Exhibit 1
VOTING AGREEMENT
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VOTING AGREEMENT, dated as of February 25, 2000 (this "Agreement"), by
and among VOICESTREAM WIRELESS HOLDING CORPORATION, a Delaware corporation
("VoiceStream Holdings"), and the individuals and entities set forth on Schedule
I hereto (each, a "Stockholder" and collectively, the "Stockholders").
WHEREAS, Omnipoint Corporation, a Delaware corporation ("Omnipoint"),
VoiceStream Wireless Corporation, a Washington corporation ("VoiceStream") and
VoiceStream Holdings are parties to an Agreement and Plan of Reorganization,
dated as of June 23, 1999, (as the same has been amended or may hereafter be
amended from time to time, the "Omnipoint Reorganization Agreement") pursuant to
which, among other things, wholly owned subsidiaries of VoiceStream Holdings
will be merged with and into each of Omnipoint and VoiceStream (such mergers,
together with the related transactions contemplated by the Omnipoint
Reorganization Agreement, being referred to herein collectively as the
"Omnipoint Reorganization");
WHEREAS, each Stockholder is the Beneficial Owner of the number of
shares of VoiceStream Holdings Common Stock (the "Shares") set forth opposite
such Stockholder's name in Schedule I hereto;
WHEREAS, VoiceStream and certain of the Stockholders are parties to
that certain Voting Agreement, dated May 3, 1999 (the "Original Voting
Agreement");
WHEREAS, as a condition to consummating the Omnipoint Reorganization,
the parties to the Original Voting Agreement have agreed to terminate the
Original Voting Agreement and enter into this Agreement;
WHEREAS, VoiceStream, VoiceStream Holdings, VoiceStream Subsidiary III
Corporation, a Delaware corporation ("Merger Sub"), Aerial Communications, Inc.,
a Delaware corporation ("Aerial"), and Telephone and Data Systems, Inc., a
Delaware corporation ("TDS"), are parties to an Agreement and Plan of
Reorganization, dated as of September 17, 1999 (as the same may be amended from
time to time, the "Aerial Reorganization Agreement") pursuant to which, among
other things, Merger Sub is to be merged with and into Aerial (such merger,
together with the related transactions contemplated by the Aerial Reorganization
Agreement, being referred to herein as the "Aerial Reorganization");
WHEREAS, upon the consummation of the Aerial Reorganization, it is
contemplated that TDS will execute an agreement whereby it will become a party
to this Agreement as a Stockholder and, if TDS does so execute such an
agreement, the term Stockholder will for all purposes of this Agreement include
TDS; and
WHEREAS, Sonera Corporation (formerly Sonera Ltd.) ("Sonera") is a
substantial investor in Aerial and, concurrent with the Omnipoint
Reorganization, will invest $500 million into
VoiceStream Holdings through its Subsidiary, Sonera Holding, B.V. For purposes
of this Agreement, Sonera Corporation and Sonera Holding, B.V., shall be deemed
a single Stockholder.
NOW THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein, the parties hereto agree as follows:
Section 1. Definitions. As used in this Agreement, the following terms
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have the meanings set forth below:
"Beneficially Own" has the meaning set forth in Rule 13d-3 of the
rules and regulations promulgated under the Securities Exchange Act of 1934, as
amended; except that no broker or dealer or any affiliate thereof shall be
deemed to Beneficially Own Shares, the beneficial ownership of which is acquired
in the ordinary course of the activities of a broker or dealer registered under
Section 15 of the Securities Exchange Act of 1934, as amended, including, but
not limited to, the acquisition of beneficial ownership of such securities as a
result of any market-making or underwriting activities (including any Shares
acquired for the investment account of a broker or dealer in connection with
such underwriting activities), or the exercise of investment or voting
discretion authority over any of its customer accounts, or the acquisition in
good faith of such securities in connection with the enforcement of payment of a
debt previously contracted.
"Board" means the Board of Directors of VoiceStream Holdings.
"BSF" means Bridge Street Fund 1992, L.P., a Delaware limited
partnership.
"Business Day" means a day other than a Saturday, Sunday or other day
on which commercial banks in New York City, Hong Kong or Seattle, Washington are
authorized or required by law to close.
"GS" means The ▇▇▇▇▇▇▇ ▇▇▇▇▇ Group, Inc., a Delaware corporation.
"GSC" means BSF, GS, GSCP and SSF.
"GSCP" means GS Capital Partners, L.P., a Delaware limited
partnership.
"HTL" means ▇▇▇▇▇▇▇▇▇ Telecommunications Limited, a corporation
organized under the laws of Hong Kong.
"▇▇▇▇▇▇▇▇▇" means ▇▇▇▇▇▇▇▇▇ Holdings and ▇▇▇▇▇▇▇▇▇ PCS.
"▇▇▇▇▇▇▇▇▇ Holdings" means ▇▇▇▇▇▇▇▇▇ Telecommunications Holdings (USA)
Limited, a British Virgin Islands corporation.
"▇▇▇▇▇▇▇▇▇ PCS" means ▇▇▇▇▇▇▇▇▇ Telecommunications PCS (USA) Limited,
a British Virgin Islands corporation.
"Immediate Family" means an individual's spouse, children (including
adopted children), grandchildren and parents.
"Percentage Ownership" means, as to any Stockholder, the aggregate
percentage of the outstanding Shares Beneficially Owned by such Stockholder,
including for this purpose, Shares Beneficially Owned by such Stockholder's
Permitted Affiliate Transferees.
