Kong
(Holdings) Limited
IP Tak Chuen, Edmond Hong Kong Executive Director, Cheung Kong
(Holdings) Limited
Executive Director, Cheung Kong
Infrastructure Holdings Limited/2/
PAU Yee Wan, Ezra Hong Kong Executive Director, Cheung Kong
(Holdings) Limited
WOO Chia Ching, Grace U.S.A. Executive Director, Cheung Kong
(Holdings) Limited
LEUNG Siu Hon Hong Kong Independent Non-executive Director,
502 China Building Cheung Kong (Holdings) Limited
29 Queen's Road Central Solicitor, Messrs. S.H. Leung & Co.
Hong Kong (solicitors' firm), 502 China Building, 29
Queen's Road Central, Hong Kong
</TABLE>
2
<PAGE>
SCHEDULE IV (continued)
-----------
Executive Officers and Directors of
-----------------------------------
Cheung Kong (Holdings) Limited
------------------------------
As of March 3, 2000
-------------------
<TABLE>
<CAPTION>
Present Principal Occupation or
Employment, Including Name,
Name and Principal Business and Address of
Business Address /1b/ Citizenship Each Corporation or Organization
- ---------------- ----------- --------------------------------
<S> <C> <C>
FOK Kin-ning, Canning British Non-executive Director, Cheung Kong
22nd Floor, Hutchison House (Holdings) Limited
10 Harcourt Road Chairman, Hutchison Telecommunications
Hong Kong (Australia) Limited/4/
Chairman, Partner Communications
Company Ltd./5/
Deputy Chairman, Cheung Kong
Infrastructure Holdings Limited/2/
Deputy Chairman, Hongkong Electric
Holdings Limited/3/
Group Managing Director and Executive
Director, Hutchison Whampoa Limited
Director, VoiceStream Wireless
Corporation/6/
Director, Global Crossing Ltd./7/
Member of the Supervisory Board,
Mannesmann AG/8/
Director, Hutchison Telecommunications
Holdings (USA) Limited
Director, Hutchison Telecommunications
PCS (USA) Limited
</TABLE>
3
<PAGE>
SCHEDULE IV (continued)
-----------
Executive Officers and Directors of
-----------------------------------
Cheung Kong (Holdings) Limited
------------------------------
As of March 3, 2000
-------------------
<TABLE>
<CAPTION>
Present Principal Occupation or
Employment, Including Name,
Name and Principal Business and Address of
Business Address /1b/ Citizenship Each Corporation or Organization
- ---------------- ----------- --------------------------------
<S> <C> <C>
Frank John SIXT Canadian Non-executive Director, Cheung Kong
22nd Floor, Hutchison House (Holdings) Limited
10 Harcourt Road Group Finance Director and Executive
Hong Kong Director, Hutchison Whampoa Limited
Executive Director, Cheung Kong
Infrastructure Holdings Limited/2/
Executive Director, Hongkong Electric
Holdings Limited/3/
Director, Hutchison Telecommunications
(Australia) Limited/4/
Director, Partner Communications
Company Ltd./5/
Director, VoiceStream Wireless
Corporation/6/
Director, Hutchison Telecommunications
Holdings (USA) Limited
Director, Hutchison Telecommunications
PCS (USA) Limited
CHOW Nin Mow, Albert Hong Kong Non-executive Director, Cheung Kong
27th Floor, Henley Building (Holdings) Limited
5 Queen's Road Central Executive Director, Hing Kong
Hong Kong Holdings Limited (investment
holdings), 27th Floor, Henley Building, 5
Queen's Road Central, Hong Kong
YEH Yuan Chang, Anthony Hong Kong Independent Non-executive Director,
26th Floor, Tower A Cheung Kong (Holdings) Limited
Regent Centre Honorary Life President, Tai Ping
63 Wo Yi Hop Road Carpets International Ltd. (carpet
Kwai Chung manufacturing), 26th Floor, Tower A,
Hong Kong Regent Centre, 63 Wo Yi Hop Road,
Kwai Chung, Hong Kong
</TABLE>
4
<PAGE>
SCHEDULE IV (continued)
-----------
Executive Officers and Directors of
-----------------------------------
Cheung Kong (Holdings) Limited
------------------------------
As of March 3, 2000
-------------------
<TABLE>
<CAPTION>
Present Principal Occupation or
Employment, Including Name,
Name and Principal Business and Address of
Business Address /1b/ Citizenship Each Corporation or Organization
- ---------------- ----------- --------------------------------
<S> <C> <C>
CHOW Kun Chee, Roland British Independent Non-executive Director,
12th Floor, Prince's Building Cheung Kong (Holdings) Limited
Chater Road Solicitor, P.C. Woo & Co. (law firm),
Hong Kong 12th Floor, Prince's Building, Chater
Road, Hong Kong
Simon MURRAY British Independent Non-executive Director,
Room 2108 Gloucester Tower Cheung Kong (Holdings) Limited
The Landmark Chairman, General Enterprise Management
15 Queen's Road Central Services Limited (investment fund),
Hong Kong Room 2108 Gloucester Tower, The
Landmark, 15 Queen's Road Central,
Hong Kong
Non-Executive Director, Hutchison
Whampoa Limited
Director, Orient Overseas (International)
Limited (shipping), 33rd Floor, Harbour
Centre, 25 Harbour Road, Hong Kong
KWOK Tun-li, Stanley Canadian Independent Non-executive Director,
Ste 408-355 Burrard Street Cheung Kong (Holdings) Limited
Vancouver, British Columbia Director, Amara International Investment
V6C 2G8, Canada Corporation (investment holdings),
Ste 408-355 Burrard Street, Vancouver,
British Columbia, V6C 2G8, Canada
</TABLE>
5
<PAGE>
Notes:-
1a. Unless otherwise indicated, the business address of each of the named
persons is 22nd Floor, Hutchison House, 10 Harcourt Road, Hong Kong.
1b. Unless otherwise indicated, the business address of each of the named
persons is 7th Floor, Cheung Kong Center, 2 Queen's Road Central, Hong
Kong.
2. The principal business address of Cheung Kong Infrastructure Holdings
Limited is 12th Floor, Cheung Kong Center, 2 Queen's Road Central, Hong
Kong. The principal business of Cheung Kong Infrastructure Holdings Limited
is the development, investment and operation of infrastructure businesses
in Hong Kong, the PRC and the Asia-Pacific Region.
3. The principal business address of Hongkong Electric Holdings Limited is
Electric Centre, 28 City Garden Road, North Point, Hong Kong. The principal
business of Hongkong Electric Holdings Limited is generation and supply of
electricity.
4. The principal business address of Hutchison Telecommunications (Australia)
Limited is Level 2, 60 Pacific Highway, St. Leonards NSW 2065, Australia.
The principal business of Hutchison Telecommunications (Australia) Limited
is telecommunications.
5. The principal business address of Partner Communications Company Ltd. is 8
Amal Street, Afeq Industrial Park, Rosh Ha'ayin 48103, Israel. The
principal business of Partner Communications Company Ltd. is cellular
mobile telephone services.
6. The principal business address of VoiceStream Wireless Corporation is 3650
131st Avenue SE, Bellevue, Washington 98006, United States of America. The
principal business of VoiceStream Wireless Corporation is wireless
communications systems.
7. The principal business address of Global Crossing Ltd. is 360 N. Crescent
Drive, Beverly Hills, CA 90210, United States of America. The principal
business of Global Crossing Ltd. is the provision of fiber optic capacity.
8. The principal business address of Mannesmann AG is Mannesmannufer 2, 40213
Dusseldorf, Germany. The principal business of Mannesmann AG is
telecommunications, engineering and automative.
9. The principal business address of Husky Oil Ltd. is 707 8th Avenue S.W.,
Box 6526, Station D, Calgary, Alberta, Canada, T2P 3G7. The principal
business of Husky Oil Ltd. is investment in oil and gas.
<PAGE>
10. The principal business address of Hutchison Telecommunications Limited is
18th Floor, Two Harbourfront, 22 Tak Fung Street, Hunghom, Kowloon, Hong
Kong. The correspondence address of Hutchison Telecommunications Limited is
22nd Floor, Hutchison House, 10 Harcourt Road, Hong Kong. The principal
business of Hutchison Telecommunications Limited is telecommunications.
11. The principal business address of Orange plc is St. James Court, Great Peak
Road, Almondsbury Park, Bradley Stoke, Bristol BS1 24QJ, England. The
principal business of Orange plc is telecommunications.
2
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
- ----------- -----------
1. Agreement with respect to filing of Schedule 13D.
2. Agreement and Plan of Plan of Merger, dated as of June 23, 1999,
by and among Old VoiceStream, Omnipoint and the Issuer
(Incorporated by reference to Exhibit 2.1 to the Old
VoiceStream's Current Report on Form 8-K filed with the
Securities and Exchange Commission on July 7, 1999).
3. Securities Purchase Agreement, dated as of June 23, 1999, by and
among Old VoiceStream, PCS and Omnipoint (Incorporated by
reference to Exhibit 10.1 to the Old VoiceStream's Current Report
on Form 8-K filed with the Securities and Exchange Commission on
July 7, 1999).
4. Stock Subscription Agreement, dated as of June 23, 1999, by and
among PCS and the Issuer (Incorporated by reference to Exhibit
4.1 to the Old VoiceStream's Current Report on Form 8-K filed
with the Securities and Exchange Commission on July 7, 1999).
5. Voting Agreement, dated as of February 25, 2000, by and among the
Issuer, PCS, HOLDINGS and certain other stockholders of the
Issuer signatories thereto (Incorporated by reference to Exhibit
10.98 to the Schedule 13D filed with the Securities and Exchange
Commission by John W. Stanton and Theresa E. Gillespie on
March 3, 2000 with respect to the Issuer).
