-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, MSJrsMhgaXGHul888WtJHNfoErocZwTSc5IH9GfWvnQ5pbJv3Vlt/ilZRlIbNdrN fvDFTPhFGAQ/VNySzGDOWw== 0000891020-99-001105.txt : 19990629 0000891020-99-001105.hdr.sgml : 19990629 ACCESSION NUMBER: 0000891020-99-001105 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19990628 GROUP MEMBERS: JOHN W. STANTON GROUP MEMBERS: STANTON JOHN W GROUP MEMBERS: THERESA E. GILLESPIE SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: VOICESTREAM WIRELESS CORP CENTRAL INDEX KEY: 0001080357 STANDARD INDUSTRIAL CLASSIFICATION: RADIO TELEPHONE COMMUNICATIONS [4812] IRS NUMBER: 911956183 STATE OF INCORPORATION: WA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: SEC FILE NUMBER: 005-56269 FILM NUMBER: 99653873 BUSINESS ADDRESS: STREET 1: 3650 131ST AVE SE CITY: BELLEVUE STATE: WA ZIP: 98006 BUSINESS PHONE: 4255868700 MAIL ADDRESS: STREET 1: 3650 131ST AVE SE CITY: BELLEVUE STATE: WA ZIP: 98006 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: STANTON JOHN W CENTRAL INDEX KEY: 0000904858 STANDARD INDUSTRIAL CLASSIFICATION: [] FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 2001 NW SAMMAMISH RD STREET 2: C/O WESTERN WIRELESS CORP CITY: ISSAQUAH STATE: WA ZIP: 98027 BUSINESS PHONE: 2063135200 MAIL ADDRESS: STREET 1: 2001 NW SAMMAMISH RD STE 100 STREET 2: WESTERN WIRELESS CORP CITY: ISSAQUAH STATE: WA ZIP: 98027 SC 13D 1 SCHEDULE 13D 1 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 VoiceStream Wireless Corporation (Name of Issuer) Common Stock (Title of Class of Securities) 928615103 -------------------------------------- (CUSIP Number) John W. Stanton and Theresa E. Gillespie VoiceStream Wireless Corporation 3650 131st Avenue S.E. Bellevue, WA 98006 (425)586-8700 (Name, address and telephone number of person authorized to receive notices and communications) June 23, 1999 -------------------------------------- (Date of Event which requires Filing of this Statement) If a filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(b)(3) or (4), check the following box [X ]. NOTE: Six copies of this statement, including all exhibits, should be filed with the Commission. See Rule 13d-1(a) for other parties to whom copies are to be sent. 2 - -------------------- CUSIP NO. 928615103 - -------------------- - ------------------------------------------------------------------------ 1. NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON John W. Stanton and Theresa E. Gillespie, husband and wife - ------------------------------------------------------------------------ 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [ ] - ------------------------------------------------------------------------ 3. SEC USE ONLY - ------------------------------------------------------------------------ 4. SOURCE OF FUNDS N/A - ------------------------------------------------------------------------ 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) [ ] - ------------------------------------------------------------------------ 6. CITIZENSHIP OR PLACE OF ORGANIZATION U.S.A. - ------------------------------------------------------------------------ 7. SOLE VOTING POWER NUMBER OF 0 SHARES ------------------------------------------------------ BENEFICIALLY 8. SHARED VOTING POWER OWNED BY 6,555,411 (1) EACH ------------------------------------------------------ REPORTING 9. SOLE DISPOSITIVE POWER PERSON 0 WITH ------------------------------------------------------ 10. SHARED DISPOSITIVE POWER 6,555,411 (1) - ------------------------------------------------------------------------ 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 6,555,411 (1) - ------------------------------------------------------------------------ 12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - ------------------------------------------------------------------------ 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 6.9% - ------------------------------------------------------------------------ 14. TYPE OF REPORTING PERSON IN - ------------------------------------------------------------------------ (1) Includes (i) 1,686,069 shares of Issuer Common Stock held of record by PN Cellular, Inc. ("PN Cellular"), which is substantially owned and controlled by Mr. Stanton and Ms. Gillespie, (ii) 1,274,519 shares of Issuer Common Stock held of record by Stanton Communications Corporation ("SCC"), which is substantially owned and controlled by Mr. -2- 3 Stanton and Ms. Gillespie, (iii) 3,152,774 shares of Issuer Common Stock held by Mr. Stanton and Ms. Gillespie, as tenants in common, (iv) 164,437 shares of Issuer Common Stock held of record by The Stanton Family Trust; and (v) 90,000 shares and 15,000 shares of Issuer Common Stock held of record by each of Mr. Stanton and Ms. Gillespie, respectively, pursuant to Western Wireless Corporation's 1997 Executive Restricted Stock Plan. Mr. Stanton and Ms. Gillespie are married and share voting and investment power with respect to the shares jointly owned by them, as well as the shares held of record of PN Cellular, SCC and The Stanton Family Trust. -3- 4 Preliminary Statement This Schedule 13D supercedes the Schedule 13G filed by John W. Stanton ("Mr. Stanton") and Theresa E. Gillespie ("Ms. Gillespie") with the Securities and Exchange Commission on May 12, 1999, relating to the common stock, no par value (the "Common Stock"), of VoiceStream Wireless Corporation, a Washington corporation (the "Company"). Item 1. Security and Issuer. This statement on Schedule 13D relates to the Common Stock of the Company. Item 2. Identity and Background. (a) NAME OF PERSONS FILING: John W. Stanton and Theresa E. Gillespie, husband and wife. (b) ADDRESS OF PRINCIPAL BUSINESS OFFICE OR, IF NONE, RESIDENCE: VoiceStream Wireless Corporation 3650 131st Avenue S.E. Bellevue, WA 98006 (c) PRINCIPAL OCCUPATION OR EMPLOYMENT AND THE NAME, PRINCIPAL BUSINESS AND ADDRESS OF CORPORATION IN WHICH EMPLOYMENT IS CONDUCTED: Mr. Stanton is Chief Executive Officer of the Company and of Western Wireless Corporation, a Washington corporation ("Western"). The addresses of the Company and Western Wireless are: VoiceStream Wireless Corporation 3650 131st Avenue S.E. Bellevue, WA 98006 and: Western Wireless Corporation 3650 131st Avenue S.E. Bellevue, WA 98006 Mr. Stanton is also a director of the Company and Western. -4- 5 Ms. Gillespie is Senior Vice President of Western. The address of Western is: Western Wireless Corporation 3650 131st Avenue S.E. Bellevue, WA 98006 (d) WHETHER DURING LAST FIVE YEARS, SUCH PERSON HAS BEEN CONVICTED IN A CRIMINAL PROCEEDING (EXCLUDING TRAFFIC VIOLATIONS OR SIMILAR MISDEMEANORS) AND, IF SO, GIVE THE DATES, NATURE OF CONVICTION, NAME AND LOCATION OF COURT, ANY PENALTY IMPOSED, OR OTHER DISPOSITION OF THE CASE: During the past five years, neither Mr. Stanton nor Ms. Gillespie has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors). (e) WHETHER DURING THE LAST FIVE YEARS, SUCH PERSON WAS A PARTY TO A CIVIL PROCEEDING OF A JUDICIAL OR ADMINISTRATIVE BODY OF COMPETENT JURISDICTION AND AS A RESULT OF SUCH PROCEEDING WAS OR IS SUBJECT TO A JUDGMENT, DECREE OR FINAL ORDER ENJOINING FUTURE VIOLATIONS OF, OR PROHIBITING OR MANDATING ACTIVITIES SUBJECT TO, FEDERAL OR STATE SECURITIES LAWS OR FINDING ANY VIOLATION WITH RESPECT TO SUCH LAWS; AND, IF SO, IDENTIFY AND DESCRIBE SUCH PROCEEDINGS AND SUMMARIZE THE TERMS OF SUCH JUDGMENT, DECREE OR FINAL ORDER: During the past five years, neither of Mr. Stanton nor Ms. Gillespie has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction as a result of which either person was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activity subject to, federal or state securities laws or finding any violation with respect to such laws. (f) CITIZENSHIP: Mr. Stanton and Ms. Gillespie are citizens of the United States of America. Item 3. Source and Amount of Funds or Other Consideration. Not applicable. Item 4. Purpose of the Transaction. Mr. Stanton's and Ms. Gillespie's acquisitions of Common Stock were made for investment purposes only. Neither of them has any present plans or intention which would result in or relate to any of the transactions described in subparagraphs (a) through (j) of Item 4 of Schedule 13D. -5- 6 Each of Mr. Stanton and Ms. Gillespie, however, expects to evaluate on an ongoing basis the Company's financial condition, business, operations and prospects, the market price of the Common Stock, conditions in the securities markets generally, general economic and industry conditions and other factors. Each of Mr. Stanton and Ms. Gillespie may purchase additional shares of Common Stock or may sell shares of Common Stock from time to time in public or private transactions (subject to any applicable limitations imposed on the sale of any of their shares of Common Stock by the Securities Act of 1933, as amended). Item 5. Interest in Securities of the Issuer. (a) AGGREGATE NUMBER AND PERCENTAGE OF SECURITIES BENEFICIALLY OWNED: Mr. Stanton and Ms. Gillespie are the beneficial owners of 6,555,411 shares of Common Stock, representing 6.9% of the issued and outstanding Common Stock. These holdings include (i) 1,686,069 shares of Common Stock held of record by PN Cellular, which is substantially owned and controlled by Mr. Stanton and Ms. Gillespie, (ii) 1,274,519 shares of Common Stock held of record by SCC, which is substantially owned and controlled by Mr. Stanton and Ms. Gillespie, (iii) 3,152,774 shares of Common Stock held by Mr. Stanton and Ms. Gillespie, as tenants in common, (iv) 164,437 shares of Common Stock held of record by The Stanton Family Trust; and (v) 90,000 shares and 15,000 shares of Common Stock held of record by each of Mr. Stanton and Ms. Gillespie, respectively, pursuant to Western Wireless Corporation's 1997 Executive Restricted Stock Plan. (b) NUMBER OF SHARES AS TO WHICH SUCH PERSON HAS POWER TO VOTE: Mr. Stanton and Ms. Gillespie are married and share voting and investment power with respect to the shares jointly owned by them, as well as the shares held of record of PN Cellular, SCC and The Stanton Family Trust. (c) TRANSACTIONS EFFECTED DURING THE PAST 60 DAYS OR SINCE THE MOST RECENT FILING ON SCHEDULE 13D, WHICHEVER IS LESS: None. Item 6. Contracts, Arrangements, Understandings or Relationships Involving Securities of the Issuer. Mr. Stanton, Ms. Gillespie and certain other stockholders of the Company are currently parties to a Voting Agreement, dated as of May 3, 1999 (the "Voting Agreement"), which provides that the -6- 7 parties thereto shall vote their shares of Common Stock for the election to the board of directors of the Company 10 members, one of whom shall be Mr. Stanton, for so long as he is the Chief Executive Officer of the Company or he, together with certain affiliates, beneficially owns at least 4,500,000 shares of Common Stock, and one of whom shall be selected by a majority vote of Mr. Stanton (or, if Mr. Stanton has transferred all of his shares of Common Stock to certain of his affiliates, such affiliates) and Providence Media Partners L.P., a Delaware limited partnership ("Providence")(or, if Providence has transferred all of its shares of Common Stock to