EXHIBIT 8
PARENT STOCKHOLDER AGREEMENT
----------------------------
PARENT STOCKHOLDER AGREEMENT, dated as of September 17, 1999 (this
"Agreement") by and among Aerial Communications, Inc., a Delaware corporation
("Company"), Telephone and Data Systems, Inc., a Delaware corporation ("TDS"),
VoiceStream Wireless Corporation, a Washington corporation ("VoiceStream"),
VoiceStream Wireless Holding Corporation, a Delaware corporation
("Holding")(VoiceStream and Holding are collectively referred to as Parent as
provided in Section 1(b)) and the individuals and entities set forth on Schedule
I hereto (each a "Parent Stockholder" and, collectively, the "Parent
Stockholders").
RECITALS
--------
WHEREAS, each Parent Stockholder is a stockholder of VoiceStream;
WHEREAS, Company, VoiceStream, Holding, VoiceStream Subsidiary III
Corporation, a Delaware corporation and a wholly-owned subsidiary of Parent
("Sub"), and Telephone and Data Systems, Inc. ("TDS") are entering into an
Agreement and Plan of Reorganization, dated as of September 17, 1999 (the
"Reorganization Agreement"), providing for, among other things, the merger of
Sub with and into Company and the conversion of shares of Company Common Stock
into shares of Parent Common Stock, par value $0.001(the "Parent Common Stock");
WHEREAS, the Board of Directors of Parent, at a meeting duly called
and held, duly adopted resolutions approving, among other things, the
Reorganization Agreement and the Reorganization, determining that the
Reorganization and the issuance (the "Parent Share Issuance") of shares of
Parent Common Stock in accordance with the Reorganization to be fair to, and in
the best interests of, Parent's stockholders;
WHEREAS, each Parent Stockholder owns beneficially the number of
shares of Parent Common Stock set forth opposite such Parent Stockholder's name
in Schedule I hereto (the "VoiceStream Scheduled Shares"); and
WHEREAS, as a condition to Company's willingness to enter into the
Reorganization Agreement and as a condition to TDS's willingness to enter into a
stockholder agreement (the "TDS Stockholder Agreement") with respect to the
Reorganization Agreement, each of Company and TDS has required that each Parent
Stockholder agree, and in order to induce Company to enter into the
Reorganization Agreement and to induce TDS to enter into the TDS Stockholder
Agreement, each Parent 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:
1. Defined Terms and Certain Matters. (a) Capitalized terms used in
---------------------------------
this Agreement that are not defined herein shall have such meanings as set forth
in the Reorganization Agreement.
(b) VoiceStream, Holding and Omnipoint Corporation, a Delaware
corporation ("Omnipoint"), have entered into an Agreement and Plan of
Reorganization dated as of June 23, 1999 (the "Omnipoint Agreement") providing
for, among other things, the acquisition of Omnipoint. VoiceStream shall be the
Parent for purposes of this Agreement until the earlier of the closing of the
reorganization contemplated by the Omnipoint Agreement ("Omnipoint
Reorganization") or the Merger provided for in the Reorganization Agreement.
"Qualified Designee" shall mean an individual who is not an officer,
director, management level employee or Affiliate of TDS, or of any Person in
which TDS or any Affiliate of TDS has an "attributable interest" (as defined by
applicable FCC rules and regulations) designated by TDS provided that Parent
shall have the right to approve the designee, which approval shall not be
unreasonably withheld.
"Beneficially Owned" and "Beneficial Ownership" have the meaning set
forth in Rule 13d-3 of the rules and regulations promulgated under the Exchange
Act; 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.
2. Voting Agreement and Director Designees.
---------------------------------------
(a) Parent Stockholders are parties to a Voting
Agreement, dated May 3, 1999 ("VoiceStream Voting Agreement"), pursuant to which
each Parent Stockholder agreed on the terms set forth in the VoiceStream Voting
Agreement to vote the shares of Parent Common Stock Beneficially Owned by it at
the time of a vote in favor of directors designated by such Parent Stockholders.