6. Investor Agreement, dated as of June 23, 1999, by and among the
Issuer, PCS and Hutchison Telecommunications Limited, a Hong Kong
company.
<PAGE>
EXHIBIT 1
AGREEMENT
In accordance with Reg. S. 13d-1(f)(1), each of the undersigned hereby
agrees that Hutchison Whampoa Limited shall file on behalf of each of them this
Schedule 13D relating to the Common Stock, $0.001 par value, in VoiceStream
Wireless Corporation, to which this Agreement is an Exhibit and such statements
and amendments thereto as may be required to be filed with the United States
Securities and Exchange Commission.
Dated: March 3, 2000
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
By: /s/ Frank J. Sixt
-----------------------------
Name: Frank J. Sixt
Title: Director
FOR AND ON BEHALF OF
HUTCHISON TELECOMMUNICATIONS
HOLDINGS (USA) LIMITED
By: /s/ Frank J. Sixt
-----------------------------
Name: Frank J. Sixt
Title: Director
FOR AND ON BEHALF OF
CHEUNG KONG (HOLDINGS) LIMITED
By: /s/ Frank J. Sixt
-----------------------------
Name: Frank J. Sixt
3
<PAGE>
EXHIBIT 6
________________________________________________________________________
INVESTOR AGREEMENT
DATED AS OF JUNE 23, 1999,
BY AND AMONG
HUTCHISON TELECOMMUNICATIONS PCS (USA) LIMITED,
a British Virgin Islands corporation,
HUTCHISON TELECOMMUNICATIONS LIMITED,
a Hong Kong corporation
AND
VOICESTREAM WIRELESS HOLDING CORPORATION,
a Delaware corporation.
________________________________________________________________________
<PAGE>
INVESTOR AGREEMENT
This INVESTOR AGREEMENT (this "Agreement") is made as of June 23, 1999, by
and between Hutchison Telecommunications PCS (USA) Limited, a British Virgin
Islands corporation (the "Investor "), Hutchison Telecommunications Limited, a
Hong Kong corporation ("HKL") and VoiceStream Wireless Holding Corporation, a
Delaware corporation (the "Company").
WHEREAS, the Investor, Hutchison Telecommunications Limited, a Hong Kong
corporation ("HTL"), the owner of 100% of the issued and outstanding share
capital of the Investor, and the Company have entered into a Subscription
Agreement dated as of June 23, 1999 (the "Subscription Agreement"), pursuant to
which the Investor has agreed to purchase from the Company, and the Company has
agreed to issue and sell to the Investor, shares of the Company's Common Stock,
par value $0.001 per share ("Common Stock") and shares of the Company's 2-1/2%
Convertible Junior Preferred Stock, par value $0.001 per share (the "Junior
Preferred Stock"), all on the terms and subject to the conditions set forth in
the Subscription Agreement.
WHEREAS, the Investor and the Company wish to set forth certain agreements
concerning the ownership and transfer of shares of Common Stock, and certain
other matters as provided herein.
NOW, THEREFORE, in consideration of the mutual and dependent promises set
forth herein, the Investor hereby agrees with the Company, and the Company
hereby agrees with the Investor, as follows
1. EFFECTIVE DATE OF AGREEMENT.
---------------------------
This Agreement shall become effective upon the Closing, pursuant to and as
defined in the Subscription Agreement (the "Effective Date").
2. DEFINITIONS.
-----------
(a) Unless the context requires otherwise, capitalized terms used but not
defined in this Agreement have the meanings given in the Subscription Agreement.
(b) As used in this Agreement, the following terms have the respective
meanings set forth below (applicable to both the singular and plural forms of
such terms):
"$" means United States dollars.
"Actual Voting Power" means, as of the date of determination, the total
number of votes attaching to the outstanding securities entitled to vote for the
election of directors of the Company.
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"Affiliate" shall have the meaning set forth in Rule 12b-2 of the rules and
regulations promulgated under the Exchange Act; provided, however, that for
purposes of Section 3 of this Agreement, none of the following shall be deemed
to be an Affiliate of the Investor, HTL or HWL: (A) (i) the Company, (ii) any
Publicly Traded Person, (iii) the Cook Inlet Parties, (iv) any of the members of
the Special 13D Groups (any such member, other than Investor or its Affiliates,
being a "Special 13D Group Member"), or (v) any person who would be deemed to be
a controlling person of HWL under such Rule 12b-2, or (B) any Person who would
be an Affiliate of Investor solely because such Person is an Affiliate of any of
the Persons referred to in clause (A) of this proviso.
"Affiliated Director" means any member of the Board who has been designated
by Investor for nomination or appointment as a director of the Company pursuant
to a Voting Agreement.
"Agreement" means this Investor Agreement, as amended, modified,
supplemented or restated from time to time in accordance with the terms hereof.
"Beneficially Owned" and "Beneficial Ownership" have the meaning set forth
in Rule 13d-3 of the rules and regulations promulgated under the Exchange Act.
"Blackout Period" has the meaning given in Section 6(e)(ii).
"Board" means the board of directors of the Company.
"Change of Control" means (i) the acquisition by any Person or 13D Group of
direct or indirect Beneficial Ownership of Voting Securities representing 50% or
more of the Total Voting Power, (ii) any merger, consolidation or business
combination involving the Company or any material portion of its business, (iii)
a sale of all or a substantial portion of the assets of the Company or (iv) a
recapitalization, restructuring, liquidation, dissolution or similar
extraordinary transaction relating to the Company or any material portion of its
business.
"Commission" means the United States Securities and Exchange Commission.
"Common Stock" means the Company's Common Stock, $0.001, 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.
"Company" means VoiceStream Wireless Holding Corporation, a Delaware
corporation, and its successors and assigns.
"Cook Inlet Parties" means (i) Cook Inlet Western Wireless PV/SS PCS, L.P.,
(ii) Cook Inlet VoiceStream PCS, LLC, (iii) Cook Inlet VoiceStream II, LLC, (iv)
Cook Inlet VoiceStream III, LLC and any similar joint venture in which the
Company, Omnipoint, VoiceStream or their Subsidiaries from time to time are
principals.
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"Disqualified Affiliate" means any Affiliate of Investor and any Person
that would be an Affiliate of Investor but for clause (A)(ii) and (A)(v) of the
proviso to the definition hereunder of Affiliate.
"Disinterested Board Approval" means the affirmative vote or written
consent of a majority of the Board (excluding Affiliated Directors) then in
office.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"HTL" means Hutchison Telecommunications Limited, a corporation organized
under the laws of Hong Kong.
"HWL" means Hutchison Whampoa Limited, a corporation organized under the
laws of Hong Kong.
"Imputed Cost of Funds" means LIBOR plus 275 basis points.
"Includable Security" means any convertible securities, options, warrants
or other rights which are convertible into or exchangeable or exercisable for
securities entitled to vote for the election of directors, in later than 60
days, if the effect of excluding the foregoing from the calculation of Voting
Securities is to deprive the Company of the protections or to deprive the
Investor of the benefits of the provisions of this Agreement to any substantial
degree.
"Incremental Shares" has the meaning given in Section 3(d)(i).
"Investor" means Hutchison Telecommunications PCS (USA) Limited, a British
Virgin Islands corporation, and, unless otherwise specified herein or unless the
context requires otherwise, includes its successors and all Permitted Affiliate
Transferees of the Investor which from time to time hold shares of Voting
Securities.
"Investor Group" means Investor, HTL, HWL, and any of their respective
Affiliates (other than any Affiliates referred to in the proviso to the
definition herein of Affiliates).
"Investor's Ownership Percentage" has the meaning given in Section 3(a).
"Investor Tender Offer" means a bona fide public tender offer subject to
the provisions of Regulation 14D when first commenced within the meaning of Rule
14d-2(a) of the rules and regulations under the Exchange Act, by any of the
Investor Group (or any 13D Group that includes any of the Investor Group, other
than the Special 13D Group) to purchase or exchange for cash or other
consideration any Common Stock and which consists of an offer to acquire 100% of
the outstanding Common Stock (without regard to Common Stock owned by any of the
Investor Group) and is conditioned (which condition may not be waived) on a
majority of the shares of outstanding Common Stock held by shareholders other
than any of the Investor Group being tendered and not withdrawn with respect to
such offer.
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"Mergers" has the meaning given in that certain Agreement and Plan of
Reorganization dated as of June 23, 1999 by and among VoiceStream, the Company
and Omnipoint.
"NASD" has the meaning given in Section 6(a)(iii).
"New Issue Securities" has the meaning given in Section 5(c)(i).
"Omnipoint" means Omnipoint Corporation, a Delaware corporation.
"Other Shareholders" has the meaning given in Section 6(b)(iii)(A).
"Permitted Affiliate Transferee" means, in the case of the Investor, (i)
HTL, (ii) any Subsidiary of HTL, (iii) any other entity in which HTL owns,
directly or indirectly, more than 40% of the outstanding voting power and of
which members of the Investor Group collectively are the largest shareholder,
and (iv) in the case of any Person referred to in clause (i), (ii) or (iii), the
Investor.
"Person" means an individual, partnership, joint-stock company,
corporation, trust or unincorporated organization, limited liability company, or
a government or agency or political subdivision thereof or any other entity.
"Public Sale" means a public offer and sale or other public distribution of
securities, including (i) pursuant to an effective registration statement under
the Securities Act, (ii) pursuant to Regulation S under the Securities Act and
any applicable securities or stock exchange regulations in any non-United States
market or stock exchange in which the Common Stock is publicly traded, or (iii)
pursuant to an exemption from registration under Rule 144 under the Securities
Act.