"Permitted Affiliate Transferee" means (i) with respect to any
Stockholder who is a natural Person, any member of such Person's Immediate
Family, or any trust for the benefit of, or a partnership all of the partners of
which are, such Person and/or any member of such Person's Immediate Family; (ii)
with respect to any Stockholder which is a limited partnership (a) any Person
that, as of May 13, 1996, was the sole general partner of such Stockholder or
was the sole general partner of the sole general partner of such Stockholder, or
(b) another limited partnership which has a sole general partner, the control of
which sole general partner is held, directly or indirectly, by five (5) or fewer
natural Persons, provided such natural Persons had control at May 13, 1996 of
the sole general partner of such Stockholder; (iii) with respect to ▇▇▇▇▇▇▇▇▇,
(w) HTL, (x) any Subsidiary of HTL, or (y) any other entity acceptable to
Stockholders (other than ▇▇▇▇▇▇▇▇▇ and its Permitted Affiliate Transferees)
holding at least a majority of the Shares owned by all Stockholders (other than
▇▇▇▇▇▇▇▇▇ and its Permitted Affiliate Transferees) in which HTL owns, directly
or indirectly, more than 40% of the outstanding voting power, or (z) in the case
of any Person referred to in clause (w), (x) or (y), ▇▇▇▇▇▇▇▇▇; (iv) with
respect to Sonera, any Subsidiary of Sonera or any other entity acceptable to
Stockholders (other than Sonera and its Permitted Affiliate Transferees) in
which Sonera owns, directly or indirectly, more than 40% of the outstanding
voting power and of which Sonera and its Subsidiaries are collectively the
largest shareholder; and (v) with respect to TDS, any Subsidiary of TDS or any
other entity acceptable to Stockholders (other than TDS and its Permitted
Affiliate Transferees) in which TDS owns, directly or indirectly, more than 40%
of the outstanding voting power and of which TDS and its Subsidiaries are
collectively the largest shareholder. For purposes of this definition, "control"
shall mean ownership of at least 51% of the equity interest in, and at least 51%
of the voting power on all matters in, an entity or, if applicable, the sole
general partner of such entity.
"Person" means an individual, corporation, association, partnership,
trust or estate, an unincorporated organization, a joint venture, a government
or any agency or political subdivision thereof, or any other entity of whatever
nature.
"Qualified Sonera Designee" means an individual designated by Sonera,
provided that VoiceStream Holdings shall have the right to approve such
designee, which approval shall not be unreasonably withheld, so long as such
individual's membership on the Board shall not cause any violation of any
federal anti-trust law or any other federal or state law.
"Qualified TDS Designee" means an individual who is not an officer,
director, management level employee or affiliate (as defined in the Securities
Exchange Act of 1934) of TDS, or of any Person in which TDS or any affiliate of
TDS has an "attributable interest" (as defined by applicable FCC rules and
regulations) designated by TDS provided that VoiceStream Holdings shall have the
right to approve the designee, which approval shall not be unreasonably
withheld.
"Sonera" means Sonera Corporation, a limited liability company
organized under the laws of Finland, and its wholly-owned Subsidiaries,
including Sonera Holding, B.V., a company organized under the laws of the
Netherlands.
"Sonera Investor Agreement" means the Investor Agreement, dated as of
September 17, 1999, among Sonera Corporation, VoiceStream and VoiceStream
Holdings.
"SSF" means Stone Street Fund 1992, L.P., a Delaware limited
partnership.
"Subsidiary" means, as to any Person, another Person which is an
entity as to which such Person owns more than 50% of the outstanding voting
power.
"Transfer" means any sale, assignment, pledge, hypothecation, gift or
other transfer, disposition or encumbrance of any interest (and includes an
exchange of Shares in a merger, consolidation or similar transaction).
Section 2. Termination of Voting Agreements. The Original Voting
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Agreement and Sections 6(a) and 6(b) of the Sonera Investor Agreement
automatically and without further action by any Person shall each be terminated
and of no further force or effect upon the effectiveness of this Agreement.
Section 3. Agreement to Vote by Stockholders.
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(1) Each Stockholder (and its Permitted Affiliate Transferees) hereby
agrees to vote (or cause to be voted) all Shares, and any other voting
securities of VoiceStream Holdings, then Beneficially Owned by such Stockholder
(whether issued heretofore or hereafter) that such Stockholder owns or has the
right to vote, in person or by proxy (and shall take all other necessary or
desirable actions within such Stockholder's (or its Permitted Affiliate
Transferees') control, including attendance at meetings in person or by proxy
for purposes of obtaining a quorum and execution of written consents in lieu of
meetings), in favor of the election and continuation in office of the following
sixteen (16) (or, upon completion of the Aerial Reorganization, seventeen (17))
members of the Board (subject to adjustments to such number of directors, as
provided below):
(1) ▇▇▇▇ ▇▇▇▇▇▇▇, as long as he is the chief executive officer of
VoiceStream Holdings;
(2) One (1) member designated by ▇▇▇▇ ▇▇▇▇▇▇▇, so long as he or his
Permitted Affiliate Transferees Beneficially Own at least 4,500,000 Shares;
(3) Four (4) members designated by ▇▇▇▇▇▇▇▇▇ PCS (or if ▇▇▇▇▇▇▇▇▇ PCS
has Transferred all of its Shares to Permitted Affiliate Transferees of
▇▇▇▇▇▇▇▇▇ PCS, four (4) designees of such Permitted Affiliate Transferees) and
its affiliated entities. Such number of designees shall be subject to increases
or decreases (rounded to the nearest whole number and subject to Section 3(a)(C)
hereof) depending upon increases or reductions in ▇▇▇▇▇▇▇▇▇ PCS's (and its