On June 23, 1999 the Parent Stockholders entered into an Agreement (the
"Omnipoint Voting Agreement") with certain stockholders of Omnipoint (the
"Omnipoint Stockholders") in which they agreed, among other things, to terminate
the VoiceStream Voting Agreement and enter into a new Voting Agreement on terms
mutually satisfactory to Omnipoint Stockholders and Parent Stockholders ("Newco
Voting Agreement") which will set forth voting arrangements which will apply to
Holding after the Omnipoint Reorganization. The Parent Stockholders and TDS
hereby agree as follows: (i) if at the Effective Time the Omnipoint
Reorganization has not been consummated, the Parent Stockholders and TDS shall
enter into a voting agreement ("Newco Voting Agreement II") effective on the
Effective Time on terms mutually satisfactory to the Parent Stockholders and
TDS, pursuant to which (w) the voting arrangements which existed under the
VoiceStream Voting Agreement will apply to Parent, (x) the provisions of Section
2(b) below shall also be effectuated, (y) the provisions of the letter
agreement, dated June 23, 1999 ("Xxxxxxxxx Letter"), with Xxxxxxxxxx will be
effectuated, and (z) upon consummation of the Omnipoint Reorganization, the
provisions of Section 7.4 of the Omnipoint Agreement shall be effectuated; (ii)
if at the Effective Time the Omnipoint Reorganization has been consummated, the
Parent Stockholders and TDS shall enter into, and shall use reasonable efforts
to seek to have the Omnipoint Stockholders to enter into, Newco Voting Agreement
II, effective on the Effective Time on terms mutually satisfactory to the Parent
Stockholders, TDS and the Omnipoint Stockholders effectuating each of clauses
(w), (x), (y) and (z) above. If the Omnipoint Stockholders do not enter into
Newco Voting Agreement II which shall be effective at the Effective Time, the
Parent Stockholders and TDS shall enter into Newco Voting Agreement II effective
at the Effective Time, it being understood and agreed that the Parent
Stockholders and the Omnipoint Stockholders will still enter into the Newco
Voting Agreement.
(b) Pursuant to Newco Voting Agreement II each of the Parent
Stockholders and TDS (and the Omnipoint Stockholders if they agree to enter into
such agreement) shall agree, on the terms set forth therein, to vote, or cause
to be voted, all of the shares of Parent Common Stock Beneficially Owned by it
at the time of the vote in person or by proxy (and shall take all other
necessary or desirable action within TDS or such Parent Stockholder's control
including attendance at meetings in person or by proxy for purposes of obtaining
a quorum and execution of
written consents in lieu of meetings), for the election and continuation in
office of (i) one (1) Qualified Designee as director of Parent so long as TDS
Beneficially Owns at least 4,500,000 shares of Parent Common Stock; provided,
however if TDS owns more than 9,800,000 shares of Parent Common Stock and Sonera
Ltd. and its Affiliates own less than 4,500,000 shares of Parent Common Stock,
TDS shall be permitted to designate two (2) Qualified Designees as directors of
Parent; (ii) the directors designated by the Parent Stockholders pursuant to the
VoiceStream Voting Agreement (as restated in Newco Voting Agreement II), the
Xxxxxxxxx Letter and Section 7.4 of the Omnipoint Agreement.
(c) By their execution of this Agreement each Parent Stockholder
severally agrees to be bound by the provisions of Sections 6(a) and 6(b) of the
Investor Agreement, dated as of September 17, 1999, among Sonera Ltd.,
VoiceStream and Holding and agree that Sonera Ltd. shall be a third party
beneficiary of this sub clause (c).
(d) Parent agrees if necessary, to amend the Bylaws of Parent, to
increase the number of authorized directors to a number sufficient to satisfy
the obligations in the VoiceStream Voting Agreement, Newco Voting Agreement and
Newco Voting Agreement II, as applicable.