certain of its affiliates, such affiliates). This member is in addition to Mr. Stanton for so long as Mr. Stanton serves on the board of directors of the Company by reason of his holding the office of Chief Executive Officer of the Company or he, together with certain affiliates, beneficially owns at least 4,500,000 shares of Common Stock). With respect to such member, Mr. Stanton has agreed that, so long as (i) Mr. Stanton is Chief Executive Officer of the Company or he, together with certain of his affiliates, beneficially owns at least 4,500,000 shares of Common Stock, (ii) Mr. Stanton and Providence (and certain of their respective affiliates) collectively beneficially own at least 4,500,000 shares of Common Stock, and (iii) Providence (or certain of its affiliates) beneficially own at least 2,500,000 shares of Common Stock, he shall vote his shares of Common Stock (and certain of his affiliates' shares) for Providence's designee. Mr. Stanton, Ms. Gillespie, certain other stockholders of the Company, the Company, Omnipoint Corporation, a Delaware corporation ("Omnipoint") and certain stockholders of Omnipoint (the "Omnipoint Stockholders") have entered into an agreement, dated as of June 23, 1999 (the "Merger Voting Agreement"), whereby Mr. Stanton, Ms. Gillespie and certain other stockholders of the Company parties thereto have agreed to attend a meeting of the Company's stockholders, in person or by proxy, and to vote or cause to be voted the number of shares of Common Stock beneficially owned by them set forth in a schedule to the Merger Voting Agreement (the "Scheduled Shares") in favor of (i) the adoption and approval of the Agreement and Plan of Reorganization, dated as of June 23, 1999, between the Company, VoiceStream Wireless Holding Corporation and Omnipoint (the "Reorganization Agreement"), and (ii) the proposed merger contemplated by the Reorganization Agreement (the "Merger") and any other matters necessary to consummate the transactions contemplated in the Reorganization Agreement. In addition, pursuant to the Merger Voting Agreement, Mr. Stanton, Ms. Gillespie and certain stockholders of the Company have agreed to terminate the Voting Agreement upon the consummation of the Merger and to enter into a new voting agreement with the Omnipoint Stockholders on terms mutually satisfactory to the parties thereto. -7- 8 Finally, from and after the date of the Merger Voting Agreement through the earlier of the effective time of the transactions contemplated by the Reorganization Agreement and the termination of the Reorganization Agreement, each of Mr. Stanton and Ms. Gillespie and each of certain other stockholders of the Company have agreed not to sell or otherwise dispose of, in a single transaction or a series of unrelated transactions, more than 30% of the Scheduled Shares beneficially owned by such stockholder unless, as a condition to such sale, each transferee of any shares in excess of 30% of the Scheduled Shares beneficially owned by such stockholder agrees to be bound by the provisions of the Merger Voting Agreement applicable to the stockholders of the Company. The foregoing descriptions of the Voting Agreement and the Merger Voting Agreement are subject to, and qualified in their entirety by reference to, the Voting Agreement, which is filed as exhibit 99.1 hereto and the Merger Voting Agreement, which is filed as exhibit 99.2 hereto and incorporated by reference into this Item 6. Item 7. Material To be Filed as Exhibits. 99.1 Voting Agreement by and among VoiceStream Wireless Corporation, Mr. Stanton, Ms. Gillespie and certain stockholders of VoiceStream Wireless Corporation. 99.2 Agreement by and among VoiceStream Wireless Corporation, Omnipoint Corporation and certain stockholders of VoiceStream Wireless Corporation. -8- 9 SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated: June 25, 1999 By: /s/ --------------------------- John W. Stanton By: /s/ --------------------------- Theresa E. Gillespie 10 Exhibit Index 99.1 Voting Agreement by and among VoiceStream Wireless Corporation, Mr. Stanton, Ms. Gillespie and certain stockholders of VoiceStream Wireless Corporation. 99.2 Agreement by and among VoiceStream Wireless Corporation, Omnipoint Corporation and certain stockholders of VoiceStream Wireless Corporation. EX-99.1 2 VOTING AGREEMENT 1 VOTING AGREEMENT This VOTING AGREEMENT (this "Agreement") is made and entered into as of this ____ day of ____________, 1999 by and among VoiceStream Wireless Corporation, a Washington corporation (the "Company"), Hellman & Friedman Capital Partners II, L.P., a California limited partnership ("HFCP II"), H & F Orchard Partners, L.P., a California limited partnership ("Orchard"), H & F International Partners, L.P., a California limited partnership ("International"; HFCP II, Orchard and International are hereinafter referred to collectively as "H&F"), John W. Stanton ("JWS"), Theresa E. Gillespie ("TEG"), PN Cellular, Inc., a Washington corporation ("PN"), Stanton Family Trust, established November 1, 1990 by JWS and TEG, as settlors f/b/o the settlors' children ("SFT"), Stanton Communications Corporation, a Washington corporation ("SCC"; JWS, TEG, PN, SFT and SCC are hereinafter referred to collectively as "Stanton"), GS Capital Partners, L.P., a Delaware limited partnership ("GSCP"), The Goldman Sachs Group, L.P., a Delaware limited partnership ("GS"), Bridge Street Fund 1992, L.P., a Delaware limited partnership ("BSF"), Stone Street Fund 1992, L.P., a Delaware limited partnership ("SSF"; GSCP, GS, BSF and SSF are hereinafter referred to collectively as "GSC"); Providence Media Partners L.P., a Delaware limited partnership ("Providence"); Hutchison Telecommunications PCS (USA) Limited, a British Virgin Islands corporation ("Hutchison PCS"); and Hutchison Telecommunications Holdings (USA) Limited, a British Virgin Islands corporation ("Hutchison Holdings"; Hutchison PCS and Hutchison Holdings are hereinafter referred to collectively as "Hutchison") (each of H&F, Stanton, GSC, Providence and Hutchison are hereinafter referred to individually as a "Shareholder" and collectively as the "Shareholders"). 2 R E C I T A L S WHEREAS, the Company and Western Wireless Corporation, a Washington corporation ("WWC"), are parties to that certain Agreement and Plan of Distribution, dated as of ___________, 1999, pursuant to which, among other things, WWC has agreed, upon the terms and conditions set forth therein, to distribute the shares of Common Stock (as hereinafter defined) owned by it, which shares represent 80.1% of the issued and outstanding shares of Common Stock, to WWC's shareholders, including the Shareholders party hereto, on the basis of one share of Common Stock for each one share of WWC's outstanding common stock (the "Spin-Off"); WHEREAS, effective with the Spin-Off, the Company will be authorized to issue ____ shares of Common Stock, of which ____ shares will be issued and outstanding immediately after the Spin-Off; WHEREAS, immediately after the Spin-Off, each of the Shareholders will own the number of shares of Common Stock set forth opposite its respective name on Schedule 1 annexed hereto; and WHEREAS, simultaneously with the consummation of the Spin-Off (the date of such consummation being hereinafter referred to as the "Effective Date"), this Agreement shall be in full force and effect in accordance with its terms in order, among other things, to set forth certain matters relating to the management of the Company. NOW THEREFORE, in consideration of the mutual covenants herein contained and for other good and valuable consideration, the Shareholders and the Company agree as follows: -2- 3 1. Certain Definitions. As used in this Agreement, the following terms have the meanings set forth below: 1.1 "Agreement" has the meaning given in the preamble. 1.2 "Arbitrators" has the meaning given in Section 6.12(i). 1.3 "Beneficially Own" has the meaning set forth in Rule 13d-3 of the Securities and Exchange Act of 1934, as amended; except that no broker or dealer or any affiliate thereof shall be deemed to Beneficially Own shares of Common Stock, the beneficial ownership of which is acquired in the ordinary course of the activities of a broker or dealer registered under Section 15 of the Securities Exchange Act of 1934, as amended, including, but not limited to, the acquisition of beneficial ownership of such securities as a result of any market-making or underwriting activities (including any shares acquired for the investment account of a broker or dealer in connection with such underwriting activities), or the exercise of investment or voting discretion authority over any of its customer accounts, or the acquisition in good faith of such securities in connection with the enforcement of payment of a debt previously contracted. 1.4 "Board" means the Board of Directors of the Company. 1.5 "BSF" has the meaning given in the preamble. 1.6 "Business Day" means any day other than a Saturday, Sunday or legal holiday in New York, New York, Seattle or Hong Kong or any other day on which commercial banks in those locations are authorized by law or governmental decree to close. 1.7 "Common Stock" means the Company's Common Stock, no par value, and shall include any new, substituted and additional securities issued at any time in replacement of the Common Stock or issued or delivered with respect to the Common Stock. -3- 4 1.8 "Company" has the meaning given in the preamble. 1.9 "Dispute" has the meaning given in Section 6.12. 1.10 "Effective Date" has the meaning given in the recitals. 1.11 "Exchange Act" means the Securities Exchange Act of 1934, as amended. 1.12 "GS" has the meaning given in the preamble. 1.13 "GSC" has the meaning given in the preamble. 1.14 "GSCP" has the meaning given in the preamble. 1.15 "H&F" has the meaning given in the preamble. 1.16 "HFCP II" has the meaning given in the preamble. 1.17 "HTL" means Hutchison Telecommunications Limited, a corporation organized under the laws of Hong Kong. 1.18 "Hutchison" has the meaning given in the preamble. 1.19 "Immediate Family" means an individual's spouse, children (including adopted children), grandchildren and parents. 1.20 "International" has the meaning given in the preamble. 1.21 "JWS" has the meaning given in the preamble. 1.22 "Orchard" has the meaning given in the preamble. 1.23 "Percentage Ownership" means, as to any Shareholder, the aggregate percentage of the outstanding shares of Common Stock Beneficially Owned by such Shareholder, including for this purpose, shares Beneficially Owned by such Shareholder's Permitted Affiliated Transferees. 