Permitted Affiliate Transferees') Percentage Ownership of outstanding Shares,
including without limitation Shares issuable to ▇▇▇▇▇▇▇▇▇ PCS (and its Permitted
Affiliate Transferees) upon conversion of the 2.5% Convertible Junior Preferred
Stock, without par value, of VoiceStream Holdings, purchased by ▇▇▇▇▇▇▇▇▇ PCS
pursuant to that certain Stock Subscription Agreement dated June 23, 1999, by
and among VoiceStream Holdings, HTL and ▇▇▇▇▇▇▇▇▇ PCS. ▇▇▇▇▇▇▇▇▇ PCS shall have
the right to designate additional members (the Board shall be expanded by one
(1) member to accommodate each such new designee unless there are vacancies on
the Board and the Board determines to fill any vacancies with such designees) so
that the percentage of the entire Board represented by ▇▇▇▇▇▇▇▇▇ PCS's designees
(rounded to the nearest whole number) shall be proportionate to ▇▇▇▇▇▇▇▇▇ PCS's
(and its Permitted Affiliate Transferees') aggregate Percentage Ownership;
(4) One (1) member designated by GSC and its Permitted Affiliate
Transferees, so long as such entities Beneficially Own at least 4,500,000
Shares;
(5) Four (4) members who were on the Board of Directors of Omnipoint
prior to the Omnipoint Reorganization and who are selected by Omnipoint to serve
(the following persons have been designated by Omnipoint to serve as directors:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. and ▇▇▇▇▇ ▇. ▇▇▇▇; such
Persons being collectively referred to as the "Omnipoint Designees") during the
period from the closing of the Omnipoint Reorganization until and including the
second annual meeting of stockholders of VoiceStream Holdings taking place after
the closing of the Omnipoint Reorganization (it being understood that such four
(4) members shall serve until such time as the term of office of the directors
elected at such second annual meeting terminates);
(6) One (1) Qualified Sonera Designee designated by Sonera and its
Permitted Affiliate Transferees so long as such entities Beneficially Own at
least 4,500,000 Shares; provided, however, that if the Aerial Reorganization is
consummated and Sonera Beneficially Owns more than 9,800,000 Shares and TDS
Beneficially Owns less than 4,500,000 Shares, the number of Qualified Sonera
Designees that Sonera will be entitled to designate will be two (2);
(7) If the Aerial Reorganization is consummated and TDS and
VoiceStream Holdings execute the agreement in the form attached hereto as
Exhibit A whereby TDS becomes a party to this Agreement as a Stockholder, one
(1) Qualified TDS Designee designated by TDS and its Permitted Affiliate
Transferees so long as such entities Beneficially Own at least 4,500,000 Shares,
such director to be appointed to the Board by action of the Board by the later
of (x) the closing of the Aerial Reorganization or (y) promptly after TDS
designates a Qualified TDS
Designee; provided, however, that if TDS Beneficially Owns more than 9,800,000
Shares and Sonera Beneficially Owns less than 4,500,000 Shares, the number of
Qualified TDS Designees that TDS will be entitled to designate will be two (2);
and
(8) The remaining members of the Board as selected by a majority vote
of the persons selected as described in subsections (i) through (vii) above.
No designee to the Board shall be removed from the Board (except
removal for cause under applicable law) without the written consent of the
Stockholder or group of Stockholders that has the right to designate such Person
to the Board (or, if such Stockholder or group of Stockholders has Transferred
all of their Shares to Permitted Affiliate Transferees of such Stockholder or
group of Stockholders, without the written consent of Permitted Affiliate
Transferees holding a majority of the Shares owned by all of such Permitted
Affiliate Transferees), or, in the case of the Omnipoint Designees, without the
consent of a majority of the Board of Directors of Omnipoint as such Board of
Directors existed immediately prior to the Omnipoint Reorganization (the "Old
Omnipoint Board"). Any Stockholder or group of Stockholders (or, if such
Stockholder or group of Stockholders has Transferred all of their Shares to
Permitted Affiliate Transferees of such Stockholder or group of Stockholders,
Permitted Affiliate Transferees holding a majority of the Shares owned by all of
such Permitted Affiliate Transferees) or, in the case of the Omnipoint
Designees, a majority of the Old Omnipoint Board, that has the right to
designate any member(s) of the Board shall have the right to replace any
member(s) so designated by it (whether or not such member is removed from the
Board with or without cause or ceases to be a member of the Board by reason of
death, disability or for any other reason) upon written notice to VoiceStream
Holdings and the other members of the Board, which notice shall set forth the
name of the member(s) being replaced and the name of the new member(s). Each of
the Stockholders (and each of their respective Permitted Affiliate Transferees)
agrees that it will vote, or cause to be voted, all of the Shares then
Beneficially Owned by it (whether now owned or hereafter acquired ), in person
or by proxy (and shall take all other necessary or desirable actions within such
Stockholder's (or its Permitted Affiliate Transferees's) control including
attendance at meetings in person or by proxy for purposes of obtaining a quorum
and execution of written consents in lieu of meetings), so as to cause, if
necessary, the removal of the existing director previously elected by such
Stockholders (and its Permitted Affiliate Transferees), or previously designated
by Omnipoint (in the case of the original Omnipoint Designees) or by a majority
of the Old Omnipoint Board (if the Old Omnipoint Board designates a replacement
for an Omnipoint Designee, such replacement shall for all purposes of this
Agreement be an Omnipoint Designee), and the election and continuation in office
of any successor director designated by any of the Stockholders (or any of such
Stockholder's Permitted Affiliate Transferees) pursuant to this Section 3(a).