"Publicly Traded Person" means any Person with a class of voting securities
(i) listed for trading on a recognized securities exchange and (ii) either (A)
having a public float of not less than $25 million or (B) being at least 40%
Beneficially Owned by persons other than Affiliates of the Investor.
"Registrable Securities" has the meaning given in Section 6(a)(ii).
"Registration Expenses" has the meaning given in Section 6(a)(iii).
"Representative" has the meaning given in Section 6(b)(iv).
"Selling Expenses" has the meaning given in Section 6(a)(iv).
"Special 13D Group" means any 13D Group that now or hereafter may exist by
virtue of a Voting Agreement.
"Standstill Period" has the meaning given in Section 3(b)(i).
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"Standstill Termination Event" means the date on which the first of the
following occurs: (i) the Investor Group Beneficially Owns, in the aggregate,
less than ten percent (10%) of the Total Voting Power, (ii) the Investor Group
Beneficially Owns, in the aggregate, more than ninety percent (90%) of the Total
Voting Power, or (iii) a Terminating Change of Control.
"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 and more
than 50% of the equity.
"Terminating Change of Control" means (i) the acquisition by any Person
(other than the Special 13D Group, any other Person bound by this Agreement or
any Disqualified Affiliate) of direct or indirect Beneficial Ownership of Voting
Securities representing 50% or more of the Total Voting Power, (ii) a sale of
all or substantially all of the assets of the Company or (iii) a liquidation or
dissolution of the Company.
"Third Party Offer" has the meaning given in Section 3(b)(i)(D).
"Threshold Percentage" means (a) until the second anniversary of the
Effective Date, thirty-five percent (35%), (b) thereafter and until the third
anniversary of the Effective Date, thirty-six percent (36%), and (c) thereafter
until the fifth anniversary of the Effective Date, forty percent (40.0%). In
the event that the Company shall, after the date hereof, have greater than 200
million shares of its Common Stock outstanding (such number to be appropriately
adjusted for stock splits, reclassifications, combinations and similar events),
the percentage set forth in clause (a) shall be thirty-three percent (33%). The
Threshold Percentage shall be calculated as set forth in Section 3(a) below and
subject to adjustment as provided below in Section 3(d)(iii).
"Total Voting Power" means, as of the date of determination, the total
number of votes which may be cast in the election of directors of the Company at
any meeting of shareholders of the Company if all Voting Securities then
outstanding are present and voted to the fullest extent possible at such
meeting, assuming the conversion, exchange or exercise of all then outstanding
convertible securities, options, warrants or other rights which, within 60 days
of such date, are convertible into or exchangeable or exercisable for securities
entitled to vote for the election of directors or which are Includable
Securities.
"Transfer" means any sale, assignment, pledge, hypothecation, or other
transfer, disposition or encumbrance of any interest (and includes an exchange
of shares in a merger, consolidation or similar transaction).
"Triggering Person" has the meaning given in Section 3(c)(i)(A).
"VoiceStream" means VoiceStream Wireless Corporation, a Washington
corporation.
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"Voting Agreement" means a voting or similar agreement to which Investor
and either or both of the Company or VoiceStream are party from time to time
which provides, among other things, for the voting of securities for the
election of directors of VoiceStream or, after the Mergers, the Company.
"Voting Security" means, as of the date of determination, the Common Stock
of the Company, any other security generally entitled to vote for the election
of directors and any outstanding convertible securities, options, warrants or
other rights which, within 60 days of such date, are convertible into or
exchangeable or exercisable for securities entitled to vote for the election of
directors or which are Includable Securities; provided, that Omnipoint's
existing 7% Cumulative Convertible Preferred Stock shall not be deemed to be a
Voting Security.
"13D Group" means any group of persons formed for the purpose of acquiring,
holding, voting or disposing of Voting Securities which would be required under
Section 13(d) of the Exchange Act, and the rules and regulations promulgated
thereunder, to file a statement on Schedule 13D or a Schedule 13G with the
Commission as a "person" within the meaning of Section 13(d)(3) of the Exchange
Act if such group Beneficially Owned sufficient securities to require such a
filing under the Exchange Act. When references herein are to a group under
Section 13(d) and not to members of such group, such references shall be deemed
to refer to actions of the group acting as such group and not to the individual
actions of any members of such group.
When a reference is made in this Agreement to a Section, such reference
shall be to a Section of this Agreement unless otherwise indicated. Whenever
the words "include," "includes" or "including" are used in this Agreement, they
shall be deemed to be followed by the words "without limitation". The use of a
gender herein shall be deemed to include the neuter, masculine and feminine
genders whenever necessary or appropriate. Whenever the word "herein,"
"hereunder" or "hereof" is used in this Agreement, it shall be deemed to refer
to this Agreement and not to a particular Section of this Agreement unless
expressly stated otherwise.
3. STANDSTILL; NON-COMPETITION.
---------------------------
(a) General. For purposes of this Section 3, at any relevant date, the
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ownership percentage of the Investor Group (the "Investor's Percentage
Ownership") and the Threshold Percentage will be calculated after giving effect
to:
(A) the Common Stock issuable under outstanding options and stock
purchase rights, exercisable within 60 days of the date of calculation,
granted under the Company's employee stock plans (including pursuant to
obligations under employee benefit plans of acquired businesses that are
assumed in the acquisitions of such businesses);
(B) any issuances of Common Stock pursuant to the Subscription
Agreement and the conversion of all outstanding Junior Preferred Stock; and
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(C) except for Common Stock issuable upon conversion of Omnipoint's
existing 7% Cumulative Convertible Preferred Stock, the issuance of Common
Stock pursuant to the conversion, exchange or other exercise of any other
options, warrants, convertible or exchangeable securities or other rights
or instruments carrying the right to acquire Common Stock to the extent
that such are convertible, exchangeable or exercisable within 60 days of
the date of calculation or are Includable Securities.
(b) Standstill Obligations.
----------------------
(i) Limitation. Unless there shall have occurred a Standstill
Termination Event, until the fifth anniversary of the date of this Agreement
(the "Standstill Period"), except with Disinterested Board Approval, no member
of the Investor Group shall, directly or indirectly,
(A) acquire or agree to acquire any Voting Securities (except by way
of (1) stock splits, stock dividends or other distributions or offerings
made available to holders of Common Stock generally, or (2) stock options,
warrants or other rights to purchase Voting Securities the acquisition of
which by Investor have received Disinterested Board Approval) if, in any
such case, the effect of such acquisition would be to increase the
Investor's Percentage Ownership to more than the Threshold Percentage;
(B) (other than in connection with an actual sale of such securities)
exercise any stock options, warrants or other rights to purchase Voting
Securities approved by the Board of the Company if, in any such case, the
effect of such exercise would be to increase the Investor's Percentage
Ownership to more than the Threshold Percentage;
(C) solicit proxies with respect to the Voting Securities or become a
"participant" in any "election contest" (as such terms are used in Rule
14(a)-11 of Regulation 14A promulgated under the Exchange Act) relating to
the election of directors of the Company (it being understood that
Purchaser shall not be deemed to be such a participant merely by reason of
the membership of any Affiliated Directors on the Board pursuant to the
terms of the Voting Agreement); provided, that if any other party (a
"Breaching Party") shall be in breach under the Voting Agreement (which
breach, in the reasonable judgment of Investor, could likely result in an
Affiliated Director not being elected in accordance with the terms of the
Voting Agreement), Investor may engage in such activities for the limited
purpose of electing the Affiliated Director and, if Investor so elects, for
nominees other than the nominees which the Breaching Party otherwise would
be entitled to designate under the Voting Agreement; or
(D) join a 13D Group (other than the Special 13D Group) with any
Person which is not a Disqualified Affiliate or otherwise induce, attempt
to induce or in any manner act in concert with any such Person for the
purpose of initiating or effectuating a tender offer or exchange offer for
any Voting Securities (a "Third
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<PAGE>
Party Offer") or a transaction which would result in a Change of Control (a
"Third Party Change of Control"); provided that the provisions of this
clause (D) shall not be applicable if any member of a Special 13D Group
holding more than 5% of the Voting Securities (other than a member of the
Investor Group or a Disqualified Affiliate) shall have engaged in any
material respect in any of the activities referred to in this clause (D).
(E) either alone or through or with a Disqualified Affiliate,
initiate, induce, attempt to induce or in any manner act in concert with
any such Person for the purpose of initiating or effectuating a tender or
exchange offer or Change of Control;
(F) disclose to any Person any intention, plan or arrangement
inconsistent with the foregoing;
Nothing in this Section 3(b)(i) shall have the effect of (i) precluding a
member of the Investor Group from participating in a Third Party Offer or voting
or agreeing to vote its shares in favor of a Third Party Change of Control in
which the Investor Group and any Disqualified Affiliate would receive
consideration on the same basis as is generally available to other holders of
Common Stock (assuming for purposes of this sentence that the Junior Preferred
Stock has been converted into Common Stock) or (ii) prohibiting the Affiliated
Directors (acting in their capacity as such) from (A) participating in
discussions with other members of the Board or (B) in meetings of the Board.
If any member of the Investor Group makes such an acquisition or exercise
that would increase the percentage interest of the Investor Group in the Actual
Voting Power to more than the Threshold Percentage, such excess shares shall
(for so long as the Actual Voting Power exceeds the Threshold Percentage) be
voted in a manner proportionate to shares voted by the shareholders of the
Company other than the Investor Group and the Disqualified Affiliates; provided,
that if the excess shares shall result from the bad faith actions of the
Investor Group or its Affiliates, it shall promptly divest such excess;
provided, further, however, that no member of the Investor Group shall be
obligated to divest itself of such excess pursuant to this Section 3(b)(i) until
such time as such divestment would not subject such member of the Investment
Group to liability under Section 16(b) of the Exchange Act or any other
applicable provision of Federal or state law.