1.24 "Permitted Affiliate Transferee" means (i) with respect to any Shareholder who is a natural Person, any member of such Person's Immediate Family, or any trust for the benefit -4- 5 of, or a partnership all of the partners of which are, such Person and/or any member of such Person's Immediate Family; (ii) with respect to any Shareholder which is a limited partnership, (a) any Person that, as of May 13, 1996, was the sole general partner of such Shareholder or was the sole general partner of the sole general partner of such Shareholder, (b) another limited partnership which has a sole general partner, the control of which sole general partner is held, directly or indirectly, by five or fewer natural Persons, provided such natural Persons had control at May 13, 1996 of the sole general partner of such Shareholder or (iii) with respect to Hutchison, (x) HTL, (y) any Subsidiary of HTL, or (z) any other entity acceptable to Shareholders (other than Hutchison and its Permitted Affiliate Transferees) holding at least a majority of the Common Stock owned by all Shareholders (other than Hutchison and its Permitted Affiliate Transferees) in which HTL owns, directly or indirectly, more than 40% of the outstanding voting power, or (c) in the case of any Person referred to in clause (x), (y) or (z), Hutchison. For purposes of this definition, "control" shall mean ownership of at least 51% of the equity interest in, and at least 51% of the voting power on all matters in, an entity or, if applicable, the sole general partner of such entity. 1.25 "Person" means an individual, corporation, association, partnership, trust or estate, an unincorporated organization, a joint venture, a government or any agency or political subdivision thereof, or any other entity of whatever nature. 1.26 "PN" has the meaning given in the preamble. 1.27 "Providence" has the meaning given in the preamble. 1.28 "SCC" has the meaning given in the preamble. 1.29 "SFT" has the meaning given in the preamble. 1.30 "Shareholder" has the meaning given in the preamble. -5- 6 1.31 "Spin-Off" has the meaning given in the recitals. 1.32 "SSF" has the meaning given in the preamble. 1.33 "Stanton" has the meaning given in the preamble. 1.34 "Subsidiary" means, as to any Person, another Person which is an entity as to which such Person owns more than 50% of the outstanding voting power. 1.35 "TEG" has the meaning given in the preamble. 1.36 "Transfer" means any sale, assignment, pledge, hypothecation, gift or other transfer, disposition or encumbrance of any interest (and includes an exchange of shares in a merger, consolidation or similar transaction). 1.37 "WWC" has the meaning given in the recitals. 1.38 "WWC Shareholders Agreement" has the meaning given in the preamble. Each definition or pronoun herein shall be deemed to refer to the singular, plural, masculine, feminine or neuter as the context requires. Words such as "herein, "hereinafter," "hereof," "hereto" and "hereunder" refer to this Agreement as a whole, unless the context otherwise requires. Whenever the words "include," "includes" or "including" are used in this Agreement, they shall be deemed to be followed by the words "without limitation." 2. Effectiveness; Legend. 2.1 This Agreement shall become effective on the Effective Date. If the Effective Date does not occur on or before December 31, 1999, this Agreement shall terminate and be of no further force or effect whatsoever. -6- 7 2.2 All certificates representing shares of Common Stock now or hereafter issued by the Company to any of the Shareholders or their Permitted Affiliate Transferees shall be subject to this Agreement and shall bear the following legend: "The shares evidenced by this certificate or any certificate issued in exchange or transfer therefor are and will be subject to the terms of a certain Voting Agreement, dated as of ___________, 1999, by and among certain shareholders of the Company." The requirement that the above legend be placed upon certificates evidencing any such Common Stock shall cease and terminate upon the earlier of (i) the Transfer of such Common Stock to any Person other than a Permitted Affiliate Transferee, and (ii) as to any Shareholder and its Permitted Affiliate Transferees, the termination of this Agreement as to such Shareholder and its Permitted Affiliate Transferees. Upon the occurrence of any event requiring the removal of a legend hereunder, the Company, upon the surrender of certificates containing such legend, shall, at its own expense, deliver to the holder of any such Common Stock as to which the requirement for such legend shall have terminated, one or more new certificates evidencing such Common Stock not bearing such legend. 3. Management of the Corporation. 3.1 Board of Directors. Pursuant to the Company's by-laws, the Board shall be constituted of ten (10) directors, subject to increase as provided in this Section 3.1. Each of the Shareholders (and its Permitted Affiliate Transferees) agrees that it will vote, or cause to be voted, all of the shares of Common Stock Beneficially Owned by it (whether now owned or hereafter acquired), in person or by proxy (and shall take all other necessary or desirable actions within such Shareholder's (or its Permitted Affiliate Transferees') control, -7- 8 including attendance at meetings in person or by proxy for purposes of obtaining a quorum and execution of written consents in lieu of meetings), for the election and continuation in office of the following ten (10) members: (a) JWS, for so long as he is the Chief Executive Officer of the Company or he, together with his Permitted Affiliate Transferees, Beneficially Own at least 4,500,000 shares of Common Stock; (b) two (2) designees of Hutchison (or if Hutchison has Transferred all of its shares of Common Stock to Permitted Affiliate Transferees of Hutchison, two (s) designees of such Permitted Affiliate Transferees); (c) two (2) designees of H&F (or, if H&F has Transferred all of its shares of Common Stock to Permitted Affiliate Transferees of H&F, two (2) designees of such Permitted Affiliate Transferees); (d) one (1) designee of GSC (or, if GSC has Transferred all of its shares of Common Stock to Permitted Affiliate Transferees of GSC, one (1) designee of such Permitted Affiliate Transferees); (e) one (1) designee selected by a majority vote of Stanton (or, if Stanton has Transferred all of its shares of Common Stock to Permitted Affiliate Transferees of Stanton, of such Permitted Affiliate Transferees) and Providence (or, if Providence has Transferred all of its shares of Common Stock to Permitted Affiliate Transferees of Providence, of such Permitted Affiliate Transferees) (it being understood that such designee is in addition to JWS for so long as JWS shall serve on the Board by reason of his holding the office of Chief Executive Officer of the Company or his, together with his Permitted Affiliate Transferees, Beneficially Owning at least 4,500,000 shares of Common Stock); and (f) three (3) designees selected by a majority vote of the persons selected as provided above. Stanton (and its Permitted Affiliate Transferees) agrees with respect to the designee to the Board selected by the vote of Stanton and Providence (or their respective Permitted Affiliate Transferees) that from and after the date hereof and for so long as (i) JWS is serving as the Chief Executive Officer of the Company or he, together with his Permitted Affiliate Transferees, Beneficially Own at least 4,500,000 shares of Common -8- 9 Stock, (ii) Stanton and Providence (and their respective Permitted Affiliate Transferees) shall collectively Beneficially Own at least 4,500,000 shares of Common Stock, and (iii) Providence (or its Permitted Affiliate Transferees) shall Beneficially Own at least 2,500,000 shares of Common Stock, Stanton (and its Permitted Affiliate Transferees) shall so vote, or cause to be voted, all of the shares of Common Stock owned or held of record by Stanton (and its Permitted Affiliate Transferees) for one designee of Providence (and its Permitted Affiliate Transferees). In addition, Hutchison shall have the right to designate an additional director (and the Board shall in each case be expanded by one member to accommodate such new designee) when Hutchison's aggregate Percentage Ownership exceeds each of the following thresholds: 27.25%, 33.33%, 38.5%, 42.9%, 46.67% and 50%; and each of the Shareholders (and each of their respective Permitted Affiliate Transferees) agrees that it will vote, or cause to be voted, all of the shares of Common Stock Beneficially Owned by it (whether now owned or hereafter acquired), in person or by proxy (and shall take all other necessary or desirable actions within such Shareholder's (or its Permitted Affiliate Transferees') control including attendance at meetings in person or by proxy for purposes of obtaining a quorum and execution of written consents in lieu of meetings), for the election and continuation in office of such designees and to cause any requisite expansion of the Board to accommodate such designees. No designee to the Board shall be removed from the Board (except removal for cause under applicable law) without the written consent of the Shareholder or group of Shareholders who has the right to designate such Person to the Board (or, if such Shareholder or group of Shareholders has Transferred all of their shares of Common Stock to Permitted Affiliate Transferees of such Shareholder or group of Shareholders, without the written consent of Permitted Affiliate Transferees holding a majority of the shares owned by all of such Permitted Affiliate Transferees). Any Shareholder or group of Shareholders (or, if such Shareholder or group of Shareholders has Transferred all of their shares of Common Stock to Permitted Affiliate Transferees of such Shareholder or group of Shareholders, Permitted Affiliate Transferees holding a majority of the shares owned by all of such Permitted Affiliate Transferees) who has the right to designate any member(s) of the Board shall have the right to replace any member(s) so designated by it (whether or not such member is removed from the Board with or without cause or ceases to be a member of -9- 10 the Board by reason of death, disability or for any other reason) upon written notice to the Company and the other members of the Board, which notice shall set forth the name of the member(s) being replaced and the name of the new member(s). Each of the Shareholders (and each of their respective Permitted Affiliate Transferees) agrees that it will vote, or cause to be voted, all of the shares of Common Stock Beneficially Owned by it (whether now owned or hereafter acquired), in person or by proxy (and shall take all other necessary or desirable actions within such Shareholder's (or its Permitted Affiliate Transferees') control including attendance at meetings in person or by proxy for purposes of obtaining a quorum and execution of written consents in lieu of meetings), so as to cause the election and continuation in office of any successor director designated by any of the Shareholders (or any of such Shareholder's Permitted Affiliate Transferees) pursuant to this Section 3.1. Notwithstanding the foregoing, (a) if at any time H&F (and its Permitted Affiliate Transferees) shall cease to Beneficially Own at least (i) 9,800,000 shares of Common Stock, then in such event, H&F (or, if H&F has Transferred all of its shares of Common Stock to Permitted Affiliate Transferees of H&F, its Permitted Affiliate Transferees) shall be entitled to designate only one member of the Board; and (ii) 4,500,000 shares of Common Stock, then in such event, H&F (or, if