Notwithstanding the foregoing,
(A) if at any time GSC (and its Permitted Affiliate Transferees) shall
cease to Beneficially Own at least 4,500,000 Shares, then in such event, GSC
(or, if GSC has Transferred all of its Shares to Permitted Affiliate Transferees
of GSC, its Permitted Affiliate Transferees) shall not be entitled to designate
any member of the Board;
(B) if at any time ▇▇▇▇ ▇▇▇▇▇▇▇ (and his Permitted Affiliate
Transferees) shall cease to Beneficially Own at least 4,500,000 shares, then in
such event, ▇▇▇▇ ▇▇▇▇▇▇▇ (or, if ▇▇▇▇ ▇▇▇▇▇▇▇ has Transferred all of his Shares
to Permitted Affiliate Transferees of ▇▇▇▇ ▇▇▇▇▇▇▇, his Permitted Affiliate
Transferees) shall not be entitled to designate any member of the Board (except
that ▇▇▇▇▇▇▇ shall continue to serve on the Board for so long as he holds the
office of Chief Executive Officer of VoiceStream Holdings);
(C) if at any time ▇▇▇▇▇▇▇▇▇ PCS (and its Permitted Affiliate
Transferees) shall cease to Beneficially Own at least (i) 9,800,000 Shares, then
in such event ▇▇▇▇▇▇▇▇▇ PCS and its Permitted Affiliate Transferees shall be
entitled to designate only one member of the Board; and (ii) 4,500,000 Shares,
then in such event, ▇▇▇▇▇▇▇▇▇ PCS and its Permitted Affiliate Transferees shall
not be entitled to designate any member of the Board. In addition, if ▇▇▇▇▇▇▇▇▇
PCS shall have designated additional director(s) by reason of an increase in its
Percentage Ownership as set forth in Section 3(a)(iii) above, and at any time
thereafter the Percentage Ownership of ▇▇▇▇▇▇▇▇▇ PCS (and its Permitted
Affiliate Transferees) shall decrease, (i) the number of designees ▇▇▇▇▇▇▇▇▇ PCS
(and its Permitted Affiliate Transferees) are entitled to designate to the Board
shall be reduced so that the percentage of the entire Board represented by
▇▇▇▇▇▇▇▇▇ PCS's (and its Permitted Affiliate Transferees') designees (rounded to
the nearest whole number) shall be proportionate to ▇▇▇▇▇▇▇▇▇ PCS's (and its
Permitted Affiliate Transferees') aggregate Percentage Ownership, (ii) any
members designated by ▇▇▇▇▇▇▇▇▇ PCS (and its Permitted Affiliate Transferees) in
excess of such number shall be removed from the Board (any such members to be
removed to be designated by ▇▇▇▇▇▇▇▇▇ or, in the event that ▇▇▇▇▇▇▇▇▇ fails to
designate the members to be removed, by a majority of the members of the Board),
and (iii) the Board shall be reduced in size by the number of members so
removed;
(D) if at any time Sonera (and its Permitted Affiliate Transferees)
shall cease to Beneficially Own at least (i) 9,800,000 Shares at a time when
Sonera is entitled to designate two (2) directors, then in such event, Sonera
(or, if Sonera has Transferred all of its Shares to Permitted Affiliate
Transferees of Sonera, its Permitted Affiliate Transferees) shall be entitled to
designate only one (1) member of the Board; and (ii) 4,500,000 Shares, then in
such event, Sonera (or, if Sonera has Transferred all of its Shares to Permitted
Affiliate Transferees of Sonera, its Permitted Affiliate Transferees) shall not
be entitled to designate any member of the Board;
(E) if the Aerial Reorganization is consummated and TDS and
VoiceStream Holdings execute an agreement in the form attached hereto as Exhibit
A whereby TDS becomes a party to this Agreement as a Stockholder, and at any
time thereafter TDS (and its Permitted Affiliate Transferees) shall cease to
Beneficially Own at least (i) 9,800,000 Shares at a time when TDS is entitled to
designate two (2) directors, then in such event, TDS (or, if TDS has Transferred
all of its Shares to Permitted Affiliate Transferees of TDS, its Permitted
Affiliate Transferees) shall be entitled to designate only one (1) member of the
Board; and (ii) 4,500,000 Shares, then in such event, TDS (or, if TDS has
Transferred all of its Shares to Permitted Affiliate Transferees of TDS, its
Permitted Affiliate Transferees) shall not be entitled to designate any member
of the Board;
(F) Any vacancies on the Board created by reason of the provisions of
subsections (A) through (E) above shall be filled by the vote of a majority of
the directors then in office (unless such directors determine to reduce the size
of the Board after a vacancy is created) to serve until the next annual meeting
of shareholders of VoiceStream Holdings, and at the next annual meeting shall be
filled by a vote of a plurality of all shareholders of VoiceStream Holdings
(including the Stockholders and their Permitted Affiliate Transferees);
provided, however, that in the event that the size of the Board shall have
increased by reason of ▇▇▇▇▇▇▇▇▇ PCS having the right to designate additional
director(s) and thereafter ▇▇▇▇▇▇▇▇▇ PCS shall cease to have the right to so
designate such additional director(s), the size of the Board shall be
appropriately reduced and each of the Stockholders (and each of their respective
Permitted Affiliate Transferees ) agrees that it will vote, or cause to be
voted, all of the Shares then Beneficially Owned by it (whether now owned or
hereafter acquired), in person or by proxy (and, shall take all other necessary
or desirable actions within such Stockholder's (or its Permitted Affiliate
Transferees') control including attendance at meetings in person or by proxy for
purposes of obtaining a quorum and execution of written consents in lieu of
meetings), to cause such reduction in the Board.
(G) Notwithstanding anything to the contrary contained in this
Agreement, ▇▇▇▇▇▇▇▇▇'▇ right to transfer its right to designate directors to
certain block transferees as set forth in Sections 14 and 15 of the Shareholders
Agreement of VoiceStream Wireless Corporation, dated February 17, 1998, as
amended, among Western Wireless Corporation, a Washington corporation,
VoiceStream and ▇▇▇▇▇▇▇▇▇ PCS, shall continue in full force and effect until
terminated in accordance with the terms of such Shareholders Agreement.
(2) Notwithstanding anything to the contrary herein, if a Stockholder
shall cease to have the right to designate any director to the Board pursuant to
this Agreement, such Stockholder shall be released in full from all obligations
and shall cease to have any rights under this Agreement; provided, however, that
at the time that the Omnipoint Designees no longer serve on the Board and there
is no further obligation to designate Omnipoint Designees under Section 3(a)(v)
hereof, the following Persons shall be released in full from all obligations and
shall cease to have any rights under this Agreement: ▇▇▇▇▇ & Company
Incorporated, Avance Capital, Avance Capital II, Avance Capital III, Madison
Dearborn Capital Partners, L.P., ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇ Grat, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇, as Trustee.
Section 4. VoiceStream Holdings and Stockholder Covenants.
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(1) VoiceStream Holdings hereby agrees to use all reasonable efforts
to give effect to the provisions of Section 3 hereof. In this regard,
VoiceStream Holdings shall, subject to the provisions of Section 3 hereof, duly
nominate the designees set forth above, or as may otherwise be designated by a
party hereto pursuant to the terms of Section 3 hereof, for election to the
Board and shall include in any proxy solicitation materials related to the
election of members of the Board such information and recommendations of the
Board as are appropriate, in proxy solicitation materials.