(ii) Recapitalizations, Etc. Notwithstanding Section 3(b)(i), no
member of the Investor Group shall be obligated to dispose of any Voting
Securities if the aggregate percentage ownership of the Investor Group is
increased as a result of (x) a recapitalization of the Company, (y) a repurchase
of Voting Securities by the Company, (z) any other action taken by the Company
or its Affiliates other than the Investor Group.
(iii) Reinstatement of Standstill. If a Standstill Termination Event
shall have occurred by virtue of the Investor Group Beneficially Owning less
than 10% of the Voting Power and thereafter the Investor Group shall thereafter
Beneficially Own more
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than 10% of the Voting Power, the provisions of this Section 3 shall be deemed
to have been reinstated.
(c) Exception for Certain Third-Party Acquisitions.
----------------------------------------------
(i) Exception to Standstill Obligation. Notwithstanding Section
3(b)(i), the Investor Group may:
(A) acquire Voting Securities without regard to the limitations set
forth above but in accordance with Section 3(c)(ii) if at any time any
person or 13D Group (other than the Special 13D Group) of persons (such
person or persons together with any of their Affiliates, collectively, a
"Triggering Person"), directly or indirectly, (x) makes a bona fide offer
to acquire, or (y) acquires, Beneficial Ownership of Voting Securities
which, if added to the Voting Securities (if any) already Beneficially
Owned by such Triggering Person, would represent ownership of Voting
Securities greater than the Threshold Percentage;
(B) with Disinterested Board Approval, make an Investor Tender Offer
during the Standstill Period; and
(C) with Disinterested Board Approval, acquire Voting Securities
without regard to the limitations set forth above.
The Company shall give Investor written notice of the occurrence of any event of
the type referred to in clause (A) promptly after it obtains knowledge of such
event.
(ii) Competing Offers. If an event identified in Section 3(c)(i)(A)
occurs and shall not have been withdrawn or terminated, the Investor Group shall
be permitted to take such action and make such offers as may be considered to be
of the same nature and type of action or offer and for the same resulting number
of shares as that which is being taken by the Triggering Person; provided that
the Investor Group may only acquire that number of shares which when added to
the number of shares already owned by the Investor Group shall not exceed the
number of shares acquired or to be acquired (assuming any proposals or offers to
purchase have been consummated) by the Triggering Person. In proceeding with
any action or offer permitted under this Section 3(c)(ii), the Investor Group
shall be permitted to offer more favorable terms such as price, cash versus
securities or other such terms as may be consistent with an offer of the same
nature and type of consideration as that which is being proposed by the
Triggering Person.
(iii) No Contesting. If the Investor Group shall take any such
action permitted by this Section 3(c), the Company agrees that it shall not in
any way (whether by active opposition, Board announcement or otherwise) contest
such action, subject in all events to the fiduciary obligations of the Company's
Board and officers to the Company's stockholders.
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(d) Option to Purchase Incremental Shares.
-------------------------------------
(i) Incremental Shares. If an event identified in Section 3(c)(i)
occurs and as a result the Investor Group acquires Voting Securities which
increase the Investor Group's percentage interest in the Actual Voting Power to
more than the Threshold Percentage (the "Incremental Shares"), and thereafter
the Triggering Person holds Voting Securities representing a percentage of the
Total Voting Power less than the Threshold Percentage, then, upon the expiration
of the Investor Group's right to dispose of the Incremental Shares as provided
in Section 3(d)(ii) below, the Investor Group hereby grants to the Company or a
designee selected with Disinterested Board Approval, for a period of ninety (90)
days (subject to extension in the event of Investor's exercise of rights under
Section 3(d)(ii) below), an option to acquire any Incremental Shares at a price
equal to the price paid by the Investor Group for such shares, plus such
expenses and costs reasonably necessary to acquire the Incremental Shares and
incurred by the Investor Group in acquiring the Incremental Shares (including
the Imputed Cost of Funds of the Investor Group of holding the incremental
Shares until acquired by the Company or such designee); provided, however, that
the Investor Group shall not be obligated to sell any Voting Securities pursuant
to this Section 3(d)(i) until such time as such sale would not subject the
Investor Group to liability under Section 16(b) of the Exchange Act or any other
applicable provision of Federal or state law.
(ii) Disposition. In the event that the Investor Group has acquired
Incremental Shares from a seller or sellers other than the Company, for a period
of sixty (60) days from the date on which the Investor Group holds Incremental
Shares, the Investor Group shall have the right to sell such Incremental Shares
as follows: (x) to an independent third party in a bona fide transaction or
transactions; (y) if Rule 144 is available, into the public market in accordance
with the terms of Rule 144; or (z) as provided under both (x) and (y). In the
event that the Investor Group elects to dispose of the Incremental Shares as
provided in this Section 3(d)(ii), Investor shall provide written notice to the
Company of such disposition and the purchase option granted to the Company
pursuant to Section 3(d)(i) shall apply only to those Incremental Shares which
have not been so disposed of; provided, however, that the Investor Group shall
not be obligated to sell any Voting Securities pursuant to this Section 3(d)(ii)
until such time as such sale would not subject the Investor Group to liability
under Section 16(b) of the Exchange Act or any other applicable provision of
Federal or state law.
(iii) Adjustment for Failure to Exercise Option. In the event that
the Company or its designee fails to exercise its option as provided in Section
3(d)(i), the Threshold Percentage shall be increased to a percentage equal to
the percentage of the Actual Voting Power held by the Investor Group upon the
expiration of the right to exercise such option by the Company or such designee.
(iv) Voting of Incremental Shares. Until the Incremental Shares shall
have been disposed as provided in Section 3(d)(ii) and, if applicable, the
option of the Company or its designee provided in Section 3(d)(i) shall have
expired, the Incremental Shares shall be voted in a manner proportionate to
shares voted by the shareholders of the Company other than the Investor Group
and the Disqualified Affiliates.
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(v) No Intentional Circumvention. The Investor shall not attempt to
circumvent the provisions of this Section 3(d) by taking any action that would
have the effect of extending the periods for which Section 16(b) liability would
apply.
(e) Non-Competition. During the Standstill Period (or, if sooner, until
---------------
the occurrence of a Standstill Termination Event), the Investor Group will not,
directly or indirectly, engage in the ownership, operation, control or
management of any wireless or wirefree telephony network or business in the
United States in competition with the Company, its Subsidiaries and the Cook
Inlet Parties; provided that the foregoing restriction will not apply to the
ownership of up to 5% of the voting power of any company the voting securities
of which are publicly traded.
4. TRANSFER.
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(a) The Common Stock shall be freely tradable and may be Transferred by
the Investor as provided in this Section 4.
(b) Provided that it shall have provided prior written notice to the
Company, the Investor (and each Permitted Affiliate Transferee) shall have the
unrestricted right to Transfer its Common Stock and the rights and obligations
hereunder to any Permitted Affiliate Transferee or Disqualified Affiliate
(provided that any such Disqualified Associate agrees in writing to be bound by
the terms of this Agreement in which case such Disqualified Affiliate shall be
deemed to be a Permitted Affiliate Transferee for purposes hereof).
(c) The Investor and its Permitted Affiliate Transferees shall also have
the right to Transfer shares of Common Stock (but not the rights and obligations
hereunder unless otherwise provided herein or with Disinterested Board Approval)
to Persons other than Permitted Affiliate Transferees or Disqualified Affiliates
of the Investor.
(d) The Company agrees to cooperate in all reasonable respects (without
any obligation to incur any liability or expense) in connection with any
Transfer by the Investor permitted by this Section 4, so as to enable such
Transfer to be effected on an optimal basis for tax and other applicable
regulatory purposes.
5. ISSUANCE OF COMPANY SECURITIES.
------------------------------
(a) Subject to the provisions of this Section 5, the Board shall have the
ability to determine the manner in which the Company shall raise any additional
funding.
(b) For purposes of this Section 5, the term "equity securities" shall
(without duplication of previously issued equity securities in the case of
exercise or conversion) mean any equity securities, including any warrants,
options or other rights to acquire equity securities or debt securities
convertible into equity securities, but shall not include non-voting, non-
convertible preferred stock or nominal equity features included in the
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terms of a debt financing. This Section 5 shall not apply with respect to
issuances of the Company's equity securities in connection with (i) a stock
dividend, (ii) a merger, amalgamation, acquisition, reclassification or other
reorganization in which the then-current shareholders of the Company would
continue to be the only shareholders of the Company or which is effected to
carry out an acquisition transaction, (iii) the grant or exercise of stock
options or other grants or purchases of equity securities of the Company
pursuant to any stock option, stock purchase or other employee benefit plan now
or hereafter adopted for employees, directors or consultants of the Company or
(iv) a bona fide public offering of equity securities.
(c) If at any time after the date hereof, the Company proposes to issue
equity securities of any kind (except as provided in Section 5(b)), then the
Company shall:
(i) give Investor written notice setting forth in reasonable detail
(A) the designation and all of the terms and provisions of the equity securities
proposed to be issued (the "New Issue Securities"), including, where applicable,
the voting powers, preferences and relative participating, optional or other
special rights, and the qualifications, limitations or restrictions thereof and,
if applicable, the dividend rate and maturity; (B) the price and other terms of
the proposed sale of such securities; (C) the amount of such securities proposed
to be issued; and (D) such other material information as may reasonably be
requested in order to evaluate the proposed issuance; and
(ii) offer Investor a right to purchase a portion of the New Issue
Securities up to the Investor's Percentage Ownership on the terms and conditions
stated in such notice.