H&F has Transferred all of its shares of Common Stock to Permitted Affiliate Transferees of H&F, its Permitted Affiliate Transferees) shall not be entitled to designate any member of the Board; (b) if at any time GSC (or, if GSC has Transferred all of its shares of Common Stock to Permitted Affiliate Transferees of GSC, its Permitted Affiliate Transferees) shall cease to Beneficially Own at least 4,500,000 shares of Common Stock, then in such event, GSC (or, if GSC has Transferred all of its shares of Common Stock to Permitted Affiliate Transferees of GSC, its Permitted Affiliate Transferees) shall not be entitled to designate any member of the Board; (c) if at any time Stanton and Providence (and their respective Permitted Affiliate Transferees) shall cease collectively to Beneficially Own at least 4,500,000 shares of Common Stock, then in such event, they shall not be entitled to designate any member of the Board -10- 11 (except that JWS shall continue to serve on the Board for so long as he holds the office of Chief Executive Officer of the Company); and (d) if at any time Hutchison (and its Permitted Affiliate Transferees) shall cease to Beneficially Own at least (i) 9,800,000 shares of Common Stock, then in such event Hutchison (or, if Hutchison has Transferred all of its shares of Common Stock to Permitted Affiliate Transferees of Hutchison, its Permitted Affiliate Transferees) shall be entitled to designate only one member of the Board; and (ii) 4,500,000 shares of Common Stock, then in such event, Hutchison (or, if Hutchison has Transferred all of its shares of Capital Stock to Permitted Affiliate Transferees of Hutchison, its Permitted Affiliate Transferees) shall not be entitled to designate any member of the Board. In addition, if Hutchison shall have designated additional director(s) (in excess of the two (2) specified above) by reason of an increase in its Percentage Ownership as set forth in this Section 3.1 above, and at any time thereafter the Percentage Ownership of Hutchison (and its Permitted Affiliate Transferees) shall be less than the Percentage Ownership entitling Hutchison to such additional director(s), then in such event Hutchison (or, if Hutchison has Transferred all of its shares of Common Stock to Permitted Affiliate Transferees of Hutchison, its Permitted Affiliate Transferees) shall cease to be entitled to designate such additional director(s). Any vacancies on the Board created by reason of the provisions of subsections (a) through (d) above shall be filled by the directors then in office to serve until the next annual meeting of shareholders of the Company, and at the next annual meeting shall be filled by a vote of a plurality of all shareholders (including the Shareholders and their Permitted Affiliate Transferees) of the Company; provided, however, that in the event that the size of the Board shall have increased by reason of Hutchison having the right to -11- 12 designate additional director(s) and thereafter Hutchison shall cease to have the right to so designate such additional director(s), the size of the Board shall be appropriately reduced and each of the Shareholders (and each of their respective Permitted Affiliate Transferees) agrees that it will vote, or cause to be voted, all of the shares of Common Stock Beneficially Owned by it (whether now owned or hereafter acquired), in person or by proxy (and shall take all other necessary or desirable actions within such Shareholder's (or its Permitted Affiliate Transferees') control including attendance at meetings in person or by proxy for purposes of obtaining a quorum and execution of written consents in lieu of meetings), to cause such reduction in the Board. (e) Notwithstanding anything to the contrary contained in this Agreement, Hutchison's right to transfer its right to designate directors to certain block transferees as set forth in Sections 14 and 15 of the Shareholders Agreement of VoiceStream Wireless Corporation, dated February 17, 1998, as amended, among WWC, the Company and Hutchison PCS, shall continue in full force and effect until terminated in accordance with the terms of such Shareholders Agreement. (f) The number of shares referred to in this Section 3.1 shall be appropriately adjusted for any stock dividends, stock splits, reverse splits, combinations, recapitalizations and the like occurring after the date hereof. 3.2 Company Covenant. The Company hereby agrees to use all reasonable efforts to give effect to the provisions of Section 3.1. In this regard, the Company shall, subject to the provisions of Section 3.1, duly nominate the designees set forth above for election to the Board and shall include in any proxy solicitation materials related to the election of members of the Board such information and recommendations of the Board as are appropriate in proxy solicitation materials. Each Shareholder shall vote such Shareholder's shares of Common Stock at any regular or special meeting of the Shareholders or in any written consent executed in lieu of such a meeting of Shareholders for the election of such designees. The Company and each Shareholder shall take all other actions necessary to ensure that the certificate of incorporation and by-laws of the Company or any successor constituent documents as in effect immediately following the date hereof do not, at any time thereafter, conflict in any respect with the provisions of this Agreement. -12- 13 4. Representations and Warranties. Each of the Company, HFCP II, Orchard, International, JWS, TEG, PN, SFT, SCC, GS, GSCP, BSF, SSF, Providence and Hutchison hereby represents and warrants to the other parties as follows: (a) Such Person has full power and authority to execute, deliver and perform its obligations under this Agreement; (b) This Agreement and all transactions contemplated hereby have been duly and validly authorized by all necessary action on the part of such Person and this Agreement constitutes the legal, valid and binding obligation of such Person enforceable against it in accordance with its terms; and (c) Neither the execution, delivery or performance of this Agreement by such Person, nor the consummation of the transactions contemplated hereby will, with or without the giving of notice of passage of time or both conflict with, result in a default or loss of rights (or give rise to any right of termination, cancellation or acceleration) under, (i) any provision of the certificate of incorporation, by-laws, partnership agreement or comparable constituent document of such Person, (ii) any material note, bond, indenture, mortgage, deed of trust, contract, agreement, lease or other instrument or obligation to which any such Person is a party or by which it or its properties may be bound or affected or (iii) any law, order, judgment, ordinance, rule, regulation or decree to which any such Person is a party or by which it or any of its properties are bound or affected. 5. Term. -13- 14 This Agreement shall terminate upon the earliest to occur of any of the following events: (a) Upon agreement by all Shareholders then retaining the right to designate directors under this Agreement; or (b) The filing by the Company of a petition in bankruptcy or the expiration of sixty (60) days after a petition in bankruptcy shall have been filed against the Company and such petition shall not have been stayed or discharged during such sixty (60) day period; or upon the expiration of sixty (60) days after the commencement of any proceeding under any law for the relief of debtors seeking the relief or readjustment of the Company's indebtedness either through reorganization, winding-up, extension or otherwise, and such proceedings involving the Company as debtor shall not have been vacated or stayed within such sixty (60) day period; or upon the appointment of a receiver, custodian or trustee for all or substantially all of the Company's property, or the making by the Company of any general assignment for the benefit of creditors, or the admitting in writing by the Company of its inability to pay its debts as they mature; or upon the voluntary or involuntary liquidation or dissolution of the Company; or (c) The Beneficial Ownership of all of the Common Stock by only one Shareholder (including its Permitted Affiliate Transferees). 6. Miscellaneous. 6.1 Successors, Assigns and Transferees. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their Permitted Affiliate Transferees. Each of the Shareholders hereby agrees that prior to any Transfer of any Common Stock to a Permitted Affiliate Transferee, such Permitted Affiliate Transferee shall execute a counterpart of this Agreement -14- 15 agreeing to be bound by the provisions of this Agreement. No Transfer to a Permitted Affiliate Transferee shall be effective unless such Permitted Affiliate Transferee has executed such counterpart of this Agreement. 6.2 Specific Performance, Etc. Each of the parties hereto acknowledges and agrees that, in the event of any breach of this Agreement, the non-breaching parties would be irreparably harmed and could not be made whole by monetary damages. Accordingly, each of the parties hereto agrees that the other parties, in addition to any other remedy to which they may be entitled at law or in equity, shall be entitled to compel specific performance of this Agreement pursuant to Section 6.12(x). 6.3 Headings. The headings in this Agreement are for convenience only and shall not be considered a part of or affect the construction or interpretation of any provision of this Agreement. 