(2) Each Stockholder shall vote the Shares then Beneficially Owned by
such Stockholder at any regular or special meeting of the Stockholders or in any
written consent executed in lieu of such a meeting of Stockholders for the
election of such designees. VoiceStream Holdings and each Stockholder shall take
all other actions necessary to ensure that the certificate of incorporation and
by-laws of VoiceStream Holdings or any successor constituent documents as in
effect immediately following the date hereof do not, at any time thereafter,
conflict in any respect with the provisions of this Agreement.
(3) At the closing of the Aerial Reorganization, TDS and VoiceStream
Holdings shall enter into the agreement attached hereto pursuant to which TDS
shall become a party to this Agreement, provided that nothing in this Agreement
shall in any way limit, amend or modify any of the terms or provisions of the
Investor Agreement to be entered into among TDS, VoiceStream Holdings and
VoiceStream at such time.
Section 5. Representations and Warranties of VoiceStream Holdings.
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VoiceStream Holdings represents and warrants to each Stockholder as follows: (i)
it has full power and authority to execute, deliver and perform its obligations
under this Agreement; (ii) this Agreement and all transactions contemplated
hereby have been duly and validly authorized by all necessary action on its
part, this Agreement has been duly executed and delivered by it, and this
Agreement constitutes its legal, valid and binding obligation enforceable
against VoiceStream Holdings in accordance with its terms, except as may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium and
other similar laws of general application which may affect the enforcement of
creditors' rights generally and by general equitable principles; and (iii)
neither the execution, delivery or performance of this Agreement by it, nor the
consummation of the transactions contemplated hereby will, with or without the
giving of notice or passage of time or both conflict with, result in a default
or loss of rights (or give rise to any right of termination, cancellation or
acceleration) under, (A) any provision of the certificate of incorporation, by-
laws, partnership agreement or comparable constituent document of it, (B) any
material note, bond, indenture, mortgage, deed of trust, contract, agreement,
lease or other instrument or obligation to which it is a party or by which it or
its properties may be bound or affected or (C) any law, order, judgment,
ordinance, rule, regulation or decree to which it is a party or by which it or
any of its properties are bound or affected.
Section 6. Representations and Warranties of the Stockholders.
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Each Stockholder, severally, as to such Stockholder, represents and
warrants to the other parties as follows:(i) such Stockholder has full power and
authority to execute, deliver and perform such Stockholder's obligations under
this Agreement; (ii) this Agreement and all transactions contemplated hereby
have been duly and validly authorized by all necessary action on such
Stockholder's part, this Agreement has been duly executed and delivered by such
Stockholder, and this Agreement constitutes such Stockholder's legal, valid and
binding obligation enforceable against such Stockholder in accordance with its
terms, except as may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium and other similar laws of
general application which may affect the enforcement of creditors' rights
generally and by general equitable principles; (iii) neither the execution,
delivery or performance of this Agreement by such Stockholder, nor the
consummation of the transactions contemplated hereby will, with or without the
giving of notice or passage of time or both conflict with, result in a default
or loss of rights (or give rise to any right of termination, cancellation or
acceleration) under, (A) if such Stockholder is an entity, any provision of the
certificate of incorporation, by-laws, partnership agreement or comparable
constituent document of such Stockholder, (B) any material note, bond,
indenture, mortgage, deed of trust, contract, agreement, lease or other
instrument or obligation to which such Stockholder is a party or by which such
Stockholder or such Stockholder's properties may be bound or affected or (C) any
law, order, judgment, ordinance, rule, regulation or decree to which such
Stockholder is a party or by which such Stockholder or any of such Stockholder's
properties are bound or affected; and (iv) the Shares listed next to the name of
such Stockholder on Schedule I hereto are the only voting securities of
VoiceStream Holdings Beneficially Owned by such Stockholder.
Section 7. Effectiveness and Termination. This Agreement shall be
-----------------------------
effective as of the effectiveness of the Omnipoint Reorganization and shall
terminate upon the earliest to occur of any of the following events:
(1) Upon agreement by all Stockholders then retaining the right to
designate directors under this Agreement and, so long as Omnipoint Designees are
to be designated or are serving pursuant to Section 3(a)(v) hereof, by the
Omnipoint Designees or the Old Omnipoint Board; or
(2) The filing by VoiceStream Holdings of a petition in bankruptcy or
the expiration of sixty (60) days after a petition in bankruptcy shall have been
filed against VoiceStream Holdings and such petition shall not have been stayed
or discharged during such sixty (60) day period; or upon the expiration of sixty
(60) days after the commencement of any proceeding under any law for the relief
of debtors seeking the relief or readjustment of VoiceStream Holdings'
indebtedness either through reorganization, winding-up, extension or otherwise,
and such proceedings involving VoiceStream Holdings as debtor shall not have
been vacated or stayed within such sixty (60) day period; or upon the
appointment of a receiver, custodian or trustee for all or substantially all of
VoiceStream Holdings' property, or the making of VoiceStream Holdings of any
general assignment for the benefit of creditors, or the admitting in writing by
VoiceStream Holdings of its inability to pay its debts as they mature; or upon
the voluntary or involuntary liquidation or dissolution of VoiceStream Holdings;
or
(3) The Beneficial Ownership of all of the Shares by only one
Stockholder (including its Permitted Affiliate Transferees).
Upon such termination, except for any rights any party may have in respect of
any breach by any other party of its or his obligations hereunder, none of the
parties hereto shall have any further obligation or liability hereunder.
Section 8. Miscellaneous.
-------------
(1) This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their Permitted Affiliate Transferees. Each of the
Stockholders hereby agrees that prior to any Transfer of any Shares to a
Permitted Affiliate Transferee, such Permitted Affiliate Transferee shall
execute a counterpart of this Agreement agreeing to be bound by the provisions
of this Agreement. No Transfer to a Permitted Affiliate Transferee shall be
effective unless such Permitted Affiliate Transferee has executed such
counterpart of this Agreement. Except as set forth above with respect to
Transfers to Permitted Affiliate Transferees, nothing in this Agreement shall
prohibit the Transfer of Shares by any of the Stockholders.