3. Covenants of Each Parent Stockholder. Until the earlier of the
------------------------------------
Effective Time or the termination of this Agreement in accordance with Section
5, each Parent Stockholder covenants and agrees as follows:
(a) Each Parent Stockholder hereby agrees to attend the Parent
Stockholders' Meeting, in person or by proxy, and to vote (or cause to be voted)
all VoiceStream Scheduled Shares owned by such Parent Stockholder at the time of
the Parent Stockholders' Meeting in favor of adoption and approval of the
Reorganization Agreement, the Merger and the Parent Share Issuance 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 Parent Stockholders' Meeting.
(b) Each of Xxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxxxxx, PN Cellular, Inc.,
Xxxxxxx Family Trust, Xxxxxxx Communications Corporation, Xxxxxxxxx
Telecommunications Holdings (USA) Limited and Xxxxxxxxx Telecommunications PCS
(USA) Limited (collectively the "Designated Parent Stockholders") hereby agrees
not to sell, transfer, pledge, encumber or otherwise dispose of (collectively,
"Transfer") any of its VoiceStream Scheduled Shares, unless, as a condition to
any such Transfer, each transferee (or, in the case of a pledge or similar
transfer, each pledge or similar
conditional transferee) of any such 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), agrees in
writing to be bound by the provisions of Sections 3 and 5 through 16 of this
Agreement applicable to the Parent Stockholders (and such transferee shall
thereby become a Parent Stockholder for all purposes of Sections 3 and 5 through
16 of this Agreement). Any Transfer by a Designated Parent Stockholders of such
shares and securities without compliance with this Section 3(b) 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 Parent Stockholder hereby revokes any and all previous proxies
with respect to such Parent Stockholder's VoiceStream Scheduled Shares.
4. Representations and Warranties of Parent Stockholder. Each
----------------------------------------------------
Parent Stockholder, severally, as to such Parent Stockholder, represents and
warrants (which representations shall continue for the term of this Agreement)
to each of Company and TDS as follows:
(a) Such Parent Stockholder has the legal capacity, power and
authority to enter into and perform all of such Parent Stockholder's obligations
under this Agreement. To the extent such Parent Stockholder is a legal entity,
the execution, delivery and performance of this Agreement by such Parent
Stockholder has been duly authorized by all requisite corporate or other entity
action and does not violate such Parent Stockholder's organizational documents.
The execution, delivery and performance of this Agreement by such Parent
Stockholder does not violate any other instrument or agreement or any law,
regulation or order applicable to such Parent Stockholder or its assets,
including, without limitation, any voting agreement, stockholders agreement or
voting trust. This Agreement has been duly and validly executed and delivered
by such Parent Stockholder and constitutes a valid and binding agreement of such
Parent Stockholder, enforceable against such Parent Stockholder in accordance
with its terms.
(b) (i) Such Parent Stockholder is the beneficial owner of, and has
good and marketable title to, the VoiceStream Scheduled Shares set forth
opposite its name on Schedule I, and (ii) such Parent Stockholder has the sole
right to vote, the sole power of disposition with respect to, and the sole power
to demand appraisal rights with respect to, the VoiceStream Scheduled Shares set
forth opposite its name on Schedule I, and none of such shares is subject to any
voting trust, proxy or
other agreement, arrangement or restriction with respect to the voting of such
shares which in any way limits, restricts or conflicts with this Agreement.
5. Termination. This Agreement shall terminate upon the earlier of
-----------
(i) termination of the Reorganization Agreement as provided for in Section 8.1
of the Reorganization Agreement or (ii) the later of (A) the Effective Time or
(B) full execution of Newco Voting Agreement II as provided for in Section 2(a).
6. Further Assurances. Each Parent Stockholder, Company and TDS
------------------
will, from time to time, execute and deliver, or cause to be executed and
delivered, such additional or further consents, proxies, documents and other
instruments as the other may reasonably request for the purpose of effectively
carrying out the transactions contemplated by this Agreement.