(d) If the Investor wishes to exercise its purchase rights hereunder, it
must deliver a written notice to that effect to the Company within 15 days after
the date the notice specified in Section 5(c) was delivered by the Company. To
the extent that the Company offers two or more securities in units, the Investor
must purchase such units as a whole and will not be given the opportunity to
purchase only one of the securities making up such units. The Investor must
complete the purchase of such New Issue Securities at the same time and in a
single closing within five Business Days after the expiration of the 15-day
period referred to in the first sentence of this Section 5(d). If the purchase
and sale of such New Issue Securities by the Investor is subject to any prior
regulatory approval, consent, waiver, notice or like requirement, then provided
that the Investor shall promptly make any necessary filings or applications for,
and diligently pursue, the satisfaction of such regulatory requirements, the
time period during which such purchase and sale must be consummated shall be
extended until the earlier of (i) five Business Days after all such regulatory
requirements have been satisfied and (ii) 90 days after the expiration of the
applicable period set forth above for the completion of a purchase by the
Investor, provided, that such 90-day period shall be extended by an additional
90 days upon written request of the Investor, unless the Company shall deliver
to the Investor an opinion of counsel experienced in the relevant area of law or
regulation that such regulatory requirements cannot be satisfied by the
Investor. At the closing of the purchases of the New Issue Securities by the
Investor, the Company shall deliver to the Investor, against receipt of the
purchase price therefor by cash or certified or bank
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cashier's check, duly issued certificate or certificates representing the New
Issue Securities that the Investor has elected to purchase.
(e) Upon the expiration of the offering periods described in the first
sentence of Section 5(d), or upon any failure of the Investor to complete the
purchase of New Issue Securities in the time required under Section 5(d), the
Company will be free to sell such New Issue Securities that the Investor has not
elected to purchase (or have failed to purchase within the required time) during
the 90 days (or applicable longer period under Section 5(d)) following such
expiration (or failure) on terms and conditions per share no more favorable to
the purchasers thereof than those offered to the Investor. Any New Issue
Securities offered or proposed to be sold by the Company after such 90-day
period (or applicable longer period under Section 5(d)) or on more favorable
terms and conditions per share to the purchaser must be reoffered to the
Investor pursuant to this Section 5. The election by the Investor not to
exercise its purchase rights under this Section 5 in any one instance shall not
affect its rights as to any subsequent proposed issuance other than the decrease
in Investor's Ownership Percentage resulting therefrom. Any sale of such
securities by the Company without first giving the Investor the rights described
in this Section 5 shall be void and of no force and effect and the Company shall
cause any required correction to the registration and transfer books of the
Company to be effected.
(f) The Company hereby agrees that it shall cause each of its wholly-owned
Subsidiaries to comply with the terms of this Section 5 with respect to the
issuance of any equity securities by such Subsidiary (except for issuances of
stock dividends or in connection with a merger, amalgamation, reclassification
or other reorganization resulting in no reduction in the Company's direct or
indirect equity interest in such Subsidiary).
(g) The Company represents that it has taken all action, and covenants to
take all such further action, to ensure that the provisions of Section 203 of
the Delaware General Corporation Law shall not be applicable to Investor. The
Company shall not adopt a "poison pill" share purchase rights plan (or similar
plan) unless any such plan excludes Investor and its Affiliates from the
definition of "Acquiring Person" (or similarly exempts Investor and its
Affiliates from the application of such plan). Unless there shall have been a
Terminating Change of Control or the Investor Group Beneficially Owns in the
aggregate less than ten percent (10%) of the Total Voting Power, the Company
shall not take any further action not contemplated by this Agreement which is
not generally applicable to stockholders of the Company and which has the effect
of discriminating against Investor with respect to ownership, voting rights or
rights to acquire or Transfer securities of the Company.
(h) During the term of this Agreement, the Company shall not issue any
equity security (including, without limitation, any Voting Security) which
provides the holder(s) thereof with any extraordinary or special voting rights
or any right to veto any action of the Company, unless such issuance is approved
in writing in advance by an Affiliated Director. Further, the Company shall not
consider or approve any such issuance prior to the Effective Date.
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6. REGISTRATION RIGHTS.
-------------------
The Investor shall have the right to have its Registrable Securities (as
hereinafter defined) registered under the Securities Act and applicable United
States state securities laws in accordance with the express terms of the
following provisions.
(a) Definitions. As used in this Section 6:
-----------
(i) the terms "register," "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act (and any post-effective amendments filed or
required to be filed) and the declaration or ordering of effectiveness of such
registration statement;
(ii) the term "Registrable Securities" shall mean (A) Common Stock
owned by the Investor, HTL or any affiliate of the Investor or HTL as of the
date of this Agreement, (B) Common Stock that may be issued to the Investor upon
conversion of the Junior Preferred Stock or other securities exchangeable for or
convertible into shares of Common Stock, (C) any additional Common Stock
acquired by the Investor from the Company, and (D) any Common Stock issued as a
dividend or other distribution with respect to, or in exchange for or in
replacement of, the Common Stock referred to in clauses (A), (B), (C) and (D)
above;
(iii) "Registration Expenses" shall mean all expenses incident to the
Company's performance of or compliance with its obligations under this Section
6, including, without limitation, all Commission, National Association of
Securities Dealers ("NASD") and stock exchange or NASDAQ registration, listing
and filing fees and expenses, fees and expenses of compliance with applicable
state securities or "blue sky" laws (including, without limitation, reasonable
fees and disbursements of counsel for the underwriters in connection with "blue
sky" qualifications of Registrable Securities), printing expenses, messenger and
delivery expenses, fees and disbursements of counsel for the Company and all
independent certified public accountants (including the expenses of any annual
audit and "cold comfort" letters required by or incident to such performance and
compliance), the fees and disbursements of underwriters customarily paid in
connection with secondary registered Public Sales of securities (including the
fees and expenses of any "qualified independent underwriter" required by the
NASD), the reasonable fees of one U.S. counsel plus, if reasonably required by
the Investor, one local counsel retained by the Investor in connection with each
such registration pursuant to this Section 6 for purposes of obtaining advice
concerning applicable securities laws and securities exchange regulations,
review of the registration statement and prospectus and limited due diligence
concerning the Company, the reasonable fees and expenses of any special experts
retained by the Company in connection with such registration, and fees and
expenses of other Persons retained by the Company (but not including any
underwriting discounts or commission or transfer taxes, if any, attributable to
the sale of Registrable Securities by the Investor); and
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(iv) "Selling Expenses" shall mean all underwriting discounts and
selling commissions applicable to the sale of Registrable Securities and
transfer tax, if any, attributable to the sale of Registrable Securities by the
Investor.
(b) Demand Registration.
-------------------
(i) The Investor shall have the right, upon delivery of written
notice to the Company (not more than once in any 9-month period) to require the
Company to register under the Securities Act such amount of Registrable
Securities owned by the Investor as may be specified in such notice in
accordance with the procedures set forth in this Section 6(b), provided, that,
the Company need effect only eight (8) such demand registrations (in the
aggregate for all Persons entitled to the benefit of this provision by virtue of
this Agreement) pursuant hereto, provided further, that any such registration
demanded by the Investor under this Section 6(b)(i) must be for an amount of
Common Stock having an aggregate anticipated sales price of at least
$25,000,000.
(ii) The rights of the Investor to demand the registration of its
Registrable Securities shall continue until (x) all the Registrable Securities
owned by it shall have been Transferred to transferees who are not entitled to
the registration rights of the Investor hereunder in accordance with the terms
hereof or, if earlier, (y) all its remaining Registrable Securities are eligible
to be Transferred in Public Sales to U.S. persons in the United States without
registration under the Securities Act and without being subject to volume
limitations under Rule 144 under the Securities Act, provided, in the case of
(y), that there is a public float of the Common Stock equal to at least 15% of
the total outstanding shares of Common Stock.
(iii) If the Investor shall have demanded a registration of
Registrable Securities then the Company will:
(A) promptly give written notice of the proposed registration to all
other shareholders entitled to piggyback registration rights under Section
6(c) hereof or any other contractual agreement of the Company (the "Other
Shareholders") and
(B) as soon as practicable, use its best efforts to prepare and file
with the Commission and cause to become effective such registration
statement as would permit or facilitate the sale and distribution of all
the Registrable Securities required to be covered thereby pursuant to the
notice delivered by the Investor, together (subject to Section 6(b)(iv)
below) with all or such portion of the securities of any Other Shareholders
joining in such registration as are specified in written requests received
by the Company within ten Business Days after written notice from the
Company is delivered under Section 6(b)(iii)(A) above.
(iv) The Investor, at its election, shall have the Registrable
Securities covered by its request distributed by means of an underwritten public
offering with a single or managing underwriter selected by the Company and
reasonably acceptable to the Investor. If any Other Shareholders so request,
the securities of such Other
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Shareholders shall be included in the registration and underwriting being
effected pursuant to this Section 6(b), subject to this Section 6(b)(iv). The
Investor and the Company shall (together with all Other Shareholders proposing
to distribute their securities through such underwriting) enter into an
underwriting agreement in customary form with the representative of the
underwriter or underwriters selected for such underwriting by the Company and
reasonably acceptable to the Investor (the "Representative"). Notwithstanding
any other provision of this Section 6(b), if the Representative advises the
Investor and the Company in writing that (x) marketing factors require a
limitation on the number of shares to be underwritten or (y) the inclusion of
shares held by officers and directors of the Company in the offering could, in
the Representative's best judgment, materially reduce the offering price per
share, then, in the case of the preceding clause (x), the Common Stock held by
Other Shareholders shall be excluded from such underwriting to the extent so
required by such limitations and, in the case of the preceding clause (y), the
Common Stock held by officers and directors of the Company shall be excluded
from such underwriting to the extent advised by the Representative. If, after
the exclusion of such shares, further reductions are required to meet the
limitation on the number of shares to be underwritten as advised by the
Representative, then the Investor may elect, in its sole discretion, to reduce
the number of shares that will be included in the underwriting by it by such
number of shares as is necessary to comply with such limitation, but in no event
to an amount which is below the minimum amount for a demand registration as
provided in Section 6(b)(i). If the Investor does not so elect, then the
registration of its shares under Section 6(b)(i) will not proceed and will be
terminated without liability to any other Person. If the Representative has not
limited the number of Registrable Securities or other securities to be
underwritten, the Company may include its securities for its own account in such
registration if the Representative so agrees and if the number of Registrable
Securities which would otherwise have been included in such registration and
underwriting will not thereby be limited.