(2) Each of the parties hereto acknowledges and agrees that, in the
event of any breach of this Agreement, the non-breaching parties would be
irreparably harmed and could not be made whole by monetary damages. Accordingly,
each of the parties hereto agrees that the other parties, in addition to any
other remedy to which they may be entitled at law or in equity, shall be
entitled to compel performance of this Agreement pursuant to Section 8(m).
(3) The headings in this Agreement are for convenience only and shall
not be considered a part of or affect the construction or interpretation of any
provision of this Agreement.
(4) All notices, requests, demands and other communications hereunder
shall be in writing and shall be deemed to have been duly given if delivered by
same day or next day (or equivalent with respect to delivery outside the United
States) courier (guaranteed delivery) or telex or facsimile (i) if to a
Stockholder, at such Stockholder's address appearing on Schedule I hereto or at
any other address that such Stockholder may have provided in writing to
VoiceStream Holdings and the other Stockholders then party to this Agreement and
(ii) if to VoiceStream Holdings, at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇.▇.▇., Tel: ▇▇▇-▇▇▇-▇▇▇▇, Fax: ▇▇▇-▇▇▇-▇▇▇▇; Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇,
Esq. or such other address as VoiceStream Holdings may have furnished to the
Stockholders in writing, with a copy (which shall not constitute notice) to
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇, Tel:
▇▇▇-▇▇▇-▇▇▇▇, Fax: ▇▇▇-▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq. If a notice
hereunder is transmitted by confirmed fax so as to arrive during normal business
hours during a Business Day at the place of receipt, then such notice shall be
deemed to have been given on such Business Day at the place of receipt or, if so
transmitted to arrive after normal business hours during a Business Day at the
place of receipt, then such notice shall be deemed to have been given on the
following Business Day at the place of receipt. If such notice is sent by next-
day courier or equivalent, it shall be deemed to have been given on the third
Business Day at the place of receipt following sending provided, that the date
of sending shall be deemed to be the date at the place of receipt at the time
such notice is posted.
(5) The provisions of this Agreement shall apply, to the full extent
set forth herein with respect to the Shares now or hereinafter owned by each
Stockholder (and its Permitted Affiliate Transferees), to any and all securities
of VoiceStream Holdings or any successor or assign
of VoiceStream Holdings (whether by merger, consolidation or otherwise) that may
be issued in respect of, in exchange for, or in substitution of such Shares, and
shall be appropriately adjusted for any stock dividends, stock splits, reverse
splits, combinations, recapitalizations and similar events occurring after the
date hereof.
(6) Copies of this Agreement will be available for inspection or
copying by any interested Person at the offices of VoiceStream Holdings through
the Secretary of VoiceStream Holdings. VoiceStream Holdings will otherwise take
all actions as may be necessary or appropriate to comply with any applicable law
relating to the validity and enforceability of shareholders agreements
containing the provisions of this Agreement.
(7) Except as expressly provided otherwise herein, neither this
Agreement nor any provision hereof may be changed, waived, discharged or
terminated orally, but only by an instrument in writing signed by VoiceStream
Holdings and each of the Stockholders. The failure of any party hereto to give
notice of the breach or non-fulfillment of any term or condition of this
Agreement shall not constitute a waiver thereof, nor shall the waiver of any
breach or non-fulfillment of any term or condition of this Agreement constitute
a waiver of any other breach or non-fulfillment of that term or condition or any
other term or condition of this Agreement.
(8) This Agreement may be amended or modified at any time by a writing
setting forth such amendment or modification, signed by VoiceStream Holdings and
by Stockholders (or their Permitted Affiliate Transferees) owning in the
aggregate at least 90% of the Shares owned by the Stockholders (and their
Permitted Affiliate Transferees); provided, however, that, unless such amendment
is signed by VoiceStream Holdings and by each Stockholder (or its Permitted
Affiliate Transferees) adversely affected by such amendment, no such amendment
or modification shall eliminate any right of any Stockholder (or its Permitted
Affiliate Transferees) or, in the case of the Omnipoint Designees, the Old
Omnipoint Board, to designate the member or members of the Board it is entitled
to designate in accordance with Section 3 hereof (it being understood and agreed
that this clause shall not prohibit the enlargement of the Board).
(9) This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original, and all of which together shall be
considered one and the same agreement.
(10) The obligations of each of the Stockholders under this Agreement
shall be several with respect to each such Stockholder.
(11) This Agreement constitutes the entire understanding of the
parties hereto with respect to this subject matter hereof and supersedes all
prior understandings among such parties with respect to such subject matter.
(12) The validity of this Agreement, its construction, interpretation
and enforcement, and the rights of the parties hereunder, shall be determined
under, governed by and
construed in accordance with the internal laws of the State of New York
applicable to contracts formed and performed entirely in such state. Each party
hereto agrees that, subject to Section 8(m) hereof, any suit, action or other
proceeding arising out of this Agreement shall be brought and litigated in the
courts of the State of Washington or the United States District Court for the
Western District of Washington and each party hereto hereby irrevocably consents
to personal jurisdiction and venue in any such court and hereby waives any claim
it may have that such court is an inconvenient forum for the purposes of any
such suit, action or other proceeding.
(13) Any and all disputes, controversies or claims (each a "Dispute")
between the Stockholders relating to the interpretation or enforcement or
performance of this Agreement shall be resolved by binding arbitration by the
American Arbitration Association in accordance with its rules, subject to the
following provisions:
(1) There shall be three arbitrators (the "Arbitrators") which
shall be appointed in accordance with the procedure of the American Arbitration
Association.
(2) The expenses of the arbitration shall be borne equally by the
Stockholders involved in the arbitration, and each party shall bear its own
legal fees and expenses; provided, however, that the Arbitrators shall have
discretion to require that one party pay all or a portion of the expenses of
arbitration or the other party's legal fees and expenses in connection with any
particular arbitration.