7. Successors, Assigns and Transferees Bound. This Agreement shall
-----------------------------------------
be binding upon the successors, assigns and, to the extent set forth in Section
3(b) hereof with respect to Designated Parent Stockholders, transferees of the
parties hereto, and the parties hereto shall take any and all actions necessary
to obtain the written confirmation from any such successor, assignee and, to the
extent set forth in Section 3(b) hereof with respect to Designated Parent
Stockholders, transferee that it is bound by the terms hereof.
8. Remedies. Each party hereto acknowledges that money damages
--------
would be both incalculable and an insufficient remedy for any breach of this
Agreement by it, and that any such breach would cause the other party
irreparable harm. Accordingly, each party agrees that in the event of any breach
or threatened breach of this Agreement, the other party, in addition to any
other remedies at law or in equity it may have, shall be entitled, without the
requirement of posting a bond or other security, to equitable relief, including
injunctive relief and specific performance.
9. Submission to Jurisdiction. Each party hereto hereby irrevocably
--------------------------
submits in any suit, action or proceeding arising out of or related to this
Agreement or any of the transactions contemplated hereby or thereby to the
exclusive jurisdiction of the United States District Court for the District of
Delaware and the courts of the State of Delaware and waives any and all
objections to jurisdiction that it may have under the laws of the State of
Delaware or the United States and any claim or objection that any such court is
an inconvenient forum.
10. Severability. The invalidity or unenforceability of any
------------
provision of this Agreement in any jurisdiction shall not
affect the validity or enforceability of any other provision of this Agreement
in such jurisdiction, or the validity or enforceability of any provision of this
Agreement in any other jurisdiction.
11. Amendment. This Agreement may be amended only by means of a
---------
written instrument executed and delivered by each of the Parent Stockholders,
Company and TDS.
12. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
-------------
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE, REGARDLESS OF
THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICTS OF
LAWS.
13. Counterparts. For the convenience of the parties, this Agreement
------------
may be executed in counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
14. Notices. All notices and other communications hereunder shall be
-------
in writing and shall be deemed given if delivered personally, sent by overnight
courier (providing proof of delivery) or telecopied (with a confirmatory copy
sent by overnight courier) to the parties at the following addresses (or at such
other address for a party as shall be specified by like notice):
(a) if to Company, to
Aerial Communications, Inc.
0000 Xxxx Xxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: President
Telecopy No.: 000-000-0000
with a copy to:
Aerial Company Communications, Inc.
c/o Telephone and Data Systems, Inc.
00 Xxxxx XxXxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Chairman
Telecopy No.: 000-000-0000
with a copy to:
Sidley & Austin
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxx, Esq.
Telecopy No.: 312-853-7036
(b) if to TDS, to
Telephone and Data Systems, Inc.
00 Xxxxx XxXxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Chairman
Telecopy No.: 000-000-0000
with a copy to:
Sidley & Austin
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxx, Esq.
Telecopy No.: 312-853-7036
(c) if to VoiceStream, to
VoiceStream Wireless Corporation
0000 000xx Xxxxxx X.X.
Xxxxx 000
Xxxxxxxx, XX 00000
Attention: General Counsel
Telecopy No.: 000-000-0000
with a copy to:
Xxxxxxxx Xxxxxx & Xxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx, Esq.
Telecopy No.: 000-000-0000
and
Xxxxxxx Xxxxx & Xxxxx LLP
0000 Xxxxxxxx Xxxxxx
000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxx, Esq.
Telecopy No.: 206-623-7022
(d) if to Holding, to
VoiceStream Wireless Holding Corporation
0000 000xx Xxxxxx X.X.
Xxxxx 000
Xxxxxxxx, XX 00000
Attention: General Counsel
Telecopy No.: 000-000-0000
with a copy to:
Xxxxxxxx Xxxxxx & Xxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx, Esq.
Telecopy No.: 000-000-0000
and
Xxxxxxx Xxxxx & Xxxxx LLP
0000 Xxxxxxxx Xxxxxx
000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxx, Esq.