6.4 Notices. All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed to have been duly given if delivered by same day or next day courier (guaranteed delivery) or mailed, registered mail, return receipt requested, or transmitted by telegram, telex or facsimile (i) if to a Shareholder, at such Shareholder's address appearing below or at any other address that such Shareholder may have provided in writing to the Company and the other Shareholders then party to this Agreement and (ii) if to the Company, at 3650 131 Avenue SE, Bellevue, Washington 98006, U.S.A., Tel: (425) 586-8014, Fax: (425) 586-8080; Attention: Alan R. Bender, Esq., or such other address as the Company may have furnished to the Shareholders in writing, with a copy (which shall not constitute notice) to Friedman Kaplan & Seiler LLP, 875 Third Avenue, New -15- 16 York, NY 10022, USA, Tel: (212) 833-1107, Fax: (212) 355-6401, Attention: Barry A. Adelman. If a notice hereunder is transmitted by confirmed fax so as to arrive during normal business hours during a Business Day at the place of receipt, then such notice shall be deemed to have been given on such Business Day at the place of receipt or, if so transmitted to arrive after normal business hours during a Business Day at the place of receipt, then such notice shall be deemed to have been given on the following Business Day at the place of receipt. If such notice is sent by next-day courier, it shall be deemed to have been given on the third Business Day at the place of receipt following sending and, if by registered air mail, on the tenth Business Day at the place of receipt following sending, provided, that the date of sending shall be deemed to be the date at the place of receipt at the time such notice is posted. (a) if to JWS, TEG, PN, SFT or SCC: c/o Stanton Communications, Inc. 131 Avenue SE Bellevue, Washington 98006 Attention: John W. Stanton Facsimile: (425) 586-8010 with a copy to (which shall not constitute notice): Barry A. Adelman, Esq. Friedman Kaplan & Seiler LLP 875 Third Avenue New York, New York 10022-6225 Facsimile: (212) 355-6401 (b) if to GS, GSCP, BSF or SSF: c/o Goldman, Sachs & Co. 85 Broad Street New York, New York 10004 Attention: Terence M. O'Toole Facsimile: (212) 357-5505 -16- 17 with a copy to (which shall not constitute notice): Alison S. Ressler, Esq. Sullivan & Cromwell 1888 Century Park East Los Angeles, California 90067 Facsimile: (310) 712-8800 (c) if to HFCPII, Orchard or International: c/o Hellman & Friedman One Maritime Plaza, Suite 1200 San Francisco, California 94111 Attention: John L. Bunce, Jr. General Partner and Richard Levine, General Counsel Facsimile: (415) 788-0176 (d) if to Providence: c/o Providence Ventures, Inc. 900 Fleet Center 50 Kennedy Plaza Providence, Rhode Island 02903 Attention: Jonathan M. Nelson Facsimile: (401) 751-1790 with a copy to (which shall not constitute notice): David K. Duffell, Esq. Edwards & Angell 2700 Hospital Tower Providence, Rhode Island 02903 Facsimile: (401) 276-6611 (e) if to Hutchison: Hutchison Telecommunications PCS (USA) Limited c/o Offshore Incorporations Limited P.O. Box 957 Offshore Incorporations Centre Road Town, Tortola British Virgin Islands Tel: (809) 494-2233 Fax: (809) 494-4885 and -17- 18 Hutchison Telecommunications PCS (USA) Limited 22nd Floor, Hutchison House 10 Harcourt Road Hong Kong Attention: Edith Shih Tel: (852) 2128-1232 Fax: (852) 2128-1778 and Hutchison Telecommunications Holdings (USA) Limited 22nd Floor, Hutchison House 10 Harcourt Road Hong Kong Attention: Edith Shih Tel: (852) 2128-1232 Fax: (852) 2128-1778 with a copy to (which shall not constitute notice): Dewey Ballantine LLP Suite 3907, Asia Pacific Finance Tower Citibank Plaza 3 Garden Road Central, Hong Kong Attention: John A. Otoshi Tel: (852) 2509-7000 Fax: (852) 2509-7088 6.5 Exchanges, Recapitalizations, Etc. Affecting the Company's Common Stock. The provisions of this Agreement shall apply, to the full extent set forth herein with respect to the shares of Common Stock now or hereinafter owned by each Shareholder (and its Permitted Affiliate Transferees), to any and all securities of the Company or any successor or assign of the Company (whether by merger, consolidation or otherwise) that may be issued in respect of, in exchange for, or in substitution of such shares of Common Stock, and shall be appropriately adjusted for any stock -18- 19 dividends, stock splits, reverse splits, combinations, recapitalizations and similar events occurring after the date hereof. 6.6 Inspection and Compliance with Law. Copies of this Agreement will be available for inspection or copying by any interested Person at the offices of the Company through the Secretary of the Company. The Company will otherwise take all actions as may be necessary or appropriate to comply with any applicable law relating to the validity and enforceability of shareholders agreements containing the provisions of this Agreement. 6.7 Waivers. Except as expressly provided otherwise herein, neither this Agreement nor any provision hereof may be changed, waived, discharged or terminated orally, but only by an instrument in writing signed by the Company and each of the Shareholders. The failure of any party hereto to give notice of the breach or non-fulfillment of any term or condition of this Agreement shall not constitute a waiver thereof, nor shall the waiver of any breach or non- fulfillment of any term or condition of this Agreement constitute a waiver of any other breach or non-fulfillment of that term or condition or any other term or condition of this Agreement. 6.8 Amendments. This Agreement may be amended or modified at any time by a writing setting forth such amendment or modification, signed by the Company and by Shareholders (or their Permitted Affiliate Transferees) owning in the aggregate at least 90% of the aggregate Voting Power of the Shareholders (and their Permitted Affiliate Transferees); provided, however, that, unless such amendment is signed by the Company and by each Shareholder (or its Permitted Affiliate Transferees) adversely affected by such amendment, no such amendment or modification shall (i) eliminate any right of any Shareholder (or its Permitted Affiliate Transferees) to designate the member or members of the Board it is entitled to designate in accordance with Section 3.1 hereof (it being understood and agreed that this clause (i) shall not prohibit the enlargement of the Board) or (ii) change the Effective Date. 6.9 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, and all of which together shall be considered one and the same agreement. 6.10 Obligations Several. The obligations of each of the Shareholders under this Agreement shall be several with respect to each such Shareholder. 6.11 Entire Agreement. This Agreement constitutes the entire understanding of the parties hereto with respect to the subject matter hereof and supersedes all prior understandings among such parties with respect to such subject matter. -19- 20 6.12 Applicable Law. The validity of this Agreement, its construction, interpretation and enforcement, and the rights of the parties hereunder, shall be determined under, governed by and construed in accordance with the internal laws of the State of New York applicable to contracts formed in such State. Each party hereto agrees that, subject to Section 6.12 hereof, any suit, action or other proceeding arising out of this Agreement shall be brought and litigated in the courts of the State of Washington or the United States District Court for the Western District of Washington and each party hereto hereby irrevocably consents to personal jurisdiction and venue in any such court and hereby waives any claim it may have that such court is an inconvenient forum for the purposes of any such suit, action or other proceeding. 6.13 Arbitration. Any and all disputes, controversies or claims (each a "Dispute") between the Shareholders relating to the interpretation or enforcement or performance of this Agreement shall be resolved by binding arbitration by the American Arbitration Association in accordance with its rules, subject to the following provisions: (i) There shall be three arbitrators (the "Arbitrators") which shall be appointed in accordance with the procedures of the American Arbitration Association. (ii) The expenses of the arbitration shall be borne equally by the Shareholders involved in the arbitration, and each party shall bear its own legal fees and expenses; provided, however, that the Arbitrators shall have discretion to require that one party pay all or a -20- 21 portion of the expenses of arbitration or the other party's legal fees and expenses in connection with any particular arbitration. (iii) The Arbitrators shall determine whether and to what extent any party shall be entitled to damages or equitable relief. No party shall be entitled to punitive damages or consequential damages or shall be required to post a bond in connection with equitable relief. (iv) The Arbitrators shall not have the power to add to nor modify any of the terms or conditions of this Agreement. The Arbitrators' decision shall not go beyond what is necessary for the interpretation and application of the provisions of this Agreement in respect of the issue before the Arbitrators. The Arbitrators' decision and award or permitted remedy, if any, shall be based upon the issue as drafted and submitted by the respective parties and the relevant and competent evidence adduced at the hearing(s). (v) The Arbitrators shall have the authority to award any remedy or relief provided for in this Agreement, in addition to any other remedy or relief (including provisional remedies and relief) that a court of competent jurisdiction could order or grant (but subject to the remedial limitations elsewhere set forth in this Agreement, including, but without limitation, the aforesaid prohibition against punitive and consequential damages). The Arbitrators written decision shall be rendered within sixty (60) days of the hearing. The decision reached by the Arbitrators shall be final and binding upon the parties as to the matter in dispute. To the extent that the relief or remedy granted by the Arbitrators is relief or remedy on which a court could enter judgement, a judgement upon the award rendered by the Arbitrators may be entered in any court having jurisdiction thereof (unless in the case of an award of damages, the full amount of the award is paid within ten (10) days of its determination by the Arbitrators). Otherwise, the award shall be -21- 22 binding on the parties in connection with their continuing performance of this Agreement and in any subsequent arbitral or judicial proceeding between the parties. (vi) The arbitration shall take place in Seattle, Washington, unless otherwise agreed by the parties, and shall be conducted in the English language. (vii) The arbitration proceeding and all filing, testimony, documents and information relating to or presented during the arbitration proceeding shall be disclosed exclusively for the purpose of facilitating the arbitration process and for no other purpose. (viii) The parties shall continue performing their respective obligations under this Agreement notwithstanding the existence of a Dispute while the Dispute is being resolved unless and until such obligations are terminated, expire or are suspended in accordance with the provisions hereof. (ix) The Arbitrators may, in their sole discretion, order a pre- hearing exchange of information including production of documents, exchange of summaries of testimony or exchange of statements of position, and shall schedule promptly all discovery and other procedural steps and otherwise assume case management initiative and control to effect an efficient and expeditious resolution of the Dispute. At any oral hearing of evidence in connection with an arbitration proceeding, each party and its counsel shall have the right to examine its witnesses and to cross-examine the witnesses of the other party. No testimony of any witness shall be presented in written form unless the opposing party or parties shall have the opportunity to cross-examine such witness, except as the parties otherwise agree in writing. (x) Notwithstanding the dispute resolution procedures contained in this Section 6.12, either party may apply to any court having jurisdiction (a) to enforce this -22- 23 Agreement to arbitrate, (b) to seek provisional injunctive relief so as to maintain the status quo until the arbitration award is rendered or the Dispute is otherwise resolved, or (c) to challenge or vacate any final judgment, award or decision of the Arbitrators that does not comport with the express provisions of this Section 6.12. 