(3) The Arbitrators shall determine whether and to what extent any
party shall be entitled to damages or equitable relief. No party shall be
entitled to punitive damages or consequential damages or shall be required to
post a bond in connection with equitable relief.
(4) The Arbitrators shall not have the power to add to nor modify
any of the terms or conditions of this Agreement. The Arbitrators' decision
shall not go beyond what is necessary for the interpretation and application of
the provisions of this Agreement in respect of the issue before the Arbitrators.
The Arbitrators' decision and award or permitted remedy, if any, shall be based
upon the issue as drafted and submitted by the respective parties and the
relevant and competent evidence adduced at the hearing(s).
(5) The Arbitrators shall have the authority to award any remedy
or relief provided for in this Agreement, in addition to any other remedy or
relief (including provisional remedies and relief) that a court of competent
jurisdiction could order or grant (but subject to the remedial limitations,
elsewhere set forth in this Agreement, including, but without limitation, the
aforesaid prohibition against punitive and consequential damages). The
Arbitrators written decision shall be rendered within sixty (60) days of the
hearing. The decision reached by the Arbitrators shall be final and binding upon
the parties as to the matter in dispute. To the extent that the relief or remedy
granted by the Arbitration is relief or remedy on which a court could enter
judgment, a judgment upon the award rendered by the Arbitrators may be entered
in any court having jurisdiction thereof (unless in the case of an award of
damages, the full amount of the award is paid within ten
(10) days of its determination by the Arbitrators). Otherwise, the award shall
be binding on the parties in connection with their continuing performance of
this Agreement and in any subsequent arbitral or judicial proceeding between the
parties.
(6) The arbitration shall take place in Seattle, Washington, unless
otherwise agreed by the parties, and shall be conducted in the English language.
(7) The arbitration proceeding and all filing, testimony, documents
and information relating to or presented during the arbitration proceeding shall
be disclosed exclusively for the purpose of facilitating the arbitration process
and for no other purpose.
(8) The parties shall continue performing their respective
obligations under this Agreement notwithstanding the existence of a Dispute
while the Dispute is being resolved unless and until such obligations are
terminated, expire or are suspended in accordance with the provisions hereof.
(9) The Arbitrators may, in their sole discretion, order a pre-hearing
exchange of information including production of documents, exchange of summaries
of testimony or exchange of statements of position, and shall schedule promptly
all discovery and other procedural steps and otherwise assume case management
initiative and control to effect an efficient and expeditious resolution of the
Dispute. At any oral hearing of evidence in connection with an arbitration
proceeding, each party and its counsel shall have the right to examine its
witnesses and to cross-examine the witnesses of the other party. No testimony of
any witness shall be presented in written form unless the opposing party or
parties shall have the opportunity to cross-examine such witness, except as the
parties otherwise agree in writing.
(10) Notwithstanding the dispute resolution procedures contained in
this Section 8(m), either party may apply to any court having jurisdiction (a)
to enforce this Agreement to arbitrate, (b) to seek provisional injunctive
relief so as to maintain the status quo until the arbitration award is rendered
or the Dispute is otherwise resolved, or (c) to challenge or vacate any final
judgment, award or decision of the Arbitrators that does not comport with the
express provisions of this Section 8(m).
(14) The failure of any party to seek redress for violation of, or to
insist upon the strict performance of , any provision of this Agreement shall
not prevent a subsequent act, which would have originally constituted a
violation, from having the effect of an original violation.
(15) The rights and remedies provided by this Agreement are cumulative
and the use of any one right or remedy by any party shall not preclude or waive
its right to use any or all other remedies except as otherwise expressly
provided in this Agreement. Such rights and remedies are given in addition to
any other rights the parties may have by law, statute, ordinance or otherwise.
(16) The invalidity or unenforceability of any particular provision of
this Agreement shall not affect the other provisions hereof, and this Agreement
shall be construed in all respects as if such invalid or unenforceable provision
were omitted.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
VOICESTREAM WIRELESS HOLDING CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chairman and Chief Executive Officer
Stockholders:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
PN Cellular, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Treasurer
▇▇▇▇▇▇▇ Family Trust
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Trustee
▇▇▇▇▇▇▇ Communications Corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Treasurer
GS Capital Partners, L.P.
By: GS Advisors L.L.C., General Partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
The ▇▇▇▇▇▇▇ ▇▇▇▇▇ Group, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
Title: Attorney-in-Fact
Bridge Street Fund 1992, L.P.
By: Stone Street 1992 L.L.C., Managing General Partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇.▇.
By: Stone Street 1992 L.L.C., General Partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇▇▇ Telecommunications Holdings (USA) Limited
By: /s/ Canning Fok
------------------------------------------
Name: Canning Fok
Title: Director
▇▇▇▇▇▇▇▇▇ Telecommunications PCS (USA) Limited
By: /s/ ▇▇▇▇▇ ▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Director
▇▇▇▇▇ & COMPANY INCORPORATED
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Manager
MADISON DEARBORN CAPITAL
PARTNERS, L.P.
By: Madison Dearborn Partners, L.P.,
its General Partner
By: Madison Dearborn Partners, Inc.
its General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Manager
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
AVANCE CAPITAL
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Sole Proprietor
AVANCE CAPITAL II
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Sole Proprietor
AVANCE CAPITAL III
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Sole Proprietor
▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
1995 FAMILY TRUST
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Trustee
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ U/T/A, DATED MARCH 4, 1994
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Trustee
▇▇▇▇▇ ▇. ▇▇▇▇ U/T/A, DATED JUNE 18, 1997
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Trustee
SONERA CORPORATION
By: /s/ Olli ▇. ▇▇▇▇▇▇▇▇
---------------------------------------------
Name: Olli T. Touhimaa
Title: Attorney in Fact
SONERA HOLDING, B.V.