Telecopy No.: 206-623-7022
(e) if to a Parent Stockholder, to it at the corresponding address set
forth on Schedule I hereto.
15. Limitation on Liability. No party hereto shall have any
-----------------------
liability hereunder for any acts or omissions of any other party hereto.
16. Expenses. Each party hereto shall bear its own expenses incurred
--------
in connection with this Agreement.
* * * * * *
IN WITNESS WHEREOF, the parties have signed this Agreement as of the
date noted above.
AERIAL COMMUNICATIONS, INC.
By: /s/ XxXxx X. Xxxxxxx, Xx.
---------------------------
Name: XxXxx X. Xxxxxxx, Xx.
Title: Chairman
TELEPHONE AND DATA SYSTEMS, INC.
By: /s/ XxXxx X. Xxxxxxx
--------------------------
Name: XxXxx X. Xxxxxxx
Title: Chairman
PARENT STOCKHOLDERS:
XXXXXXX & XXXXXXXX CAPITAL PARTNERS II,
L.P., A CALIFORNIA LIMITED PARTNERSHIP
By: Xxxxxxx & Xxxxxxxx Investors, L.P.,
its general partner
By: Xxxxxxx & Xxxxxxxx Investors,
Inc., its general partner
By: /s/ Xxxxxxxx Xxxxx
----------------------
Name: Xxxxxxxx Xxxxx
Title: Vice President
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 partner
By: /s/ Xxxxxxxx Xxxxx
----------------------
Name: Xxxxxxxx Xxxxx
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
partner
By: /s/ Xxxxxxxx Xxxxx
----------------------
Name: Xxxxxxxx Xxxxx
Title: Vice President
/s/ Xxxx X. Xxxxxxx
------------------------
Xxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxxxx
------------------------
Xxxxxxx X. Xxxxxxxxx
PN CELLULAR, INC.
By: /s/ Xxxx X. Xxxxxxx
-------------------------
Name: Xxxx X. Xxxxxxx
Title:
XXXXXXX FAMILY TRUST
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Trustee
XXXXXXX COMMUNICATIONS CORPORATION
By: /s/ Xxxx X. Xxxxxxx
-------------------------
Name: Xxxx X. Xxxxxxx
Title:
GS CAPITAL PARTNERS, L.P.
By: GS Advisors L.P., General Partner
By: GS Advisors, Inc., General Partner
By: /s/ Xxx X. Xxxxxxxx
----------------------
Name: Xxx X. Xxxxxxxx
Title: Vice President
THE XXXXXXX SACHS GROUP, INC.
By: /s/ Xxxxxx X. Glebermer
---------------------------
Name: Xxxxxx X. Glebermer
Title: Vice President
XXXXXX XXXXXX XXXX 0000, X.X.
By: Stone Street Performance Corp.,
Managing General Partner
By: /s/ Xxx X. Xxxxxxxx
----------------------
Name: Xxx X. Xxxxxxxx
Title: Vice President
STONE STREET FUND 1992, L.P.
By: Stone Street Performance Corp.,
General Partner
By: /s/ Xxx X. Xxxxxxxx
----------------------
Name: Xxx X. Xxxxxxxx
Title: Vice President
PROVIDENCE MEDIA PARTNERS L.P.
By: Providence Media G.P. Limited
Partnership, General Partner
By: Providence Ventures L.P., General
Partner
By: /s/ Xxxxxxxx X. Xxxxxx
-------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: President
XXXXXXXXX TELECOMMUNICATIONS HOLDINGS
(USA) LIMITED
By: /s/ Canning Fok
--------------------------------
Name: Canning Fok
Title: Director
By: /s/ Xxxxx Xxxx
--------------------------------
Name: Xxxxx Xxxx
Title: Company Secretary
XXXXXXXXX TELECOMMUNICATIONS PCS (USA)
LIMITED
By: /s/ Canning Fok
--------------------------------
Name: Canning Fok
Title: Director
By: /s/ Xxxxx Xxxx
--------------------------------
Name: Xxxxx Xxxx
Title: Company Secretary