6.14 Failure to Pursue Remedies. The failure of any party to seek redress for violation of, or to insist upon the strict performance of, any provision of this Agreement shall not prevent a subsequent act, which would have originally constituted a violation, from having the effect of an original violation. 6.15 Cumulative Remedies. The rights and remedies provided by this Agreement are cumulative and the use of any one right or remedy by any party shall not preclude or waive its right to use any or all other remedies except as otherwise expressly provided in this Agreement. Such rights and remedies are given in addition to any other rights the parties may have by law, statute, ordinance or otherwise. 6.16 Severability. The invalidity or unenforceability of any particular provision of this Agreement shall not affect the other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provision were omitted. -23- 24 IN WITNESS WHEREOF, each of the parties has executed or caused this Agreement to be executed by its duly authorized officer as of the date first above written. VOICESTREAM WIRELESS CORPORATION By: ------------------------------- Name: Title: HUTCHISON TELECOMMUNICATIONS PCS (USA) LIMITED By: ------------------------------- Name: Title: HUTCHISON TELECOMMUNICATIONS HOLDINGS (USA) LIMITED By: ------------------------------- Name: Title: HELLMAN & FRIEDMAN CAPITAL PARTNERS II, L.P., a California limited partnership By: Hellman & Friedman Investors, L.P., its general partner By: Hellman & Friedman Investors, Inc., its general partner By: ------------------------------- Name: Title: -24- 25 H & F ORCHARD PARTNERS, L.P., a California limited partnership By: H & F Orchard Investors, L.P., its general partner By: H & F Orchard Investors, Inc., its general partner By: ----------------------------- Name: Title: Vice president H & F INTERNATIONAL PARTNERS, L.P., a California limited partnership By: H & F International Investors, L.P., its general partner By: H & F International Investors, Inc., its general partner By: ----------------------------------- Name: Title: --------------------------------------------- JOHN W. STANTON --------------------------------------------- THERESA E. GILLESPIE PN CELLULAR, INC. By: ------------------------------- Name: Title: -25- 26 STANTON FAMILY TRUST By: ------------------------------- Name: , Trustee STANTON COMMUNICATIONS CORPORATION By: ------------------------------- Name: Title: THE GOLDMAN SACHS GROUP, L.P. By: ------------------------------- Name: Title: GS CAPITAL PARTNERS, L.P. By: GS Advisors L.P., General Partner By: GS Advisors, Inc., General Partner By: ------------------------------- Name: Title: BRIDGE STREET FUND 1992, L.P. By: Stone Street Performance Corp., Managing General Partner By: ------------------------------- Name: Title: -26- 27 STONE STREET FUND 1992, L.P. By: Stone Street Performance Corp., General Partner By: ------------------------------- Name: Title: PROVIDENCE MEDIA PARTNERS L.P. By: Providence Media GP Limited Partnership Its: General Partner By: Providence Ventures, L.P. Its: General Partner By: ------------------------------- Name: Title: -27- 28 VOTING AGREEMENT BY AND AMONG VOICESTREAM WIRELESS CORPORATION, HELLMAN & FRIEDMAN CAPITAL PARTNERS II, L.P., H&F ORCHARD PARTNERS, L.P., H&F INTERNATIONAL PARTNERS, L.P., JOHN W. STANTON and THERESA E. GILLESPIE, PN CELLULAR, INC., STANTON FAMILY TRUST, STANTON COMMUNICATIONS CORPORATION, GS CAPITAL PARTNERS, L.P., THE GOLDMAN SACHS GROUP, L.P., BRIDGE STREET FUND 1992, L.P., STONE STREET FUND 1992, L.P., PROVIDENCE MEDIA PARTNERS L.P., HUTCHISON TELECOMMUNICATIONS HOLDINGS (USA) LIMITED, AND HUTCHISON TELECOMMUNICATIONS PCS (USA) LIMITED DATED: _____________, 1999 29 TABLE OF CONTENTS
Section Page - ------- ---- 1. Certain Definitions................................................................. 2 1.1 "Agreement".................................................................. 2 1.3 "Beneficially Own"........................................................... 2 1.4 "Board"...................................................................... 3 1.5 "BSF"........................................................................ 3 1.6 "Business Day"............................................................... 3 1.7 "Common Stock"............................................................... 3 1.8 "Company".................................................................... 3 1.9 "Dispute".................................................................... 3 1.10 "Effective Date"............................................................. 3 1.11 "Exchange Act"............................................................... 3 1.12 "GS"......................................................................... 3 1.13 "GSC"........................................................................ 3 1.14 "GSCP"....................................................................... 3 1.15 "H&F"........................................................................ 4 1.16 "HFCP II".................................................................... 4 1.17 "HTL"........................................................................ 4 1.18 "Hutchison".................................................................. 4 1.19 "Immediate Family"........................................................... 4 1.20 "International".............................................................. 4 1.21 "JWS"........................................................................ 4 1.22 "Orchard".................................................................... 4 1.23 "Percentage Ownership"....................................................... 4 1.24 "Permitted Affiliate Transferee"............................................. 4 1.25 "Person"..................................................................... 5 1.26 "PN"......................................................................... 5 1.27 "Providence"................................................................. 5 1.28 "SCC"........................................................................ 5 1.29 "SFT"........................................................................ 5 1.30 "Shareholder"................................................................ 5 1.31 "Spin-Off" has the meaning .................................................. 5 1.32 "SSF"........................................................................ 5 1.33 "Stanton".................................................................... 5 1.34 "Subsidiary"................................................................. 5 1.35 "TEG"........................................................................ 5 1.36 "Transfer"................................................................... 6 1.37 "WWC"........................................................................ 6 1.38 "WWC Shareholders Agreement" has the meaning given in the preamble........... 6 2. Effectiveness; Legend............................................................... 6
-i- 30
Section Page - ------- ---- 3. Management of the Corporation....................................................... 7 3.1 Board of Directors........................................................... 7 3.2 Company Covenant............................................................. 11 4. Representations and Warranties...................................................... 12 5. Term................................................................................ 12 6. Miscellaneous....................................................................... 13 6.1 Successors, Assigns and Transferees.......................................... 13 6.2 Specific Performance, Etc.................................................... 14 6.3 Headings..................................................................... 14 6.4 Notices...................................................................... 14 6.5 Exchanges, Recapitalizations, Etc. Affecting the Company's Common Stock...... 17 6.6 Inspection and Compliance with Law........................................... 17 6.7 Waivers...................................................................... 18 6.8 Counterparts................................................................. 18 6.9 Obligations Several.......................................................... 18 6.10 Entire Agreement............................................................. 18 6.11 Applicable Law............................................................... 18 6.12 Arbitration.................................................................. 19 6.13 Failure to Pursue Remedies................................................... 22 6.14 Cumulative Remedies.......................................................... 22 6.15 Severability................................................................. 22
- ii - 31 Schedule 1 to Voting Agreement
No. of Shares of Common Stock Name of Shareholder Owned by Shareholders - ------------------- --------------------- Hellman & Friedman Capital Partners II, L.P. H&F Orchard Partners, L.P. H&F International Partners, L.P. GS Capital Partners, L.P. Bridge Street Fund 1992, L.P. Stone Street Fund 1992, L.P. The Goldman Sachs Group, L.P. PN Cellular, Inc. Stanton Communications Corporation John W. Stanton & Theresa E. Gillespie Stanton Family Trust Providence Media Partners L.P. Hutchison Telecommunications PCS (USA) Limited Hutchison Telecommunications Holdings (USA) Limited