By: /s/ Olli ▇. ▇▇▇▇▇▇▇▇
---------------------------------------------
Name: Olli T. Touhimaa
Title: Attorney in Fact
SCHEDULE I
Stockholders
------------
-------------------------------------------------------------------------------
Name and Address of Stockholder Number of Shares
-------------------------------------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 2,930,136
c/o VoiceStream Wireless Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇.▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
-------------------------------------------------------------------------------
PN Cellular, Inc. 1,686,069
c/o VoiceStream Wireless Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇.▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Family Trust 164,437
c/o VoiceStream Wireless Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇.▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Communications Corporation 1,274,520
c/o VoiceStream Wireless Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇.▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
-------------------------------------------------------------------------------
GS Capital Partners, L.P. 8,986,738
c/o Goldman, Sachs & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
-------------------------------------------------------------------------------
The ▇▇▇▇▇▇▇ Sachs Group, Inc. 68,821
c/o Goldman, ▇▇▇▇▇ & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
-------------------------------------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇.▇. 273,069
c/o Goldman, ▇▇▇▇▇ & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
-------------------------------------------------------------------------------
Stone Street Fund 1992, L.P. 470,401
c/o Goldman, ▇▇▇▇▇ & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
-------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇ Telecommunications PCS (USA) Limited 52,010,364
(Which includes 26,227,586
c/o Offshore Incorporations Limited shares of Common stock issuable
▇.▇. ▇▇▇ ▇▇▇ upon conversion of theCompany's
Offshore Incorporations Centre 2.5% Junior Convertible
Road Town, Tortola Preferred Stock)
British Virgin Islands
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
and:
c/▇ ▇▇▇▇▇▇▇▇▇ Telecommunications Limited
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇
Fax: ▇▇▇-▇▇▇▇-▇▇▇▇
-------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇ Telecommunications Holdings (USA) Limited 3,888,888
c/o Offshore Incorporations Limited
P.O. Box 957
Offshore Incorporations Centre
Road Town, Tortola
British Virgin Islands
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Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
and:
c/▇ ▇▇▇▇▇▇▇▇▇ Telecommunications Limited
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇
Fax: ▇▇▇-▇▇▇▇-▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 1,196,398
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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Avance Capital 2,220,266
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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Avance Capital II 750,000
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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Avance Capital III 375,000
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ 519,482
1995 Family Trust
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Trustee
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 317,368
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇. ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
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▇▇▇▇▇ & Company Incorporated 2,290,522
c/o ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Managing Director
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. 50,874
Madison Dearborn Capital Partners, LP
Three First ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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Madison Dearborn Capital Partners, LP 3,232,149
c/o ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., Managing Director
Three First ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇ 582,445
c/o ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇, as Trustee,
of ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ U/T/A, An Aggregate of 145,950
dated March 4, 1994
c/o ▇▇▇▇▇▇ ▇▇▇▇ Stone ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇, as Trustee, of ▇▇▇▇▇ ▇. ▇▇▇▇ U/T/A, dated
June 18, 1997
c/o ▇▇▇▇▇▇ ▇▇▇▇ Stone ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
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Sonera Corporation
▇.▇. ▇▇▇ ▇▇▇
▇▇▇-▇▇▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇
Attn: Kaj-▇▇▇▇ ▇▇▇▇▇▇▇▇, Executive Vice President
Facsimile: 011 358 2040 3770
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Sonera Holding, B.V. 8,792,555
c/o Sonera Corporation
▇.▇. ▇▇▇ ▇▇▇
▇▇▇-▇▇▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇
Attn: Kaj-▇▇▇▇ ▇▇▇▇▇▇▇▇, Executive Vice President
Facsimile: 011 358 2040 3770
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Upon the execution and delivery of the attached agreement, the following
Stockholder shall become a party to this Agreement.
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Telephone and Data Systems, Inc. [Number of Shares shall be as set
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ forth on the agreement attached
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ hereto as Exhibit A.]
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., President
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
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Exhibit A to
Voting Agreement
AGREEMENT
AGREEMENT, dated as of __________, 2000, by and between VOICESTREAM
WIRELESS CORPORATION (f/k/a VoiceStream Wireless Holding Corporation), a
Delaware corporation ("VoiceStream"), and TELEPHONE AND DATA SYSTEMS, INC., a
Delaware corporation ("TDS");
WHEREAS, VoiceStream has entered into a Voting Agreement ("Voting
Agreement") dated as of February 25, 2000, together with certain stockholders of
VoiceStream set forth on Schedule I thereof ("Stockholders");
WHEREAS, all capitalized terms used herein and not otherwise defined
shall have the meanings set forth in the Voting Agreement;
WHEREAS, in the Voting Agreement, the Stockholders and VoiceStream
have agreed that, at the time of the closing of the Aerial Reorganization, TDS
and VoiceStream shall execute and deliver this Agreement to evidence the
admission of TDS as a party to the Voting Agreement;
WHEREAS, the Aerial Reorganization is being consummated concurrently
with the execution of this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein, the parties hereto agree as follows:
1. TDS hereby accepts and agrees to all of the terms and conditions of
the Voting Agreement and agrees to become a party to the Voting
Agreement as a Stockholder effective immediately.
2. The Voting Agreement shall not in any way limit, amend or modify any
of the terms or provisions of the Investor Agreement dated the date
hereof among TDS, VS Washington Corporation and VoiceStream.
3. VoiceStream, by action of its Board of Directors, shall appoint a
Qualified TDS Designee to the Board of Directors of VoiceStream on the
later of (i) the date hereof or (ii) promptly after TDS designates a
Qualified TDS Designee.
4. This Agreement shall become effective as of the Effective Time of the
Aerial Reorganization and shall supersede the Parent Stockholder
Agreement, dated as of September 17, 1999, among Aerial, TDS,
VoiceStream and VS Washington Corporation (f/k/a VoiceStream Wireless
Corporation) and the individuals and entities set forth on Schedule I
thereto, which shall terminate by its terms at such time.
5. The number of Shares Beneficially Owned by TDS as of the date of this
Agreement is _______ Shares.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
VOICESTREAM WIRELESS CORPORATION
By: ___________________________________________
Name:
Title:
TELEPHONE AND DATA SYSTEMS, INC.
By: ___________________________________________
Name:
Title:
