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EXHIBIT 10.1
AGREEMENT
THIS AGREEMENT (the "Agreement") is dated October 22, 1999, by and
among East/West Communications, Inc., a Delaware corporation ("East West"),
Omnipoint Corporation, a Delaware corporation ("Omnipoint"), VoiceStream
Wireless Corporation, a Washington corporation ("VoiceStream"), and VoiceStream
Wireless Holding Corporation, a Delaware corporation ("Holdings"). East West,
Omnipoint, VoiceStream, and Holdings shall be referred to herein as the
"Parties".
RECITALS
WHEREAS, concurrently herewith, East West and Omnipoint are
entering into an Agreement and Plan of Merger (the "Merger Agreement") pursuant
to which, among other things, East West will merge with and into Omnipoint (such
merger, together with the related transactions contemplated in the Merger
Agreement, being referred to herein as the "Merger");
WHEREAS, as a condition to its entering into the Merger Agreement,
East West has required that the Parties enter into this Agreement;
WHEREAS, it is desired that the Merger qualify as a tax-free
reorganization under Section 368(a) of the Internal Revenue Code of 1986, as
amended (the "Code");
AGREEMENT
NOW THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein, the parties hereto agree as follows:
1. Definitions. Capitalized terms used herein and not
otherwise defined have the meaning ascribed to such terms in the Merger
Agreement.
2. Consent to the Merger Agreement; Amendment of VoiceStream
Merger Agreement.
(a) Pursuant to Section 6.1 of the VoiceStream Merger
Agreement, VoiceStream hereby consents to the Merger Agreement and the
Transactions, including, without limitation, Article 11 of the Merger Agreement.
In addition, to the extent that the Merger is consummated after the VoiceStream
Merger, Holdings hereby agrees to cause Omnipoint to perform its obligations
under the Merger Agreement and the Transactions, and agrees to perform its
obligations under the Merger Agreement and the Transactions as if it were a
party thereto.
(b) Each of Omnipoint, VoiceStream and Holdings hereby
agrees to amend the VoiceStream Merger Agreement (the "Initial Amendment") as
soon as practicable after the date hereof, but in no event later than the
Effective Time, as may be necessary to effectuate the exchange of each Merger
Share that is issued and outstanding immediately after the Effective Time and
immediately prior to the effective time of the VoiceStream Merger for
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the right to receive the Standard Election Consideration (as defined in the
VoiceStream Merger Agreement) multiplied by the Conversion Ratio. The terms and
substance of the Initial Amendment shall be reasonably acceptable to East West.
(c) Following the Initial Amendment, unless the Merger
Agreement is terminated, each of Omnipoint, VoiceStream and Holdings hereby
agrees not to amend the VoiceStream Merger Agreement in a manner that would,
upon the effective time of the VoiceStream Merger, result in the failure of
holders of Series E Preferred Stock to receive the right to receive the Standard
Election Consideration multiplied by the Conversion Ratio, unless as a result of
such amendment the holders of Series E Preferred shall have the right to receive
the same consideration that the holders of Omnipoint Common Stock receive in
lieu of the Standard Election multiplied by the Conversion Ratio, assuming for
this paragraph that prior to such amendment, such holders of Omnipoint Common
Stock elected to receive the Standard Election Consideration and did not modify
such election.
3. Recapitalization of Omnipoint Preferred Stock. Prior to or
simultaneously with the consummation of the VoiceStream Merger, each of
VoiceStream and Omnipoint hereby agree that the Omnipoint Preferred Stock shall
be recapitalized in accordance with the terms set forth below (the
"Recapitalization"):
(a) The Certificate of Designation establishing the
designations, powers, preferences, limitations, restrictions, and relative
rights of the 7% Cumulative Convertible Preferred Stock of Omnipoint (the
"Convertible Preferred") shall be amended to provide that the Convertible
Preferred shall be entitled to 10,445,123 votes which is the number of votes
equal in the aggregate to the number of votes to which the number of whole
shares of the common stock of Omnipoint (the "Common Stock") into which such
shares of Convertible Preferred are convertible would be entitled with respect
to any and all matters presented to the stockholders of Omnipoint for their
action or consideration assuming a conversion price of $31.115 per share, and
shall vote with the holders of shares of the Common Stock and any other class of
stock entitled to vote and not as a separate class.
(b) The Certificate of Designation establishing the
designations, powers, preferences, limitations, restrictions, and relative
rights of the Series A Non-Voting Convertible Preferred Stock of Omnipoint (the
"Series A Convertible Preferred") shall be amended to provide that the Series A
Convertible Preferred shall be entitled to 8,750,000 votes which is the number
of votes equal in the aggregate to seven-tenths (7/10ths) the number of votes to
which the number of whole shares of Common Stock into which such shares of
Series A Convertible Preferred are convertible would be entitled with respect to
any and all matters presented to the stockholders of Omnipoint for their action
or consideration, and shall vote with the holders of shares of Common Stock and
any other class of stock entitled to vote and not as a separate class.
4. Reserved.
5. Representations, Warranties and Covenants of Holdings.
Holdings hereby represents, warrants and covenants to each of the other Parties
as follows:
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(a) Effect of Recapitalization and Conversion of Series
A Convertible Preferred. Assuming the validity of the Recapitalization under
applicable state law, as a result of the Recapitalization and the Transfer and
the Holdings Conversion, if applicable, immediately after the VoiceStream
Merger, Holdings (1) will directly own shares of the capital stock of Omnipoint
representing at least 80% of the total combined voting power of all outstanding
shares of all classes of Omnipoint stock, (the "80% Voting Power") (2) will
"control" Omnipoint within the meaning of Code Section 368(c) as in effect on
the date hereof and (3) has no current plan or intention to take, any action
that would result in Holdings owning less than the 80% Voting Power or take any
other action that would prevent Holdings from controlling Omnipoint subsequent
to the VoiceStream Merger within the meaning of Section 368(c) of the Code as in
effect on the date hereof.
(b) Holdings has no current plan or intention to dispose
of any of the capital stock of Omnipoint, provided, however, that Holdings may
transfer stock of Omnipoint to a single member limited liability company which
is treated as a disregarded entity (under Treas. Reg. Section 301.7701-3) for
federal income tax purposes.
(c) Provided that, at the later of the Effective Time of
the Merger and the effective time of the VoiceStream Merger if it occurs after
the Merger, the Merger qualifies as a reorganization within the meaning of Code
Section 368(a) as in effect on the date hereof, Holdings will not take or cause
Omnipoint to take, any action after such later time that would cause the Merger
to fail so to qualify.
6. Representation and Warranties of Omnipoint. Omnipoint
hereby represents and warrants to each of the Parties that: (i) as of the close
of business on October 19, 1999, Omnipoint had outstanding 53,857,909 shares of
Common Stock; (ii) as of the date hereof, Omnipoint has outstanding 12,500
shares of Series A Convertible Preferred, 50 percent of which is owned by
Xxxxxxxxx and 50 percent of which is owned by VoiceStream which is convertible
into 12,500,000 shares of Omnipoint Common Stock and 325,000 shares of
Convertible Preferred Stock, which is convertible into 10,445,123 shares of
Omnipoint Common Stock; and (iii) no action or consent on the part of Xxxxxxxxxx
Telecommunications PCS (USA) Limited or any other party (other than VoiceStream
and Omnipoint) is required to effect the Recapitalization.
7. Representations, Warranties and Covenants of VoiceStream.
VoiceStream hereby represents and warrants to each of the other parties that
VoiceStream holds 6,250 shares of Series A Convertible Preferred and has no
current plan or intention to dispose of any such shares or convert such shares
to Omnipoint Common Stock.
8. Reserved.
9. Effectiveness and Termination. It is a condition precedent
to the effectiveness of this Agreement that the Merger Agreement shall have been
executed and delivered and be in full force and effect. In the event the Merger
Agreement is terminated in accordance with its terms, this Agreement shall
automatically terminate and be of no further
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force or effect. Upon such termination, except for any rights any party may have
in respect of any breach by any other party of its or his obligations hereunder,
none of the parties hereto shall have any further obligation or liability
hereunder.
10. Miscellaneous.
(a) Amendments; No Waivers.
(i) Subject to applicable law, any provision of this
Agreement may be amended or waived, but only if such amendment or waiver is in
writing and is signed, in the case of an amendment, by each party to this
Agreement or, in the case of a waiver, by each party against whom the waiver is
to be effective.
(ii) No failure or delay by any party in exercising
any right, power or privilege hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise thereof preclude any other or further
exercise thereof, or the exercise of any other right, power or privilege. The
rights and remedies herein provided shall be cumulative and not exclusive of any
rights or remedies provided by law.
(b) Successors and Assigns. This Agreement shall be
binding upon and shall inure to the benefit of and be enforceable by the Parties
and their respective successors and assigns, including, without limitation, in
the case of any corporate party hereto any corporate successor by merger or
otherwise, and no Party shall assign its rights under this Agreement without the
written consent of the other Parties.
(c) Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of Delaware, without
regard to the conflicts of law rules of such State.
(d) Jurisdiction. Any suit, action or proceeding seeking
to enforce any provision of, or based on any matter arising out of or in
connection with, this Agreement or the transactions contemplated hereby shall be
brought in any federal court located in the State of Delaware or any Delaware
state court, and each of the parties hereby consents to the exclusive
jurisdiction of such courts (and of the appropriate appellate courts therefrom)
in any such suit, action or proceeding and irrevocably waives, to the fullest
extent permitted by law, any objection that it may now or hereafter have to the
laying of the venue of any such suit, action or proceeding in any such court or
that any such suit, action or proceeding brought in any such court has been
brought in an inconvenient forum. Process in any such suit, action or proceeding
may be served on any party anywhere in the world, whether within or without the
jurisdiction of any such court. Without limiting the foregoing, each party
agrees that service of process on such party as provided in Section 6.a shall be
deemed effective service of process on such party.
(e) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
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(f) Counterparts; Effectiveness. This Agreement may be
signed in any number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement shall become effective when each party hereto shall
have received counterparts hereof signed by all of the other parties hereto. No
provision of this Agreement is intended to confer any rights, benefits,
remedies, obligations or liabilities hereunder upon any Person other than the
parties hereto and their respective successors and assigns.
(g) Entire Agreement. This Agreement, together with the
Merger Agreement, constitutes the entire agreement between the parties with
respect to the subject matter of this Agreement and supersedes all prior
agreements and understandings, both oral and written, between the parties with
respect to such subject matter.
(h) VoiceStream Action. Notwithstanding anything to the
contrary contained in this Agreement, the Merger Agreement or any other
documents, agreements or other instruments entered into in connection herewith
(each, a "Related Agreement" and collectively, the "Related Agreements"), the
Parties hereby agree that (i) no provision contained herein or in any Related
Agreement shall be deemed to limit, restrict or prohibit Omnipoint, VoiceStream,
Holdings or any other party to any Related Agreement from taking (or failing to
take) any action, including but not limited to, any action permitted by the
VoiceStream Merger Agreement as amended from time to time at the sole discretion
of VoiceStream, Holdings and Omnipoint (except as provided in Section 2(c)
hereof) or any action which in its sole discretion it takes (or fails to take)
in order: (a) to consummate the transactions contemplated by the VoiceStream
Merger Agreement, as amended from time to time at the sole discretion of
VoiceStream and Omnipoint; (b) to fulfill or satisfy the conditions set forth in
Article 9 of the VoiceStream Merger Agreement; or (c) to ensure that the receipt
of VoiceStream Holdings Common Stock by Omnipoint stockholders pursuant to the
VoiceStream Merger will be tax-free to such Omnipoint stockholders (any such
action, a "VoiceStream Action"), and (ii) a VoiceStream Action shall not
constitute a breach of this Agreement or any Related Agreement or of any
representation, warranty, covenant or agreement contained herein or in any
Related Agreement if as a result of such VoiceStream Action there shall occur a
breach of any representation, warranty, covenant or agreement contained herein
or in any other Related Agreement, subject to Section 12.15(c) of the Merger
Agreement.
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(i) Captions. The captions herein are included for
convenience of reference only and shall be ignored in the construction or
interpretation hereof.
(j) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction or
other authority to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated
so long as the economic or legal substance of the transactions contemplated
hereby is not affected in any manner materially adverse to any party. Upon such
a determination, the parties shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner so that the transactions contemplated hereby be
consummated as originally contemplated to the fullest extent possible.
(k) Specific Performance. The parties hereto agree that
irreparable damage would occur if any provision of this Agreement were not
performed in accordance with the terms hereof and that the parties shall be
entitled to an injunction or injunctions to prevent breaches of this Agreement
or to enforce specifically the performance of the terms and provisions hereof in
any federal court located in the State of Delaware or any Delaware state court,
in addition to any other remedy to which they are entitled at law or in equity.
(l) Remedies Cumulative. All rights, powers and remedies
provided under this Agreement or otherwise available in respect hereof at law or
in equity shall be cumulative and not alternative, and the exercise or beginning
of the exercise of any thereof by any party shall not preclude the simultaneous
or later exercise of any other such right, power or remedy by such party.
(m) Limitation on Liability. No party hereto shall have
any liability hereunder for any actions or omissions of any other party hereto.
(n) Expenses. Each party hereto shall bear its own
expenses incurred in connection with this Agreement.
(o) Further Assurances. Each party hereto agrees that
such party shall execute and deliver such additional instruments and other
documents and shall take such further actions as may be necessary or appropriate
to effectuate, carry out and comply with all of their obligations under this
Agreement and to ensure that Holdings is in "control" of Omnipoint within the
meaning of Section 368(c) of the Code as in effect on the date hereof. Without
limiting the generality of the foregoing, none of the parties hereto shall enter
into any agreement or arrangement (or alter, amend or terminate any existing
agreement or arrangement) if such action would impair the ability of any party
to effectuate, carry out or comply with all the terms of this Agreement.
[Signatures on following pages.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed as of the day and year first above written.
EAST/WEST COMMUNICATIONS, INC.
By: /s/ XXXXXXXX X. XXXX
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Xxxxxxxx X. Xxxx
Chief Executive Officer
OMNIPOINT CORPORATION
By: /s/ XXXXXXX X. XXXXX
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Xxxxxxx X. Xxxxx
Chief Executive Officer
VOICESTREAM WIRELESS CORPORATION
By: /s/ XXXXX XXXXXXXX
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Name: Xxxxx Xxxxxxxx
Title: Executive Vice President
VOICESTREAM WIRELESS HOLDING CORPORATION
By: /s/ XXXXX XXXXXXXX
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Name: Xxxxx Xxxxxxxx
Title: Executive Vice President