EX-99.2 3 AGRMT. BY OMNIPOINT CORP. AND CERTAIN STOCKHOLDERS 1 AGREEMENT AGREEMENT, dated as of June 23, 1999, by and among OMNIPOINT CORPORATION, a Delaware corporation ("Omnipoint"), VOICESTREAM WIRELESS CORPORATION, a Washington corporation ("VoiceStream"), the individuals and entities set forth on Schedule I hereto (each, an "Omnipoint Stockholder" and, collectively, the "Omnipoint Stockholders") and the individuals and entities set forth on Schedule II hereto (each, a "VoiceStream Stockholder" and, collectively, the "VoiceStream Stockholders"). WHEREAS, concurrently herewith, each of Omnipoint and VoiceStream are entering into an Agreement and Plan of Reorganization (the "Reorganization Agreement") pursuant to which, among other things, wholly owned subsidiaries of VoiceStream Wireless Holding Corporation, a Delaware corporation ("Newco"), will be merged with and into each of Omnipoint and VoiceStream (such mergers, together with the related transactions contemplated in the Reorganization Agreement, being referred to herein collectively as the "Merger"); WHEREAS, each Omnipoint Stockholder is the beneficial owner of the number of shares of Omnipoint Common Stock set forth opposite such Omnipoint Stockholder's name in Schedule I hereto (the "Omnipoint Shares"); WHEREAS, each VoiceStream Stockholder is the beneficial owner of the number of shares of VoiceStream Common Stock set forth opposite such VoiceStream Stockholder's name in Schedule II hereto (the "VoiceStream Scheduled Shares"); WHEREAS, approval of the Reorganization Agreement by each of Omnipoint's and VoiceStream's stockholders is a condition to the consummation of the Merger; and WHEREAS, as a condition to its entering into the Reorganization Agreement, (i) VoiceStream has required that each Omnipoint Stockholder agree, and each Omnipoint Stockholder has agreed, to enter into this Agreement, and (ii) Omnipoint has required that each VoiceStream Stockholder agree, and each VoiceStream Stockholder has agreed, to enter into this Agreement; NOW THEREFORE, in consideration of the foregoing and the mutual covenants and agreements set forth herein, the parties hereto agree as follows: Section 1. Definitions. Capitalized terms used herein and not otherwise defined have the meaning ascribed to such term in the Reorganization Agreement. 2 Section 2. Agreement to Vote by Omnipoint Stockholders. (a) Each Omnipoint Stockholder hereby agrees to attend the Omnipoint Stockholders' Meeting, in person or by proxy, and to vote (or cause to be voted) all Omnipoint Shares, and any other voting securities of Omnipoint, beneficially owned by such Omnipoint Stockholder (whether issued heretofore or hereafter) that such Omnipoint Stockholder owns or has the right to vote, (i) in favor of adoption and approval of the Reorganization Agreement and the Merger and any other matters necessary to consummate the transactions contemplated in the Reorganization Agreement and (ii) against any Alternative Proposal or Superior Proposal; such agreement to vote shall apply also to any adjournment or adjournments of the Omnipoint Stockholders' Meeting. (b) From and after the date hereof through the earlier of the Effective Time or the termination of the Reorganization Agreement, each Omnipoint Stockholder (other than with respect to any distribution by Madison Dearborn Capital Partners, L.P. of its Omnipoint Shares to its partners) hereby agrees not to sell, transfer, pledge, encumber or otherwise dispose of (collectively, "Transfer") in the aggregate and whether in a single transaction or a series of unrelated transactions more than thirty (30%) percent of the Omnipoint Shares beneficially owned by such Omnipoint Stockholder on the date hereof, unless, as a condition to any such Transfer, each transferee (or, in the case of a pledge or similar transfer, each pledgee or similar conditional transferee) of any shares in excess of thirty (30%) percent of the Omnipoint Shares beneficially owned by such Omnipoint Stockholder shall, prior to such Transfer (or, in the case of a pledge or similar Transfer, prior to taking title to or exercising any rights with respect to the applicable Omnipoint Shares), agree in writing to be bound by all of the provisions of this Agreement applicable to the Omnipoint Stockholders (and such transferee shall thereby become an Omnipoint Stockholder for all purposes of this Agreement), except that such Transferee shall not be entitled to Transfer any such shares unless all transferees of all shares so transferred agree to be bound by the terms of Section 2(a) hereof and such Transferee (and such Transferee's transferees) shall not be entitled to the benefits of the exception applicable to the Omnipoint Stockholders with respect to 30% of the Omnipoint Shares beneficially owned by them. Any Transfer of such shares and securities without compliance with such provisions of this Agreement shall be null and void and such transferee shall have no rights as a stockholder of Omnipoint. (c) To the extent inconsistent with the foregoing provisions of this Section 2, each Omnipoint Stockholder hereby revokes any and all previous proxies with respect to such Omnipoint Stockholder's Omnipoint Shares or any other voting securities of Omnipoint. Section 3. Agreement to Vote by VoiceStream Stockholders. (a) Each VoiceStream Stockholder hereby agrees to attend the VoiceStream Stockholders' Meeting, in person or by proxy, and to vote (or cause to be voted) all VoiceStream Scheduled Shares owned by such VoiceStream Stockholder at the time of the VoiceStream 2 3 Stockholders' Meeting in favor of adoption and approval of the Reorganization Agreement, the Merger and the Hutchison Transaction and any other matters necessary to consummate the transactions contemplated in the Reorganization Agreement; such agreement to vote shall apply also to any adjournment or adjournments of the VoiceStream Stockholders' Meeting. (b) From and after the date hereof through the earlier of the Effective Time or the termination of the Reorganization Agreement, each VoiceStream Stockholder (other than with respect to any distribution by Hellman & Friedman Capital Partners II, L.P., H&F Orchard Partners, L.P., H&F International Partners, L.P., GS Capital Partners, L.P., Bridge Street Fund 1992, L.P., Stone Street Fund 1992, L.P. or Providence Media Partners L.P. of their VoiceStream shares to their partners) hereby agrees not to Transfer in the aggregate and whether in a single transaction or a series of unrelated transactions more than (30%) percent of the VoiceStream Scheduled Shares, unless, as a condition to any such Transfer, each transferee (or, in the case of a pledge or similar transfer, each pledgee or similar conditional transferee) of any shares in excess of thirty (30%) percent of the VoiceStream Scheduled Shares, prior to such Transfer (or, in the case of a pledge or similar transfer, prior to taking title to or exercising any rights with respect to the applicable VoiceStream Scheduled Shares), agree in writing to be bound by all of the provisions of this Agreement applicable to the VoiceStream Stockholders (and such transferee shall thereby become a VoiceStream Stockholder for all purposes of this Agreement), except that such Transferee shall not be entitled to Transfer any such shares unless all transferees of all shares so transferred agree to be bound by the terms of Section 3(a) hereof and such Transferee (and such Transferee's transferees) shall not be entitled to the benefits of the exception applicable to the VoiceStream Stockholders with respect to 30% of the VoiceStream Scheduled Shares. Any Transfer of such shares and securities without compliance with such provisions of this Agreement shall be null and void and such transferee shall have no rights as a stockholder of VoiceStream. (c) To the extent inconsistent with the foregoing provisions of this Section 3, each VoiceStream Stockholder hereby revokes any and all previous proxies with respect to such VoiceStream Stockholder's VoiceStream Scheduled Shares. Section 4. Amendment of Existing VoiceStream Voting Agreement. The VoiceStream Stockholders are parties to a Voting Agreement, dated May 3, 1999 ("VoiceStream Voting Agreement"), pursuant to which they have agreed to vote their VoiceStream Scheduled Shares owned by each of them at the time of such vote in favor of directors designated by such VoiceStream Stockholders. Effective on the Effective Time the VoiceStream Stockholders shall terminate the VoiceStream Voting Agreement and enter into a new Voting Agreement ("Newco Voting Agreement") with the Omnipoint Stockholders on terms mutually satisfactory to the VoiceStream Stockholders and the Omnipoint Stockholders, pursuant to which the voting arrangements which existed under the VoiceStream Voting Agreement will apply to Newco and the provisions of Section 6.1 of the Securities Purchase Agreement, of even date herewith, between VoiceStream and Omnipoint, will also be effectuated. 3 4 Section 5. Representations and Warranties of VoiceStream and Omnipoint. (a) VoiceStream represents and warrants to Omnipoint and each Omnipoint Stockholder as follows: (i) each of this Agreement and the Reorganization Agreement has been approved by the Board of Directors of VoiceStream and (ii) each of this Agreement and the Reorganization Agreement has been duly executed and delivered by VoiceStream and constitutes its valid and binding agreement, enforceable against it in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws of general application which may affect the enforcement of creditors' rights generally and by general equitable principles. (b) Omnipoint represents and warrants to VoiceStream and each VoiceStream Stockholder as follows: (i) each of this Agreement and the Reorganization Agreement has been approved by the Board of Directors of Omnipoint and (ii) each of this Agreement and the Reorganization Agreement has been duly executed and delivered by Omnipoint and constitutes its valid and binding agreement, enforceable against it in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws of general application which may affect the enforcement of creditors' rights generally and by general equitable principles. Section 6. Representations and Warranties of the Omnipoint Stockholders and VoiceStream Stockholders. (a) Each Omnipoint Stockholder, severally, as to such Omnipoint Stockholder, represents and warrants to VoiceStream as follows: (i) this Agreement has been duly executed and delivered by such Omnipoint Stockholder and constitutes its valid and binding agreement, enforceable against it in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws of general application which may affect the enforcement of creditors' rights generally and by general equitable principles; and (ii) the Omnipoint Shares listed next to the name of such Omnipoint Stockholder on Schedule I hereto are the only voting securities of Omnipoint owned (beneficially or of record) by it. (b) Each VoiceStream Stockholder, severally, as to such VoiceStream Stockholder, represents and warrants to Omnipoint that this Agreement has been duly executed and delivered by such VoiceStream Stockholder and constitutes its valid and binding agreement, enforceable against it in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws of general application which may affect the enforcement of creditors' rights generally and by general equitable principles. Section 7. Effectiveness and Termination. It is a condition precedent to the effectiveness of this Agreement that the Reorganization Agreement shall have been executed and delivered and be in full force and effect. In the event the Reorganization Agreement is terminated in accordance with its terms, this Agreement shall automatically terminate and be of no further force 4 5 or effect. Upon such termination, except for any rights any party may have in respect of any breach by any other party of its or his obligations hereunder, none of the parties hereto shall have any further obligation or liability hereunder. Section 8. Miscellaneous. (a) Notices, Etc. All notices, requests and other communications to any party hereunder shall be in writing (including facsimile transmission) and shall be given, if to VoiceStream, to it at: 3650 131 Avenue SE Bellevue, Washington 98006 Attention: Alan R. Bender, Esq. Fax: (425) 586-8080 with a copy to: Friedman Kaplan & Seiler LLP 875 Third Avenue New York, New York 10022 Attention: Barry A. Adelman, Esq. Fax: (212) 355-6401 if to any VoiceStream Stockholder, to it at the address set forth on Schedule II hereto; if to Omnipoint, to it at: Omnipoint Corporation 3 Bethesda Metro Center Suite 400 Bethesda, Maryland 20814 Attention: Douglas G. Smith Fax: 301-951-3591 with a copy to: Piper & Marbury L.L.P. 1200 