(v) Notwithstanding the foregoing, if the Company shall furnish to
the Investor and the Other Shareholders a certificate signed by the President or
Chief Executive Officer of the Company stating that, in the good faith judgment
of the Board, it would be materially detrimental to the Company and its
shareholders for such registration statement to be filed, then the Company shall
have the right to defer such filing for a period of not more than 90 days after
the delivery of such certificate, provided that the Investor shall not be
required to accept such a deferral more than twice in any 12-month period;
provided, that notwithstanding the provisions of clause (b)(1) above, the
Investor shall have the right to up to two demand registrations within the nine
month period following the expiration of such deferral period.
(c) Piggyback Registration.
----------------------
(i) If the Company shall determine to register any of its Common
Stock either for its own account or for the account of any holder or holders of
Common Stock (other than a registration on Form S-8 (or similar or successor
form) relating solely to stock option, stock purchase or other employee benefit
plans, or a registration on Form S-4 (or similar or successor form), or a
registration on any registration form which does
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<PAGE>
not permit secondary sales or does not include substantially the same
information as would be required to be included in a registration statement
covering the sale of Registrable Securities), the Company will:
(A) promptly give to the Investor a written notice thereof (which
shall include a list of the jurisdictions in which the Company intends to
attempt to qualify such securities under the applicable blue sky or other
state securities laws); and
(B) subject to Section 6(c)(ii) below, include in such registration
(and any related qualification under blue sky laws or other compliance),
and in any underwriting involved therein, all the Registrable Securities
specified in a written request or requests made by the Investor within
fifteen (15) days after the date written notice as described in Section
6(c)(i)(A) above is delivered by the Company. Such written request may
specify all or a part of the Registrable Securities.
(ii) If the registration of which the Company gives notice is for a
Public Sale consisting of an underwritten public offering (in which event the
underwriter shall be selected by the Company, in its sole discretion), the
Company shall so advise the Investor as a part of the written notice given
pursuant to Section 6(c)(i)(A). In such event, the right of the Investor to
registration pursuant to this Section 6(c) shall be conditioned upon the
Investor's participation in such underwriting and the inclusion of the
Investor's Registrable Securities in the underwriting to the extent provided
herein. The Investor, if its shares are to be included in such registration,
shall (together with the Company and the Other Shareholders distributing their
Common Stock through such underwriting) enter into an underwriting agreement in
customary form with the Representative. Notwithstanding any other provision of
this Section 6(c), if the Representative advises the Investor or the Company in
writing that (x) the inclusion of shares held by the officers and directors of
the Company in the offering could, in the Representative's best judgment,
materially reduce the offering price per share, or (y) that marketing factors
require a limitation on the number of shares to be underwritten, then, in the
case of the preceding clause (x), the Common Stock held by officers and
directors of the Company shall be excluded from such underwriting to the extent
so advised by the Representative and, in the case of the preceding clause (y),
the number of shares that may be included in the underwriting by the Investor
and Other Shareholders requesting inclusion in such registration (but not the
Company) shall be reduced, on a pro rata basis (based on the number of shares
requested by the Investor and such Other Shareholders to be included in such
registration), by such minimum number of shares as is necessary to comply with
such limitation. If the Investor disapproves of the terms of any such
underwriting, it may elect to withdraw therefrom by written notice to the
Company and the Representative, given a reasonable period of time prior to the
finalization of the underwriting arrangements. Any Registrable Securities or
other securities excluded or withdrawn from such underwriting shall not be
included in such registration. If at any time prior to the effective date of
the registration statement, the Company shall determine for any reason not to
register such securities, the Company may, at its election, give written notice
of such determination to the Investor and, thereupon, shall be relieved of
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<PAGE>
its obligation under this Section 6(c) to register any of the Registrable
Securities in connection with such registration.
(iii) Number and Duration. The Investor shall be entitled to have
its shares included in an unlimited number of registrations pursuant to this
Section 6(c). The rights of the Investor to registration of its Registrable
Securities under this Section 6(c) shall continue until (x) all the Registrable
Securities owned by it shall have been Transferred to transferees who are not
entitled to the registration rights of the Investor hereunder in accordance with
the terms hereof or, if earlier, (y) all its remaining Registrable Securities
are already included in an effective resale registration statement on Form S-3
or other appropriate form for continuous or delayed offerings or are eligible to
be Transferred in Public Sales to U.S. persons in the United States without
registration under the Securities Act and without being subject to volume
limitations under Rule 144 under the Securities Act, provided, in the case of
(y), that there is a public float of the Common Stock equal to at least 15% of
the total outstanding shares of Common Stock.
(d) Expenses of Registration. Upon the exercise of registration rights set
------------------------
forth in this Section 6, the Company shall pay all Registration Expenses
incurred in connection with any registration, qualification or compliance
pursuant to this Section 6, provided, that such expenses shall not include
Selling Expenses, which shall be borne by the Investor pro rata on the basis of
the number of its shares so registered.
(e) Registration Procedures. In the case of each registration effected by
-----------------------
the Company pursuant to this Section 6, the Company will keep the Investor
advised in writing as to the initiation of each registration and as to the
completion thereof. In connection with any offering of Registrable Securities
registered pursuant to clause (b) or (c) of this Section 6, at its expense, the
Company shall:
(i) prepare and file with the Commission, as promptly as practical
after receipt of a request for registration pursuant to this Section 6, a
registration statement on any form for which the Company then qualifies, and
which form shall be available for the sale of the Registrable Securities in
accordance with the intended methods of distribution thereof, and use its best
efforts to cause such registration statement to become and remain effective as
provided herein; provided, that before filing with the Commission a registration
statement or prospectus or any amendments or supplements thereto, the Company
will (A) furnish to the Investor copies of all such documents proposed to be
filed for review and comment and (B) notify the Investor of any stop order
issued or threatened by the Commission and take all reasonable actions required
to prevent the entry of such stop order or to remove it if entered;
(ii) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration effective (A) during the
ten Business Day period immediately following the date on which such
registration statement shall be declared effective, and (B) subject to any
obligation of the Investor to refrain from selling or offering to sell any
Registrable Securities during a Blackout Period (as defined below), for 120 days
after the date of effectiveness or (C) if earlier, until the
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<PAGE>
Investor has completed the distribution described in the registration statement
relating thereto (but not before the expiration of the time periods referred to
in Section 4(3) of the Securities Act and Rule 174 promulgated thereunder, or
any successor provisions, if applicable). The Company shall be entitled to elect
that a registration statement not be usable, for a reasonable period of time,
but not in excess of one hundred twenty (120) consecutive days (a "Blackout
Period"), if the Company determines in good faith that the use of such
registration statement or the related prospectus would interfere with any
pending financing, acquisition, corporate reorganization or any other material
corporate development involving the Company, or any of its Subsidiaries or would
require premature disclosure thereof, and the Company promptly gives the
Investor written notice of such determination, containing a general statement of
the reasons for such postponement or restriction on use and an approximation of
the anticipated delay; provided, however, that (x) the Company shall not be
entitled to initiate a Blackout Period unless it shall concurrently forbid
purchases or sales in the open market by directors, senior executives and other
Affiliates of the Company, (y) the aggregate number of days included in all
Blackout Periods during any consecutive twelve (12) month period shall not
exceed two hundred forty (240) days, and (z) the period that the Company shall
be required to maintain the effectiveness of the registration statement shall be
increased by the aggregate number of days in the Blackout Periods. The Company
shall give written notice to each shareholder of record included in the
registration statement of the commencement and the termination of any Blackout
Period;
(iii) furnish to each underwriter, if any, and the Investor such
number of copies of such registration statement, each amendment and supplement
thereto (in each case including all exhibits thereto), and the prospectus
included in such registration statement (including each preliminary prospectus)
in conformity with the requirements of the Securities Act, and such other
documents incident thereto as the Investor may reasonably request from time to
time in order to facilitate the disposition of the Registrable Securities owned
by the Investor;
(iv) use its best efforts to register or qualify such Registrable
Securities under the state securities or "blue sky" laws of such states as the
Investor or the Representative reasonably request and do any and all other acts
and things that may be reasonably necessary or advisable to enable the Investor
and the underwriters to consummate the disposition in such jurisdictions of the
Registrable Securities owned by the Investor; provided, that the Company will
not be required as a result thereof to (A) qualify generally to do business in
any jurisdiction where it would not otherwise be required to qualify but for
this clause (iv), (B) subject itself to taxation or regulation of its business
in any such jurisdiction in which it would not otherwise be so subject or (C)
consent to general service of process in any jurisdiction in which it would not
otherwise be subject to general service of process;
(v) use its best efforts to cause the Registrable Securities covered
by such registration statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary by virtue of the
business and operations of the Company to enable the Investor to consummate the
disposition of such Registrable Securities;
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(vi) immediately notify the Investor at any time when a prospectus
relating thereto is required to be delivered under the Securities Act of the
happening of any event that comes to the Company's attention, if as a result of
such event the prospectus included in such registration statement contains an
untrue statement of a material fact or omits to state any material fact required
to be stated therein or necessary to make the statements therein not misleading;
and subject to the Blackout Period provisions in clause (ii) above, the Company
will promptly prepare and furnish to the Investor a supplement or amendment to
such prospectus so that, as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus will not contain an untrue statement of
a material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading;
(vii) use its best efforts to cause all such Registrable Securities
to be listed on a national securities exchange in the United States or quoted on
the NASDAQ National Market System and listed or quoted on each securities
exchange or automated quotation system on which similar securities issued by the
Company may then be listed or quoted, and enter into such customary agreements
including a listing application and indemnification agreement in customary form,
and, subject to applicable law, to provide a transfer agent and registrar for
such Registrable Securities covered by such registration statement no later than
the effective date of such registration statement;
(viii) enter into such customary agreements (including an
underwriting agreement or qualified independent underwriting agreement, in each
case, in customary form) and take all such other actions as the Investor
requesting registration of the Registrable Securities being covered by such
registration statement or the underwriter reasonably requests in order to
expedite or facilitate the disposition of such Registrable Securities, including
customary representations, warranties, indemnities and agreements;
(ix) make available (after reasonable notice and execution of
customary confidentiality agreements satisfactory to the Company) for
inspection, during business hours of the Company, by the Investor or its
representatives (if it has requested registration of Registrable Securities) and
any underwriter participating in any disposition pursuant to such registration
statement (to the extent provided in the applicable underwriting agreement),
(collectively, the "Inspectors"), all financial and other records, pertinent
corporate documents and properties of the Company and its Subsidiaries, if any,
as shall be reasonably necessary to enable them to exercise their due diligence
responsibility, and cause the Company's officers, directors and employees, and
those of the Company's Affiliates, to supply all information and respond to all
inquiries reasonably requested by any such Inspector in connection with such
registration statement;
(x) use its best efforts to obtain a "cold comfort" letter from the
Company's appointed auditors in customary form and covering such matters of the
type customarily covered by "cold comfort" letters as the Representative
reasonably requests; and
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(xi) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission and all conditions imposed by relevant
governmental authorities or under applicable law and make available to the
Investor, as soon as reasonably practicable, an earnings statement covering a
period of at least twelve months beginning after the effective date of the
registration statement (as the term "effective date" is defined in Rule 158(c)
under the Securities Act), which earnings statement shall satisfy the provisions
of Section 11(a) of the Securities Act and Rule 158 thereunder.
It shall be a condition precedent to the obligation of the Company to take
any action with respect to any Registrable Securities that the Investor shall
furnish to the Company such information regarding the Registrable Securities and
any other securities of the Company held by the Investor and the intended method
of disposition of the Registrable Securities held by the Investor and such other
information regarding the Investor as the Company shall reasonably request and
as shall be required in connection with the action taken by the Company.
The Investor agrees that, upon receipt of any notice from the Company of
the happening of any event of the kind described in Section 6(e)(vi) hereof, the
Investor will forthwith discontinue disposition of Registrable Securities
pursuant to any prospectus or registration statement until the Investor's
receipt of the copies of the supplemented or amended prospectus contemplated by
Section 6(e)(vi) hereof, and, if so directed by the Company (at the Company's
expense), the Investor will deliver to the Company all copies (including,
without limitation, any and all drafts), other than permanent file copies, then
in the Investor's possession, of the prospectus covering such Registrable
Securities current at the time of receipt of such notice.
(f) Indemnification.
---------------
(i) In the event of any registration of any shares of Common Stock
under the Securities Act pursuant to this Agreement, the Company will indemnify
and hold harmless the Investor, its directors and officers, each Person who
participates as an underwriter in the offering or sale of such securities and
each other Person, if any, who controls the Investor or any such underwriter
within the meaning of the Securities Act against any and all losses, claims,
damages and liabilities (or actions in respect thereof), joint or several, and
expenses (including any amounts paid in any settlement effected with the
Company's consent, which consent will not be unreasonably withheld) to which the
Investor, any such director or officer or any such underwriter or controlling
Person may become subject under the Securities Act, the Exchange Act, United
States state securities or "blue sky" laws, common law or otherwise, insofar as
such losses, claims, damages or liabilities (or actions or proceedings in
respect thereof) or expenses arise out of or are based upon (A) any untrue
statement (or alleged untrue statement) of any material fact contained in any
registration statement under which such securities were registered under the
Securities Act, any preliminary, final or summary prospectus contained therein,
or any amendment or supplement thereto, (B) any omission (or alleged omission)
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, or (C) any violation (or alleged
violation) by the Company of any United States federal, state or common law rule
or regulation
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<PAGE>
applicable to the Company and relating to action required of or inaction by the
Company in connection with any such registration, qualification or compliance.
The Company will reimburse the Investor and each such director, officer,
underwriter and controlling Person for any legal and any other expenses
reasonably incurred in connection with investigating or defending such claim,
loss, damage, liability or action, as such expenses are incurred; provided,
however, that the Company shall not be liable in any such case to the extent
that any such claim, loss, damage, liability (or action or proceeding in respect
thereof) or expense arises out of or is based on any untrue statement (or
alleged untrue statement) or omission (or alleged omission) made in such
registration statement or amendment or supplement thereto or in any such
preliminary, final or summary prospectus in reliance upon and in conformity with
written information furnished to the Company by the Investor or any such
director, officer, underwriter or controlling Person specifically stating that
it is for use therein; provided further, however, that the Company shall not be
liable to any of the foregoing indemnitees pursuant to this Section 6(f) with
respect to any untrue statement or omission or alleged untrue statement or
omission made in any preliminary prospectus or the final prospectus or the final
prospectus as amended or supplemented, as the case may be, to the extent that
any such loss, claim, damage or liability of such indemnitee results from the
fact that the Investor or underwriter sold Registrable Securities (x) to a
Person to whom there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the final prospectus or of the final
prospectus as then amended or supplemented, whichever is most recent, if the
Company has previously furnished copies thereof to the Investor or underwriter
and such final prospectus, as then amended or supplemented, had corrected any
such misstatement or omission or (y) during a Blackout Period or after receipt
of a notice pursuant to Section 6(e)(vi) hereof (prior to the amendment or
supplement thereunder having been furnished).
The indemnity provided for herein shall remain in full force and effect
regardless of any investigation made by or on behalf of the Investor or any such
director, officer, underwriter or controlling Person and shall survive the
transfer of such securities by the Investor or such underwriter.
(ii) The Investor will, if Registrable Securities held by it are
included in any registration statement filed in accordance with the provisions
hereof, (x) indemnify the Company, its directors, officers and controlling
Persons, all other prospective sellers, each person who participates as an
underwriter, and their respective directors, officers and controlling Persons
against all claims, losses, damages and liabilities (or actions in respect
thereof) and expenses to which any such Person may become subject under the
Securities Act, the Exchange Act, United States state securities or "blue sky"
laws, common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) or expenses arise out
of or are based upon (A) any untrue statement (or alleged untrue statement) of a
material fact with respect to the Investor contained in any such registration
statement, preliminary, final or summary prospectus contained therein, or any
amendment or supplement thereto, in reliance on and in conformity with written
information furnished to the Company by the Investor specifically for use
therein, or (B) any omission (or alleged omission) to state therein a material
fact with respect to the Investor required to be stated therein or necessary to
make the statements made by the Investor therein not misleading and (y)
reimburse the
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Company and its directors, officers, controlling Persons and all other
prospective sellers, each person who participates as an underwriter, and their
respective directors, officers, and controlling Persons for any legal or any
other expenses reasonably incurred in connection with investigating or defending
any such claim, loss, damage, liability or action, in the case of both clause
(x) and clause (y), to the extent, and only to the extent, that such untrue
statement (or alleged untrue statement) or omission (or alleged omission) is
made in such registration statement, preliminary, final or summary prospectus
contained therein, or any amendment or supplement thereto in reliance upon and
in conformity with written information furnished to the Company by the Investor
with respect to the Investor specifically for use therein; provided, however,
that the obligations of the Investor hereunder shall be limited to an amount
equal to the proceeds to be received by the Investor from securities sold by the
Investor pursuant to such registration statement or prospectus.
The indemnity provided for herein shall remain in full force and effect
regardless of any investigation made by or on behalf of the Company or the
Investor, the underwriters or any of their respective directors, officers, or
controlling Persons and shall survive the transfer of such securities by the
Investor and such underwriters.
(iii) Each party entitled to indemnification under this Section 6(f)
(an "Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom (it being understood that the Indemnifying Party
shall not be responsible for more than one counsel for all Indemnified Parties
in any single action or claim (or group of related actions or claims), unless
the Investor shall have reasonably concluded that it may have a conflict of
interest with one or more other Indemnified Parties with respect to any actions
or claims). Counsel for the Indemnifying Party, who shall conduct the defense
of such claim or any litigation resulting therefrom, shall be approved by the
Indemnified Party (whose approval shall not unreasonably be withheld or
delayed). The Indemnified Party may participate in such defense at the
Indemnified Party's expense (unless the Indemnified Party shall have reasonably
concluded that there may be a conflict of interest between the Indemnifying
Party and the Indemnified Party in such action, in which case the reasonable
fees and expenses of the Indemnified Party's counsel shall be at the expense of
the Indemnifying Party and shall be reimbursed as they are incurred). The
failure of any Indemnified Party to give notice as provided herein shall not
relieve the Indemnifying Party of its obligations under this Section 6 except to
the extent the Indemnifying Party is actually materially prejudiced thereby. No
Indemnifying Party, in the defense of any such claim or litigation, shall,
except with the consent of each Indemnified Party, consent to entry of any
judgment or enter into any settlement which does not include as a term thereof
the giving by the claimant or plaintiff to such Indemnified Party of an
unconditional release from all liability with respect to such claim or
litigation. Each Indemnified Party shall promptly furnish such information
regarding itself or the claim in question as an Indemnifying Party may
reasonably request in writing and as shall be reasonably required in connection
with the defense of such claim and litigation resulting therefrom.
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<PAGE>
(iv) In order to provide for just and equitable contribution in
circumstances in which the foregoing indemnities provided for in this Section
6(f) are for any reason held to be unenforceable although applicable in
accordance with their terms, the Company and the Investor shall contribute to
the aggregate losses, liabilities, claims, damages and expenses of the nature
contemplated by such indemnities in such proportion as shall be appropriate to
reflect (A) the relative benefits received by the Company, on the one hand, and
the Investor, on the other hand, from the offering of the Registrable Securities
and any other securities included in such offering, and (B) the relative fault
of the Company, on the one hand, and the Investor, on the other hand, with
respect to the statements or omissions that resulted in such loss, liability,
claim, damage or expense, or action in respect thereof, as well as any other
relevant equitable considerations; provided, however, that no Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to a contribution from any Person who was not
guilty of such fraudulent misrepresentation. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company or the Investor,
the intent of the parties and their relative knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Company
and the Investor agree that it would not be just and equitable if a contribution
pursuant to this Section 6(f) were to be determined by pro rata allocation or by
any other method of allocation that does not take into account the equitable
considerations referred to herein. Notwithstanding anything to the contrary
contained herein, the Company and the Investor agree that any contribution
required to be made by the Investor pursuant to this Section 6(f) shall not
exceed the net proceeds from the offering of Registrable Securities (before
deducting expenses) received by the Investor with respect to such offering.
(v) The foregoing indemnities of the Company and the Investor are
subject to the condition that, insofar as they relate to any untrue statement
(or alleged untrue statement) of a material fact contained in a preliminary
prospectus, or any omission (or alleged omission) to state therein a material
fact required to be stated therein or necessary to make the statements contained
therein not misleading, which was eliminated or remedied in the amended
prospectus on file with the Commission at the time the registration statement in
question became effective or the amended prospectus filed with the Commission
pursuant to Rule 424(b) under the Securities Act (the "Final Prospectus"), such
indemnities shall not inure to the benefit of any underwriter if a copy of the
Final Prospectus was furnished to the underwriter and was not furnished to the
Person asserting the loss, liability, claim or damage at or prior to the time
such action is required by the Securities Act.
(g) Information by the Investor. The Investor shall furnish to the Company
---------------------------
such information regarding the Investor and the distribution proposed by the
Investor as the Company may reasonably request in writing in connection with any
registration of Registrable Securities of the Investor and as shall be
reasonably required in connection with any registration, qualification or
compliance referred to in this Section 6.
24
<PAGE>
(h) Rule 144 Reporting. With a view to making available the benefits of
------------------
certain rules and regulations of the Commission which may permit the sale of the
restricted securities to the public without registration, the Company agrees to:
(A) make and keep public information available as those terms are
understood and defined in Rule 144 under the Securities Act, at all times
from and after the effective date of the first registration statement under
the Securities Act filed by the Company for an offering of its securities
to the general public;
(B) use its best efforts to file with the Commission in a timely
manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act at any time after it has become subject
to such reporting requirements; and
(C) so long as the Investor owns any Registrable Securities, furnish
to the Investor upon request a written statement by the Company as to its
compliance with the current information requirements of Rule 144 under the
Securities Act (at any time from and after the effective date of the first
registration statement filed by the Company for an offering of its
securities to the general public), a copy of the most recent annual or
quarterly report of the Company, and such other reports and documents filed
with the Commission pursuant to the reporting requirements of the Exchange
Act as the Investor may reasonably request in availing itself of any rule
or regulation of the Commission allowing the Investor to sell any such
securities without registration.
(i) "Market Stand-off" Agreement.
----------------------------
(i) If any registration of Common Stock (or other securities) of
the Company shall be in connection with an underwritten public offering, the
Investor agrees not to effect any sale or distribution of any Registrable
Securities, including any private placement or any sale pursuant to Rule 144A
under the Securities Act (or any successor provision) or otherwise or any sale
pursuant to Rule 144 under the Securities Act (or any successor provision),
other than by pro-rata distribution to its shareholders, partners or other
beneficial holders, and not to effect any such sale or distribution of any other
equity security of the Company or of any security convertible into or
exchangeable or exercisable for any equity security of the Company (in each
case, other than as part of such underwritten public offering) during the
anticipated ten calendar days prior to, and during the 90 calendar day period
(or such other period as may be agreed upon between the Investor and the
Representative) that begins on the effective date of such registration
statement, without the consent of the Representative; provided, however, that
written notice of such registration has been delivered to the Investor at least
two Business Days prior to the anticipated beginning of the ten calendar day
period referred to above.
(ii) If requested by the Representative the Investor shall execute a
separate agreement to the foregoing effect. The Company may impose stop-transfer
instructions with respect to the shares (or securities) subject to the foregoing
restriction until the end of said 90-day or other period. The provisions of
this Section 6(i) shall be
25
<PAGE>
binding upon any transferee who acquires Registrable Securities, including,
without limitation, any Permitted Affiliate Transferee of the Investor, the
Investor's shareholders, partners or other beneficial holders, if such
transferee is entitled to the registration rights provided hereunder. The
Company agrees that any agreement entered into after the date hereof pursuant to
which the Company issues or agrees to issue any privately placed equity
securities shall contain a provision under which the holders of such securities
agree not to effect any sale or distribution of any such securities during the
period and in the manner referred to in this Section 6(i)(ii).
(iii) If any registration of Registrable Securities shall be in
connection with an underwritten public offering, the Company agrees not to
effect any Public Sale of any of its equity securities or of any security
convertible into or exchangeable or exercisable for any equity security of the
Company (other than any such sale or distribution of such securities as part of
such public offering, in connection with any amalgamation, merger or
consolidation by the Company or any Subsidiary of the Company, the acquisition
by the Company or a Subsidiary of the Company of the shares or any assets of any
other Person, or in connection with a stock option, stock purchase or other
employee benefit plan) during the ten days prior to, and during the 90-day
period (or such other period as may be agreed upon between the Company and the
Representative) which begins on the effective date of such registration
statement without the consent of the Representative.
(j) Transfer. If the Investor shall have made a Transfer as permitted by
--------
the terms of this Agreement of an amount of Common Stock representing more than
10% of the Actual Voting Power, and unless the Investor shall have agreed
otherwise with the transferee of such Transfer (including for this purpose, such
transferee's Permitted Affiliate Transferees) (a "Transferee"), both the
Investor and the Transferee shall remain entitled, as to the shares of Common
Stock owned respectively by each of them, to the demand and piggyback
registration rights set forth in this Section 6, which shall survive such
Transfer. Unless agreed otherwise, all rights of the Investor under this
Section 6 with respect to such shares of Common Stock Transferred shall
terminate upon Transfer.
7. MISCELLANEOUS.
-------------
(a) Legends. In addition to any other legends required by applicable law,
-------
the Company's By-laws or any other agreement restricting the Transfer of the
Common Stock, each certificate evidencing the Common Stock acquired by the
Investor will bear a legend reflecting the restrictions on the transfer of such
shares contained in this Agreement and in the Subscription Agreement.
(b) Waiver; Amendments. 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 the Investor.
(c) Recapitalization, Exchanges, Etc. The provisions of this Agreement
---------------------------------
shall apply to the full extent set forth herein with respect to shares or other
securities of the
26
<PAGE>
Company that may be issued to the Investor in respect of, in exchange for, or in
substitution of the Common Stock.
(d) Specific Performance. 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 party hereto agrees that the other party, 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.
(e) Notices. All notices, requests, demands and other communications
-------
hereunder shall be in writing and, except to the extent otherwise expressly
provided in this Agreement, 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 the Investor, at the Investor's address appearing below or at any
other address the Investor may have provided in writing to the Company and (ii)
if to the Company, at 3650 131st Avenue S.E., Suite 400, Bellvue, WA 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 Investor in
writing, with a copy (which shall not constitute notice) to Friedman Kaplan &
Seiler LLP, 875 Third Avenue, New York, NY 10022, U.S.A., Tel: (212) 833-1100,
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.
The Investor:
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
27
<PAGE>
With a copy (which shall not constitute notice) to:
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
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
(f) Successors and Assigns. Except as otherwise provided herein, this
----------------------
Agreement shall inure to the benefit of, and be binding upon, the successors and
assigns of each of the parties; provided, however, that this Agreement may not
be assigned by any party hereto other than in compliance with the terms hereof.
(g) Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed an original and all of which
together shall be considered one and the same agreement.
(h) 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.
(i) 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 any suit, action or other proceeding arising out
of this Agreement shall be brought and litigated in the courts of the State of
New York or the United States District Court for the Southern District of New
York 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.
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<PAGE>
(j) Section Headings. The headings of the sections and subsections of this
----------------
Agreement are inserted for convenience only and shall not be deemed to
constitute a part thereof.
(k) 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.
(m) 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.
(n) 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.
(o) HTL. In the event the Investor shall elect to exercise its preemptive
---
rights under Section 5, HTL agrees to cause the Investor to perform its
obligations under such Section in accordance with their respective terms in
connection with any such purchases (including causing or enabling the Investor
to make payment).
29
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Investor
Agreement as of the date first above written.
HUTCHISON TELECOMMUNICATIONS
PCS (USA) LIMITED
/s/ Frank Sixt
_________________________________
Name: Frank Sixt
Title: Director
HUTCHISON TELECOMMUNICATIONS
LIMITED
/s/ Canning Fok
__________________________________
Name: Canning Fok
Title: Director
VOICESTREAM WIRELESS HOLDING
CORPORATION
/s/ Donald Guthrie
__________________________________
Name: Donald Guthrie
Title: Vice Chairman
30