Nineteenth Street, N.W. Washington, D.C. 20036 Attention: Edwin M. Martin, Jr., Esq. Fax: (202) 233-2085 5 6 if to any Omnipoint Stockholder, to it at the address set forth on Schedule I hereto; or such other address or facsimile number as such party may hereafter specify for the purpose by notice to the other parties hereto. All such notices, requests and other communications shall be deemed received on the date of receipt by the recipient thereof if received prior to 5 p.m. on a Business Day, in the place of receipt. Otherwise, any such notice, request or communication shall be deemed not to have been received until the next succeeding Business Day in the place of receipt. (b) Amendments; No Waivers. (i) Subject to applicable law, any provision of this Agreement may be amended or waived, but only if, such amendment or waiver is in writing and is signed, in the case of an amendment, by each party to this Agreement or, in the case of a waiver, by each party against whom the waiver is to be effective. (ii) No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law. (c) Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of and be enforceable by the parties and their respective successors and assigns, including, without limitation, in the case of any corporate party hereto any corporate successor by merger or otherwise, and in the case of any individual party hereto any trustee, executor, heir, legatee or personal representative succeeding to the ownership of such party's shares of Omnipoint Common Stock or other securities subject to this Agreement. Notwithstanding any Transfer of shares of Omnipoint Common Stock the transferor shall remain liable for the performance of all obligations under this Agreement of transferor. (d) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to the conflicts of law rules of such State. (e) Jurisdiction. Any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereby shall be brought in any federal court located in the State of Delaware or any Delaware state court, and each of the parties hereby consents to the exclusive jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such suit, action or proceeding and irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. Process in any such suit, action or proceeding may be served on any party anywhere in the world, whether within or without the jurisdiction of any such court. Without limiting the foregoing, each 6 7 party agrees that service of process on such party as provided in Section 6(e) shall be deemed effective service of process on such party. (f) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. (g) Counterparts; Effectiveness. This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. This Agreement shall become effective when each party hereto shall have received counterparts hereof signed by all of the other parties hereto. No provision of this Agreement is intended to confer any rights, benefits, remedies, obligations or liabilities hereunder upon any Person other than the parties hereto and their respective successors and assigns. (h) Entire Agreement. This Agreement, together with the Reorganization Agreement, constitutes the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all prior agreements and understandings, both oral and written, between the parties with respect to such subject matter. (i) Captions. The captions herein are included for convenience of reference only and shall be ignored in the construction or interpretation hereof. (j) Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other authority to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such a determination, the parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner so that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible. (k) Specific Performance. The parties hereto agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with the terms hereof and that the parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement or to enforce specifically the performance of the terms and provisions hereof in any federal court located in the State of Delaware or any Delaware state court, in addition to any other remedy to which they are entitled at law or in equity. (l) Remedies Cumulative. All rights, powers and remedies provided under this Agreement or otherwise available in respect hereof at law or in equity shall be cumulative and not 7 8 alternative, and the exercise or beginning of the exercise of any thereof by any party shall not preclude the simultaneous or later exercise of any other such right, power or remedy by such party. (m) Limitation on Liability. No party hereto shall have any liability hereunder for any actions or omissions of any other party hereto. (n) Expenses. Each party hereto shall bear its own expenses incurred in connection with this Agreement. (o) Further Assurances. Each party hereto agrees that such party shall execute and deliver such additional instruments and other documents and shall take such further actions as may be necessary or appropriate to effectuate, carry out and comply with all of their obligations under this Agreement. Without limiting the generality of the foregoing, none of the parties hereto shall enter into any agreement or arrangement (or alter, amend or terminate any existing agreement or arrangement) if such action would impair the ability of any party to effectuate, carry out or comply with all the terms of this Agreement. 8 9 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the day and year first above written. VOICESTREAM WIRELESS CORPORATION By: ------------------------------- Name: Title: OMNIPOINT CORPORATION By: ------------------------------- Name: Title: VOICESTREAM STOCKHOLDERS: Hellman & Friedman Capital Partners II, L.P., a California limited partnership By: Hellman & Friedman Investors, L.P., its general partner By: Hellman & Friedman Investors, Inc., its general partner By: ------------------------------- Name: Title: 10 H&F Orchard Partners, L.P., a California limited partnership By: H&F Orchard Investors, L.P., its general partner By: H&F Orchard Investors, Inc., its general partner By: ------------------------------- Name: Title: H&F International Partners, L.P., a California limited partnership By: H&F International Investors, L.P., its general partner By: H&F International Investors, Inc., its general partner By: ------------------------------- Name: Title: ----------------------------------------- John W. Stanton ----------------------------------------- Theresa E. Gillespie 11 PN Cellular, Inc. By: ------------------------------- Name: Title: Stanton Family Trust By: ------------------------------- Name: , Trustee Stanton Communications Corporation By: ------------------------------- Name: Title: GS Capital Partners, L.P. By: GS Advisors L.P., General Partner By: GS Advisors, Inc., General Partner By: ------------------------------- Name: Title: The Goldman Sachs Group, Inc. By: ------------------------------- Name: Title: 12 Bridge Street Fund 1992, L.P. By: Stone Street Performance Corp., Managing General Partner By: ------------------------------- Name: Title: Stone Street Fund 1992, L.P. By: Stone Street Performance Corp., General Partner By: ------------------------------- Name: Title: Providence Media Partners L.P. By: Providence Media G.P. Limited Partnership, General Partner By: Providence Ventures L.P., General Partner By: ------------------------------- Name: Title: 13 Hutchison Telecommunications Holdings (USA) Limited By: ------------------------------- Name: Title: Hutchison Telecommunications PCS (USA) Limited By: ------------------------------- Name: Title: 14 OMNIPOINT STOCKHOLDERS: [TO BE PROVIDED] 15 SCHEDULE I OMNIPOINT STOCKHOLDERS
NAME AND ADDRESS OF STOCKHOLDER NUMBER OF OMNIPOINT SHARES - ------------------------------- --------------------------
16 SCHEDULE II VOICESTREAM STOCKHOLDERS
NAME AND ADDRESS OF STOCKHOLDER NUMBER OF VOICESTREAM SCHEDULED SHARES ------------------------------- --------------------- Hellman & Friedman Capital Partners II, L.P. 6,592,285 c/o Hellman & Friedman LLC One Maritime Plaza, Suite 1200 San Francisco, California 94111 Attention: Mitchell R. Cohen Fax: 415-788-0176 H&F Orchard Partners, L.P. 589,693 c/o Hellman & Friedman One Maritime Plaza, Suite 1200 San Francisco, California 94111 Attention: Mitchell R. Cohen Fax: 415-788-0176 H&F International Partners, L.P. 117,019 c/o Hellman & Friedman One Maritime Plaza, Suite 1200 San Francisco, California 94111 Attention: Mitchell R. Cohen Fax: 415-788-0176 John W. Stanton and Theresa E. Gillespie 3,192,774 c/o VoiceStream Wireless Corporation 3650 131st Avenue S.E., Suite 400 Bellevue, WA 98006 Attention: John W. Stanton Fax: 425-586-8010 PN Cellular, Inc. 1,686,069 c/o VoiceStream Wireless Corporation 3650 131st Avenue S.E., Suite 400 Bellevue, WA 98006 Attention: John W. Stanton Fax: 425-586-8010
17
NAME AND ADDRESS OF STOCKHOLDER NUMBER OF VOICESTREAM SCHEDULED SHARES ------------------------------- --------------------- Stanton Family Trust 164,437 c/o VoiceStream Wireless Corporation 3650 131st Avenue S.E., Suite 400 Bellevue, WA 98006 Attention: John W. Stanton Fax: 425-586-8010 Stanton Communications Corporation 1,274,520 c/o VoiceStream Wireless Corporation 3650 131st Avenue S.E., Suite 400 Bellevue, WA 98006 Attention: John W. Stanton Fax: 425-586-8010 GS Capital Partners, L.P. 8,986,738 c/o Goldman, Sachs & Co. 85 Broad Street New York, NY 10004 Attention: Terence O'Toole Fax: 212-902-3000 The Goldman Sachs Group, Inc. 68,821 c/o Goldman, Sachs & Co. 85 Broad Street New York, NY 10004 Attention: Terence O'Toole Fax: 212-902-3000 Bridge Street Fund 1992, L.P. 273,069 c/o Goldman, Sachs & Co. 85 Broad Street New York, NY 10004 Attention: Terence O'Toole Fax: 212-902-3000 Stone Street Fund 1992, L.P. 470,401 c/o Goldman, Sachs & Co. 85 Broad Street New York, NY 10004 Attention: Terence O'Toole Fax: 212-902-3000
18
NAME AND ADDRESS OF STOCKHOLDER NUMBER OF VOICESTREAM SCHEDULED SHARES ------------------------------- --------------------- Providence Media Partners L.P. 2,640,049 c/o Providence Ventures, Inc. 900 Fleet Center 50 Kennedy Plaza Providence, Rhode Island 02903 Attention: Jonathan Nelson Fax: 401-751-1790 Hutchison Telecommunications PCS (USA) Limited 19,010,364 c/o Offshore Incorporations Limited P.O. Box 957 Offshore Incorporations Centre Road Town, Tortola British Virgin Islands Telephone No.: 809-494-2233 Facsimile No.: 809-494-4885 and: c/o Hutchison Telecommunications Limited 22nd Floor, Hutchison House 10 Harcourt Road Hong Kong Attention: Ms. Edith Shih Fax: 852-2128-1778
19
NAME AND ADDRESS OF STOCKHOLDER NUMBER OF VOICESTREAM SCHEDULED SHARES ------------------------------- --------------------- Hutchison Telecommunications Holdings (USA) Limited 3,888,888 c/o Offshore Incorporations Limited P.O. Box 957 Offshore Incorporations Centre Road Town, Tortola British Virgin Islands Telephone No.: 809-494-2233 Facsimile No.: 809-494-4885 and: c/o Hutchison Telecommunications Limited 22nd Floor, Hutchison House 10 Harcourt Road Hong Kong Attention: Ms. Edith Shih Fax: 852-2128-1778
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